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Tennessee Judicial Conference What Trial Judges Need to Know About the Tennessee Civil Justice Tennessee Judicial Conference What Trial Judges Need to Know About the Tennessee Civil Justice Act of 2011 Judge John J. Maddux, Jr. Judge Robert L. Childers March 20, 2014

Introduction n PC 510, the Tennessee Civil Justice Act of 2011 (“Act”) signed into Introduction n PC 510, the Tennessee Civil Justice Act of 2011 (“Act”) signed into law on June 26, 2011. n n Applies to actions filed on October 1, 2011 and after Most significant changes n $750, 000 cap for non-economic damages n Jury is not to be told about Caps!! n Cap for punitive damages: the greater of 2 x amount of compensatory damages or $500, 000

Today’s Topics n n n (1) Damages; (2) Comparative Fault, (3) Tennessee Consumer Protection Today’s Topics n n n (1) Damages; (2) Comparative Fault, (3) Tennessee Consumer Protection Act; (4) Health Care Liability Act; and (5) Products Liability Act

Tennessee Pattern Jury Instructions —Civil 13 th ed. n Appendix C Form 1 n Tennessee Pattern Jury Instructions —Civil 13 th ed. n Appendix C Form 1 n Model Verdict Form for Claims Arising on or after October 1, 2011 n n n The instruction is for use in a tort case involving only one plaintiff and one defendant. Appropriate modifications must be made to the form if the case involves multiple parties, does not involve a claim for future damages, involves a claim for property damage, and in other circumstances. The Committee will be preparing and publishing additional sample jury verdict forms for use in cases arising after the effective date of the Act. In the meantime, judges and attorneys are urged to modify this form as appropriate. The Jury Verdict Form follows the preceding paragraphs.

1. Damages n n Read TCA §§ 29 -39 -101 to -104. New damages 1. Damages n n Read TCA §§ 29 -39 -101 to -104. New damages provisions in these sections apply to all civil actions (except those against the State and certain government employees).

Categories of Damages Economic Non-Economic Punitive Generally: Damages for objectively verifiable pecuniary damages arising Categories of Damages Economic 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. Cap: n/a Cap: $750, 000 Cap: 2 x amount of compensatory damages awarded or $500, 000, whichever is greater. No punitive damages in TCPA claim—only treble. Additionally, there is a $1 M cap for “catastrophic losses. ” Safe-harbors “sellers” of products; drug/medical device manufacturer; compliance with gov’t standards

Economic Damages n n Generally: Damages for objectively verifiable pecuniary damages arising from med Economic Damages n n Generally: Damages for objectively verifiable pecuniary damages arising from 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. Cap: No Cap

Non-Economic Damages n n n Generally: Damages for physical and emotion pain and suffering; Non-Economic Damages n n n 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. Cap: $750, 000 Additionally, there is a $1 M cap for “catastrophic losses. ”

Punitive Damages n n Generally: Same standard for awarding punitive damages; however, bifurcation of Punitive Damages n n Generally: Same standard for awarding punitive damages; however, bifurcation of punitive damages required (no motion necessary). Safe-harbors “sellers” of products, drug/medical device manufacturers, and other D’s in compliance with gov’t standards not liable; Cap: 2 x amount of compensatory damages awarded or $500, 000, whichever is greater. Only treble damages for TCPA claims - No punitive damages.

Punitive Damages: T. P. I. —Civil 14. 55 A (con’td) n n Under the Punitive Damages: T. P. I. —Civil 14. 55 A (con’td) n n Under the 2011 amendments, trial judge must automatically bifurcate the trial for punitive damages. See Tenn. Code Ann. § 29 -39104(a)(2). The same exceptions to Caps that apply to other damages (discussed later) apply to punitive damages. Jury instructions for each exception are included in the T. P. I. —Civil, but trial judge can omit any not supported by evidence.

Punitive Damages: T. P. I. —Civil 14. 55 A n Plaintiffs cannot recover both Punitive Damages: T. P. I. —Civil 14. 55 A n Plaintiffs cannot recover both punitive and statutory damages because of principle of double recovery. However, if judge and jury determine that a plaintiff is entitled to both forms of enhanced damages, plaintiff can request that jury determine amount before plaintiff elects which to include in the final judgment. Judge will charge jury on both types of damages.

T. P. I. —Civil 14. 56 Punitive Damages—Amount n In these instructions, the trial T. P. I. —Civil 14. 56 Punitive Damages—Amount n In these instructions, the trial judge instructs the jury on what factors to consider when deciding the amount of punitive damages: n Defendant’s net worth and financial condition n Objectionable nature of Defendant’s wrongdoing, impact on parties’ relationship n Defendant’s awareness and motivation for causing harm n Duration of misconduct and whether Defendant tried to conceal n Money Plaintiff spent to recover losses n Whether Defendant profited from the activity n Number of previous punitive damage awards against Defendant based on the same wrongful act n Whether Defendant tried to remedy the situation or offered a prompt/fair settlement n Catch-all provision

T. P. I. —Civil 14. 57 A Removal of Caps on Non-Economic & Punitive T. P. I. —Civil 14. 57 A Removal of Caps on Non-Economic & Punitive Damages n n Trial judge should NOT include title of this instruction in jury charge. Exceptions to punitive caps include: n Intentional tort n Intentional destruction of evidence, etc. n Intoxicated defendant n Felony conviction

T. P. I. —Civil 14. 01 et seq Damages n n Comprehensive damages instruction T. P. I. —Civil 14. 01 et seq Damages n n Comprehensive damages instruction for all personal injury cases where there is some element of bodily injury. In health care liability cases, trial judge should modify this instruction to comply with TCA § 29 -26 -119 (unless evidence of medical expenses and lost wages have been excluded).

Exceptions to the Caps n Intentional tort. The defendant intended to inflict serious physical Exceptions to the Caps n Intentional tort. The defendant intended to inflict serious physical injury, and the plaintiff was in fact injured. n Intentional falsification, destruction, or concealment of records containing material evidence of defendant’s liability. Defendant altered or destroyed records to avoid liability. (Good faith and normal course of business are exceptions. ) n Intoxicated defendant. The defendant was under the influence of drugs, alcohol, or another substance when causing the injury.

2. Comparative Fault n n n Joint and several liability remains the exception, not 2. Comparative Fault n n n Joint and several liability remains the exception, not the rule. See Mc. Intyre v. Balentine, 833 S. W. 2 d 52, 58 (Tenn. 1992). Damages caps apply to multiple defendants who may be found at fault under comparative fault. Aggregate total liability of co-defendants at fault cannot exceed the total of the cap. Defendant who is found liable can only be severally liable for percentage of damages attributed to such defendant by trier of fact. No defendant may be held jointly liable for any damages.

Joint and Several Liability n n n Joint and several liability remains intact for Joint and Several Liability n n n Joint and several liability remains intact for following situations: n Civil conspiracy finding among 2 or more at-fault defendants. n Among manufacturers only in a products liability action But only if the action is based upon a theory of strict liability or breach of warranty. This section does not prohibit trier of fact from assigning fault to non-party or immune third party. Parties can still enter into a legally enforceable contract that allocates fault in a civil action among parties to contract.

3. Tennessee Consumer Protection Act (TCPA) n n n The 2011 changes “apply to 3. Tennessee Consumer Protection Act (TCPA) n n n The 2011 changes “apply to all liability actions for injuries, deaths and losses covered by this act which accrue on or after [10/1/11]. ” Notably, only Attorney General has standing to bring TCPA claims under “catch-all” provision in TCA § 47 -18 -104(b)(27). Trial judges should use sample verdict form found in T. P. I. —Civil (13 th ed. ) Appendix D for TCPA cases.

Verdict Form and Supplemental Verdict Form for Punitive Damages under the TCPA Verdict Form and Supplemental Verdict Form for Punitive Damages under the TCPA

T. P. I. —Civil 11. 45 TCPA T. P. I. —Civil 11. 45 TCPA

Notable Restrictions on TCPA Claims n n The deceptive act or practice at issue Notable Restrictions on TCPA Claims n n 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 -18109(a)(3). The trial judge makes this determination. n The court cannot award punitive damages for the same unfair or deceptive practice.

Restrictions on TCPA Claims n n Class action suits are prohibited. The TCPA does Restrictions on TCPA Claims n n Class action suits are prohibited. The TCPA does not apply to securitiesrelated 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 Liability Act n “Medical Practice” is now “Health Care Liability”. 4. Tennessee Health Care Liability Act n “Medical Practice” is now “Health Care Liability”. n The definition of “health care provider” has been broadened. n The definitional section (Tenn. Code Ann. § 29 -26 -101) reverses Estate of French v. Stratford House, 333 S. W. 3 d 54 (Tenn. 2011) (clarifying the line between ordinary negligence and medical negligence).

Health Care Liability Requirements n Questions of law for trial judge to decide in Health Care Liability Requirements n Questions of law for trial judge to decide in dispositive motions n 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 Notice n Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, No. MCCCCVMA Latest Case on Notice n Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, No. MCCCCVMA 120053, 2013 WL 1798960 (Tenn. Ct. App. Apr. 26, 2013). The Court of Appeals held that failure to comply with notice requirements is grounds for dismissal, and the proper way for defendants to challenge compliance with TCA 29 -26 -121 is via motion to dismiss. n Oral arguments on February 5, 2014.

Good Faith Certificate Questions of law for trial judge to decide in dispositive motions Good Faith Certificate Questions of law for trial judge to decide in dispositive motions n Certificate of good faith. Under prior version of provision, certificate of good faith had to be filed within ninety (90) days of filing of complaint. Because of changes in TCA 29 -26 -121, this requirement also changed. Now, certificate of good faith is filed with complaint. However, complaint need not be filed until 120 days after statute of limitations expires.

5. Products Liability Act TCA 29 -28 -104 (b) and (c) n Subsection (b): 5. Products Liability Act TCA 29 -28 -104 (b) and (c) n Subsection (b): A manufacturer or seller (other than a manufacturer of a drug or device) shall not be liable for exemplary or punitive damages n if product complied with licensing or other approval requirements of a government agency; or n 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 Act 29 -28 -104 n Subsection (c): Subsection (b) does not apply Products Liability Act 29 -28 -104 n 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 n n TCA 29 -28 -106. Seller’s Liability. (Note: More on Product Liability Claims n n TCA 29 -28 -106. Seller’s Liability. (Note: This provision is new. The former provision was repealed. ) Key Points n A plaintiff cannot sue any seller (other than the manufacturer) unless: n 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, 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; n The seller gave an express warranty as defined by title 47, chapter 2; n 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 n Manufacturer has been judicially declared insolvent. n

T. P. I. —Civil 10. 01 et seq. T. P. I. —Civil 10. 01 et seq.

Questions or Comments? “Don’t be afraid to ask dumb questions. They are more easily Questions or Comments? “Don’t be afraid to ask dumb questions. They are more easily handled than dumb mistakes. ” – Anonymous Thank you for your attention!