*1 Jeremy FLAX et al.
DAIMLERCHRYSLER
CORPORATION
et al. Tennessee,
Supreme Court
at Nashville.
Oct. 2007 Session Heard Maryville.1
July Students) argument Advancing Legal pro- 1. Oral was heard in this case in Education Tennessee, Maryville, County, part ject. Blount (Supreme of this Court’s S.C.A.L.B.S. *4 Hamilton, George Fryhofer, J. Alan W. III, Butler, Jr., Leigh E. Mar- James Atlanta, May, Georgia, tin and Gail Nashville, Tennessee, Ashworth, Vaughn Flax and Ra- Appellants, Jeremy for the Sparkman. chel Lanza and Theordore J. Bout- Dominic California; rous, Jr., Angeles, Los James Ho, Dallas, Texas; Dupree, Thomas H. C. DC; Jr., Joy Day and Washington, Sutter, Franklin, Tennessee, A. Lawrence fil- claim. hold that the simultaneous Appellee, DaimlerChrysler Corpo- for the pre- ration. of a death suit does negligent infliction of emotional dis- vent Stockell, Jr., Madison, Louis A. Tennes- being claim from a “stand-alone” tress see, Pro Se. Therefore, negligent claim. infliction Larsen, Blalack, II, Allison Orr K. Lee brought under emotional distress claims Shors, D.C., Washington, and Matthew M. supported by these must be circumstances Curiae, for the Amicus Alliance of Automo- expert proof medical or scientific se- bile Manufacturers. addition, injury. vere emotional we Christopher Landau Robin S. Con- that the award- conclude rad, DC, Washington, Randolph and John adequately sup- ed the trial court were Bibb, Jr., Nashville, Tennessee, for the ported by the not ex- Curiae, Amicus Chamber Com- Finally, hold that the trial cessive. we merce of the United States of America. by recognizing plaintiffs’ court erred second failure to warn claim but conclude Hoffman, Portland,
Jonathan M. Ore- not prejudice judicial error did Mowles, gon, and Linda J. Hamilton Knox- than process probably or more not affect ville, Tennessee, Curiae, for the Amicus jury’s Accordingly, affirm verdict. Council, Liability Advisory The Product Appeals’ the Court of of the com- reversal *5 Inc. pensatory punitive damage and awards infliction emo- negligent based OPINION claim tional distress and reverse the Court HOLDER, J., M. JANICE delivered the Appeals’ puni- decision overturn the court, opinion of the in which WILLIAM damage plaintiffs’ tive award related to the BARKER, C.J., M. joined. CORNELIA wrongful death claim. CLARK, J., A. concurring part in and dissenting part. WADE, J., in GARY R. History I. Facts and Procedural concurring. KOCH, JR., J., WILLIAM C. 30, 2001, concurring part Sparkman in in On June Rachel and dissenting part. son, Flax, her eight-month-old Joshua plaintiffs The filed products liability passengers Dodge were a 1998 Grand against DaimlerChrysler case seeking (“the Caravan”) operated by Caravan Ms. wrongful for the death of their father, Sparkman’s Sparkman. Jim Ms. by son and for emotional distress suffered Sparkman captain’s was seated a chair plaintiffs the mother. The sought directly behind the seat. Joshua driver’s punitive damages. granted review safety Flax in a was restrained child seat 1) determine: negligent whether a inflic- captain’s directly in the chair behind the brought tion of emotional distress claim seat, passenger’s front which Joe McNeil simultaneously with a death occupied. requires claim is a “stand-alone” claim that expert proof Sparkman medical or scientific of a se- As Mr. left from a turned 2) road, injury; private vere emotional the evi- onto a public whether drive the Cara- presented dence at trial sufficient to truck by pickup was van was rear-ended 3) support punitive damages; by According an award driven Louis Stockell. testimony whether the of the accident reconstruc- awarded 4) excessive; the trial court experts, pickup tion truck was travel- by recogniz- ing fifty fifty-six per whether the trial court erred between miles plaintiffs’ impact. second failure to hour at the time of The warn Caravan tant, give her son Sparkman agreed direction at a Ms. traveling in the same was miles per point, ten and fifteen At this Mr. Loftis speed between to Mr. Loftis. impact, hour. At the moment Flax had “a first observed that Joshua change velocity experienced Caravan approximately forehead the size hole his twenty- seventeen approximately half inch golf probably of a ball and per hour. Accident recon- three miles later, deep.” A short time Joshua Flax experts parties for both testified struction transported hospital ambu- responsible Mr. Sparkman injuries the next lance. He died of his accident and that the would the accident day. had not occurred if Mr. Stockell not have 7, 2002, May Sparkman On Ms. driving speed.2 at an excessive been Flax, father, filed a Jeremy Joshua Flax’s the backs of the seats Upon impact, Stockell3 and Daim- complaint against Mr. Sparkman, Ms. containing Sparkman, Mr. (“DCC”), lerChrysler Corporation into a yielded and Mr. McNeil rearward The com manufacturer Caravan. the front position. Tragically, reclining are plaint alleged that the Caravan’s seats collapsed enough seatback far passenger’s unreasonably dangerous, defective and the back of Mr. McNeil’s head to allow failed to consumers that that DCC warn The Joshua Flax’s forehead. collide with danger to children seated pose seats Joshua Flax’s skull collision fractured them, strictly behind and that DCC damage. brain None of the caused severe Products Lia liable under the Tennessee in the suffered passengers other Caravan §§ Ann. 29- bility Act of 1978. Tenn.Code Experts parties for both injuries. serious (2000). fur 28-101 to -108 Flax would not acknowledged that Joshua the seats alleged ther that the condition of injured if the seat seriously have been caused proximately and the failure to warn yielded him had not rearward. front of caused Ms. Joshua Flax’s death and *6 to after the Caravan came Immediately to suffer severe emotional dis Sparkman rest, checked on her son’s Sparkman Ms. alleged that Finally, plaintiffs tress. the that his forehead had condition and saw because damages are warranted punitive words, been, in.” Michael in her “smashed recklessly in intentionally acted and DCC Loftis, at people one of the first arrive selling the manufacturing, marketing, and accident, he the testified that the scene of Caravan. the Sparkman Ms. outside vehicle saw trial, jury the found that lengthy After a Because he believed holding Joshua Flax. unreasonably and the seats defective were hysterical” “kind of Sparkman Ms. was the dangerous, that failed to warn DCC accidentally further could caused and of the seats at plaintiffs dangers about the Flax, Mr. Loftis offered injury to Joshua sale, failed warn initially reluc- the time DCC Although hold the child. pro- Chrysler’s interrogatories request for plaintiffs' expert testified that Mr. Stoc- The sanction, traveling approximately originally at Mr. kell was duction of documents. As a hour, ex- sixty per and the defendant's miles prohibited testifying at trial Stockell was from traveling was pert that Mr. Stockell testified against plain- raising a and from defense seventy per The approximately miles hour. addition, court in- tiffs’ claims. trial public posted speed road at the limit on jury Mr. Stockell was at structed the thirty-five per was miles time of the accident party to this Mr. Stockell is not a fault. hour. appealed any appeal, party has and neither findings of law with of fact or conclusions his scheduled failed to attend 3. Mr. Stockell respect to Mr. Stockell. respond Daimler- deposition and failed plaintiffs dangers compensatory punitive about the of the seats dam- award sale, Sparkman’s NIED ages after the and that DCC acted reck- related to Ms. plaintiffs lessly punitive damages against such that should claim DCC because re- imposed. jury satisfy heightened proof be half of did not apportioned NIED quirements the fault to DCC and the other half to Mr. for a “stand-alone” addition, Finally, jury Appeals Stockell. claim. In the Court of awarded $5,000,000 clear wrongful for the concluded that there was not $2,500,000 death of acted reck- convincing Joshua to Ms. DCC Sparkman individually negligent lessly intentionally. Accordingly, inflic- (“NIED”). tion of emotional the trial court’s Appeals distress Court of reversed remaining damages. punitive award of all trial, stage After the second Finally, Appeals affirmed the $65,500,000 jury in punitive awarded dam- $5,000,000 in trial court’s award of com- ages the plaintiffs wrongful for the pensatory damages for the death $32,500,000 death of Joshua Flax and plaintiffs appealed Flax. The Joshua Sparkman to Ms. indi- ruling Appeals. grant- of the Court of We vidually Following jury’s for NIED. ed review. verdict, the trial court conducted a review jury’s punitive award Negligent II. Infliction of Co., required by Hodges v. S.C. & Toof Emotional Distress (Tenn.1992). 896, 902 In its find- begin analysis Spark- our Ms. with ings of fact and conclusions of law the trial NIED Our jurispru- man’s claim. modern court concluded that “the properly concerning began dence NIED Chrysler found that Daimler [sic] acted case, Camper. In that plaintiff recklessly that punitive damages operating a cement truck a vehicle when warranted.” The trial court also conclud- operated by pulled the defendant in front jury’s ed that the punitive award of dam- of him. The defendant was killed immedi- ages was excessive because there was a ately resulting Although in the collision. very large discrepancy puni- between the plaintiff only physical suffered minor damages, totaling $98,000,000, tive and the injuries, alleging he filed an NIED claim compensatory damages for which DCC from injuries he suffered emotional liable, $3,750,000. totaling According- viewing body immediately the defendant’s the trial ly, court reduced the *7 after the accident. $20,000,000, damages to a remittitur of $78,000,000. order, In its final the trial began analysis Camper by We our in court indicated that the plaintiffs were en- recognizing governing that the NIED law $13,367,345 titled to in punitive damages fundamentally striking concerned with wrongful for the death of Joshua Flax and opposing objec- a balance between two Sparkman individually that Ms. enti- was first, promoting underlying tives: $6,632,655 tled to in damages for purpose negligence of of com- law—that NIED. pensating persons sustained who have appeal, Appeals injuries
On the Court of con- emotional attributable to the second, Sparkman’s others; cluded that Ms. NIED claim of conduct subject heightened proof avoiding was re- the trivial or fraudulent claims Minor, in quirements Camper thought set forth v. been to be have inevitable (Tenn.1996). 437, subjective 915 S.W.2d due to the nature of these Appeals jury’s injuries. Court of reversed the injury emotional variety then a Id. held that an catalogued
Id. at 440. We We “ normal- person, if ‘a reasonable jurisdictions in to “severe” approaches used other constituted, be unable to ade- ju- ly would opposing goals. meet these Some two engen- quately cope the mental stress with could not plaintiff risdictions held that a ” the case.’ by the circumstances of dered for NIED unless he or she suf- recover State, 52 (quoting Rodrigues Id. v. Haw. by “physical impact” a caused fered (1970)). Our hold- 472 P.2d Id. Other negligent defendant’s conduct. goals in therefore balances the ing Camper plaintiff a to recover jurisdictions allowed avoiding compensating victims and plaintiff “physi- for NIED if the suffered a 1) by: allowing person fraudulent claims injury. emotional cal manifestation” bring NIED injuries emotional jurisdictions 442. other re- Id. at Still he or she has regardless claims of whether “zone plaintiff that the be quired 2) any physical injury, requir- suffered by negli- created the defendant’s danger” higher degree proof for emotional ing a conduct. Id. gent these circumstances. injuries under Camper, Prior to our decision Beavers, Ramsey v. “physi applied a version of the Tennessee (Tenn.1996), reaffirmed the 530-31 we 443; rule. Id. at see cal manifestation” Camper, rejected principles set forth Bernstein, Memphis Ry. State Co. danger” the “zone of argument (1917). Tenn. S.W. Camper our integrated test could be into manifesta Unfortunately, “physical that a saw analysis, plaintiff and held who discouraged compensation for tion” rule bring hit car a suit by his mother could by “ignor[ing] the some meritorious claims he regardless for NIED whether injuries that some emotional sim fact valid in immediate physically injured placed or a contem ply may accompanied be being physically injured. Id. danger of physical or poraneous physical injury prove his claim the emphasized We consequences.” Camper, 915 S.W.2d at required present expert plaintiff was had Accordingly, Tennessee courts that he had medical or scientific evidence “continually necessary it to deviate found injury. Id. at suffered a emotional severe ‘physical manifestation’ rule from the addition, to recover 532. In held that we formally creating exceptions to the either the re- injuries sustained as for emotional by applying nonrigo- the rule rule injury party of a third sult of the death or rous fashion.” Id. at 445. To increase 1) that he or she plaintiff must establish: fairness, clarity, predictability sufficiently injury-causing near the NIED, governing abandoned law sensory event allow observation adopted rule and “physical manifestation” 2) was, event, or was injury distinguish requirements designed new be, or fa- reasonably perceived to serious and frivolous eases. between meritorious Id. at 531. tal.4 that a Specifically, Id. at 446. we held holding further clarified our physical not suffered a plaintiff who has *8 Amos v. expert Camper in Estate Vanderbilt through must demonstrate injury (Tenn.2001). 62 133 University, that he or she S.W.3d proof or scientific medical infected plaintiff Arnos who was injury. emotional involved has suffered a “severe” relationship S.W.2d at Ramsey close existed. 931 opinion that the close- Our in stated Scarlett, 531-32; relationship plaintiff Lourcey between the v. ness of the accord Estate of relevant, stopped (Tenn.2004). we party third is but and the 54 prove that a requiring plaintiffs to short of requirements of during proof The concluded that the blood transfusion. with HIV inapplicable. Id. Camper were possibili- no notice of the plaintiff received exposed had been to HIV. ty that she mind, in history this we now With later, gave birth to a plaintiff Years the instant case. At turn to the facts of daughter was infected with HIV who trial, present expert failed to plaintiffs daughter After her died of an útero. Ms. proof Spark- medical or scientific virus, plaintiff AIDS-related test- was injuries. emotional man suffered severe The ed and learned she had HIV. filed motions for directed verdict DCC plaintiff and her husband filed suit for verdict, notwithstanding the ar judgment birth, wrongful negligence, and NIED. guing Sparkman’s NIED claim that Ms. plaintiffs failed to was invalid because Camper The defendants Amos cited Plaintiffs Camper requirements. meet the argued plaintiff that the was not enti- proof require argued heightened injuries tled to for emotional be- recover Camper inapplicable ments be present expert cause she had failed to NIED claim Sparkman’s cause Ms. was testimony scientific of serious or severe wrongful filed death claim and was with injury. rejected argu- emotional not a “stand-alone” claim. The therefore special proof ment and held that “[t]he agreed plaintiffs trial court with requirements in are a Camper unique safe- upheld jury’s respect verdict guard to reliability ensure the of ‘stand- Sparkman’s Ms. NIED claim. negligent alone’ infliction of emotional dis- appeal, plaintiffs On continue Amos, tress claims.” S.W.3d 136-37. argue the NIED claim is not a Because “the risk of fraudulent claims is plaintiffs “stand-alone” claim because the less ... in a case in which a claim for brought wrongful death suit on be injury damages emotional is one of multi- It disagree. half of Joshua Flax. We ple damages[,]” claims for held that we wrongful settled that a death action is well heightened proof requirements set forth in decedent, a claim not the belonging to Camper inapplicable are emotional “[w]hen State, Ki v. decedent’s beneficiaries. damages ‘parasitic’ are a consequence of (Tenn.2002); see also S.W.3d negligent conduct that results in multiple § Ann. (Supp.2006). Tenn.Code 20-5-106 types damages.” Id. at 137. In other “Although living beneficiaries words, recognized a distinction between may recovery action seek a limited negligence traditional claims include their losses addition to those of the own damages injuries for emotional and claims decedent, right of action itself remains solely that are based on NIED. entire[,] ‘single, one that and indivisi ” Eyrich, ble.’ Kline v. plaintiff alleged Amos that she (Tenn.2002) (alteration (cita in original) injuries had suffered emotional caused omitted) Burley, (quoting tions Wheeler infection her with HIV and subse- 01A01-9701-CV-00006, No. 1997 WL quent daughter. infection of her Because (Tenn.Ct.App. Aug. at *3 damages claim of emotional 1997)). Accordingly, death separate from her other claims of was belongs case to Joshua claim the instant negligence, “parasitic” but rather plaintiffs. Flax rather than to the claims, properly those her claim char- negligence distinguishable acterized as a claim that includ- This case is therefore Amos, injuries. damages plaintiff ed for emotional As her from a case in which the NIED, emotional *9 solely sought claim not based we to recover for was wrongful ing plaintiffs testimony birth that he suf- parasitic negligence accident). scrape fered a on his knee in the personal plaintiff. that to the claims Clearly, injury minor in Gore, plaintiffs See Smith v. 728 S.W.2d prevent from (Tenn.1987) Camper did not us conclud- wrongful birth (holding that ing heightened proof requirements that by “on them parents actions are actions necessary are for claims. See id. at NIED behalf’). Nothing opinion in our in own Second, injuries the emotional al- 446. plaintiffs Amos intended to allow leged by Sparkman parasitic Ms. are not heightened proof requirements avoid the in injuries to the minor she sustained separate wrong- a Camper bringing accident but rather are the result of wit- a ful death suit on behalf of decedent. nessing the death of her child. Even if NIED claim is Sparkman’s Because Ms. Sparkman bring Ms. had chosen to a claim only personal claim that is to one of injuries, her minor her NIED physical for it plaintiffs, must conclude that is a a claim claim would remain “stand-alone” subject require- claim to the “stand-alone” injuries sustained because emotional Camper. ments of witnessing from the death of her child are Furthermore, meaning- this case is physical inju- completely any unrelated to from our in fully distinguishable decision course, may ries she have sustained. Of plaintiff Ramsey, a ease which saw Sparkman not have been re- Ms. would his mother killed when she hit a quired Camper requirements to meet the for emotional car. We held that recover any for mental and emotional recover injuries sustained as the result of the suffering resulting physical from her own injury party plaintiff of a third a death Inc., injuries. Shoney’s, See Overstreet v. medical or scientific present expert must (Tenn.Ct.App.1999) injury proof of severe emotional (holding pain and suffer- injury-causing proximity establish to the injury may include a ing personal case severity injury to the event and variety injuries of mental and emotional at 531- party. Ramsey, third 931 S.W.2d accompany physical injury). plaintiff Ramsey, 32. Like the Ms. injury plaintiff physical When a suffers a for emotional Sparkman seeks recover allegations there is some indication that witnessing as a result of injuries sustained injuries resulting emotional mental family member. the death of an immediate injury not fraudulent. See from that are plaintiffs brought That the in this case a Amos, On the other wrongful death suit is not sufficient hand, having potential physical claim for exempt require- the NIED claim from the injuries nothing to ensure the reliabil- does Camper Ramsey ments set forth emo- ity relating of an NIED claim death suit filing because the resulting witnessing tional from injuries nothing reliability to demonstrate the does party. Ac- injury the death or of a third of an NIED claim. to re- cordingly, good there is no reason of meet- Sparkman lieve Ms. of her burden argue that the NIED also requirements. Camper Sparkman Ms. suf- claim is valid because in the acci- physical injuries fered minor Finally, plaintiffs argue bring Camper chose not to a claim for heightened proof requirements dent but argument This has two injuries. unnecessary those are in this case because inju Fust, Camper severity Sparkman’s of Ms. emotional plaintiff flaws. Although it is axiomatic he did ries is injuries minor for which obvious. suffered of one’s child is a (quot- witnessing the death claim. 915 S.W.2d at not file a
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Based on the imposing punitive A dam ages. verdict Sparkman’s hold that Ms. NIED claim we by clear and con ages supported must be governed by heightened proof re- acted vincing that the defendant evidence quirements Camper. It is uncontested maliciously, or intentionally, fraudulently, Sparkman that Ms. failed to meet those Co., recklessly. Hodges v. S.C. & affirm, requirements. We therefore albeit Toof (Tenn.1992). Hodges, slightly reasoning, under different is clear and Appeals’ compen- Court of reversal of the held that convinc satory punitive based damage awards “no serious or substan ing when it leaves Sparkman’s on Ms. NIED claim. tial doubt about the correctness n. Id. at 901 3. We
conclusions drawn.” Damages III. Punitive recklessly acts person also held of, but con person “the is aware when relating punitive issues dam- Several un sciously disregards, a substantial and hotly throughout ages have been contested its justifiable risk of such a nature appeal the trial and of this case. DCC gross deviation disregard constitutes arguments to assert three continues ordinary that an from the standard of care validity dam- against the all the cir person exercise under would ages for the death of awarded jury in this Id. at 901. The cumstances.” First, argues puni- Joshua Flax. DCC there clear and con case found that in this damages are not tive warranted conduct was vincing evidence that DCC’s insufficient case because the evidence was finding of recklessness. Sec- reckless. support *11 upon governing strength, When this is called to seatback Federal Mo- (“FMVSS jury’s the of a Safety review reasonableness ver tor Standard 207 Vehicle dict, case, 207”). are in as we this we “are limited determining to there is material whether part As of their effort to demonstrate support evidence to the Id. at verdict.” posed seatbacks a sub- Caravan’s making determination, 898. In we-do risk, unjustifiable plaintiffs stantial and the not re-weigh the evidence. Elec. Power Saczalski, testimony introduced the of Dr. Chattanooga Joseph Valley Bd. v. St. an Dr. Saczal- expert engineering. seat Corp., Structural Steel ski testified that the Caravan’s seats were (Tenn.1985). Rather, “required we are to unreasonably dangerous defective and be- strongest legitimate take the of all of view they posed cause a threat to children seat- verdict, the in evidence favor testimony ed behind them. His was based sup assume the truth of all that tends to in in part testing on crash he conducted an it, port allowing all reasonable inferences attempt underly- to recreate the accident verdict, to sustain the all and to discard test, During this case. the crash Dr. contrary.” jury’s the Id. The verdict must Saczalski used vehicles of the same make any be if sup affirmed material evidence model in as those involved the accident Therefore, ports it. Id. our review this attempted weight, to account for the determining issue is limited to whether speed, trajectory of each vehicle. The any material supports jury’s evidence the in the crash test contained Caravan used conclusion that there is no serious or sub dummies the size and approximating consciously stantial doubt that disre DCC McNeil, weight Sparkman, of Mr. Mr. Ms. known, substantial, garded unjustifi Dr. Sparkman, and Joshua Flax. Saczalski plaintiffs. able risk to the replaced the driver’s seat of the Caravan any To determine whether there is ma- Chrysler Sebring, a seat from a 1996 with supporting jury’s terial evidence the ver- a DCC vehicle that had seats with backs dict, must summarize the pre- approximately stronger five times than the trial, sented at trial some detail. At the seats used in the Dr. Saczalski Caravan. sought prove DCC had placed Sebring the seat in the crash test twenty years known over its seats stronger vehicle to demonstrate how unreasonably danger- defective and perform seatback would under forces remedy problem ous but failed to equivalent to those suffered the Cara- danger.
warn consumers of the DCC in the actual van accident. by arguing designed countered that it Consistent the circumstances of the with yield seats to in rear-end colli- rearward accident, actual videos the crash test from the energy sions to absorb collision yield- front passenger’s show seat protect occupant of the seat. Ac- ed allowing rearward McNeil surro- DCC, cording design pro- the Caravan gate’s head to head of impact greatest tects the number of in the people Flax surrogate. Sebring Joshua seat greatest potential number of accidents and yielded rearward but to a far lesser using stronger seatbacks increase would Sebring degree. Significantly, seat did danger occupants of the seat. To substantially the seat- upon encroach support argument further its that its seat safe, ing area behind it. Dr. Saczalski conclud- design reaspnably DCC re- ed from the crash test that Joshua Flax peatedly noted that its seatbacks were manufactur- the accident similar to those used other would have survived without injury been regulation ers and exceeded the federal serious had Caravan collisions the rear-impact confirm that in equipped strong seats with backs as occupant into the be- Sebring Contrary yielded space seats as those of seat. addition, plaintiffs present- them. stronger assertion that seatbacks hind DCC’s showing that at least impose greater dangers occupants to their ed documentation the front collisions, test one crash test conducted rear-end crash dum- my stronger Sebring prevent braced to the seatbacks experi- seat seats were *12 impacting equipment occupying enced neck acceleration than from less head and dummy in the Caravan seat. back seat. regarding Although Dr. the minutes from the Saczalski testified no performed meeting other crash tests he indicate that there was evi- several Sebring placed side-by- “significant seats were dence that the seats were a which soon be- injury producing problem,” side with other DCC minivan seats. These DCC gan tests also demonstrated that minivan to information. Accord- DCC receive new capacity seats to to injury ing employee cause to an DCC’s customer department, during children seated behind them. The test relations the mid- 1980s, support Sebring began reports results view seats DCC to receive pose they injured by yielding do not the same threat because children seatbacks in not encroach upon passenger space do rear-end collisions. DCC’s records con- Furthermore, behind them. Dr. Saczalski tained documentation of several rear-end dummy-occupants yielding testified that the collisions which seatback stronger Sebring seats tended to or facial experi- caused a child to suffer skull ence by less acceleration to the head and neck Other sustained injuries fractures. dummy-occupants than the yielding weaker children seated behind seatbacks seats. to In reported spite were also DCC. any reports, these DCC did not issue The also made a considerable to warning to customers and continued effort to demonstrate that DCC was aware specifi- advertise the Caravan as a vehicle that the Caravan seats were defective cally designed protect to children. unreasonably dangerous for at least twen- ty years. Engi- significant testimony regard- The minutes from a The DCC most Safety meeting danger pre- neer Committee De- knowledge dated DCC’s 10, 1980, appear by provided cember contain sented the Caravan seats was acknowledgment Sheridan, first yielding employ- seat- Paul a former DCC DCC, potential problem. backs could be a In the During employment ee. his with meeting it noted that Mr. as the chair of the seatbacks Sheridan served yielded Team degree every Safety Leadership had to some crash Minivan (“MSLT”), “improvements test and that be a committee formed to address could made, The require development safety but would concerns DCC’s minivans. comprised persons from piece penalty costs and would result.” committee was marketing, Engineer Safety safety, engineering, Committee did not DCC’s sales, One of the any improve design departments. make recommendation to formed strength per- many safety seatback because the seats issues the MSLT was competi- formed as those of the issue of seatback as well DCC’s address was tors, Sheridan, strength. According to Mr. complied requirements, with federal complaints to it re- and had not been demonstrated “to be a MSLT had available injury problem.” garding injuries by yielding caused seat- significant producing testing performed by of crash backs. At a March committee Videos DCC in the for support the MSLT reached a find little record meeting, members of speculation Justice Koch’s that Mr. Sheri- unacceptable it consensus testimony “may very dan’s well reflect Da- passenger into the yield seats to rearward imlerChrysler’s Sixty over-reaction and that the seats space behind them story of some Minutes existence protect customers. After inadequate regarding internal dissension how best meeting, Mr. Sheridan distributed respond to the concerns about car seat meeting to various DCC minutes of the fact, safety story.” raised thereafter, Some time Ronald executives. characterization of Mr. Sheridan’s testimo- Zarowitz, repre- the MSLT a member of ny rejected by appears have been office, senting safety instructed Mr. DCC’s jury, testimony heard his and was the minutes of the Sheridan retrieve credibility. charged resolving issues Mr. meeting destroy them. Zarowitz Moreover, presented testimony no DCC *13 Sheridan that this order informed Mr. that the formation of the MSLT an was Castaing, the head of came from Francois “over-reaction,” from and it is clear Mr. Mr. Sheri- engineering department. testimony Sheridan’s that he believed instructed, as dan retrieved minutes necessary MSLT to address serious was in his office. copies but he retained two destroy to safety concerns. DCC’s efforts meeting, the March 1993 Mr. After produced by the recommendations investigate to the seat- Sheridan decided MSLT are a further indication DCC’s end, Mr. Sher- problem back issue further. To this and its awareness the seat-back engineer responsible problem determination to hide the rather idan met with an minds, repre- than solve it. In our this design requested design the seat seat sents more than “some internal dissension the seats that discussed how specifications to the con- regarding respond best to how yield. According to Mr. designed were to safety.” cerns about car Sheridan, engineer “didn’t know what asking provided for” but the de- was [he] to Mr. Justice Koch’s efforts discount These sign specifications of the seats. testimony are inconsistent with Sheridan’s not that the seats specifications did state appeal. The our standard review fact, In Sheri- designed yield. to Mr. were much of Mr. apparently accredited any engi- that he never heard dan testified and, testimony, stat- Sheridan’s as we have designed to neer state that seatbacks were ed, testimony required we are to view his safety precaution. In yield rearward light jury’s most favorable told his su- September Mr. Sheridan the truth of his asser- verdict assume going go regu- to pervisor that he was jury’s that verdict. Elec. support tions lators his concerns about minivan with Chattanooga, Power Bd. 1994, the MSLT seatbacks. In November that Mr. 526. We therefore must assume direction of Ted Cun- disbanded at the was truthful when he denied Sheridan was authority over ningham, the executive with to Auto leaking confidential information Sheridan was operations. minivan Mr. must also make the magazine. World 27, 1994, and the min- fired on December reasonable inference that Mr. Sheridan meeting go the March 1993 MSLT fact fired because he threatened utes from safety concerns. design specifications regulators with his the seat addition, has been Mr. Sheridan from his office.5 whether confiscated during produced were not dis- included in the the documents Those documents are not allege covery. plaintiffs record before us. The the Cara- testifying ployed by from in other cases is DCC believed excluded unacceptably dangerous; to our The trial court van’s seats were irrelevant review. 4) expert denied motion to exclude Mr. Sheri- tes- DCC’s crash test evidence testimony, and has not appeal- timony dan’s DCC that Joshua Flax would aspect ruling. ed that of the trial court’s stronger seat been been killed had court im- The actions of another have no con- place. jury’s finding The that DCC pact testimony on our ac- by review sciously disregarded posed the risks 1) jury. credited supported by: seats was Caravan meetings noting minutes of DCC sought demon- 2) yielded; crash tests demon- seats DCC compliance strate that with FMVSS consistently encroached strating that seats insufficient to make the seats Caravan 3) them; upon space behind passenger reasonably employed safe. A seat engineer injuries by yield- records of caused DCC testified that re- DCC FMVSS 207 4) seatbacks; and Mr. Sheridan’s testi- quires “inadequate seat strength to insure ignored the mony that executives MSLT’s that the seat does not fail the car is when warning unaccept- that the seatbacks were subject impact.” rear In addi- severe ably dangerous. We conclude that tion, Mr. Sheridan that members testified supports jury’s adequately agreed compliance of the MSLT there is no or sub- conclusion that serious insufficient FMVSS 207 was ensure *14 consciously stantial doubt that disre- DCC Furthermore, safety of consumers. both known, substantial, garded unjustifi- experts design agreed DCC’s seat plaintiffs. able risk to the The evidence compliance that with FMVSS 207 alone is that failed to heed the DCC executives inadequate protect to passengers. warnings of the MSLT and ordered the Finally, the plaintiffs argued that findings destruction of the committee’s is stronger seatbacks would not result only particularly compelling. Not did greater injuries occupants of the seats. redesign DCC fail to customers or warn Specifically, the claimed that the its product, DCC hid the evidence and seat, Sebring approximately which was five to market the as a continued Caravan ve- seat, times stronger than the Caravan was put safety hicle that first. Because the reasonably safe seat. The results of Dr. jury’s supported by verdict is clear and Saezalski’s crash testing provide some evi- evidence, af- convincing material we must dence that Sebring the seat offered a rea- jury’s finding firm the of recklessness. protection sonable level of to its occupants. Chattanooga, Elec. Power Bd. 691 addition, In one of experts DCC’s on seat- S.W.2d engineering agreed back Sebring that the reasonably seat awas safe seat. argument that risks associated DCC’s summary, jury’s the finding justified by with the seats Caravan posed energy seats a substantial and un- the need for the seat to absorb Caravan justifiable sup- protect risk consumers was from the collision and seat occu- 1) by: expert testimony no ported pants argument that is of avail. This was unreasonably jury, seats presented jury were defective and was 2) dangerous; demonstrating apparently jury crash tests it. The unconvinced yielding consistently reasonably that accredited Mr. seatbacks could have upon occupant space testimony encroached be- Sheridan’s that the seats were 3) them; testimony intentionally designed yield hind Mr. Sheridan’s not as a safety engineers safety jury officials and em- mechanism. The also could “ reasonably testimony have from designed give concluded section 29-28-104 was ‘to regarding Sebring seat that seats need refuge operat to the manufacturer iswho yield dramatically not as the good Caravan faith compliance and [in] ” protect occupants. seats to seat DCC’s requires him Tuggle what law to do.’ argument ongoing that there is an debate Raymond Corp., regarding optimum (alteration level of seatback (Tenn.Ct.App.1992) original). strength is also without merit. The designed provide The statute not reasonably could concluded such immunity from to a man a debate simultaneously exists and found compliance ufacturer who aware the Caravan’s seats were weak regulation protect with is insufficient to enough to fall outside range of reason- users of the product. While evidence of able debate. compliance government regulations certainly evidence that a manufacturer was regard proposed justifi-
With to DCC’s reckless, it is not dispositive. See cation, give Justice Koch fails to proper Inc., Playtex, v. Int'l O’Gilvie F.2d jury’s deference to the conclusions. He (10th Cir.1987); Silkwood v. “genuine principled concludes that a de- 1451, 1457-58 Corp., Kerr-McGee 769 F.2d concerning proper bate” seatback (10th Cir.1985); Dorsey v. Honda Motor strength design led DCC to “the front (5th Cir.1981). Co., 655 F.2d To yield seats the' minivan to a con- overly hold otherwise would create an in trolled manner in im- the event of a rear flexible rule that would allow some manu pact.” designed Whether seats were facturers knowingly engaged reprehen “in yield a controlled manner” con- escape imposition sible conduct to tested at trial. The jury, apparently con- punitive damages. reconstruction, vinced the accident expert testimony, tests, DCC’s crash Similarly, if a manufacturer knows Mr. testimony, Sheridan’s concluded that practice that a common in an industry *15 the manner in yielded which the seats was presents a unjustifiable substantial and unreasonably dangerous and that DCC consumers, compliance risk then with recklessly disregarded danger to its practice the common not an is absolute bar may customers. While Justice Koch dis- recovery punitive damages. Cf. conclusion, agree that with this Court is Greyhound Surles ex rel. Johnson v. reweigh not free to the evidence or sec- Lines, (6th Inc., 474 F.3d 300-01 Cir. ond-guess jury’s conclusions when 2007) (applying Tennessee and con law they supported by are material evidence. cluding compliance regu with federal are also lations common industry practices
We unconvinced arguments compliance DCC’s evidence of the of care but with standard does an regulations conclusively federal and custom within not establish the standard of cases). industry recovery puni negligence should bar the care in that a Evidence damages. compliance consciously disregarded tive It is true that manufacturer sub unjustifiable pub with FMVSS 207 entitled DCC to a rebut- stantial and risks to the can, cases, presumption product table that its not lic in some was rare overcome evi unreasonably dangerous. Aim. practice Tenn.Code dence that the manufacturer’s true, § industry. 29-28-104. It is for the in the equally common This is such above, reasons stated that the in reason case. Because the could have thoroughly pre ably present this case rebutted that concluded from the evidence sumption. compliance Tennessee Annotated ed that DCC was aware that Code “a dam industry- previous punitive the FMVSS 207 and the from a case that insufficient, design ages standard for seat of ‘more than 4 times the award punitive damages hold that compensatory damages’ might amount of ” barred in this case. be ‘close to the line’ of constitutional 581-82,
impropriety.
Id. at
malice,
deceit,
trickery, or
or mere acci- Unlike the deferential standard of review
factual
employed
reviewing
jury’s
when
dent.
conclusions,
a de
conduct
novo review
stated, “The exis-
Id. The Court further
damages
a punitive
of the amount of
award
any
weighing
factors
tence of
one
these
meets due
to determine whether
award
may
plaintiff
of a
not be sufficient
favor
the three
process requirements
light of
award;
to sustain
guideposts.
Id. at
539 light in Accordingly, is for the death see citizens. DCC liable that a would hold guideposts ratio these first we of Joshua Flax. The between two damage approaching award is 1 to 5.35. This ratio is not two awards pro- the due permitted it does not maximum ratio clearly impermissible because appropriate. single digit Campbell, ratio. See cess clause is exceed is, at 123 1513. There 538 U.S. S.Ct. set forth Gore guidepost The third however, propriety some doubt as to the of dramatically different compel seems of 1 to 5.35 ratio because United closely that most conclusion. The statute suggested has Supreme States Court Assem expresses the Tennessee General 1 to 4 approaches a ratio of more than concerning wrongful bly’s judgment Id.; Gore, constitutionality. outer limits of reckless ness of conduct is the DCC’s 581, 116 at 1589. The 517 U.S. S.Ct. Court codified at Tennessee homicide statute suggested that a ratio of 1 to 1 has also (2006). Annotated section 39-13-215 Code all that may permissible be cases statute, homi According to that reckless are compensatory damages “sub where of another.” killing is “a reckless cide Campbell, stantial.” 538 See U.S. at §Ann. 39-13-215. The mean Tenn.Code ratios, 1513. None of S.Ct. these how it ing of the “reckless” as is used word ever, benchmarks,” present “rigid and the meaning identical to the of that statute is Supreme United States has thus far context. punitive damage “reckless” in a adopt any declined to fixed mathematical Compare Hodges, 833 S.W.2d appropriateness formula to determine the 39-11-302(c) (2006). § Ann. Tenn.Code Instead, punitive damages. Id. the Because reckless conduct resulted DCC’s Court has held that precise “[t]he award Flax, reckless homi in the death of Joshua case, course, any upon must be based analogous cide is the criminal act most the facts and circumstances of the defen statutory conduct.7 The maximum DCC’s plain dant’s conduct and the harm to the punishment corporations for that commit tiff.” Id. $125,000. reckless homicide is a fine 40-35-111(c)(4) (2006). § Tenn.Code Ann.
In light
guideposts,
of the first two
we
believe
a ratio of
to 5.35
be
would
holding
to the
of the United
Pursuant
Although
warranted in this case.
Court,
Supreme
States
we must accord
Supreme
United State
made no
Court has
deference” to the General As
“substantial
$125,000
effort
demonstrate when
are
ap
is an
sembly’s decision
“substantial,”
do not
that an
corporations
believe
propriate
against
sanction
$2,500,000
Gore,
large
is so
as to re-
guilty
award
of reckless homicide.
Furthermore,
Furthermore,
a ratio
quire
to 1.
a U.S. at
Although we are somewhat unsure how
Morris,
Morris.
Philip
Court held
to reconcile the
guidepost
third
must,
that trial
two,
upon request, pro
courts
first
are
to give
inclined
the first
juries
vide assurance that
are not
guideposts considerably
weight.
two
more
allowed
Supreme
punish
The Unites States
Court has held to
defendants for harm caused to
guidepost
impor-
nonparties.
that the first
is the most
present
Id. at 1065.9 In the
reasoning
peculiar
attempt
clarify
inju-
find this
somewhat
9. The Court did
considering
Hodges
that our decision in
clear-
by nonparties
ries suffered
are relevant to
ly set
forth both the conditions under
reprehensibility
demonstrate the
of a defen-
punitive
defendant could be held liable for
dant's conduct.
Id. at 1064. As the Court
damages and the
that would deter-
factors
stated,
many
"conduct that risks harm to
mine the amount of
avail-
likely
reprehensible
more
than conduct that
Hodges,
able. See
541 29-28-102(6) (2000). case, jury Accordingly, § be in- Ann. requested DCC it punish structed that could not DCC permitted plaintiffs the trial court to by nonparties, harm suffered but the trial proceed the traditional failure to warn give court declined to this instruction. claim, trial appealed and DCC has not Unfortunately, question did not DCC ruling on that issue. court’s rejection proposed jury of its instruction plaintiffs’ The second failure to Appeals.
the Court DCC now seeks to resurrect this issue before this claim In their problematic. Court. warn is more Litigants hope to an brief, who have issue heard plaintiffs trial asserted that DCC present this Court must first that issue failing should also be held liable for appellate intermediate court. See the plaintiffs warn of the condition of the Brown Equip. Corp., v. Crown 181 S.W.3d seatbacks sold. Caravan was after 268, (Tenn.2005); 281 n. 5 Va. & Sw. R.R. argued Plaintiffs their second claim is Sutherland, 266, v.Co. 138 Tenn. 197 S.W. commonly “post- what is referred to as a (1917). 863, Accordingly, do not we claim,10 sale failure to a claim warn” reach the issue of whether the trial court previously recognized has not been in Ten by failing jury erred to instruct the not to Inc., Lighting, nessee. Irion v. Sim No. punish for harm nonpar- DCC suffered M2002-00766-COA-R3-CV, 2004 WL ties. 2004). (Tenn.Ct.App. Apr. at *17 assumption Under the that their second Validity of IV. Plaintiffs’ Post- claim, post-sale claim was a failure to warn Sale Failure to Warn Claim the plaintiffs argued that the trial court complaint, plaintiffs their join jurisdictions should that recognize claim asserted a based on failure to DCC’s post-sale failure to claims and warn warn consumers that the Caravan’s seat- adopt the failure to post-sale provi- warn posed danger backs placed to children (Third) sions of the Restatement of Torts. trial, behind them. Prior to the plaintiffs (Third) See Restatement of Torts: Prod- filed a trial brief clarifying they (1998). § Liability ucts The trial court attempting bring separate two failure to persuaded by plaintiffs’ arguments warn claims. The first claim ais tradition present and allowed the evi- al failure to claim alleging warn that DCC argument support dence and at trial in provide warning prior failed to or their second failure to warn claim. At the the time the Caravan was sold. Tennessee trial, conclusion of the found the long courts held that manufacturer the plaintiffs’ defendants liable on second may strictly be held failing liable for failure to claim. warn dangers warn consumers of the of partic the trial court DCC contends that erred product ular at the time of sale. White in recognizing post-sale failure to warn Co., v. Dycho head agree. Although claim. different (Tenn.1989); Irwin, Trimble v. 59 Tenn. (1968). apply differently, states the doctrine App. majority recognizing post- of courts Assembly acknowledged General has vast agree that a failure to claim is a sale failure to claims that a warn valid basis warn liability for a product action. Tenn.Code claim arises when the manufacturer below, explained 10. For reasons that are we refer their cause of action as the "sec- plaintiffs' do not believe second failure to ond failure to warn claim” or the “second properly warn claim is characterized as a claim.” Accordingly, post-sale failure to warn claim. *20 edge at the time of sale of the product that a Caravan. seller becomes aware Although plaintiffs allege after the that DCC unreasonably dangerous defective product to notice that continued receive its fails to take reason point the of sale and sale, they dangerous after the do not pur was steps able to warn consumers who See, allege any that infor- DCC received new e.g., Lovick v. product. chased the (Iowa during period. Accordingly, mation Wil-Rich, 688, 693 588 N.W.2d present this case does not the facts neces- 1999); v. Hutchinson Wil-Rich Patton sary to allow us to consider the merits of Co., 1299, 1313 741, 253 Kan. 861 P.2d Mfg. to recognizing post-sale failure warn Zenobia, Owens-Illinois, (1993); Inc. v. Rather, allegation plaintiffs’ claims. the (1992); 420, 633, 601 A.2d 645-46 325 Md. negligent failing that to warn DCC was 358 Corp., Motors Mich. Comstock Gen. an to plaintiffs attempt the after the sale is (1959); 634 see also 99 N.W.2d a second time for impose liability what Richmond, Prod Douglas Expanding R. the same conduct. If essentially Post-Sale Liability: ucts Manufacturers’ at the negligently a defendant fails to warn Warn, Recall, to and Duties Retrofit sale, does not time of that defendant (1999). Accordingly, Idaho L.Rev. any duty plaintiff by breach new failure to apply courts the traditional warn warning day failing provide to after a manufacturer or seller had claim when Instead, merely the defendant sale. at the time of sale knowledge of a defect duty. remains in breach of its initial For post-sale failure to warn apply and reasons, that the trial these we conclude learns claim a manufacturer or seller when and adopting applying court erred of the after the time of sale.11 Vic defect post-sale failure to claim this case. warn Schwartz, Duty Post-Sale to tor E. however, no as to the express opinion, in the Two Forks Warn: Unfmiunate that cause of action recognizing merits Doctrine, 58 N.Y.U. Road to a Reasonable appropriate in an case. (1983). L.Rev. duty plaintiffs post-sale
Unlike claims the trial court’s error DCC cases, this case do warn prejudicial ways. DCC two allege problems not that DCC discovered First, con process claims that due DCC the time of sale. the seatbacks after with by allowing jury cerns are raised contrary, theory plain- On the determination on base its recklessness knowledge had tiffs’ case was DCC unrecognized cause of action. previously unrea- that the seats defective and it did not Essentially, argues that DCC early the 1980s. sonably dangerous as punished notice it could be Furthermore, deny that it DCC does after the date of failing warning to issue a Gore, of its knowledge performance had U.S. at 116 S.Ct. sale. See argues (holding the time of sale but that a defendant is entitled seats at in a non-defective to fair notice of “the conduct will the seats functioned Although him subject punishment”). manner. There is there- reasonably safe post- liable for did find DCC dispute regarding fore no DCC’s knowl- difficulty generally claims consider the two causes 11. The distinction between communicating product identifying with burden of important because the action is determining manu greater when whether the warning once the users issuing a is much id.; reasonably. acted See facturer or seller product left the control of the manufac- has Lovick, (Third) at 695-96. These difficul 588 N.W.2d Restatement of Torts: turer or seller. Therefore, generally ju- not an issue in traditional Liability § ties are 10 cmt. a. Products post-sale to warn failure to warn claims. allow failure risdictions that claim, notice of the seat’s condi- duty sale to warn it also found DCC that DCC had motions and re- post-trial tion. In their grounds designing, liable on three other — agree that sponses, parties appeared manufacturing, selling the Caravan supporting the other simi- seats; the documents designing, defective manufac- lar have been inadmissible incidents would turing, selling un- Caravan with prove that seats hearsay if offered to seats; reasonably dangerous failing unreasonably dangerous. *21 or were defective the at the time sale. warn after the Clearly incidents that occurred There was sufficient evidence of reckless- plaintiffs purchased date the the Caravan ness related to these three claims from notice provided could not have DCC with jury which reasonable could have deter- provide warning that it should at the punitive mined that damages were war- It therefore time the Caravan was sold. Furthermore, ranted. in phase the second appears that the trial court admitted evi- trial, of the the trial court instructed the post-sale dence of the similar incidents to jury that it not to was base its award of respect plaintiffs’ show notice with post-sale on the failure agree second failure to warn claim. We instruction, In spite to warn claim. of this that been no reason there would have valid $98,000,000 jury awarded if post-sale to admit the similar incidents damages. jury’s The belief three that the recognized the trial court had not valid claims such warranted a substantial plaintiffs’ second failure warn claim. powerful award is evidence that the deci- Because that the trial we hold court should impose punitive sion to not was claim, recognized not this the trial have based upon post-sale failure to warn admitting court erred in evidence of the Furthermore, similarly claim. we are un- twenty-five other similar incidents that oc- jury convinced that the based the purchased curred after the Caravan was death post-sale award failure to May 1998. claim. warn Under the circumstances of ease,
this the three valid claims were suffi- inquiry Our does not end here. support wrongful cient to death award of jury’s of the DCC is entitled reversal $5,000,000. Accordingly, find this ar- only if the trial court’s error verdict would gument to be without merit. probably “more than not affected the have judgment prejudice result in would Second, post- DCC claims that the judicial process.” R.App. Tenn. P. duty permitted sale claim the ad warn Broad., 36(b); accord Cumulus Inc. mission of evidence that otherwise would Shim, (Tenn.2007). been deemed Specifically, irrelevant. greater “The the amount of evidence argues DCC that of other evidence guilt, the heavier the burden on the defen occurring similar incidents after the date dant to demonstrate that a non-constitu of sale would not have been admissible. involving right tional error a substantial Indeed, plaintiffs acknowledged at trial probably more than not affected the out response their to DCC’s Motion for Rodriguez, come of the trial.” State v. Judgment Notwithstanding the Verdict (Tenn.2008). S.W.3d and New Trial that the other similar inci only jury Although dents tendered and admitted heard evidence of incidents, prove twenty-five post-sale that DCC had notice of the condition similar jury jury of the also instructed trial court instructed the that it could seats. only purpose for the it could consider the other similar consider that evidence only purpose showing determining incidents for the whether DCC had notice of in- presume prejudice admitting the condition of the seats. We when other similar stated, however, jury that the the trial in As followed court’s cidents. we have proof powerful struction and did not consider the other recklessness is so DCC’s affected purposes probably similar incidents for of determin Koch unreasonably whether the seats were the trial court’s error. Justice has a Williams, dangerous. very State v. different view (Tenn.1998). case, unsurprising therefore and it con is therefore trial sig expresses greater clude court’s instruction his dissent estimation nificantly danger of prejudice impact reduced the of the trial court’s error. addition, judge’s to DCC. In the trial re- Rulings V. Miscellaneous
mittitur1 of the punitive damages award Trial danger limited the evidentia- error ry judgment affected the this case. it argues prejudiced DCC also that was
Most there trial court. importantly, by rulings was wealth of various other supporting jury’s Specifically, argues the that the trial evidence verdict. DCC testimony by admitting There re- court abused its DCC had discretion injured by yield- ceived notice of children the other similar incidents that occurred Caravan, ing early prior excluding seatbacks as as the mid-1980s. to the sale of the DCC, proffered by crash test demonstrated accident data and fail- DCC’s own videos consistently yielded grant that seatbacks into the a new trial as a sanction for in passenger space plain- behind them rear-end the trial court’s determination that Mr. discovery process. collisions. Sheridan testified that the tiffs abused the DCC argues informed that the that the absence of a ad MSLT DCC executives valid dangerous. Finally, plain- plaintiffs’ complaint seats were the damnum clause in any bar to the plaintiffs. tiffs introduced twelve similar incidents should award that occurred before the date of sale. Of For the reasons stated the Court of twelve, Appeals, those three incidents involved a we conclude each of these suffering arguments child skull facial fractures merit. or as without of a yielding result seat. Three others VI. Conclusion suffering injuries children other
involved
yielding
jury’s
from
seatbacks. The
ver-
Sparkman’s NIED
We hold that Ms.
amply supported by
properly
dict is
this
in spite
claim is a “stand-alone” claim
of
light
admitted evidence.
In
of the wealth
brought a
simultaneously
the fact that she
verdict,
jury’s
of
supporting
evidence
Therefore, Ms.
wrongful death claim.
twenty-five
conclude that
other
we
claim should
been
Sparkman’s NIED
improperly ad-
similar incidents that were
or scientific
supported by expert medical
significant
mitted were not so
as to affect
injury. Ac-
proof of a severe emotional
con-
jury’s
Accordingly,
verdict.
we
Appeals’
affirm the
of
cordingly, we
Court
the trial
to ad-
clude that
court’s decision
compensatory
punitive
reversal
mit the
other similar incidents
post-sale
damage
Sparkman’s
based on Ms.
awards
prejudice
judicial process
did not
or
addition,
In
conclude
NIED claim.
probably
judg-
than not affect the
more
by the
awarded
ment.
supported by
adequately
trial court were
and were not excessive.
are not indifferent to Justice Koch’s
Therefore,
Ap-
improperly
we reverse
concerns about
volume
potential
peals’
and the
decision
overturn
admitted evidence
damage
plaintiffs’
required
related
or
award
to the
medical
scientific evidence
Minor,
by Camper
claim.
I. warn cause of action. For us to resolve light In of the principles settled dis- that issue in the context of this case would cussed in Part II of the I majority opinion, giving advisory opin be tantamount to an fully part concur in this of the opinion, ion. See State v. Brown & Williamson (Tenn. Appeals’ which affirms the Court of Tobacco Corp., rever- 2000) compensatory punitive sal of the (noting dam- that courts are not to render age Sparkman advisory opinions). awards Ms. based on her In order to negligent infliction of justiciable controversy, question emotional distress a real claim. Like the I majority, hypothetical believe that rather than a theoretical or supported by expert such claims must be one must be at stake. Id. If the rule were after the otherwise, might pro- purportedly be similar accidents the “courts well five is harmless error. minivan was sold advisory into the limitless field of jected Walker, Tenn. Story v. opinions.” ac- Concerning post-sale of the (1966) (internal cita- cidents, my colleagues I all of agree with omitted). deciding It tion follows those proof that the introduction about common law should whether Tennessee view, my incidents error. Justice post-sale failure to claim recognize a warn Koch, properly in separate opinion, his day. must another await in emphasizes frequency of references allegedly similar plaintiffs’ case to other majority of the I also concur Part V incidents, agree him specifically and I with adopts reasoning of the opinion, which that, re- finding of recklessness miscellane- Appeals upholding punitive dam- quired order to award rulings and other evidentiary ous ages, the admission of the error did more the ad- rulings trial court. These concern jury’s than not decision probably affect of similar incidents that occurred mission Thus, the er- punitive damages. to award minivan, excluding prior to the sale of the ror cannot be deemed harmless under proffered by data the manufactur- accident 36(b). R.App. P. I concur in Justice Tenn. er, grant trial as a the failure new Therefore, I re- analysis. Koch’s would discovery for abuse purported sanction judgment punitive verse imposing and not a sanction plaintiffs, for a trial on and remand the case new ad damnum clause an invalid that issue. I complaint. majority, Like the conclude twenty-five the introduction While issues have no largely that these collateral post-sale casts serious doubt accidents merit. award, it legitimacy view, not, destroy jury’s my does II. com- liability decision to find and award damages. found the ways majority pensatory I part Where *24 oth- damages grounds manufacturer liable on three analysis punitive in its post-sale duty than its breach of a opinion. III of the er issue Part (1) manufacturing, and $5,000,000 designing, compensatory dam- warn: awarded seats,1 selling of Joshua for the the minivan with defective ages parents (2) selling manufacturing, and designing, The remitted wrongful child’s death. dangerous unreasonably the of awarded was minivan with amount (3) seats,2 time $13,367,345 failing The ma- at the for the child’s death. warn awards, finding agree the vehicle was sold. I with specifi- these jority affirms that, viewing the record as a supported majority cally punitive award whole, sup- adequate of reck- there is evidence convincing clear and liability impose twenty- port jury’s of decision and that the admission lessness community as to knowledge common to the product one that has a condi- 1. A defective characteristics, rendering product for normal product "unsafe or that the because tion its consumption.” handling anticipatable put dangerous condition would not be of its (2000). 29-28-102(2) §Ann. Tenn.Code reasonably prudent by a manu- on the market seller, assuming that the manufac- facturer or unreasonably dangerous product is one 2. An dangerous condi- turer or seller knew of its beyond that "dangerous to an extent that is 29-28-102(8) § tion.” Tenn.Code Ann. ordinary contemplated by the which would be (2000). it, ordinary purchases with the consumer who compensatory wrongful damages, despite and award award of million for the death $5 Flax, post-sale the introduction of the accidents. one-half to Jeremy apportioned Mallard, See State v. DaimlerChrysler Corpora- the fault of the (Tenn.2001) (“[W]hen looking to the effect tion and the other one- “Defendant”] [the trial, of an error on the evaluate will half to Stockell. I further concur Lewis light that error in of all of proof the other re- them affirmance of the trial court’s trial.”). introduced at damages against punitive duction of death regarding Defendant compensatory Because punitive $13,367,345. $65,500,000 to action from damage vastly awards pur- serve different Finally, agree I million in $2.5 poses,3 difficulty I no affirming compensatory awarded Rachel compensatory wrong- award for the child’s Sparkman negligent for the infliction of ful death. Although improperly admit- distress, emotional one-half of which post-sale ted evidence of likely incidents Defendant, adjudged against the and the jury’s infected the decision to deter and $6,632,655, punitive damages of all of punish the manufacturer expression as an against assessed the Defen- condemnation, of moral I not do believe dant, set aside. should be can jury’s same be said of the decision is, to make the whole. That un- lengthy Because of the trial Davidson award, punitive like with a reprehensi- County transcript consisting and a of thou- bility of the in light manufacturer’s actions pleadings, sands of pages testimony, post-sale accidents was a nonfactor in exhibits, author, I commend the as as well evaluating impose whether to liability and the other members this Court for the Indeed, calculate a compensatory award. expended time and effort on record review the entire concept of recklessness on the and the resolution of these most difficult part of the manufacturer was irrelevant on part my issues. I colleagues join with who Therefore, those issues. it is much less only in the lead opinion viability as to the likely that improperly admitted evi- upon post- of a cause of action based jury’s dence tainted the decision on issues duty By sale way explanation, warn. having nothing to do with dam- I acknowledge would the Restatement ages. Accordingly, I would affirm the (Third) § Liability of Torts: Products compensatory wrong- award for the child’s (1998) authority, as did the trial court. ful death. believe, therefore, I that the trial court I summary, majority concur (which, course, could have known *25 on all except issues their affirmance of the prior jury to the verdict would punitive damages I award. would remand ultimately pre-sale duty sustain the to only for a retrial on the issue of claim) properly testimony admitted warn damages. taking place about similar accidents after Dodge the sale of the 1998 Grand Caravan WADE, J.,
GARY R. concurring. purpose establishing for the limited of that I concur Justice Holder and Chief the Defendant had notice of the defective Justice Barker as to the of propriety design, the seat contributed to the death which Compensatory damages designed engaging are to in the similar misconduct Thus, future. plaintiff Hodges, compensatory make the whole. Id. at 900. unlike dam- contrast, ages, purpose punitive damages S.W.2d at 902. In the of an award of is not punitive damages punish wrongdoer designed compensate injured party. is to the to the wrongdoer and deter the and others from Id. reason, pretrial Many
of Joshua Flax. For I see in the proceedings. that no of these for analysis. need a harmless error complaints collisions into the rear involved of the minivans the seats had where front The complaint allegations included yielded or in a man- collapsed backward Caravan, the by manufactured the Defen- ner, passenger injured and a as a by dant at operated Sparkman and Jim the instances, result. several children sit- accident, time of the included front seats ting yielding behind the seri- seats were unreasonably that were and defective dan- injured. ously Following reports, these gerous, posed danger and to any engineers employed by the Defendant in- directly children seated to the rear.1 Be- provided the their spected vehicles cause Defendant the had failed issue findings to company. the any warnings danger, of that consumers allegations Shortly trial, there company were the before the the Defendant reply brief, responsible compensable arguing filed that this state under the Tennessee Products not Liability recognize post-sale duty did to warn §§ Act of citing unpublished opinion 1978. Tenn.Code Ann. 29-28- an from the (2000). Moreover, 101 to Jeremy authority -108 of as for that Appeals Flax, father, Inc., Spark- Joshua’s Rachel proposition. Lighting, Irion v. Sun man, “Plaintiffs”], M2002-00766-COA-R3-CV, [the his mother main- No. 2004 WL 2004) tained (Tenn.Ct.App. were war- Apr. *17 Defendant, (Third) ranted (“Although because the who knew the Restatement of safety defects, adopts duties, post-sale should have known the Torts some Ten- intentionally recklessly, had by adopted provisions acted nessee had not those and, to market continuing any event, and sell the Caravan proof Ms. Irion’s would duties.”). particularly trigger safe for chil- families with not those The Defen- objected dren. dant further to the admission complaints grounds. hearsay on trial, About three weeks before advocating pretrial hearing, Plaintiffs filed a trial of a jury brief At conclusion trial pertaining ruling instructions to the manufactur- court held that Irion liability, only preclude er’s for harm caused not application a did pre-sale failure to warn of the most recent defective version Restatement seating, post-sale for a permitted but also failure to an alternative claim under specifically, post-sale duty theory. More the Plaintiffs ar- Be- warn. warn gued charge post-sale that a fail- cause trial court concluded that telephone ure to because about many complaints warn was warranted the seats were prove Caravan had the Defen- not to be the truth of owners notified admitted asserted, poor perform- dant after 1998 about the the matter but establish relatively adequate ance minor acci- the Defendant notice of the seats had permission danger, thirty-seven Plaintiffs of these sought potential dents. The complaints introduce as evidence documents held to be admissible. several were “Cares,” arising telephone complaints prior from calls to a Twelve purchase call-in offered the Defendant to Plaintiffs’ the Caravan. service *26 and, Twenty-five its Some instances were occurred customers. 385 afterward therefore, theory trial brought only to the attention of the court relevant to the state, necessary. purpose complaint action” Vanderbilt of a of are Wicksv. Univ., claim; M2006-00613-COA-R3-CV, gen- WL provide "minimum 2007 to notice of a 858780, 21, 2007). support (Tenn.Ct.App. potential eral at *13 Mar. facts that would a cause
549 duty support to the ver- recovery upon post-sale of based to was material evidence trial, present- viability At this evidence was of either jury warn. dict of the as to of part proof. Cohen, ed as a the Plaintiffs’ At v. 61 N.Y.2d claim. See Cover testimony, conclusion of the the trial court 378, 461 N.E.2d 473 N.Y.S.2d jury instructed the to consider the com- (1984) duty a to warn (stating that whether plaints only of the similar accidents for the danger depends “degree on the of alises purpose establishing limited and the num- problem which the involves potential Defendant of the de- was aware reported”). ber of instances in the fect seats Caravan.2 Ulti- Restatement section of the relevant mately, the De- determined that provides as follows: duty warnings fendant failed its to issue (a) in the of sell- engaged One business prior both to the sale of the vehicle and distributing products or otherwise afterward, compensatory and awarded subject liability persons for harm to damages. by or failure property caused seller’s The Tennessee Rules of Civil Procedure warning a after the time of provide pleadings: allow alternative if product sale or distribution of a a (2) party may A set forth or more two person position reasonable the seller’s of a claim or statements defense alter- warning. such a provide would (2) nately hypothetically. or When two (b) person A reasonable in the seller’s or more statements are made position provide warning after would (1) if alternative one them made the time of sale if: sufficient, independently be would pleading by (1) is not made insufficient reasonably the seller or knows insufficiency of one or more of the alter- should product poses know party may native statements. A persons harm to substantial risk of many separate state as claims or defens- property; and has, regardless es as he or she of consis- (2) warning might those to whom a be tency. provided can be identified can rea- 8.05(2) (2007); Tenn. R. P. Civ. Barnes v. sonably be assumed to be unaware Barnes, (Tenn.2006) S.W.3d harm; the risk of (“[Alternative pleadings are expressly (3) effectively can warning be commu- permitted, regardless consistency.”); by nicated and acted on those to Inc., Worley Weigel’s, see also v. warning might provided; whom a be (“An (Tenn.1996) alterna (4) sufficiently great the risk of harm is pleading may tive not be used as an admis justify providing the burden of sion.”). judge, Like the trial I believe that warning. in these circumstances the Plaintiffs were (Third) Restatement present entitled to alternative theories of Torts: Products recovery duty § Liability to warn and that there 10.3 COA-R3-CV, (Tenn. 2. The Defendant filed a motion for an extraor- WL at *3 27, 2006). Ct.App. dinary Dec. appeal pursuant Rule 10 Appellate Tennessee Rules of Procedure with 3. One commentator has described the Re- regard post-sale duty issue. This mo- summary prod- statement Third of Torts’ and, later, tion was denied the trial court liability important ucts law as "the most de- Appeals. also denied the Court of Flax See velopment past in the three decades for those DaimlerChrysler Corp., No. M2005-01768- who must live in the ‘nuts and bolts’ world of Schwartz, liability product Victor E. law.” *27 550 assessment, duty by equalizing asymmetry a com of informa- my post-sale Lovick, public policy both and tradition
ports
parties.”
tion
588
between
many jurisdictions
theory.
al tort
The
at 693.
specialized
N.W.2d
Because of its
recognizing
duty
post-sale
a
failure to knowledge
frequent dealings
awith
agree
that a claim for
warn
product, the manufacturer is in a far bet-
the manufactur
permitted
should be
when
position
ter
than the consumer to discover
or
product
er is
defective
aware
apparent
hidden defects that are not
to
unreasonably dangerous after the sale and
buyer
product
either the
or seller
when
steps to
fails to take reasonable
warn
Comstock,
is first sold.
99
at
See
N.W.2d
buyers
purchased the
those
who have
See,
Wil-Rich,
e.g., Lovick v.
588
product.
duty
requirements
post-sale
for a
to
(Iowa
688,
1999);
v.
N.W.2d
693
Patton
duty in more
pre-sale
warn differ from a
Co.,
Mfg.
Hutchinson Wil-Rich
253 Kan.
ways
just
timing
than
of the transac
Owens-Illinois,
741,
1299,
(1993);
1313
861 P.2d
identify
tion. Because it costs more to
Zenobia,
420,
.
v.
325 Md.
601
Inc
warn consumers after the sale than before
(1992);
633,
A.2d
645-46
Comstock Gen.
control,
see
product leaves the seller’s
163,
Corp.,
Motors
358 Mich.
99 N.W.2d
Patton,
1313,
861 P.2d at
should be
also,
627,
(1959);
Douglas
see
R. Rich
required
analysis
to conduct a cost-benefit
mond, Expanding
Liability:
Products
liability. Restatement
assessing
when
Warn,
Post-Sale Duties to
Manufacturers’
(Third) of
Products Liability
Torts:
Recall,
7,
36 Idaho L.Rev.
Retrofit
10(b)(4).
§
in
Other factors to consider
(1999).
recognize the
The first state to
issued,
warning
clude the kind of the
to be
duty
arising
to
after a sale Mich
warn
people
given,
to
it
to be
whom is
igan.
involving
In a case
defective breaks
industry,
degree
nature of the
Buicks,
Michigan
in the 1953 model
result,
potential
may
harm that
the diffi
manufacturer,
Supreme
held that a
culty
locating purchasers
product,
after a sale discovers a latent defect
who
warning
whether
be heeded if
will
product, may
responsibility
its
have the
given,
potential
product,
life of the
convey
“to take all reasonable means to
involved,
the number
product
kind
have al
warning
effective
those who”
See,
Rekab,
e.g.,
sold.
Inc. v. Frank Hru
Comstock,
ready purchased
product.
Co.,
betz &
261 Md.
551 dant, from key fully complaints of a latent defect is a issue. See Olson aware Prosoco, Inc., customers, v. 522 288-89 or should have known N.W.2d its knew (Iowa 1994). determination posed a sub- As a threshold that the seats its minivans duty in a of post-sale may buyers of a arise harm. Because whether stantial risk of case, “carefully given readily trial courts should have been the Caravan would against the circumstances for and identifiable, examine as- reasonably it can be imposing duty provide post-sale a to a not know sumed that the drivers would (Third) warning.” Restatement of Torts: dramatically yield that the seats would so § Liability cmt. a. Products collision, the second element a rear-end Comstock, See 99 N.W.2d was satisfied. Considering the maimer in for fail- (imposing liability post-sale at 634 duty to post-sale warn has been described an automobile manu- against ure to warn jurisdictions, I by persuaded other am of latent defects in the facturer because function goals compliant its are with automobile). The third element met was the state of tort law Tennessee. Con- because the Defendant could have issued protection always priority. sumer a injury to warnings potential about the Further, view, in my language of our occupants directly located behind those defining “product liability statute a action” front Fourth fi- defective seats. preclude does not a credible claim made re- nally, considering the nature of the post-sale duty under a to warn. Tenn. ported injuries bodily harm to (2000) § Ann. (stating Code 29-28-102 —serious juror children—a reasonable could have product liability actions include a sufficiently of harm found that “the risk “breach or to to discharge duty failure great justify providing to the burden of instruct, warn or negligent, whether or warning.” innocent; concealment, misrepresentation, nondisclosure, or in- negligent, whether or stated, that the trial my As it is view
nocent”)
added).
(emphasis
for notifica-
by admitting
court did not err
ease,
only
twenty-five
this
there
material evi-
tion
similar
purposes
jury
dence for a reasonable
to
post-
find a
incidents that occurred after the sale
duty
testimony
reason,
sale
There
For
I believe
warn.
the Caravan.
this
analysis
as
each of the four elements.
in the lead
With
the harmless error
first,
regard
juror
opinion
regard
reasonable
to this evidence is
otherwise,
unnecessary;
fully
could have determined that
the Defen-
I
concur.4
State,
By concurring
majority,
espe
with the
I am
v.
221 Tenn.
Grooms
constitution,
cially
(1968).
mindful that under our
Although
generally
S.W.2d 176
right
by jury
"the
trial
nature,
shall remain invio
applicable
litigation
equitable
of an
I,
right
§
late.” Tenn. Const. Art.
6. The
right
jury
by
hampered
must not be
by jury
origin
trial
has its
in the common law
Smyrna
v. Rid
conditions
encumbrances.
and in the Constitution of North Carolina at
(Tenn.1987);
ley,
Neely
recklessly that Daimler- Sparkman present expert had failed to Chrysler required pay punitive could be that she had sustained serious damages. The jury retired to deliberate injuries. appel- and severe emotional The and, 23, 2004, further on November re- $13,367,345 late court also reversed the against DaimlerChrysler turned verdict punitive damages wrong- for for the award $66,500,000 in awarding punitive damages Flax concluding ful death of Joshua after wrongful death claim and Jeremy Flax Sparkman that Rachel and $32,500,000 in punitive damages on Ms. present convincing had failed to clear and Sparkman’s negligent infliction of emotion- DaimlerChrysler acted evidence that had al claim. distress recklessly. DaimlerChrysler post-tri- filed the usual Rachel Jer- granted Sparkman’s and challenging al both the motions awards emy application permission Flax’s for damages compensatory and the awards appeal Appeals’ the Court of punitive 11, 2005, review damages. July On Sparkman’s decision to dismiss Ms. claim judgment trial court filed a final order and negligent for infliction of emotional dis- affirming compensatory damages $13,367,345 Exercising authority its under tress and to reverse award awards. Co., damages wrongful for for the Hodges punitive & S.C. Toof (Tenn.1992), trial Flax. In accordance with court reduced death of Joshua wrongful allega- post-sale duty to warn owners about the de- 3. The death claims included DaimlerChrysler negligent in tions that dangerous fective and seats the minivan. manufacture, design, of the mini- sale alleged DaimlerChrysler They knew van and that the front seats in the minivan dangerous reck- that the seats were but had dangerous. unreasonably were defective and lessly failed either to correct them or to warn Sparkman Jeremy al- Rachel Flax also danger. the minivan owners of the leged DaimlerChrysler had its violated 13(a), R.App. DaimlerChrysler devastating potential Tenn. P. for harm im when posed it is entitled to a indiscriminately, has also asserted State Farm Mut. wrongful Campbell, new trial on the death claim. Auto. Ins. Co. v. 538 U.S. (2003) 417, 123 1513, 155 S.Ct. L.Ed.2d 585 The has determined that the Court now (quoting Pac. Haslip, Mut. Ins. Co. v. Life Appeals properly Court of reversed the 1, 42, 499 U.S. 111 S.Ct. 113 L.Ed.2d punitive compensatory awards for (1991) (O’Connor, J., dissenting)). damages negligent in- Sparkman’s for Ms. Court, years ago, fliction of claim. emotional distress Sixteen acknowl- $5,000,000 potential has also affirmed the edging puni- difficulties with compensatory damages awards, damages award has tive limited the circum- $13,867,345 puni- reinstated award stances could tive death of be prescribed procedures awarded and fully Joshua Flax. I concur While assure that damages were reasoning and the result of the Court’s arbitrarily capriciously awarded. *31 of the infliction of disposition negligent Co., Hodges v. & 833 896 S.C. S.W.2d Toof post-sale (Tenn.1992). emotional distress and failure to recognized that punitive We claims, I cannot concur with the deci- warn damages against could be a deterrent “tru- compensatory sion to affirm the awards conduct,” ly reprehensible Hodges v. S.C. punitive damages on the Co., 901, & 833 at and thus S.W.2d we Toof death claims. punitive damages limited awards to cir- in cumstances the defendant has which II. intentionally, fraudulently, acted malicious- ly, or recklessly. Hodges v. Damages & S.C. Toof The Punitive AwaRD Co., 833 901. S.W.2d at damages Punitive been have awarded At the same time that we circumscribed courts for almost one hundred Tennessee’s in punitive the circumstances which dam- seventy years.4 pur Their two-fold awarded, ages prescribed could be four pose punish wrongful is to conduct and to procedures designed puni- assure that from con engaging others similar deter warranted, damages, tive when im- were duct in the future. Miller v. Auto United posed only max, egregious the “most cases” 692, (Tenn.2005); 166 697 S.W.3d then, Sender, in a manner consistent with the 2 Spaces, Inc. v. S.W.3d Concrete (Tenn.1999). Due Process of the Fourteenth 901, Clause salutary As 906-07 are, Amendment to the United States Constitu- purposes recog these the courts have I, tion and Article Section 8 of the Consti- nized that awards arbitrary depriva Hodges tution of Tennessee. See v. S.C. pose danger an acute Co., Honda Motor v. & 833 at 900-02. These property, tion of Co. S.W.2d Toof (1) 415, 432, 2331, trial,5 procedures 512 114 S.Ct. include: a bifurcated Oberg, U.S. (2) (3) (1994), they heightened proof,6 spe- 129 336 and that burden of L.Ed.2d 178, Gilmore, (2 Hum.) 140, Stevenson, 21 Mut. Ins. Co. v. 212 Tenn. 4.Wilkins v. Tenn. (1840). damages (1963). By punitive 368 S.W.2d well-established, were so this awards Court, strong misgivings, despite declined its Co., Hodges 5. v. S.C. & 833 S.W.2d at Toof Shown, Dougherty to discontinue them. v. 901. (1870). (1 Heisk.) During Tenn. 305-06 time, damages re- punitive have been Co., Hodges 6. v. & 833 S.W.2d at S.C. Toof damages,” "exemplary "vindic- ferred to as 901. money." Liberty damages," and "smart tive (4) Oberg, v. 512 U.S. instructions,7 ju- Honda Motor Co. independent cific Accordingly, damages 432, 114 punitive S.Ct. oversight over dicial Company, we re- requires This case consideration & Hodges v. S.C. awards.8 Toof punitive plaintiffs heightened burden trial courts to review quired the oversight punitive way and the courts’ than the proof differently damages awards damages awards. jury verdicts they customarily review Rather damages awards. compensatory v. & Hodges decided S.C. Toof task as their traditional performing than plaintiffs seeking punitive Company that directed trial juror, we the thirteenth “clear and convinc present must award, consid- giving courts to “review defendant’s acts ing evidence” jury matters on which the eration to all intentional, injury that caused them Hodges S.C. required to be instructed.” fraudulent, malicious, Hodg or reckless. Co., at 902. We also & 833 S.W.2d Co., at 901 es v. & 833 S.W.2d S.C. Toof Toof “clearly set forth directed trial courts convincing & n. 3. The clear and all decreasing approving the reasons requires standard the truth fact and findings sought to be established awards proposition demonstrating Teter v. a consid- highly probable. the evidence be conclusions of law Inc., Republic Parking Sys., eration of all factors (Tenn.2005). Co., Clear and convinc & Hodges instructed.” v. S.C. Toof no ing evidence leaves serious or substan at 902.
tial doubt the correctness of the about *32 are damages awards punitive Because the conclusions be drawn from evi different, require a different they also Valentine, 539, dence. In re 79 S.W.3d This stan- appellate standard of review. (Tenn.2002); Hodges 546 v. & S.C. Toof steps. of dard of review consists two Co., Thus, 833 at 901 n. 3. clear convincing produces and evidence the requires heightened proof A burden fact-finder’s mind a firm belief or convic appellate review.9 heightened standard regarding the truth tion of the facts reviewing Accordingly, step the first sought Tiffany to be established. In re appeal is to punitive damages award on B., 148, (Tenn.Ct.App. 228 S.W.3d 155-56 it the record to determine whether review Grabowski, 2007); v. Hibdon 195 S.W.3d supports material that contains evidence 48, v. (Tenn.Ct.App.2005); 63 Wiltcher convincing finding clear (Tenn.Ct. 407, 411 Bradley, 708 S.W.2d intentionally, that the defendant acted App.1985). maliciously, recklessly.10 fraudulently, Co., See, v. e.g., Ford Motor Buell-Wilson
Giving juries
puni-
discretion to award
277,
(Cal.App.2008);
312
Cal.Rptr.3d
73
potential
creates the
tive
Stott,
638,
v.
662 N.E.2d
Budget Car Sales
juries
express
will use their verdicts to
Bank,
(Ind.1996);
businesses,
York v. InTrust
especially 639
against big
biases
405,
N.A.,
271,
429
265 Kan.
962 P.2d
strong
presence.
ones
local
without
Law,
402,
Co.,
405
Hodges
at
Shell v.
935 S.W.2d
7.
v. S.C.
&
833 S.W.2d
Toof
10. Cf.
1996) (stating
(Tenn.Ct.App.
that “when we
901-02.
requiring
to be
reach
the evidence
issues
clear,
Co.,
convincing,
cogent
exam
Hodges
[we will]
v.
&
(1998);
III,
(1996).
L.L.C.,
v.
Flippo
CSC Assocs.
809
State Farm Mut. Auto. Ins.
(2001).
48,
216,
262 Va.
547 S.E.2d
223
At
Campbell,
Co. v.
at
U.S.
123 S.Ct.
stage,
the appellate court must deter
1513;
Indus.,
Cooper
Inc. v. Leatherman
mine
jury
reasonably
whether the
could
Inc.,
Group,
436, 121
Tool
532 U.S. at
S.Ct.
persuaded
have been
required
(1)
guideposts
1678. These
include
findings
factual
proved
highly
to be
degree
reprehensibility
defen
Miller,
probable.
v.
Shrader-Miller
(2)
conduct,
disparity
dant’s
between
(Me.2004).
1139, 1145
A.2d
Stated another
potential
the actual and
harm
suffered
way,
appellate
court must ask whether
plaintiff
punitive damages
and the
sufficient material
presented
evidence was
(3)
award, and
the difference
between
produce
in the mind of a reasonable
punitive damages
by the awarded
fact-finder a firm belief or conviction as to the
penalties
civil
authorized or
imposed
required
proven.
matters
to be
Tele
Am.,
comparable cases.
N.
BMW
Inc.
Servs.,
Elkins,
check
Inc. v.
226 S.W.3d
Gore,
v.
at
U.S.
At
of the
was
appellate
the
a genuine principled debate in the automo-
engage
independent,
court must
in an
de
community regarding just
rigid
tive
“guideposts”
novo evaluation of the three
how
Some,
stiff car
required
for
first
in
seatbacks should be.
like
Am.,
Gore,
witness,
Saczalski,
plaintiffs’
BMW N.
Inc. v.
Kenneth
U.S.
559, 574-75,
using
rigid
S.Ct.
L.Ed.2d
favored
seats that were more
Co.,
Hodges
v. S.C.
&
All including they exceeded the those testi- FMVSS fying DaimlerChrysler, for stated that the strength many other automobile seats.13 (2007). Products, § 12. 49 purpose C.F.R. 571.207 49 U. Defective Manufacturers of “requirements of this (1982) standard is to establish [hereinafter Chi. L.Rev. 40-42 seats, assemblies, their attachment "Owen, Many government Problems safe- "]. possibility their installation to minimize the standards, ty including the numerous stan- acting their failure forces them as a Highway dards issued National Trans- *34 impact.” result of vehicle 49 C.F.R. Administration, portation Safety have been 571.207, § SI. adopted "gray within a area where the diffi- (the defining 'proper' culties of defectiveness compliance applica- 13. A manufacturer's with tradeoffs) safety especially mix of and its are governmental safety regulations ble and in- Problems, Owen, great.” 49 Chi. L.Rev. at U. not, itself, dustry prevent standards does difficulty 41-42 & n. The for manufac- However, punitive damages. awards of evi- heightened turers is even further when an compliance dence of a manufacturer's industry making safety upon decisions governmental industry standards is evi- government regulators experts dence that the did manufacturer not reckless- See, any disregard have been unable to reach consensus. ly safety. e.g., David G. Owen al., Liability Accordingly, et Madden & Owen on Products decisions made within these 18.6, (3d ed.2000); § at 305 generally Victor E. gray should not warrant a areas al., Litigation Owen, Schwartz et Guide Multistate to punitive damages award. See Prob- 10.07, Owen, (1985); § at 202 David G. Prob- lems, & 49 U. Chi. L.Rev. at 40-42 n. 196. Assessing Damages Against lems in Punitive 558 facts,141 the time of the objective find it difficult van’s front seats before
On these However, plaintiffs presented to conclude that sale.15 has also deter convincing that Daim- clear and evidence mined that the introduction of the evidence that lerChrysler recklessly acted so twenty-five post-sale of these incidents was punished beyond being company should be I cannot respectfully harmless error. damages. required pay compensatory agree. appellate courts conduct a harm- When III. P. analysis R.App. less error under Tenn. Twenty- of the Evidence 36(b), they acting like a second must avoid Incidents Five Post-Sale jury by basing analysis on their their own guilt. then assessment of the defendant’s State part proof support
As of the claim, 361, v. post-sale duty Spark- Rodriguez, Ms. S.W.3d 373-74 warm (Tenn.2008). Rather, Flax re harmless érror presented man and Mr. evidence twenty-five scrutiny incidents that oc focuses on the actual basis garding Mallard, verdict, Sparkmans’ jury’s after the sale of the State v. curred 473, (Tenn.2001), im- similar to and the allegedly minivan and that were 30, pact erroneously that occurred on June that admitted evi- accident decision-making. had on properly jury’s 2001. The Court has determined dence Denton, should See v. 16-17 that the evidence of these incidents State (Tenn.2004). analysis A harmless error not have been introduced because Ms. requires Flax cannot assert a a careful examination of the en- Sparkman and Mr. they tire record to the erro- post-sale failure warn because determine whether neously probably DaimlerChrysler was aware admitted evidence more claimed that judgment mini not affected the or resulted alleged dangerousness than Sheridan, regarding Chrysler Corp. plaintiffs’ 14. The Daimler- v. No. 11, 2003), Chrysler's testimony (Mich.Ct.App. WL includes the Feb. recklessness denied, Sheridan, perm. app. employee, Paul who 469 Mich. 666 N.W.2d of a former (2003) (Table). testimony Mr. Sheridan’s DaimlerChrysler's Safety Minivan chaired may very DaimlerChrysler's well reflect over Leadership appar Team. This committee was Sixty story reaction to the and the Minutes ently partially in re created in late regard internal existence some dissension investigative story regarding sponse to an respond how best to the concerns about safety aired of car seats that had been However, stoiy. safety car seat raised February purpose Sixty 1992. Its Minutes in the all the evidence in this taken context of upper management advise level about case, clearly and con it does not demonstrate safety. in the area of what needed to be done engineers Sheridan, vincingly DaimlerChrysler's excluded from Mr. who has been designed acting recklessly they when design testifying regarding in other seatback Dodge cases, front seat for the 1998 Caravan Chrysler Gardner ex rel. Gardner (10th Cir.1996), yield way was intended to in a controlled Corp., 89 F.3d 737-38 from behind. when the minivan was struck Sixty testified that he showed the Minutes meeting 1993 and story at a team in March strength. directly Da- the team discussed seatback 15. The Court has not addressed imlerChrysler’s argument many he was ordered to col of these He also testified that *35 destroy substantially of the March to the lect and the minutes incidents were not similar meeting gave that the team was disband to this lawsuit. Based 1993 and collision rise record, discharged Chtysler my appears that in 1994. review of the it ed November correct, DaimlerChrysler 1994 after accus and thus there is Mr. Sheridan in December valid, second, concluding leaking developmental equally confidential a basis for him of involving magazine. evidence testing World that the admission of the information Auto many these incidents was error. the accusation. See Mr. Sheridan denied
559 and it has been process. “highly prejudicial,”19 State prejudice judicial in to the presentation repetitive 254 at the Rodriguez, S.W.3d 373-74. noted that jury.20 the prejudice accident can evidence the visited outer boundaries in harmless error doctrine 2004 when to other similar incidents The references Court, vote, by upheld divided in numerous that a reason- this case are so $7,366,000 malpractice verdict in a medical person cannot be sure what evidence able by deciding judge’s case that a trial critical in of hold- eventually jury favor tipped credi regarding key comment witness’s wrong- for the ing DaimlerChrysler liable in bility presence jury calculating Flax or in ful death of Joshua harmless error. Mercer v. Vanderbilt damages or compensatory (Tenn. Univ., Inc., 134 134 jury highly unlikely both. It is 2004).16 returning way by in was not influenced some boundary outer harmful and between allegedly similar sheer of these volume uphold harmless error order to circumstances, these incidents. Under $18,367,345 I along. verdict. cannot follow DaimlerChrysler’s lia- jury’s assessment of Any objective reader of this voluminous was, bility and the amount of help being record cannot struck not, than affected probably more frequency plain- of the references in the of other similar incidents that allegedly tiffs’ ease to the other similar should not been admitted. have persons riding Chrys- incidents which injured ler the seats minivans were when IV.
yielded plain- rear end collisions. The prospect requiring I do not relish lawyers repeatedly argued tiffs’ again. parties try these this case How- “[yjou’re going to hear about a bunch ever, reversible error infects when of them ... way There is no to know for fact-finding process, only trial is the new many Chrysler sure how times or Daimler- For the stated remedy. suitable reasons Chrysler collapsed seatbacks have herein, judgment I would reverse or that “the ... wrecks” weak seatbacks remand the case for a new trial on injured killed people” a lot of only. compensatory damages issue of “[tjhere is no evidence from Daimler- Chrysler Corporation that those 37 ai’e the
only injured.” ones killed and generally are in the
Courts cautious ad- pre-
mission similar incident evidence
cisely prejudice because of the that it can
carry.17 Such evidence has been described “extremely harmful to the defense” Inc., jury's presence The trial court in the 19. 362 S.C. Whaley Transp.,
16. stated v. CSX testimony. (2005). changed that the witness had her 609 S.E.2d Univ., Inc., 134 S.W.3d at Mercer v. Vanderbilt C.J., (Drowota, dissenting). Evidence, Economics, Cramp, David Should Jurors be Ethics: What Information 2000m, § 17. 1 McCormick on Evidence a Punitive- Given to Determine the Amount of ed., ed.2006). (Kenneth Broun 6th S. Award?, 57 Md. L.Rev. Damage (1998). 18. John Deere Co. v. May, 1989). (Tex.Ct.App.