Tuesday, May 23, 2017
On May 4, 1992, the Tennessee Supreme Court adopted a system of modified comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). The petition for rehearing was denied June 1, 1992. Accordingly, we are in the midst of the twenty-fifth anniversary of McIntyre.
The significance of that case cannot be understated. Its affect upon Tennessee tort law remains strong even today. It is worth rereading on occasion. As such, here is a link to that case:
Friday, May 12, 2017
Yesterday the Tennessee Court of Appeals issued its opinion in Higgins v. Green, No. M2016-01369-COA-R3-CV (Tenn. Ct. App. May 11, 2017). Here is the syllabus from the slip opinion:
This appeal arises from a two-car accident. In her complaint, Plaintiff alleged that the collision occurred because Defendant violated several statutory rules of the road by failing to yield the right of way and making a turn across traffic without confirming it was safe to do so. Defendant denied any negligence and claimed that Plaintiff was more than 50% at fault. Following a trial, the jury found that Plaintiff was 75% at fault; as a result, judgment was entered for Defendant. On appeal Plaintiff contends she is entitled to a new trial for two reasons. She contends the trial court abused its discretion by limiting the testimony of the investigating police officer to what the parties told him at the scene and to matters that are reflected in his accident report. She also contends she is entitled to a new trial due to jury misconduct. Finding no abuse of discretion, we affirm.Here is a link to the slip opinion:
New Health Care Liability Action Opinion: Dismissal of Pro Se Plaintiff's Claims by Trial Court Upheld on Appeal in Part
The Tennessee Court of Appeals issued its opinion in Lacy v. Saint Thomas Hospital West, No. M2016-01272-COA-R3-CV (Tenn. Ct. App. May 4, 2017). The syllabus from the opinion states as follows:
Appellant brought a pro se action against several medical providers for injuries sustained when she was allegedly beaten during medical procedures. The trial court dismissed the complaint, under Tennessee Rule of Civil Procedure 12.02, for failure to comply with the procedural requirements of the Tennessee Health Care Liability Act (THCLA). On appeal, Appellant contends that she was not obligated to comply with the THCLA’s procedural requirements because her claim was based in tort and did not assert a health care liability claim. After reviewing the complaint, we conclude that it asserts several distinct claims, some of which are health care liability claims and some are not. We, therefore, affirm the trial court’s dismissal of the health care liability claims, but reverse the trial court’s grant of Appellees’ motions to dismiss the non-health care liability claims.Here is a link to the slip opinion:
New Health Care Liability Action Opinion: The Common-knowledge Exception Dispenses with the Need to File a Certificate of Good Faith
The Tennessee Court of Appeals just issued its opinion in Zink v. Rural/Metro of Tenn., L.P., No. E2016-01581-COA-R3-CV (Tenn. Ct. App. May 2, 2017). The syllabus from the slip opinion states as follows:
In this action regarding injury allegedly caused by an emergency medical technician in the course of rendering medical aid, the trial court determined that the plaintiff’s claims were subject to the Tennessee Health Care Liability Act (“THCLA”) and dismissed the claims with prejudice based on the plaintiff’s failure to file a certificate of good faith pursuant to Tennessee Code Annotated § 29-26-122. The plaintiff has appealed, conceding that his claims sounded in health care liability but asserting that they should not have been dismissed with prejudice because a certificate of good faith was not required. Following our review of the complaint, we conclude that the plaintiff’s claims were subject to the common knowledge exception such that a certificate of good faith was not required pursuant to Tennessee Code Annotated § 29-26-122. We therefore reverse the trial court’s dismissal with prejudice and remand this matter to the trial court for entry of an order dismissing the plaintiff’s claims without prejudice based upon his failure to provide pre-suit notice.Here is a link to the slip opinion:
NOTE: This opinion makes clear that certificates of good faith are only required to be filed with a complaint in a health care liability action when the common-knowledge exception does not apply, which an be tricky to determine.
Thursday, May 11, 2017
The Tennessee Court of Appeals recently issued an excellent opinion that sets out how a defendant's bankruptcy affect the timeliness of a tort action filed against the defendant in McCollough v. Vaughn,
No. M2016-01458-COA-R3-CV (Tenn. Ct. App. Apr. 27, 2017). Here is the syllabus from the slip opinion:
This action arises out of a two-car accident. Prior to the commencement of this action, the driver of the vehicle who is the defendant in this action filed a petition in bankruptcy court. Shortly thereafter, and being unaware of the bankruptcy proceeding, Plaintiffs commenced this action naming the driver of the other vehicle as the only named defendant. Summons was issued for the defendant driver as well as Plaintiffs’ uninsured motorist insurance carrier. Summons was served on the carrier; however, summons for Defendant was returned unserved, and more than a year passed before Plaintiffs requested issuance of an alias summons. Upon motions of the defendant and the uninsured motorist carrier, the trial court dismissed all claims as time barred upon the finding that Plaintiffs failed to comply with Tenn. R. Civ. P. 3 by obtaining the issuance of a new summons for service of process on the defendant within one year of the issuance of the previous summons that was not served. Plaintiffs appeal contending their claims are not time barred because the defendant filed her bankruptcy petition prior to the commencement of this action and Tenn. Code Ann. § 28-1-109 expressly states, “When the commencement of an action is stayed by injunction, the time of the continuance of the injunction is not to be counted.” We agree. The bankruptcy court’s automatic stay not only enjoined the commencement of this action but the issuance of process, and Tenn. Code Ann. § 28-1-109 expressly states that the time of the continuance of an injunction is not to be counted in calculating the statute of limitations. The bankruptcy injunction remained in effect for 202 days; therefore, that period is not to be counted. With the addition of 202 days to the period within which Plaintiffs could obtain the issuance of an alias summons under Tenn. R. Civ. P. 3, the issuance of the alias summons was timely. As a consequence, the trial court’s order dismissing this case is vacated, and this matter is remanded with instructions to reinstate the complaint as to the defendant driver and the uninsured motorist carrier for further proceedings consistent with this opinion.Here is a link to the slip opinion:
NOTE: This is a must-read opinion for any Tennessee practitioner who handles tort cases.
The Tennessee Court of Appeals recently released its opinion in Helyukh v. Buddy Head Livestock & Trucking, Inc., No. W2015-01354-COA-R3-CV (Tenn. Ct. App. Apr. 24, 2017). Here is the syllabus from the slip opinion:
The plaintiffs appeal the grant of summary judgment in a negligence case. One of the plaintiffs, a truck driver, suffered injuries stemming from a collision with another tractor- trailer owned by the defendant and operated by its employee. The plaintiffs claimed that the employee's negligence proximately caused the accident. The owner of the overturned tractor-trailer moved for summary judgment on the ground that the plaintiffs could not establish that its employee's conduct fell below the applicable standard of care. The trial court agreed and granted summary judgment. On appeal, the plaintiffs argue, among other things, that owner of the overturned tractor-trailed failed to meet its burden of production in moving for summary judgment. Because we conclude that the movant failed to demonstrate the absence of material facts that would create genuine issues for trial, we reverse the grant of summary judgment.
Here is a link to the slip opinion:
The Tennessee Supreme Court recently issued its opinion in Jenkins v. Big City Remodeling, No. E2014-01612-SC-R11-CV (Tenn. Apr. 5, 2017). The syllabus from the slip opinion reads as follows:
At issue in this appeal is the liability of a general contractor and two flooring subcontractors for damages sustained by the plaintiffs when a fire destroyed their partially completed house. The plaintiffs alleged that the negligence of the general contractor and the subcontractors caused the fire and that the general contractor had breached the construction contract. The trial court granted summary judgment to the general contractor, holding that the plaintiffs could not rely on res ipsa loquitur to establish an inference of negligence; granted summary judgment to the subcontractors based on the plaintiffs' failure to prove that any negligence of the subcontractors caused the fire; and granted summary judgment to the general contractor based on evidence that the plaintiffs were the first party to materially breach the construction contract. The Court of Appeals, in a divided opinion, affirmed summary judgment to the general contractor based on the inapplicability of res ipsa loquitur; and reversed summary judgment to the subcontractors on the negligence claim and to the general contractor on the breach of contract claim, finding genuine issues of disputed material fact. We hold that the plaintiffs cannot rely on res ipsa loquitur because they did not produce sufficient evidence that the general contractor was in exclusive control of the specific cause or all reasonably probable causes of the fire. We further hold that the plaintiffs did not produce sufficient evidence to establish that any negligence of the subcontractors was the cause in fact of the fire. For these reasons, the general contractor and flooring subcontractors are entitled to summary judgment on plaintiffs' claims based on negligence and breach of contract. We affirm the trial court's grant of summary judgment.
Here is a link to the slip opinion:
Wednesday, April 26, 2017
Yesterday the Tennessee Court of Appeals, Eastern Grand Division, issued its opinion in West v. Epiphany Salon & Day Spa, LLC, No. E2016-01860-COA-R3-CV (Tenn. Ct. App. Apr. 25, 2017). Here is a link to the syllabus from the slip opinion:
This appeal concerns a jury award of damages in a negligence case. Suzanne Bishop West (“West”) sued Epiphany Salon & Day Spa, LLC (“Epiphany”) in the Circuit Court for Hamilton County (“the Trial Court”) for damages resulting from a facial she received that burned her face. Epiphany conceded liability and the matter went before a jury for a determination of damages. The jury awarded West $125,000 in damages. Epiphany filed a motion for remittitur. The Trial Court, finding the award excessive, reduced the award from $125,000 to $47,800. West appeals to this Court, asking that we restore the original jury award of $125,000. Finding no reversible error, we affirm the judgment of the Trial Court.Here is a link to the slip opinion:
Wednesday, March 15, 2017
The Tennessee Court of Appeals has issued its opinion in Popick v. Vanderbilt University Hospital, No. M2015-01271-COA-R3-CV (Tenn. Ct. App. Mar. 13, 2017). Here is the syllabus from the slip opinion:
The plaintiff filed this health care liability action against the defendant hospital after the death of her husband, alleging that his death was the result of negligent medical treatment. The jury returned a verdict in favor of the defendant. On appeal, the plaintiff argues that the trial court committed reversible error in: (1) excluding certain email messages as hearsay; (2) overruling her objections to defense counsel‟s crossexamination of a witness; (3) failing to instruct the jury to ignore statements made by defense counsel in closing argument; (4) refusing a request for a special jury instruction; and (5) declining to change the special verdict form. Discerning no reversible error, we affirm the decision of the trial court.
Here's a link to the slip opinion:
The Tennessee Court of Appeals recently issued its opinion in Cordell v. Cleveland Tennessee Hospital, LLC, No. M2016-01466-COA-R3-CV (Tenn. Ct. App. Feb. 2, 2017). The syllabus from the slip opinion states as follows:
The trial court, pursuant to a motion to dismiss filed by defendants, dismissed the plaintiff’s lawsuit because she did not comply with certain aspects of the Tennessee Healthcare Liability Act incident to the filing of her original complaint. Because we do not construe the allegations in the original complaint as presenting any health care liability claims, we reverse the trial court’s dismissal of this lawsuit and remand for further proceedings consistent with this Opinion.
Here is a link to the slip opinion:
Friday, February 24, 2017
The Tennessee Court of Appeals just released its opinion in Autin v. Goetz, No. W2016-00099-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2017). It is a good read on protective orders and their modification. Here is the syllabus form the slip opinion:
Here is a link to the opinion:
The trial court entered a protective order under Rule 26.03 of the Tennessee Rules of Civil Procedure while the case was ongoing. After the plaintiffs filed a notice of voluntary dismissal, the trial court entered an order confirming the dismissal and extending the protective order "in perpetuity." The defendant did not appeal the final order, but years later filed a motion to modify the protective order. The trial court denied the motion as barred by the doctrine of res judicata. On appeal, the defendant argues that the trial court lacked subject matter jurisdiction to extend the protective order after plaintiffs nonsuited their case. As an issue of first impression, we conclude that the trial court retained jurisdiction to extend and modify its previously entered protective order notwithstanding the voluntary dismissal of the underlying action. We further hold that modification of existing protective orders is authorized by the holding in Ballard v. Herzke, 924 S.W.2d 652, 658 (Tenn. 1996); accordingly, we vacate the trial court's denial of defendant's motion to modify and remand for reconsideration in light of our supreme court's established precedent.(Bolding in original.)
Here is a link to the opinion:
The Tennessee Court of Appeals just issued its opinion in Bogner v. Vanderbilt University, No. M2015-00669-COA-R3-CV (Tenn. Ct. App. Feb. 23, 2017). he syllabus from the slip opinion states as follows:
This is an appeal from a judgment entered on a jury verdict in favor of the defendant in a health care liability action. The plaintiff filed suit against the defendant hospital for medical malpractice, medical battery, and lack of informed consent. The trial court granted a partial directed verdict in favor of the defendant after the plaintiff presented evidence. At the close of all the proof, the trial court denied the plaintiff's motion for a directed verdict on the remaining issues of medical battery and informed consent. On appeal, the plaintiff claims that the trial court erred in denying the motion for a directed verdict, in refusing to adopt the plaintiff's special jury instructions, and in using a confusing special verdict form. Discerning no reversible error, we affirm the judgment of the trial court.Here is a link to the slip opinion:
New Health Care Liability Action Opinion: Trial Court's Dismissal of Action Upheld on Appeal Due to Ineffective HIPAA Authorization
The Tennessee Court of Appeals recently issued its opinion in Rush v. Jackson Surgical Assocs., P.A., W2016-01289-COA-R3-CV (Tenn. Ct. App. Feb. 13, 2017). The syllabus from the slip opinion states as follows:
This is a healthcare liability action. After sustaining injuries as a result of alleged surgical error, Appellant filed this action against the surgeon and his medical group. Appellees moved to dismiss the action for failure to comply with the notice requirement of Tennessee Code Annotated Section 29-26-121(a)(2)(E). The trial court granted the motion to dismiss, and Appellant appeals. Discerning no error, we affirm and remand.
Here's a link to the slip opinion:
NOTE: The syllabus is short and sweet and you have to read the opinion to get an idea of why the case was dismissed. However, I direct you to my blog post of Nov. 19, 2016, which supports my belief that defendants in a health care liability action do not need a HIPAA-compliant authorization to review a patient's PHI/medical records, and, as result, cannot be "prejudiced" by not getting such an authorization as part of a claimant's presuit notice, to wit:
Wednesday, February 08, 2017
New Health Care Liability Action Opinion: Trial Court's Decision Finding That Presuit Notice Was Effective and Grant of Leave to Amend Complaint Upheld on Appeal
The Tennessee Court of Appeals just issued its opinion in Runions v. Jackson-Madison County Hospital District, No. W2016-00901-COA-R9-CV (Tenn. Ct. App. Feb. 7, 2017). The syllabus from the opinion states as follows:
This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In this health care liability action, we must determine whether the plaintiff properly complied with the pre-suit notice requirement found in Tennessee Code Annotated section 29-26-121(a)(1). The original defendants in this matter all filed a motion to dismiss and/or for summary judgment alleging that they did not provide medical treatment to the plaintiff/appellee. Subsequently, the plaintiff filed a response to the defendants' motion acknowledging that she had mistakenly identified a proper defendant in this suit. The plaintiff also filed a motion to amend her complaint attempting to remedy that mistake by substituting in the proper defendant. After both motions were heard, the trial court denied the original defendants' motion to dismiss and/or for summary judgment and granted the plaintiff/appellee's motion to amend her complaint. For the following reasons, we affirm the decision of the trial court and remand for further proceedings.
Here is a link to the opinion: http://www.tncourts.gov/sites/default/files/runionstopn.pdf
Judge Gibson issued a separate opinion concurring in part and dissenting in part, which can be found at this link: http://www.tncourts.gov/sites/default/files/runionstiffinnedis.pdf
NOTE: Respectfully, the majority opinion got it right; Tennessee has a long-standing and well-settled policy that cases are to be determined upon their merits and not upon procedural technicalities.