Aundrey MEALS Ex Rel. William MEALS v. FORD MOTOR COMPANY

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 3, 2013 Session

AUNDREY MEALS EX REL. WILLIAM MEALS v. FORD MOTOR

COMPANY

Appeal by Permission from the Court of Appeals, Western Section

Circuit Court for Shelby County

No. CT00025403 Donna M. Fields, Judge

No. W2010-01493-SC-R11-CV - Filed August 30, 2013

A six-year-old boy’s spine was fractured in a car wreck when the force of the impact caused

him to jackknife over his lap seatbelt and pushed the seatbelt into his stomach and against

his spine. The child’s mother filed suit on his behalf against Ford Motor Company (“Ford”),

alleging that the defective design of the seatbelt and Ford’s failure to warn of a potential

danger caused the child’s permanent paralysis and other enhanced injuries. A jury returned

a $43.8 million verdict for compensatory damages, finding Ford to be 15% at fault and two

non-parties 85% at fault. Ford’s share of the verdict, based on its degree of fault, was

$6,570,000. The jury awarded no punitive damages. Ford moved for a new trial, arguing

that the verdict was excessive. The trial court denied the motion for new trial and affirmed

the verdict in its capacity as thirteenth juror. The Court of Appeals, in a divided opinion,

ruled that the verdict was excessive and remanded to the trial court with a suggestion of

remittitur from $43.8 million to $12.9 million, a 70.55% reduction. The suggested remittitur,

if the plaintiff accepted it, would reduce Ford’s share of the verdict to $1,935,000. Meals ex

rel. Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *18-

21 (Tenn. Ct. App. Apr. 13, 2012). We hold that the Court of Appeals had the authority to

suggest a remittitur even though Ford did not request a remittitur. We further hold that the

Court of Appeals erred in remitting the verdict to $12.9 million. Having taken the strongest

legitimate view of all the material evidence in favor of the verdict, assuming the truth of all

that supports it, allowing all reasonable inferences, and discarding any to the contrary, we

hold that the jury’s verdict was supported by material evidence and was within the range of

reasonableness. The judgment of the Court of Appeals is reversed and the jury’s verdict is

reinstated.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Reversed; Case Remanded to the Circuit Court

S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and

J ANICE M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, J R., JJ., joined.

J. Houston Gordon and Amber Nicole Griffin Shaw, Covington, Tennessee, for the appellant,

Aundrey Meals, as Natural Parent, Guardian, and Next Friend of William Meals.

Lawrence C. Mann, Troy, Michigan (at trial); Sandra Giannone Ezell and Michelle B.

Scarponi, Richmond, Virginia (at trial); John Randolph Bibb, Jr. and Ryan Nelson Clark,

Nashville, Tennessee (at trial and on appeal); Robert Francis Chapski, Nashville, Tennessee

(on appeal); and Christopher T. Handman and Sean M. Marotta, Washington, D.C. (on

appeal), for the appellee, Ford Motor Company.

OPINION

I.

Around 6:30 p.m. on January 18, 2002 in Memphis, Tennessee, six-year-old William

(“Billy”) Meals was riding with his father and grandfather to visit a family member in the

hospital. Billy’s grandfather was driving his 1995 Mercury Grand Marquis, which was

manufactured by Ford. Billy’s father was seated in the front passenger seat, and Billy was

seated in the back seat behind his grandfather. Billy’s father had buckled him into the back

seat, using the vehicle’s three-point restraint system that included both a lap and a shoulder

strap. Because the shoulder strap ran directly across Billy’s face, his father placed the

shoulder strap behind Billy’s back, leaving him restrained only by the lap seatbelt.

As the Meals family was traveling down Covington Pike, Memphis Police Department

Officer Bridgette King observed a vehicle moving at a high rate of speed on Raleigh

LaGrange Road. Officer King turned on her cruiser’s blue lights and began following the

vehicle. The vehicle’s operator, John Harris, was driving under the influence of alcohol and

cocaine. After turning onto Covington Pike and crossing the median into oncoming traffic,

the Harris vehicle collided head-on with the Meals vehicle. The violent impact killed Billy’s

father and grandfather, and Mr. Harris. Billy, the sole survivor, was seriously injured when

he jackknifed over the lap seatbelt. His upper torso was thrust forward, but his lower body

was stopped by the seatbelt. The force of the collision caused the lap seatbelt to move up

across his stomach, propel into his body, and damage his spine. Emergency medical

responders removed Billy from the vehicle and took him to LeBonheur Children’s Medical

Center.

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The seatbelt fractured Billy’s lumbar spine and caused serious internal

injuries. Billy’s injuries included a closed head injury, a fractured and dislocated second

lumbar vertebra, a collapsed lung, internal bleeding, injuries to the abdominal wall and small

intestine, bruises, and abrasions. He was hospitalized for fifty-four days and underwent

numerous medical and surgical procedures. Billy was paralyzed from the waist down and

for a period of time, needed a ventilator to support his breathing. About two-thirds of his

small intestine had no blood supply, and a significant portion had to be removed and the

bowel resectioned. Two surgeries were required to drain blood from his abdomen and

remove necrotic tissue. A large abscess in his abdomen had to be drained. He underwent

a cystoscopy to evacuate bladder sediment. He had multiple infections with high fevers and

required intravenous antibiotics. After his discharge from the hospital, he was transferred

to the Scottish Rite Pediatric Hospital in Atlanta, Georgia, for rehabilitation. He spent

twenty-five days in the rehabilitation facility and then returned home. He was subsequently

hospitalized on several occasions for surgeries to remove kidney stones and to receive

treatment for a scrotal abscess and urinary tract infections. He also had to undergo a surgical

spinal fusion, which required the placement of rods, screws, and wires to straighten his back.

On January 15, 2003, Aundrey Meals (“Plaintiff”) filed suit on behalf of her son

against Ford and other defendants in the Circuit Court for Shelby County.1 As to Ford,

Plaintiff alleged negligence, comparative fault, gross negligence, misrepresentation, breach

of express and implied warranties of merchantability and fitness for a particular purpose, and

strict liability. Plaintiff sought compensatory and punitive damages. When the case went to

trial, Ford was the sole defendant.2

The trial began on September 28, 2009, and lasted approximately seven weeks. After

closing arguments, the jury deliberated for three days and returned a verdict in Plaintiff’s

favor, concluding that Ford was 15% at fault; Mr. Harris, a non-party, 70% at fault; and

Billy’s deceased father, a non-party, 15% at fault. The jury awarded Plaintiff $43.8 million

in compensatory damages. No punitive damages were awarded. The amount of the verdict

attributable to Ford, based on the jury’s allocation of fault, was $6,570,000.

1

Plaintiff sued the City of Memphis; Walter Crews, individually and in his capacity as director of

the City of Memphis Police Department; Officer King, individually and in her capacity as an officer for the

City of Memphis Police Department; and Ford.

2

On February 7, 2003, the defendants filed a notice of removal to federal court pursuant to 28 U.S.C.

§§ 1441 and 1446 (2000). After the United States District Court for the Western District of Tennessee

dismissed the federal claims against Mr. Crews and Officer King, the case was remanded to state

court. Plaintiff filed an amended complaint asserting claims against the City of Memphis and Ford. The City

of Memphis was voluntarily dismissed with prejudice, leaving Ford as the sole defendant.

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In its motion for new trial, Ford argued, among other things, that the verdict was

excessive, the result of passion, prejudice, or bias, and not supported by material

evidence. Ford did not seek a remittitur, arguing that the necessary remittitur to bring the

verdict within a reasonable range would destroy the verdict. The trial court denied the

motion for new trial and approved the jury’s verdict as thirteenth juror.

In the Court of Appeals, Ford argued that the verdict was excessive and asked the

court to order a new trial, but did not request a remittitur. In a split decision, the court ruled

that the verdict was excessive and remitted the verdict by 70.55%, reducing the total award

to $12.9 million and Ford’s liability to $1,935,000. Meals ex rel. Meals v. Ford Motor Co.,

No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *21 (Tenn. Ct. App. Apr. 13,

2012). The majority explained that the non-economic damages awarded were reduced to

“$8.6 million, an amount that is approximately equal to twice the proven quantifiable

economic damages.” Id.

We granted Plaintiff’s application for permission to appeal to review the remittitur

suggested by the Court of Appeals and the reasonableness of the jury’s award of damages.

II.

A.

We entrust the responsibility of resolving questions of disputed fact, including the

assessment of damages, to the jury. Tenn. Const. art. I, § 6; Spence v. Allstate Ins. Co., 883

S.W.2d 586, 594 (Tenn. 1994); Wolfe v. Vaughn, 177 Tenn. 678, 688, 152 S.W.2d 631, 635

(1941). An award of damages, which is intended to make a plaintiff whole, compensates the

plaintiff for damage or injury caused by a defendant’s wrongful conduct. Inland Container

Corp. v. March, 529 S.W.2d 43, 44 (Tenn. 1975). A plaintiff may be compensated for any

economic or pecuniary losses that naturally result from the defendant’s wrongful

conduct. Id. Economic damages include out-of-pocket medical expenses,3 future medical

expenses,4 lost wages,5 and lost earning potential.6 The plaintiff bears the burden of proving

3

See Tenn. Code Ann. § 24-5-113 (2009); Borner v. Autry, 284 S.W.3d 216, 218 (Tenn. 2009).

4

See Mercer, 134 S.W.3d at 131-32 (citing Newman v. Aluminum Co. of Am., 643 S.W.2d 109, 111

(Tenn. Ct. App. 1982)).

5

See Health Cost Controls, Inc. v. Gifford, 239 S.W.3d 728, 733 (Tenn. 2007).

6

See Mercer, 134 S.W.3d at 131-32 (citing Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn.

(continued...)

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damages to such a degree that, while perhaps not mathematically precise, will allow the jury

to make a reasoned assessment of the plaintiff’s injury and loss. Provident Life & Accident

Ins. Co. v. Globe Indem. Co., 156 Tenn. 571, 576-77, 3 S.W.2d 1057, 1058 (1928);

Overstreet, 4 S.W.3d at 703.

A plaintiff is also entitled to recover compensatory damages for non-economic loss

or injury. Elliott v. Cobb, 320 S.W.3d 246, 247 (Tenn. 2010). “Non-economic damages

include pain and suffering, permanent impairment and/or disfigurement, and loss of

enjoyment of life.” Id. at 248 n.1 (quoting Overstreet, 4 S.W.3d at 715). Damages for pain

and suffering are awarded for the physical and mental suffering that accompany an

injury. Overstreet, 4 S.W.3d at 715. Damages awarded for loss of enjoyment of life are

intended to compensate a plaintiff for the impairment of the ability to enjoy the normal

pleasures of living. Lang v. Nissan N. Am., Inc., 170 S.W.3d 564, 571-72 (Tenn.

2005). Assigning a compensable, monetary value to non-economic damages can be

difficult. See Wolfe, 177 Tenn. at 688, 152 S.W.2d at 635 (citing Power Packing Co. v.

Borum, 8 Tenn. App. 162 (1928)). The assessment of non-economic damages is not an exact

science, nor is there a precise mathematical formula to apply in determining the amount of

damages an injured party has incurred. See McCullough v. Johnson Freight Lines, Inc., 202

Tenn. 596, 606, 308 S.W.2d 387, 392 (1957); S. Ry. Co. v. Sloan, 56 Tenn. App. 380, 392,

407 S.W.2d 205, 211 (1965). Thus, a plaintiff is generally not required to prove the

monetary value of non-economic damages. Health Cost Controls, 239 S.W.3d at 733 (citing

22 Am. Jur. 2d Damages § 200 (2007)).

The trial judge, charged with ensuring a fair trial, serves as an important check on a

jury’s discretion to award damages.7 One way the trial judge does this is by serving as the

thirteenth juror. Holden v. Rannick, 682 S.W.2d 903, 904-05 (Tenn. 1984) (quoting

Cumberland Tel. & Tel. Co. v. Smithwick, 112 Tenn. 463, 469, 79 S.W. 803, 804 (1904)). As

thirteenth juror, the trial judge must independently weigh and review the evidence presented

6

(...continued)

Ct. App. 1999)).

7

Trial judges have broad discretion in controlling the course and conduct of a trial, see State v.

Caughron, 855 S.W.2d 526, 541 (Tenn. 1993); overseeing the jury selection process, see State v. Poe, 755

S.W.2d 41, 45 (Tenn. 1988); making determinations regarding the admissibility of evidence, see Shipley v.

Williams, 350 S.W.3d 527, 551 (Tenn. 2011); and controlling the scope and manner of examination of

witnesses, see Coffee v. State, 188 Tenn. 1, 3, 216 S.W.2d 702, 703 (1948). The trial judge also guides the

jury through the decision-making process by instructing the jury regarding the law and the particular issues

it must determine. See Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011). Jurors are

presumed to have followed the trial judge’s instructions unless there is evidence to the contrary. See Johnson

v. Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 374 (Tenn. 2006) (citing State v. Reid, 164 S.W.3d 286,

346 (Tenn. 2005)).

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at trial to determine whether it preponderates in favor of the verdict and decide whether he

or she agrees with and is satisfied with the jury’s verdict. See State v. Moats, 906 S.W.2d

431, 433 (Tenn. 1995). No verdict is valid unless approved by the trial judge acting as the

thirteenth juror. See id. at 434; Shivers v. Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App.

1996).

Generally, if the trial judge is not satisfied with the jury’s verdict, the judge must set

aside the verdict and order a new trial. Jones v. Idles, 114 S.W.3d 911, 914-15 (Tenn.

2003). If the trial judge’s dissatisfaction, however, is based only upon the jury’s award of

damages, the trial judge may suggest a remittitur, which, if accepted by the plaintiff, would

reduce the award to an amount the judge deems appropriate. See Turner v. Jordan, 957

S.W.2d 815, 824 (Tenn. 1997).8 Tennessee Code Annotated section 20-10-102(a) (2009)

authorizes the trial judge to suggest a remittitur:

In all jury trials had in civil actions, after the verdict has been rendered and on

motion for a new trial, when the trial judge is of the opinion that the verdict in

favor of a party should be reduced and a remittitur is suggested by the trial

judge on that account, with the proviso that in case the party in whose favor

the verdict has been rendered refuses to make the remittitur, a new trial will be

awarded, the party in whose favor such verdict has been rendered may make

such remittitur under protest, and appeal from the action of the trial judge to

the [C]ourt of [A]ppeals.

(Emphasis added). Due to concerns of cost and efficiency, we have encouraged trial courts

to cure excessive verdicts, whenever feasible, through the practice of remittitur, rather than

by ordering a new trial. See Thrailkill v. Patterson, 879 S.W.2d 836, 840 (Tenn. 1994); see

also Foster, 621 S.W.2d at 148 (“[R]emittiturs were designed to correct the excessiveness

. . . of a jury’s verdict as an alternative to the granting of a new trial.”). A request for

8

The trial court’s authority to suggest a remittitur of a jury’s verdict rather than grant a new trial

when it disagrees solely with the award of damages is not absolute. A suggested remittitur should not be so

substantial as to destroy the jury’s verdict. See Foster v. Amcon Int’l, Inc., 621 S.W.2d 142, 148 (Tenn.

1981). There is no set percentage that represents the destruction of the jury’s verdict. See id. at 148 n.9

(“[W]e do not intend to establish a numerical standard for reviewing additurs and remittiturs.”); Webb v.

Canada, No. E2006-01701-COA-R3-CV, 2007 WL 1519536, at *4 (Tenn. Ct. App. May 25, 2007) (“While

we decline to establish any particular percentage that would indicate a remittitur that has totally destroyed

a jury verdict, we note that [large] remittiturs by percentage have been found acceptable by this Court and

the Supreme Court of our state.”). Compare Webb, 2007 WL 1519536, at *4 (citing cases in which

remittiturs ranging from 40% to 59% were found to not destroy the jury’s verdict), with Guess v. Maury, 726

S.W.2d 906, 913 (Tenn. Ct. App. 1986) (holding that 75% remittitur destroyed the verdict), overruled on

other grounds by Elliott, 320 S.W.3d at 252, and Myers v. Myers, No. E2004-02135-COA-R3-CV, 2005 WL

1521952, at *1 (Tenn. Ct. App. June 27, 2005) (holding that 70% remittitur destroyed the verdict).

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remittitur is implicit in a motion for a new trial and is a valid alternative to a new trial. See

Foster, 621 S.W.2d at 143-44, 147.

Trial judges may suggest adjustments to a jury’s verdict even if the verdict is within

the range of reasonableness. Foster, 261 S.W.2d at 147. The range of reasonableness is

determined by establishing the upper and lower limits of an award of damages that can be

supported by material proof. Ellis v. White Freightliner Corp., 603 S.W.2d 125, 126-27

(Tenn. 1980). To determine whether a verdict is within the range of reasonableness, the trial

judge must consider the credible proof at trial regarding the nature and extent of the injuries,

pain and suffering, economic losses including past and future medical bills, lost wages and

loss of earning capacity, age, and life expectancy. See Duran v. Hyundai Motor Am., Inc.,

271 S.W.3d 178, 212 (Tenn. Ct. App. 2008). “When remittitur is the issue in a personal

injury . . . case, the question is whether the amount of money awarded is excessive, which

requires ascertainment of a figure that represents the point at which excessiveness

begins.” Ellis, 603 S.W.2d at 126. This will establish the upper limit of the range of

reasonableness. An excessive verdict may be cured by remitting the sum by which the award

exceeds that figure. Id. The trial court may consider the amount awarded in similar cases

in determining whether a verdict is excessive. See S. Ry. Co., 56 Tenn. App. at 392-93, 407

S.W.2d at 211. When the trial judge suggests a remittitur, the plaintiff has three

options: accept the remittitur, refuse the remittitur and opt for a new trial, or accept the

remittitur under protest and seek relief from the Court of Appeals. See Tenn. Code Ann.

§ 20-10-102(a).

The appellate court’s standard of review depends on whether the trial judge suggested

a remittitur or affirmed the verdict in his or her role as thirteenth juror. Where the trial court

has suggested a remittitur,

[t]he [C]ourt of [A]ppeals shall review the action of the trial court

suggesting a remittitur using the standard of review provided for in [Tennessee

Rule of Appellate Procedure] 13(d)9 applicable to decisions of the trial court

sitting without a jury. If, in the opinion of the [C]ourt of [A]ppeals, the verdict

of the jury should not have been reduced, but the judgment of the trial court is

correct in other respects, the case shall be reversed to that extent, and judgment

9

Tennessee Rule of Appellate Procedure 13(d) provides:

Findings of Fact in Civil Actions¯Unless otherwise required by statute, review of findings

of fact by the trial court in civil actions shall be de novo upon the record of the trial court,

accompanied by a presumption of the correctness of the finding, unless the preponderance

of the evidence is otherwise. Findings of fact by a jury in civil actions shall be set aside

only if there is no material evidence to support the verdict.

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shall be rendered in the [C]ourt of [A]ppeals for the full amount originally

awarded by the jury in the trial court.

Tenn. Code Ann. § 20-10-102(b). Where the trial court approves the verdict as thirteenth

juror, the appellate courts maintain the statutory authority to suggest or require a remittitur

on appeal. See Tenn. Code Ann. § 20-10-103(a) (2009). Specifically,

if after the case was tried in the lower court with a jury and no remittitur was

suggested by the trial judge, a remittitur is first suggested or required in the

[C]ourt of [A]ppeals, on penalty of granting a new trial, then . . . the party in

whose favor the verdict or judgment has been rendered may make the

remittitur under protest in the [C]ourt of [A]ppeals, and take the case, by

application for permission to appeal, for review upon that point, to the

[S]upreme [C]ourt.

Id.§ 20-10-103(a) (emphasis added); see Ellis, 603 S.W.2d at 129; Murphy Truck Lines v.

Brown, 203 Tenn. 414, 421-22, 313 S.W.2d 440, 443 (1958).

Where the trial judge has approved the verdict in its role as thirteenth juror¯as the

trial court did in this case¯the Court of Appeals’ review of the verdict and its ability to

suggest a remittitur is limited to a review of the record to determine whether the verdict is

supported by material evidence. Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn. 1980); see

also Thrailkill, 879 S.W.2d at 841; Ellis, 603 S.W.2d at 129. Material evidence is “evidence

material to the question in controversy, which must necessarily enter into the consideration

of the controversy and by itself, or in connection with the other evidence, be determinative

of the case.” Knoxville Traction Co. v. Brown, 115 Tenn. 323, 331, 89 S.W. 319, 321

(1905). An appellate court is required to take “the strongest legitimate view of all the

evidence in favor of the verdict, assume the truth of all evidence that supports the verdict,

allowing all reasonable inferences to sustain the verdict, and to discard all countervailing

evidence.” Akers v. Prime Succession of Tenn., Inc., 387 S.W.3d 495, 501-02 (Tenn. 2012)

(quoting Barkes v. River Park Hosp., Inc., 328 S.W.3d 829, 833 (Tenn. 2010)). The material

evidence analysis is very deferential to the award by the jury and the judgment of the trial

court when it affirms the verdict as the thirteenth juror. See Ellis, 603 S.W.2d at 129

(“[W]hen the trial judge has approved the verdict, the review in the Court of Appeals is

subject to the rule that if there is any material evidence to support the award, it should not

be disturbed.” (emphasis added)). “It matters not a whit where the weight or preponderance

of the evidence lies under a material evidence review.” Hohenberg Bros. Co. v. Mo. Pac.

R.R. Co., 586 S.W.2d 117, 119-20 (Tenn. Ct. App. 1979). “It is simply a search of the record

to ascertain if material evidence is present to support the verdict.” Id. Because the material

evidence standard lies at the foundation of the right to trial by jury, if there is material

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evidence to support a jury verdict, the appellate courts must affirm it. See Tenn. Const. art.

I, § 6; Truan v. Smith, 578 S.W.2d 73, 74 (Tenn. 1979) (quoting D. M. Rose & Co. v. Snyder,

185 Tenn. 499, 508, 206 S.W.2d 897, 901 (1947)); Crabtree Masonry Co., 575 S.W.2d at

5; City of Chattanooga v. Ballew, 49 Tenn. App. 310, 316-17, 354 S.W.2d 806, 808-09

(1961); see also Grandstaff v. Hawks, 36 S.W.3d 482, 497 (Tenn. Ct. App. 2000) (“We have

a duty to uphold a jury’s verdict whenever possible.”).

The Court of Appeals’ authority to suggest a remittitur when the trial court has

affirmed the verdict is far more circumscribed than that of the trial court. Coffey v. Fayette

Tubular Prods., 929 S.W.2d 326, 331 & n.2 (Tenn. 1996); see also Ellis, 603 S.W.2d at 129.

If the Court of Appeals suggests a remittitur, the plaintiff may either accept the remitted

amount, opt for a new trial, or accept the remitted amount under protest and apply to this

Court for permission to appeal. Tenn. Code Ann. § 20-10-103(a).

B.

In this case, the Court of Appeals reduced the jury’s award of damages by 70.55%

based on its conclusion that the award of non-economic damages of $39.5 million

demonstrated sympathy and was excessive. The Court of Appeals reached this conclusion

without discussing the evidence regarding Plaintiff’s damages and by relying on the amount

of the verdict in Potter v. Ford Motor Co., 213 S.W.3d 264 (Tenn. Ct. App. 2006). We

respectfully disagree with the conclusion reached by the Court of Appeals.

In our review of the material evidence supporting the award of compensatory

damages, we first consider the nature and extent of Billy’s injuries. It is not disputed that he

suffered a serious, life-altering, permanent injury.10 He had a fractured and dislocated lumbar

vertebra, which caused him to be permanently paralyzed from the waist down. He sustained

a closed head injury, a collapsed lung, internal bleeding, and severe abdominal and intestinal

injuries. He spent fifty-four days in the hospital and underwent a number of surgical

procedures, including surgery to remove a significant portion of his small intestine and

resection the bowel, surgeries to drain blood from the abdomen and remove necrotic tissue,

and a cystoscopy to evacuate bladder sediment. He developed an abdominal abscess which

had to be drained and had multiple infections which required the administration of

antibiotics. He spent twenty-five days in a rehabilitation center learning how to adapt to his

impairment and receiving physical therapy.

10

During opening statements, Ford’s counsel stated to the jury that the seriousness and extent of

Billy’s injuries were not contested. Ford offered no proof as to damages, and instead, focused on liability

issues.

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After his discharge from the hospital and rehabilitation center, Billy’s medical issues

and treatment did not end. To treat his condition of progressive kyphosis, he had to have

rods, screws, and wires surgically installed in his back and a spinal fusion performed. His

paraplegia causes him to suffer from pressure sores, which on occasion become infected and

require medical treatment. He requires physical therapy to protect against contractures in his

ankles, knees, and hips. He suffers from atrophy in his legs, and his toes are misshapened

and claw-like. He occasionally suffers from kidney stones; he has had to undergo two

surgeries to remove kidney stones. He sometimes gets burned or cut, but cannot feel the pain

associated with the injuries and does not know he needs to seek treatment. As he ages, his

shoulders and wrists will require medical treatment due to overuse. He also has a weakened

immune system and is therefore more susceptible to illness and slower to recover.

Likewise, there is no question that Billy has experienced a significant amount of

mental and physical pain and suffering as a result of these serious injuries. He was conscious

when emergency workers arrived at the wreck scene, removed him from the vehicle, and

rushed him to the hospital. While he was hospitalized, he complained of pain, cried, moaned,

and was restless and irritable. He became withdrawn and depressed. He did not socialize

as he once did. He would have outbursts “over the littlest things” and be angry with his

mother.

Plaintiff’s economic damages totaled approximately $4.3 million. Medical bills

incurred were $552,920.28. Future medical bills were calculated, when reduced to present

day value, as being between $1,300,000 and $1,479,340.80. Lost earning capacity, when

reduced to present day value, was determined to be $1,429,000, if Billy entered the

workforce with a high school diploma, or $2,262,789, if he received a college degree.

The next element of damages to be considered is the impact of Billy’s injuries on his

enjoyment of life. The impact is clearly substantial. Before the wreck, he was a happy,

active, normal six-year-old boy who enjoyed playing outside and going fishing. He was a

good student and an all-star baseball player; he enjoyed school and his friends. After the

wreck, he was paralyzed from the waist down and confined to a wheelchair, without the

ability to ever run, walk, or play baseball again. He has no control over his bowel or

bladder. He must use a catheter in order to urinate and experiences frequent urinary tract

infections. His bowel regimen takes up to an hour a day and requires a suppository and

manual stimulation. He is likely impotent and his sexual functioning impaired. Following

the wreck, he was not able to finish the school year and had to repeat the first grade. His

grades dropped and he had little interest in his studies. He has received psychiatric treatment

and will likely need more counseling in the future to assist with the emotional issues caused

by his paralysis. As a testament to his determination and resilience, and with the support of

his mother and medical professionals, Billy has gradually adapted to his impaired

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condition. The Meals family moved to Murfreesboro, Tennessee, so that they could be closer

to family members and so that Billy could have access to more opportunities. He enjoys

participating in a wheelchair basketball league.

Billy, who was six years old at the time of the wreck, was fourteen years old at the

time of trial and had a life expectancy of 55.79 years.

Our review of the evidence leads us to the conclusion that Plaintiff is entitled to a

substantial award of damages. Billy suffered a catastrophic injury and will never recover the

ability to walk or engage in the activities he participated in prior to the wreck. He spent fifty-

four days in the hospital and twenty-five days in a rehabilitation facility. He underwent

numerous surgical procedures, including removal and resection of part of his small intestine

and a spinal fusion with the insertion of rods and screws. He has had frequent urinary tract

infections and other conditions that required medical attention and the administration of

antibiotics. He will continue to have medical problems and require medical treatment. He

no longer has control over his bowel or bladder. Much of his small intestine has been

removed. He will likely never father a child or have normal sexual functioning. His

economic damages, including past medical bills, future medical bills, and lost earning

capacity total $4.3 million. Non-economic damages, including pain and suffering, permanent

impairment or disfigurement, and loss of enjoyment of life, past and future, are not as easy

to determine. The jury returned a general verdict of $43.8 million in damages.11 Because

this was a general verdict, with no apportionment between economic and non-economic

11

In closing argument, Plaintiff’s counsel did not ask for a specific amount, but itemized the

economic damages and reiterated the ways in which Billy was affected by the wreck. Plaintiff’s counsel

argued that Ford paid one of its expert witnesses $1,110.75 per day for her work, suggesting that Billy’s

remaining days were worth just as much. For his life expectancy of 20,363.35 days, this would total

$22,618,591.01. Counsel for Ford, however, took an “all-or-nothing” approach and gave the jury little

direction in assessing damages, arguing in closing:

Now, I don’t believe that you will get to this question with regard to damages. It’s

Question Number 6 [on the verdict form]. It’s on Page 3. But if you do, I have nothing to

say. We have never in this case questioned that Billy is hurt and that he has limitations in

his life that are tragic and that should never have happened to him as a result of John Harris

running like an idiot into his family on the day of this accident. We have never questioned

that.

So if you get to this, you have the information about how he is hurt. And you have

heard from [a witness] about how people with limitations also have opportunities. You have

all that information. I have nothing else to say about it.

(Emphasis added).

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damages, we can only presume that the jury awarded the Plaintiff $39.5 million in non-

economic damages.12

A jury has wide latitude in assessing non-economic damages. We trust jurors to use

their personal experiences and sensibilities to value the intangible harms such as pain,

suffering, and the inability to engage in normal activities. This task is made more difficult

in a catastrophic injury case. It is not our role to second-guess the jury and to substitute our

judgment; but it is our role to protect against a verdict that is excessive. See Coffey, 929

S.W.2d at 330-31 & n.1; see also Foster, 621 S.W.2d at 143 & n.2, 147. When determining

whether a damage award is excessive and should be reduced, we carefully review the

material evidence supporting the damage award. See Ellis, 603 S.W.2d at 126-27. In

addition, we can look to verdicts in similar cases. Id. at 129 (quoting S. Ry. Co., 56 Tenn.

App. at 392-93, 407 S.W.2d at 211). Our review of verdicts in similar cases must be

approached with some caution. First, we recognize that by reviewing verdicts in published

opinions, we are not reviewing the entire pool of damage awards. Cases resolved by

settlement and/or mediation are not included in the pool of damage awards, and their absence

can skew the results. Second, we must take care to only consider cases that are

“similar”¯presumably involving a similar plaintiff with similar injuries. Third, courts

should take inflation and the reduced value of the dollar into account when considering these

verdicts. See S. Ry. Co., 56 Tenn. App. at 392-93, 407 S.W.2d at 211. Finally, courts should

be mindful that when looking at other jury verdicts, each case must be judged on its own

particular facts. See Ellis, 603 S.W.2d at 129 (quoting S. Ry. Co., 56 Tenn. App. at 392-93,

407 S.W.2d at 211); Stark, 47 Tenn. App. at 37, 334 S.W.2d at 958.

The Court of Appeals relied on Potter, 213 S.W.3d 264, as a similar case to support

its decision to suggest a remittitur; however, we do not find Potter to be similar. In Potter,

a forty-two-year-old woman’s vehicle slid off a wet roadway and struck a tree. She sustained

a spinal fracture when her seat-back collapsed, and she was paralyzed from the waist

down. The jury returned a $10 million verdict, finding the automobile manufacturer to be

70% at fault. The issue on appeal was liability, not damages. See Potter, 213 S.W.3d at 266-

67. There was no discussion in Potter as to the amount of economic or non-economic

damages, nor of the forty-two-year-old plaintiff’s life expectancy, which we presume was

much shorter than Billy’s life expectancy.

12

Effective October 1, 2011, the Tennessee Civil Justice Act of 2011, Tennessee Code Annotated

section 29-39-101 to -104 (2012), limits recovery of non-economic damages in a civil suit where the injury

or loss is catastrophic in nature¯including a spinal cord injury resulting in paraplegia or quadriplegia, see

id. § 29-39-102(c)¯to $1 million, id. § 29-39-102(c).

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Ford cites to other Tennessee cases involving lower jury verdicts. In Flax v.

DaimlerChrysler Corp., 272 S.W.3d 521, 525, 527 (Tenn. 2008), a jury awarded a $5 million

verdict for the wrongful death of an infant. But a wrongful death case involves different

elements of damages, and is therefore not comparable.13 Moreover, the amount of

compensatory damages was not challenged on appeal and there is no discussion of the

evidence which supported the award.

In Palanki ex rel. Palanki v. Vanderbilt University, 215 S.W.3d 380, 384 (Tenn. Ct.

App. 2006), a jury awarded a $16.4 million verdict in a case where a doctor negligently

removed 90% of a child’s bladder. The trial judge suggested a remittitur to $6.5 million,

which was accepted under protest and appealed. Id. The Court of Appeals applied a

preponderance of the evidence standard and affirmed the trial court’s suggestion of

remittitur. Id. at 386-87. Palanki did not involve a spinal cord injury. Although the child

was unable to urinate on his own and had to self-catheterize, his injury did not limit his

ability to engage in normal life activities, have friends, get married, have a normal sex life,

father children, receive an education, or earn a living. Id. at 389. The child’s economic

damages totaled approximately $417,000, id. at 387, whereas Billy’s economic damages

totaled $4.3 million. In addition, Billy’s injuries had a much greater impact on his daily

activities and prospects for the future. Palanki also involved the trial court’s suggestion of

remittitur, id. at 385, which presents a different standard of review for the appellate courts

than a case where the trial court affirmed the verdict as the thirteenth juror. See Tenn. Code

Ann. § 20-10-102(b).

In Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178 (Tenn. Ct. App. 2008),

a fifty-year-old woman who suffered second and third-degree burns and an inhalation injury

after her vehicle left the roadway and caught fire was awarded a $3 million verdict against

the vehicle manufacturer. The trial judge suggested remitting the verdict to $2 million based

on the facts that the plaintiff’s medical bills were only $41,456.86, yet she was awarded

$200,000 in medical expenses, and that the plaintiff had only sued for $2 million, yet was

awarded $3 million. Id. at 209. The Court of Appeals ruled that the reduced verdict was

supported by material evidence and affirmed the suggestion of remittitur. Id. at 211-12. The

court explained that “whether [it] would have awarded [the plaintiff] $1,958,543.14 in non-

13

Wrongful death in Tennessee is a statutorily-created cause of action that both preserves any action

belonging to the decedent and creates a separate action that belongs to the decedent’s next-of-kin to

compensate them for incidental damages suffered as a result of the decedent’s death. Tenn. Code Ann. §§

20-5-101 to -120 (2009 & Supp. 2012); Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 597-98

(Tenn. 1999). These damages include mental and physical suffering, loss of time and actual expenses

resulting from the injury, damages the survivors experienced resulting from the injury, the pecuniary value

of the decedent’s life, and loss of spousal and parental consortium. Tenn. Code Ann. § 20-5-113; Hunter v.

Ura, 163 S.W.3d 686, 705 (Tenn. 2005); Jordan, 984 S.W.2d at 600-01.

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economic damages is not the point. The assessment of these subjective damages was for the

jury to decide in the first instance and then for the trial judge.” Id. The court also noted that

the remitted verdict consisted of $1,958,543.14 in non-economic damages, which was not

unreasonable given that the plaintiff’s lung condition and decreased lung capacity interfered

with her ability to work and engage in regular daily activities and would continue for the rest

of her life expectancy of twenty-seven years. Id. A lung injury, while serious, is not similar

to a spinal cord injury resulting in paraplegia.

Ford also cited to cases from other jurisdictions in support of its argument that the

verdict in this case is excessive. Only two of these cases involve a spinal cord injury. In

Auer ex rel. Auer v. New York, 733 N.Y.S.2d 784, 785-86 (N.Y. App. Div. 2001), an

eighteen-year-old woman, paralyzed in a car wreck, was awarded $18,952,486 in

compensatory damages. The appellate court increased the award for pain and suffering to

$1.5 million for a total award of $20,456,486. Id. at 787-88. In Simon v. American Crescent

Elevator Co., 767 So. 2d 64, 67 (La. Ct. App. 2000), a man, rendered a paraplegic after he

was injured at work, was awarded $6.4 million for pain and suffering, $1 million for medical

and rehabilitation expenses, and $1.2 million of lost wages¯totaling $8.6 million in

compensatory damages. Additionally, his wife was awarded $900,000 and each of his five

children was awarded $250,000 for loss of consortium. Id. The trial court denied the

defendant’s motion for remittitur, id. at 68, and the appellate court affirmed the awards of

damages, id. at 75.

Our research reveals other cases that involved spinal cord injuries and resulted in

substantial verdicts. See, e.g., Gutierrez ex rel. Gutierrez v. United States, 323 F. App’x 493,

493-94 (9th Cir. 2009) (awarding $31 million in non-economic damages to a four-year-old

child who was rendered a quadriplegic as a result of a car wreck); Foradori v. Harris, 523

F.3d 477, 481, 484-85, 501 (5th Cir. 2008) (awarding a verdict of $20,881,884.41 to a

fifteen-year-old boy with a life expectancy of fifty-three years who became a quadriplegic

after sustaining injuries during an altercation); Okraynets v. Metro. Transp. Auth., 555 F.

Supp. 2d 420, 438, 454 (S.D.N.Y. 2008) (suggesting a reduction of a compensatory damages

award from $44,706,444 to $30,471,710 for a man who was paralyzed after an on-the-job

injury and had a life expectancy of thirty-nine years); Karlsson v. Ford Motor Co., 45 Cal.

Rptr. 3d 265, 268-69 (Ct. App. 2006) (awarding $30.45 million in compensatory damages

to a five-year-old boy who sustained a spinal cord injury during a car wreck and the parties

stipulated to reduce the total verdict to $30,341,636.50 based on findings of comparative

fault); Toe v. Cooper Tire & Rubber Co., No. 11-1588, 2013 WL 1749739, at *3 (Iowa Ct.

App. Apr. 24, 2013) (awarding $28.4 million in compensatory damages to a woman who was

paralyzed due to injuries sustained in a car wreck).

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After carefully reviewing the evidence in the light most favorable to Plaintiff,

assuming the truth of all that supports it, allowing all reasonable inferences and discarding

any inferences to the contrary, affording all due respect for the life-changing injuries Billy

suffered, and considering verdicts in similar cases, we conclude that this verdict was

supported by material evidence and is within the range of reasonableness. We recognize,

however, that the amount of this verdict rests at the high end of the range of reasonableness

but is not excessive. This amount reflects an award of $4.3 million in economic damages and

$39.5 million in non-economic damages for a young man who, at the age of six, sustained

catastrophic injuries and has a life expectancy of 55.79 years. The Court of Appeals erred

in its analysis of the material evidence and its reliance on Potter. We therefore reverse the

judgment of the Court of Appeals and reinstate the jury’s verdict.

Conclusion

The judgment of the Court of Appeals is reversed and the jury’s verdict of $43.8

million is reinstated, with Ford’s share of the verdict being $6,570,000. The case is

remanded to the Circuit Court for Shelby County for further proceedings as necessary. Costs

of this appeal are taxed to Ford Motor Company and its surety, execution for which may

issue if necessary.

_________________________________

SHARON G. LEE, JUSTICE

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