Governor Haslam has proposed that non-economic damages should be capped in injury (tort) cases. In Tennessee juries are trusted to sentence a man to death, but apparently the Governor does not trust a jury, in injury cases, to determine the proper amount of compensation for victims of someone else’s wrongdoing. Did you get that? Governor Haslam is protecting the wrongdoers at the expense of their victims. This law does not apply to corporations, only to people like you and me. Corporations, who can only be injured economically, get every penny a jury finds owed to them, even if it is a lot.
Whether you agree or disagree with that doesn’t really matter, as the Tennessee Legislature is controlled by Governor Haslam’s party and they can pass whatever legislation they want. Apparently they want to limit the amount of non-economic damages that can be received from someone injured by a wrongdoer.
So what does this mean? First, let’s talk about the wrongdoers.
If you intentionally injure someone in the process of committing a crime (that doesn’t constitute a felony) you don’t have to pay as much. The Governor is going to protect you from a runaway Tennessee Jury! The Governor is looking out for the rights of Mr. Wrongdoer and the victims’ damages are going to be capped. (Lets be fair, the money coming to you as compensation for your actual damages will be limited or capped, there is still a chance to get punitive damages, but these are rarely awarded and, if they are awarded, are taxable. So the only full damages you get in these case are the ones in which the government gets a part.). A sexual abuse victim has personal problems? "Suck it up" says the Governor. The wrongdoer causes your child or spouse to be brain injured so that they can never interact socially with their class or peers? Move on says the Governor, “I need to protect these wrongdoers.” So that is the first part of the reform Governor Haslam feels compelled to pass on behalf of the wrongdoers in the state of Tennessee.
The second part of this tragedy is that the Governor will allow some catastrophically injured Tennesseans to receive more than others. According to KnoxNews.com The administration late last week released changes to the bill that would create a special category for "catastrophic loss," which would raise the cap for non-economic damages in cases involving serious spinal cord injuries, severe burns or the death of a parent of minor children. Now these few categories excludes all brain injuries, apparently they are not catastrophic. Having to wear a urine drainage bag or diapers to catch your excrement and fluids as a twenty year old, chronic pain, etc… not catastrophic. Unable to ever have children because of someones wrongdoing? Not catastrophic. Does the Governor really believe he is all seeing and all knowing? Shouldn’t we let a jury, on a case by case basis, decide this after hearing all the facts? I guess if you don’t trust the people of the state of Tennessee to do the right thing…
Now I have to admit many of my clients are brain injured, and catastrophically so even if they are able to walk and talk. Their lives, as they knew them prior to the wreck, are over. In many cases their personalities have changed and they are not the same spouse or parent they used to be. They get divorced and estranged from their kids. They have to move in with their children and need to be monitored. They essentially died, but their life goes on.
This bill will impact many of my clients with brain injuries, and they will get less, and their families will get less. I find it arbitrary, and frankly an abuse of power, that the Governor has decided who can be classed as catastrophically injured in advance of knowing all the facts. I believe he should leave it up to a jury of 12 Tennesseans, hearing the facts of a case, to decide the issue.
Then their are the parents of special needs children. If you die it is not a catastrophic loss according to the Governor. Only if the children are minors can you get more, but still not the full amount of your damages. If you have adult special needs children? So sorry, you are out of luck. That is not catastrophic says the Governor. Take care of a parent that now needs to go into a nursing home? Not catastrophic says the Governor. It seems to me that if the legislature allowed catastrophic damages to any Tennessean that dies with a dependent it would be fairer (still limited in recovery, but at least not pitting one group against another and saying you don’t deserve as much as others with dependents.).
Finally, no one, not even the judge, can tell members of the jury this travesty is happening. After the jury renders a fair verdict, the judge is required to cut it down and make it unfair to the victim. Note that if the original verdict was against the evidence, and unfair to the defendant, the law already requires the verdict to be reduced. This new law only impacts victims.
A copy of the Governor’s shameful bill may be found here. You don’t think this is fair? Call your state representatives now (you can find your representatives here), but don’t expect them to change their minds, because you are just the sort of whacked out Tennessee citizen that might one day be on a jury… and the Governor doesn’t trust you.
The Governor’s proposed law, relevant sections in bold:
(a) In any personal injury or wrongful death action, the prevailing
plaintiff may be awarded:
(1) Compensation for economic damages suffered by the
injured plaintiff; and
(2) Compensation for any noneconomic damages suffered
by each injured plaintiff not to exceed seven hundred fifty
thousand dollars ($750,000).
(b) If multiple defendants are found liable under the principle of
comparative fault, the amount of all noneconomic damages, not to
exceed seven hundred fifty thousand dollars ($750,000) for each injured
plaintiff, shall be apportioned among the defendants based upon the
percentage of fault for each defendant, so long as the plaintiff’s
comparative fault is not equal to or greater than fifty percent (50%).
(c) All noneconomic damages awarded to each injured plaintiff,
including damages for pain and suffering, as well as any claims of a
spouse or children for loss of consortium or any derivative claim for
noneconomic damages, shall not exceed in the aggregate a total of seven
hundred fifty thousand dollars ($750,000).
(d) If an injury or loss is catastrophic in nature, as defined below,
the seven hundred fifty thousand dollar ($750,000) amount for
noneconomic damages, as set forth in subsections (a)(2) through (c) may
be increased to, but shall not exceed, one million two hundred fifty
thousand dollars ($1,250,000).
(e) "Catastrophic loss or injury" means one or more of the
(1) Spinal cord injury resulting in paraplegia, hemiplegia or
(2) Amputation of two hands, two feet or one of each;
(3) Second or third degree burns over forty percent (40%)
or more of the body as a whole or third degree bums up to forty
percent (40%) percent or more of the face; or
(4) Death of a parent who is survived by one or more
(f) The limitation on the amount of noneconomic damages
imposed by subsections (a)(2) through (e) shall not apply to actions
brought for damages or an injury resulting from an act or omission by a
(1) If the defendant committed an act or omission that
would constitute a felony under the laws of this state or under
federal law and that act or omission caused the damages or
(2) If the defendant was under the influence of alcohol or
under the influence of drugs other than lawfully prescribed drugs
administered in accordance with a prescription.