By W. Scott Hickerson
Hamilton County Circuit Court and former County GOP Chairman Judge Neil Thomas recently declared Tennessee’s cap on non-economic damages unconstitutional on multiple grounds.
In 2011, the Tennessee legislature passed the Tennessee Civil Justice Act of 2011, commonly referred to as Tennessee’s Tort Reform Act. Within the Act, the legislature placed a statutory cap (a limit or ceiling), with certain exceptions, on non-economic damages that can be awarded in personal injury and wrongful death cases at $750,000 or, in cases involving catastrophic injuries (as defined by the Act) at $1 million.
Tenn. Code Ann. §29-39-101, defines non-economic damages to include damages for “physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of society, companionship, and consortium; injury to reputation; humiliation; non-economic effects of disability, including loss of enjoyment of normal activities, benefits and pleasures of life and loss of mental or physical health, well-being or bodily functions; and all other non-pecuniary losses of any kind or nature.”
Tennessee is among several states that have passed limitations on recoverable damages, and, invariably, constitutional challenges to such laws have been raised. The Tennessee Supreme Court, however, has not yet had an opportunity to weigh in on the constitutionality of the non-economic damages cap. Perhaps, now the time has come.
On March 9, 2015, Hamilton County Circuit Court Judge Neil Thomas issued a Memorandum and Order in the matter of Clark v. Cain, et al., an automobile accident case in which the defendants had moved for partial summary judgment. Defendants’ Motion requested the court limit defendants’ potential exposure pursuant to T.C.A §29-39-102 and its $750,000 statutory cap on non-economic damages as the plaintiffs had filed suit seeking $22.5 million in non-economic damages.
The plaintiffs asserted that the cap was unconstitutional, and the Attorney General’s Office for the State of Tennessee weighed in on the issues. The State argued, as had been done in the past, that the constitutional issues were not ripe for consideration and that a constitutional review of the statute should be delayed or denied as no jury verdict in excess of the statutory limits had been awarded at the time of argument The named defendants, however, disagreed with the state’s request that an argument on the constitutionality of the damages cap be postponed or denied and instead requested the court rule on their dispositive motion seeking an order limiting the potential damages recoverable in the case.
Declining to delay a ruling, Judge Thomas found that Tennessee’s cap on non-economic damages impinges upon the plaintiffs’ due process and equal protection rights under the Tennessee Constitution as well as the plaintiffs’ “inviolate” right to a jury trial and is therefore unconstitutional.
That a trial court has now addressed the constitutionality of Tennessee’s cap on non-economic damages is not unexpected. After all, these very issues have been addressed in several other states that have passed similar laws. It is surprising though that it was the defendants in the Clark matter that pushed the issue and requested the trial court to issue a ruling. What won’t be surprising is when Judge Thomas’ ruling is appealed.
Will the Tennessee Supreme Court ultimately take up the question or will the Court find that there currently exists no case or controversy without a jury award in excess of the cap imposed by T.C.A §29-39-102? That remains to be seen.