Day on Torts
Under Tennessee law, most wrongful death lawsuits are filed by the decedent’s surviving spouse. Sometimes, several years pass before the wrongful death lawsuit comes to trial and, in the meantime, the surviving spouse who filed the wrongful death lawsuit remarries. Is evidence of the re-marriage admissible at the trial of the wrongful death lawsuit?
A recent decision of the Tennessee Court of Appeals indicates that the answer to this question may be “yes.” In Davis v. Ellis, 2025 WL 3296175 (Tenn. Ct. App. Nov. 26, 2025), the late Ms. Sylvia Davis of West Tennessee died in January 2011, allegedly because of the medical errors of Dr. Ellis. The case did not go to trial until the Spring of 2024 and the wrongful death case filed by her husband was rejected by a jury.
Husband appealed the jury result to the Tennessee Court of Appeals, alleging multiple errors by the trial court. One of the alleged errors was that the trial court improperly allowed the jury to learn (and the defendant doctor to comment on) the fact that the plaintiff husband remarried one year after Sylvia Davis’s death.
The Court of Appeals ruled that the trial court properly allowed the jury to learn and defense counsel to comment on the plaintiff’s remarriage. The appellate court noted that under Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 601-02 (Tenn. 1999), damages for wrongful death “include consortium damages, which that Court defined as including losses by family members of the deceased’s “attention, guidance, care, protection, training, companionship, cooperation, affection, love, and in the case of a spouse, sexual relations.” The court then noted that “[a]s remarriage results in the replacement of at least some of the damages to the spouse of a decedent, remarriage is inherently relevant to a loss of consortium claim. We find that this evidence was not prejudicial to the judicial process.” 2025 WL 3296175 at *8.
Neither the facts of the case nor the opinion addressed the admissibility of the wrongful death plaintiff dating or living with another person with whom they were romantically involved.
It is possible that the Tennessee Supreme will review this case and reverse this holding. It also possible that the Court of Appeals’ opinion will not be “published” and therefore it will not be considered binding precedent. But, in the meantime, it be prudent for plaintiffs’ counsel to assume that this will be the law in Tennessee and to advise wrongful death plaintiffs accordingly. And, if one’s client does get married before trial and that fact is determined to be admissible, it would be prudent to prepare to introduce evidence to argue how re-marriage does not substantially reduce, much less eliminate, the loss of the former spouse.