Articles Posted in Trial

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.

Not every fall results in a successful premises liability case, as the plaintiffs in a recent Tennessee Court of Appeals case were reminded.

In Woodgett v. Vaughan, No. M2016-00250-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2016), plaintiff filed suit after falling while she was viewing defendants’ home, which was listed for sale. Plaintiff’s husband was a realtor, so he contacted the listing agent about viewing defendants’ home. Defendants had already moved out and removed all of their belongings, so plaintiff and her husband were allowed to view the home on their own. In the upstairs bonus room there was a door that led to the attic access. The landing that accessed the attic was raised, so defendants had hired someone to build a wooden box to use as a step to get to the landing. The step was made with two-by-twelves, measured 9.5 inches high, 39 inches wide and 10.75 inches deep, and was covered with carpet. The step could be moved out of the way and was not affixed to the landing, as it was sometimes moved to accommodate furniture passing through the area. Defendants had “used the step for twenty years without incident.” According to plaintiff, when she used the step while viewing the home, it “gave way” and made her fall.

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The Tennessee Court of Appeals recently vacated a judgment in a car accident case after finding that the “jury’s damages award [was] not supported by material evidence.” In Naraghian v. Wilson, No. W2014-02002-COA-R3-CV (Tenn. Ct. App. Nov. 12, 2015), plaintiff’s car was struck from behind by defendant’s vehicle. According to plaintiff, she had come to a complete stop at a red light and was then hit. Defendant asserted, though, that he slowed down for the red light, but the light then changed to green and plaintiff began driving off, only to suddenly stop and cause the accident.

At trial, plaintiff presented evidence regarding her medical damages. Her treating chiropractor testified that “the treatments he provided were reasonable and necessary and stated that [plaintiff’s] injuries were the result of the traffic accident involving [defendant].” The total bill for plaintiff’s treatment was $13,440, and there was no real dispute at trial regarding the reasonableness or necessity of the charges. “Defense counsel did not submit any witness controverting the reasonableness of the charges that were billed, nor did defense counsel submit any proof rebutting the medical opinions testified to by [the chiropractor] as to the reasonableness or necessity of the treatment or as to the medical causation as a result of this accident.”

The jury found in favor of plaintiff and found her damages to be $7,831.67. Although the jury found defendant to be responsible, they also apportioned 44.58% of the fault to plaintiff, so her damages were accordingly decreased. After having her motion for a new trial denied, plaintiff appealed, asserting that “the damages awarded by the jury were disproportionate to the amount of damages proven at trial.”

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When do statements by counsel to a Tennessee judge in open court give rise to a binding settlement between the parties?

In Harvey v. Turner, No. M2014-00368-COA-R3-CV (Tenn. Ct. App. March 26, 2014), three parties had been involved in protracted litigation regarding property issues for six years. The matter finally went to trial, and after three days of testimony, the trial went on a short hiatus. During that time, counsel for all the parties exchanged emails and phone calls and eventually came to an agreement in principle. When the trial resumed, the attorneys appeared to announce the settlement to the court. By agreement, the parties themselves did not attend. The attorneys announced the terms to the court and affirmed to the court that their parties had agreed to the settlement, the parties agreed that the trial court would retain jurisdiction to enforce the settlement, and the court accepted the settlement.

Subsequently, the parties were unable to come to an agreement on a final written settlement document, so a hearing was held. The defendant asserted that a sewer line was supposed to be included in the agreement, but the trial court disagreed. The trial court found that “there was a meeting of the minds and that that issue was not part of it.” The trial court held that there was an enforceable settlement agreement, and defendant appealed.

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The judge’s in Tennessee’s 23rd Judicial District – Cheatham, Dickson, Houston, Humphreys and Stewart Counties – have adopted new rules of court for the circuit and chancery courts.

Among the new rules is a requirement that all civil cases except appeals from the general sessions court be mediated before they can be set for trial.  Rule 3.04.

The Tennessean has a fascinating video interview of Todd Easter, one of the jurors in the Corey Batey and Brandon Vandenburg rape trial.    Juror feedback in any case gives trial lawyers helpful information about how to present information to a jury.  Mr. Easter’s interview yielded the following reminders:  

1.     Under Promise and Over Deliver —  In the Vanderbilt rape trial, one of the areas in which the lawyers over promised was the expected length of the trial.  The initial projection by the lawyers was 9 days.  Instead, the trial took 3 weeks.   Mr. Easter mentions this twice in his interview.  Since it sounds like both sides underestimated the time needed, the jurors were probably not mad at either side. But, if one side unilaterally makes a commitment on time (or evidence) and does not deliver, it could get ugly.  So,  Mr. Easter’s interview reminds us to be respectful of jurors time and under promise and over deliver.

2.     Digital Evidence is Hard to Overcome – If you are unfamiliar with the Vanderbilt rape case, the rape of the unconscious woman was videotaped and then shared with friends.  In addition, cameras in the dorms captured the defendants carrying the unconscious victim into the dorm and then later depositing her naked in the hallway.   Not surprisingly, the jurors found this evidence to be compelling and “impossible to refute”, which takes us to the next point.

Attorneys for one of the defendants convicted of raping an unconscious student intends to file a motion for a mistrial based on juror misconduct. Specifically, the juror in question was a rape victim and allegedly failed to disclose that fact during voir dire questioning. Defense attorneys contend the juror was asked about past experiences with the criminal justice system as either a victim or defendant, and this juror failed to respond. Yet, an attorney for the juror has issued a statement there was not any misrepresentation. 

Of course, this situation is every trial lawyer’s nightmare, right? There are two possibilities here. First, as the defense contends, the juror concealed her past in the face of a question specifically posed to unveil such an issue. This scenario is a nightmare mostly for the prosecution as now they have a new issue to handle on appeal while trying to hold on to the guilty verdict.

The second possibility is the defense lawyers did not ask the right question to elicit the juror’s past as a rape victim. If this juror did not report the rape to the police, then it is unlikely she had any interaction with the criminal justice system as a victim. Since rape is thought to be one of the most underreported crimes with only about 16% of victims reporting, this scenario is more probable than possible. Needless to say, this is the defense lawyer’s worst nightmare because he failed to simply ask whether any prospective juror was a rape victim.  Instead, he asked a much more general question.

Jason Lee has reviewed my book, Tennessee Law of Civil Trial, on his Tennessee Defense Litigation blog.

Some highlights:

The way I would characterize this book is it is a practical guide to the ins and outs of trial practice.  There are citations to case law throughout the book that can be used to prepare for issues that may come up at trial. 

Here are the verdicts collected by the October, 2014 Tennessee Jury Verdict Reporter:

  • Health Care Liability – epidural steroid injection with back injury – June 27, 2014 – defense verdict in state court in Davidson County
  • Abuse of Process – photographer arrested – August 22, 2014 – defense verdict in federal court in Hamilton County
  • Pedestrian  – child pedestrian hit by car – May 14, 2014 – defense verdict in state court in Shelby County
  • Car Wreck – disk herniation –  February 14, 2014 – $50,313 in state court in Knox County
  • Pedestrian – adult pedestrian hit by car in crosswalk – April 16, 2014 – defense verdict (50-50 fault allocation) in Davidson County 
  • Car Wreck – soft tissue injuries – April 15, 2014 – $3600 in state court in Shelby County 
  • Excessive Force by Police – facial injuries – August 29, 2014 – defense verdict in federal court in Davidson County
  • Car Wreck – soft tissue injuries – March 13, 2014 – defense verdict in state court in Hamilton County
  • Car Wreck – soft tissue injuries – August 16, 2014 – $15,000 verdict in state court in Davidson County
  • Sip and Fall – wrist and knee injuries – August 14, 2014 – defense verdict in federal Court in Greenville
  • Car Wreck – soft tissue injuries – May 22, 2014 – defense verdict in Shelby County
  • Car Wreck – knee injury and low back pain –  May 14, 2014 – $12,940 verdict in state court Davidson County ($40,000 offer of judgment rejected)

Full details on each of these jury verdicts can be obtained from the Tennessee Jury Verdict Reporter.


In Bilbrey v. Parks, No. E2013-02808-COA-CV (Tenn. Ct. App. Sept. 29, 2014), a negligence case arising from a car accident, the Court of Appeals recently addressed two evidentiary issues. Plaintiff, her aunt, and her boyfriend were in plaintiffs car when it ran out of gas. The car was pushed onto the side of the road, though not completely off of it. While the boyfriend and aunt had gone to get gas, defendant came along and collided with plaintiffs car. The incident occurred at night. Plaintiff brought a negligence action against defendant, and defendant counterclaimed asserting plaintiffs negligence. At trial, the jury found both plaintiff and defendant to be 50% at fault. Subsequently, plaintiff appealed two evidentiary rulings made by the trial court.

First, plaintiff asserted that the trial court should not have allowed the boyfriends deposition to be read into evidence by defendant. Plaintiff pointed out that defendant had not subpoenaed boyfriend within the timing specified by local rules, and more importantly, that the evidence presented to show that boyfriend was unavailable by being more than 100 miles from the courthouse was insufficient. The unavailability evidence was fraught with layers of hearsay, and boyfriendsunknown, unproven, and in dispute.s deposition should not have been admitted, it was a harmless error, as the deposition testimony was almost entirely consistent with, and cumulative to, that ofs deposition and the in-court testimony of other witnesses did not result in the admission of the deposition being prejudicial to plaintiff.

Second, plaintiff objected to the testimony of a state trooper who listened to a voice mail from plaintiff to her boyfriend on plaintiffs phone when he arrived at the scene. According to his testimony, plaintiff told her boyfriend on that message that the emergency lights had either gone out or were going low. In affirming the trial courts decision to allow the trooper to testify regarding the voicemail, the Court addressed three major points. One, plaintiff and her boyfriend had both testified that the phones containing this message were either lost or destroyed. Defendant, therefore, could rely on Tenn. R. Evid. 1004 and did not have to produce the original recording. Two, although the trooper had never heard plaintiffs voice prior to listening to the voicemail, he spoke with her soon thereafter and testified that he recognized the voices as the same. The Court found that this was enough to satisfy the voice identification requirements of Tenn. R. Evid. 901. Three, plaintiff asserted that this statement did not fall under the party-opponent admission exception to the hearsay rule as it was not a statement against plaintiffs interest. The Court rejected this argument, noting that any statements by a party, whether against that partys interest or not, may be used by the opposing party. Accordingly, the Court of Appeals affirmed the trial courts judgment.