Tennessee Judicial ConferenceTennessee Judicial Conference
What Trial Judges Need to What Trial Judges Need to Know About the Tennessee Know About the Tennessee
Civil Justice Act of 2011Civil Justice Act of 2011
Judge John J. Maddux, Jr.Judge John J. Maddux, Jr.Judge Robert L. ChildersJudge Robert L. Childers
March 20, 2014March 20, 2014
IntroductionIntroduction PC 510, the Tennessee Civil Justice Act of PC 510, the Tennessee Civil Justice Act of
2011 (“Act”) signed into law on June 26, 2011.2011 (“Act”) signed into law on June 26, 2011. Applies to actions filed on Applies to actions filed on October 1, 2011 October 1, 2011
and afterand after Most significant changesMost significant changes
$750,000 cap for non-economic damages$750,000 cap for non-economic damages Jury is not to be told about Caps!!Jury is not to be told about Caps!! Cap for punitive damages: the greater of 2x Cap for punitive damages: the greater of 2x
amount of compensatory damages amount of compensatory damages or or $500,000$500,000
Today’s TopicsToday’s Topics
(1) (1) Damages; Damages; (2) (2) Comparative Fault, Comparative Fault, (3) (3) Tennessee Consumer Protection Tennessee Consumer Protection
Act; Act; (4) (4) Health Care Liability Act; and Health Care Liability Act; and (5) (5) Products Liability ActProducts Liability Act
Tennessee Pattern Jury InstructionsTennessee Pattern Jury Instructions—Civil 13th ed.—Civil 13th ed.
Appendix C Form 1Appendix C Form 1 Model Verdict Form for Claims Arising on or after Model Verdict Form for Claims Arising on or after
October 1, 2011October 1, 2011 The instruction is for use in a tort case involving only one The instruction is for use in a tort case involving only one
plaintiff and one defendant. Appropriate modifications must be plaintiff and one defendant. Appropriate modifications must be made to the form if the case involves multiple parties, does not made to the form if the case involves multiple parties, does not involve a claim for future damages, involves a claim for involve a claim for future damages, involves a claim for property damage, and in other circumstances.property damage, and in other circumstances.
The Committee will be preparing and publishing additional The Committee will be preparing and publishing additional sample jury verdict forms for use in cases arising after the sample jury verdict forms for use in cases arising after the effective date of the Act. In the meantime, judges and attorneys effective date of the Act. In the meantime, judges and attorneys are urged to modify this form as appropriate.are urged to modify this form as appropriate.
The Jury Verdict Form follows the preceding The Jury Verdict Form follows the preceding paragraphs. paragraphs.
1. Damages1. Damages Read TCA §§ 29-39-101 to -104.Read TCA §§ 29-39-101 to -104. New damages provisions in these New damages provisions in these
sections apply to all civil actions sections apply to all civil actions (except those against the State and (except those against the State and certain government employees).certain government employees).
Categories of DamagesCategories of DamagesEconomic Non-Economic Punitive
Generally: Damages for objectively verifiable pecuniary damages arising med care, custodial care, loss of earnings and earning capacity, burial costs, loss of income, loss of use of property, loss of business or employment opportunities.
Generally: Damages for physical and emotion pain and suffering; inconvenience, physical impairment, loss of society, companionship, consortium, injury to reputation, loss of enjoyment due to injury to well-being or bodily functions.
Generally: The standard for awarding punitive damages stays the same; however, the court must now bifurcate the trial.
Safe-harbors “sellers” of products; drug/medical device manufacturer; compliance with gov’t standards
Cap: n/a Cap: $750,000
Additionally, there is a $1M cap for “catastrophic losses.”
Cap: 2x amount of compensatory damages awarded or $500,000, whichever is greater. No punitive damages in TCPA claim—only treble.
Economic DamagesEconomic Damages
Generally: Damages for objectively Generally: Damages for objectively verifiable pecuniary damages arising verifiable pecuniary damages arising from med care, custodial care, loss of from med care, custodial care, loss of earnings and earning capacity, burial earnings and earning capacity, burial costs, loss of income, loss of use of costs, loss of income, loss of use of property, loss of business or property, loss of business or employment opportunities.employment opportunities.
Cap: Cap: No CapNo Cap
Non-Economic DamagesNon-Economic Damages Generally: Damages for physical and Generally: Damages for physical and
emotion pain and suffering; emotion pain and suffering; inconvenience, physical impairment, inconvenience, physical impairment, loss of society, companionship, loss of society, companionship, consortium, injury to reputation, loss consortium, injury to reputation, loss of enjoyment due to injury to well-of enjoyment due to injury to well-being or bodily functions.being or bodily functions.
Cap: Cap: $750,000$750,000 Additionally, there is a $1M cap for Additionally, there is a $1M cap for
“catastrophic losses.”“catastrophic losses.”
Punitive DamagesPunitive Damages Generally: Same standard for awarding Generally: Same standard for awarding
punitive damages; however, bifurcation of punitive damages; however, bifurcation of punitive damages punitive damages requiredrequired (no motion (no motion necessary).necessary).
Safe-harbors Safe-harbors “sellers” of products, “sellers” of products, drug/medical device manufacturers, and drug/medical device manufacturers, and other D’s in compliance with gov’t other D’s in compliance with gov’t standards not liable;standards not liable;
Cap: Cap: 2x amount of compensatory 2x amount of compensatory damages awarded damages awarded oror $500,000, whichever $500,000, whichever is greater. is greater.
Only treble damages for TCPA claims - No Only treble damages for TCPA claims - No punitive damages.punitive damages.
Punitive Damages: T.P.I.—Civil 14.55A (con’td)
Under the 2011 amendments, trial judge must automatically bifurcate the trial for punitive damages. See Tenn. Code Ann. § § 29-39-104(a)(2).29-39-104(a)(2).
The same exceptions to Caps that apply to The same exceptions to Caps that apply to other damages (discussed later) apply to other damages (discussed later) apply to punitive damages. Jury instructions for punitive damages. Jury instructions for each exception are included in the each exception are included in the T.P.I.—T.P.I.—CivilCivil, but trial judge can omit any not , but trial judge can omit any not supported by evidence.supported by evidence.
Punitive Damages: T.P.I.—Civil 14.55A
Plaintiffs cannot recover both punitive Plaintiffs cannot recover both punitive and statutory damages because of and statutory damages because of principle of double recovery. However, if principle of double recovery. However, if judge and jury determine that a plaintiff judge and jury determine that a plaintiff is entitled to both forms of enhanced is entitled to both forms of enhanced damages, plaintiff can request that jury damages, plaintiff can request that jury determine amount before plaintiff elects determine amount before plaintiff elects which to include in the final judgment. which to include in the final judgment. Judge will charge jury on both types of Judge will charge jury on both types of damages.damages.
T.P.I.—Civil 14.56 Punitive Damages—Amount
In these instructions, the trial judge instructs the jury on what factors to consider when deciding the amount of punitive damages: Defendant’s net worth and financial condition Objectionable nature of Defendant’s wrongdoing, impact on
parties’ relationship Defendant’s awareness and motivation for causing harm Duration of misconduct and whether Defendant tried to
conceal Money Plaintiff spent to recover losses Whether Defendant profited from the activity Number of previous punitive damage awards against
Defendant based on the same wrongful act Whether Defendant tried to remedy the situation or offered a
prompt/fair settlement Catch-all provision
T.P.I.—Civil 14.57A Removal of Caps on Non-Economic &
Punitive Damages
Trial judge should NOT include title of this instruction in jury charge.
Exceptions to punitive caps include: Intentional tort Intentional destruction of evidence,
etc. Intoxicated defendant Felony conviction
T.P.I.—Civil 14.01 et seq - T.P.I.—Civil 14.01 et seq - DamagesDamages
Comprehensive damages instruction Comprehensive damages instruction for all personal injury cases where for all personal injury cases where there is some element of there is some element of bodily bodily injuryinjury..
In health care liability cases, trial In health care liability cases, trial judge should modify this instruction to judge should modify this instruction to comply with TCA § 29-26-119 (unless comply with TCA § 29-26-119 (unless evidence of medical expenses and lost evidence of medical expenses and lost wages have been excluded).wages have been excluded).
Exceptions to the CapsExceptions to the Caps Intentional tort.Intentional tort. The defendant intended to The defendant intended to
inflict serious physical injury, and the plaintiff inflict serious physical injury, and the plaintiff was in fact injured.was in fact injured.
Intentional falsification, destruction, or Intentional falsification, destruction, or concealment of records containing material concealment of records containing material evidence of defendant’s liability.evidence of defendant’s liability. Defendant Defendant altered or destroyed records to avoid liability. altered or destroyed records to avoid liability. (Good faith and normal course of business are (Good faith and normal course of business are exceptions.)exceptions.)
Intoxicated defendant.Intoxicated defendant. The defendant was The defendant was under the influence of drugs, alcohol, or another under the influence of drugs, alcohol, or another substance when causing the injury.substance when causing the injury.
2. Comparative Fault2. Comparative Fault Joint and several liability remains the Joint and several liability remains the
exception, not the rule. exception, not the rule. SeeSee McIntyre v. McIntyre v. BalentineBalentine, 833 S.W.2d 52, 58 (Tenn. 1992)., 833 S.W.2d 52, 58 (Tenn. 1992).
Damages caps apply to multiple defendants who Damages caps apply to multiple defendants who may be found at fault under comparative fault. may be found at fault under comparative fault. Aggregate total liability of co-defendants at fault Aggregate total liability of co-defendants at fault cannot exceed the total of the cap.cannot exceed the total of the cap.
Defendant who is found liable can only be Defendant who is found liable can only be severally liable for percentage of damages severally liable for percentage of damages attributed to such defendant by trier of fact. No attributed to such defendant by trier of fact. No defendant may be held jointly liable for any defendant may be held jointly liable for any damages.damages.
Joint and Several LiabilityJoint and Several Liability Joint and several liability remains intact for following Joint and several liability remains intact for following
situations:situations: Civil conspiracy finding among 2 or more at-fault Civil conspiracy finding among 2 or more at-fault
defendants.defendants. Among manufacturers only in a products liability Among manufacturers only in a products liability
action action But But onlyonly if the action is based upon a theory if the action is based upon a theory of strict liability or breach of warranty.of strict liability or breach of warranty.
This section does not prohibit trier of fact from assigning This section does not prohibit trier of fact from assigning fault to non-party or immune third party.fault to non-party or immune third party.
Parties can still enter into a legally enforceable contract Parties can still enter into a legally enforceable contract that allocates fault in a civil action among parties to that allocates fault in a civil action among parties to contract.contract.
3. Tennessee Consumer 3. Tennessee Consumer Protection Act (TCPA)Protection Act (TCPA)
The 2011 changes “apply to all liability The 2011 changes “apply to all liability actions for injuries, deaths and losses actions for injuries, deaths and losses covered by this act which accrue on or after covered by this act which accrue on or after [10/1/11].”[10/1/11].”
Notably, Notably, onlyonly Attorney General has Attorney General has standing to bring TCPA claims under “catch-standing to bring TCPA claims under “catch-all” provision in TCA § 47-18-104(b)(27).all” provision in TCA § 47-18-104(b)(27).
Trial judges should use sample verdict form Trial judges should use sample verdict form found in found in T.P.I.—CivilT.P.I.—Civil (13th ed.) Appendix D (13th ed.) Appendix D for TCPA cases.for TCPA cases.
Verdict Form and Supplemental Verdict Verdict Form and Supplemental Verdict Form for Punitive Damages under the TCPAForm for Punitive Damages under the TCPA
T.P.I.—Civil 11.45 TCPAT.P.I.—Civil 11.45 TCPA
Notable Restrictions on TCPA ClaimsNotable Restrictions on TCPA Claims The deceptive act or
practice at issue must be one described in Tenn. Code Ann. Section 47-18-104(b).
Treble Damages: The court may award treble damages sustained for willful violations. Tenn. Code Ann. § 47-18-109(a)(3). The trial judge makes this determination. The court cannot award
punitive damages for the same unfair or deceptive practice.
Restrictions on TCPA ClaimsRestrictions on TCPA Claims Class action suits are prohibited. The TCPA does not apply to
securities-related claims. See Gregory v. Lane, No. 3:11–CV–132, 2012 WL 5289385 (E.D. Tenn. Oct. 24, 2012) (noting that the addition of subsection (h) reversed any holding that the TCPA covered the sale of securities).
4. Tennessee Health Care 4. Tennessee Health Care Liability ActLiability Act
““Medical Practice” is now “Health Medical Practice” is now “Health Care Liability”.Care Liability”.
The definition of “health care The definition of “health care provider” has been broadened. provider” has been broadened.
The definitional section (Tenn. Code The definitional section (Tenn. Code Ann. Ann. § 29-26-101) reverses Estate of French v. Stratford House, 333 S.W.3d 54 (Tenn. 2011) (clarifying the line between ordinary negligence and medical negligence).
Health Care Liability RequirementsHealth Care Liability Requirements Questions of law for trial judge to decide in dispositive Questions of law for trial judge to decide in dispositive
motionsmotions
Notice. Notice. Plaintiff must give pre-suit notice to potential defendants in health care liability actions, in manner provided in statute, before expiration of statute of limitations. If plaintiff complies, P receives 120-day extension of S/L. Court can dismiss P’s claim if P fails to comply, unless P can demonstrate “extraordinary cause.”
Latest Case on NoticeLatest Case on Notice
Thurmond v. Mid-Cumberland Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLCInfectious Disease Consultants, PLC, , No. MCCCCVMA120053, 2013 WL 1798960 No. MCCCCVMA120053, 2013 WL 1798960 (Tenn. Ct. App. Apr. 26, 2013). The Court (Tenn. Ct. App. Apr. 26, 2013). The Court of Appeals held that failure to comply with of Appeals held that failure to comply with notice requirements is grounds for notice requirements is grounds for dismissal, and the proper way for dismissal, and the proper way for defendants to challenge compliance with defendants to challenge compliance with TCA 29-26-121 is via motion to dismiss. TCA 29-26-121 is via motion to dismiss. Oral arguments on February 5, 2014.Oral arguments on February 5, 2014.
Good Faith CertificateGood Faith CertificateQuestions of law for trial judge to decide in dispositive motionsQuestions of law for trial judge to decide in dispositive motions
Certificate of good faith. Certificate of good faith. Under Under prior version of provision, certificate prior version of provision, certificate of good faith had to be filed within of good faith had to be filed within ninety (90) days of filing of complaint. ninety (90) days of filing of complaint. Because of changes in TCA 29-26- Because of changes in TCA 29-26-121, this requirement also changed. 121, this requirement also changed. Now, certificate of good faith is filed Now, certificate of good faith is filed with complaint. However, complaint with complaint. However, complaint need not be filed until 120 days after need not be filed until 120 days after statute of limitations expires.statute of limitations expires.
5. Products Liability ActTCA 29-28-104 (b) and (c)
Subsection (b): A manufacturer or seller (other than a manufacturer of a drug or device) shall not be liable for exemplary or punitive damages
if product complied with licensing or other approval requirements of a government agency; or
if product complied with statute of state or US, or standard or regulation of government agency pursuant to statutory authority, when such law or agency action is relevant to the risk/harm. Product must have been in compliance when it left control of manufacturer or seller.
Products Liability ActProducts Liability Act29-28-10429-28-104
Subsection (c): Subsection (b) does not apply if claimant establishes that manufacturer or seller sold product after effective date of an order of a government agency that ordered removal of the product from market or withdrew the agency’s approval of the product; OR the manufacturer or seller withheld or misrepresented information material to approval to the product and such information is relevant to the harm claimant suffered.
More on Product Liability Claims
TCA 29-28-106. Seller’s Liability. (Note: This provision is new. The former provision was repealed.)
Key Points A plaintiff cannot sue any seller (other
than the manufacturer) unless: The seller exercised substantial control
over that aspect of the design, testing, manufacture, packaging, or labeling of the product that caused the alleged harm for which recovery of damages is sought; (Cont’d)
TCA 29-28-106. Seller’s Liability (Key Points continued)
Altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought;
The seller gave an express warranty as defined by title 47, chapter 2;
Manufacturer or distributor of the product or part in question is not subject to service of process in this state and long-arm statutes of Tennessee do not serve as the basis for obtaining service of process; or
Manufacturer has been judicially declared insolvent.
T.P.I.—Civil 10.01 et seq.T.P.I.—Civil 10.01 et seq.
Questions or Comments?Questions or Comments?
““Don’t be afraid to ask dumb Don’t be afraid to ask dumb questions. They are more easily questions. They are more easily handled than dumb mistakes.handled than dumb mistakes.”” – –
AnonymousAnonymous
Thank you for your attention!Thank you for your attention!
