                  IN THE SUPREME COURT OF TENNESSEE
                              AT JACKSON
                                   April 6, 2010 Session

                   AMANDA ELLIOTT v. R. MICHAEL COBB

          Interlocutory Appeal from the Circuit Court for Madison County
                      No. C-05-436    Donald H. Allen, Judge


               No. W2009-00961-SC-S09-CV - Filed September 23, 2010


W ILLIAM C. K OCH, J R., J., concurring.

       I concur with the Court’s conclusion that Tenn. Code Ann. § 20-9-304 (2009) permits
lawyers to “argue the worth or monetary value of pain and suffering to the jury” in medical
malpractice cases. I have prepared this separate opinion to call attention to two related
matters.

       First, Tenn. Code Ann. § 20-9-304 requires lawyers’ arguments regarding the worth
or value of pain and suffering to “conform to the evidence or reasonable deduction[s] from
the evidence.” Thus, without evidence of pain and suffering, an argument regarding the
worth or monetary value of pain and suffering should not be permitted. When an argument
regarding the worth or monetary value of pain and suffering is made, the trial court should
instruct the jury, in accordance with T.P.I. – Civil 15.03 (2010), that “statements or
arguments made by the attorneys during the trial are not evidence.”

       Second, our interpretation of Tenn. Code Ann. § 20-9-304 in this case did not require
us to review or to approve any particular argument regarding the worth or monetary value
of pain and suffering. Accordingly, this opinion should not be construed as necessarily
approving “per diem” arguments that are frequently used by lawyers to guide jurors in
assessing noneconomic damages. See generally Joseph H. King, Jr., Counting Angels and
Weighing Anchors: Per Diem Arguments for Noneconomic Personal Injury Tort Damages,
71 Tenn. L. Rev. 1, 49 (2004). Issues relating to the propriety of particular arguments must
await the appropriate cases.




                                                 _______________________________
                                                 WILLIAM C. KOCH, JR., JUSTICE
