McClay v. Airport Management Services, LLC

Docket Watch 2020

By Mark A. Behrens

In McClay v. Airport Management Services, LLC,[1] the Tennessee Supreme Court upheld the state’s $750,000 cap on noneconomic damages in personal injury cases ($1 million for “catastrophic loss or injury”).[2] The court, answering certified questions from the United States District Court for the Middle District of Tennessee, concluded that the cap satisfies the Tennessee Constitution’s right to a trial by jury, separation of powers, and equal protection provisions.

Plaintiff Jodi McClay, a California resident, brought suit against the defendant, an operator of a retail store at the Nashville International Airport, after a wooden panel in the store fell and struck her foot. Following a trial, the jury returned a verdict for the plaintiff and awarded $444,500 for future medical expenses and $930,000 for noneconomic damages.[3]

The Tennessee Supreme Court, in an opinion written by Chief Justice Jeffrey Bivins, first addressed the legislature’s authority to weigh competing public and private interests and to legislatively alter the common law. The court noted that the legislature had altered common law causes of action and available remedies on numerous occasions, citing several examples. The court said that “one could view the statutory cap on noneconomic damages as a limitation on the available remedy for certain causes of action, or as an abrogation of causes of action for claims exceeding the statutory limit.”[4] “Under either view,” the court added, “the General Assembly was within its legislative authority to alter the common law by enacting the statutory cap on noneconomic damages.”[5]

The court concluded that the cap does not violate the Tennessee Constitution’s right to a trial by jury. The court said that the right to jury trial is satisfied “when an unbiased and impartial jury makes a factual determination regarding the amount of noneconomic damages, if any, sustained by the plaintiff.”[6] Once the jury satisfies that role, the trial judge “then applies, as a matter of law determined by the legislature, the statutory cap on noneconomic damages in entering the final judgment.”[7] The right to a jury trial “does not entitle a plaintiff to any particular cause of action or any particular remedy.”[8] The court found “persuasive the reasoning from many [other state supreme courts] that similarly concluded that statutory caps on damages do not violate a plaintiff’s right trial by jury.”[9]

In a significant footnote, the court repudiated a 2019 decision by the federal Sixth Circuit Court of Appeals predicting that the Tennessee Supreme Court would find the state’s punitive damages cap to violate the right to jury trial, and therefore holding that the cap violated the state’s constitution.[10] The court found the Sixth Circuit’s reasoning “unpersuasive” and criticized the Sixth Circuit’s failure to certify that question of state law, while noting that the punitive damages cap was not at issue in McClay.[11]

Next, the Tennessee Supreme Court held that the statutory cap does not violate the separation of powers doctrine. The court explained that the cap is a substantive change in the law that “does not interfere with the judicial power of the courts to interpret and apply law.”[12]

Lastly, the court rejected plaintiff’s assertion that the statutory cap violates equal protection by discriminating against women.[13] The court said that Equal Protection Clause of the United States and Tennessee Constitutions “does not provide for disparate impact claims.”[14] To prove a constitutional violation, the plaintiff would have to show that the statutory cap was enacted with “discriminatory purpose.”[15] The court said there was “no allegation or evidence that the General Assembly acted with the purpose of discriminating against women in enacting the statutory cap on noneconomic damages.”[16] And, while the court did not examine the veracity of plaintiff’s disparate impact allegations because “a disparate impact, without evidence of discriminatory purpose, is not cognizable,”[17] the court noted the plaintiff did “little more than reference a 2004 law journal article regarding tort reform” and “provided no evidence that Tennessee’s statutory cap on noneconomic damages has a disparate impact.”[18]

Two justices wrote dissenting opinions arguing that they would hold that the statutory cap violates the right to a trial by jury. Justice Cornelia Clark claimed that the cap “usurps and replaces the jury’s constitutionally protected function of determining damages with an arbitrary ceiling,”[19] adopting the reasoning of the minority of high courts that have “struck down statutory damages caps as unconstitutional under constitutional provisions that use the term ‘inviolate’ to describe the jury trial right.”[20] Justice Clark’s dissent interprets Tennessee’s constitutional right to a jury trial as “divest[ing] the General Assembly of all authority to modify the common law right of trial by jury.”[21]

Putting “[l]egal analysis aside,”[22] Justice Lee’s dissent criticized the General Assembly for enacting a statute with which she disagrees based on policy. A concurring opinion said her dissent “cites statistics suitable for a legislative committee hearing and describes in vivid detail the injuries” to a plaintiff in an unrelated case “as an example of how the legislature’s policy choice will be unfair to . . . seriously injured claimants.”[23] Justice Lee’s dissent also cites holdings by the minority of courts in other states that have struck down statutory damages caps. The dissent concludes that the majority’s decision to uphold the statutory noneconomic damages cap “tells the citizens of Tennessee that their right to trial by jury and their right to be fairly compensated for noneconomic damages are trumped by the desire to limit the financial exposure of big corporations and insurance companies in civil negligence lawsuits.”[24]

Justice Holly Kirby filed a concurring opinion joining “fully” in the majority’s conclusion that Tennessee’s statutory noneconomic damages cap is constitutional.[25] The concurring opinion provides an insightful history of the right to jury trial at the time of British rule and in post-revolutionary America. The opinion explains that the right to jury trial was originally about “establishing the role of juries vis-à-vis judges.”[26] The right served as “a ‘restraint on judicial power’”[27] and “is not implicated by the legislature’s alteration of the remedies available to litigants.”[28]

Justice Kirby also criticized Justice Lee’s dissent for first strongly advocating for the statutory damages cap to be struck down, then describing “at length why the dissent disagrees with the legislature’s policy decision to enact it in the first place.”[29] This sequence, Justice Kirby said, “could give a misimpression that the two points are linked.”[30]

Justice Kirby said that courts must not “inquire into the motives of the General Assembly” or review a “statute’s wisdom, expediency, reasonableness, or desirability.”[31] “These are matters entrusted to the electorate,” he said, “not the courts.”[32] “Admittedly, this can sometimes be a hard principle to maintain,” Justice Kirby concluded, “[b]ut maintain it we must.”[33]

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[1] 596 S.W.3d 686 (Tenn. 2020).

[2] Tenn. Code Ann. § 29-39-102.

[3] McClay, 596 S.W.3d at 688.

[4] Id. at 691.

[5] Id.

[6] Id. at 693.

[7] Id. at 692.

[8] Id. at 691.

[9] Id. at 692 (citing Murphy v. Edmonds, 601 A.2d 102 (Md. 1992); Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115 (Idaho 2000); Arbino v. Johnson & Johnson, 880 N.E.2d 420 (Ohio 2007); Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002); Gourley ex rel. Gourley v. Nebraska Methodist Health Sys., Inc., 663 N.W.2d 43 (Neb. 2003); Tam v. Eighth Jud. Dist. Court, 358 P.3d 234 (Nev. 2015); Judd ex rel. Montgomery v. Drezga, 103 P.3d 135 (Utah 2004); Wright v. Colleton County Sch. Dist., 391 S.E.2d 564 (S.C. 1990); Phillips v. Mirac, Inc., 685 N.W.2d 174 (Mich. 2004)).

[10] Id. at 693 n.6 (citing Lindenberg v. Jackson Nat’l Life Ins., 912 F.3d 348 (6th Cir. 2019), reh’g en banc denied, 919 F.3d 992 (6th Cir. 2019), cert. denied sub nom. Tennessee v. Lindenberg, 140 S. Ct. 635 (2019)).

[11] Id.

[12] Id. at 695.

[13] Id. at 696.

[14] Id. at 695.

[15] Id. at 696.

[16] Id.

[17] Id.

[18] Id. at n.7.

[19] Id. at 698 (Clark, J, dissenting).

[20] Id. at 698 & n.3 (citing Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156 (Ala. 1991); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010); Hilburn v. Enerpipe. Ltd., 442 P.3d 509 (Kan. 2019); Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633 (Mo. 2012); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989), amended by 780 P.2d 260 (Wash. 1989)).

[21] Id. at 699 (Clark, J, dissenting) (emphasis in original).

[22] Id. at 705 (Lee, J, dissenting).

[23] Id. at 711-712 (Kirby, J., concurring).

[24] Id. at 709 (Lee, J, dissenting).

[25] Id. at 709 (Kirby, J., concurring).

[26] Id. at 711 (Kirby, J., concurring).

[27] Id. at 710 (Kirby, J., concurring) (quoting Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 Hastings L.J. 579, 600 (1993)).

[28] Id. at 711 (Kirby, J., concurring).

[29] Id. at 712 (Kirby, J., concurring).

[30] Id. (Kirby, J., concurring)

[31] Id. (Kirby, J., concurring) (citation omitted).

[32] Id. (Kirby, J., concurring) (citation omitted).

[33] Id. (Kirby, J., concurring).

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