tag:blogger.com,1999:blog-211478062024-03-17T20:04:27.610-07:00Tony Duncan LawThis blog is made available by the lawyer or law firm publisher for educational purposes only as well as to provide general information and understanding of the law, not to provide specific legal advice. By using this blog, you understand that there is no attorney-client relationship between you and the blog publisher. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.comBlogger921125tag:blogger.com,1999:blog-21147806.post-61870120906212461792024-03-09T08:52:00.000-08:002024-03-09T08:52:31.193-08:00Grant of Summary Judgment Reversed on Appeal Because the Issue It Was Based on Was Not Raised in the Motion <div style="text-align: justify;"><span style="font-family: inherit;">The Tennessee Court of Appeals has released its opinion in </span><i style="font-family: inherit;">Bakker v. Chattanooga-Hamilton County Hospital Authority</i><span style="font-family: inherit;">, No. E2022-00872-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2024). The syllabus from the slip opinion reads: </span></div><div><div style="text-align: justify;"><span style="background-color: white; color: #212121; font-family: inherit;"><blockquote>The trial court granted summary judgment in favor of the defendant hospital in this premises liability case, finding that the defendant had no notice of the alleged dangerous or defective condition on its premises. The plaintiff has appealed. Following our review, we determine that the plaintiff was not provided notice and a reasonable opportunity to respond to all issues to be considered by the trial court at the summary judgment stage. Accordingly, we vacate the trial court's grant of summary judgment.</blockquote></span></div><div style="text-align: justify;"><span style="font-family: inherit;">Here is the link to the opinion: </span></div><div><br /></div><div><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Bakker%2C%20M.D.%20v.%20Chattanooga%20Hamilton%20Hospital%20Authority.pdf">Bakker, M.D. v. Chattanooga Hamilton Hospital Authority.pdf (tncourts.gov)</a></div><div><br /></div><div><b>NOTE:</b> This is an excellent opinion that addresses when a trial court grants summary judgment on an issue not raised in the motion seeking same and why that is error. This is a must-read opinin for any lawyer who handles civil actions in Tennessee state courts. <br /><div><br /></div></div></div>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-69005218641461753682024-01-11T07:36:00.000-08:002024-01-11T07:36:52.614-08:00New Health Care Liability Action: Trial Court's Imposition of Sanctions for Discovery Abuse Upheld on Appeal but Case Is Remanded to Calculate Amount of Sanctions under Applicable Law<p style="text-align: justify;">The Tennessee Court of Appeals has released its opinion in <i>Salas v. Rosdeutscher</i>, Nos. M2021-00449-COA-R3-CV;
M2022-00130-COA-R3-CV (Tenn. Ct. App. Jan. 9, 2024). The syllabus reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">Plaintiff’s attorneys appeal the trial court’s imposition of sanctions against them in the
amount of $68,617.28 and the denial of their second motion to disqualify the trial court
judge. We affirm the trial court’s discretionary decision to impose sanctions, but we vacate
the amount of sanctions awarded and remand for the trial court to calculate the reasonable
amount of monetary sanctions in keeping with the procedures and considerations outlined
in this opinion. We have determined that Plaintiff’s attorneys’ issue regarding the trial
court’s denial of their second motion to recuse is moot. Finally, we decline to award
attorney’s fees on appeal.</blockquote><p></p><p style="text-align: justify;">Here is a link to the slip opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2021-00449-COA-R3-CV.pdf">Majority Opinion - M2021-00449-COA-R3-CV.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE:</b> This opinion is a good reminder why a lawyer should <i>never</i> misrepresent matters to a court. </p><p><br /></p><p><br /></p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-63150835988524267162024-01-05T17:06:00.000-08:002024-01-05T17:06:02.946-08:00New Case on Pretrial Discovery Abuse and Sanctions: Trial Court's Dismissal of Action Upheld on Appeal. <p style="text-align: justify;">The Tennessee Court of Appeals has released its opinion in <i>Plofchan v. Hughey</i>, No. M2021-00853-COA-R3-CV (Tenn. Ct. App. Jan. 5, 2023). The syllabus from the opinion reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">A man sued his arresting officers and others. He claimed he was neither drunk nor violent
when he was arrested and charged with public intoxication, resisting arrest, and assault on
an officer. During discovery, the man claimed to have no communications between him
and a companion that were not protected by attorney-client privilege or as work product.
When such communications were uncovered, the defendants moved for sanctions and
attorney’s fees. The trial court awarded attorney’s fees to the defendants and the
companion. And it dismissed the case as a sanction. Discerning no abuse of discretion,
we affirm.</blockquote><p></p><p style="text-align: justify;">Here is a link to the slip opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/E-SIGNED-M2021-0853-%20COA-PLOFCHAN.pdf">E-SIGNED-M2021-0853- COA-PLOFCHAN.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE</b>: This opinion offers a great discussion of discovery sanctions for pretrial discovery abuses, etc. It also notes that Tennessee does not recognize "motions to reconsider," slip. op. at 8. This is a must-read opinion for any Tennessee trial lawyer. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-49637994717206226932023-12-13T20:06:00.000-08:002023-12-13T20:06:05.151-08:00New Premises Liability Case: Summary Judgment for the Defense Upheld on Appeal; Sanctions for Spoliation of Evidence Not Warranted <p style="text-align: justify;">The Tennessee Court of Appeals has released its opinion in <i>Beasley v. Jae Nails Bar, LLC</i>, No. M2022-01330-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2023). The syllabus from the slip opinion reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">This is a premises liability action in which the plaintiff slipped and fell while she was
walking to a pedicure station in a nail salon. Two principal issues are presented. First, the
plaintiff contends that the trial court erred by denying her Tenn. R. Civ. P. 34A.02 motion
for spoliation of evidence by finding that the defendant was not put on notice that a video
recording from a surveillance camera in the nail salon was relevant to pending or
reasonably foreseeable litigation. Second, the plaintiff contends that the trial court erred by
summarily dismissing her complaint on the basis that there was no proof that the defendant
had created the allegedly hazardous condition in the nail salon or that the defendant had
actual or constructive notice of the condition. We affirm.</blockquote><p></p><p style="text-align: justify;">Here is a link to the slip opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/UNSIGNED-M2022-1330-COA-BEASLEY.pdf">UNSIGNED-M2022-1330-COA-BEASLEY.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE: </b>In reverse order to that addressed by the court, this opinion offers a great analysis of the elements of a premises liability case and of what constitutes spoliation of evidence worthy of sanctions. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-26130905306257350052023-11-15T15:44:00.000-08:002023-11-15T15:44:42.257-08:00New Health Care Liability Action Opinion: Trial Court's Dismissal of Complaint Upheld in Part and Reversed in Part Due to the Application of the Healthcare Operations Exception to the General Requirement That a HIPAA-compliant Authorization for the Release of Medical Records Be Included with the Presuit Notices Served on Potential Defendants <p style="text-align: justify;"><span style="font-family: inherit;">The Tennessee Court of Appeals has released its opinion in <i>Christie v. Baptist Memorial Hospital</i>, No. W2022-01296-COA-R3-CV (Tenn. Ct. App. Nov. 15. 2023). </span></p><p style="text-align: justify;"><span style="font-family: inherit;"></span></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">Plaintiffs appeal the dismissal of their health care liability claims against a hospital and two doctors who treated their daughter on the day of her birth and tragic death. The trial court reluctantly ruled that the plaintiffs failed to substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) and dismissed the claims as untimely. We conclude that the plaintiffs met their burden to show substantial compliance with section 29-26-121(a)(2)(E) as to the defendant hospital, but not the defendant doctors. We therefore affirm in part, reverse in part, and remand for further proceedings.</span></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">Here is a link to the slip opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/ChristieLauraSOPN.pdf">ChristieLauraSOPN.pdf (tncourts.gov)</a>.</span></p><p style="text-align: justify;"><span style="font-family: inherit;"><b>NOTE</b>: This opinion does a good job of explaining the healthcare operations exception to the general requirement that presuit notice be accompanied by a HIPAA-complaint medical records authorization under Tenn. Code Ann. sec. 29-26-121. That exception is what saved the claim against the hospital because it allowed the Tennessee Court of Appeals to find that there had been substantial complaint with section 29-16-121(a)(2)(E). </span></p><p style="text-align: justify;"><br /></p><p><br /></p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-40620682836775229062023-10-28T10:31:00.002-07:002023-10-28T10:31:35.617-07:00New Health Care Liability Action Opinion: Trial Court's Ruling Allowing Plaintiffs to Obtain Surveillance Videos Taken by Defense of a Plaintiff Upheld on Appeal<div style="text-align: justify;">The Tennessee Court of Appeals has released its opinion in <i>Locke v. Aston</i>, No. M2022-01820-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2023). The syllabus from the slip opinion reads:</div><div><div style="text-align: justify;"><blockquote style="text-align: justify;">This is a health care liability action filed by a patient and her husband alleging serious
injury as a result of surgery. The plaintiffs learned that the defendants had taken
surveillance videos and sought discovery of those videos. The trial court allowed discovery
of only the videos that the defendants intended to use at trial for impeachment purposes.
The trial court gave the plaintiffs permission to seek an appeal under Tenn. R. Civ. P. 9.
This Court granted the appeal. We affirm the trial court’s decision.</blockquote></div><div style="text-align: justify;">Here is a link to the opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2022-01820-COA-R9-CV.pdf" style="text-align: left;">Majority Opinion - M2022-01820-COA-R9-CV.pdf (tncourts.gov)</a>.</div></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>NOTE:</b> While this is a health care liability action (f/k/a a medical malpractice case), this opinion offers a much-needed discussion of the discoverability of surveillance video taken in conjunction with a Tennessee state court lawsuit. This is one every lawyer who practices civil law in Tennessee must read. </div>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-15305471619138267792023-10-26T16:45:00.000-07:002023-10-26T16:45:11.921-07:00New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment to the Defense Reversed on Appeal Because There Are Genuine Issues of Material Fact as to When This Cause of Action Accrued, the Propriety of the Presuit Notice, and Causation and Damages<p style="text-align: justify;"><span style="font-family: inherit;">The Tennessee Court of Appeals released its opinion in <i>Vilas v. Love</i>, No. W2022-01071-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2023). The syllabus from the slip opinion reads:</span></p><p style="text-align: justify;"><span style="font-family: inherit;"></span></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">In this health care liability action, the trial court granted summary judgment to the appellee
surgeon based on the expiration of the statute of limitations and the appellant patient’s
failure to show evidence of causation and damages. On appeal, we conclude that (1) there
is a genuine dispute of material fact as to when the appellant’s cause of action accrued; (2)
the trial court did not specifically rule on the propriety of appellant’s pre-suit notice; and
(3) there are genuine disputes of material facts as to the causation and damages elements
of the appellant’s claim. Accordingly, we reverse in part, vacate in part, and remand for
further proceedings. </span></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">Here is a link to the opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/VilasJamesMiguelOPN.pdf">VilasJamesMiguelOPN.pdf (tncourts.gov)</a>.</span></p><p style="text-align: justify;"><span style="font-family: inherit;"><b>NOTE: </b>This is a great read because it offers excellent analysis of accrual of claims, presuit notice, and causation and damages in health care liability actions (f/k/a medical malpractice cases). </span></p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-80147120920809156102023-10-16T14:52:00.003-07:002023-10-16T14:52:28.032-07:00New Health Care Liability Action Opinion: Trial Court's Dismissal of Vicarious Liability Claims Against Hospital Upheld on Appeal Because the Alleged Agent, a Physician, Had Been Released by the Plaintiff's Conservator <p style="text-align: justify;">The Tennesse Court of Appeals has released its opinion in <i>Hamilton ex rel. McGill v. Methodist Healthcare Memphis Hospitals</i>, No. W2022-00054-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2023). The opinion's syllabus reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">This appeal arises from a health care liability action filed in circuit court by a conservator
on behalf of a ward. After a three-week jury trial resulted in a mistrial, the conservator
took a nonsuit. The conservator refiled the complaint against only one defendant hospital,
asserting that it was vicariously liable for the actions of a doctor based on a theory of
apparent agency. The defendant hospital moved for summary judgment on the basis that
the conservator had entered into a consent agreement agreeing not to sue the doctor in the
refiled suit if the doctor agreed to withdraw his motion for discretionary costs. According
to the defendant hospital, this agreement releasing the alleged agent from liability
extinguished the conservator’s right to pursue a vicarious liability claim against the
principal. In response, the conservator took the position that the consent agreement was
not binding because it was never approved by the probate court that appointed her. The
circuit court granted summary judgment to the defendant hospital, finding that the order
appointing the conservator authorized her to dispose of property, execute instruments, enter
into contracts, pursue legal causes of action, and manage money, thereby authorizing her
to enter into the consent agreement. The circuit court found nothing in the order of
appointment, the relevant statutes, or caselaw that would impose a mandatory requirement
for approval of the settlement by the probate court. Because the conservator had released
the alleged agent from liability, the circuit court found that the conservator could not pursue
vicarious liability claims against the defendant hospital. The conservator filed a motion to
alter or amend, asking the circuit court to consider an “Advisory Opinion” of the probate
court on the matter. The circuit court denied the motion, explaining that it respectfully
disagreed with the Advisory Opinion of the probate court. The conservator appeals. We
affirm and remand for further proceedings.</blockquote><p></p><p style="text-align: justify;">Here is a link to the opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/HamiltonDianne2OPN.pdf" style="text-align: left;">HamiltonDianne2OPN.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE:</b> This opinion is correct and a reminder of why one does not release the agent if one wants to pursue a vicarious liability claim against the principal based on the agent's conduct. This opinion also offers a good discussion about the recent statutory changes affect settlements involving minors and the disabled. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-83882708522486333832023-10-14T18:49:00.000-07:002023-10-14T18:49:16.225-07:00New Health Care Liability Action Opinion: Trial Court Reversed in Part as to the Sufficiency of the Presuit Notice Provided by Mother of Deceased on Behalf of the Deceased's Minor Children<p style="text-align: justify;">The Tennessee Court of Appeals has released its opinion in <i>Denson v. Methodist Medical Center of Oak Ridge</i>, No. E2023-00027-COA-R9-CV (Tenn. Ct. App. Oct. 12, 2023). The syllabus reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">This appeal arises from a health care liability action following the death of Ashley Denson
from a cardiac event she suffered after being treated and released from Methodist Medical
Center. Ms. Denson was unmarried and had two minor children at the time of her death. The statutorily-required pre-suit notice listed Ms. Denson’s mother, Bobbie J. Denson, as
the claimant authorizing notice. The minor children were not identified anywhere in the
notice. The subsequent complaint was filed by “ASHLEY DENSON, Deceased, by and
through her Next Friend and Mother BOBBIE JO DENSON, and BOBBIE JO DENSON,
Individually.” The body of the complaint lists, for the first time, Ashley Denson’s children,
and states that Bobbie Denson “brings this action individually, and on behalf of Plaintiff,
decedent’s surviving minor children … as Grandmother and Legal Guardian.” The
defendants filed motions to dismiss, challenging Bobbie Denson’s standing to bring the
action and contending that the pre-suit notice failed to comply with the requirements of the
Tennessee Health Care Liability Act.[] The trial court initially granted the motions to
dismiss but reversed course after the plaintiff filed a motion to reconsider. We hold that,
although Grandmother has standing, the pre-suit notice does not comply with the
requirements of the Tennessee Health Care Liability Act. The judgment of the trial court
is ultimately affirmed in part and reversed in part.</blockquote><p></p><p style="text-align: justify;">(Footnote omitted.)</p><p style="text-align: justify;">Here is a link the majority opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/E2023-27%20Maj..pdf">E2023-27 Maj..pdf (tncourts.gov)</a>.</p><p style="text-align: justify;">Here is a link to Judge McClarty's partial dissent: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/E2023-27%20Dis..pdf">E2023-27 Dis..pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE:</b> Look for the plaintiff's counsel to ask the Tennessee Supreme Court for permission to appeal in this case. Given the importance of this issue of law, <i>inter alia</i>, I predict that permission to appeal will be granted by our High Court. Stay tuned. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-25473480487291241732023-10-05T18:39:00.000-07:002023-10-05T18:39:33.822-07:00New Health Care Liability Action Opinion: Trial Court's Denial of a Protective Order Regarding What Was Said at a CANDOR Meeting Upheld on Appeal<p style="text-align: justify;">The Tennessee Supreme Court has released its opinion in <i>Catillo v. Rex</i>, No. E2022-00322-COA-R9-CV (Tenn. Ct. App. Oct. 5, 2023). The syllabus reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">The plaintiff filed this healthcare liability action against several healthcare providers
following the death of her husband. We granted this interlocutory appeal in which the
defendants request review of the trial court’s denial of their motion for a protective order
to prohibit further inquiry into a meeting held between the defendant hospital and the
decedent’s family. We affirm the trial court.</blockquote><p></p><p style="text-align: justify;">Here is a link to the slip opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Castillo%20v.%20Rex%2C%20M.D.%20Opinion%20UNSIGNED.pdf">Castillo v. Rex, M.D. Opinion UNSIGNED.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE:</b> This opinion does a great job of explaining why the quality improvement committee privilege does not apply in this situation. This is a must-read opinion for any lawyer who handles medical malpractice case (f/k/a medical malpractice cases) governed by Tennessee law. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-88062368488794624242023-09-30T11:42:00.001-07:002023-09-30T11:43:21.369-07:00New Health Care Liability Action Opinion: Trial Court's Ruling Disallowing Defense from Attempting to Improperly Shift Blame to a Nonparty at Trial and Its Order Regarding the Applicaiton of Tennessee Code Annotated section 29-26-119 Upheld on Appeal<p style="text-align: justify;"><span style="font-family: inherit;">The Tennessee Supreme Court has released its highly anticipated opinion in <i>Crotty v. Flora</i>, No. M2021-01193-SC-R11-CV (Tenn. Sept. 29, 2023). The opinion's syllabus reads:</span></p><p style="text-align: justify;"><span style="font-family: inherit;"></span></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">In this interlocutory appeal, the defendant physician in a health care liability action asks us
to review two pretrial orders. In the first, the trial court excludes evidence that a nonparty
physician was the cause-in-fact of the claimant’s injuries because the defendant never
amended his answer to include that allegation, as required under Rule 8.03 of the Tennessee
Rules of Civil Procedure as applied in <i>George v. Alexander</i>, 931 S.W.2d 517 (Tenn. 1996).
Because he does not allege that the nonparty physician was negligent, the defendant asks
us to modify our holding in <i>George</i> and reverse the trial court’s order. We respectfully
decline to do so. In the second pretrial order on appeal, the trial court considered Tennessee
Code Annotated section 29-26-119, a provision that partially abrogates the common law
collateral source rule in health care liability actions. It held that section 29-26-119 does
not abrogate the collateral source rule under the facts of this case. We agree with the trial
court that the collateral source rule remains in effect in this case. We affirm both of the
trial court’s pretrial rulings.</span></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">Here is a link to the majority slip opinion: </span></p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/CROTTY%20-%20Majority%20Opinion.pdf">CROTTY - Majority Opinion.pdf (tncourts.gov)</a></p><p style="text-align: justify;"><span style="font-family: inherit;">Here is a link to Justice Page's separate opinion, which concurred in part and dissented in part: </span></p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/CROTTY%20-%20Separate%20Opinion.pdf">CROTTY - Separate Opinion.pdf (tncourts.gov)</a></p><p style="text-align: justify;"><span style="font-family: inherit;"><b>NOTE</b>: This is a must-read opinion for any lawyer who handles health care liability actions (formerly called medical malpractice cases) governed by Tennessee substantive law. It reaffirms <i>George</i>, <i>supra</i>, and clarifies the application of the collateral source rule under the circumstances presented here. </span></p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-60431591631274138062023-09-28T18:01:00.001-07:002023-09-30T11:42:21.434-07:00Trial Court's Grant of Voluntary Dismissal in Face of Pending Motion to Dismiss Upheld on Appeal<p style="text-align: justify;">The Tennessee Court of Appeals has issued its opinion in <i>Westfield Group Insurance v. Embry</i>, No. M2022-01301-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2023). The syllabus reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">In this appeal, a defendant asserts that the trial court erred when it granted the plaintiff’s
motion to voluntarily dismiss its complaint while the defendant’s motion to dismiss and
for attorneys’ fees was pending. We hold that a pending motion to dismiss does not
preclude the plaintiff from voluntarily dismissing its case pursuant to Tenn. R. Civ. P.
41.01. Likewise, the defendant’s request for attorneys’ fees did not create a “vested right”
preventing the plaintiff from voluntarily dismissing its case. The ruling of the trial court
is affirmed.</blockquote><p></p><p style="text-align: justify;">Here is a link to the slip opinion: </p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/E-SIGNED-M2022-1301-COA-WESTFIELD%20GROUP%20INS..pdf">E-SIGNED-M2022-1301-COA-WESTFIELD GROUP INS..pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE</b>: This opinion explains very well how the law on voluntary dismissals (nonsuits) work in Tennessee state-court civil actions. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-34969596504091044972023-08-31T14:02:00.003-07:002023-08-31T14:02:47.146-07:00New Health Care Liability Action Opinion: Trial Court's Grant of Summary Judgment Upheld on Appeal Due to Plaintiffs' Failure to Proffer Sufficient Expert Testimony Regarding Informed Consent <p style="text-align: justify;">The Tennesse Court of Appeals has released its opinion in <i>Jarnagan v. Vanderbilt University Medical Center</i>, No. M2022-01012-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023). The syllabus from the opinion reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">The Plaintiff brought suit alleging the Defendants failed to obtain informed consent prior
to conducting a medical procedure. The Defendants responded with a consent form signed
by the Plaintiff detailing the potential side effects of the procedure of which the Plaintiff
asserted he had not been informed, and they moved for summary judgment. The Plaintiff
argued the consent form in the present case was inadequate to establish informed consent.
The trial court granted summary judgment in favor of the Defendants. The Plaintiff
appealed, challenging the validity of the signed consent form based on an alleged
misrepresentation and his inability to read because of an eye condition, and arguing,
therefore, that there is a material question of fact as to whether informed consent was
obtained. We affirm the judgment of the trial court.</blockquote><p></p><p style="text-align: justify;">Here is a link to the slip opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/UNSIGNED-M2022-01012-COA-JARNAGIN.pdf">UNSIGNED-M2022-01012-COA-JARNAGIN.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE:</b> This opinion is absolutely correct. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-88102018309772599542023-08-29T17:51:00.002-07:002023-08-29T17:57:18.583-07:00Trial Court's Order Regarding Disbursement of Proceeds Reversed on Appeal Because Proceeds Were Personalty That Belonged to the Decedent's Estate and Not Wrongful Death Proceeds <p style="text-align: justify;"><span style="font-family: inherit;">The Tennessee Court of Appeals has released its opinion in <i>Sanders v. Higgins</i>, No. M2022-00892-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2023). The syllabus from the opinion reads:</span></p><p style="text-align: justify;"></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">This appeal involves the disbursement of settlement proceeds proffered by an insurance
company in resolution of a claim against it. The plaintiff is the surviving spouse of the
decedent, who was killed when she was struck by a vehicle while riding her bicycle. The
plaintiff filed a wrongful death action against the vehicle’s driver and the driver’s parents,
all of whom were subsequently dismissed from the lawsuit following a settlement
unrelated to this appeal. Within the same action, the plaintiff asserted a claim against his
and the decedent’s insurer for negligent misrepresentation and negligent failure to
procure insurance. The insurer had previously paid a pre-suit settlement to the plaintiff
related to uninsured/underinsured motorist coverage. In the complaint, the plaintiff
alleged that the insurer had misrepresented additional coverage under an “umbrella
policy,” leading the plaintiff and decedent to believe they were covered while failing to
actually reinstate the umbrella policy when it had been temporarily cancelled months
before the decedent’s death. The plaintiff and the insurer eventually reached a
confidential settlement. To facilitate the release of claims by both the plaintiff and the
decedent’s estate and upon the estate’s motion, the trial court entered an agreed order
allowing the estate to intervene. The plaintiff then filed a motion to disburse the
settlement proceeds to him, and the estate filed an intervening complaint and opposition
to the plaintiff’s motion, asserting that the estate was entitled to one hundred percent of
the settlement proceeds related to the umbrella policy claim. Following a hearing, the
trial court entered an order granting the plaintiff’s motion to disburse the settlement
proceeds to him upon finding that the cause of action against the insurer had not vested in
the decedent prior to her death. The court subsequently denied the estate’s motion to
alter or amend the judgment. The estate has appealed. Determining that the cause of
action against the insurer was based in tort, rather than wrongful death, and accrued to the
decedent at the time of her fatal injuries, we conclude that the right to the resulting
settlement proceeds belongs to the decedent’s estate. We therefore reverse the trial
court’s judgment and remand for entry of an order granting disbursal of the settlement
funds to the estate.</span></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">Here is a link to the slip opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2022-00892-COA-R3-CV.pdf">Majority Opinion - M2022-00892-COA-R3-CV.pdf (tncourts.gov)</a>.</span></p><p style="text-align: justify;"><span style="font-family: inherit;"><b>NOTE: </b>This opinion does a good job of explaining the difference between wrongful death proceeds and tort proceeds as to how they are distributed, which is confusing to a lot of lawyers in my experience. </span></p><p><br /></p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-43701644989489863402023-07-28T16:22:00.003-07:002023-07-30T14:06:52.529-07:00New Health Care Liability Action: Upon Remand from SCOTN to Resolve Previously Pretermitted Issues, the Trial Court's Grant of Summary Judgment to Defendant Physician Upheld on Appeal<p style="text-align: justify;"><span style="font-family: inherit;">The Tennessee Court of Appeals, on remand from the Tennessee Supreme Court, has issued its opinion in <i>Ingram v. Gallagher</i>, No. E2020-01222-COA-R3-CV (Tenn. Ct. App. July 18, 2023). The opinion's syllabus reads:</span></p><p style="text-align: justify;"><span style="font-family: inherit;"></span></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">This is a health care liability case. George Gary Ingram ("Ingram") filed a health care liability action in the Circuit Court for Hamilton County ("the Trial Court") against, among others, Dr. Michael Gallagher ("Dr. Gallagher") and Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System ("Erlanger") ("Defendants," collectively). Plaintiff later filed an amended complaint naming Dr. Gallagher as the sole defendant. He thus removed the other defendants, including Erlanger, from the lawsuit. Dr. Gallagher then filed an answer asserting, as a defense, that his governmental employer, Erlanger, was not made a party to the action. Consequently, Plaintiff filed a motion to alter or amend the Trial Court's order of dismissal as to Erlanger, which was denied. Plaintiff's claims were dismissed. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV, 2021 Tenn. App. LEXIS 283, 2021 WL 3028161 (Tenn. Ct. App. July 19, 2021) ("Ingram I"), we reversed the Trial Court, holding that the Trial Court erred in denying Plaintiff's motion to revise the order of dismissal. We pretermitted all other issues. The Tennessee Supreme Court then reversed this Court, holding that Erlanger was removed from the lawsuit when Plaintiff filed his amended complaint and that the order of dismissal had no legal effect so there was no order to amend. Our Supreme Court remanded for us to address the remaining issues. We hold, inter alia, that the savings statute is inapplicable as the Governmental Tort Liability Act ("the GTLA") is implicated; that the Trial Court did not err in dismissing Erlanger for lack of pre-suit notice and a certificate of good faith; and that the Trial Court did not err in granting summary judgment to Dr. Gallagher as his governmental employer, Erlanger, was not made a party. We affirm.</span></blockquote><p></p><p></p><p style="text-align: justify;"><span style="font-family: inherit;">Here is a link to the opinion: </span><a href="https://pch.tncourts.gov/CaseDetails.aspx?id=80940&Number=True" style="text-align: left;">TN Courts</a> (link will take you to page where opinion can be viewed).</p><p style="text-align: justify;"><span style="font-family: inherit;"><b>NOTE:</b> This is not a surprising result because the defendant-physician's employer was not made a party-defendant as well, which is required under the GTLA. </span></p><p style="text-align: justify;"><span style="font-family: inherit;">Further, this post is related to my May 18, 2023-post, to wit: <a href="https://theduncanlawfirm.blogspot.com/2023/05/new-health-care-liability-action_57.html">Tony Duncan Law: New Health Care Liability Action Opinion: SCOTN Determines Amended Complaint Filed as of Matter of Right Under Rule 15 of the Tennessee Rules of Civil Procedure Is Determinative and Remands Case Back to COATN to Address Issues Previously Deemed Pretermitted (theduncanlawfirm.blogspot.com)</a>.</span></p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-85562968603114127412023-07-28T15:37:00.001-07:002023-07-28T15:53:18.809-07:00Trial Court's Exclusion of Evidence Regarding Medical Bills Due to Lack of Expert Proof of Their Being Necessary Upheld on Appeal<p style="text-align: justify;"><span style="font-family: inherit;">The Tennessee Court of Appeals has released its opinion in <i>Holzmer v. Estate of James F. Walsh, Jr.</i>, No. M2022-00616-COA-R3-CV (Tenn. Ct. App. July 28, 2023). The syllabus reads:</span></p><p style="text-align: justify;"><span style="font-family: inherit;"></span></p><blockquote><span style="font-family: inherit;">This is an appeal from a jury verdict awarding damages to a plaintiff injured in a car
accident. The plaintiff asserts that the trial court erred in excluding evidence of her medical
bills. Because the plaintiff failed to present expert proof that her medical expenses were
necessary, we find that the trial court did not abuse its discretion in excluding the bills. The
jury verdict is affirmed.</span></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">Here is a link to the opinion: </span></p><p><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20M2022-00616-COA-R3-CV.pdf"><span style="font-family: inherit;">Majority Opinion M2022-00616-COA-R3-CV.pdf (tncourts.gov)</span></a></p><p><b>NOTE:</b> Look for this one to be appealed to the Tennessee Supreme Court. Time will tell. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-81624821748670080832023-07-20T14:41:00.000-07:002023-07-20T14:41:08.352-07:00Two New SCOTN Health Care Liability Action Opinions: Court of Appeals' Reversal of Trial Court's Dismissal of Vicarious Liability Claims Against the Principals Upheld on Appeal Due to Tennessee's Health Care Liability Act's Abrogation of the Common Law's Operation-of-law Exception<p style="text-align: justify;">The Tennessee Supreme Court issued its opinions in <i>Ultsch v. HTI Memorial Hosp. Corp.</i>, No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023) and <i>Gardner v. Saint Thomas Midtown Hosp.</i>, No. M2019-02237-SC-R11-CV (Tenn. July 20, 2023). The syllabus from the majority slip opinions in <i>Ultsch</i> reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">“When there is a conflict between the common law and a statute, the provision of the statute
must prevail.” <i>Graves v. Ill. Cent. R.R. Co.</i>, 148 S.W. 239, 242 (Tenn. 1912). That
longstanding rule is the key to resolving this case, which pits a common-law rule governing
vicarious liability claims against certain procedural provisions of Tennessee’s Health Care
Liability Act. The defendant in this case moved to dismiss the plaintiff’s claims under the
common-law rule. The trial court granted that motion, but the Court of Appeals reversed
after concluding that application of the common-law rule would conflict with the Act. We
agree that the Act necessarily implies an intent to abrogate the common-law rule in the
circumstances of this case and affirm the Court of Appeals’ decision.</blockquote><p></p><p style="text-align: justify;"><i>Ultsch</i>, No. M2020-00341-SC-R11-CV, slip. op. at 1. </p><p style="text-align: justify;">The syllabus from <i>Gardner</i> reads the same. No. M2019-02237-SC-R11-CV, slip op. at 1. </p><p style="text-align: justify;">Here is the majority opinion in<i> Ultsch</i>: </p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/ULTSCH%20-%20Majority%20Opinion.pdf">691fd502-7aa9-486c-a1b9-97092d595eb0.pdf (tncourts.gov)</a></p><p style="text-align: justify;">Here is Justice Lee's opinion that concurs and dissents in part: </p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/ULTSCH-Separate%20Concur%20Opinion%20%28J.Lee%29.pdf">ULTSCH-Separate Concur Opinion (J.Lee).pdf (tncourts.gov)</a></p><p style="text-align: justify;">Here is Justices Page and Bivins's dissent: </p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/ULTSCH-Separate%20Dissent%20Opinion%20%28J.Bivins%29.pdf">ULTSCH-Separate Dissent Opinion (J.Bivins).pdf (tncourts.gov)</a></p><p style="text-align: justify;">Here is the majority opinion in <i>Gardner</i>: </p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/GARDNER%20-%20Majority%20Opinion.pdf">54eb201c-81d3-4f47-b239-aa6a1bdee20b.pdf (tncourts.gov)</a></p><p style="text-align: justify;">Here is Justice Lee's opinion that concurs and dissents in part: </p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/GARDNER%20-%20Separate%20CONCUR%20IN%20PART%20Opinion%20%28J.Lee%29.pdf">GARDNER - Separate CONCUR IN PART Opinion (J.Lee).pdf (tncourts.gov)</a></p><p style="text-align: justify;">Here is Justices Page and Bivins's dissent: </p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/GARDNER-Separate%20DISSENT%20Opinion%20%28J.Bivins%29.pdf">GARDNER-Separate DISSENT Opinion (J.Bivins).pdf (tncourts.gov)</a></p><p style="text-align: justify;"><b>NOTE</b>: These two decisions must be read by any lawyer who handles health care liability actions (f/k/a medical malpractice cases) governed by Tennessee substantive law because they will affect nearly every case of that sort, etc. </p><p><br /></p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-19353412975040338822023-07-12T06:46:00.002-07:002023-07-12T06:46:54.682-07:00New Health Care Liability Action Opinion: Trial Court's Dismissal of Case Refiled under the Saving Statute Upheld on Appeal <p style="text-align: justify;">The Tennessee Court of Appeals has released its opinion in <i>Richards v. Vanderbilt University Medical Center</i>, No. M2022-00597-COA-R3-CV (Tenn. Ct. App. July 11, 2023). The syllabus reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">This appeal concerns a complaint for health care liability. Although Tennessee Code
Annotated section 29-26-121(c) provides for an extension of the applicable statutes of
limitations in health care liability actions when pre-suit notice is given, it also specifies that
“[i]n no event shall this section operate to shorten or otherwise extend the statutes of
limitations or repose applicable to any action asserting a claim for health care liability, nor
shall more than one (1) extension be applicable to any [health care] provider.” After a prior
lawsuit was voluntarily dismissed without prejudice, Plaintiff provided new pre-suit notice
and refiled in reliance on the Tennessee saving statute and an extension under Tennessee
Code Annotated section 29-26-121(c). The trial court dismissed the refiled complaint with
prejudice, however, holding, among other things, that Plaintiff could not utilize the
statutory extension in his refiled action because he had already utilized a statutory
extension in the first lawsuit. For the reasons discussed herein, we affirm the trial court’s
dismissal of Plaintiff’s lawsuit. </blockquote><p></p><p style="text-align: justify;">Here is a link to the majority opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%202022-597-COA.pdf">Majority Opinion 2022-597-COA.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;">Here is a link to Judge Stafford's separate opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion%202022-597-COA.pdf">Separate Opinion 2022-597-COA.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE</b>: This is a case I am involved in; while I was not involved in the trial court proceedings, the plaintiff's counsel was nice enough to let me help on appeal. Because of this, I will not comment further except to note that we will more than likely seek review by SCOTN on this issue. </p><p style="text-align: justify;"><br /></p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-55773839258435380062023-06-25T09:16:00.000-07:002023-06-25T09:16:22.249-07:00Trial Court's Grant of Summary Judgment to Defendant Upheld on Appeal Because Claim Was Not Extended Due to Defendant Being Cited for Violation of a Municipal Ordinance <div style="text-align: justify;">The Tennessee Court of Appeals recently released its opinion in <i>Glover v. Duckhorn</i>, No. W2022-00697-COA-R3-CV (Tenn. Ct. App. May 2, 2023). The syllabus reads:</div><div><div style="text-align: justify;"><blockquote>At issue is whether Tennessee Code Annotated § 28-3-104(a)(2) extends the statute of
limitations for a personal injury action to two years when a traffic citation for the violation
of Memphis City Code Ordinance § 11-16-3 for Failure to Maintain Safe Lookout is issued
to the driver alleged to be at fault. Stated another way, is an exception created to the one-year statute of limitations for personal injuries if a person involved in an automobile
accident receives a ticket for the violation of a municipal ordinance from that accident?
The trial court ruled in the negative. We affirm.</blockquote></div><div style="text-align: justify;">Here is a link to the slip opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/GloverEmmaOPN.pdf">GloverEmmaOPN.pdf (tncourts.gov)</a>.</div></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>NOTE: </b>This opinion makes clear that the violation of a municipal ordinance will not extend the one-year statute of limitations for personal injuries like the violation of a criminal statute will. This is a must-read opinion for any lawyer who handles personal-injury cases governed by Tennessee substantive law. </div>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-14925324634680613352023-06-22T10:32:00.003-07:002023-06-22T10:50:10.627-07:00New Laws Effective in Tennessee on January 1 and July 1, 2023<p>To wit:</p><p>January 1: <span> </span><a href="https://www.capitol.tn.gov/Archives/Joint/publications/PublicChapters/2023/PublicChapters_202301.pdf">EffectiveRpt (tn.gov)</a>.</p><p>July 1:<span> </span><span> <span> </span></span><a href="https://www.capitol.tn.gov/Archives/Joint/publications/PublicChapters/2023/PublicChapters_202307.pdf">EffectiveRpt (tn.gov)</a></p><p><b>NOTE: </b>These abstracts are great ways to stay current on Tennessee law. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-84040780365572036392023-05-31T15:56:00.004-07:002023-05-31T16:00:44.248-07:00Trial Court's Dismissal of Tort Action Upheld on Appeal Because Plaintiff Did Not Timely Commence the Action Against the Personal Representative of the Deceased Tortfeasor's Estate Within the Applicable Statute of Limitations <p style="text-align: justify;">The Tennesse Court of Appeals has released its opinion in <i>McMickens v. Perryman</i>, No. W2022-00445-COA-R3-CV (Tenn. Ct. App. May 31, 2023). The slip opinion reads: </p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">The plaintiff filed this personal injury action following an automobile accident in which
the other driver died. The plaintiff originally named the defendant as “John Doe, as
Administrator of the Estate of [the deceased driver].” The trial court dismissed the action
on the basis that the plaintiff failed to timely commence the action against the personal
representative of the estate within the applicable statute of limitations. We affirm and
remand.</blockquote><p></p><p style="text-align: justify;">Here is a link to the opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/McMickensKristopherOPN.pdf">IN THE COURT OF APPEALS OF TENNESSEE (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE:</b> As footnote 2 of the opinion points out, since this a <i>memorandum</i> opinion under Rule 10 of the Tennessee Court of Appeals, it shall not be published, and shall not be
cited or relied on for any reason in any unrelated case. With this in mind, however, the authorities cited in this opinion may be cited and relied on in other cases. As a result, this is a cautionary tale of how important it is to properly commence a civil action against a tortfeasor who has died <i>before</i> the lawsuit is filed. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-16614468799388749352023-05-31T14:19:00.001-07:002023-05-31T14:20:48.338-07:00Trial Court's Finding of No Fault by Governmental Entity Upheld on Appeal<p style="text-align: justify;">The Tennessee Court of Appeals has released its opinion in <i>Ware v. Metro Water Services</i>, No. M2022-01114-COA-R3-CV (Tenn. Ct. App. May 30, 2021). The syllabus from the slip opinion reads:</p><p></p><blockquote style="text-align: justify;">Plaintiff sued for personal injuries under the Tennessee Governmental Tort Liability Act,
alleging she had experienced a fall due to an unsecure water meter valve cover located in
her sister’s yard. Following a bench trial, the trial court entered an order finding that
Plaintiff had not met her burden of proof. Although Plaintiff appeals the dismissal of her
case, we affirm the trial court’s judgment.</blockquote><p></p><p style="text-align: justify;">Here is a link to the opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20M2022-01114-COA-R3-CV.pdf">Majority Opinion M2022-01114-COA-R3-CV.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE:</b> This opinion offers a good discussion of circumstantial evidence, which makes it worth reading. Good stuff. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-74561895310018655202023-05-25T16:54:00.002-07:002023-05-25T16:54:50.424-07:00Trial Court's Dismissal of Pro Se Legal Malpractice Claim as Being Barred by the Statute of Limitations Upheld on Appeal<p style="text-align: justify;">The Tennessee Supreme Court has released its opinion in <i>Garrett v. Weiss</i>, No. E2022-01373-COA-R3-CV (Tenn. Ct. App. May 25, 2023). The syllabus from the slip opinion reads:</p><p style="text-align: justify;"></p><blockquote style="text-align: justify;">The pro se plaintiff appeals the trial court’s summary judgment dismissal of his legal
malpractice action against his attorney and the attorney’s law firm. The trial court found
that the action was barred by the applicable one-year statute of limitations. Because the
plaintiff’s action accrued more than one year before he filed the lawsuit, we affirm.</blockquote><p></p><p style="text-align: justify;">Here is a link to the opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Bradley%20Garrett%20v%20William%20Weiss.pdf">Bradley Garrett v William Weiss.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE:</b> This opinion addresses the standard of review for summary judgment when the movant has the burden of proof on the issue at trial (here, the defendant as to a defense based on the statute of limitations); accrual of legal malpractice actions under the discovery rule, and waiver of issues on appeal. This is a good read in my humble opinion because of these topics. </p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-42094051476652858902023-05-24T16:50:00.002-07:002023-05-24T17:31:12.306-07:00New Case on Malicious Prosecution: Plaintiffs' Malicious Prosecution Claim Did Not Accrue Until Defendant's Time to File a Brief on Appeal Expired<div style="text-align: justify;">The Tennessee Court of Appeals has issued its decision in <i>Cordova v. Martin</i>, No. M2021-01412-COA-R3-CV (Tenn. Ct. App. May 24, 2023). The syllabus from the slip opinion reads:</div><div style="text-align: justify;"><blockquote>This is an action for malicious prosecution of an attorney’s fee claim. The plaintiffs contend
that the trial court improperly granted summary judgment to the defendant under the one year statute of limitations in Tennessee Code Annotated § 28-3-104(a)(1). The court held
that the plaintiffs’ cause of action accrued when the allegedly-malicious prosecution
terminated, and it held that the prosecution terminated when the first court denied the
defendant’s motion to alter or amend the judgment under Tennessee Rule of Civil
Procedure 59.04. The plaintiffs contend that this is wrong because the defendant was a
party to and participated in the appeal of those proceedings. They assert that the defendant’s
action did not terminate until he exhausted his appellate remedies. We agree and hold that
the defendant’s cause of action did not terminate until his time for filing an appellate brief
expired. Thus, we reverse the decision of the trial court and remand with instructions to
reinstate the complaint and for further proceedings consistent with this opinion.</blockquote></div><div style="text-align: justify;">Here is a link to the slip opinion: <a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20M2021-01412-COA-R3-CV.pdf">Majority Opinion M2021-01412-COA-R3-CV.pdf (tncourts.gov)</a>.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>NOTE: </b>This opinion does a good job of explaining the accrual of these types of claims; it is a good read. </div>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0tag:blogger.com,1999:blog-21147806.post-82901345693355451372023-05-23T17:52:00.003-07:002023-05-23T17:57:18.397-07:00New Health Care Liability Action Opinion: Defendant (Who Was a Healthcare Provider) Cannot Be Compelled to Provide Expert Opinion Testimony About Another Defendant Provider's Standard of Care or Deviation from Said Standard<p style="text-align: justify;"><span style="font-family: inherit;">The Tennessee Supreme Court has released its opinion in <i>Borngne v. Chattanooga Hamilton County Hospital Authority</i>, No. No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023). The syllabus from the slip opinion reads:</span></p><p style="text-align: justify;"></p><blockquote style="text-align: justify;"><span style="font-family: inherit;">This appeal primarily concerns the compulsion of a physician’s deposition testimony in a
health care liability action. In 2014, a child was born via cesarean section and suffered
permanent brain damage and severely debilitating injuries. By and through her next friend
and mother Brittany Borngne (“Plaintiff”), the child sued the doctor who delivered her and
the certified nurse midwife who was initially in charge of the birthing process, among other
defendants. The trial court dismissed all claims of direct negligence against the defendant
physician but allowed the [P]laintiff to proceed against the physician on a vicarious liability
theory as the midwife’s supervising physician. However, during his deposition prior to
trial, the physician refused to opine on the midwife’s performance outside of his presence. The trial court declined to require the physician to do so, and after a trial, the jury found in
favor of the defendants. The Court of Appeals, in a divided opinion, partially reversed the
judgment. The intermediate court concluded, among other things, that the trial court
committed reversible error in declining to order the physician to answer the questions at
issue in his deposition and remanded for a new trial. After review, we hold that a defendant
healthcare provider cannot be compelled to provide expert opinion testimony about another
defendant provider’s standard of care or deviation from that standard. We therefore
conclude that the trial court here properly declined to compel the defendant physician’s
testimony. Accordingly, we reverse the decision of the Court of Appeals and affirm the
trial court’s judgment.</span></blockquote><p></p><p style="text-align: justify;"><span style="font-family: inherit;">Here is a link to the majority opinion: </span></p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20E2020-00158-SC-R11-CV-Page.pdf">Majority Opinion E2020-00158-SC-R11-CV-Page.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><span style="font-family: inherit;">Justice Campbell wrote a concurring opinion as to the judgment but not reasoning that was joined by Justice Kirby:</span></p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion%20E2020-00158-SC-R11-CV-Campbell.pdf">Separate Opinion E2020-00158-SC-R11-CV-Campbell.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><span style="font-family: inherit;">Justice Lee wrote a concurring opinion that takes issue with Justice Campbell's concurring in judgment opinion that was joined by Justice Kirby:</span></p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion%20E2020-00158-SC-R11-CV-Lee.pdf">Separate Opinion E2020-00158-SC-R11-CV-Lee.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><span style="font-family: inherit;">Here is Justice Kirby's opinion that also concurs with the results but not the reasoning of the majority opinion:</span></p><p style="text-align: justify;"><a href="https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion%20E2020-00158-SC-R11-CV-Kirby.pdf">Separate Opinion E2020-00158-SC-R11-CV-Kirby.pdf (tncourts.gov)</a>.</p><p style="text-align: justify;"><b>NOTE: </b>This decision relates to my July 1, 2021-post, to wit: </p><p style="text-align: justify;"><a href="https://theduncanlawfirm.blogspot.com/2021/07/new-health-care-liability-action.html">Tony Duncan Law: New Health Care Liability Action Opinion: New Trial Ordered Due to Trial Court Errors as to Expert Witness Testimony and Premajority Medical Expenses (theduncanlawfirm.blogspot.com)</a>.</p><p style="text-align: justify;"><span style="font-family: inherit;">This decision is a rarity in Tennessee SCOTN jurisprudence due to the number of opinions released by the justices. All are must-read opinions for any lawyer who handles Tennessee health care liability actions. </span></p>Tony Duncan (615) 620-4471http://www.blogger.com/profile/04842397904858603219noreply@blogger.com0