Trial Court Remittitur Greater Than 60% Is At Risk of Destroying a Jury’s Award Under Tennessee Law and Therefore Considered Invalid (43% Reduction Acceptable)

A recent interesting Tennessee Court of Appeals decision, Donriel A. Borne v. Celadon Trucking Services, Inc., No. W2013-01949-COA-R3-CV, 2014 WL 3778743 (Tenn. Ct. App. 2014), discussed the extent a remittitur of a jury’s award can be allowed.  A remittitur is simply a process where the trial can reduce a jury verdict award in order to make sure the award is not excessive and is reasonable under Tennessee law.  However, a remittitur by the trial court is not allowed to “destroy” the jury’s actual award.  If the jury award is “destroyed” upon a remittitur (as found by an appellate court), then the verdict is “impermissible and must be modified or vacated.”  Borne at 21.

As a result, the question is, to what extent can an award be reduced under remittitur principles and not be “destroyed”?  The Borne decision provided a good analysis of this question.  It addressed a recent Tennessee Supreme Court decision that discussed the “destruction” of an award by remittitur as follows:

The trial court's authority to suggest a remittitur of a jury's verdict rather than grant a new trial when it disagrees solely with the award of damages is not absolute. A suggested remittitur should not be so substantial as to destroy the jury's verdict. See Foster v. Amcon Int'l, Inc., 621 S.W.2d 142, 148 (Tenn. 1981). There is no set percentage that represents the destruction of the jury's verdict. See Id. at 148 n. 9 (“[W]e do not intend to establish a numerical standard for reviewing additurs and remittiturs.”); Webb v. Canada, No. E2006–01701–COA–R3–CV, 2007 WL 1519536, at *4 (Tenn. Ct. App. May 25, 2007) (“While we decline to establish any particular percentage that would indicate a remittitur that has totally destroyed a jury verdict, we note that [large] remittiturs by percentage have been found acceptable by this Court and the Supreme Court of our state.”).

See Meals v. Ford Motor Co., 417 S.W.3d 414 (Tenn. 2013). The Borne court noted “no numerical standard has been established by which remittiturs...

Tennessee Court of Appeals Finds Illegal Aliens Have Standing to Bring Retaliatory Discharge Claims in Tennessee

The Tennessee Court of Appeals in Ricardo Torres v. Precision Industries, P.I., Inc. et al. No. W2014-00032-COA-R3-CV, 2014 WL 3827820 (Tenn. Ct. App. 2014) decided whether an unauthorized alien has standing to bring a retaliatory discharge claim against their employer in Tennessee.  In this case an undocumented worker who did not have a legal right to work in the United States was allegedly fired from his job when he pursued a workers’ compensation claim.  The employee sued the employer for retaliatory discharge and asserted he was terminated because he filed a workers’ compensation claim.  The trial court dismissed this case by finding an individual who is not legally authorized to work in Tennessee did not have standing to bring a retaliatory discharge claim in Tennessee.

This case was appealed to the Tennessee Court of Appeals to determine this issue for the first time in Tennessee.  The Court noted that illegal aliens are entitled to bring Tennessee Workers’ Compensation claims despite their illegal status.  As a result, the Tennessee Court of Appeals found that “the ability to file a retaliatory discharge is a natural extension of what is already permitted in Tennessee and under other statutory schemes.” Torres at 9.  The court reasoned that since illegal employees are entitled to bring workers compensation claims, they have standing to bring retaliatory discharge claims for asserting rights under that same statutory scheme.  The Court of Appeals overruled the trial court’s dismissal of this claim and sent it back to the trial court for further proceedings.

This case is consistent with the overall trend across America that expands the rights of illegal or undocumented residents.  As this decision points out, illegal immigrants are already allowed to bring Tennessee Workers’ Compensation claims.  This case now provides an extension of those rights to retaliatory discharge claims (although this is not a Tennessee Supreme Court decision) even though illegal residents are not actually allowed to legally work in Tennessee. 

Medical Malpractice - Ex-Parte Communications Between Medical Practice Defense Counsel and Non-Party Physicians Employed by Practice

The Tennessee Court of Appeals recently decided an important issue that comes up often in medical malpractice (health care liability) cause of actions in Tennessee.  The case of Cheryl Hall v. James H. Crenshaw, M.D. et al, No. W2013-00662-COA-R9-CV, 2014 WL 3555987 (Tenn. Ct. App. 2014) dealt with a situation where the plaintiff sued the Jackson Clinic under a vicarious liability theory for the actions of one of its physicians.  The plaintiff then desired to take the depositions of two employee physician shareholders of the Jackson Clinic who were also medical doctors that treated the plaintiff.  The Jackson Clinic filed a motion asking the trial court for permission to meet ex-parte with these doctors (who were employees of the defendant Jackson Clinic) to discuss matters relevant to the case including the treatment of the decedent.  They wanted to meet with them prior to their depositions so they could properly prepare them for their testimony.  The trial court denied allowing the ex-parte meeting between Jackson Clinic defense counsel and the physicians who were employed by the Jackson Clinic based on the Alsip v. Johnson Medical Center, 197 S.W.3d 722 (Tenn. 2006) decision. 

The Jackson Clinic appealed this trial court decision.  Each of the doctors who were going to be deposed by the plaintiff submitted affidavits stating they were shareholders of the Jackson Clinic and that they desired to be represented by the Rainey, Kizer, Reviere & Bell, P.L.C. defense attorneys in this matter.  The Tennessee Court of Appeals performed a significant analysis of the case law on ex-parte communications between defense counsel and physicians in the context of healthcare liability actions in Tennessee.  This is an interesting discussion and is worth reading if you want more details on these issues or are dealing with such an issues in your case (but this discussion is much too lengthy for this post). 

At the end of the day the Court found that neither “Alsip nor Givens would bar counsel for the Jackson Clinic from conferring ex parte with Drs. Cherry and Mariencheck, since both are employees of the Jackson Clinic . . . We must respectfully conclude that the trial court erred in declining to permit ex parte communications between defense counsel for the Jackson Clinic and Drs. Cherry and Mariencheck.”

Attorney’s Fees Cannot Be Awarded as Punitive Damages Under Tennessee Law When Not Provided For in Contract or Statute

A new Tennessee Court of Appeals decision, Samuel Bridgefourth, Jr. v. Santander Consumer USA, Inc., No. W2013-02468-COA-R3-CV, 2014 WL 3563470 (Tenn. Ct. App. 2014), dealt with a situation involving repossession of the plaintiff’s car by a finance company.  The plaintiff then paid the balance due on the loan.  He then received the title in the mail but never received the vehicle back.  As a result, the plaintiff sued the defendant Santander Consumer USA, Inc. alleging breach of contract, conversion, trespass to chattels, fraud, misrepresentations and violation of the Tennessee Consumer Protection Act. 

Ultimately, the case went to trial.  The trial court awarded Mr. Bridgefourth $6,000.00 in compensatory damages for conversion of the car and “special damages in the amount of $13,348.00 for attorney’s fees necessary to compensate Plaintiff for his losses as a result of Defendant’s actions.”  The plaintiff then asked the court to clarify its order and the trial court changed the $13,348.00 award from “special damages” to “punitive damages”.  As a result, the defendant Santander appealed, arguing that it was not appropriate to award attorneys’ fees in this case.

The Tennessee Court of Appeals noted the rule in Tennessee is that “litigants must pay their own attorney’s fees unless there is a statute or contractual provision providing otherwise.”  Bridgefourth at 2 (citing State v. Brown & Williamson Tobacco Corp., 18 S.W.3.d 186, 194 (Tenn. 2000)).  The Tennessee Court of Appeals next addressed whether the trial court could award attorney’s fees as “punitive damages” as was done in this case.  The Court noted:

The purpose of punitive damages is not to compensate the plaintiff but to punish the wrongdoer and to deter others from committing similar wrongs in the future. Attorney's fees are not punitive in nature. 

Tennessee Legislature Adds New Cause of Action to Fight Individuals who Illegitimately Threaten Patent Litigation

Tennessee recently established new statutory protections for individuals and companies that are illegitimately threatened with patent infringement claims.  This has been a growing problem across America including in Tennessee.  The 2014 Tennessee Legislature passed Public Chapter No. 879 which created a new series of statutes found in T.C.A. § 29-40-101 – § 29-40-104 (effective on May 18, 2014) in order to try to combat this problem.  The stated purpose of these new statutes is to prevent small and medium sized companies from alleged patent infringement claims from third parties that are unsubstantiated and meritless.  Patent litigation can be extremely expensive and the Tennessee Legislature was concerned about the abuse of patent litigation in Tennessee.  As a result, this new statute provides a new cause of action with enhanced damages to use against those who improperly threaten unsubstantiated patent litigation.  This cause of action allows for the recovery of attorney’s fees, costs, actual damages and punitive damages in an amount equal to three times the actual damages. 

New Key Statutory Language (T.C.A. § 29-40-102(a)):

The main provision in the new statute is found in T.C.A. § 29-40-102(a).  This part of the statute identifies the key acts that violate the statute.  It is hard to find this statutory language online currently so I will post this entire section for your convenience (although you can see it officially in the link to Public Chapter No. 879).  This portion of the statute provides as follows:

(a) It is a violation of this chapter for a person, in connection with the assertion of a United States patent, to send, or cause any person to send, any written or electronic communication that states that the intended recipient or any...