Cone et al v. Hankook Tire Company, Ltd., et al
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT & TO EXCLUDE EVIDENCE OF UNDISCOUNTED MEDICAL BILLS (D.E. 196 ). Signed by Chief Judge J. Daniel Breen on 1/25/17. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
LISA C. CONE, attorney in fact and next friend of
TIMOTHY H.L. FRAZIER, and TIMOTHY H.L.
HANKOOK TIRE COMPANY, LTD.,
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT &
TO EXCLUDE EVIDENCE OF UNDISCOUNTED MEDICAL BILLS (D.E. 196)
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
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.
I. SUMMARY JUDGMENT STANDARD
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).
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
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.”
(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
This number is slightly lower than the life expectancy estimated by the experts because
it reflects Frazier’s life expectancy at the time the life care plan was made.
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 Plaintiff, including evidence of his health,
occupation, habits, and other activities.
However, Hall was a wrongful death case wherein defendant’s sought to introduce evidence that
the decedent’s pre-existing conditions necessitated a downward departure from the statistical life
expectancy reflected in the mortality tables. 2007 WL 258406, at *5. In Hall, the court noted
that “[l]ife expectancy predictions are anything but certain, but the [mortality] tables still offer a
means by which a jury might calculate reasonable wrongful death damages.” Id. at *6 (emphasis
The issue presently before the Court is very different than that presented in Hall. Here,
Plaintiffs are seeking damages pursuant to a life care plan, which was created to estimate the cost
of care Frazier will require for the rest of his life based on his injuries. Of course, Plaintiffs are
correct that Frazier’s life could exceed the 14.1 year expectancy, just as the life span of a healthy
individual of the same age, sex, and race could exceed twenty-eight years. However, as Dr.
Katz—Plaintiffs’ expert—stated, “Life expectancy is what we -- what we can best estimate his
life to be. And it’s what has traditionally been used in courts for estimating how long -- how
costs are going to work . . . .” (D.E. 196-4 at PageID 1981-82.) The Court agrees that it would
be improper for the jury to base an award on a life expectancy that both experts agree does not
apply to Frazier. Thus, Plaintiffs’ life care plan damages must be based upon his current, post-
injury life expectancy, in accordance with the experts’ opinions.
Defendant’s motion is
GRANTED on this issue.
B. Household Services
Dr. George H. Carter, Plaintiffs’ economist, has estimated that they are entitled to recover
$249,939 in damages for the loss of Frazier’s household services to himself. (D.E. 210-5 at
PageID 4721.) According to Dr. Carter, “[h]ousehold service losses represent the value of
replacing the previously uncompensated activities necessary for daily life.” (Id. at PageID
4712.) He defined these services as “household chores, shopping, fixing things, etc.” (Id. at
PageID 4721.) However, according to Defendant, Frazier’s life care plan includes the cost of
having another person provide twenty-four hour in-home care. (D.E. 196-9 at PageID 2374.)
Thus, Hankook contends, allowing damages in both categories would be duplicative.
In response, Plaintiffs point to Dr. Carter’s opinion that damages for loss of household
services and expenses provided for in the life care plan are not the same. Dr. Carter testified that
a life care plan measures the costs that will be incurred to maintain Frazier in a “subsistent state.”
(D.E. 210-6 at PageID 4733.) In contrast, he said that household services related to things that
he could previously do for himself but was no longer capable of completing due to his injuries,
such as preparing food and cleaning up. (Id. at PageID 4737.) According to Dr. Carter, the
ability to complete those tasks had a value, which was represented in the loss of household
services. (Id. at PageID 4738.) He opined that having a caregiver prepare food for Frazier was
not a substitute for the loss of his ability to perform that activity himself. (Id.)
Plaintiffs rely upon Spotlite Skating Rink, Inc. v. Barnes, 988 So.2d 364 (Miss. 2008), in
support of their argument. In that case, the Mississippi Supreme Court rejected a challenge to
Dr. Carter’s methodology in calculating the “present net cash value” of the decedent ten-year6
old’s life expectancy. Id. at 370. However, that case is distinguishable because it was a
wrongful death case and did not involve the type of damages which Defendant in the present
case alleges are duplicative. In short, Spotlite is not helpful in resolving the specific issue
presented in this case.
The Court has not found, and Plaintiffs have not cited, any cases where damages for loss
of household services were awarded to an injured person. Rather, case law shows that they are
typically awarded to a spouse where the injured person or decedent will no longer be able to
provide household services, thus, the spouse is compensated for that loss. See Huskey v. Rhea
Cnty., No. E2012-02411-COA-R3-CV, 2013 WL 4807038, at *18 (Tenn. Ct. App. Sept. 10,
2013); Jackson v. Miller, 776 S.W.2d 115, 116-17 (Tenn. Ct. App. 1989). Indeed, “[l]oss of
services is a part of the loss of consortium[.]” Carter v. United States, No. 3:11-0930, 2014 WL
1630824, at *17 (M.D. Tenn. Apr. 23, 2014).
In the present case, Plaintiffs are seeking
compensation for the loss of household services to Frazier himself. But, as Hankook points out,
damages in his life care plan provide for the cost of someone to cook, clean, and perform other
household chores. In other words, the tasks that he can no longer complete for himself will now
be performed by another person, the cost of which is included in the life care plan. The Court
agrees that allowing him to recover for both the loss of household services to himself as well as
expenses in his life care plan for another person to provide twenty-four hour care would be
duplicative and improper. See 8 Tenn. Prac. Pattern Jury Instr. T.P.I.—14.01 (2016 ed.) (“You
may not duplicate damages for any element by also including that same loss or harm in another
element of damage.”) Thus, Defendant’s motion is GRANTED in this respect.
C. Future Personal Consumption Expenditures
Hankook next contends that future personal consumption expenditures should be
deducted from Frazier’s lost future earnings.
Plaintiffs counter that there are personal
expenditures that Frazier may incur that are not included in his life care plan, such as
“necessities, comforts, and niceties.” (D.E. 210-1 at PageID 4631.) For example, “Frazier may
decide to purchase certain clothing items, electronics or other things for his home to enjoy.
According to Defendant, in wrongful death cases, Tennessee law requires that personal
consumption expenditures be deducted from an award of damages for lost future earnings. See
Wallace v. Couch, 642 S.W.2d 141, 143 (Tenn. 1982); Reed v. PST Vans, Inc., 156 F.3d 1231,
slip op. at 3 (6th Cir. 1998) (unpublished table decision). Hankook acknowledges that there are
no Tennessee cases extending this reasoning to personal injury cases. However, Defendant cites
to Flannery v. United States, 718 F.2d 108 (4th Cir. 1983), in support of its position. In
Flannery, the court considered whether a permanently comatose patient could be awarded
damages for loss of enjoyment of life. Id. at 111. The court reasoned that the plaintiff could not
“use the [damages award],” could not “spend it upon necessities or pleasures,” and could not
“experience the pleasure of giving it away.” Id. It noted that he had been compensated for the
cost of future medical expenses, which would take care of his physical needs. Thus, the court
concluded that the award for loss of enjoyment of life would be “compensatory [only] to those
relatives who will survive him” and that it constituted a punitive award, which was not allowable
under the circumstances of that case. Id.
Cone and Frazier correctly point out that, unlike the plaintiff in Flannery, Frazier is not
comatose. Plaintiffs aver that there are personal expenses not provided for in the life care plan
that Frazier may incur. Neither party has pointed to a list of the specific items included in the
life care plan, thus, it is not possible to assess what items may be duplicated with personal
expenditures. However, if Cone and Frazier are able to establish that Frazier will incur personal
expenditures that are not otherwise provided for in the life care plan, that amount should not be
deducted from his claim for lost future earnings. Accordingly, Defendant’s motion is DENIED
in this respect.
D. Medical Expenses
Defendant next argues that Plaintiffs are only entitled to recover the amounts actually
paid for medical expenses rather than the amounts billed. Specifically, Hankook contends that
the discounted amount paid by insurance to the provider should be relied upon for calculating
medical expenses damages, “not the usually much higher full amount originally charged or billed
by [Frazier’s] medical providers.” (D.E. 196-1 at PageID 1832.) Plaintiffs disagree, pointing to
recent case law holding that a plaintiff may present evidence that the amount of medical
expenses billed or charged is reasonable.
“An injured plaintiff bears the burden of proving that medical expenses the plaintiff is
seeking to recover are necessary and reasonable.” Borner v. Autry, 284 S.W. 3d 216, 218 (Tenn.
2009). Pursuant to Tennessee Code Annotated section 24-5-113(b)(1),
[i]n any civil action for personal injury brought by an injured party against the
person or persons alleged to be responsible for causing the injury, if an
itemization of or copies of the medical, hospital or doctor bills which were paid or
incurred because of such personal injury are served upon the other parties at least
ninety (90) days prior to the date set for trial, there shall be a rebuttable
presumption that such medical, hospital or doctor bills are reasonable.
In West v. Shelby County Healthcare Corporation, the Tennessee Supreme Court held
that, in cases brought pursuant to the Tennessee Hospital Lien Act, Tennessee Code Annotated
§§ 29-22-101 to -107, “reasonable charges” for medical services means the charges agreed to by
the insurance company and the hospital. 459 S.W.3d 33, 46 (Tenn. 2014). The supreme court
based its decision in part on the fact that non-discounted charges did not reflect the amount
actually being paid in the market place because insurers generally did not pay the full amount
billed. Id. at 45. Thus, “[a] more realistic standard is what insurers actually pay and what the
hospitals [are] willing to accept.” Id. (alterations in original) (quoting Howell v. Hamilton Meats
& Provisions, Inc., 257 P.3d 1130, 1144 (Cal. 2011)).
Following the supreme court’s decision in West, several courts in this district considered
whether that case’s holding applied in personal injury actions.
In Hall v. USF Holland,
Incorporated, the court answered that question in the affirmative, concluding that, as in the
hospital lien context, plaintiffs seeking damages in a personal injury action are required to prove
that their medical bills are necessary and reasonable. 152 F. Supp. 3d 1037, 1040 (W.D. Tenn.
2016). The court reasoned that “undiscounted hospital bills do not represent the reasonable cost
of services provided,” thus, the plaintiffs “would not be able to recover the amount stated on
those bills.” Id. at 1040; see also Smith v. Lopez-Miranda, 165 F. Supp. 3d 689, 691 (W.D.
Tenn. 2016) (holding that, pursuant to West, “undiscounted hospital charges do not constitute
evidence of ‘reasonable and necessary’ medical expenses”); Keltner v. United States, No. 2:13cv-2840-STA-dkv, 2015 WL 3688461, at *4 (W.D. Tenn. June 12, 2015) (concluding that nondiscounted medical bills were “not an ‘expense’ because [they] were not ‘expended’ or even
‘incurred’”) (citing Howell, 257 P.3d at 1138).
Thereafter, in Dedmon v. Steelman, the Tennessee Court of Appeals considered whether
the holding in West applied in personal injury actions. No. W2015-01462-COA-R9-CV, 2016
WL 3219070 (Tenn. Ct. App. June 2, 2016), perm. app. granted (Oct. 21, 2016). The court of
appeals acknowledged that trial courts had “reached opposite conclusions as to the impact of
West on Tennessee tort law.” Id. at *9. The court also noted that several federal district courts
had “interpreted West as defining the standard of reasonableness for medical expenses in
personal injury litigation.” Id. (citing Smith, 165 F. Supp. at 690-93; Hall, 152 F. Supp. 3d at
1041; Keltner, 2015 WL 3688461, at *3-5). Nevertheless, the Dedmon court concluded that
West’s holding did not apply outside the context of cases brought under the Tennessee Hospital
Lien Act. Id.
Applying existing Tennessee law, the court found that “[d]amages in personal injury
cases are not measured by ‘fixed rules of law’ but rest largely in the discretion of the trier of
fact.” Id. at *10 (alteration in original) (quoting Roberts v. Davis, No. M2000-01974-COA-R3CV, 2001 WL 921903, at * 4 (Tenn. Ct. App. Aug. 7, 2001)). It noted that in West, the supreme
court specifically held that “[the hospital’s] non-discounted charges . . . should not be considered
reasonable charges for the purpose of Tenn. Code Ann. § 29-22[-]101(a)[.]” Id. at *9 (alteration
in original) (quoting West, 459 S.W.3d at 44). Therefore, the court of appeals concluded that
under the law as it presently exists in Tennessee, a plaintiff may present the
testimony of a physician who testifies that the amount of medical expenses billed
or charged to a plaintiff was reasonable. . . . [E]xisting law in this state also
makes clear that [d]efendants are permitted to offer proof contradicting the
reasonableness of the medical expenses.
Id. at *11. The Tennessee Supreme Court is currently reviewing Dedmon but has yet to issue an
Since the Dedmon decision, two more courts in this district have revisited the issue of
whether West applies in personal injury cases.
In Boettcher v. Shelter Mutual Insurance
Company, the court concluded that Dedmon was dispositive and that West did not preclude a
plaintiff from presented undiscounted medical bills to the jury in a personal injury case. No.
2:14-cv-02796-JPM-dkv, 2016 WL 3212184, at *3 (W.D. Tenn. June 8, 2016). The court
reasoned that Keltner, Hall, and Smith were inconsistent with the more recent Dedmon decision.
According to the court, those opinions also failed to appreciate the presumption of
reasonableness provided to plaintiffs pursuant to Tennessee Code Annotated section 24-5113(b)(1). Id.
Most recently, in Johnson v. Trans-Carriers, Incorporated, another court in this district
concluded that, although Dedmon could not be ignored, it was more likely that the Tennessee
Supreme Court would extend its holding in West beyond the hospital lien context. No. 2:15-cv2533-STA-dkv, 2017 WL 28004, at *3 (W.D. Tenn. Jan. 3, 2017). Like earlier courts to apply
West in personal injury cases, the Johnson court defined the “necessary and reasonable” medical
expenses as the amounts actually paid by the plaintiff’s insurance company. Id.
This Court finds the reasoning in Keltner, Hall, Smith, and Johnson persuasive, and
agrees with the Johnson court that, upon review of the Dedmon decision, the Tennessee Supreme
Court is likely to hold that an injured plaintiff’s non-discounted medical bills do not represent
necessary and reasonable medical expenses in personal injury actions. See Hartford Fire Ins.
Co. v. Lawrence, 740 F.2d 1362, 1365 (6th Cir. 1984) (“[I]f the state’s highest court has not
spoken to the question in controversy, the federal court must discern how the state courts would
respond if confronted with the question.”) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)).
This court finds it unlikely that the Tennessee Supreme Court will apply inconsistent meanings
of “necessary and reasonable” medical expenses in different types of tort cases. Therefore,
Frazier is entitled to recover the amount of medical bills that he incurred, and the Court
concludes that the amounts actually paid by the insurer are the necessary and reasonable
expenses, not the non-discounted amounts billed. Defendant’s motion is GRANTED on this
Based on the foregoing and the record as a whole, Hankook’s motion for summary
judgment is GRANTED in part and DENIED in part. Plaintiffs will be required to present a life
care plan calculated with Frazier’s post-accident life expectancy in accordance with the experts
opinions and may not seek damages for Frazier’s loss of household services to himself.
However, Plaintiffs may present evidence that Frazier will incur personal expenditures not
provided for in the life care plan. Further, Defendant’s motion to limit Plaintiffs’ proof of
medical expenses to the discounted amounts is GRANTED.
IT IS SO ORDERED this 25th day of January 2017.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?