                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                        July 20, 2011 Session

     AUNDREY MEALS, as Natural Parent, Guardian, and Next Friend of
           WILLIAM MEALS v. FORD MOTOR COMPANY

                  Direct Appeal from the Circuit Court for Shelby County
                       No. CT-000254-03     Donna M. Fields, Judge


                    No. W2010-01493-COA-R3-CV - Filed April 13, 2012



                                         PARTIAL DISSENT
                             _____________________________

I concur with most of the majority’s thorough opinion. I must dissent from the majority’s
decision to suggest a remittitur of the jury verdict, from a total $43.8 million to $12.9 million.
Respectfully, nothing in the majority opinion states a basis under the law for such a
remittitur. In the absence of a basis under the law for remittitur, I believe that the majority’s
decision amounts to a policy determination, limiting the size verdict a jury may award. It
may be that our Legislature can appropriately make such a policy decision, but the courts are
not authorized to do so.

The Plaintiff’s economic damages are approximately $4.3 million, an amount that is
undisputed on appeal. The jury’s general verdict, then, includes a large award of
approximately $39 million for non-economic damages.1 The trial judge, having heard and
considered all of the evidence at trial, approved the verdict. We must look, then, at whether
this Court may suggest a remittitur of a verdict that was found by the trial judge, in her
capacity as thirteenth juror, to be within the range of reasonableness and supported by the
credible evidence at trial.

A trial judge “may suggest adjustments [additur or remittitur] when the jury verdict is within
the range of reasonableness of the credible proof as an alternative to the practice of granting
a new trial if [the trial judge is] of the opinion that the jury verdict . . . [is] excessive . . . .”
Coffee v. Fayette Tubular Products, 929 S.W.2d 326, 330 (Tenn. 1996). While an appellate


1
 As noted by the majority, Ford is liable for only 15% of the total award under the jury’s allocation of fault;
however, our analysis must necessarily focus on the total damage award.
court is also authorized to suggest a remittitur, its authority to do so “is naturally more
circumscribed than that possessed by the trial courts.” Id. at 331. The Supreme Court in
Coffey clarified the standard for the appellate court where the trial judge has approved the
jury verdict:

       If . . . the jury verdict is approved by the trial court in its role as “thirteenth
       juror,” . . . the standard of review to be utilized is more deferential: in that
       case, the appellate court must affirm if there is any material evidence to
       support the verdict. This deferential standard is consonant with the principle,
       long recognized in Tennessee law, that the jury bears primary responsibility for
       awarding damages in a personal injury case, followed closely by the trial court
       in its role as thirteenth juror.

Id. at 331 n.2 (emphasis added) (citations omitted). See also Pomeroy v. I.C.R.R., No.
W2004-01238-COA-R3-CV, 2005 WL 1217590, at *19 (Tenn. Ct. App. May 19, 2005).
Therefore, in a case where the trial court has approved the verdict, we have no authority to
suggest remittitur absent a finding by this Court that there is no material evidence in the
record to support the award of non-economic damages.

Tennessee caselaw emphasizes how reluctant an appellate court should be to suggest a
remittitur in the first instance, where the trial court has approved the jury’s verdict. See Riley
v. Orr, No. M2009-01215-COA-R3-CV, 2010 WL 2350475, at *9 (Tenn. Ct. Ap. June 11,
2010) (the appellate court must accord “great respect” to the trial court’s approval of the
damages awarded by the jury). This is especially true where the jury award at issue is for
non-economic damages, as for pain and suffering and loss of enjoyment of life:

       [T]he determination on such non-pecuniary losses as pain and suffering
       damages involves a subjective element not present in the determination of
       ordinary facts. The jury trial guarantee requires that the subjective element
       involved be that of the community and not of judges . . . . When appellate
       courts are called upon to review a jury’s award of non-economic damages, it
       is not their prerogative to determine whether the award strikes them as too high
       or too low.

Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-02026-COA-R3-CV, 2009 WL
482475, at *21 (Tenn. Ct. App. Feb. 24, 2009) (perm. app. den. March 10, 2011) (citations
omitted).

In sum, the standard for the appellate court to suggest remittitur as to a jury’s award of non-
pecuniary damages that has been approved by the trial judge is extraordinarily high. After

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giving due deference to the jury’s subjective judgment as to pain and suffering or loss of
enjoyment of life, and after giving great respect to the trial court’s approval of the jury’s
award, the appellate court may suggest remittitur in the first instance only if we find that the
award of non-economic damages exceeds the uppermost boundary of the range of
reasonableness under the evidence presented, i.e., “the amount beyond which there is no
evidence, upon any reasonable view of the case, to support the verdict.” Ellis v. White
Freightliner, 603 S.W.2d 125, 126 (Tenn. 1980). If there is any material evidence to support
the verdict, the appellate court “must affirm the judgment.” Overstreet v. Shoney’s, Inc., 4
S.W.3d 694, 718 (Tenn. Ct. App. 1999).

While the majority opinion recites the applicable standard, respectfully, its analysis gives
little indication that the standard was followed. There is no finding of the upper boundary
of the range of reasonableness based on the evidence in this case. There is no finding that
there is no material evidence in the record to support the jury’s award as approved by the trial
court. Indeed, in the analysis in the majority opinion, there is no discussion at all of the
evidence in the record on the Plaintiff’s non-economic damages. The majority does not
review the evidence on Billy’s pain and suffering, loss of enjoyment of life and the like, and
offers no explanation of how and why that evidence does not support the award.

Respectfully, the reasons given by the majority for the suggestion of remittitur do not justify
it. The majority acknowledges that the jury’s assessment of a modest 15% fault against Ford,
with an equal assessment of fault against Billy’s deceased father, indicates that the jury had
no desire to punish Ford. It finds, however, that the size of the award combined with Ford’s
15% fault “demonstrates sympathy and a desire to provide Billy full compensation for his
economic damages in addition to his pain and suffering.” It is always tempting after a jury
trial to speculate about how the jury chose the amount of its award for non-pecuniary
damages. An appellate court, however, must refrain from such speculation and instead base
its decision on remittitur on an analysis of the evidence.

This Court has declined in the past to adopt a defendant’s argument that the appellate court
should infer the existence of passion, prejudice, or caprice solely from the size of a verdict.
See Riley, 2010 WL 2350475, at *7. Where the Court has suggested a remittitur as to a
jury’s award of compensatory damages, either pecuniary or non-pecuniary damages, this was
done after explicit analysis of the evidence and a finding as to the upper limit of the range
of reasonableness based on that evidence. Id. at *7 (remittitur suggested as to awards for
future medical expenses and emotional injury).

The majority asserts that the jury’s award in this case “is excessively high when compared
to similar cases.” However, in support of this statement, it cites only one case, Potter v. Fort
Motor Co., 213 S.W.3d 264 (Tenn. Ct. App. 2006). In Potter, the plaintiff was rendered

                                              -3-
paralyzed after an automobile collision that caused her to “submarine” beneath her seat belt;
the jury awarded compensatory damages in the amount of $10 million. Respectfully, the
Potter case tells us nothing that is helpful to our analysis in this case. In Potter, the plaintiff
was a 42-year-old woman, as opposed to a six-year-old child. The opinion does not tell us
the amount of the plaintiff’s economic damages, nor does it describe the evidence on her
non-economic damages. Most important, remittitur was not even an issue, so the Potter
Court did not consider whether the $10 million award was anywhere within the range of
reasonableness considering the evidence presented in that case.

Research of Tennessee caselaw reveals numerous personal injury cases in which the
appellate court has declined to suggest a remittitur, even though the jury’s award of non-
economic damages was many multiples of the proven economic damages. See, e.g.,
Pomeroy, 2005 WL 1217590, at *19 (economic damages of $41K, jury award of $500K);
Riley, 2010 WL 2350475, at *4, 7 (about $6K in economic damages, jury awarded non-
economic damages totaling $158K); Vice v. Elmcroft of Hendersonville, No. M2010-01148-
COA-R3-CV, 2011 WL 3672048, at *16 (Tenn. Ct. App. Aug. 22, 2011) (economic damages
of $3K, jury award of $250K); Smartt, 2009 WL 482475, at *24-25 (economic damages
totaling about $101K, appellate court declined to grant remittitur as to $3.9 million in non-
economic damages). Two of these cases with a high proportion of non-economic damages
even involved plaintiffs who were elderly. See Vice, Smartt.

As shown by the above cases, the proportion of non-economic damages to economic
damages awarded in this case is not inconsistent with prior Tennessee caselaw. In this case,
awarding a substantial proportion of non-economic damages results in a very large total
verdict. This is not surprising, given the very substantial $4.3 million in economic damages.

A substantial proportion of non-economic damages in this case is not inconsistent with
common sense. Upon learning of a catastrophic injury to a very young child, what
immediately springs to mind is not necessarily the amount of his medical expenses or his
economic loss. Rather, it is the fact that the child must live his entire lifetime with the effects
of the injury, and the cumulation of everyday physical experiences that he will never have.2


2
 In comparison, in Palanki, an infant underwent surgery, and the surgeon negligently removed 90% of his
bladder. Palanki, 215 S.W.3d at 384. For the rest of his life, the plaintiff would have to use a catheter to
void, but was otherwise able to engage in normal activities such as sports, getting married, having children,
and earning a living. Id. at 384, 389. With economic damages of $417,000, the trial court suggested
remittitur of the jury’s verdict to $6.5 million. Id. at 387-88. This was found to be in the range of
reasonableness on appeal. Id. at 389. While Palanki involved the appellate court’s review of a trial court’s
suggestion of remittitur, rather than a suggestion of remittitur by the appellate court, the appellate court’s
findings as to the range of reasonableness for injuries much less serious than those of Billy Meals makes it
of some use for comparison.

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Thus, the reasons given by the majority for the suggested remittitur are not legal justification
for it.

A brief overview of non-pecuniary damages and the material evidence in this case would be
helpful at this juncture. In Overstreet v. Shoney’s, Inc., 4 S.W.3d 694 (Tenn. Ct. App.
1999), the Court described the different types of non-economic damages:

        Pain and suffering encompasses the physical and mental discomfort caused by
        an injury. It includes the “wide array of mental and emotional responses” that
        accompany the pain, characterized as suffering, such as anguish, distress, fear,
        humiliation, grief, shame, or worry . . . .

        A permanent injury differs from pain and suffering in that it is an injury from
        which the plaintiff cannot completely recover. It prevents a person from living
        his . . . life in comfort by adding inconvenience or loss of physical vigor.
        Disfigurement is a specific type of permanent injury that impairs a plaintiff’s
        beauty, symmetry, or appearance. Permanent injury may relate to earning
        capacity, pain, impairment of physical function or loss of the use of a body
        part, as to a mental or psychological impairment.

        Damages for loss of enjoyment of life compensate the injured person for the
        limitations placed on his . . . ability to enjoy the pleasures of life. This type of
        damage relates to daily life activities that are common to most people . . . .
        The policy underlying the award of loss of enjoyment damages is of making
        the victim whole in the only way a court can – with an equivalent in money for
        each loss suffered.

Id. at 715-16 (citations omitted). The Overstreet Court emphasized that “each of these types
of damages are separate and distinct losses to the victim,” and pointed out that Tennessee’s
pattern jury instructions instruct juries to that effect.3 Id. at 715.

The record in this case shows that the jury heard evidence of the full panoply of non-
economic damages stemming from the catastrophic injuries sustained by six-year-old Billy
Meals – past and future pain and suffering, disfigurement, and past and future loss of
enjoyment of life. The evidence included the testimony of Billy, his mother, and an array of
doctors and experts.


3
 The Overstreet Court, in a 1999 decision, declined to suggest a remittitur as to the jury verdict in excess of
$2 million in compensatory damages. The injury to the adult plaintiff was the loss of one eye. Overstreet,
4 S.W.3d at 700, 718-19.

                                                     -5-
Prior to the crash, Billy was a normal six-year-old who liked to play baseball. In the
accident, the seat belt on Billy’s lap went into his abdomen, tearing the abdominal muscle,
crushing organs in his abdomen and causing his vertebrae to splay apart around the lap belt.
The child endured repeated surgeries and procedures to repair his abdomen, remove part of
his intestines, resect his bowel, perform a colostomy, place metal rods and pins in his back,
remove necrotic tissue inside and out, and drain, debride, and treat multiple wounds,
abscesses, and infections in numerous locations.

Billy was rendered a paraplegic, and cannot stand or walk. He lost function of his bowel and
bladder, and lost any sensation in his lower extremities. His growth is stunted by the rods
in his back, his lower limbs are withered and deformed, his feet are misshapen, and he has
stiffness and contractures that decrease his range of motion. He is susceptible to skin
breakdown and pressure sores from being in a wheelchair. To urinate, Billy must be
catheterized three times a day every day. To defecate, a suppository must be inserted into his
rectum, left there for a period of time, and then someone must stimulate his rectum by
inserting a finger and moving it around. This must be done for Billy every day for the rest
of his life. At the time of trial, Billy was fourteen years old and trying to learn how to take
care of his own defecation needs, but was not yet able to do so. Billy cannot tell if he has had
a bladder or bowel accident until he smells it or feels the substance with his hand. The
burden and embarrassment of his condition has caused Billy to be angry, to withdraw and to
be reluctant to attend school or participate in activities. Billy remembered prior to the
accident being chosen to play on an AllStar baseball team, and he missed being able to do
such things. He will likely be impotent. All of his conditions are permanent. Thus, there
is substantial evidence in the record as to each of the types of non-economic damages
described in Overstreet.

As demonstrated in the analysis in Overstreet, to determine if remittitur is warranted, the
Court must do more than simply look at the size of the award. It must review the evidence
in the record as to each of the distinct types of non-economic damages, because “each of
these types of damages are separate and distinct losses to the victim.” Overstreet, 4 S.W.3d
at 700-01, 715-19. The cumulative total of the evidence on all of the types of non-pecuniary
damages must then be compared to the jury’s total award, to determine if there is any
material evidence to support the jury’s general verdict. This was not done by the majority
in this case.

The amount of the majority’s suggested remittitur is also cause for concern. In explaining
the amount of the suggested remittitur, the majority takes the amount of the Plaintiff’s
undisputed economic damages and neatly doubles it to fix the amount of the non-economic
damages, resulting in a total award of “three times” the Plaintiff’s economic damages. While

                                              -6-
this calculation coincides with the traditional lawyer’s rule-of-thumb, the majority does not
relate it to any of the evidence presented at trial. If an appellate court finds that the jury’s
verdict is so high that there is no material evidence to support it, the appellate court has
authority to suggest a remittitur only down to a level that is not patently excessive, in other
words, “correct the judgment rendered to the extent of the excess.” Ellis, 603 S.W.2d at 126.
The amount of the majority’s remittitur suggests that, instead of determining the uppermost
boundary of the range of reasonableness supported by any material evidence, the majority
determined “what amount the members of the court would have awarded had they been on
the jury . . . .” Id. at 129.

Our legislature has on occasion determined, as a policy matter, that jury awards for specified
types of injuries may not exceed a certain amount. See, e.g., Tenn. Code Ann. § 29-39-102
(limiting compensatory damage awards for non-economic damages in certain cases). This
Court is not authorized to make such policy decisions.4

Undoubtedly, the majority read and carefully considered all of the evidence on the Plaintiff’s
non-economic damages. It may be that a reasonable remittitur could be justified based on
analysis of the evidence. The majority opinion, however, contains no discussion of this
evidence whatsoever. Unless and until the majority does so and makes a specific finding that
“there is no evidence, upon any reasonable view of the case, to support the verdict,” it has
stated no legal basis for suggesting a remittitur in this case. Ellis, 603 S.W.2d at 126. In this
posture, I believe that the majority’s decision amounts to a policy decision limiting the size
of jury verdicts, a determination that is not appropriate for the courts.

On this basis, I must respectfully dissent from the majority’s suggestion of remittitur. In all
other respects, I concur.




                                                   _______________________________________
                                                   HOLLY M. KIRBY, JUDGE




4
 Our Supreme Court has cautioned that, for an appellate court considering remittitur, “[t]he use of the
‘conscience of the Court’ . . . is not appropriate.” Smith v. Shelton, 569 S.W.2d 421, 427 (Tenn. 1978).
Instead, the appellate court must determine the “upper . . . limits of th[e] range [of reasonableness] . . . by
a reasoned examination of the credible proof of damages.” Id. See also Ellis, 603 S.W.2d at 129.

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