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Articles Posted in Damages

Defendants could not introduce evidence to rebut the presumption that plaintiff’s medical bills were reasonable when that evidence violated the collateral source rule. In Doty v. City of Johnson City, No. E2020-00054-R3-CV (Tenn. Ct. App. July 7, 2021), plaintiff was riding in a car when she was hit by a tractor being driving by an employee of defendant. Defendant admitted liability, so the only issue was the amount of damages.

The accident caused plaintiff to need shoulder surgery (she had previously had two other shoulder surgeries), and she was under a doctor’s care for nine months following the accident.

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Where there was material evidence to support the jury’s verdict which failed to award plaintiff damages for medical expenses related to his shoulder injury, the verdict was affirmed. In Almuawi v. Gregory, No. M2020-01018-COA-R3-CV (Tenn. Ct. App. June 2, 2021), plaintiff and defendant were involved in a car accident when plaintiff was rear-ended by defendant. Defendant admitted liability, so the only issue at trial was the amount of damages to be awarded to plaintiff. Plaintiff’s complaint sought $200,000, including $27,870.21 in medical expenses, $539 for replacement of his eye glasses, and the remainder for “past pain and suffering and his loss of the ability to enjoy life.”

After a two-day jury trial, the jury returned a verdict awarding plaintiff a total of $13,796.21, which included $8,257.21 in medical expenses, $539 for eye glasses, and $5,000 in noneconomic damages. Notably, the jury award did not include over $15,000 in expenses plaintiff incurred while being treated by a chiropractor for a labral tear to his right shoulder. Plaintiff filed a motion for a new trial or, in the alternative, for additur, which the trial court denied. On appeal, the jury’s verdict and the denial of the motion for a new trial was affirmed by the Court of Appeals.

When the Court of Appeals is reviewing a jury verdict, it is “required to take the strongest legitimate view of all the evidence in favor of the verdict, assume the truth of all evidence that supports the verdict, allowing all reasonable inferences to sustain the verdict, and to discard all countervailing evidence,” approving the verdict if “there is any material evidence to support the award.” (internal citations omitted). The issue here was whether the jury properly excluded damages for costs related to plaintiff’s shoulder injury, an injury for which defendant denied responsibility. The evidence at trial showed that the accident occurred on March 8, 2017, and that plaintiff did not complain of shoulder pain until almost a month later on April 5th. On the day of the accident, plaintiff’s medical records showed that he “complained of pain in his left knee, neck/back, and the left side of his face.” The next day, he mentioned pain in his “neck, mid-back, and left knee.” One week after the accident, he visited his doctor and complained of “low back pain, neck pain, and left knee pain.” The first mention of shoulder pain was a note from a physical therapist on April 5th, but at a doctor’s appointment two days later plaintiff did not complain of shoulder pain.

When an injured plaintiff’s spouse asserts a loss of consortium claim, the noneconomic damages cap found in Tenn. Code Ann. § 29-39-102 “allows both plaintiffs to recover only $750,000 in the aggregate for noneconomic damages.” In Yebuah v. Center for Urological Treatment, PLC, No. M2018-01652-SC-R11-CV (Tenn. June 2, 2021), plaintiffs filed an HCLA claim after plaintiff wife’s surgeon left a medical device in her abdominal cavity while removing her kidney, causing her pain and chronic inflammation until the device was discovered during an unrelated procedure eight years later. The jury had awarded plaintiff wife $4,000,000 in pain and suffering and loss of enjoyment of life damages, and awarded $500,000 in damages to plaintiff husband for loss of consortium. The trial court originally ruled that the damages in total would be reduced to $750,000 pursuant to the damages cap, but then amended the ruling and held that the cap should be applied to each plaintiff separately, meaning that the wife would receive $750,000 and husband would receive $500,000. The Court of Appeals affirmed this application of the damages cap.

During this appeal to the Supreme Court, the facts of the case were not at issue. The only issue here was how Tennessee’s cap on noneconomic damages should be applied when the injured plaintiff is seeking noneconomic damages and his or her spouse is also pursuing a loss of consortium claim (but not a claim for personal injuries).

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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.

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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.

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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.

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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.

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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.

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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 24th, 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 4th, she suffered a stroke and was ultimately pronounced brain dead. Care was withdrawn the child passed away on April 5th.

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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.

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