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Cone v. Hankook Tire Co. Ltd.

United States District Court, W.D. Tennessee, Eastern Division

January 25, 2017

LISA C. CONE, attorney in fact and next friend of TIMOTHY H.L. FRAZIER, and TIMOTHY H.L. FRAZIER, individually, Plaintiffs,



         Plaintiffs, Lisa C. Cone and Timothy H.L. Frazier, brought this action against Defendant, Hankook Tire Company, Limited (“Hankook”), alleging violations of the Tennessee Products Liability Act. (Docket Entry (“D.E.”) 1.) As a basis for these claims, Plaintiffs allege that Hankook manufactured a tire that suffered a tread separation, causing Frazier to lose control of a concrete mixer truck he was driving. The resulting crash caused Frazier to suffer serious injuries. Currently before the Court is Defendant's motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 regarding the proper measure of compensatory damages. (D.E. 196.) Plaintiffs filed a response, (D.E. 210), to which Defendant's filed a reply, (D.E. 228), making the matter ripe for disposition.

         It is undisputed that Frazier is a quadriplegic, is dependent in all activities of daily living, requires twenty-four-hour care, and will remain so dependent for the remainder of his life. (D.E. 198.) The parties' experts opined that Frazier's post-accident life expectancy is between 13.3 and 14.1 years. (Id.) Plaintiffs, however, assert that Frazier's life expectancy could be as long as twenty-eight years based on the United States Life Tables (“mortality tables”). (D.E. 211 at PageID 4750.) Plaintiffs have submitted a life care plan that calculates the cost of having a caretaker provide the entirety of Frazier's household services, including, but not limited to, cooking, cleaning, preparing meals, and yard work. (D.E. 198.)

         In the instant motion, Hankook argues that any award of damages for Frazier's life care plan should be based on his post-accident life expectancy, approximately 13.3 to 14.1 years, rather than his pre-accident life expectancy, twenty-eight years. (D.E. 196 at PageID 1819.) Further, Defendant contends that Plaintiffs should not recover damages for the loss of Frazier's own household services to himself because those damages would be duplicative of costs included in his life care plans. (Id.) Hankook avers that personal consumption expenditures, which are included in the life care plan, must be deducted when measuring lost future earnings. (Id. at PageID 1819.) Finally, Defendant submits that damages for past medical expenses should be based on the amounts actually paid to providers rather than the amounts charged by them. (Id.)


         Rule 56 of the Federal Rules of Civil Procedure provides in pertinent part that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court must view all evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in the nonmoving party's favor. Ondo v. City of Cleveland, 795 F.3d 597, 603 (6th Cir. 2015). “There is a genuine issue of material fact only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (internal quotation marks omitted). “The test is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. (citing Anderson, 477 U.S. at 251-52) (internal quotation marks omitted). The moving party must initially show the absence of a genuine issue of material fact. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). It is then incumbent upon the nonmoving party to “present significant probative evidence to do more than show that there is some metaphysical doubt as to the material facts to defeat the motion.” Id. (internal quotation marks omitted).

         II. ANALYSIS

         Plaintiffs seek compensatory damages for Frazier's past and future medical care, the loss of household services to himself, and lost future earnings. The primary purpose of compensatory damages is to make the plaintiff whole. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 902 (Tenn. 1992). The party seeking damages has the burden of proving them. Inman v. Union Planters Nat'l Bank, 634 S.W.2d 270, 272 (Tenn. Ct. App. 1982). Proof of damages need not be mathematically precise but must be “as certain as the nature of the case permits and must enable the trier of fact to make a fair and reasonable assessment of the damages.” Overstreet v. Shoney's Inc., 4 S.W.3d 694, 703 (Tenn. 1999). The award of damages is “left to the sound discretion of the trier of fact.” Id.

         A. Life Expectancy

         Plaintiffs' expert, Dr. Howard Katz, estimated Frazier's post-accident life expectancy at 14.1 years as of February 13, 2015. (D.E. 196-2 at PageID 1854.) Hankook's expert, Dr. Michael DeVivo, estimated his post-accident life expectancy at 13.3 years as of September 15, 2015. (D.E. 196-3 at PageID 1872.) The life care plan presented by Plaintiffs calculated damages for two alternative scenarios: one based on a life expectancy of twenty-eight years and another based on a life expectancy of 12.9 years.[1] (D.E. 196-6 at PageID 2227.)

         Cone and Frazier contend that a question of fact exists regarding Frazier's life expectancy. They point out that twenty-eight years is the statistical life expectancy for individuals of Frazier's age, sex, and race pursuant to the mortality tables. (D.E. 210-1 at PageID 4625.) They acknowledge that the parties' experts, taking into account Frazier's spinal cord injury, estimated his life expectancy was between 13.3 and 14.1 years. (Id.) But, according to Plaintiffs, “[r]ecent studies have recognized that the life expectancy is increasing for persons with [] spinal cord injur[ies].” (Id.) Further, Plaintiffs note that Dr. Katz stated it was possible Frazier could live longer than 14.1 years. (D.E. 210-3 at PageID 4702-03.) Thus, they argue that summary judgment is inappropriate because a question of fact exists as to how Frazier's various health conditions will affect his life expectancy. (D.E. 210-1 at PageID 4625.)

         “In order to establish a claim for future medical expenses, [a] plaintiff must show that additional medical treatment is ‘reasonably certain to be required in the future.'” Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 391 (Tenn. Ct. App. 2006) (quoting Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *14 (Tenn. Ct. App. Jan. 28, 2002). The “‘reasonable certainty' standard requires more than a mere likelihood or possibility.” Id. (quoting Henley, 2002 WL 100402, at *14.)

         Plaintiffs rely upon Hall v. Stewart, No. W2005-02948-COA-R3-CV, 2007 WL 258406, at *6 (Tenn. Ct. App. Jan. 31, 2007), in support of their argument that the jury should be presented with a life-expectancy figure from the mortality tables, along with Tennessee Pattern Jury Instruction 14.53, which provides,

The life expectancy read to you is not conclusive but is an average life expectancy of persons who have reached a certain age. You should be aware that many persons live longer, and many die sooner, than the average. This figure may be considered by you in connection with other evidence relating to the probable life expectancy of the ...

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