Tennessee Jury Award of Damages Significantly Less Than Medical Bills Overturned by Tennessee Court of Appeals

Sometimes juries make interesting decisions that need to be sorted out by the Tennessee Appellate Courts.  The recent case of Khadijeh Naraghian v. Darryle K. Wilson, No. W2014-02002-COA-R3-CV, 2015 WL 7012526 (Tenn. Ct. App. 2015) dealt with an automobile accident that occurred in Shelby County Tennessee.  In this case, the plaintiff alleged the defendant struck the plaintiff’s vehicle in the rear causing a neck injury to the plaintiff due to the accident.  Liability for the accident was disputed based upon the theory of alleged comparative fault of the plaintiff.  Regardless, there were approximately $13,440.00 of medical bills that were not contested by the defendant by any substantive counter medical proof. 

Ultimately, the jury found in favor of the plaintiff and awarded a total of $7,831.67.  The jury also found the plaintiff was 44.58% at fault for the accident and therefore the trial court reduced the award to $4,340.31.  The question on appeal was whether the jury award was disproportionate to the amount of damages actually proved at trial.

The Tennessee Court of Appeals found the award was not appropriate based on the evidence and therefore the award of damages was reversed.  The Court noted that it was basically undisputed that the plaintiff incurred approximately $13,440.00 in medical expenses.  The plaintiff asserted the jury cannot simply arbitrarily disallow part of the medical expenses that were incurred as a result of the injury.  The Tennessee Court of Appeals agreed.  The Court found the following:

As we have already stressed, there was no evidence in this case rebutting the necessity or reasonableness of the charges billed by Dr. Burford. His testimony was essentially unimpeached. Because we cannot reconcile the jury's verdict with the undisputed evidence that was presented, we must vacate the trial court's judgment and remand this matter for a new trial.

Id. at 5. 

This case is certainly interesting because it shows that a jury cannot disregard competent uncont...

Most Conservative and Liberal Tennessee Jurisdictions for Personal Injury and Death Cases Over the Last 5 Years (July 1, 2009 – June 30, 2014) – A Statistical Analysis

I previously discussed major trends in Tennessee verdicts and the conservative or liberal nature of many counties in Tennessee for verdicts in personal injury cases.  This post is designed to provide updated statistics on the most recent data available so you have the best information covering the last five years.  This information can provide valuable insight on the risks associated with taking a case to trial in the various Tennessee jurisdictions.

The statistics contained in the below chart are for the 5 year period covering July 1, 2009 through June 30, 2014 (based on the most recent Tennessee judiciary reports currently available).  These numbers include both jury and non-jury cases (because the statistics available do not separate them out). I will list the counties in order with the most conservative at the beginning of the list and the most liberal at the bottom of the list (when I use the terms “conservative” and “liberal” I am simply referring to the percentages of cases where damages were actually awarded). 

Generally, most Tennessee counties are conservative when it comes to assessing damages in personal injury or death cases.  Overall, there were 2471 cases tried in Tennessee during this 5 year period.  A total of 931 resulted in monetary damages.  This means only 37.7% of personal injury cases that went to trial in Tennessee actually resulted in monetary damages over the last five years.  Also, remember that some cases go to trial where there is a stipulation or concession of liability and the only issue is the extent of monetary damages.  As a result, the actual percentage of cases where damages are awarded are probably significantly lower than the above statistics because of this factor that cannot be determined by the statistics.

The above information can provide valuable insight to attorneys, corporations and insurance companies on the general proclivities of certain Tennessee jurisdictions in personal injury cases.  The two most liberal jurisdictions (setting aside Coffee County which has a very small sample size) are Davidson County and Shelby County, as would be expected.  However, even in those counties, it is close to a 50/50 proposition on whether damages will be awarded or not.  When compared to my prior statistical report that was done covering a 7 year period from 2005 to 2012, it is clear most Tennessee jurisdictions have become more reluctant to award damages in personal injury or death cases.

In Tennessee the Remittitur of a Jury Verdict is a Reduction of the Amount of the Award by the Trial Judge

In Tennessee the trial judge has the ability to reduce a jury verdict award if the court is of the opinion the verdict should be reduced based on the evidence before the trial court.  Specifically, T.C.A. § 20-10-102(a) provides as follows:

(a) In all jury trials had in civil actions, after the verdict has been rendered and on motion for a new trial, when the trial judge is of the opinion that the verdict in favor of a party should be reduced and a remittitur is suggested by the trial judge on that account, with the proviso that in case the party in whose favor the verdict has been rendered refuses to make the remittitur, a new trial will be awarded, the party in whose favor such verdict has been rendered may make such remittitur under protest, and appeal from the action of the trial judge to the court of appeals.

If the party in whose favor the verdict has been rendered refuses to accept the remittitur then a new trial will be awarded.  In the alternative, the remittitur can be accepted under protest and an appeal can be immediately pursued to the Court of Appeals to review the actual remittitur.

T.C.A. § 20-10-102(b) provides that the Appellate Court reviews the remittitur and can either approve the remittitur or award the amount originally awarded by the jury.  T.C.A. § 20-10-102(b) provides as follows:

(b) The court of appeals shall review the action of the trial court suggesting a remittitur using the standard of review provided for in T.R.A.P. 13(d) applicable to decisions of the trial court sitting without a jury. If, in the opinion of the court of appeals, the verdict of the jury should not have been reduced, but the judgment of the trial court is correct in other respects, the case shall be reversed to that extent, and judgment shall be rendered in the court of appeals for the full amount originally awarded by the jury in the trial court.

As a result, in Tennessee, just because a jury awards a specific damages amount does not mean this award is the final amount of damages in a case.  From a defense perspective, if an excessive award is assessed by the jury, defense counsel should pursue a remittitur in most circumstances.  There really is no downside to pursuing this remedy in the State of Tennessee.

How Are Damages to Real Property Calculated Under Tennessee Law?

Sometimes I like to write about specific issues that have come up in my own law practice.  When I confront certain issues, I assume there are other attorneys and individuals who deal with the same concerns.  One of those issues I recently addressed is how damages are calculated when there is damage to real property.  Tennessee courts have been fairly consistent on this subject over the years.  The Tennessee Court of Appeals’ decision of Fuller v. Orkin, 545 S.W.2d 103 (Tenn. Ct. App. 1975), discussed the appropriate measure of damages for real property as follows: 

[T]he measure of damages for injury to real estate is the difference between the reasonable market value of the premises immediately prior to and immediately after injury but if the reasonable cost of repairing the injury is less than the depreciation in value, the cost of repair is the lawful measure of damages.  Of course, the trier of fact can also take into consideration the reasonable cost of restoring the property to its former condition in arriving at the difference in value immediately before and after the injury to the premises.

Another resource Tennessee attorneys use on these kinds of issues are the Tennessee Pattern Jury Instructions.  These are the instructions that most Tennessee judges use to advise the jurors of the law in a case.  The current 2014 Tennessee Pattern Jury Instruction on this specific issue provides as follows:

T.P.I.—CIVIL 14.45 Damage to Real Property

The measure of damage to real property is the lesser of the following amounts:

1 The reasonable cost of repairing the damage to the property; or

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 Personal Injury Trials Have Dropped 55% Since 2000.

Analysis:  This post is another in a continuing series of posts that analyze the Tennessee Judiciary Annual Report that was recently published providing court statistics for fiscal year 2012 - 2013 (July 1, 2012 to June 30, 2013).  Today I am going to discuss the very significant reduction in the number of personal injury/death cases that proceed to trial over the last 15 years. 

For fiscal year 2012 – 2013 there were a total of 10,137 personal injury/death cases that were disposed of in Tennessee in one way or another.  Out of these cases, 438 of them were disposed of by trial (4.3%).  Only 213 of these trials were jury trials (2.1%).  Davidson, Hamilton, Knox and Shelby Counties had a total of 216 cases that proceeded to trial which was 49.5% of the total personal injury cases that went to trial in Tennessee.

These statistics also show that there has been a great reduction in trials in Tennessee over the last 15 years.  In the 2000 - 2001 fiscal year (the first year Tennessee kept these statistics), there were a total of 967 personal injury or death cases that proceeded to trial.  In 2013 there were only 438.  This means that since 2000 we have had a 55% reduction in trials in personal injury/ death cases.  This has been due to many factors including tort reform and the encouragement of mediation in Tennessee.  It also shows why a lot of attorneys struggle to get good trial experience early in their career.   

More Tennessee Personal Injury Case Statistics for Fiscal Year 2012-2013

Analysis:  The Tennessee Judiciary has published their new annual report covering fiscal year 2012 to 2013 (July 1, 2012 to June 30, 2013) on Tennessee Court statistics.  This report provides a significant amount of useful statistics and information about the Tennessee judicial system.  One important part of the report is the information about personal injury tort cases in Tennessee.    

Out of the 438 cases that went to trial in fiscal year 2012 to 2013 in Tennessee, a total of 180 received actual monetary awards (41.1% of the trials resulted in a damages award).  The total monetary awards provided in these 180 trials was $34,514,022.00.  This is an average award of $191,744.57 per successful trial.  This statistic is greatly skewed by one Davidson County jury award of $13,623,000.00 which was the largest award in Tennessee for this fiscal year, however this jury verdict was reversed on appeal in a February 2014 Tennessee Court of Appeals decision and this case has been remanded to the trial court to be re-tried.  When this one award is removed, the average monetary award in Tennessee was $116,061.23. 

Out of the 180 personal injury tort cases where the jury provided a damages award, 151 of them resulted in an award between $1.00 and $99,999.00.  22 of these cases resulted in an award of between $100,000.00 and $999,999.00.  Only 7 of these cases resulted in awards of greater than $1,000,000.00.  This shows how conservative Tennessee juries are in assessing damages in personal injury cases.  Obviously a lot of cases settle before getting to trial, but these statistics show how few large jury awards there are in Tennessee on an annual basis. 

I will likely have a few more posts regarding the statistics found in this report.  These statistics help us assess how liberal or conservative certain jurisdictions are within Tennessee

What is an Additur and When can it be Applied to Change a Jury Verdict in Tennessee?

Analysis:  Judges in Tennessee are often called the “thirteenth juror” because they have the ability to modify a jury’s verdict.  One such way they can change a jury verdict is under T.C.A. § 20-10-101 which provides for an “additur” which simply means the judge can add an amount to the damages that are awarded by a jury.  Specifically, T.C.A. § 20-10-101(a)(1) provides as follows:

(a)(1) In cases where, in the opinion of the trial judge, a jury verdict is not adequate to compensate the plaintiff or plaintiffs in compensatory damages or punitive damages, the trial judge may suggest an additur in such amount or amounts as the trial judge deems proper to the compensatory or punitive damages awarded by the jury, or both such classes of damages.

As a result, if the trial judge considers the jury verdict to be inadequate to compensate the plaintiff, then the judge can suggest an amount to add to the compensatory or punitive damages awarded by the jury.  If this occurs, the defendant has the option to simply accept the additur and then it is considered to be the verdict of the court.  Specifically, T.C.A. § 20-10-101(a)(2) provides as follows:

(2) If the additur is accepted by the defense, it shall then be ordered by the trial judge and become the verdict, and if not accepted, the trial judge shall grant the plaintiff's motion for a new trial because of the inadequacy of the verdict upon proper motion being made by the plaintiff.

If the defendant does not accept the additur, then the trial judge is required to grant the plaintiff’s motion for a new trial and the new trial can then proceed.  The defendant also has the option to appeal the judge’s additur to the Tennessee Court of Appeals.  Specifically, T.C.A. § 20-10-101(b)(1) provides as follows:

(b)(1) In all jury trials had in civil actions, after the verdict has been rendered and on motion for a new trial, when...

Damages – Tennessee legislature amends requirement for jury to find each element of future damages “on an annual basis” under T.C.A. § 29-39-103.

Analysis:  The Tennessee Tort Reform Bill of 2011 required a judge or jury to make specific findings for certain types of damages.  T.C.A. § 29-39-103 was created by the 2011 Tennessee Tort Reform Legislation and the statute provided as follows:

(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

Assisted Living Facility – Recent Tennessee Supreme Court decision discusses liability for failure to provide adequate staff by an assisted living facility.

Analysis:  The Tennessee Supreme Court recently decided a case pertaining to the liability of an assisted living facility's management company for failing to provide appropriate staff to the facility (Celebration Way facility).  Wilson v. Americare Systems, Inc., No. M2011-00240-SC-R11-CV, 2013 WL 658078 (Tenn. 2013).  At trial the jury found the management company (Americare Systems, Inc.) of an assisted living facility was negligent, causing the death of a resident, based on the fact it understaffed the facility.  Wilson at 1.  The resident of the facility, Mable Farrar, died from a perforated colon.  The testimony at trial showed that the assisted living facility failed to follow Ms. Farrar’s physician’s order to administer medicine for constipation.  Wilson at 1.  As a result of this failure to provide the prescribed medicine, Ms. Farrar became significantly constipated and her doctor therefore ordered the assisted living facility to give her three to four enemas a day.  Wilson at 1.  The assisted living facility only gave Ms. Farrar one enema on the first day after the order, none on the second day and one on the third day.  On the third day, after she received the enema, her colon perforated and she died.  Wilson at 1, 2.  The testimony at trial established she should not have been provided an enema by the facility nurse based on her physical status at that time.

Testimony at trial showed there were only two licensed nurses that worked at this facility.  Wilson at 7.  One of the nurses testified she was "always on call, twenty-four hours a day".  Wilson at 7.  The two licensed nurses had to cover a lot of shifts and were not paid overtime compensation because they were salaried employees.  Wilson at 7.  The nurses that worked at the facility as well as the regional operations director for the assisted living facility management company testified there were staffing problems at the facility.  There were numerous complaints from the staff at the facility requesting additional staffing in order to be able to provide adequate care for the residents.  Wilson at 6-8.  Despite these complaints, no additional staffing was provided to the facility.  Wilson at 7, 8