Amanda Elliott v. R. Michael Cobb

320 S.W.3d 246, 2010 Tenn. LEXIS 875
CourtTennessee Supreme Court
DecidedSeptember 23, 2010
DocketW2009-00961-SC-S09-CV
StatusPublished
Cited by63 cases

This text of 320 S.W.3d 246 (Amanda Elliott v. R. Michael Cobb) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amanda Elliott v. R. Michael Cobb, 320 S.W.3d 246, 2010 Tenn. LEXIS 875 (Tenn. 2010).

Opinions

OPINION

SHARON G. LEE, J.,

delivered the opinion of the Court,

in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK and GARY R. WADE, JJ„ joined.

The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for noneconomic damages. We hold that the language of Tennessee Code Annotated section 29-26-117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff’s pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.

I.

This appeal arises out of a medical malpractice action brought by Amanda J. Elliott against her surgeon, Dr. Michael R. Cobb. Before trial, Dr. Cobb filed a motion in limine requesting that the trial [248]*248court prohibit Ms. Elliott from disclosing to the jury “the amount [of] damages sought in this case or making any statements concerning the ultimate monetary worth of this action or stating any amount for any element of non-economic damages.” 1 The trial court granted Dr. Cobb’s motion and entered an order prohibiting Ms. Elliott from making “any reference or suggestion at any point in the trial to any specific sum for any element of non-economic damage or the ultimate monetary worth of the action.”

The trial court granted Ms. Elliott’s application for permission to file an interlocutory appeal on the issue of whether the motion in limine was correctly granted. The Court of Appeals denied her interlocutory appeal, and Ms. Elliott appealed to this Court. See Tenn. R.App. P. 9(c). We granted Ms. Elliott’s application in order to address the issue of whether Tennessee Code Annotated section 29-26-117, which provides in part that “[i]n a medical malpractice action the pleading filed by the plaintiff may state a demand for a specific sum, but such demand shall not be disclosed to the jury during a trial of the case,” prohibits a plaintiff from arguing or suggesting any monetary amounts for non-economic damages or the ultimate monetary worth of the action to the jury in a medical malpractice case.

II.

In Tennessee, counsel for civil litigants are allowed to:

(1) “read the counsel’s entire declaration, including the amount sued for, to the jury at the beginning of the lawsuit, and may refer to the declaration in argument or summation to the jury,” Tenn.Code Ann. § 20-9-302 (2009), and

(2) “argue the worth or monetary value of pain and suffering to the jury; provided, that the argument shall conform to the evidence or reasonable deduction from the evidence in such case.” Tenn.Code Ann. § 20-9-304 (2009).

In medical malpractice cases, the first of these general rules was modified with the enactment of the Medical Malpractice Review Board and Claims Act of 1975.2 The section of the Act at issue here provides: “In a medical malpractice action the pleading filed by the plaintiff may state a demand for a specific sum, but such demand shall not be disclosed to the jury during a trial of the case; notwithstanding the provisions of § 20-9-3023 to the contrary.” Tenn.Code Ann. § 29-26-117 (originally codified as § 23-3416).4

[249]*249Ms. Elliott and amicus curiae Tennessee Association for Justice argue that Tennessee Code Annotated section 20-9-304, which provides that “[i]n the trial of a civil suit for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury ...,” applies in any civil case, including a medical malpractice case. They submit that in a medical malpractice action, the plain and unambiguous language of section 29-26-117 prohibits either party from disclosing to the jury only the monetary amount of the demand in the plaintiffs complaint (also known as the ad damnum clause), and that the trial court’s expansive interpretation prohibiting the plaintiff from arguing or suggesting any monetary amounts for non-economic damages such as pain and suffering, loss of enjoyment of life, and permanent impairment or disfigurement, at trial was unwarranted.

Dr. Cobb and amicus curiae Tennessee Medical Association argue that the trial court’s interpretation should be upheld because allowing a plaintiff to argue the monetary value of non-economic damages would circumvent the intention of the legislature in enacting section 29-26-117. Secondly, Dr. Cobb argues that section 29-26-117 (applying to medical malpractice actions) is more specific than the general provisions of section 20-9-304 (applying to all civil lawsuits for personal injuries), and to the extent the sections conflict, the specific section 29-26-117 should control.

The issue before us involves what plaintiffs counsel may argue to the jury regarding damages. Trial courts have wide latitude with regard to their control of arguments of counsel. Crowe v. Provost, 52 Tenn.App. 397, 374 S.W.2d 645, 652 (1963); Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn.App. 394, 404 (1928). These decisions lie within the trial court’s discretion. Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341, 343 (1897); Davis v. Hall, 920 S.W.2d 213, 217 (Tenn.Ct.App.1995); J. Avery Bryan, Inc. v. Hubbard, 32 Tenn.App. 648, 225 S.W.2d 282, 287 (1949). Accordingly, we review the trial court’s decision regarding jury argument using the “abuse of discretion” standard. A trial court abuses its discretion by “(1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly [250]*250erroneous assessment of the evidence.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.2010).

During arguments to the jury, counsel may argue their analysis of the evidence that has been presented at trial. Skoretz v. Cowden, 707 S.W.2d 529, 533 (Tenn.Ct.App.1985); Rogers v. Murfreesboro Hous. Auth., 51 Tenn.App. 163, 365 S.W.2d 441, 446 (1962). However, statements and arguments of counsel are neither evidence nor a substitute for testimony. Metropolitan Gov’t of Nashville and Davidson County v. Shacklett, 554 S.W.2d 601, 605 (Tenn.1977); Hathaway v. Hathaway, 98 S.W.3d 675, 681 (Tenn.Ct.App.2002).

Although this Court has not previously addressed the issue presented here, the application of Tennessee Code Annotated section 29-26-117 has been addressed in dicta in a few cases. In Runnells v. Rogers, 596 S.W.2d 87

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Bluebook (online)
320 S.W.3d 246, 2010 Tenn. LEXIS 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amanda-elliott-v-r-michael-cobb-tenn-2010.