“After a jury has made an award of punitive damages, the trial judge shall review the award, giving consideration to all matters on which the jury is required to be instructed. The judge shall clearly set forth the reasons for decreasing or approving all punitive awards in findings of fact and conclusions of law demonstrating a consideration of all factors on which the jury is instructed.” Hodges v. S.C. Toof & Co., 833 S.W.2d at 902.
After a jury awards punitive damages, it is necessary to file a motion for approval of punitive damages and a request for findings of fact and conclusions of law. It is not uncommon for many trial courts to not be familiar with this requirement. This is very often referred to as a Hodges review. The trial court does not act as a thirteenth juror nor does it conduct a de novo review and re-weigh the evidence.Flax v. DaimlerChrysler Corp, 272 S.W.3d 521, 531 (Tenn. 2008). The trial courts are required to review punitive damages awards differently than the way they customarily review jury verdicts and compensatory damages awards. Rather than performing their traditional task as the thirteenth juror, the high court directed trial courts to “review the award, giving consideration to all matters on which the jury is required to be instructed.” More specifically the trial courts were to consider all factors on which the jury was instructed. Hodges v. S.C. Toof & Co., 833 S.W.2d at 902.
In McLemore v. Elizabethton Medical Investors LPNo. E2010-01939-COA-R3-CV, the trial court stated that the trial Court was not required to re-weigh the evidence as part of its Hodges review, but was required to determine if there was clear and convincing evidence presented to support the amount of the punitive damages awarded to plaintiff by the jury. This is a paramount distinction as the trial court ordinarily acts as the thirteenth juror when it reviews the evidence to determine if the jury’s verdict is or is not supported by the weight of the evidence. Jones v. Idles, 114 S.W.3d 911, 914 (Tenn. 2003). In Flax the Supreme Court made it clear that the trial court does not act as a thirteenth juror nor does it conduct a de novo review and re-weigh the evidence.
As articulated by the Supreme Court in Flax, the standard of review employed by a trial court when conducting a Hodges review of the dollar amount of a punitive damage award is as follows:
We decided in Hodges v. S.C. Toof & Company that plaintiffs seeking punitivedamages must present “clear and convincing evidence” that the defendant’s acts that caused their injury were intentional, fraudulent, malicious, or reckless. Hodges v. S.C. Toof & Co., 833 S.W.2d at 901 & n. 3. The clear and convincing evidence standardrequires that the truth of the proposition sought to be established by the evidence be highly probable. Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330
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