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Thursday, August 06, 2020

New Health Care Liability Action Opinion: Denial of Motion to Strike Upheld on Appeal; Dismissal of the Case, However, Was Reversed

The Tennessee Court of Appeals has released its opinion in Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a healthcare liability action. In these proceedings, the plaintiff filed a complaint against the defendants in January 2018. The Trial Court issued summonses the following day, and the plaintiff’s attorney took the summonses to serve through private process instead of through the local sheriff’s department. Service was subsequently completed on the defendants’ registered agent eighty-nine days after issuance of the summonses. The defendants filed an answer raising as an affirmative defense that the defendants had not been properly served with process pursuant to Tennessee Rule of Civil Procedure 4. The returns for the original summonses were not filed with the Trial Court until January 2019. The plaintiff filed a motion to strike the defendants’ affirmative defense alleging that the defendants had not sufficiently pled it pursuant to Tennessee Rule of Civil Procedure 8.03. Thereafter, the defendants filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 4.01(3) and 12.02(4)-(5), alleging intentional delay of process, insufficient service of process, and insufficient process. The Trial Court denied the plaintiff’s motion to strike the affirmative defense and granted the defendants’ motion to dismiss. The plaintiff appeals. Upon a review of the record, we affirm the Trial Court’s denial of the plaintiff’s motion to strike but reverse the Trial Court’s grant of the defendants’ motion to dismiss. 

Here is a link to the opinion:

NOTE: This is the correct decision as to the motion to dismiss.  Defendants, as movants of that motion, had the burden of proving that the delay in service was intentional under Rule 4.01(3),  Tenn. R. Civ. P., Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 12, which they failed to do.  This is where one must be mindful of one of the common law maxims of pleading: "affirmanti, non neganti, incumbit probatio–the burden of proof rests upon him who affirms, not upon him who denies."  City Nat’l Bank v. Barnes, 51 S.W.2d 503, 504 (Tenn. 1932). 

Further, service of a summons within the ninety-day window of it effectiveness suffices; to hold otherwise would be to require a court to look into any service effected in less than ninety days that might otherwise not be prompt, etcSee Tenn. R. Civ. P. 4.01, -.03; Fair v. Cochran, 418 S.W.3d 542, 546 (Tenn. 2013) ("[I]f [a plaintiff] establishes that [a defendant] was served within ninety days of [the issuance of the summons for that defendant], then [plaintiff's] lawsuit is not barred by the statute of limitations and may proceed.").  See also Holder v. Tennessee Judicial Selection Comm’n, 937 S.W.2d 877, 882 (Tenn. 1996) (noting that inferior courts in Tennessee must follow a "pronouncement of a superior court when it speaks directly on the matter before it, particularly when the superior court seeks to give guidance to the bench and bar" (emphasis added)); Barger v, Brock, 535 S.W.2d 337, 341 (Tenn. 1976) (noting same).  I am a little surprised that Fair, which is a SCOTN case, was not mentioned in this appeal.  

Additionally, it appears that the motion to strike should have been granted because the affirmative defense in question, Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 9–10, did not comply with Rule 8.03, Tenn. R. Civ. P., because it was mot supported by any pleaded facts.  Tenn. R. Civ. P. 8.03 (requiring, inter alia, facts to be pleaded in support of any affirmative defense); George v. Alexander, 931 S.W.2d 517, (Tenn. 1996) ("Rule 8.03 is a prophylactic rule of procedure that must be strictly adhered to if it is to achieve its purposes."  (Emphasis added.)).

While I admire the defense's zeal here, their argument was just wrong.  See Fair, 418 S.W.3d at 546.  I am glad the Tennessee Court of Appeals reached the correct result by reversing the dismissal of the case.  (I also think any affirmative defense concerning service of leading process can be disposed of upon remand via partial summary judgment.  See id.)

P.S.  For purposes of information, Fair was one of my cases.  Plaintiff's counsel was kind enough to let me help them with the appeal to SCOTN, which we won.  Id. at 543.

P.P.S.  For a case involving intentional delay of service of a summons, read Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct. App. 2008).  

Saturday, August 01, 2020

New Case on the Certification of Nonfinal Orders Under Rule 54 of the Tennessee Rules of Civil Procedure

The Tennessee Court of Appeals recently released its opinion in Blackburn v. McLean, No. M2019-00428-COA-R3-CV (Tenn. Ct. App. July 31, 2020).  The syllabus from the opinion reads:
This is a wrongful death healthcare liability action against two defendants, a hospital and an emergency room physician. Following extensive discovery and scheduling orders, the physician defendant filed a motion for summary judgment, and the hospital joined in the motion. The trial court granted each defendant partial summary judgment by dismissing 17 claims alleging the defendants breached standards of care. When the hospital filed its motion to summarily dismiss the remaining claims against it, the plaintiff filed a response and a motion to substitute his physician expert witness for a different expert witness. The defendants opposed the motion, and the trial court denied the motion to substitute the plaintiff’s expert witness. The court also summarily dismissed all remaining claims against the hospital, leaving only the claims against the emergency room physician for trial. Upon motion of the plaintiff, the court certified the summary dismissal of all claims against the hospital as a final judgment pursuant to Tenn. R. Civ. P. 54.02. This appeal followed. We have determined that the trial court erred in certifying the order as a final judgment under Tenn. R. Civ. P. 54.02 because, inter alia, any decision we make regarding the adjudicated claims against the hospital may encroach upon the unadjudicated claims to be tried against the emergency room physician. Moreover, there is no basis upon which to conclude that an injustice may result from the delay in awaiting adjudication of the entire case. Therefore, there is a just reason for delaying the expedited appeal of the summary dismissal of all claims against the hospital. Accordingly, we vacate the trial court’s order certifying the judgment as final under Rule 54.02 and remand for further proceedings. 
Here is a link to the opinion:

NOTE: There is a lot going on in this opinion.  However, the quick takeaway from it is that trial courts need to be careful when certifying nonfinal orders as final under Rule 54.02, Tenn. R. Civ. P.  The Tennessee Court of Appeals has been concentrating on this issue over the last few years because it has found in a number of cases that trial courts have erred in certifying nonfinal orders as final so that an appeal may be effected.  This is a good opinion to read to understand the current state of the law on this issue.  

Sunday, July 19, 2020

New Premises Liability Case: Summary Judgment for the Defense Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Chittenden v. BRE/LQ Properties, LLC, No. No. M2019-01990-COA-R3-CV (Tenn. Ct. App. July 15, 2020).  The syllabus from the slip opinion reads:
This is a premises liability action arising from an injury suffered by a guest who slipped on ice in the parking lot of a hotel. The plaintiffs appeal the trial court’s grant of summary judgment to the defendant. Upon a thorough review of the record, we conclude that there is no dispute of material fact and that summary judgment in favor of the defendant was properly granted; accordingly, we affirm.
Here is a link to that opinion:

NOTE: The ice that caused the fall was the result of a snow storm.  See Chittenden v. BRE/LQ Properties, LLC, No. No. M2019-01990-COA-R3-CV, slip op. at 12 (Tenn. Ct. App. July 15, 2020).  While I haven not seen the operative complaint in this case, since it was venued here in Nashville, it probably would have behooved the plaintiffs to have a pleaded a negligence per se claim due to a violation of a local code provision, to wit:
     It shall be the duty of every owner or proprietor of any dwelling house, business house or other house abutting on any public street, square or avenue within the fire district to remove or cause to be removed from the sidewalk immediately in front of his premises all snow and ice which may each day accumulate thereon.
The Code of the Metro. Gov't of Nashville and Davidson County, Tenn. § 13.32.040 (2017) (emphasis added), see Shaw v. Metro. Gov't of Nashville & Davidson Cnty., 596 S.W.3d 726, 734–39 (Tenn. Ct. App. 2019) (No Tenn. R. App. P. 11 appeal filed).

Lastly, this slip opinion has been designated as a memorandum opinion and may not be cited or relied upon as authority in any other case.  Chittenden, slip op. at 1, n.1 (citing Tenn. Ct. App. R. 10).  However, this opinion may, obviously, still be used to aid one is doing research on the law of premises liability in Tenn.  


Wednesday, July 01, 2020

New Wrongful Death Case: Application of the Statutory Cap on Noneconomic Damages by the Trial Court Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Davis v. 3M Co., No. M2018-02029-COA-R3-CV (Tenn. Ct. App. June 30, 2020).  The syllabus from the slip opinion reads:
In this wrongful death action, the plaintiff, the decedent’s spouse, asserted claims against multiple defendants. The plaintiff settled with all but one of the defendants prior to trial, and the settling defendants were dismissed from the case. At trial, the sole remaining defendant asserted the comparative fault of the decedent and the settling defendants. The jury assigned percentages of fault to the decedent, the defendant, and the settling defendants but returned a verdict in favor of the plaintiff. The jury found noneconomic damages that, when reduced by the percentage of the decedent’s fault, exceeded the statutory cap. So the trial court entered a judgment against the defendant based on its percentage fault as applied to the statutory cap. On appeal, the plaintiff argues that the statutory cap was incorrectly applied. We affirm. 
Here is a link to the opinion:

NOTE: Respectfully, I think this opinion is per incuriam for at least one very salient reason: the cap should have been 1.5 million and not $750,000.00 because there were two party-plaintiffs.  See Yebuah v. Ctr. for Urological Treatment, PLC, No. 2018-M2018-01652-COA-R3-CV, 2020 Tenn. App. LEXIS 250, at *2–3 (Tenn. Ct. App. May 28, 2020)(no Tenn. R. App. P. 11 application filed as of July 1, 2020) (affirming trial court's application of the statutory cap on noneconomic damages to each plaintiff); OD'neal Baptist Mem'l Hosp.-Tipton, 556 S.W.3d 759, 761 (Tenn. Ct. App. 2018) (noting that a child's surviving parents were two party-plaintiffs in a wrongful death action filed for the wrongful death of the parents' child).  

New Case on Attorney-Client Privilege: Wife's Claim of Privilege Disallowed Due to the Presence of a Third Party While She Spoke with Attorneys

The Tennessee Court of Appeals recently issued its opinion in Pagliara v. Pagliara, No. M2019-01397-COA-R9-CV (Tenn. Ct. App. June 29, 2020).  The syllabus from the slip opinion reads:
This interlocutory appeal arises from a pending divorce action. During discovery, the husband sought certain communications between the wife and her attorneys. During some of these meetings between the wife and her attorneys, a third party was present during discussions of whether the wife should report conduct by the husband to law enforcement. The wife could not identify which of the meetings the third party had been present and which she had not. Because the wife did not meet her burden of proof in demonstrating that attorney-client privilege applied to the communications, we affirm the judgment of the Trial Court.
Here is a link to the slip opinion:

NOTE: This opinion offers a good discussion of the attorney-client privilege in Tennessee.  It is worth reading if you practice law Tennessee.  

Monday, June 22, 2020

New Premises Liability Case: Jury Verdict for Plaintiff Overturned on Appeal Due to the Lack of Material Evidence to Support Liability of One of the Defendants

The Tennessee Court of Appeals released its opinion today in Day v. Beaver Hollow, L.P., No. E2019-01266-COA-R3-CV (Tenn. Ct. App. June 22, 2020).  The syllabus from the slip opinion reads:
This appeal concerns a jury verdict in a slip and fall case. Geneva Jessica Day (“Plaintiff”), a resident of Beaver Hollow Apartments (“the Apartments”), sued Beaver Hollow L.P. (“BHLP”), which owned the Apartments, as well as Olympia Management, Inc. (“Olympia”) (“Defendants,” collectively), the entity BHLP contracted with to manage the Apartments, in the Circuit Court for Washington County (“the Trial Court”). Plaintiff was injured when she slipped on ice and snow in the Apartments’ parking lot. The jury allocated 49% of the fault to Plaintiff, 50% to Olympia, and 1% to BHLP. Defendants appeal. Defendants argue, among other things, that no material evidence supports the jury’s allocation of fault to BHLP. After a careful review of the record, we find no material evidence to support the jury’s verdict regarding BHLP, which exercised no actual control of the premises whatsoever. The Trial Court erred in denying Defendants’ motion for a directed verdict with respect to BHLP. As we may not reallocate fault, we vacate the judgment of the Trial Court, and remand for a new trial.
Here is a link to the slip opinion: 

NOTE: This is a rare case where a jury verdict is overturned due to a lack of material evidence, which is very rare.  A must read for any lawyer who tries cases in Tennessee state courts.  

Sunday, June 14, 2020

New Tennessee Health Care Liability Action Opinion: SCOTN Holds Common Knowledge Exception Applies in Case Involving a Massage Therapist

The Tennessee Supreme Court released its opinion Friday in Jackson v. Burrell, No. W2018-00057-SC-R11-CV (Tenn. June 12, 2020).  The syllabus form the slip opinion reads:
The question presented in this health care liability case is whether the plaintiff’s claim against a salon for negligent training, supervision, and retention of a massage therapist should be dismissed because the plaintiff did not file a certificate of good faith with her complaint under section 29-26-122 of the Tennessee Health Care Liability Act . . . . Our answer depends on whether the common knowledge exception applies—that is, whether laypersons using their common knowledge and without expert testimony could decide whether the salon was negligent. If the common knowledge exception does not come into play and expert testimony is necessary, then the plaintiff needed to file a certificate of good faith with her complaint certifying that her negligence claim was supported by a competent expert witness and that there was a good faith basis for the claim. Here, the plaintiff alleged that a massage therapist working for the salon sexually assaulted her during a massage. In support of her claim of negligent training, supervision, and retention, the plaintiff presented evidence that before her assault, the salon had received complaints from two customers that the massage therapist had acted inappropriately and made them feel uncomfortable. The trial court granted summary judgment to the salon because the plaintiff had not filed a certificate of good faith. The Court of Appeals affirmed, ruling that the plaintiff had waived the common knowledge exception and that, in any event, expert testimony was necessary. We reverse and hold that 1) the plaintiff did not waive the common knowledge exception; and 2) the plaintiff’s claim against the salon for negligent training, supervision, and retention of the massage therapist was within the common knowledge of laypersons and did not require expert testimony about the standard of care in the massage industry. Thus, the plaintiff did not have to present expert proof to establish her negligence claim against the salon. It follows then that the plaintiff had no reason to file a certificate of good faith under section 29-26- 122, and her claim is not subject to dismissal for noncompliance with this section. The trial court’s award of summary judgment is vacated.
Here is a link to that opinion:

NOTE: This opinion reaches a fair result under the law (which is similar in a number of other states as well) regarding the common knowledge exception to the general requirement of expert testimony to prove both negligence and causation in a health care liability action under Tennessee law (formerly known as a medical malpractice case).  This is a must-read case for any lawyer who handles health care liability actions controlled by Tennessee law.  

Two important takeaways from reading this opinion: first, presuit notice letters must still be served in a health care liability action where the common knowledge exception applies, see Jackson, slip op. at 9; and, second, no certificate of good faith is required to be filed with the complaint under Tenn. Code Ann. sec. 29-16-122 when this exception is applicable, id. at 9–11.  

For what it is worth, the "classic" example of a health care liability action where the common knowledge exception applies is when a sponge is left in a patient after surgery.  I had one of those "classic" cases a few years back.  Tony Duncan,  Medical Malpractice: Grant of Summary Judgment for the Defense Reversed Due to the Common Knowledge Exception, Res Ipsa Loquitur, Etc., TONY DUNCAN L. BLOG (Aug. 17, 2010, 12:29 PM),

Saturday, May 30, 2020

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case Upheld on Appeal for Failure to Comply with Presuit Notice Procedure

The Tennessee Court of Appeals recently released its opinion in Carrasco v. North Surgery Center, L.P., No. W2019-00558-COA-R3-CV (Tenn. Ct. App. May 28, 2020).  The syllabus from the slip opinion reads:
This is a healthcare liability action resulting from injuries sustained by a guidewire left in the plaintiff’s neck following a procedure. The defendants moved to dismiss the action for failure to comply with notice requirements in Tennessee Code Annotated section 29- 26-121(a)(2)(E). The trial court dismissed the action without prejudice, and the plaintiff appealed. We affirm.
Here is a link to the slip opinion:

NOTE: Regarding the need for HIPAA authorizations, please see my July 3, 2018-post.  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM),