May an Injured Person Testify About Their Own Pain and Physical Limitations in Tennessee?

We know that an injured person may testify about their own pain and physical limitations in Georgia. But, what about in Tennessee?

The answer is substantially similar in Tennessee. Tennessee Rule of Evidence 602 permits testimony based on personal knowledge, and Rule 701 permits lay opinions that are rationally based on the witness’s perception and helpful to the jury. Thus, a Tennessee plaintiff can testify about her own physical limitations and how the injuries affect her daily life. She does not need to be a medical expert to describe matters within her personal experience.

In Flagg v. Hudson Construction Co., 2019 Tenn. App. Lexis 264 (Tenn. Ct. App. Mar. 13, 2019), for instance, the Court explained that the first requirement of Rule 701 is simply first-hand knowledge or observation. Tennessee Courts are clear and consistent that Plaintiff may testify about subjects such as: her pain, inability to drive, limited ability to groom herself, limitations performing household tasks, and the effects of her symptoms on daily life because those matters are observational and within her personal knowledge.

So, just as in Georgia, in Tennessee an injured person may testify about:

• Where they experience pain;
• How frequently they experience pain;
• What activities make their symptoms worse;
• How their physical abilities have changed;
• Whether they have difficulty walking, standing, sitting, lifting, bending, or reaching;
• Whether they can perform their job as they did before the accident;
• How their injury affects household responsibilities;
• How their sleep has changed; and
• How their injury has affected ordinary activities and quality of life.

While “[l]ay testimony is competent to establish such simple but important matters as existence of pain, its location, [and] inability to work, etc. … it may not be received and  relied upon to prove matters requiring scientific knowledge,”  King  v.  Chase, , 2022 U.S. Dist. LEXIS 113944, at *8 (W.D. Tenn. June 28, 2022) (citation omitted). The biological permanency of an injury is generally considered outside the range of common lay knowledge. Consequently, Tennessee courts have consistently held that lay testimony is insufficient to support a finding of permanent disability, except in the most obvious cases.

The Interaction Between Expert and Lay Testimony in Describing an Injury

Expert and Lay testimony work hand-in-glove. Think of it in terms of a real-life situation. When we get sick or hurt, we seek medical care so that we can get a diagnosis, a treatment plan, and a prognosis. We don’t need the doctor to tell how the injury or illness is making us feel in the present or how it made us feel in the past. We need the doctor to tell us what is going on medically, how to fix it, and what to expect in the future.

The same is true in Court. An injured person cannot tell the jury about the permanency of her injury because that is knowledge that necessarily comes from years of study and experience treating the type of injury sustained. Instead, the injured person can tell the jury what the injury she sustained feels like to her; how it affects her activities; how it limits her abilities to do things as she could before the injury.

The Tennessee Supreme Court explained the difference between (and, perhaps unintentionally, the interaction of) expert testimony and lay witness testimony as follows:

The distinction between an expert and a non-expert witness is that the testimony of a non-expert witness results from a process of reasoning familiar in everyday life and an expert’s testimony results from a process of reasoning which can be mastered only by specialists in the field.

State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992).

The Expert witness’s role, therefore is to explain the injury medically. This helps the jury understand the clinical nature of the injury, how it has been—and often how it will continue to be treated, and the prognosis for recovery. The injured person’s role is to explain in her own words her actual, real-life experience with the injury.

The Injured Person may—and should—Testify about the Unseen Consequences of an Injury.

When a person breaks a leg, she will wear a cast that others can see. When a person treats with a health care provider, a medical record establishes a paper trail documenting the diagnoses, treatments, prescriptions, testings, and medical findings. For example, an x-ray produces a picture of a person’s bones that others can see (and experts can explain).

But medical records and physical manifestations of an injury do not tell the whole story. There is also an emotional toll that an injury takes on an injured person.

• Will I heal from this?
• Will this scar be there forever?
• Will I be able to pick my kids up and carry them in my arms?
• Will I be able to work again?
• What is this going to feel like in 10 years?
• Will I ever get back to feeling like I did before the injury?

So, the question is whether an injured person can describe the emotional price of these types of worries an injured person will naturally have after suffering an injury and whether a jury can consider them. The answer in Tennessee, as in Georgia, is YES.

The Tennessee Supreme Court has made it clear that pain-and-suffering damages compensate for both the physical and mental suffering accompanying an injury. Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 420 (Tenn. 2013). The Court separately recognized loss of enjoyment of life as compensation for impairment of the ability to enjoy the normal pleasures of living.

“Pain and suffering encompasses the physical and mental discomfort caused by an injury.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 715–16 (Tenn. Ct. App. 1999). Compensable suffering includes a wide range of emotional responses, such as “anguish, distress, fear, humiliation, grief, shame, or worry.” Id. at 715.

“The mental suffering that accompanies an injury is accordingly compensable through damages for pain and suffering[.]” Lynn v. Penske Truck Leasing Co., L.P., 2021 Tenn. App. Lexis 451. In this case, the Court of Appeals considered evidence of the plaintiff’s negative emotions resulting from his injuries and accompanying limitations in affirming the future-pain-and-suffering award. Id at 31.

In sum, under Tennessee law, damages for pain and suffering include not only physical discomfort but also the mental and emotional consequences of an injury, including anguish, distress, fear, humiliation, grief, shame, and worry. Where an injury is permanent, the factfinder may consider those continuing consequences in determining future damages, together with the impairment of the plaintiff’s ability to enjoy the normal pleasures and amenities of life. Meals, 417 S.W.3d at 420; Overstreet, 4 S.W.3d at 715–16; Lynn, 2021 Tenn. App. Lexis 451.

As in Georgia, In Tennessee, Pain and Suffering Are Not Simply a Calculation of Medical Bills

An injured person is allowed to testify that she has not been able to return to work since sustaining the injury and that she cannot perform the physical requirements of her job. But, she cannot say that she will never again be able to. That is for an expert to say.

In the QuickTrip Corp. v. Robinson case from Georgia, the Court recognized that that direct evidence specifically stating that a plaintiff will experience pain in the future is not required because the jury may draw reasonable inferences from the evidence based upon common experience and observations. The same is true in Tennessee.

The Overstreet case explains that in Tennessee the jury bears primary responsibility for awarding personal-injury damages, and that damages need not be susceptible to precise mathematical proof. Uncertainty about the amount of damages is different from uncertainty about their existence. Thus, the injured person’s testimony is crucial once the existence of damages is established.

The Tennessee Supreme Court has also recognized that loss-of-enjoyment damages concern “daily life activities that are common to most people.” Borne v. Celadon Trucking Services, Inc., 532 S.W.3d 274 (Tenn. 2017) (quoting Overstreet). Where an issue is within one’s common experience, the jury can “readily draw its own conclusions” from the underlying facts. Blackburn v. Murphy, 737 S.W.2d 529, 532–33 (Tenn. 1987). And in Tennessee, Courts are required to allow “all reasonable inferences” supporting a jury’s verdict. Akers v. Prime Succession of Tenn., Inc., 387 S.W.3d 495, 501–02 (Tenn. 2012).

Take Aways:

• Expert testimony is necessary to establish and explain what the injury is, how it has been and will be treated, the prognosis for recovery, and the expected extent of recovery.
• The injured person’s testimony helps the jury understand the injury through her own actual, real-life experience, and appreciate the consequences of the injury as she has experienced and is experiencing those consequences – both physical and emotional.

By: Bill Rieder