What a Difference a Day Made

The Tennessee Civil Justice Act of 2011

Public Chapter 510 became law on June 16, 2011, when signed by Gov. Bill Haslam. Effective for causes of action that accrue on or after Oct. 1, 2011,[1] the Tennessee Civil Justice Act of 2011 will greatly alter aspects of Tennessee law in medical malpractice, products liability, personal injury and consumer protection cases. The act is purportedly necessary to make litigation costs and risks more predictable. Proponents of the act believe the current unpredictability places Tennessee at a competitive disadvantage to other Southern states in attracting new businesses and in allowing existing Tennessee businesses to expand. The act is designed to allow such businesses to quantify risks by limiting certain aspects of tort liability. In an effort to illustrate the changes to the law, this article presents an admittedly unlikely hypothetical that will be addressed as if the claims accrued both before and after the effective date of the act.

In our hypothetical, the decedent was a 40-year-old businessman and entrepreneur who resided in Sevier County. He was married and had two minor children, and they were a very close family. Because of the success of his businesses, he earned $1 million per year and was expected to do so for the next 20 years.

After developing a neck problem, the decedent saw Dr. Surgeon, who lives in Blount County, practices three days a week in Knox County, and practices two days a week at a hospital in Anderson County. The doctor recommended placement of a new cervical plating system, recently approved as safe and effective by the Food and Drug Administration (FDA) for the uses outlined in the accompanying package insert, and manufactured by XYZ Manufacturing Company, a foreign corporation with its agent for service of process in Davidson County. XYZ marketed the system as highly safe, with a low adverse event profile and a low rate of revision surgeries. The system was distributed by ABC Distributing Company, also a foreign corporation with its agent for service of process in Davidson County. The surgery was performed by Dr. Surgeon at General Hospital in Knox County.

Following the surgery, Mr. Assistant, a certified nursing assistant (CNA) employed by General Hospital and a Blount County resident, failed to comply with the plan of care established by Dr. Surgeon by failing to assure proper hydration and positioning of decedent. Immediately after, decedent developed a rare but serious complication that resulted in his death.

As a result, decedent’s widow (plaintiff or widow) filed suit for compensatory and punitive damages against Dr. Surgeon for improper selection and placement of the cervical plating system, against Mr. Assistant (and General Hospital vicariously for his actions) for failure to assure proper hydration and positioning, against XYZ and ABC for design defect, failure to warn, and for unfair and deceptive practices in violation of the Tennessee Consumer Protection Act, alleging the catch-all provision.[2] Additionally, plaintiff sought certification as a class action.[3]

Where Is Venue Proper?

September 30, 2011
Traditionally, a transitory tort action could be filed in the “county where the cause of action accrued or in the county where the defendant resides or is found.”[4] When the defendant is a corporate entity, the entity could be sued in a county where the defendant had an office or agency.[5] In this case, venue would be proper where the action accrued (Knox County), where two of the defendants reside (Blount County), where some of the defendants maintain registered agents for service of process (Davidson County), or where one of the defendants is found (Anderson County).

October 1, 2011
The act deletes the “is found” language from Tenn. Code Ann. § 20-4-101(a) which, in turn, would make Anderson County no longer a viable option for proper venue.[6]

How Does the Products Liability Act Govern?

September 30, 2011
The Tennessee Products Liability Act of 1978 is codified at Tenn. Code Ann. § 29-28-101, et seq. The Products Liability Act would govern plaintiff’s claims against both XYZ Manufacturing Company and ABC Distributing Company “brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product.”[7] In order to recover, widow would have to prove the cervical plate at issue was either defective or unreasonably dangerous at the time it left the manufacturer’s or seller’s control and caused her husband’s death.[8] A number of protections for both the manufacturer and the distributor are provided in the existing provisions of the Products Liability Act. For example, Tenn. Code Ann. § 29-28-104 provides a rebuttable presumption that the product is not in an unreasonably dangerous condition when the product was manufactured in compliance with an existing state or federal statute or administrative regulation.[9] The Products Liability Act also provides some protection for the seller[10] of a product in either a “sealed container” or the seller of a product who did not have a reasonable opportunity to inspect the product in a manner that would reveal the defect.[11] Those protections are lifted when the seller is sued for the breach of an express or implied warranty or when the manufacturer is not subject to service of process through the long-arm statute or judicially declared insolvent.[12] Subject to similar exceptions regarding the service upon and solvency of the manufacturer,[13] subsection (b) of that section provides that no “products liability action” be instituted or maintained against a non-manufacturing seller under a theory of “strict liability in tort.”[14] Finally, the Products Liability Act bars recovery from the manufacturer or seller when the product is altered, modified or misused.[15]

October 1, 2011
Even after the effective date of the act, the Products Liability Act would govern widow’s claims against the manufacturer and the seller of the cervical plate system. A few subtle changes included in the act, however, could potentially impact from whom widow could recover. Tenn. Code Ann. § 29-28-104 is amended to include some additional restrictions on the recovery of punitive or exemplary damages from the non-manufacturing seller discussed infra.[16] The act also now provides that “[n]o ‘product liability action,’ as defined in § 29-28-102(6), shall be commenced or maintained against any seller, other than the manufacturer,” unless one of five  specific exceptions apply.[17] These exceptions include situations in which the seller exercised substantial control over the aspect of the product that allegedly caused the harm, the seller modified or altered the product, the seller gave an express warranty regarding the product, the manufacturer is not subject to service of process in Tennessee and the long-arm statute does not provide a basis for obtaining service, and when the manufacturer has been judicially declared insolvent.[18] Most notably, the act removes the statutory language that provided for potential liability for a seller who had the ability to inspect the product and discover a readily apparent defect.[19] In addition, the seller would have to make an express warranty claim regarding the product, not just have a warranty implied, in order to be liable under the act.[20]

Does the Medical Malpractice Act Control?

September 30, 2011
If the claims accrued before Oct. 1, 2011, Plaintiff would have medical malpractice claims against Dr. Surgeon for improper selection and placement of the cervical plating system. These claims would require expert testimony by statute[21] and would be subject to the notice, pleading and certificate of good faith provisions of the Medical Malpractice Act.[22] Plaintiff’s claims against Mr. Assistant for failure to follow decedent’s plan of care by failing to assure proper hydration and positioning could likely be considered ordinary negligence claims.[23] As ordinary negligence claims, these claims would not require expert testimony or compliance with the notice, pleading and certificate of good faith requirements of the Medical Malpractice Act.[24]

October 1, 2011
Under the provisions of the act, these claims will be treated differently. Although the claims against Dr. Surgeon will still be subject to the statutory requirements of notice, pleading, certificate of good faith and expert testimony, the action is no longer a “medical malpractice” action. Pursuant to Section 9 of the act, all references to medical malpractice are to be deleted from the Code and replaced with “health care liability” or “health care liability action” as applicable.

Under the new scheme, plaintiff’s claims against Mr. Assistant will be subject to the same statutory requirements as plaintiff’s claims against Dr. Surgeon. A definition section is re-inserted into the Code at Tenn. Code Ann. § 29-26-101, which defines “health care liability action” as any civil action alleging that a health care provider has caused an injury related to the provision or failure to provide health care services to a person, regardless of the theory of liability.[25] Additionally, the terms “health care provider” and “health care services” are more inclusive under the act.[26] Although “health care provider” still includes the usual suspects,[27] it now specifically includes “orderlies, certified nursing assistants and technicians[,]” among others.[28] “Health care services” are defined to include care by numerous individuals, including “orderlies, certified nursing assistants … and other agents, employees and representatives of the provider, and also includes staffing, custodial or basic care, positioning, hydration and similar patient services.”[29] The act makes any action meeting the definitions subject to the provisions governing health care liability actions, regardless of any other claims, causes of action, or theories of liability alleged.[30] Under these provisions, plaintiff’s claims against Mr. Assistant (and vicarious liability claims against General Hospital for his actions) fall under the act, and the expert witness, notice, pleading and certificate of good faith requirements[31] will apply.

What Compensatory Damages Could Widow Recover?

September 30, 2011
Under current law, plaintiff would be entitled to seek all damages, economic and noneconomic, allowed under the wrongful death statutes[32] without limitation. These damages would include loss of consortium claims based upon plaintiff and the two minor children.[33] Any damages awarded against Mr. Assistant and vicariously against General Hospital would be joint and several between them.[34] Future damages must be discounted to present value.[35]

October 1, 2011
Under the act, plaintiff’s damages would be treated differently. The act expressly separates economic and noneconomic damages.[36] Many examples of economic damages are listed, but, in the end, they consist of “objectively verifiable monetary losses.”[37] Economic damages are recoverable without limitation.[38]

Noneconomic damages consist of “nonpecuniary losses of any kind or nature.”[39] Noneconomic damages are limited in recovery to $750,000 for each injured plaintiff for all injuries and occurrences that were or could have been asserted, regardless of whether the action is based on a single act or omission or a series of acts or omissions.[40] This $750,000 limit applies regardless of the number of defendants found liable.[41] All noneconomic damages awarded to each injured plaintiff, including claims of a spouse or children for loss of consortium or any derivative claim for noneconomic damages, may not exceed $750,000.00 in the aggregate.[42] Because plaintiff’s claims involve the wrongful death of a parent leaving surviving minor children with whom decedent had lawful rights of custody or visitation, plaintiff is entitled to the “catastrophic loss or injury” exception that increases the amount of recoverable noneconomic damages to $1 million.[43 Plaintiff’s recovery for noneconomic damages would be so limited in this scenario. At trial, this limitation may not be disclosed to the jury but is applied by the court to any award.[44] Additionally, any noneconomic damages awarded against General Hospital (for vicarious liability based on the acts or omissions of Mr. Assistant) must be determined separately from the noneconomic damages awarded against Mr. Assistant.[45]

Plaintiff can avoid the limitation on noneconomic damages if she can prove that any defendant: (1) had a specific intent to inflict serious physical injury and that such intentional conduct injured decedent; (2) had intentionally falsified, destroyed, or concealed records containing material evidence with the purpose of wrongfully evading liability in this case (not applicable to the good faith withholding of records pursuant to privileges and other laws applicable to discovery or to the management of records in the normal course of business or in compliance with a document retention policy or state or federal regulations); or (3) was under the influence of alcohol, drugs or any other intoxicant or stimulant that resulted in the defendant’s judgment being substantially impaired and caused the injury (not applicable if using lawfully prescribed drugs administered in accordance with a prescription or over-the-counter drugs in accordance with the written instructions of the manufacturer).[46] Any dispute as to the existence of any such exception is determined by the trier of fact by special verdict.[47] Section 22 of the act makes the exceptions in Tenn. Code Ann. §§ 29-39-102 (c) (catastrophic loss) and -102(h) (intentional act/intoxication exception) severable if necessary to preserve application of the limitations on recovery of noneconomic damages set forth in the act.

Under the act, the trier of fact must make separate findings specifying the amount of past damages and future damages for each claimant.[48] Past damages expressly include (1) medical and other costs of health care; (2) other economic damages and (3) noneconomic damages.[49] Future damages expressly include the same categories and require determinations of the periods over which such damages will accrue on an annual basis.[50] Although not all such damages would be applicable in plaintiff’s wrongful death claim, the calculation of all future medical care, other costs of health care, and future noneconomic losses must reflect the costs and losses during the period of time they will be sustained by the claimant.[51] The calculation for other economic losses must be based on the losses during the period of time the claimant would have lived but for the claimed injury.[52] All calculations of future damages must be adjusted to reflect net present value.[53]

What About the Recovery of Punitive Damages?

September 30, 2011
In order to recover punitive damages, widow must demonstrate by clear and convincing evidence that each party she seeks to punish acted maliciously, intentionally, fraudulently or recklessly in the initial phase of a bifurcated proceeding as required by the Tennessee Supreme Court’s holding in Hodges v. S.C. Toof & Co.[54] If she carries her burden in the initial phase of the bifurcated trial, the jury could determine the amount of punitive damages to award after considering, at a minimum, the factors outlined in Hodges.[55] There would be no limits on the amount of punitive damages awarded, with the exception of those dictated by the constitutional protections of the Due Process Clause of the United States Constitution.[56] Additionally, the punitive conduct of an employee or agent, with the exception of those acts that are intentional, could be imputed to his or her employer or principal pursuant to vicarious liability principles.[57]

October 1, 2011
Under the act, a punitive damage award would generally be determined in much the same way. Newly created Tenn. Code Ann. § 29-39-104 would still require proof by clear and convincing evidence the defendant acted maliciously, intentionally, fraudulently or recklessly and the trial would be bifurcated such that compensatory damages and whether the defendant’s conduct arose to the level of being punishable would be determined in the first phase of the trial.[58] In addition, the first phase of the bifurcated proceeding would include a determination of whether one of the statutory exceptions to the limits on punitive damages outlined in the act would apply.[59] Those exceptions include: specific intent to inflict serious physical injury; the altering, destroying or concealing of records in attempt to evade liability; and if the defendant was under the influence of alcohol, drugs or an intoxicant when the injury was caused.[60] Assuming the facts of the case do not fit into one of the exceptions,[61] the recovery of punitive damages would be limited to the greater of two times the compensatory award, or $500,000.[62]

When determining the amount of punitive damages to award, however, the jury would not be apprised of these limitations and would be asked to consider the factors previously delineated in the Hodges opinion.[63] The factors the jury is statutorily directed to consider under the act include: (1) the defendant’s financial condition and net worth, (2) the nature and reprehensibility of the defendant’s conduct, (3) the impact of the defendant’s conduct on the plaintiff, (4) the relationship of the defendant to the plaintiff, (5) the defendant’s awareness of the amount of harm being caused and the defendant’s motivation in causing such harm, (6) the duration of the defendant’s misconduct and whether the defendant attempted to conceal such misconduct, (7) the expense plaintiff has borne in attempts to recover the losses, (8) whether the defendant profited from the activity, and if so, whether the award should be in excess of the profit to deter similar future behavior, (9) whether, and the extent to which, defendant has been subjected to previous punitive awards based on the same wrongful act, (10) whether, once the misconduct became known to the defendant, defendant took remedial action or attempted to make amends by offering a prompt and fair settlement for actual harm caused, and (11) any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages.[64] The act also specifically requires that the jury be instructed, much like what was outlined under previous versions of the pattern jury instructions, that compensatory damages are to make the plaintiff whole and punitive damages are to “punish the wrongdoer and deter similar misconduct in the future by the defendant and others.”[65]

Widow’s burden of recovering punitive damages under the act would also vary by defendant in our hypothetical based on some additional obstacles to recovering punitive damages included in the act. For example, punitive damages could not be awarded against the non-manufacturing distributor, ABC Distributing Company, unless plaintiff could prove that the seller either “exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm,” “altered or modified the product” in a way that substantially caused the harm, or the “seller had actual knowledge of the defective condition of the product at the time the seller supplied the same.”[66] Similarly, the act bars punitive damages against the manufacturer of an FDA-approved drug or medical device unless the manufacturer violated the applicable regulations of the FDA at any time prior to the event that caused the harm.[67] In our hypothetical, widow would have to prove that XYZ Manufacturing Company “withheld from the food and drug administration information known to be material and relevant to the harm that the claimant allegedly suffered” or “misrepresented to the food and drug administration information of that type.”[68] Finally, in determining whether widow would be entitled to punitive damages from General Hospital, the jury would have to evaluate the culpability of General Hospital, an entity sued vicariously for the acts and omissions of its agent, “separately from that of any alleged agent, employee or representative.”[69]

Is There a Viable Claim Under the Tennessee Consumer Protection Act?

September 30, 2011
Theoretically, widow could institute a private right of action pursuant to the Tennessee Consumer Protection Act of 1977 (T.C.P.A.) codified at Tenn. Code Ann. §§ 47-18-101, et seq. for “any other act or practice which is deceptive to the consumer or to any other person.”[70] Although the portions of her claims for wrongful death would be barred,[71] it may be possible for her to state a claim for monetary damages associated with the cost of the plating system.[72] If she could convince the court the deceptive act was a willful and knowing violation of the T.C.P.A., widow could be entitled to treble damages.[73] If the same conduct is determined by the trier of fact to rise to the level of punitive conduct, punitive damages could be awarded and widow would be forced to make an election of her available remedies.[74]

October 1, 2011
The T.C.P.A., as amended by the act, would no longer permit widow to pursue a claim for violation of the T.C.P.A. solely under the “catch all” provision found at Tenn. Code Ann. § 47-18-104(b)(27). The act vests the enforcement power for nonspecified deceptive practices solely with the attorney general and reporter and the director of the division.[75] In addition, the act forbids a court to award both treble damages and “exemplary or punitive damages for the same unfair or deceptive practice.”[76] Finally, the act codifies the case law that has interpreted the language of the T.C.P.A. as prohibiting the certification of a class action.[77] As a result, widow’s request for class certification based on the T.C.P.A. would be prima facie invalid.

What Happens on Appeal?

September 30, 2011
In our fact scenario, widow is seeking certification of a class of plaintiffs who, like her husband, have suffered injury or death following the implantation of the alleged defective medical device. Although there are certainly some situations where defendants consent to class certification for strategic reasons, most of the time one side or the other is unsatisfied with the trial court’s decision regarding class certification. Under the existing statute, an appeal of an order granting or denying a request for class certification could be pursued if the requirements outlined in Rule 9 of the Tenn. Rules of App. Proc. were satisfied, if an application was filed within 10 days after entry of the order, and then only if permission to appeal was granted by the Tennessee Court of Appeals.[78] If the application for appeal was denied, an appeal would have to await final disposition of the case.

Upon final disposition, in order for the defendants to appeal an adverse verdict, the liable party would have to post an appeal bond that, depending on the amount of the judgment, could be as large as $75 million.[79] Under our hypothetical fact scenario if widow were to recover a verdict of $100 million, the defendants could be required to post a $75 million bond. Depending on the size or net worth of the defendant, an appeal bond could potentially force a defendant into bankruptcy without the opportunity to appeal the adverse verdict.

October 1, 2011
Under the act, Tenn. Code Ann. § 27-1-125 is amended to make the hearing of appeals from orders granting or denying class certification automatic and not discretionary so long as a notice of appeal is filed within 10 days of entry of the order.[80] The requirements in Rule 9 of the Tenn. Rules of App. Proc. do not have to be met and the underlying action is automatically stayed in the trial court pending the outcome of the automatic appeal.[81] If the claims accrued on Oct. 1, 2011, appealing the decision of the trial court regarding class certification under Tenn. Rule of Civ. Proc. 23, regardless of whether class certification is granted or denied, would be inevitable if requested.

In addition, the cost of appealing an extremely large verdict would be reduced pursuant to the act. Amendments to Tenn. Code Ann. § 27-1-124 would generally limit the required appeal bond to the lesser of 125 percent of the total judgment (exclusive of any punitive or exemplary award) or $25 million.[82] Assuming the $100 million verdict discussed above, the required bond would be reduced to just one-third of the previous maximum amount. Finally, if the appellant can establish by clear and convincing evidence the cost of the bond will render the appellant insolvent, the court “shall establish a security in an amount, and other terms and conditions it deems proper, that would allow the appeal of the judgment to proceed, without resulting in the appellant’s insolvency.”[83]

Are There Other Changes Included in the Act?

Although we attempted to create a hypothetical fact scenario that would encompass all changes the act might precipitate, several sections of the act could not be discussed in the context of the hypothetical. Those changes are worth mentioning here.

Additional changes to the Products Liability Act include:

  • Restrictions on awards of punitive or exemplary damages for the manufacturer or seller of a product, other than a “drug” or “medical device,” that was “designed, manufactured, packaged, labeled, sold or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency”; or if the product “was in compliance with a statute of the State or the United States, or a standard rule, regulation, order or other action of a government agency pursuant to statutory authority …”[84] The exceptions to that prohibition, however, include when the product was sold after the government agency “ordered the removal of the product from the market or withdrew the agency’s approval of the product” or if the manufacturer or seller “in violation of the applicable regulations, withheld or misrepresented to the government agency information material to the approval and such information is relevant to the harm which the claimant allegedly suffered.”[85]

Additional changes regarding punitive damages include:

  • A bar on the award of punitive damages when a “defendant demonstrates by a preponderance of the evidence that it was in substantial compliance with applicable federal and state regulations setting forth specific standards applicable to the activity in question and intended to protect a class of persons or entities that includes the plaintiff, if those regulations were in effect at the time the activity occurred.”[86]
  • Additional changes to the T.C.P.A. include: removal of a private right of action for unfair or deceptive trade practices involving the marketing or sale of a security as defined in Tennessee Securities Act, § 48-2-102(17);[87] and
  • making the “director of the division” in addition to the attorney general and reporter a person the appellant of a judgment under the T.C.P.A. must serve with notice so that they can determine whether in the public interest they should intervene on appeal.[88]

What a Difference a Day Made

As you can see from the preceding discussion, whether widow’s claim accrued before or after the effective date of the act would significantly impact if, how, from whom, and how much she could potentially recover. Whether you are a trial lawyer, in-house counsel, a business owner, a proponent or an opponent of the act, it will be important for you to become intimately familiar with the recent changes in Tennessee tort law and advise your clients or conduct your business accordingly.


Notes

  1. Pursuant to Section 24 of the Act, its application does not depend on the date an action is filed but on the date an action accrues.
  2. Tenn. Code Ann. § 47-18-104(b)(27).
  3. This hypothetical ignores limitations on the Consumer Protection Act relative to personal injury actions, the likelihood of removal of such a class action pursuant to the Class Action Fairness Act codified at 28 U.S.C. § 1332, and assumes that all notice, pleading, and certificate of good faith provisions of the Tennessee Medical Malpractice Act were satisfied.
  4. Tenn. Code Ann. § 20-4-101 (a) (emphasis added). Throughout this article, citations to the Code under a September 30, 2011 heading are to the current version of the Code. Citations to the Code under an October 1, 2011 heading are to the versions enacted by the Act and effective at that time.
  5. Tenn. Code Ann. § 20-4-104.
  6. Tenn. Code Ann. § 20-4-101(a).
  7. Tenn. Code Ann. § 29-28-102(6).
  8. Tenn. Code Ann. § 29-28-105.
  9. Tenn. Code Ann. § 29-28-104.
  10. Tenn. Code Ann. § 29-28-102(7) (“’Seller’ includes a retailer, wholesaler, or distributor, and means any individual or entity engaged in the business of selling a product, whether such sale is for resale, or for use or consumption. “Seller” also includes a lessor or bailor engaged in the business of leasing or bailment of a product.”).
  11. Tenn. Code Ann. §29-28-106(a).
  12. Id.
  13. For current discussion on this issue see Nye v. Bayer CropScience Inc., — S.W.3d —, 2011 WL 2184317 (Tenn. 2011).
  14. Tenn. Code Ann. § 29-28-106(b).
  15. Tenn. Code Ann. §29-28-108.
  16. Tenn. Code Ann. §29-18-104(b).
  17. Tenn. Code Ann. §29-28-106.
  18. Tenn. Code Ann. §§ 29-28-106(1) through (5).
  19. Id.
  20. Tenn. Code Ann. § 29-28-106(3).
  21. Tenn. Code Ann. § 29-26-115.
  22. Tenn. Code Ann. §§ 29-26-121 and -122.
  23. Estate of French v. Stratford House, 333 S.W.3d 546, 554-60 (Tenn. 2011).
  24. Tenn. Code Ann. §§ 29-26-115, -121, and -122.
  25. Tenn. Code Ann. § 29-26-101(b).
  26. Tenn. Code Ann. §§ 29-26-101(a) and -101(c).
  27. “Health care provider” includes a health care practitioner licensed, authorized, certified, registered, or regulated under any chapter of titles 63 or 68 and specifically includes medical resident physicians, interns, and fellows participating in a training program of the accredited medical schools or such schools’ affiliated teaching hospitals, as well as listed facilities and professional business organizations. Tenn. Code Ann. § 29-26-101(a).
  28. Tenn. Code Ann. § 29-26-101(a)(4).
  29. Tenn. Code Ann. § 29-26-101(c).
  30. Tenn. Code Ann. § 29-26-101(d).
  31. Tenn. Code Ann. §§ 29-26-115, -121, and -122.
  32. Tenn. Code Ann. § 20-5-113.
  33. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn. 1999).
  34. Banks v. Elks Pride Club, 301 S.W.3d 214, 219-20 (Tenn. 2010).
  35. Overstreet v. Shoney’s Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999).
  36. Tenn. Code Ann. § 29-39-101.
  37. Tenn. Code Ann. § 29-39-101(a).
  38. Tenn. Code Ann. § 29-39-102(a)(1).
  39. Tenn. Code Ann. § 29-39-101(b).
  40. Tenn. Code Ann. § 29-39-102(a)(2).
  41. Tenn. Code Ann. § 29-39-102(b).
  42. Tenn. Code Ann. § 29-39-102(e). In the wrongful death context, an interesting question may arise in that loss of consortium has been interpreted as part of the decedent’s pecuniary value of the life, Jordan, 984 S.W.2d 593, and the limitation in the Act applies only to “nonpecuniary losses.” Tenn. Code Ann. § 29-39-101(b) and -102(a)(2). This question may be settled by Tenn. Code Ann. § 29-39-102(n) (“The limitations of noneconomic damages in § 29-39-102 shall apply to restrict such recoveries in all civil actions notwithstanding conflicting statutes or common law.”).
  43. Tenn. Code Ann. § 29-39-102(c) and -102(d). Other exceptions in this category include: (1) spinal cord injury resulting in paraplegia or quadriplegia; (2) amputation of two hands, two feet, or one of each; and (3) third degree burns over 40% or more of the body as a whole or third degree burns up to 40% or more of the face. Tenn. Code Ann. § 29-39-102(d). If the existence of a “catastrophic loss or injury” is disputed, the trier of fact determines the existence by special verdict. Tenn. Code Ann. §§ 29-39-102(f) and -103(b).
  44. Tenn. Code Ann. § 29-39-102(g).
  45. Tenn. Code Ann. § 29-39-102(j).
  46. Tenn. Code Ann. § 29-39-102(h).
  47. Tenn. Code Ann.  § 29-39-102(i).
  48. Tenn. Code Ann. § 29-39-103(a).
  49. Tenn. Code Ann. § 29-39-103(a)(1).
  50. Tenn. Code Ann. § 29-39-103(a)(2).
  51. Tenn. Code Ann. § 29-39-103(c).
  52. Id.
  53. Id.
  54. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992)
  55. Id. at 902.
  56. See Flax v. DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008).
  57. See Doe v. Linder Const. Co. Inc., 845 S.W.2d 173, 185 (Tenn. 1992)(Daughtery, J., dissenting).
  58. Tenn. Code Ann. §29-39-104(a)(1)-(2).
  59. Id.
  60. Tenn. Code Ann. § 29-39-104(a)(7)(A)-(C).
  61. Section 22 of the Act provides for severability of the exceptions to the punitive damages caps, if the exceptions would make the caps unconstitutional.
  62. Tenn. Code Ann. § 29-39-104(a)(5).
  63. Tenn. Code Ann. § 29-39-104(a)(6).
  64. Tenn. Code Ann.  § 29-39-104(a)(4).
  65. Id.
  66. Tenn. Code Ann. § 29-39-104(c).
  67. Tenn. Code Ann. § 29-39-104(d).
  68. Tenn. Code Ann. § 29-39-104(d)(2) (Notably, the New Jersey Superior Court, applying the language of a similarly worded statutory limitation on punitive awards in cases involving an FDA approved pharmaceutical held that pursuant to the United States Supreme Court’s opinion in Buckman Co. v. Plaintiffs’ Legal Comm, 531 U.S. 341 (2001) the award of punitive damages that met those standards would be preempted. See McDarby v. Merk & Co. Inc., 449 A.2d 223, 276 (N.J. Super. 2008).)
  69. Tenn. Code Ann. § 29-39-104(a)(9).
  70. Tenn. Code Ann. §§ 47-18-104(27) and -109.
  71. Kirksey v. Overton Pub Inc., 804 S.W.2d 68, 73 (Tenn. Ct. App. 1990).
  72. We understand that this is a very unlikely scenario, but utilized the example to highlight the changes in the T.C.P.A. included in the Act.
  73. Tenn. Code Ann. § 47-18-109(3).
  74. Miller v. United Automax, 166 S.W.3d 692, 697 (Tenn. 2005).
  75. Tenn. Code Ann. §§ 47-18-104(b)(27) and -109(a)(1).
  76. Tenn. Code Ann. § 47-18-109(a)(3).
  77. See Walker v. Sunrise Pontiac-GMC Truck Inc., 249 S.W.3d 301, 309 (Tenn. 2008).
  78. Tenn. Code Ann.  § 27-1-125.
  79. Tenn. Code Ann. § 27-1-124.
  80. Tenn. Code Ann. § 27-1-125.
  81. Id.
  82. Tenn. Code Ann. § 27-1-124.
  83. Tenn. Code Ann. § 27-1-124(d).
  84. Tenn. Code Ann. §29-28-104(b).
  85. Tenn. Code Ann. § 29-28-104(c).
  86. Tenn. Code Ann. § 29-29-104(e).
  87. Tenn. Code Ann. § 47-18-109( ). (new section to be appropriately designated)
  88. Tenn. Code Ann. § 47-18-109(f)(2).

JOHN W. ELDER JOHN W. ELDER is a partner with the firm of Paine, Tarwater, and Bickers LLP, where his practice primarily focuses on products liability, toxic tort, drug and medical device, and medical malpractice litigation. He is a 2003 graduate of the University of Tennessee College of Law and a member of The Tennessee Bar Association’s Leadership Law Class of 2010.

 

 

 

 

JOSHUA R. WALKER JOSHUA R. WALKER is a partner with Paine, Tarwater, and Bickers LLP. A 2003 graduate of the University of Tennessee College of Law, he primarily practices in the areas of products liability, toxic torts, medical malpractice, and commercial and estate-related litigation. He is a member of the Litigation Section of the Tennessee Bar Association and serves on the Continuing Legal Education and Judicial Committees of the Knoxville Bar Association.