Kelly on Malpractice

In Duran v. Hyundai Motor America, Inc., 2008 WL 425942 (Tenn.Ct.App.), the plaintiff driver was injured in a single vehicle accident in which she was seriously injured. She filed suit against the manufacturer of the automobile in the Circuit Court for Dickson County, alleging that the automobile’s exhaust system was dangerously defective and seeking both compensatory and punitive damages. Ms. Cook presented evidence to support her claim that both her unconsciousness and the fire in the engine compartment of the Hyundai Excel had been caused by a defective reed valve subassembly that is designed to bring fresh air into the exhaust system. She also presented evidence intended to prove (1) that the reed valve subassembly was defectively designed and was in a defective and unreasonably dangerous condition on May 27, 1992; (2) that the Hyundai defendants, through their own internal testing, knew as early as April 1990 that fires were occurring in the engine compartment of 1986-1989 Hyundai Excels and that these fires were caused by defects in the design and the materials in the reed valve subassembly; (3) that the Hyundai defendants decided to issue recall notices only after being pressured by the National Highway Traffic Safety Administration (”NHTSA”); and (4) that the Hyundai defendants did not mail a recall notice to Ms. Huizar until less than two weeks before Ms. Cook was injured on May 27, 1992. In addition, Ms. Cook presented expert medical testimony that her inhalation injuries and her current respiratory condition were caused by her inhaling the hot fumes and smoke in the burning automobile. She suffered severe burns and lung damages as injuries. The jury returned a verdict awarding the driver $3,000,000 in compensatory damages and concluding that the driver was entitled to punitive damages. However, the trial court granted a directed verdict on the punitive damage claim and reduced the jury’s award of compensatory damages to $2,000,000 to conform to the driver’s amended prayer for relief.

Among other things, the Hyundai defendants requested that the Court of Appeals take judicial notice of the fact that Ms. Cook died on October 19, 2005, approximately four months after the trial. Without citation to authority, they asserted that since a portion of the damages were predicated on Ms. Cook’s 23.69-year life expectancy, the fact of Ms. Cook’s death provided the Court with an appropriate reason to suggest a further remittitur in the amount of compensatory damages. Instead, the Court of Appeals found that case law and policy stood firmly in opposition to adopting the Hyundai defendants’ argument.

First, the argument of the Hyundai defendants did not fit within the proper purpose and scope of Tenn. R. App. P. 14, which permits the consideration of post-judgment facts in certain limited circumstances. The Advisory Commission Comment explains:

Although the appellate court should generally consider only those facts established at trial, it occasionally is necessary for the appellate court to be advised of matters arising after judgment. These facts, unrelated to the merits and not genuinely disputed, are necessary to keep the record up to date. This rule gives the appellate court discretion to consider such facts. This rule is not intended to permit a retrial in the appellate court. Tenn. R. App. P. 14, Advisory Commission cmnt.

While Ms. Cook’s death was undisputed, the Hyundai defendants’ purpose in presenting this fact for consideration was not “unrelated to the merits.” To the contrary, they were essentially asking the Court for a retrial on damages based on the fact, only known post-judgment, that Ms. Cook did not reach her estimated life-expectancy. This was simply not the intended purpose of Tenn. R. App. P. 14. See Duncan v. Duncan, 672 S.W.2d 765, 767-68 (Tenn.1984) (holding that Tenn. R. App. P. 14 cannot be used to relitigate an issue at the appellate level based on facts occurring after the entry of the judgment).

Next, the Court recognized that for over a century a tort claim has been converted into a debt as the result of a judgment and that this debt was simply suspended, not vacated, when the judgment is appealed. Heald v. Wallace, 109 Tenn. 346, 351, 71 S.W. 80, 81 (1902). The death of the judgment creditor does not extinguish the debt. Accordingly, courts in other jurisdictions that have confronted this issue have held that the plaintiff’s death after the entry of the judgment should have no effect on the judgment on appeal. The United States Court of Appeals for the Sixth Circuit has explained:

To hold that a plaintiff’s death following a jury verdict is the sort of “substantial injustice” requiring the reopening of cases or award of new trials … would be to invite a morass of appeals from defendants in cases where the plaintiffs did not survive an “acceptable” amount of time following the entry of final judgment. Conversely, such a rule would require reopening cases where a plaintiff’s life span exceeded the expectation presented to the jury…. Moreover, we wonder what standard the defendants would have us create. Is a year too short or too long a time to require a plaintiff’s post-judgment survival? Six months? Three months? Would verdicts in exposure cases be reopened because of newly-developed cures for asbestosis or DES-related maladies? Any judicial rule establishing contingencies on the enjoyment of damage awards would necessarily be arbitrary…“[t]he fact that a plaintiff dies even a second after judgment is entered does not render evidence regarding an expected life span ‘false’ nor the judgment invalid. The testimony regards an expectancy, not a certainty.” Davis v. Jellico Cmty. Hosp., Inc., 912 F.2d 129, 135-36 (6th Cir.1990).

Similarly, the Louisiana Court of Appeals explained that “[t]he trial court’s award of damages for personal injuries is based upon the evidence before it, including the life expectancy of the injured person; in making such award, the trier of fact necessarily takes into consideration that the injured person, despite the general life expectancy of persons of his group, may himself live far shorter than such general life expectancy.” LeBlanc v. Metal Locking of La., Inc., 258 So.2d 683, 686 (La.Ct .App.1972). Accordingly, the Court of Appeals declined to accept the Hyundai defendants’ invitation to adopt a rule that allows a plaintiff’s living a period shorter than or longer than an anticipated life expectancy to provide a basis for re-visiting an otherwise valid award for compensatory damages.

This decision has profound consequences for any medical malpractice case wherein the patient receives a multi-million dollar verdict and dies on appeal. The basis for these multi-million dollar verdicts is often the value of a life care plan tethered to the life expectancy of the patient. Sometimes, the physician or hospital wants to get a monetary credit for reducing the patient’s life expectancy and thereby reduce the value of the life care plan needed to care for the patient. Thankfully, the Court of Appeals will not give the defendant any monetary credit for negligently killing the plaintiff on appeal after a multi-million dollar verdict.

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