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Meadows v. Wausau Insurance Company12/8/2003
cipitating event for Ms. Meadows' condition, and agrees that this would be the March 1999 injury. However, Dr. Alexander also testified that her chronic pain increased with each subsequent injury or incident related to her back, and did not attribute it all back to her March 1999 incident.
Dr. Holmes testified that Ms. Meadows suffers from a bipolar disorder, and that there is a connection between this and her back injury . Dr. Holmes also testified that Ms. Meadows has had chronic pain since the March of 1999 injury, and that all of the subsequent incidents were just incidents of the chronic pain manifesting itself in different ways. Dr. Holmes believes that the nature of this mental disorder is irreversible and that Ms. Meadows will need medication and treatment for the rest of her life.
Dr. Robert Bradley, a rehabilitation counselor, testified as to Ms. Meadows' vocational abilities. Dr. Bradley felt that Ms. Meadows would not be able to keep any job in light of her physical limitations and psychological problems. Dr. Bradley felt that Ms. Meadows had no job opportunities in the job market.
Discussion
The defendant/appellant argues that the trial court erred in allowing the plaintiff to voluntarily dismiss Legion Insurance Company while the defendant's motion for summary judgment was pending. Under Rule 41.01(1) of the Tennessee Rules of Civil Procedure, the plaintiff has the right to take a voluntary non-suit to dismiss an action, except when a motion for summary judgment made by an adverse party is pending. The right of the plaintiff to non-suit is subject to the restriction that the granting of the non-suit will not deprive the defendant of a right that has become vested during the pendency of the case. Anderson v. Smith, 521 S.W.2d 787 (Tenn. 1975). In the present case, Wausau had taken no action whatsoever against Legion Insurance Company, therefore Legion was not an adverse party to Wausau. The dismissal of Legion also did not deprive Wausau of any right, Wausau could still offer evidence that Ms. Meadows' injury occurred while Legion was the insurance carrier. Therefore we agree with the trial court allowing the plaintiff to voluntarily dismiss Legion Insurance Company while Wausau's motion for summary judgment was pending.
The trial judge in this case found the testimony of Drs. Gallagher and Hodges significant in that they both testified that they believed Ms. Meadows' subsequent incidents and problems with her back were related to her March 1999 injury . Specifically, Dr. Gallagher found no new associated symptoms after each of the subsequent injuries that he saw her for. Dr. Hodges testified that she did not experience any advancement of her anatomical condition.
The trial judge also found the testimony of the two psychiatrists, Drs. Alexander and Holmes, important in deciding the issue of whether or not, and how, Ms. Meadows' psychological problems relate back to her injury in March 1999. Although the two psychiatrists, Drs. Alexander and Holmes, agreed with the opinions given by Drs. Gallagher and Hodges that Ms. Meadows' chronic pain from her back is one of the factors that causes her to have the psychological difficulties that she has, Dr. Alexander is of the opinion that her chronic pain increased with each subsequent injury or incident that occurred. Dr. Holmes is of the opinion that all of the subsequent incidents relate back to the injury from March 1999. The trial court has the discretion to accept the opinion of one medical expert over another medical expert, Kellerman v. Food Lion, Inc., 929 S.W.2d 333 (Tenn. 1996); Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn. 1990), and the trial judge in this case decided to
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