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Thursday, August 22, 2019

Sunday, August 04, 2019

New Case on Discretionary Costs: Case Remanded (in Part) to Trial Court for Further Consideration

The Tennessee Court of Appeals recently released its opinion in Pinson v. DeBoer, No. M2018-00593-COA-R3-CV (Tenn. Ct. App. Jul. 30, 2019).  The syllabus from the slip opinion reads as follows:
Appeal of an award of discretionary costs to Defendants in healthcare liability action that had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, expert witness fees for medical providers who had treated Plaintiff, expenses for videotaped depositions, and costs for the travel time and deposition preparation time for Plaintiff’s vocational expert. On Plaintiff’s motion, the court modified the award to exclude videographer expenses, expenses attendant to the vocational expert’s deposition, and other court reporter expenses. We modify the award to exclude the witness fees for the providers who treated Plaintiff and to include the court reporter fee for the deposition of Plaintiff’s vocational expert; vacate the portion of the award that reduces the amount of court reporter fees and expenses and remand the case for reconsideration of the award; and reverse the order to the extent it requires the Plaintiff to post a bond or pay discretionary costs prior to re-filing the suit. 
Here is a link to the slip opinion:

NOTE: This case offers a good explanation of discretionary costs as contemplated in a Tennessee state court.  It is a must-read opinion for anyone who has questions on this matter. 

Saturday, June 29, 2019

New Laws Effective in Tennessee on July 1, 2019

Here they are:

Based upon my cursory review of this list, these two are the most salient:

SB173/HB164 Driving laws related to mobile phone use, pp. 3–4; and

SB667/HB729 Court reporter compensation , pp. 70–71.

Monday, June 24, 2019

New SCOTN Opinion on Superseding and Intervening Cause in a Suicide Case

The Tennessee Supreme Court recently issued its opinion in Cotten v. Wilson, No. M2016-02402-SC-R11-CV (Tenn. Jun. 19, 2019).  The syllabus from the slip opinion reads:
In this wrongful death action, the plaintiff estate seeks to hold the defendant liable for negligently facilitating the decedent’s suicide. While staying alone in the defendant’s home, the adult decedent committed suicide by shooting herself with a gun that was unsecured in the defendant’s home. The decedent’s estate sued the defendant, alleging that he should have known the decedent was potentially suicidal and that he negligently facilitated the suicide by failing to secure the gun while the decedent was in his home. The trial court granted summary judgment in favor of the defendant, and the Court of Appeals reversed. We hold that the evidence is insufficient for a trier of fact to find that the decedent’s suicide was a reasonably foreseeable probability; consequently, the decedent’s suicide constitutes a superseding intervening event that breaks the chain of proximate causation. Accordingly, we reverse the Court of Appeals and affirm the trial court’s grant of summary judgment in favor of the defendant.
Here is a link to the majority opinion:

Here is a link to Justice Lee's dissent:

NOTE: This is a must-read opinion for any lawyer wanting to delve into Tennessee's law of intervening and superseding cause, especially in a suicide case.  

Thursday, May 30, 2019

Another New Case on Summary Judgment; Summary Judgment for the Defense Reversed on Appeal

The Tennessee Court of Appeals recently released its opinion in Flagg v. Hudson Construction Co., No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019).  The syllabus from the slip opinion reads as follows:
A motorcyclist sustained severe injuries in an accident on a recently paved portion of a state maintained highway. Alleging that his accident was caused by loose gravel on the highway from the recent paving project, the motorcyclist filed separate actions against the state contractor who resurfaced the state highway and the State of Tennessee. The two actions were consolidated in the circuit court for discovery and trial. Both defendants moved for summary judgment arguing that the plaintiff could not prove that the gravel came from the paving project or that the defendants had notice of the gravel before the accident. The state contractor also argued that it was discharged from liability under the State Construction Projects Liability Act. See Tenn. Code Ann. § 12-4-503 (2011). The trial court initially denied the motions. But after the defendants filed motions to alter or amend based on new evidence, the court reversed its decision and granted the defendants summary judgment on all claims. The plaintiff appealed. Upon review, we conclude that the trial court erred in excluding lay witness opinion testimony and in ruling that expert proof was necessary to determine the source of the gravel. Taking the strongest legitimate view of the evidence in favor of the nonmoving party, we conclude that the plaintiff demonstrated genuine issues of material fact precluding summary judgment. So we reverse.
Here is a link to the slip opinion:

NOTE: This opinion does an excellent job of describing when expert testimony is necessary and the summary judgment standard.  See my note from my prior post as to the applicable standard of review.

New Case on Summary Judgment; Grant of Summary Judgment for the Defense Reversed

The Tennessee Court of Appeals released its opinion the day before yesterday in Emert v. Millennium Taxi Service, LLC, No. E2018-01450-COA-R3-CV (Tenn. Ct. App. May 29, 2019).  The syllabus from the slip opinion reads as follows:
The trial court granted summary judgment to various of the defendants in a personal injury action. The Plaintiff appeals, contending that material facts are in dispute, precluding summary judgment. Finding that disputes of material fact exist, we reverse the judgment and remand the case for further proceedings.
The link the majority opinion is here:

Judge Susano's dissenting opinion is here:

NOTE: This opinion is a good refresher on summary judgment procedure in Tennessee.  However, Tenn. Code Ann. sec.20-16-101, which purports to adopt a summary-judgment standard similar to the one in federal courts, may provide the applicable standard of review instead of Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015), because this case was filed after July 1, 2011.  Rye, 477 S.W.3d at 261 n.7 (pointing out that Tenn. Code Ann. sec. 20-16-101 did not apply therein because the Ryes filed suit before the statute's July 1, 2011 effective date).  However, that may be a distinction without a difference as the standard in 20-16-101 and Rye are consistent.  Rye, 477 S.W.3d at 274 (Bivins, J., concurring).  

Thursday, May 23, 2019

New Case on Voluntary Dismissals ("Nonsuits") under Tenn. R. Civ. P. 41.01

The Tennessee Court of Appeals recently issued its opinion in Lemonte v. Lemonte,No. 63CC1-2018-CV-154 (Tenn. Ct. App. May 17, 2019).  The syllabus from the slip opinion reads:
The day before a hearing on a motion to dismiss for lack of prosecution was held, Plaintiff filed a notice of voluntary dismissal. Plaintiff did not appear at the hearing the following day. As such, the trial court granted the motion to dismiss and dismissed the case with prejudice. We reverse and remand for the entry of an order of dismissal without prejudice pursuant to Rule 41.01 of the Tennessee Rules of Civil Procedure.
Here is a link to the slip opinion:

NOTE: This is a great opinion and a must-read one for any lawyer who practices in the State of Tennessee's courts.  It's a good reminder that, absent few exceptions, a plaintiff has a right to take a voluntary dismissal (a "nonsuit") in civil actions in Tennessee.  No motion seeking leave to nonsuit needs to be filed as I have seen done in some cases; only a notice need be filed.  An order can be submitted later; and the one year to refile under the saving statute runs from the entry of that order.  Tenn. R. Civ. 41.01(3). 

Further, even if a motion for summary judgment is pending, which is one of the exceptions to having a right to take nonsuit, a voluntary dismissal without prejudice can still be taken with court permission.  Stewart v. Univ. of Tenn., 519 S.W.2d 591, 592–94(Tenn. 1974).

Thursday, April 18, 2019

New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to a Failure to Submit a HIPAA-compliant Authorization (When One Was Not Needed?)

The Tennessee Court of Appeals just issued its decision in Williams v. Gateway Medical Center, No. M2018-00939-COA-R3-CV (Tenn. Ct. App. Apr. 18, 2019).  The syllabus from the slip opinion reads as follows:
In this health care liability action, the trial court dismissed the plaintiff’s claims for failure to substantially comply with the requirements of Tenn. Code Ann. § 29-26- 121(a)(2)(E) upon determining that the plaintiff’s pre-suit notice failed to include a HIPAA-compliant medical records authorization. The trial court found that the medical records authorizations provided by the plaintiff failed to include a “[d]escription of information to be used or disclosed” and an expiration date. The trial court further determined that these deficiencies prejudiced the defendants from mounting a defense because they were unable to obtain the relevant medical records. As a result, the plaintiff’s claims were dismissed without prejudice. The plaintiff timely appealed. We consider the plaintiff’s omission of an expiration date insignificant. The HIPAA form provided by the plaintiff failed to substantially comply with the statute because it did not include a description of the information to be used or disclosed, thereby causing prejudice to the defendants. We, therefore, affirm the trial court’s dismissal of the plaintiff’s claims. 
Here is a link to the majority opinion: 

Here is Judge Dinkin's partial concurrence and dissent:

Here is Judge Frierson's partial concurrence and dissent:


I respectfully have a problem with this decision.  It misses the fact that no authorization was even required.  See Note at this prior blog post, to wit: