Day on Torts

Can a judge stop a lawyer from arguing the value of pain and suffering to a jury?

No. T.C.A. Sec. 20-9-304 gives a lawyer in a personal injury case the right to argue the worth or monetary value of pain and suffering. The argument must conform to the evidence or reasonable deduction from the evidence in the case.

The only possible exception to this rule is medical negligence cases.

T.C.A. Sec. 29-26-117 says that the demand in the complaint filed in a medical negligence case "shall not be disclosed to the jury during a trial of the case" despite the language of T.C.A. Sec. 20-9-302. Sec. 20-9-302 allows counsel to "read his entire declaration, including the amount sued for, to the jury ...."

In Guess v. Maury, 726 S.W.2d 906 (Tenn. App. 1986), the plaintiff's lawyer referred to the case as a "multi-million dollar lawsuit" and the court of appeals held that such conduct constituted a reason (among other reasons) for a new trial, reversing a verdict for the plaintiff. Of course, no one knows whether the mention of a dollar figure, standing alone, would result in a new trial.

I think Guess v. Maury was wrongly decided. Working under the basic rule that statutes should be construed together whenever possible, a plaintiff should be argue the value of the case, including the value of pain and suffering, but should be prohibited from mentioning the ad damnum. The Legislature must have been aware of T.C.A. Sec. 20-9-304 when it passed 29-26-117 and obviously did not intend to overrule it (or they would have).

Given the ruling in Guess, it would be prudent to ask the Court for permission to argue the dollar value of intangible losses before you get up and do so. Use the information here to distinguish Guess; the Guess decision never mentions Sec. 20-9-304. Therefore, you can argue that the Guess court would have made a different decision had they been aware of this statute.

John,

This question is tangential to this issue, but I'm dying to ask it. Given Rules 8 and 15 of the Tenn. R. Civ. P. and some case law out there, specifically Gaylor v. Miller, 166 Tenn. 45, 59 S.W.2d 502, 504 (Tenn.1933), why would anyone include in their ad damnum language to this effect: "in an amount to be determined by [the trier of fact] but not to exceed [X amount]"? (I've seen this lately).

I know you have to demand an amount, but my problem is with the "but not to exceed" part. I prefer "not less than" or "in excess of" a certain amount. It seems to me that the plaintiff's lawyer could be the victim of his/her own success - via a malpractice claim - if the jury comes back with a verdict for more than what was demanded. Any thoughts?

Thanks,

Tony

Thanks Tony. I started adding that language to my complaints at least 15 years ago and have been recommending it for some time.

The original reason is that I did not want a defendant to be able to say I sued for "X". I wanted the jury to know that I sued for an amount they thought was reasonable. A number had to be put in because Rule 15 has been construed to require a number - and that number cannot be increased after the jury announces its result.

A number is also required - by statute - in products liability cases.

The law has since changed slightly - a number is no longer required in medical negligence cases. After that case my complaint no longer include a number in medical negligence cases.
However, in the typical tort case, I still like the language because it permits me tell the jury that the law requires us to give a number but they are the ultimate decision maker.

John, I am a little unclear as to whether you mean Tony's language, "not less than/in excess of," is preferrable in your opinion or do you believe "an amount fair and reasonable to the jury not to exceed X" is better?
--Or, perhaps a hybrid, which prevents Tony's fear of being a victim of his or her own success and incorporates room to allow for a jury's good judgment would be best. --words to the effect, "An amount in excess of X, or in the alternative, an amount the trier of fact deems fair and just." Your thoughts?
Thanks!
Marcos

Most judges will not let you use "an amount in excess of X." In anything but a med mal case, you will almost certainly be required to give a specific amount.

So, 15 years ago (or more) I began to advocate the phrase "in an amount to be determined by the jury but not to exceed X" - which I believe meets the requirement of Rule 15 but does not put a "bare" number of there.

Risk of being sued in the event of an excess verdict? Sure. Indeed, I have had one excess verdict. But you have that risk if you put a "bare" number out there, too.

Thanks for reading.

I will never forget on of my early jury trials when Barry Howard smoked my arse in front of a jury with a soft tissue ad damnum of $150K. I have never understood why the ad damnum is relevant for a jury's consideration in any case. Until recently, I never state an ad damnum, and, in the event that I am forced to do so, I file a separate "Notice of Ad damnum", along with a Motion In Limine to exclude Notice of Ad damnum". So far, my Motions in limine have never been denied.