Tennessee Trial Court Strikes Down State’s Tort Reform Act

Summer 2015

By Stephen A. Vaden

In the latest battle on the state level between the plaintiffs’ and defense bars, a Tennessee trial court has declared portions of that state’s Civil Justice Act of 2011,1 better known as the Tort Reform Act, unconstitutional under the Tennessee constitution.2 The ruling in Clark v. Cain — the first to hold the Act unconstitutional despite dozens of attempts since the law’s enactment — also conflicts with a federal decision in a separate case currently pending in the Middle District of Tennessee.3 If the ruling stands, its forceful interpretation of the right to a civil jury trial could call into question other judicial reforms being considered by the Tennessee legislature such as medical malpractice reform.

The Tennessee Civil Justice Act is a short four-section Act designed to limit large jury verdicts in the state. The provision at issue in Clark limits non-economic damages such as pain and suffering and loss of consortium to $750,000 per plaintiff in most cases.4 That limit increases to $1 million per plaintiff if the loss or injury is “catastrophic,” meaning that the victim suffered a spinal cord injury or amputated limbs, had severe burns, or involved the wrongful death of a parent with a surviving minor child.5 The statute removes the limit on non-economic damages altogether if the claim involves an intentional act, the destruction of evidence to conceal liability, a person who was under the influence or alcohol or drugs, or an act that also results in a felony conviction under state or federal law.6 Separate provisions of the statute not at issue in Cain limit punitive damage awards to the greater of $500,000 or twice the awarded economic damages.7 Similar exemptions to those for non-economic damages also are provided.8

Clark stems from an automobile accident on a Chattanooga interstate that severely injured a father and son. None of the statutory exemptions to the limit applied, however so each of the two plaintiffs would be limited in any recovery for non-economic damages to no more than $750,000. The plaintiffs sought a total of $22.5 million in such damages in their complaint.9 Co-defendant AT&T filed a motion for summary judgment seeking to limit plaintiffs’ recovery for non-economic damages to the statutory cap of $750,000. It was in ruling on that motion that the trial court declared the cap unconstitutional.10

Standing in the way of a decision on the merits of the constitutional question was the issue of ripeness. A Tennessee federal court facing a similar motion had declined on ripeness grounds to address the constitutionality of the caps on non-economic damages. The federal district court in Gummo v. Ward held that, unless the jury returned with a verdict in excess of the $750,000 cap, any ruling on the constitutionality of the Act would be “nothing more than an academic exercise that potentially has ramifications beyond this case.”11 Such an advisory opinion would violate the limitation on federal courts’ powers under Article III of the federal Constitution to “cases” and “controversies.”12 Nonetheless, the state trial court in Clark rejected the same ripeness argument without citation to Gummo. It based its conclusion that the constitutional issue was ripe for adjudication on “two factors, one legal and one practical.”13 The legal consideration was that AT&T’s summary judgment motion “depends upon an adjudication of the constitutional question at this point in the proceeding” — an argument that seems to beg the question of ripeness rather than answer it.14 The “practical” consideration was that, if the jury learned that its verdict on damages was to be disregarded, it “would be insulted” and such a ruling “would be a statement to them that they simply are not needed.”15 Thus, the court appears to have found ripeness, in part, based on its perception of a jury-trial right resting with the members of the jury rather than with the litigants.

On the merits, the court analyzed the Act under Article I, Section 6 of the Tennessee constitution, which declares that “[T]he right of trial by a jury shall remain inviolate” as well as the state constitution’s equal protection and due process clauses.16 The state trial court first found that the right to a jury trial was a fundamental right under the Tennessee constitution.17 It further held that the fundamental right to a jury trial included not only the jury’s ability to find facts and determine liability but also the authority to set the amount of damages. The court based its holding on Chief Justice Marshall’s explanation in Marbury v. Madison that “every right, when withheld, must have a remedy, and every injury its proper redress.”18 It also cited the opinions of the Georgia, Alabama, and Florida supreme courts, which similarly had held their states’ attempts to limit tort damages unconstitutional.19

Having defined the right as fundamental and determined the confines of that right, the trial court then analyzed the Civil Justice Act under strict scrutiny.20 Its analysis featured four items of note. First, the court aggressively challenged the legislature’s factual findings and justifications for the law. The Tennessee legislature had found the Act would lead to greater predictability in damage awards and thereby encourage economic development by attracting employers who would no longer have to worry about excessive jury verdicts.21 The trial court rejected the legislature’s findings as having “no viable support” and instead cited with approval the comments of the law’s opponents during the legislative debate.22 It also found there was no evidence “that there were numerous excessive verdicts in Tennessee.”23

Second, equally as interesting was what the trial court did not address in its analysis. Although the court surveyed numerous state supreme court rulings on the issue of limiting tort damages, it neglected to cite the opinion of the North Carolina Supreme Court in upholding that state’s tort reform act.24 Because of the similarities between the two states’ constitutions, the Tennessee Supreme Court considers opinions of its North Carolina counterpart on state constitutional issues to be particularly persuasive.25 The trial court also failed to address a Tennessee Supreme Court opinion from 2006 that had rejected arguments similar to those of the Clark plaintiffs in upholding the state legislature’s reform of the workers’ compensation system.26

Third, the court appeared to interpret the jury-trial right as belonging to both the plaintiffs and the jurors themselves. There was little mention of the jury’s historic role as a bulwark against society’s tendency to rush to judgment against unpopular defendants. Instead, the court at various times declared the Act to be “jury reform” rather than “tort reform,”27 an “insult[]” and an “affront”28 to the jury, and resulting in the “destr[uction]” of the jury system.29

Finally, the court left its equal protection and due process analysis as almost an afterthought. It declared it to be “irrational” to distinguish between less severely injured plaintiffs, who would receive the full amount of damages to which the jury determined them to be entitled, and more severely injured plaintiffs, who would be subject to the Act’s caps.30 That holding appeared to be a product of the court’s earlier determination that “There can simply be no compelling state interest to which the right to a jury trial may yield.”31

Whether that statement turns out to be a correct view of Tennessee law will likely be decided by the Tennessee Supreme Court. Until then, litigants, legislators, and judges in Tennessee and elsewhere will continue to debate the proper balance between the courts’ role in determining what the law is and the legislature’s role in limiting judicial remedies.

*Stephen A. Vaden is an associate in the Washington, D.C. office of the law firm Jones Day. This article represents the view of the author solely, and not the view of Jones Day, its partners, employees, agents or clients.



1 Tenn. Code Ann. §§ 29-39-101 – 104.

Clark v. Cain, No. 12C1147 (Hamilton Cnty. Cir. Ct. Mar. 9, 2015), available at http://tennesseebusinesslitigation.com/wp-content/uploads/2015/03/Clark-v-Cain-Judge-Thomas-Order-March-9-2015.pdf.

See Gummo v. Ward, No. 2:12-00060, 2013 U.S. Dist. LEXIS 140798 (M.D. Tenn. Sept. 30, 2013).

4 Tenn. Code Ann. § 29-39-102(a)(2).

Id. § 29-39-102(d)(1)-(4).

Id. § 29-39-102(h)(1)-(4).

Id. § 29-39-104(5).

8 See id. § 29-39-104(7)(A)-(D).

Clark, slip op. at 7.

10 Id. at 2.

11 Gummo, 2013 U.S. Dist. LEXIS 140798, at *6.

12 See U.S. Const. art. III, § 2, cl. 1.

13 Clark, slip op. at 9.

14 Id.

15 Id.

16 Id. at 7-8; see also Tenn. Const. art. I, §§ 6, 8; art. XI, § 8.

17 Clark, slip op. at 11, 13.

18 Clark, slip. op. at 14 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone, Commentaries *109)).  Left unmentioned and unexplained by the state judge was that, in Marbury, there was no remedy available to the petitioner because the Supreme Court held the remedy to be unconstitutional.  See Marbury, 5 U.S. (1 Cranch) at 180.

19 Clark, slip op. at 14-15.

20 Id. at 16; see also Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d 1, 11 (Tenn. 2000) (noting that Tennessee courts apply strict scrutiny “to fundamental rights without exception”).

21 Clark, slip op. at 3, 16.

22 Id. at 17.

23 Id. at 18.

24 See Rhyne v. K-Mart Corp., 358 N.C. 160 (2004).

25 See State v. King, 40 S.W.3d 442, 446 (Tenn. 2001) (noting linkages between Tennessee and North Carolina law); State v. Harris, 839 S.W.2d 54, 79 (Tenn. 1992) (noting that the North Carolina constitution was a “model[]” for the Tennessee constitution) (Reid, C.J., dissenting).

26 See Lynch v. City of Jellico, 205 S.W.3d 384 (Tenn. 2006).

27 Clark, slip op. at 6.

28 Id. at 9.

29 Id. at 23.

30 Id. at 19-20.

31 Id. at 16.

  • Judicial Election

    Judges are elected by popular vote.
  • Democratic Appointment

    Judges are appointed directly by a democratic body, or appointed by the governor with the advice and consent of some democratic body.