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Durbin v. Sumner County Regional Health Systems9/6/2001
ees' Motions in Limine
1. Emotional Distress, Mental and Emotional Damages and Loss of Consortium
Appellants, Julie and James Durbin, sued the appellees for negligent infliction of emotional distress and loss of consortium. James Durbin, alone, also sued for mental and emotional distress; and Julie Durbin, alone, sued for personal injury and the resulting pain and suffering and mental and emotional distress.
Before trial, appellees each filed various motions in limine. The Hospital filed a motion in limine "to exclude any and all evidence of the plaintiffs' alleged emotional injuries." Dr. Caldwell filed a motion in limine "to exclude Plaintiffs' allegations of intentional and/or negligent infliction of emotional distress and all related evidence . . . ." The trial court then filed an order on April 20, 2000 granting Dr. Caldwell's motion. On April 24, 2000, the trial court granted the Hospital's motion following an offer of proof. In addition, at the end of the appellants' proof, the Hospital moved for a directed verdict as to the claims for negligent infliction of emotional distress. The trial court dismissed these claims with prejudice on the grounds that the appellants had failed to establish a cause of action by competent proof.
Our supreme court set out the standards for proof of negligent infliction of emotional distress in Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). One of the requirements to prove this cause of action is the presentation of expert medical or scientific proof to support the injury claim. Camper, 915 S.W.2d at 446. The appellants did not present any expert medical or scientific proof of their emotional injury at any time before or during the trial. Therefore, since the plaintiffs had not designated any experts to verify their claims of emotional distress, the trial judge acted properly in granting the motions in limine and in dismissing the claims against the hospital at the trial.
The appellants argue Julie Durbin's emotional distress claim does not require expert medical or scientific proof, because she alleged she was physically injured. The court in Camper specifically stated, "we conclude that the [physical manifestation or injury ] rule shall no longer be used to test the validity of a prima facie case of negligent infliction of emotional distress." Id. Therefore, the court abolished the physical injury rule as a limiting factor in a claim for emotional distress, and we do not think the presence of a physical injury dispenses with the requirement of expert proof to establish the claim.
The appellees also filed motions in limine to exclude appellants' evidence for their loss of consortium claims. The trial court granted the motions and based its decision on the belief that Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999), should not be applied retroactively.
The Jordan case allowed for consortium damages in connection with a wrongful death claim. Immediately after Jordan, this court declined to retroactively apply Jordan absent the supreme court's intent to do so. E.g., McCracken v. City of Millington, No. 02A01-9707-CV-00165, 1999 WL 142391, *14-17 (Tenn. Ct. App. 1999); Hill v. City of Germantown, No. 02A01-9803-CV-00078, 1999 WL 142386, *8-11 (Tenn. Ct. App. 1999). The supreme court later decided that Jordan should indeed be applied retroactively. Hill v. City of Germantown, 31 S.W.3d 234 (Tenn. 2000). The supreme court stated: We hold that Jordan applies retroactively to: (1) all cases tried or retried after the date of our decision in Jordan; and (2) to all cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. Hill, 31 S.W.3d at 240
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