Allied Waste North America, Inc. et al v. Lewis, King, Krieg & Waldrop, P.C. et al

Filing 292

MEMORANDUM signed by Chief Judge Kevin H. Sharp on 12/8/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ALLIED WASTE NORTH AMERICA, INC.,
a Delaware corporation; and BFI WASTE
SERVICES, LLC, a Delaware limited liability
company,
Plaintiffs,
v.
WEINBERG, WHEELER, HUDGINS, GUNN
& DIAL, LLC, a Georgia limited liability
company; and TERRANCE SULLIVAN, an
individual,
Defendants.

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No. 3:13-00254
Judge Sharp

MEMORANDUM
After a four day trial in this diversity action, a jury returned a verdict finding that the
Metropolitan Government of Nashville and Davidson County (“Metro”) and its insurer Travelers
Insurance Company (“Travelers”) were damaged in the amount of $4,540,879.00. Because this was
more than the $2.5 million (plus interest and attorneys’ fees) insurance deductible that Plaintiffs
Allied Waste North America, Inc. (“Allied”) and BFI Waste Services LLC (“BFI”) (collectively
“Allied/BFI”) paid to settle an underlying state court action, judgment was entered in favor of
Defendants Weinberg, Wheeler, Hudgins, Gunn Dial, LLC and Terrance Sullivan (“Weinberg
Wheeler”) on Plaintiffs’ legal malpractice claim.
Following the entry of final judgment (Docket No. 272), Plaintiffs filed the now-pending
“Motion for New Trial or for Remittitur and Renewed Rule 50(a) Motion for Judgment as a Matter
of Law Regarding Cost of Repair Damages for the Underlying Lawsuit.” (Docket No. 276). The
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Motion itself is 9 pages long, and is accompanied by a 49-page Memorandum (Docket No. 277) in
support thereof. Those filings were followed by Defendants’ 40-page Response (Docket No. 287)
that, in turn, led Plaintiffs to file a 29-page Reply (Docket No. 291).
I. Standards of Review
A. Motion for New Trial
In diversity cases, federal procedural law applies in determining whether a party is entitled
to a new trial. Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 994 (6th Cir. 2012). Under
Rule 59 of the Federal Rules of Civil Procedure, a court may grant a new trial after a jury verdict
“for any of the reasons for which new trials have heretofore been granted in actions at law in the
courts of the United States.” Fed. R. Civ. P. 59(a). The Sixth Circuit has “interpreted this Rule to
require a new trial only ‘when a jury has reached a ‘seriously erroneous result’ as evidenced by[ ]
(1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the
trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by
prejudice or bias.” Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 405-06 (6th Cir. 2006)
(quoting, Holmes v. City of Massillon, 78 F.3d 1041, 1045–46 (6th Cir.1996)).
B. Renewed Motion for Judgment as a Matter of Law1

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In their response brief, Defendants’ make a passing argument to the effect that Plaintiffs’ Rule 50(a)
request for judgment as a matter of law is untimely because it indisputably was filed more than ten days after
the jury was discharged. However, Rule 50(b) provides that “[n]o later than 28 days after the entry of
judgment – or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the
jury was discharged – the movant may file a renewed motion for judgment as a matter of law and may include
an alternative or joint request for a new trial under Rule 59.” Fed. R. Civ. P. 50(b). According to the
Advisory Committee Notes, the requirement that a party file a renewed motion within 28 days of the jury’s
discharges applies “when the trial ends without a verdict or with a verdict that does not dispose of all issues
suitable for resolution by verdict,” neither of which occurred here. Moreover, Plaintiffs’ Rule 50 motion
presented legal issues wholly unrelated to jury issue and their renewed motion filed on August 23, 2016 was
within 28 days of then entry o judgment on August 2, 2016.

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“[A] renewed motion for a judgment as a matter of law . . . ‘may be granted only if in
viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue
of material fact for the jury, and reasonable minds could come to but one conclusion, in favor of the
moving party.’” Arnold v. Wilder, 657 F.3d 353, 363 (6th Cir. 2011) (citation omitted).

“In

entertaining a motion for judgment as a matter of law, the court is to review all evidence and draw
all reasonable inferences in the light most favorable to the non-moving party, without making
credibility determinations or weighing the evidence.” Jackson v. FedEx Corp. Servs., Inc., 518 F.3d
388, 392 (6th Cir. 2008) (citing, Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 15051(2000)). “In other words, the decision to grant judgment as a matter of law or to take the case
away from the jury is appropriate ‘whenever there is a complete absence of pleading or proof on an
issue material to the cause of action or when no disputed issues of fact exist such that reasonable
minds would not differ.’” Id. (quoting, Jackson v. Quantex Corp., 191 F.3d 647, 657 (6th Cir.
1999)).
II. Plaintiffs’ Position
The length of the briefing2 on the request for a new trial or judgment as a matter of law
perhaps stems from the number of errors alleged by Plaintiffs. First, they claim the Court committed
prejudicial error in conducting the retrial for at least five reasons. Second, they claim the jury’s
verdict is against the weight of the evidence or excessive for at least seven reasons. Third, they
argue that the Court erred in failing to apply the collateral source rule. As a consequence, Plaintiffs
argue that the Court should grant Allied/BFI a new trial on all issues or remit the jury’s verdict to
no more than $259,147.00.

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In addition to the voluminous briefs, Plaintiffs submitted 606 pages of attachments to their Motion.

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Despite the enormity of the briefing, the Court finds it unnecessary to track the arguments
in the order presented. This is because most of what Plaintiffs complain about stems from the
Court’s decision on how the case would be retried, which, in turn, flowed from the lengthy ruling
(Docket No. 132) on the parties’ Motions for Summary Judgment, and the rulings on the Motions
in Limine (Docket No. 228) at the final pretrial conference. Although this Court assumes
familiarity with its prior rulings, some background is, nevertheless, appropriate.
III. Background
On May 23, 2002, fire destroyed the Nashville Thermal Transfer Facility, a waste-to-energy
facility owned by Metro. Thereafter, in a case filed in the Davidson County Circuit Court styled
Nashville and Davidson County, et al. v. BFI Waste Services, LLC, et al., Case Number 05C390T-5,
Metro and Travelers sued multiple defendants, including Allied/BFI, for various causes of action
related to the fire. After an adverse $7.2 million jury verdict, an unsuccessful appeal, and a
subsequent $8 million settlement, Plaintiffs filed a legal malpractice suit in this Court against three
law firms (and some of their members) who had defended Allied/BFI at trial and/or on appeal.
Plaintiffs sued trial counsel, Defendant Levine, Orr & Geracioti, PLLC (“Levine Orr”) and
two of its Members, alleging that those Defendants failed to exercise reasonable care and breached
their retainer contract through a series of errors at trial. Among other things, Levine Orr allegedly
erred by (1) failing to timely designate witnesses that had been provided by Allied/BFI, which led
to a sanctions hearing and an adverse inference instruction; (2) retaining Jonathan Held, who was
not an appraiser, to offer expert testimony about the diminution in value of the facility due to its
obsolescence, but who was found by the trial judge, Joseph Binkley, to be unqualified to testify
regarding the future plans for the facility; and (3) failing to find another expert or introduce other

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evidence that would show that market value of the facility was far less than the cost of repair.
Plaintiffs also sued Lewis, King, Krieg & Waldrop (“Lewis King”) and two of its Members,
as well as Weinberg Wheeler and two of its Members. Both firms had been retained to provided
post-trial motion and/or appellate representation, and were alleged to be unsuccessful because the
Tennessee Court of Appeals affirmed the rulings of the trial court, Metro. Govt. of Nashville &
Davidson Cnty. v. BFI Waste Serv., 2012 WL 1018946 (Tenn. Ct. App. Mar. 22, 2012). In doing
so, the Court of Appeals found that the issue surrounding the exclusion of Held’s valuation
testimony was waived because Held was “not named in Defendants’ motion for new trial or
supporting memorandum nor [wa]s the exclusion of his valuation testimony expressly alleged as an
error in either,” and the “objection to jury instructions and requests for offers of proof” did not
“preserve[] the issue of the exclusion of Mr. Held’s valuation testimony for appeal.” Id. at *6. The
Court of Appeals also upheld the negative inference instruction because a corporate representative
for Allied/BFI had not been properly designated.
It was in this posture that the Court ruled on five dispositive or partially dispositive motions
in this case. First, the Court denied Defendants’ Motions for Summary, except to the extent they
sought to limit Allied/BFI’s damages, and said damages were limited to the amount incurred in
settling the underlying suit, plus attorney’s fees spent in having to pursue this suit. Second, Levine
Orr’s Motion for Partial Judgment on the Pleadings or alternatively Summary Judgment was granted
with respect to Allied/BFI’s breach of contract claim, but denied with respect to the breach of
fiduciary duty claim. Finally, Allied/BFI’s Motion for Partial Summary Judgment on Affirmative
Defenses relating to Plaintiffs’ failure to settle the underlying suit was granted.
In the accompanying Memorandum, the Court discussed at length the standards underlying

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legal malpractice claims and the parties’ respective arguments related thereto. That discussion, see
Allied Waste N. Am., Inc. v. Lewis, King, Krieg & Waldrop, P.C., 93 F. Supp. 3d 835, 854-57
(M.D. Tenn. 2015), is incorporated herein by reference. The Court also opined that Judge Binkley
simply misread the appraisal statute in excluding Held, leaving the question of how that issue would
have been addressed had it been properly preserved for appeal. The Court went on to reject the
argument that the appeals court would have found no abuse of discretion by Judge Binkley because
“misapplication of the statute effectively gutted Allied/BFI's damages case, particularly since the
exclusion of Held had a domino effect on other evidence.” Id. at 858. Nor was the Court persuaded
by the argument that “even if the appeals court had found an abuse of discretion, it would otherwise
upheld Held’s exclusion” because “[t]he more likely scenario [was] that the matter would be
remanded to Judge Binkley who observed that, apart from the appraiser issue, Held had an
‘extremely impressive’ resume.” Id. at 858. “And whether Held’s excluded testimony would have
made a difference in the underlying litigation is a matter for the jury to determine.” Id. at 859.
The summary judgment ruling was entered on March 20, 2015. By the time of the final
pretrial conference on February 29, 2016, however, the claims against Lewis, King and Levine, Orr
and their members had been settled, leaving only Allied/BFI’s claims against Weinburg, Wheeler
and Terrance Sullivan, a partner in that firm. The reduction in the number of Defendants, however,
did not necessarily simplify the case because, while the remaining Defendant’s involvement was
limited, their alleged error had potential ramifications beyond the exclusion of Held. This, in turn,
presented the question of how best to address the Weinberg Wheeler Defendants’ alleged
malpractice.
At the start of the final pretrial conference, the Court indicated that the trial would be

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bifurcated, with the jury first determining damages and then (if necessary) determining whether
Defendants had committed legal malpractice. The Court stated that, even though it “hate[d]” the
prospect of the jury having to sit through a day or more of videotaped trial testimony from the state
trial because the process would be “brutal,” (Docket No. 227, PTC Hrg. at 3) this was the only
feasible approach that would avoid the Court having “to sit up here and think, now, wait what would
or what did Judge Binkley do in the face of this?” and the possible “different evidentiary rulings”
were the Court to rule on admissibility issues. This process, in the Court’s opinion, avoided trying
what would effectively be “a different trial” and preclude the parties from “tak[ing] another bite at
the apple.” (Id. at 4). The Court also recognized, however, that at some point the jury would have
to hear from Held in order to determine if his testimony would have made a difference.
At trial, the Weinberg Wheeler Defendants played the role of Metro, while Plaintiffs played
the role of Allied/BFI. Defendants played video portions of the trial testimony from the
underlying trial that the jury heard during Metro’s case, and provided expert testimony relating to
lost business income and damages to cranes via videotaped deposition testimony that had been taken
for purposes of the underlying suit.
For its part, Allied presented the testimony of Held and Gershman. Held provided expert
testimony regarding damages to real property, while Gershman provided facts regarding the
functional capacity of the facility, the pre-fire decision to close the facility, and the costs of
demolition. Allied/BFI also presented the videotaped testimony of Floyd Mitchell who indicated
that, by the day of the fire, the facility had only two cranes working, one boiler online and one door
open.
As indicated, the jury returned a verdict that was more than the deductible Plaintiffs paid to

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settle the underlying case, and, as a consequence, judgment was entered in favor of the Wheeler
Weinberg Defendants.
IV. Analysis
A. Alleged Prejudicial Error in Conducting Retrial
Plaintiffs argue “the retrial here was prejudicial and unfair to [them] for several reasons.”
(Docket No. 277 at 8). This error allegedly included: (1) failing to conduct the retrial in accordance
with an objective standard; (2) restricting Plaintiffs’ ability to present evidence or cross-examine
witnesses; (3) admitting the underlying state court trial transcript; (4) limiting the retrial to the issue
of damages; and (5) refusing to allow Plaintiffs to present liability evidence once Defendants did
so. All of those arguments flow from the method the Court selected to try the malpractice case
against the Wheeler Weinberg Defendants.
In support of their arguments, Plaintiffs cite several cases that stand for the proposition that
“upon reversal by an appellate court, parties get an unlimited retrial – they are not forced to adhere
to what happened during the first case; rather, they are placed in the position as if the prior
proceedings never occurred.” (Id. at 8-9, emphasis in original). They also argue that “[a] new trial
following remand is governed and controlled by the same principles, practices, and procedures as
at the original trial.” (Id. a 9) (citation omitted).
Plaintiffs’ arguments have some purchase in the context of a true retrial. But, even then, the
rule is not absolute. For example, “[w]hen a general verdict is affirmed as to the issue of liability
but reversed on the award of damages, [the Tennessee Supreme Court] normally remand[s] for a new
trial on all of the elements comprising the monetary award.” Rothstein v. Orange Grove Ctr., Inc.,
60 S.W.3d 807, 814 (Tenn. 2001). That is, “[w]here the trial court errs as to only specific issues,

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[the appeals court] may remand for a new trial and limit the new trial to those issues affected by the
trial court’s error.” Iloube v. Cain, 397 S.W.3d 597, 606 (Tenn. Ct. App. 2012). Thus, present
Plaintiffs may be overreaching when they argue that “the Court should have conducted Retrial
entirely anew just as the trial court would have done upon a remand from the Tennessee Court of
Appeals.” (Docket No. 277 at 10).
Regardless, the Court was not tasked with retrying the underlying case. Rather, the Court
tried a legal malpractice case, the parameters of which were discussed at length in this Court’s ruling
on Defendants’ Motions for Summary Judgment:
To prevail in a legal malpractice action, “a plaintiff must prove that he would have
obtained relief in the underlying lawsuit, but for the attorney’s malpractice;
consequently, the trial of a legal malpractice claim becomes, in effect, a ‘trial within
a trial.’” Shearon v. Seaman, 198 S.W.3d 209, 214 (Tenn. Ct. App. 2005). “In the
first case, the plaintiff must prove that its lawyer’s conduct fell below the applicable
standard of care.” Austion v. Sneed, 2007 WL 3375335, at *5 (Tenn. Ct. App. Nov.
13, 2007) (citing, Mihailovich v. Laatsch, 359 F.3d 892, 904-05 (7th Cir. 2004)). “In
the second case, the plaintiff must prove that it had a meritorious claim or remedy
that it lost or that it was found liable when it should not have been due to its
attorney’s negligence.” Id. Where there is an appeal, “plaintiffs must demonstrate
that the appeal of the underlying litigation would have been successful, and that upon
trial after remand they would have obtained a recovery.” Bruce v. Olive, 1996 WL
93580, at *3 (Tenn. Ct. App. March 4, 1996).
Courts and judges are not clairvoyant. It is impossible to determine what a trial or
appeals judge would decide, or what verdict a jury on retrial might return. All that
can be made is a best guess. Perhaps for this reason, “courts use an objective
standard when determining whether a former client would have prevailed in the
underlying suit.” Austin, 2007 WL 3375335, at *6 (citing Mattco Forge, Inc. v.
Arthur Young & Co., 60 Cal. Rptr.2d 780, 793 (Ct. App. 1997)); see also In re Alan
Deatley Litigation, 2008 WL 4153675, at *7 (E.D. Wash. Aug. 29, 2008) (“The
courts use an objective standard, rather than a subjective standard, when determining
whether a former client would have fared better in the underlying suit”).
“Under an objective standard, the trier of fact views the underlying suit from the
standpoint of what a reasonable judge or jury would have decided but for the
attorney’s negligence.” Id. (citing Phillips v. Clancy, 733 P.2d 300, 303 (Ariz. Ct.
App. 1986)). The question is not what the outcome would have been given a
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particular judge, but rather what it should have been. See Powell v. Potterfield,
2014 WL 2582765, at *3 (S.C. Ct. App. March 19, 2014) (case within a case
determination is “based on an objective standard, i.e., what the outcome should have
been”); Kranendonk v. Gregory & Swapp, PLLC, 320 P.3d 689, 696 (Utah Ct. App.
2014) (citation omitted, emphasis in original) (“In determining what the outcome of
the trial-within-a-trial would have been, an ‘objective standard’ applies; the purpose
of the trial-within-a-trial is to determine ‘not what a particular judge or jury would
have decided (a subjective standard),’ but what the result ‘should have been.’”);
Phillips v. Clancy, 733 P.2d 300, 303 (Ariz. Ct. App. 1986) (“Under an objective
standard, the trier in the malpractice suit views the first suit from the standpoint of
what a reasonable judge or jury would have decided, but for the attorney’s
negligence”).
Allied Waste, 93 F. Supp. 3d at 857-85. 3
Effectively, “[t]he case-within-a-case or trial-within-a-trial approach applied in legal
malpractice cases “[is] an objective approach to decide what should have been the result in the
underlying proceeding or matter.’” Ambriz v. Kelegian, 53 Cal. Rptr. 3d 700, 708-09 (Cal. App.
2007) (citation omitted). “Recreating the underlying action requires calling and examining those
persons who would have been witnesses and presenting the demonstrative and documentary
evidence that would have been presented but for the attorney’s negligence.” Yager v. Clauson, 139

3

Although “the case-within-a-case approach is the accepted and traditional approach for
resolving the issues involved in the underlying proceeding,” Austin v. Sneed, 2007 WL 3375335,
at *6 (Tenn. Ct. App. Nov. 13, 2007), it may not be a talisman. As one court has explained:
“[A] legal malpractice case may proceed in any number of ways depending on the
issues. Included among those options are a ‘suit within a suit,’ any ‘reasonable
modification thereof,’ and a suit based on ‘expert testimony.’ . . . [T]he proper
approach in each case will depend upon the facts, the legal theories, the impediments
to one or more modes of trial, and, where two or more approaches are legitimate, to
plaintiff’s preference. Courts are not to become involved in determining how a legal
malpractice case is tried unless the parties disagree, in which case the final
determination of the court is a discretionary judgment that is entitled to deference.
Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 845 A.2d 602, 604 (N.J. 2004) (citation
omitted). There is no “a hierarchy among those approaches nor [is] there is a presumption in favor
of the ‘suit within a suit’ scheme.” Id.
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A.3d 1127, 1131 (N.H. 2016). Plaintiffs in this case effectively concede as much by arguing that
“[t]he goal of conducting a trial-within-a-trial in the context of a legal malpractice action is to
establish what the result of the underlying litigation should have been under an objective standard.”
(Docket No. 277 at 8).
Weinberg Wheeler’s alleged malpractice had to do with the failure to preserve the Held
exclusion for appellate review and whatever ramifications that failure may have had on the state
court verdict. At the pretrial conference, the Court voiced the opinion that the best way to present
this issue would be for the jury to watch designated portions of the state court trial (which had been
videotaped) supplemented by Held’s testimony. The Court then asked for counsel’s thoughts on the
proposed procedure.
Weinberg Wheeler voiced no real objection, but Allied/BFI argued that the issue was broader
than the exclusion of Held and had a “domino affect” on other evidence. For example, because of
Held’s exclusion, Harvey Gershman, a Metro consultant, was not allowed to testify that the facility
was unable to process trash because the boilers and cranes were not working, and this allowed the
trash to build up, which led to the fire in the first place. This “skewed the liability case” against
Allied/BFI resulted in a “big windfall” for Metro because “the jury needed to know that [the] cost
of repair was really a farce,” instead of being led to believe that “this was just a perfectly functioning
facility and then one day it burned down, and it got all rebuilt and everything was nice and shining
and new[.]” (Id. at 5, 8, 9). Effectively, Allied/BFI took the position that the case needed to be
retried in its entirety on both liability and damages. In other words, it was entitled to a complete doover.
After taking a break to consider the arguments presented, the Court stated:

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I’m, basically, back to where I started. But we’re going to do this: The trial is going
to be bifurcated. We are going to play the tape of the first trial. The issue is
damages, but that means that after the point where the trial stops and Mr. Held comes
on, other damages related to testimony will be included, and that will include
Gershman.
*

*

*

I think [the liability] issue has been decided, and that doesn’t flow back to Held.
That’s not what his testimony was about. And I realize there were rulings that were
made by Judge Binkley that kind of – you know, looking back in hindsight,
predetermined how that was going to come out, but the only issue that relates to
Weinberg’s alleged malpractice relates to Held.
(Id. at 25-26). 4
The Court’s decision to conduct the trial in the manner that it did was made after
considerable thought. And, having considered the matter anew in the context of Plaintiffs’ present
Motion, the Court believes that the decision was sound and was the fairest and most accurate way
to present to the jury the critical question of whether Held’s testimony would have made a
difference.

Retrying the entire case, as Plaintiffs desired, would not have isolated the Weinberg

Wheeler Defendants’ alleged malpractice. Instead, it would have given Plaintiffs a second bite at
the apple, even though the ultimate question in this legal malpractice action was not what the

4

This ruling was subsequently confirmed in writing in the context of the ruling on a Motion
in Limine filed by Weinberg Wheeler:
First, the underlying case will be retried on the issue of damages based upon the
video tape from state court, supplemented by the testimony of Jonathan Held and
Harvey Gershman, along with other damages witnesses who were not called in the
underlying proceeding due to the state trial court’s exclusion of Held, including the
damage witness for Defendant. Second, and if necessary after the jury returns its
verdict in the first trial, trial before the same jury will be held on the malpractice
claim.
(Docket No. 228 at 2).
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Tennessee Court of Appeals would have done were the Held exclusion properly appealed, but rather
what effect his exclusion had on the outcome of the state court case. Thus, the Court created what
it believed to be the closest facsimile to the underlying trial, while affording Plaintiffs the
opportunity to supplement that evidence through the testimony of Held and Gershman.
During the pretrial conference the Court stated that if it was wrong in the manner selected
for trying the case, one or both of the parties could “take that to the Sixth Circuit[.]” (Docket No.
227 at 18). The statement was not intended to be flippant or trite, but rather was a reflection of the
Court’s belief that the method it chose was the best possible given the issues presented and the
posture of the case. The Court maintains that belief and will deny Plaintiff’s Motion for a New Trial
based upon the method used to try the case and the related arguments which have as their basis the
manner in which the case was tried.
B. Weight of the Evidence and Excessive Verdict
Plaintiffs claim that the jury’s verdict was against the weight of the evidence because (1) no
competent evidence supports (a) the claim for damages for business interruption and extra expenses,
(b) the damages based on the costs for crane replacement or consultants, or (c) other costs of repair
damages; and (2) the measure of damages should have been based on diminution of value instead
of cost of repair. Additionally, Plaintiffs argue that the verdict is excessive and beyond the range
of proof because (1) the only competent evidence supports a finding of zero damages with respect
to the facility, cranes, and business interruption; and (2) the total damages based on competent
evidence cannot exceed $259,147.00.
Once again, the manner the Court chose to try the malpractice case against the Weinberg
Wheeler Defendants impacts many of these arguments because some of the damages evidence came

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from deposition testimony and stipulated damages in the underlying case that was read to the jury
in this case. Obviously, this was not ideal for either party, but the goal of the trial was to measure
the effect of the exclusion of Held’s opinion. The goal was not to test Weinberg Wheeler’s ability
to track down almost a dozen witnesses from several state and have them testify as to facts, opinions,
and documents related to a fire that occurred fourteen years earlier.
Regardless, the Court is not convinced that the jury’s verdict was either against the weight
of the evidence or excessive. “[P]roof of damages need not be exact or mathematically precise.”
Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999) (collecting cases). “Rather,
the proof 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.” Id. Moreover, “[t]he amount of damages
is not controlled by fixed rules of law. . . or mathematical formulas,” but “is instead left to the sound
discretion of the trier of fact.” Id.5
Here, the jury returned a verdict of $4,540,879.00, but did not indicate how it calculated that
figure or on which components of damages it relied. This is hardly surprising given that the jury
form was agreed to by the parties and simply asked, “What amount of damages (if any) do you find
were sustained by Metro? (The burden of proof is on Metro).” (Docket No. 240 at 2). Regardless,
the jury heard damages testimony that included: (a) business interruption loss – $1,900,000.00; (b)

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Overstreet was a tort case involving personal injury, but the same general principles hold true in
breach of contract cases. In such cases,
damages become too speculative only when the existence of damages is uncertain, not when
the precise amount is uncertain. . . . Damages need not be calculated with mathematical
precision. . . . In fact, damages can be awarded in breach of contract cases when it is
impossible to prove the exact amount of damages. . . . The evidence need only be reasonably
certain to establish the amount of damages.
Elliott v. Barrett Enterprises, LP, 2015 WL 9946387, at *14 (Tenn. Ct. App. Aug. 14, 2015).

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extra expense of natural gas – $1,900,000.00; (c) cost of repairing the facility – $1,992,201.98; (d)
cost of demolishing the burned building – $951,518.00; (e) cost of replacing cranes – $750,000.00;
(f) professional consulting fees – $203,000.00; (g) extra expenses to Metro caused by the fire –
$1,694,274.00; (h) cleanup costs – $21,882.00, $25,185.00, and $9,078.00; (i) cost of repair
minus depreciation – $1,434,023.00; and (j) cost to remove the crane bay – $209,725.00. Although
it does not appear that adding any combination of these numbers would result in the exact figure
returned by the jury, combining the demolition costs, consultant costs, the cost of the extra expense
portion of adjusted loss, the demolition costs, the costs for crane bay removal, the consultant
costs, the cost of repair minus depreciation, and two of the three figures for fire cleanup would result
in a figure that is very close to that returned by the jury.6
If more precision was required, Plaintiffs should not have agreed to a general verdict,
inasmuch as the “use of special interrogatories . . . avoid[s] the ‘inscrutable mystery of a general
verdict (and) impenetrable uncertainty.’” Petes v. Hayes, 664 F.2d 523, 526 (5th Cir. 1981) (citation
omitted); see Skidmore v. Baltimore & O.R. Co., 167 F.2d 54, 60 (2d Cir. 1948) (observing that “the
general verdict is as inscrutable and essentially mysterious as the judgment which issued from the
ancient oracle of Delphi”). And, “[a]lthough the actions of a jury are sometimes inscrutable, a
verdict is not infirm where there is sufficient evidence upon which the verdict can be based.” State
v. Millbrooks, 819 S.W.2d 441, 446 (Tenn. Ct. App. 1991).
As it stands, the amount returned was within the realm of reasonableness under the facts
presented at trial, meaning that Plaintiffs are not entitled to a new trial or judgment as a matter of

6

Adding those damages would result in a figure of $4,539,607 ($1,694,274 + $951,518 + $209,725
+ $203,000 + $1,434,023 + $21,882 + $25,185), which is just $1,272 less that the verdict the jury reached.

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law based upon the amount of the verdict. Nor are they entitled to remittitur.
Under Tennessee law,7 “the trial court acts as the thirteenth juror and therefore may . . .
suggest a remittitur of the jury award . . . to correct an excessive jury verdict without the time and
expense of a new trial.” Palanki ex rel. Palanki v. Vanderbilt Univ., 215 S.W.3d 380, 386 (Tenn.
Ct. App. 2006). “While the amount of the verdict is primarily for the jury to determine, the trial
judge who presided at the trial and heard the evidence is the next most competent person to pass
upon the matter,” Burlison v. Rose, 701 S.W.2d 609, 611 (Tenn. 1985), and this Court cannot say
that the verdict was excessive or contrary to law.
The decision not to grant a remittitur, new trial, or judgment as a matter of law necessarily
means that the Court is unpersuaded by any of the myriad of arguments raised by Plaintiffs in
relation to the various components of the damages evidence presented by Defendants at trial.
Plaintiffs’ position, in essence, is that (1) no competent evidence supported Metro’s damages claims
(in whose shoes Weinberg Wheeler stood) for (a) business interruption and extra expenses, (b) crane
replacement, (c) consultant costs, or (d) other costs of repair damages; and (2) the measure of
damages was required to be based on diminution of value, instead of the cost of repair.
However, Dayne Grey, a CPA and forensic accountant who was hired to participate in
Traveler’s adjustment of Metro’s loss, conducted a walk-through of the facility and reviewed
“hundreds” of documents before opining that the business interruption loss and increased gas
expenditure for the 140-days following the fire, was approximately $1.9 million.8 Even Held, who

7

In diversity actions, federal courts apply the substantive law of the forum state concerning
remittitur. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427-26 (1996); Zander v. Katz, Sapper
& Miller LLP, 2015 WL 136819, at *1 (M.D. Tenn. Jan. 8, 2015).
8

Although Grey generated a file, he testified that, “as a part of our file maintenance, we disposed
of it in 2007, 2008.” (Docket No. 257 at 36). There is no suggestion that Weinberg, Wheeler is responsible

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had been retained by Allied/BFI, admitted to opining in the underlying case that, “because the plant
had limited utility and a finite time – life at the time of loss, the loss can be no more than the amount
expended under the extra expense portion of the adjusted loss by Travelers in the amount of
$1,694,274,” and that this figure had “nothing to do with real estate value” but “with running a
business.” (Docket No. 258 at 126, 129).
David Egarian, provided a foundation for the loss of the three cranes because of the fire,
testifying that the replacement costs for each was $275,000. In arriving at that figure, Mr. Egarian
examined the remnants of the cranes, and observed that the clamshells were not destroyed but that
the insular facilities were. While Plaintiffs insist that Mr. Egarian’s testimony (presented by
deposition) offered nothing but a bottom line figure, his qualification to express his opinions were
not challenged in the underlying suit.
Further, the approximately $200,000 in consulting fees that the jury could have found is also
supported by the record. Even if Mr. Egarian’s “bottom line” figure of approximately $197,000 is
insufficient, Mr. Held testified that he was of the opinion that Travelers “reasonably adjusted” the
consultant fees in the amount of $203,000. (Docket No. 258 at 131).
And there was sufficient support for the jury to determine cost of repair. Randy Creech, the
president of the consulting division for Belfor USA and an expert in determining the amount of
property damage to disaster-damaged buildings, testified that the reasonable repair costs for the
damaged building was close to $2 million. For his part, Held testified that Travelers had, “for the
most part” had properly calculated the cost to repair the building and that the adjusted building loss
on a replacement cost basis was $1,914,637.55, but that with depreciation the value would be

for Grey’s document retention policy.

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$1,434,023.
To be sure, there is a significant difference between the replacement cost figures and Held’s
depreciated physical loss value. But a jury is not required to accept an expert’s opinion. Rather,
“[e]xpert testimony is not ordinarily conclusive, but is purely advisory in character, and the trier of
fact may place whatever weight it chooses upon such testimony and may retract it if it finds that it
is inconsistent with the facts or otherwise unreasonable.” England v. Burns Stone Co., 874 S.W.2d
32, 38 (Tenn. Ct. App. 1993).
Admittedly, the presentation of damages was cabined by this Court’s ruling on the method
for trying the malpractice case. But, again, whether that decision was correct or incorrect is a matter
for the appeals court to determine.
Finally, Plaintiffs argue that “cost of repair was an improper measure of damages where
repairs never occurred and never were going to occur because the owner determined its property was
obsolete and, in fact, planned to destroy the property before the incident giving rise to the litigation.”
(Docket No. 291 at 24). For this reason, Plaintiffs contend that the proper measure of damages was
diminution in value and the jury should not have been allowed to consider costs of repair.
“Generally, the measure of damages will be the cost or repair unless the repairs are not
feasible or the cost is disproportionate to the dimunition [sic] in value.” GSB Contractors, Inc. v.
Hess, 179 S.W.3d 535, 543 (Tenn. Ct. App. 2005) (emphasis in original). Put somewhat differently,
“[t]he proper measure of damages to real property in Tennessee is the ‘difference between the
reasonable market value of the premises immediately prior to and immediately after the injury, but
if the reasonable cost of repairing the injury is less than the depreciation in value, the cost of repair
is the lawful measure of damages.’” Reavis v. Friedmann, 1992 WL 141047, at *2 (Tenn. Ct. App.

18

June 24, 1992) (quoting Redbud Cooperative Corp. v. Clayton, 700 S.W.2d 551, 560-61 (Tenn. Ct.
App. 1985)). While “[t]he choice of the proper measure of damages is a question of law to be
decided by the court, . . . ‘[d]eterminations concerning the amount of damages are factually driven,”
and “the amount of damages to be awarded in a particular case is a question of fact.” Ray v. Sadler
Homes, Inc., 2012 WL 2150752, at *4 (Tenn. Ct. App. June 13, 2012).
Here, the jury heard evidence about both types of damages, and was presented with proof
and arguments regarding the future of the Thermal Plant Facility.9 It was for this reason that the
Court instructed the jury:
The measure of damages to Metro’s property in the underlying lawsuit is the lesser
of the following amounts:
1. The reasonable cost of repairing the damage to the property, or -2. The difference between the fair market value of the property immediately prior to
and immediately after the damage.
(Docket No. 259 at 60). Except for replacing “real property” with the phrase “Metro’s property in
the underlying lawsuit,” this instruction is identical to Tennessee Pattern Jury Instruction 14.45, and
9

For example, in closing argument Plaintiffs’ counsel argued:

We know that the building was demolished as scheduled. . . . [D]on’t forget, the city had
budgeted two-and-a-half million dollars to tear that building down long, long before this fire
ever happened. So tearing the building down was not a damage or cost to Metro because
they already were planning on doing that. They had already budgeted for that. . . .
Now, in terms of the purported damages in this case, how do they stand in front of you with
a straight face and say, give us damages that are the cost of repairing this facility when
everybody knows that was never intended to be the case, and it never happened? What
happened was a transition to natural gas and demolition of the facility as Mayor Purcell had
decided back in 2000.
(Docket No. 259 at 41-42).

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is in keeping with the Proposed Jury Instructions (Docket No. 238 at 18) agreed to by the parties .
C. Collateral Source Rule
Finally, Plaintiffs argue that the Court erred in failing to apply the collateral sources rule.
This rule was discussed in detail in the context of the Court’s ruling on the Motion for Summary
Judgment, and that discussion, too, is incorporated herein by reference. See, Allied Waste N. Am.,
93 F. Supp. at 850-53. The Court held that “[t]he collateral source rule simply does not apply under
the circumstances of this case,” id. at 851, and Plaintiffs’ present arguments do nothing to change
the Court’s conclusion on this issue.
V. Conclusion
On the basis of the foregoing, Plaintiffs’ “Motion for New Trial or for Remittitur and
Renewed Rule 50(a) Motion for Judgment as a Mater of Law Regarding Cost of Repair Damages
for the Underlying Lawsuit” will be denied.
An appropriate Order will enter.

____________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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