Damages

October 12, 2020

Noneconomic damages cap should be applied to each plaintiff separately in personal injury cases.

When an HCLA plaintiff was awarded a verdict for her health care liability claims and her husband was awarded damages for loss of consortium, the trial court correctly considered the plaintiffs separately for the purpose of applying the statutory cap on noneconomic damages. FIRST PUBLISHED IN JUNE 2020. SEE UPDATE BELOW.

In Yebuah v. Center for Urological Treatment, No. M2018-01652-COA-R3-CV (Tenn. Ct. App. May 28, 2020), plaintiff had surgery to remove a cancerous kidney in 2005. A CT scan was done four months after surgery, and the radiologist reported no signs of cancer. The radiology report on a subsequent CT scan noted a “tubular structure” within plaintiff’s abdominal cavity, but plaintiff’s treating physician “did not read the reference to the foreign object.” Seven years later, plaintiff required gallbladder surgery due to severe abdominal pain. During that surgery, it was discovered that a “part of a gelport device” had been left inside plaintiff during her 2005 kidney surgery. Plaintiff required another surgery to have the device removed.

July 17, 2020

No damages to plaintiff despite fault of defendant in car accident affirmed.

by The Law Offices of John Day, P.C.

Where defendant admitted liability for a car accident but denied that the accident caused plaintiff’s alleged injuries, a jury verdict for defendant was affirmed where there was material evidence showing that the accident was minor, evidence showed plaintiff had a history of back and/or neck pain, and plaintiff’s expert witness admitted that “she based her opinion on purely subjective findings[.]”

In Bell v. Roberts, No. M2018-02126-COA-R3-CV (Tenn. Ct. App. July 8, 2020), plaintiff, a 70-year-old woman, filed suit after her vehicle was rear ended by a car driven by defendant. Defendant admitted fault, but he denied that the accident caused any injury to plaintiff.

During a jury trial, plaintiff, defendant, plaintiff’s doctor, and the police officer who responded to the accident testified. Plaintiff stated that she drove herself to the ER after the accident, and “scans of her spine showed changes consistent with degenerative disc disease.” After the medicine prescribed at the ER failed to alleviate her neck pain, she went to her doctor 15 days later and was given “additional pain relief measures and physical therapy.” Plaintiff admitted that she had a history of degenerative disc disease and back surgery, but she stated that she had never had neck pain before the accident. On cross examination, however, defense counsel pointed out that her testimony about previous pain was different in her deposition. Plaintiff also admitted that she did not complain about neck pain to her doctor past April 2016, although she maintained that she did not fully recover.

July 15, 2019

Recovery of Future Medical Expenses Under Tennessee Law

by The Law Offices of John Day, P.C.

An award for future medical expenses in a personal injury claim under Tennessee law may be appropriate even where the plaintiff does not establish with “absolute certainty” that the future treatment will be pursued, as the standard for such an award is “reasonable certainty.”

In Kirby v. Memphis Light Gas & Water, No. W2017-02390-COA-R3-CV (Tenn. Ct. App. April 29, 2019), plaintiff was in a car accident with one of defendant’s drivers. After a bench trial, the judge assigned plaintiff 30% of the fault and awarded him $105,000 in damages, which included an award for future medical expenses to cover a prospective surgery. On appeal, defendant argued that the award for future medical expenses was speculative, and that plaintiff had failed to mitigate his damages by stopping treatment when he did. The Court of Appeals affirmed the damages award.

July 23, 2018

Statute of Limitations for Property Damage Claims

by The Law Offices of John Day, P.C.

Under the discovery rule, a plaintiff’s cause of action for property damage may “not necessarily accrue at the moment they knew they had sustained injury.” Instead, the statute of limitations will not begin to run until they “knew, or in the exercise of reasonable care and diligence should have known, that an injury was sustained as a result of wrongful or tortious conduct by the defendant.” (internal citation omitted).

In Roles-Walter v. Kidd, No. M2017-01417-COA-R3-CV (Tenn. Ct. App. April 24, 2018), plaintiff had purchased a commercial building next to buildings owned by defendants. Plaintiff alleged that beginning in December 2012, she “began to have issues with rain water form the adjacent alleyway flooding their building.” Plaintiff alleged in her complaint that “upon examination by [plaintiff] and subsequently by professionals in this area,” it was determined that the water issues were being caused by water coming off defendants’ buildings roofs, and that defendants had refused to “take any responsibility for the damage…and/or take any actions intended to remedy the water issues.” Plaintiff accordingly filed this lawsuit on November 1, 2016.

Defendants moved to dismiss based on the statute of limitations, which the trial court granted, but the Court of Appeals reversed.

May 24, 2018

Real Property Damages Are Generally Repair Costs

by The Law Offices of John Day, P.C.

In cases involving damages to real property, the general “measure of damages will be the cost of repair[.]” If a defendant wants to argue that diminution in value is a more appropriate measure of damages, he or she has to burden of proving the difference in value from before and after the damage occurred.

In Durkin v. MTown Construction, LLC, No. W2017-01269-COA-R3-CV (Tenn. Ct. App. March 13, 2018), plaintiff had hired defendant to put a new roof on his home. While the roof was exposed, a thunderstorm occurred, and the tarp used by defendant to cover the roof had holes and allowed a significant amount of water to leak into plaintiff’s home. After the damage occurred, defendant initially assured plaintiff that the damage would be promptly fixed, but the repairs were not made. Plaintiff filed this action, and the trial court found defendant liable for both negligence and breach of contract.

August 2, 2017

Negligent Infliction of Emotional Distress Claim Against Hospital Goes to Jury

by The Law Offices of John Day, P.C.

In Henderson v. The Vanderbilt University, No. M2016-01876-COA-R9-CV (Tenn. Ct. App. May 31, 2017), the Court of Appeals overturned summary judgment on a negligent infliction of emotional distress claim, holding that “the alleged failure of the defendant hospital to provide care to the plaintiffs’ daughter, despite repeated assurances from the hospital that it would occur, constitutes an injury-producing event that was witnessed by plaintiffs.”

Plaintiffs brought their 10-year-old daughter to defendant hospital for septic shock related to the flu. She was admitted to the pediatric ICU on March 23, 2013, and given fluids and other medicines, but “no central line was placed; no echocardiogram was performed; no one called for a cardiology consult.” On the morning of March 24^th, plaintiffs “witnessed their daughter go into cardiac arrest.” Plaintiffs were escorted out of the room while defendant spent two hours performing CPR. After the cardiac arrest, plaintiffs allege that the child’s condition deteriorated, and during a procedure on April 4^th, she suffered a stroke and was ultimately pronounced brain dead. Care was withdrawn the child passed away on April 5^th.

March 30, 2017

Tennessee Personal Injury and Wrongful Death Trial Statistics 2015-16

by The Law Offices of John Day, P.C.

Tennessee’s personal injury and wrongful death jury trials and judgment amounts continue at historic lows.

In the fiscal year ending June 30, 2016, only 396 personal injury and wrongful death cases went to trial. Of those 396 trials, only 190 were jury trials – the rest (206) were non-jury trials. For the year earlier (2014-15) there were 367 trials, 183 of which were jury trials and the balance (187) were non-jury trials.

At first glance this shows that the number of jury trials actually increased in 2015-16 190 vs. 183), but it is important to note that the number of tort cases disposed of during 2015-16 actually went up over 10% (10,951 vs. 9695) so one would have expected an even larger increase in the number of jury trials. Only 3.5% of a case dispositions were resolved by a jury or non-jury trial – the other 96.5% of cases were settled or dismissed.

March 28, 2017

Limit on Right of Surviving Spouse to Bring Wrongful Death Claim

by The Law Offices of John Day, P.C.

While a surviving spouse typically has the superior right to bring a wrongful death suit, there are certain exceptions to that rule. In Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017), the Court held that a suit filed by the deceased’s daughter rather than her husband could proceed, as the husband was alleged to have at least partially caused her death.

Wife died in a multi-car accident while she was a passenger in a vehicle driven by her husband. In the accident, husband and a car driven by Mr. Bennett collided, then those two vehicles crossed into opposing traffic and hit two other vehicles. Both the husband and daughter of deceased wife filed wrongful death actions. The trial court dismissed daughter’s action, holding that her action “must yield to the claim of the surviving spouse.” The Court of Appeals reversed and reinstated daughter’s complaint.

In her complaint, daughter named husband as a defendant and alleged that husband was guilty of negligence and negligence per se because he was driving under the influence and was traveling at a high rate of speed, racing Mr. Bennett. In the suit filed by husband, Mr. Bennett was the only defendant named, and husband alleged that “Mr. Bennett’s actions were the sole cause of the accident and death of [wife].”

January 21, 2017

Court Orders New Trial – Jury Disregarded Expert Testimony

by The Law Offices of John Day, P.C.

In Kempson v. Casey, No. E2015-02184-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), the Court of Appeals vacated a jury’s finding of no damages for a plaintiff who presented uncontroverted expert proof regarding injuries he alleged to have sustained in a car accident.

Plaintiff was rear-ended by defendant when he was sitting in traffic on the interstate. Although defendant did not deny that the collision occurred, the parties had vastly different accounts of what happened. Plaintiff alleged that defendant was going around 50 miles per hour when she hit him, that his car was knocked forward 5-6 car lengths (but that he did not hit the vehicles in front of him), and that after the accident defendant had blood going down her leg. Defendant, on the other hand, testified that she was driving between 10 and 15 miles per hour at the time of the collision, that the impact was “minor,” that her airbag did not deploy, and that she did not bleed. Both parties agreed that both vehicles were driven away from the scene.

Plaintiff sued for negligence, asserting that “as a result of the accident, [he] began experiencing intractable neck and low back pain that ultimately necessitated” surgery. In support of his claims, plaintiff presented testimony from his surgeon and his chiropractor. Both of these experts testified that plaintiff had “preexisting complaints related to his cervical, thoracic and lumbar spine,” and that his “post-accident complaints were similar to his pre-accident complaints.” The surgeon testified, though, that in his opinion “the accident at issue caused [plaintiff’s] medical condition to worsen to the point that surgery was necessary.”

January 18, 2017

Proving Damages in a Conversion Case

by The Law Offices of John Day, P.C.

In Hamilton v. Holderman, No. M2015-02302-COA-R3-CV (Tenn. Ct. App. Oct. 27, 2015), the Tennessee Court of Appeals affirmed a damages award in a conversion case.

In the underlying dispute, plaintiffs had rented a furnished house and barn to defendants, which the defendants argued they had orally agreed to buy. Plaintiffs filed a forcible entry and detainer warrant in general sessions court, and defendants eventually vacated the property. When defendants left, they took “certain furnishings and other personalty owned by [plaintiffs]” with them, and this suit for conversion followed.

Plaintiffs initially filed in general sessions court and were awarded $24,999 in damages, the full jurisdictional limit. Defendants appealed to circuit court, where a jury returned a verdict for plaintiffs in the amount of $40,000. Defendants appealed that verdict to the Court of Appeals, arguing that there was not “material evidence in the record to support the jury’s verdict of damages for $40,000.” The Court of Appeals affirmed the award.