§47.1 Ad Damnum

The Case:  Elliott v. Cobb, 320 S.W.3d 426 (Tenn. 2010).

The Facts: 
An interlocutory appeal was granted in this medical malpractice case to determine whether plaintiff would be permitted to argue for a specific amount of monetary damages.

The Bottom Line:
  • “Ms. 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 plaintiff’s 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.” 320 S.W.3d at 429.
  • “Section 29-26-117 makes no reference to non-economic damages such as pain and suffering. However, Tennessee Code Annotated section 20-9-304 allows plaintiffs to argue the monetary value of a claim for pain and suffering as long as the argument conforms to the evidence or reasonable deduction from the evidence. If the legislature had intended to repeal section 20-9-304 in medical malpractice cases, it easily could have done so, as it did with section 20-9-302. We must ‘assume that whenever the legislature enacts a provision, it is aware of other statutes relating to the same subject matter.’ Shorts v. Bartholomew, 278 S.W.3d 268, 277 (Tenn. 2009) (citing Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn. 1994)). The new provision is presumed to be in accord with the same policy embodied in the prior statutes unless the newer statute expressly repeals or amends the old one. Id. We must construe statutes on the same subject, although in apparent conflict, in harmony if reasonably possible. In re Akins, 87 S.W.3d 488, 493 (Tenn. 2002). Shorts, 278 S.W.3d at 277; see also State v. Hicks, 55 S.W.3d 515, 523 (Tenn. 2001) (stating that ‘courts should find repeals by implication only when statutes cannot be construed harmoniously’); Sharp v. Richardson, 937 S.W.2d 846, 850 (Tenn. 1996) (noting that ‘repeals or alterations of existing statutes by implication [are] disfavored’).” Id. at 251.
  • “We do not find sections 29-26-117 and 20-9-304 to be in conflict.  Interpreted in accordance with the clear and unambiguous language of each section, the statutory scheme allows a plaintiff to argue or suggest a monetary value to be placed on non-economic damages such as pain and suffering and to make an argument concerning the ultimate monetary worth of his or her action, but precludes either party from disclosing the amount of the ad damnum clause in the plaintiff’s complaint.”  Id. at 252.

Other Sources of Note: 
Romine v. Fernandez, 124 S.W.3d 599 (Tenn. Ct. App. 2003) (holding that failure to state a demand for a specific sum in pleadings did not preclude plaintiffs from recovering damages).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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