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Articles Posted in Damages – Personal Injury

The Tennessee Supreme Court has ruled that the constitutionality of the artifical cap on non-economic damages in tort cases should not be examined by the courts until after a plaintiff receives a verdict in excess of the cap.

The decision comes in the Clark case out of Chattanooga.   The trial judge in that case ruled that the caps were unconstitutional.  Tennesssee’s High Court said the ruling was premature.  The Order can be reviewed by clicking on the link below

From a practical standpoint, this means that a supreme court review of the caps is at least two years off.  Why?  Because that is how long it takes, on average, from a verdict to go through the entire appellate process.   It is possible that a case with a verdict over the caps is in the pipeline right now but I have not heard of such a pending case.   Please let me know via a comment if you are aware of one.

A Tennessee appellate court has ruled that a chiropractic clinic’s assignment agreement unenforceable in lawsuit against former patient injured in car wreck and liability insurance company who settled injury claim with patient. 

In Action Chiropractic, LLC v. Prentice Delon Hyler,, No. M2013-01468-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2014), the defendant (patient) was injured in a car crash and was subsequently treated at plaintiff’s chiropractic center (clinic), incurring approximately $5,010 in charges for medical care. In an attempt to secure payment for any treatment provided, the clinic initially required the patient to execute an assignment contract for “medical expense benefits allowable, and otherwise payable” to patient by his “health insurance, auto insurance, or any other party involved.”

The clinic sent a copy of the assignment contract to Erie Insurance Exchange (Erie), which was the auto insurance carrier of the person responsible for causing the patient’s car crash. The clinic demanded that Erie honor the assignment contract by paying the clinic directly the amounts due for patient’s treatment.

 

For more than a century, Tennessee courts have recognized that a tortfeasor “must accept the person as he finds him” and have allowed injured parties to recover all damages proximately caused by tortfeasors. This means that injured victims of negligence are allowed to recover damages for aggravation of pre-existing injuries as long as there is expert medical proof linking the additional harm suffered by the injured person to the acts of the wrongdoer. 

In the case of Pyle v. Mullins, No. E2012-02502-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2013), the plaintiff was injured in a car crash and at trial received a jury verdict for $15,000 (an amount less than his claimed medical expenses).  Plaintiff believed the verdict was too low and appealed the judgment. One reason for the low damage award, according to the plaintiff’s appeal, was that the judge refused to instruct the jury regarding the defendant’s liability for aggravation of the plaintiff’s pre-existing neck condition. (Note: while it is the jury who determines the amount of compensation to award an injured plaintiff, it is the judge who makes the legal determination on the types of damages that can be awarded.  Exactly why the plaintiff thought the award would have been larger if the jury had been charged on aggravation of a pre-existing condition is not clear.)  The plaintiff argued that the jury should have been allowed to award additional damages because, he claimed, proof at trial showed the crash caused his pre-existing degenerative disc disease to become a chronic condition requiring extended treatment.

After reviewing the evidence at trial with a focus on the testimony of plaintiff’s medical expert, the court of appeals disagreed with the plaintiff and affirmed the trial court’s decision to not instruct the jury on plaintiff’s pre-existing neck condition. While the plaintiff’s medical expert testified that a person with degenerative changes like the plaintiff’s is more susceptible to injury and that car crashes commonly cause neck pain to manifest itself in a person with degenerative changes, the medical expert did not testify, as required by law, that the plaintiff’s car crash aggravated his degenerative disc disease or had any specific effect on it at all. In other words, the medical expert’s testimony about general observations and correlations between neck pain and car crashes was insufficient and not material because it did not specifically relate to the plaintiff’s injury.

Well, it ain’t much, but the Tennessee Legislature has fixed one small problem with the tort reform legislation that impacts all tort cases arising on or after October 1, 2011.

The original legislation included a provision that required all future damages to be broken down "on an annual basis"  for future medical bills, lost earning capacity, and non-economic damages. Tennessee Code Annotated, Section 29-39-103(a)(2),   This was a disaster waiting to happen.  Why?

Here is an example.  Assume a 20 year old unmarried woman is severely brain damaged as a result of an incident.  She will never work again and she has a significant future medical expenses over her lifetime.  Her life expectancy is disputed – the defense says she has a fifteen year life expectancy and the plaintiff’s expert says she has a normal (sixty year) life expectancy.  There is also a dispute over the inflation rate and the discount rate.

The fungal meningitis outbreak discovered in Nashville and now spread to other states (Minnesota, Ohio,  Florida, North Carolina, Indiana, Michigan, Virginia and Maryland) will shed new light on compounding pharmacies and epidural steroid injections.  But it will also shed a light on the tort reform statutes that placed limitations on the amount of money that wrongdoers have to pay when their conduct kills or injures a human being.

Usually, the effects of tort reform remain hidden, known only to the those who get harmed and find out their rights are limited, the legal community, and of course  those members of the business and insurance communities who persuaded the General Assembly to pass the laws.  But now that we have a tragedy that is in the national spotlight, millions of people will come to know that the Tennessee General Assembly does not permit Tennesseans to put a value on human life or on suffering or pain.  Rather, the value of those losses has been arbitrarily capped by  lobbyists and business interests.

In other words, the public will soon find out that tort reform will provide yet another harm to the victims of fungal meningitis and their families.

Eric Turkewitz, a plaintiff’s personal injury lawyer in New York,  wrote about it first.  He told us about a plaintiff’s lawyer in New York who sought $30,000,000 for damages to a child who lost part of his ear lobe after a dog bite.

Eric was upset because this "courtroom bulldog who won’t be leashed" (according to her website) either didn’t know or didn’t care about a 9-year old law that prohibits mentioning the amount sought when filing a lawsuit.  These actions, in Eric’s view, make the job of plaintiff’s lawyers who choose to follow the law more difficult.  He is right.

Then, Max Kennerly, a plaintiff’s personal injury lawyer in Philadelphia, weighed in.  He agreed with Eric, but went on to explain that the $30,000,000 request bore absolutely no relationship to amount of the damages in the case.  Once again, I agree.

Tennesse law limits damages that may be recovered in personal injury and wrongful death cases.  The limits apply only to cases that arise from events that occur on or after October 1, 2011.

Medical expense and lost wages claims are not limited.  However, damages for pain, suffering, disfigurement, disability, loss of enjoyment of life and loss of consortium are limited to $750,000 unless one of the following apply to the case:

  • there injured person was rendered paraplegic or quadraplegic because of a spinal cord injury in the wreck;
  • the injured person had extensive three degree burns; 
  • the injured person had two hands, two feet or one of each amputed in the wreck; or
  • in wrongful death cases, the decedent is survived by a minor child and had custody of or visitation rights with the child.

If one of the exceptions apply, the damage limit is increased to $1,000,000.

You cannot try to murder your ex-wife and then avoid a judgment against you for compensatory or punitive damages by filing bankruptcy.

The Court of Appeals for the Seventh Circuit rejected the effort of David Larsen to use the bankruptcy system to avoid his financial obligation to his former wife.  Larsen tried to kill Teri Jendusa-Nicolai and, although his effort was unsuccessful, she suffered a miscarriage and the amputation of all of her toes.  The toes were amputated secondary to frostbite – the jerk beat her with a baseball bat and left her in a garbage can filed with snow, secreting the can in an unheated storage facility.

A civil suit was filed, resulting in a judgment of $3.4 million for her and $300,000 for her (then) husband and daughters for loss of consortium.  Larsen then filed a Chapter 7 proceeding seeking to discharge the judgment debts.

"Lost earning capacity is not a difficult concept to understand, but our friends in the defense bar sometimes are able to confuse judges and juries about what it means.  The United States Court of Appeals for the Sixth Circuit confronted in issue recently in a case involving Ohio tort law, and got it right.

Andler received broken bones in her feet at an event in 2004 and brought a premises liability claim. Prior to her injury, Andler worked part-time at a childcare center and earned between $9,000 and $10,000 a year.  According to Andler, her injuries forced her to switch jobs and, in the years following the injury, she worked full-time as a manicurist and pedicurist; she earned approximately $10,000 in 2006 and $25,000 in 2008.

At the first trial, Andler offered expert testimony of accountant Daniel Selby, who testified, using Bureau of Labor Statistics (“BLS”) figures, as to Andler’s lost earning capacity due to the injury. Selby testified that, but for her injury, Andler could have earned approximately $17,600 a year as a full-time childcare worker; post-injury, her annual earning capacity as a full-time manicurist and pedicurist was approximately the same.  When factoring in the effects  of her work disability, such as increased likelihood of missed work or longer-term exit from the workforce, Selby concluded that Andler’s damages for lost earning capacity totaled $232,346. 

We all know that the services provided by homemakers have a substantial value, but this article from Vestopedia puts some numbers on it.

The author notes that "

The life of a homemaker is one that includes an endless amount of demands and to-dos. Depending on the size of the home and family, the position of homemaker can go well beyond the usual nine to five. We examined some of the tasks that a homemaker might do to find out how much his or her services would net as individual professional careers. We only take into consideration tasks which have monetary values and use the lowest value for each calculation.

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