Tort Law Tidbit – Arguing Pain and Suffering

Can a judge stop a lawyer from arguing the value of pain and suffering to a jury?

No. T.C.A. Sec. 20-9-304 gives a lawyer in a personal injury case the right to argue the worth or monetary value of pain and suffering. The argument must conform to the evidence or reasonable deduction from the evidence in the case.

The only possible exception to this rule is medical negligence cases.

T.C.A. Sec. 29-26-117 says that the demand in the complaint filed in a medical negligence case “shall not be disclosed to the jury during a trial of the case” despite the language of T.C.A. Sec. 20-9-302. Sec. 20-9-302 allows counsel to “read his entire declaration, including the amount sued for, to the jury ….”

In Guess v. Maury, 726 S.W.2d 906 (Tenn. App. 1986), the plaintiff’s lawyer referred to the case as a “multi-million dollar lawsuit” and the court of appeals held that such conduct constituted a reason (among other reasons) for a new trial, reversing a verdict for the plaintiff. Of course, no one knows whether the mention of a dollar figure, standing alone, would result in a new trial.

I think Guess v. Maury was wrongly decided. Working under the basic rule that statutes should be construed together whenever possible, a plaintiff should be argue the value of the case, including the value of pain and suffering, but should be prohibited from mentioning the ad damnum. The Legislature must have been aware of T.C.A. Sec. 20-9-304 when it passed 29-26-117 and obviously did not intend to overrule it (or they would have).

Given the ruling in Guess, it would be prudent to ask the Court for permission to argue the dollar value of intangible losses before you get up and do so. Use the information here to distinguish Guess; the Guess decision never mentions Sec. 20-9-304. Therefore, you can argue that the Guess court would have made a different decision had they been aware of this statute.

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