TENNESSEE JUDICIAL ACADEMY Crafting Jury Instructions

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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

PC 510, the Tennessee Civil Justice Act of 2011
(“Act”) signed into law on June 26, 2011.


Applies to actions filed on October 1, 2011 and
after
Most significant changes
 $750,000 cap for non-economic damages
 Jury is not to be told about Caps!!
 Cap for punitive damages: the greater of 2x
amount of compensatory damages or $500,000
Today’s Topics
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(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 13th ed.

Appendix C Form 1

Model Verdict Form for Claims Arising on or after
October 1, 2011



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


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 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: 2x amount of
compensatory damages
awarded or $500,000,
whichever is greater. No
punitive damages in TCPA
claim—only treble.
Additionally, there is a
$1M cap for “catastrophic
losses.”
Safe-harbors  “sellers”
of products; drug/medical
device manufacturer;
compliance with gov’t
standards
Economic Damages


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



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 $1M cap for
“catastrophic losses.”
Punitive Damages



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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: 2x 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 14.55A (con’td)


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 14.55A

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

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 Damages


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

Intentional tort. The defendant intended to inflict
serious physical injury, and the plaintiff was in fact
injured.

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.)

Intoxicated defendant. The defendant was under
the influence of drugs, alcohol, or another substance
when causing the injury.
2. Comparative Fault


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Joint and several liability remains the exception,
not the rule. See McIntyre v. Balentine, 833
S.W.2d 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



Joint and several liability remains intact for following
situations:
 Civil conspiracy finding among 2 or more at-fault
defendants.
 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)


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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 (13th ed.) Appendix D for
TCPA cases.
Verdict Form and Supplemental Verdict
Form for Punitive Damages under the TCPA
T.P.I.—Civil 11.45 TCPA
Notable 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 Claims


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
“Medical Practice” is now “Health Care
Liability”.
 The definition of “health care provider”
has been broadened.
 The definitional section (Tenn. Code
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 Requirements
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Questions of law for trial judge to decide in dispositive
motions
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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

Thurmond v. Mid-Cumberland Infectious
Disease Consultants, PLC, No.
MCCCCVMA120053, 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.
 Oral arguments on February 5, 2014.
Good Faith Certificate
Questions of law for trial judge to decide in dispositive motions

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)

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 Act
29-28-104

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.
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!
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