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Brief Summary: The Tennessee tort reform bill of 2011 requires the judge or jury to make specific findings for certain types of damages. The trier of fact must provide a monetary value on the total amount of past and future: (1) medical bills; (2) economic damages; and (3) noneconomic damages. As a result, there will be a minimum of six separate lines on the jury verdict form for damages in a personal injury cause of action.
Analysis: T.C.A. § 29-39-103 was created by the 2011 Tennessee tort reform legislation and provides a requirement that the trier of fact (either the judge or the jury), must make separate findings for certain types of damages. This requirement applies when “liability is found in a civil action” so it applied broadly to all civil actions. This statute provides:
(a) If liability is found in a civil action, then the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:
(1) Any past damages for each of the following types of damages:
(A) Medical and other costs of health care;
(B) Other economic damages; and
(C) Noneconomic damages; and
(2) Any future damages and the periods over which they will accrue, on an annual basis, for each of the following types of damages:
(A) Medical and other costs of health care;
(B) Other economic damages; and
(C) Noneconomic damages.
As a result, the trier of fact must specifically determine the total medical care costs for past and future damages. Then it must determine the past and future damages for “economic damages” and “noneconomic damages.” The trier of fact must also determine “other appropriate findings” which is an undefined term in the statute. Both “economic damages” and “noneconomic damages” are defined terms in T.C.A. § 29-39-101.
(1) “Economic damages” means damages, to the extent they are provided by applicable law, for: objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, mental health treatment, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, repair or replacement of property, obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses;
(2) “Noneconomic damages” means damages, to the extent they are provided by applicable law, for: physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of society, companionship, and consortium; injury to reputation; humiliation; noneconomic effects of disability, including loss of enjoyment of normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; and all other nonpecuniary losses of any kind or nature.
See my prior blog post on these damages. These two types of damages cover many different categories. Interestingly, T.C.A. § 29-39-103(a)(2) has the specific requirement that the trier of fact determine the "periods over which they will accrue, on an annual basis" for future damages. This requirement forces the jury to make a specific decision for each of the three elements of future damages.
For strategic reasons, more times then not, I request an itemization of the specific categories of damages in jury trials. On more then one occasion, the court denied my request to have the jury list the damages by specific category. Instead the jury was only required to list the total damages. This new statute now requires the jury to make specific findings on specific types of damages (it only applies to causes of action that accrue on or after October 1, 2011). I also expect that the definition of "economic damages" and "non-economic damages" will now be in every jury instruction in Tennessee.
As a result, Tennessee defense attorneys need to be aware that there will now be multiple lines on jury verdict forms for the jury to input numbers. Lawyers are going to have to be prepared to make arguments about the definitions of "economic damages" and “noneconomic damages.” Additionally, defense counsel need to make sure the jury knows that just because there is a line on the verdict form for a specific type of damage does not mean the plaintiff is entitled to an award for that damage.
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