Oral argument was heard in this case in Maryville, Blount County, Tennessee, as part of this Court’s 1

S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 25, 2007 Session Heard at Maryville1

JEREMY FLAX ET AL. v. DAIMLERCHRYSLER CORPORATION ET AL.

Appeal by Permission from the Court of Appeals, Middle Section

Circuit Court for Davidson County

No. 02C-1288 Hamilton V. Gayden, Jr., Judge

No. M2005-01768-SC-R11-CV - Filed July 24, 2008

Cornelia A. Clark, J., concurring in part and dissenting in part.

The heart-wrenching facts of this wrongful death/emotional distress case, which are

adequately set forth in the majority opinion, need not be restated here. The tragedy visited upon this

family is indeed great. The record, like the trial itself, is lengthy. The trial testimony is extensive

and, at times, contradictory. The fact that the members of this Court disagree as to how to resolve

some of the difficult legal issues–which are hotly contested–is no surprise. The case is complex on

multiple levels and resolving the issues presented while attempting to achieve a just result has proven

to be no easy task. 

I.

In light of the settled principles discussed in Part II of the majority opinion, I fully concur in

this part of the opinion, which affirms the Court of Appeals’ reversal of the compensatory and

punitive damage awards to Ms. Sparkman based on her negligent infliction of emotional distress

claim. Like themajority, I believe that such claimsmust be supported by expert medical or scientific

evidence as required by Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). The present case is no

exception, notwithstanding the difficult circumstances experienced by Ms. Sparkman immediately

following the accident. Although I agree with the plaintiffs that some circumstances obviously result

in severe emotional distress, creating an exception to the heightened proof requirements of Camper

would, in my view, undermine Camper’s goal of bringing a measure of consistency and predictability

to an area of the law that had become unwieldy precisely because of exceptions. See Camper, 915

S.W.2d at 445 (noting that ad hoc exceptions in emotional distress cases had “robbed the law of

logic, consistency and fairness”). In my view, requiring all plaintiffs to meet the heightened proof

requirements of Camper provides a much needed common thread in cases for negligent infliction
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of emotional distress. Accordingly, the compensatory and punitive awards to Ms. Sparkman for her

emotional distress cannot stand.

I further concur in that portion of Part IV of the majority opinion holding that the trial court

erred in recognizing the plaintiffs’ second failure to warn claim. The plaintiffs do not contend that

the manufacturer of their minivan discovered problems with the seats after they purchased the

vehicle. Thus, the case simply does not present facts necessary for us to consider the viability of a

true post-sale failure to warn cause of action. For us to resolve that issue in the context of this case

would be tantamount to giving an advisory opinion. See State v. Brown & Williamson Tobacco

Corp., 18 S.W.3d 186, 193 (Tenn. 2000) (noting that courts are not to render advisory opinions).

In order to have a justiciable controversy, a real question rather than a theoretical or hypothetical one

must be at stake. Id. If the rule were otherwise, the “courts might well be projected into the limitless

field of advisory opinions.” Story v. Walker, 404 S.W.2d 803, 804 (Tenn. 1966) (internal citation

omitted). It follows that deciding whether Tennessee common law should recognize a post-sale

failure to warn claim must await another day. 

I also concur in Part V of the majority opinion, which adopts the reasoning of the Court of

Appeals in upholding miscellaneous evidentiary and other rulings of the trial court. These rulings

concern the admission of similar incidents that occurred prior to the sale of the minivan, excluding

accident data proffered by the manufacturer, the failure to grant a new trial as a sanction for

purported discovery abuse by the plaintiffs, and not imposing a sanction for an invalid ad damnum

clause in the complaint. Like the majority, I conclude that these largely collateral issues have no

merit.

 II.

Where I part ways with the majority is in its analysis of the punitive damages issue in Part

III of the opinion. The jury awarded $5,000,000 in compensatory damages to the parents of Joshua

for the child’s wrongful death. The remitted amount of punitive damages awarded was $13,367,345

for the child’s death. The majority affirms these awards, finding specifically that the punitive award

is supported by clear and convincing evidence of recklessness and that the admission of twenty-five

purportedly similar accidents after the minivan was sold is harmless error. 

Concerning evidence of the post-sale accidents, I agree with all of my colleagues that the

introduction of proof about those incidents was error. In my view, Justice Koch, in his separate

opinion, properly emphasizes the frequency of references in plaintiffs’ case to other allegedly similar

incidents, and I specifically agree with him that, as to the finding of recklessness required in order

to award punitive damages, the admission of the error did more probably than not affect the jury’s

decision to award punitive damages. Thus, the error cannot be deemed harmless under Tenn. R.

App. P. 36(b). I concur in Justice Koch’s analysis. Therefore, I would reverse the judgment of

punitive damages and remand the case for a new trial on that issue. 
A defective product is one that has a condition rendering the product “unsafe for normal or anticipatable 2

handling and consumption.” Tenn. Code Ann. § 29-28-102(2) (2000). 

An unreasonably dangerous product is one that is “dangerous to an extent beyond that which would be 3

contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as

to its characteristics, or that the product because of its dangerous condition would not be put on the market by a

reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.”

Tenn. Code Ann. § 29-28-102(8) (2000). 

Compensatory damages are designed to make the plaintiff whole. Hodges, 833 S.W.2d at 902. In contrast,

4

the purpose of punitive damages is to punish the wrongdoer and deter the wrongdoer and others from engaging in similar

misconduct in the future. Id. at 900. Thus, unlike compensatory damages, an award of punitive damages is not designed

to compensate the injured party. Id. 

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While the introduction of the twenty-five post-sale accidents casts serious doubt on the

legitimacy of the punitive award, it does not, in my view, destroy the jury’s decision to find liability

and award compensatory damages. The jury found the manufacturer liable on three grounds other

than its breach of a post-sale duty to warn: (1) designing, manufacturing, and selling the minivan

with defective seats, (2) designing, manufacturing, and selling the minivan with unreasonably 2

dangerous seats, and (3) failing to warn at the time the vehicle was sold. I agree with the majority 3

that, viewing the record as a whole, there is adequate evidence to support the jury’s decision to

impose liability and award compensatory damages, despite the introduction of the post-sale

accidents. See State v. Mallard, 40 S.W.3d 473, 489 (Tenn. 2001) (“[W]hen looking to the effect

of an error on the trial, we will evaluate that error in light of all of the other proof introduced at

trial.”). 

Because compensatory and punitive damage awards serve vastly different purposes, I have 4

no difficulty affirming the compensatory award for the child’s wrongful death. Although the

improperly admitted evidence of post-sale incidents likely infected the jury’s decision to deter and

punish the manufacturer as an expression of moral condemnation, I do not believe the same can be

said of the jury’s decision to make the plaintiffs whole. That is, unlike with a punitive award, the

reprehensibility of the manufacturer’s actions in light of post-sale accidents was a nonfactor in

evaluating whether to impose liability and calculate a compensatory award. Indeed, the entire

concept of recklessness on the part of the manufacturer was irrelevant on those issues. Therefore,

it is much less likely that the improperly admitted evidence tainted the jury’s decision on issues

having nothing to do with punitive damages. Accordingly, I would affirm the compensatory award

for the child’s wrongful death. 

 

In summary, I concur with the majority on all issues except their affirmance of the punitive

damages award. I would remand for a retrial only on the issue of punitive damages. 

___________________________________ 

CORNELIA A. CLARK, JUSTICE