In Jordan v. Baptist Three Rivers Hospital Inc.,¹ the Tennessee Supreme Court dramatically changed Tennessee wrongful death law: it allowed for recovery of damages for true human losses — the loss of a spouse, child and, in certain cases, even a sibling or other family member. One stroke of the judicial pen not only increased the value of almost every wrongful death case in Tennessee by injecting true human losses into the grisly audit of death but also made cases that were not economically viable worth bringing.

Under the prior law, the wrongful death of a, say, 65-year-old woman who had not worked outside the household for her entire life — who had chosen to spend her life caring for her children or her spouse — was worth little under Tennessee’s wrongful death law. Such cases often could be pursued if the liability issues were straight-forward. But in products liability, health care liability and other complex cases, a claim could not be economically brought because the numbers that could be “blackboarded” were small and the real loss — the loss of a mother and wife — was not relevant.

But Jordan changed all of that, so that in cases involving the wrongful death of a spouse, the winning plaintiff can recover damages for “the deceased’s attention, guidance, care, protection, training, companionship, cooperation, affection, love and … sexual relations.”² Now, justice could be pursued for that mother and wife, even in complex cases, because the jury was allowed to place a value on the most important loss — the loss of a wife and mother.³

The Jordan opinion did not answer a critical question: should the factfinder in a wrongful-death-of-a-spouse-case be told that the wrongful death plaintiff has remarried? Twenty-six years later, we received an answer from the Tennessee Court of Appeals.

In Davis v. Ellis,⁴ the plaintiff filed a Tennessee Health Care Liability Act (HCLA) claim against the defendant doctor, alleging that Mrs. Davis died because she was not promptly intubated. The jury disagreed and found the defendant. Plaintiff appealed on several grounds, including the decision by the trial judge to allow the jury to know that the plaintiff husband remarried.

The remarriage was a fact, and not a good one for the plaintiff: husband remarried only one year after his wife’s death.⁵ The Court of Appeals affirmed the trial judge’s admission of this evidence, saying  “[a]s remarriage results in the replacement of at least some of the damages to the spouse of a decedent, remarriage is inherently relevant to the loss of consortium claim. We find that this evidence was not prejudicial to the judicial process.”⁶  It does not appear that a Rule 11 Application was filed.

So, there is now a decision that permits a judge to rule that evidence of remarriage is admissible. Sure, if this opinion is not published, there will be a fight about whether it should have any effect in another case. But reasonably prudent plaintiff’s lawyer will advise their wrongful death plaintiffs in a death-of-spouse case that if they remarry before the trial of their wrongful death case there is case law supporting the defense’s attempt to introduce that evidence to the jury.

Regardless of the ruling in Davis, different facts may yield a different result. For example, let us change the facts of Davis. Assume that rather than re-marrying a year⁷ after the death of his spouse, Davis remarried 10 years later⁸ and that he was 70⁹ when he remarried. (Be aware it took over 13 years to get the Davis case to trial.)¹⁰ Should the evidence of re-marriage be admissible here? Or is the probative value of the remarriage outweighed by unfair prejudice? Would it make any difference to the analysis if the Davises had children who also had a claim for loss of companionship for the loss of their mother?

Or, to take things a step further. Assume that the plaintiff and the decedent in Davis had children who were violently opposed to their father remarrying, especially one year after their mother’s death. Can the children insist that the jury separately itemize any loss of the father from their loss, and can they insist that any damages awarded be consistent with that allocation notwithstanding existing law that requires that all damages be divided under the law of intestate succession?

There remain other questions not addressed in Davis. What is the scope of discovery on this issue? Is the defendant allowed to discover whether the plaintiff has been or is dating? Or if the plaintiff was living under the same roof with another? Or if any such relationship(s) includes sexual relations? If so, how much detail is permitted is discovery and will be admissible at trial?

Or what about child death cases? Is the fact that the parent plaintiffs had another child after the death admissible? Is the fact that there is no medical reason that the parents could not have another child admissible? What about a fact that the parents cannot have another child — is that admissible?

One of the frustrations of the common law is that courts usually only answer the precise question put to them under the facts. But this is also one of the beauties of the common law — each new decision gives rise to other fascinating questions, limited only by our imagination and the complex world in which we live. |||

JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood, Nashville and Murfreesboro. He believes that the only thing worse than common law is statutory law, most of which works to the benefit of the rich over the poor and the powerful over the powerless.

NOTES
1. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn. 1999).
2. Id. at 601-02.
3. That was too much for the tort reformers in the General Assembly, who did not trust jurors to follow the law. So, in the hypothetical case above, the legislature limited the value of the loss to $750,000, subject to several exceptions, regardless of what the jury determined the loss to be. Tenn. Code Ann. § 29-39- 102(a)(2). However, the opportunity to collect up to $750,000 for such a loss allowed the door to the continued filing of many (but not all) wrongful death cases where liability appeared strong.
4. No. W2024-01467-COA-R3-CV, 2025 WL 3296175 (Tenn. Ct. App. Nov. 26, 2025).
5. Id. at *8.
6. Id.
7. Davis, 2025 WL 3296175 at *8.
8. The trial in this case took place over 13 years after Mrs. Davis died.
9. Mr. Davis’ actual age is unknown.
10. The case was dismissed on summary judgment a little over seven years after it was filed. Davis v. Ellis, No. W2019-01367-COA-R3-CV, 2020 WL 6499559 (Tenn. Ct. App. Nov. 5, 2020). On Nov. 5, 2020 (16 months after the case was dismissed), the Court of Appeals reversed and remanded. Id. at *1. For unexplained reasons, it took 42 months to get the case to trial. Davis, 2025 WL 3296175 at *2.