                                                                                              02/26/2020
                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                     September 4, 2019 Session Heard at Knoxville

      JODI MCCLAY v. AIRPORT MANAGEMENT SERVICES, LLC

                            Rule 23 Certified Question of Law
                          from the United States District Court
                           for the Middle District of Tennessee
                        No. 3-17-cv-00705 Eli Richardson, Judge
                        ___________________________________

                             No. M2019-00511-SC-R23-CV
                        ___________________________________


SHARON G. LEE, J., dissenting.

        The Tennessee Constitution guarantees that the “right of trial by jury shall remain
inviolate.”1 Tennessee Code Annotated section 29-39-102 (2012) (“the damages cap
statute”), which forbids awards for noneconomic damages that exceed $750,000 (or
$1,000,000 in catastrophic injury cases), is an unconstitutional invasion of the right to
trial by jury. Thus, it cannot stand.

       Section 29-39-102 improperly “amends” Article I, section 6 of the Tennessee
Constitution to diminish the right to trial by jury. Now section 6 might as well read: “the
right of trial by jury shall remain inviolate—as long as the jury, which has considered all
the evidence and followed the law, awards an injured party less than $750,000 in
noneconomic damages (or more than $1,000,000 when the injuries are catastrophic).”
Under this legislative “amendment” to the Constitution, a jury’s verdict for noneconomic
damages is meaningless when the verdict exceeds the damages cap. The cap on damages
is one-size-fits-all and fails to consider the extent of a party’s noneconomic losses. And
the injured party has to accept the reduced award of damages. Thus, the damages cap
statute unconstitutionally takes away a citizen’s right to trial by jury on noneconomic
damages. The jury’s role in a civil jury trial becomes a mere procedural formality.

       Noneconomic damages include compensation for physical and emotional pain;
suffering; inconvenience; disfigurement; mental anguish; emotional distress; loss of
enjoyment of normal activities, benefits, and pleasures of life; and loss of physical health,

       1 Tenn. Const. art. XI, § 6 (1796); Tenn. Const. art. I, § 6 (1834); Tenn. Const. art. I,
§ 6 (1870).
well-being, or bodily functions. Tenn. Code Ann. § 29-39-101(2) (2012). Noneconomic
damages are necessarily subjective and not as easily determined as economic damages,
which include medical bills and lost wages. Duran v. Hyundai Motor Am., Inc., 271
S.W.3d 178, 210–11 (Tenn. Ct. App. 2008) (citations omitted). That is why we have long
considered noneconomic damages to be especially within the province of the jury. Id.

        This Court has explained that “[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.” Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 425 (Tenn.
2013). “It is not our role to second-guess the jury and to substitute our judgment . . . .” Id.
It is the jury’s role to observe the witnesses and examine the evidence to make these
intangible findings—how much pain and suffering the injured person has endured, how
much the quality of that person’s life has been diminished, how great is the severity and
permanency of the injuries—that is, what the plaintiff has lost. Thus, the constitutional
right to a jury trial requires that the “community” decide the subjective element of
noneconomic damages. Johnson v. Nunis, 383 S.W.3d 122, 136 (Tenn. Ct. App. 2012)
(quoting Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-02026-COA-R3-CV,
2009 WL 482475, at *21 (Tenn. Ct. App. Mar. 10, 2011)). By enacting the statutory caps,
the legislature has impermissibly substituted its judgment for the jury’s assessment of
noneconomic damages, without regard for the value a jury might place on those
intangible losses.

       The majority’s ruling is inconsistent with this Court’s previous decisions. Just two
years ago in Borne v. Celadon Trucking Services, Inc., we reaffirmed that the jury’s role
is to decide both the “type and amount of any damages awarded to the plaintiff.” 532
S.W.3d 274, 308 (Tenn. 2017) (citing Meals, 417 S.W.3d at 419–20) (emphasis added).
Yet under the damages cap statute, the jury’s decision about the amount of damages is an
empty exercise because of the arbitrary limitation on the jury’s award of noneconomic
damages.

       In deference to a jury’s decision, this Court’s past rulings recognized that a jury’s
verdict should be affirmed when any material evidence supported the verdict because “if
it were otherwise, the parties would be deprived of their constitutional right to trial by
jury.” Crabtree Masonry Co., Inc. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)
(emphasis added) (citing City of Chattanooga v. Rogers, 299 S.W.2d 660, 661 (Tenn.
1956); D. M. Rose & Co. v. Snyder, 206 S.W.2d 897, 901 (Tenn. 1947); Dynamic Motel
Mgmt., Inc. v. Erwin, 528 S.W.2d 819, 822 (Tenn. Ct. App. 1975); City of Chattanooga
v. Ballew, 354 S.W.2d 806, 808–09 (Tenn. Ct. App. 1961)). The appellate court’s role is
“only to determine whether there was any substantial evidence to support the verdict; and
it must be governed by the rule, safeguarding the constitutional right of trial by jury,


                                             -2-
which requires us to take the strongest legitimate view of all the evidence to uphold the
verdict . . . .” D. M. Rose & Co., 206 S.W.2d at 901 (emphasis added) (citations omitted).

       In addition, a court has limited authority to add to (additur) or reduce (remittitur) a
jury’s award of damages. For example, an additur or remittitur cannot destroy a jury’s
verdict—that is, it cannot be “so large that the resulting judgment bears no meaningful
relationship to the original jury verdict.” Walton ex rel. Walton v. Tullahoma HMA, LLC,
572 S.W.3d 180, 188 (Tenn. Ct. App. 2018), perm. app. denied (Tenn. Oct. 10, 2018);
see also Johnson, 383 S.W.3d at 134 (quoting Long v. Mattingly, 797 S.W.2d 889, 896
(Tenn. Ct. App. 1990)) (“‘[A]djustments that ‘totally destroy’ the jury’s verdict are
impermissible.’”). Also, a court may not force a party to accept the increased or reduced
award. Additur and remittitur are constitutionally permissible only because a party does
not have to accept the modified award and can receive a new trial. Spence v. Allstate Ins.
Co., 883 S.W.2d 586, 594 (Tenn. 1994) (holding that the right to a jury trial under both
the Tennessee and United States Constitutions requires a defendant’s consent to an
additur because the trial court is “essentially disagreeing with the jury’s determination of
damages—which is a question of fact” required to be decided by the jury); McCall v.
Waer, 487 S.W.2d 308, 310 (Tenn. 1972) (stating that additur does not impinge on the
defendant’s constitutional right to a jury trial because a defendant can refuse additur and
have a new trial).

        In Borne, this Court held that a trial court must obtain the plaintiff’s consent
before reducing a jury’s award of damages “[t]o avoid contravention of the right to jury
trial clauses of the federal and state constitutions.” 532 S.W.3d at 309 (emphasis added)
(citations omitted). Likewise, the United States Supreme Court has held that mandatory
remittitur without the option of a new trial violates the plaintiff’s right to trial by jury
under the Seventh Amendment to the United States Constitution.2 Hetzel v. Prince
William Cnty., Va., 523 U.S. 208, 211 (1998) (citations omitted) (holding that an
appellate court’s order that required a trial court to enter judgment for less than the jury’s
verdict without the option of a new trial “cannot be squared with the Seventh
Amendment”). Thus, if courts cannot require a party to accept a reduction in a jury’s
award of damages, then it stands to reason that the legislature cannot by statutory
enactment preempt a jury’s award.

        By usurping the jury’s role in awarding noneconomic damages, the General
Assembly has, in effect, amended Article I, section 6 of the Tennessee Constitution to
dilute the right to trial by jury so it is no longer inviolate. But the General Assembly may
only propose a constitutional amendment; it is up to the voters to amend the Constitution

       2  The Seventh Amendment to the United States Constitution guarantees the right to
trial by jury: “In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved . . . .” U.S. Const. amend. VII.

                                            -3-
by ratification. Tenn. Const. art XI, § 3,3 Illustration Design Grp., Inc. v. McCanless, 454
S.W.2d 115, 118 (Tenn. 1970) (citing Cummings v. Beeler, 223 S.W.2d 913, 924 (Tenn.
1949); Derryberry v. State Bd. of Election Comm’rs, 266 S.W. 102, 105 (Tenn. 1924)).4
Under Article 11, section 3, if a majority of the members of the Senate and House of
Representatives approves a resolution to amend the Constitution, and if in the next
session of the General Assembly the proposed amendment is approved by two-thirds of
the members of both houses, then the voters at the next general election may ratify the
amendment. Tennessee voters, in deciding whether to amend the Constitution to cap
damages awards, could consider that the purpose of the amendment is to help
businesses.5 Voters could also consider whether the damages cap is a solution looking for

       3 Any amendment . . . to this Constitution may be proposed in the Senate or
       House of Representatives, and if the same shall be agreed to by a majority of
       all the members elected to each of the two houses, such proposed amendment
       . . . shall be entered on their journals with the yeas and nays thereon, and
       referred to the general assembly then next to be chosen; and shall be
       published six months previous to the time of making such choice; and if in the
       general assembly then next chosen . . . such proposed amendment . . . shall be
       agreed to by two-thirds of all the members elected to each house, then it shall
       be the duty of the general assembly to submit such proposed amendment . . .
       to the people at the next general election in which a Governor is to be chosen.
       And if the people shall approve and ratify such amendment . . . by a majority
       of all the citizens of the State voting for Governor, voting in their favor, such
       amendment . . . shall become a part of this Constitution. When any
       amendment . . . to the Constitution shall be proposed in pursuance of the
       foregoing provisions the same shall at each of said sessions be read three
       times on three several days in each house.

Tenn. Const. art. XI, § 3.
       4
         Perhaps to avoid constitutional problems with the damages cap statute, resolutions
were introduced in 2019 in the Senate and House of Representatives to amend the
Constitution to add: “The legislature has the power to enact laws limiting the amount of
noneconomic and punitive damages in civil actions, and any such limit does not diminish
the right of trial by jury.” H.J.R. 135, 111th Gen. Assemb., 1st Reg. Sess. (Tenn. 2019);
S.J.R. 176, 111th Gen. Assemb., 1st Reg. Sess. (Tenn. 2019).

       5 Statements made during the debate on noneconomic damages caps in the
Tennessee House of Representatives make it clear that the sole purpose of the caps was to
provide businesses with financial certainty in litigation. Representative Gerald McCormick
explained that now businesses “can run their numbers and say . . . if we really mess up or
one of our employees really makes a mistake, well, we’re gonna pay for it, but at least we
know how much we’re gonna have to pay, we don’t think it’ll bankrupt us. We can plan for
it.” Hearings on H.B. 2008 Before the H. Comm. on the Judiciary, 107th Gen. Assemb.
(Tenn. May 9, 2011). Former United States Senator Fred Thompson, testifying before the
Tennessee Senate, commented, “This is a civil justice act, and all I’ve heard about is
                                             -4-
a problem. In every year since 2000, the average combined amount of economic and
noneconomic damages awarded in tort cases has been far below the amount of the
statutory cap for noneconomic damages.6 Thus, in Tennessee, we do not have a problem
with “runaway juries.” The damages cap applies to only a few cases each year and affects
the most seriously injured individuals.

        Legal analysis aside, we should not ignore the real-life consequences of the
damages cap statute. For example, in 2002, six-year-old Billy Meals was involved in a
car wreck. Meals, 417 S.W.3d at 417–18. The collision seriously injured Billy and killed
his father and grandfather. Id. at 418. The force of the impact fractured Billy’s spine. He
also suffered a closed head injury and massive internal injuries. Id. Billy spent nearly two
months in the hospital undergoing many surgeries, including removal of part of his small
intestine, bowel resection, and a spinal fusion requiring the placement of rods, screws,
and wires in his back, followed by nearly a month in a rehabilitation facility. Id. He
returned to the hospital several times for treatment of infections and other complications.
Id. Billy became a paraplegic; he would never run or walk again. Id. at 424. He had to
have ongoing physical therapy. Id. His legs atrophied, and his toes became claw-like. Id.
Billy’s doctors said he would likely never father a child or have normal sexual
functioning. Id. His doctors expected that Billy would suffer from frequent infections and


business” and stated that “the desire for certainty [for businesses] . . . [is] going to do grave
injustice to our system.” Hearings on S.B. 1522 Before the S. Comm. on the Judiciary,
107th Gen. Assemb. (Tenn. Apr. 19, 2011). Representative Sherry Jones opposed the
statutory caps because “we’re about to do some really bad things to some people that may
not have much to start with because we’re trying to help businesses. . . . I just can’t vote for
something that I think is going to hurt . . . average people in the long run.” Hearings on
H.B. 2008 Before the H. Comm. on the Judiciary, 107th Gen. Assemb. (Tenn. May 9, 2011)
(emphasis added).

       6Average damages awards in Tennessee that include both economic and
noneconomic damages for fiscal years:

       2000-2001    $209,284         2006-2007    $182,745         2012-2013 $191,745
       2001-2002    $306,358         2007-2008    $242,803         2013-2014 $349,406
       2002-2003    $119,829         2008-2009    $296,519         2014-2015 $404,323
       2003-2004    $140,517         2009-2010    $400,359         2015-2016 $253,734
       2004-2005    $166,458         2010-2011    $168,691         2016-2017 $408,963
       2005-2006    $503,954         2011-2012    $628,985         2017-2018 $493,289 in
                                                                   healthcare liability cases
                                                                   and $98,350 in personal
                                                                   injury and wrongful death
                                                                   cases

Annual Report of the Tennessee Judiciary, Fiscal Years 2000-2001 through 2017-2018.

                                              -5-
medical problems for the rest of his life, estimated to be 55.79 years. Id. Billy’s mother
sued on his behalf. The jury awarded Billy a substantial verdict that included more than
$1,000,000 in noneconomic damages. Id. at 417. The Court of Appeals suggested that his
verdict be reduced by 70.55% or that a new trial be granted. Id. at 417. This Court
reversed the Court of Appeals and affirmed the jury’s award, finding the Court of
Appeals had gone too far in its suggested reduction and that the verdict was reasonable
and properly supported by the evidence. Id. at 428.

       Had Billy’s injuries occurred after October 1, 2011, when the damages cap statute
went into effect, he would have received only $1,000,000 in noneconomic damages—a
97.5% reduction in the noneconomic damages the jury had awarded and this Court found
to be reasonable. Had the verdict been reduced by 97.5%, the remittitur would have
destroyed the jury’s verdict and would have been impermissible. See Myers v. Myers, No.
E2004-02135-COA-R3-CV, 2005 WL 1521952, at *5 (Tenn. Ct. App. June 27, 2005)
(concluding that a 70% remittitur destroyed the jury’s verdict); Guess v. Maury, 726
S.W.2d 906, 913 (Tenn. Ct. App. 1987) (holding that a 75% remittitur destroyed the
jury’s verdict), overruled on other grounds by Elliott v. Cobb, 320 S.W.3d 246 (Tenn.
2010).

       Consider whether $1,000,000 (or realistically, a net recovery of less than
two-thirds of the $1,000,000 after payment of lawyer fees and litigation expenses) would
have been adequate and fair compensation for Billy’s physical and emotional pain;
suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional
distress; loss of enjoyment of normal activities, benefits, and pleasures of life; and loss of
physical health, well-being or bodily functions. Not at all.

       We are just beginning to see the unfortunate effects the damages cap statute is
having on persons injured after October 1, 2011. Courts are being forced to disregard the
damages that juries—after considering the evidence presented at trial and being duly
instructed on the law—have awarded to injured parties only because the injuries occurred
after October 1, 2011. See, e.g., Wortham v. Kroger Ltd. P’ship I, No. CT-003147-17,
2019 WL 1958147, at *1 (Tenn. Cir. Ct. Feb. 11, 2019) (Trial Order) (reducing
noneconomic damages to injured plaintiff by 71%); Patterson v. STHS Heart, LLC, No.
15C1058, 2019 WL 1291942, at *1 (Tenn. Cir. Ct. Jan. 28, 2019) (Trial Order) (reducing
noneconomic damages awarded by the jury by 92% in a wrongful death case); Yebuah v.
Ctr. for Urological Treatment, PLC, No. 14C4972, 2018 WL 1901975, at *2 (Tenn. Cir.
Ct. Mar. 19, 2018) (Trial Order) (reducing noneconomic damages by 83% in a case in
which a medical provider left a foreign object in a patient’s body for eight years after
surgery); Reid v. Hunt, No. CT-005475-11, 2016 WL 8650047, at *1 (Tenn. Cir. Ct. Nov.
28, 2016) (Trial Order) (reducing noneconomic damages by 59% where a plaintiff lost
both legs after being hit by a drunk driver).


                                            -6-
        The majority tries to justify its holding with two basic arguments, neither of which
holds water. First, the majority points to the General Assembly’s authority to alter
common law causes of action and available remedies, citing Lavin v. Jordon, 16 S.W.3d
362 (Tenn. 2000). But Lavin does not apply. In Lavin, the Supreme Court considered the
meaning of Tennessee Code Annotated section 37-10-103(a), not its constitutionality.
Section 37-10-103(a) was a statutory remedy designed “to alleviate the harshness of the
common law rule” that parents could not be held liable for their children’s intentional
torts. 16 S.W.3d at 366. The statute allowed lawsuits against negligent parents whose
children intentionally caused personal injuries or property damage. Id. The statute in
Lavin, therefore, gave tort victims something that had not existed at common law, so the
right to trial by jury that accompanies a common law action was never implicated. The
damages cap statute neither creates nor abolishes a cause of action, and it does not create
a statutory remedy that did not exist at common law. Instead, the statute impermissibly
takes away the right to a jury trial constitutionally vested in causes of action, such as
negligence, that existed under common law.

        The majority suggests that the General Assembly simply exercised its power to
alter the common law by enacting the statutory cap. But the damages cap statute did not
change the common law negligence cause of action. As long as the negligence cause of
action is available, parties injured because of the carelessness of others have the
constitutional right to have a jury decide the amount of fair and adequate compensation.
The right to a jury trial is a constitutional right that cannot be eliminated by the enactment
of a statute.

       As the United States Court of Appeals for the Sixth Circuit noted when it held that
the cap on punitive damages in Tennessee Code Annotated section 29-39-104 (2012 &
Supp. 2019) violated the Tennessee Constitution,7 the argument that the General
Assembly has the authority to alter the common law “merely begs the question” because
that authority has constitutional limits. Lindenberg v. Jackson Nat’l Life Ins. Co., 912
F.3d 348, 367 (6th Cir. 2018) (citing Lavin, 16 S.W.3d at 368). For statutory damages
caps, the authority of the General Assembly is constrained by “the constitutional right to
submit factual questions for determination by a jury.” Id. at 368. The Lindenberg court
also rejected the applicability of Lavin because the only issue before the Lavin court was
statutory construction, not the constitutionality of caps on damages. Id.

       The majority also notes that the General Assembly has the authority to eliminate
causes of action that existed under common law, pointing out statutes abolishing the torts
of alienation of affection, seduction, and criminal conversation. That’s true. Once a
common law tort is abolished, the right to a jury trial for that cause of action ends. But
here, the injured party’s claim was based on negligence, and the legislature has not
        7
         The United States Supreme Court denied certiorari, allowing the Sixth Circuit’s ruling to stand.
Jackson Nat’l Life Ins. Co. v. Lindenberg, ___ U.S. ___, 2019 WL 6689660 (Dec. 9, 2019).
                                                  -7-
abolished negligence as a cause of action. Thus, the right to trial by jury in a negligence
cause of action remains (or should remain) inviolate.

        Other jurisdictions hold that the legislature’s authority to modify the common law
does not justify taking away the constitutional right to trial by jury. See Atlanta
Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218, 223 (Ga. 2010) (stating that
although “the Legislature has authority to modify or abrogate the common law,” it is not
entitled “to abrogate constitutional rights that may inhere in common law causes of
action”); Hilburn v. Enerpipe Ltd., 442 P.3d 509, 516 (Kan. 2019) (quoting Miller v.
Johnson, 289 P.3d 1098, 1140 (Kan. 2012) (Beier, J., concurring in part and dissenting in
part)) (correcting course and overturning its prior ruling that statutory damage caps were
constitutional, stating that although the legislature had the power to modify common law,
when the people elevated the common law right to a jury trial to “enumerated
constitutional status” by ratifying the state constitution, they put that right “beyond
everyday legislative meddling”); Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 643
(Mo. 2012) (observing that if constitutional protections existed only until the legislature
took them away, their value would be purely theoretical and “would not be rights at all
but merely privileges that could be withdrawn”); Sofie v. Fibreboard Corp., 771 P.2d
711, 720 (Wash. 1989) (“Because of the constitutional nature of the right to jury trial, . . .
it simply cannot be removed by legislative action. . . . [The right to jury trial] remains as
long as the cause of action does. Otherwise, [the constitutional jury trial guarantee]
means nothing.”); see also Dimick v. Schiedt, 293 U.S. 474, 487 (1935) (“To effectuate
any change in [the constitutional right to trial by jury] is not to deal with the common
law, qua common law, but to alter the Constitution. The distinction is
fundamental . . . .”).

        The majority’s second justification for upholding the statutory caps is that the jury
still determines the amount of any noneconomic damages sustained by an injured party,
and it is only after the jury returns its verdict that the trial court applies the cap and cuts
the award. This is smoke and mirrors. A jury’s award of damages that exceeds the
damages cap is ignored; the jury might as well have not deliberated and made its award.

        The Supreme Courts in Kansas, Alabama, Missouri, Washington, and Georgia,
whose constitutions contain the same “inviolate” right to a jury trial provision as in the
Tennessee Constitution, have rejected the majority’s analysis and held that the cap on
damages is unconstitutional. The Kansas Supreme Court in Hilburn observed that even if
a damages cap is found to be “technically or theoretically applied as a matter of law,” it
intrudes on the amount of the award that the jury has found as an issue of fact. 442 P.3d
at 524. This intrusion “substitutes the Legislature’s nonspecific judgment for the jury’s
specific judgment. The people deprived the Legislature of that power when they made the
right to a jury trial inviolate.” Id.


                                             -8-
        The Alabama Supreme Court also soundly rejected the same hyper-technical
argument in Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156, 163 (Ala. 1991), noting
that it was irrelevant that the right to empanel a jury still existed—the relevant inquiry
was whether the jury’s function was impaired. The Moore court determined that the caps
relegated the jury’s verdict to “less than an advisory status,” which did not satisfy the
constitutional mandate. Id. at 164.

       The Missouri Supreme Court rejected the justification that the cap on damages
was constitutional when the jury was nominally allowed to determine damages before the
judge applied the cap because “a statutory limit on the state constitutional right to trial by
jury amounts to an impermissible legislative alteration of the Constitution.” Watts, 376
S.W.3d at 642 (citing State ex rel. Diehl v. O’Malley, 95 S.W.3d 82, 92 (Mo. 2003); Mo.
Alliance for Retired Ams. v. Dep’t of Labor and Indust. Relations, 277 S.W.3d 670, 682
(Mo. 2009)).

       The Washington Supreme Court also rejected this distinction in Sofie when the
defendants argued that the cap on damages only affected the judgment ultimately entered
by the court but did not affect the jury’s finding of fact. 771 P.2d at 721. In other words,
the defendants argued that the jury trial right was not violated if the jury was allowed to
make a factual finding on damages that would be ignored when the court issued the
judgment. Id. The court observed that “[s]uch an argument pays lip service to the form of
the jury but robs the institution of its function” and that it was impermissible to bypass a
constitutional right “by allowing it to exist in form but letting it have no effect in
function.” Id. at 721, 724.

        Similarly, the Georgia Supreme Court cited longstanding United States Supreme
Court precedent in stating that “‘[t]he right to a jury trial includes the right to have a jury
determine the amount of . . . damages, if any, awarded to the [plaintiff].’” Nestlehutt, 691
S.E.2d at 222 (second emphasis added) (quoting Feltner v. Columbia Pictures Television,
Inc., 523 U.S. 340, 353 (1998)). The Nestlehutt court found that the statutory cap on
damages violated the constitutional right to a jury trial because the cap nullified the jury’s
findings of fact on damages and undermined the jury’s basic function by requiring the
trial court to reduce the jury’s award to comply with the statutory cap. Id. at 223.

        Finally, the United States Court of Appeals for the Sixth Circuit in Lindenberg
rejected the argument that the damages cap on punitive damages did “not invade the
province of the jury” because the jury made the factual finding when it assessed the
plaintiff’s damages, and the trial court then reduced the verdict to comply with the law.
912 F.3d at 369. The Lindenberg court characterized this argument as “the parties’
attempt to recast the General Assembly’s invasion of the province of the jury as akin to a
regulation of remittitur,” which this Court has repeatedly rejected. Id. The Lindenberg
court emphasized that “allowing a trial judge, after considering the attendant
                                             -9-
circumstances and proof in a case, to offer a plaintiff the choice to avoid a new trial is a
far cry from legislatively reversing a jury’s assessment of the amount of damages . . . .”
Id. at 369–70.

        It goes without saying that this Court does not make policy—that is for the
legislature. Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987) (quoting Cavender v.
Hewitt, 239 S.W. 767, 768 (1921)); Estrin v. Moss, 430 S.W.2d 345, 350 (Tenn. 1968)
(citations omitted). Tennessee Code Annotated section 29-39-102 is unconstitutional
without regard to the General Assembly’s purpose in enacting it or the real-life fallout
from it. The majority’s decision that Tennessee Code Annotated section 29-39-102 is
constitutional 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. I will not join in sending this message.

       I dissent.



                                              _____________________________________
                                              SHARON G. LEE, JUSTICE




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