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:

http://www.tncourts.gov/sites/default/files/emert_vs._millennium_coa_majority_opinion.pdf

Judge Susano's dissenting opinion is here:

http://www.tncourts.gov/sites/default/files/emert_vs._millennium_taxi_servicesseparate_opinion.pdf

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).  

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:

http://www.tncourts.gov/sites/default/files/lemonte.ronald.opn_.pdf

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).

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: 

http://www.tncourts.gov/sites/default/files/williams.steven.opn_.pdf

Here is Judge Dinkin's partial concurrence and dissent:

http://www.tncourts.gov/sites/default/files/williams.steven.sep_.din_.opn_.pdf

Here is Judge Frierson's partial concurrence and dissent:

http://www.tncourts.gov/sites/default/files/williams.steven.sep_.frier_.opn_.pdf

NOTE:

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:

http://theduncanlawfirm.blogspot.com/2018/08/new-health-care-liability-action.html

New Tennessee Case on Hospital Liens & Tennessee Consumer Protection Act

The Tennessee Court of Appeals recently issued its opinion in Franks v. Sykes, No. W2018-00654-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018).  The syllabus from the slip opinion reads:

This appeal concerns two separate plaintiffs’ claims under the Tennessee Consumer Protection Act (“TCPA”), alleging that the filing of undiscounted hospital liens violated the TCPA by “[r]epresenting that a consumer transaction confers or involves rights, remedies or obligations that it does not have or involve or which are prohibited by law.” The trial court dismissed one plaintiff’s claim based on the pleadings due to the plaintiff’s failure to bring a claim under the Hospital Lien Act and dismissed another plaintiff’s claim for improper venue. We affirm in part as modified, reverse in part, and remand for further proceedings.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/franksroyopn.pdf

NOTE: Please see the SCOTN opinion that was released on May 1, 2020 concerning the further appeal of this case, to wit:

http://theduncanlawfirm.blogspot.com/2020/05/new-scotn-case-court-holds-that.html.

New Health Care Liability Action Opinion: Plaintiff's Case Dismissed Due to Counsel's Failure to Comply with Onerous Presuit Notice and Filing Requirements

The Tennessee Court of Appeals recently issued its opinion in Newman v. State, No. M2018-00948-COA-R3-CV (Tenn. Ct. App. Feb. 15, 2019).  The syllabus form the slip opinion reads as follows:

A patient in a state psychiatric facility was killed by another patient. The surviving spouse of the deceased patient brought suit against the State and was awarded damages for the wrongful death of her husband. Because the Tennessee Health Care Liability Act applies to the surviving spouse’s claim, and because she failed to comply with the Act’s requirements of pre-suit notice and good faith certification, we must reverse the decision of the Claims Commission.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/newman.unitta.opn_.pdf

NOTE: This case is a companion case to the one discussed in my Aug. 8, 2016 blog post:

http://theduncanlawfirm.blogspot.com/2016/08/new-health-care-liability-action.html

Both of these cases demonstrate the importance of complying with Tenn. Code Ann. sec. 29-26-121 and -122; they also demonstrate the wide net cast by Tenn. Code Ann. sec. 29-26-101.  Health care liability actions are incredibly complicated and byzantine, which can cause problems for lawyers who do not practice in this area of the law.  

A person died due to alleged negligence here and the case(s) should be allowed to proceed as any other case would without being dismissed due to procedural technicalities.  That would be fair.

New Health Care Liability Action Opinion: Plaintiff Allowed to Take a Nonsuit Despite the Fact That a Certificate of Good Faith Was Not Filed with the Complaint

The Tennessee Court of Appeals recently released its opinion in Renner v. Takoma Regional Hospital, No. E2018-00853-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2019).  The syllabus from the slip opinion reads as follows:

This is a health care liability action in which the defendants filed a motion to dismiss based upon the plaintiff’s failure to file a certificate of good faith with the complaint. The plaintiff then filed the required certificate. The defendants responded with motions for summary judgment with attached affidavits, attesting that a certificate of good faith was not attached to the original complaint. The plaintiff moved for voluntary dismissal. The court granted the plaintiff’s motion and filed an order of voluntary dismissal. The defendants appeal, claiming that Rule 41.01 of the Tennessee Rules of Civil Procedure prohibits the taking a voluntary nonsuit when a summary judgment motion is pending. We affirm.

(Footnote omitted.)

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/martha_renner_v_takoma_regional_hospital_et_al..pdf

NOTE: Some things to take with you after reading this opinion: first, if a motion for summary judgment is not pending, a plaintiff, in a Tennessee state court civil action, has a right to take a nonsuit (a.k.a. a voluntary dismissal without prejudice) without having to file a motion.  Tenn. R. Civ. P. 41.01.  Second, if a motion for summary judgment is pending, a plaintiff may still take a nonsuit with a court's permission.  Stewart v. Univ. of Tenn., 519 S.W.2d 591,593–94 (Tenn. 1974).  

However, if a nonsuit is taken against a governmental entity, suit cannot be refiled under the saving statue because it does not save the action.  That subject is for a post on another day.

Comparative Fault: Another New Opinion on Tennessee Code Annotated section 20-1-119

On Dec. 13, 2018, the Tennessee Court of Appeals issued its opinion in Nationwide Mutual Fire Insurance Company v. Memphis Light, Gas and Water, No. W2017-02551-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2018).  The syllabus from the slip opinion states as follows:

Plaintiff/Appellant Nationwide appeals the trial court’s grant of Defendant/Appellee’s motion to dismiss for failure to state a claim for which relief can be granted. Defendant’s motion was based on the argument that Plaintiff’s claim was time-barred pursuant to the Tennessee Governmental Tort Liability Act, and that Tennessee Code Annotated section 20-1-119 did not allow Plaintiff to timely add Defendant to the suit. Because we conclude that the trial court incorrectly applied Tennessee’s comparative fault statute, we reverse.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/nationwidemutualfireinsuranceopn.pdf

NOTE: This opinion does a good job of analyzing and explaining Tenn. Code Ann. sec. 20-1-119 (our state's comparative fault joinder statute).  I am a little surprised the trial court granted the dismissal as this issue was addressed a few years ago in Queen’s Tree Surgery v. Metropolitan Government of Nashville and Davidson County, No. M2003-00228-COA-R3-CV, 2003 WL 22768689 (Tenn. Ct. App. Nov. 24, 2003).  For what it is worth, I had a similar issue come up a little while back in Scales v. H.G. Hill Realty Co., which is the subject of my Jan. 31, 2018 post: http://theduncanlawfirm.blogspot.com/2018/01/new-tennessee-court-of-appeals-opinion.html.

Trial Court's Dismissal of Case Against Truck Stop Reversed on Appeal Because Trial Court Misapplied Standard of Review in Granting Truck Stop's Motion to Dismiss

On Nov. 5, 2018, the Tennessee Court of Appeals issued its opinion in Mershon v. HPT TA Properties Trust, No. M2018-00315-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2018).  The syllabus from the slip opinion reads as follows:

A motor vehicle accident on the roadway abutting a truck stop resulted in the death of the plaintiff’s husband. The driver of the vehicle turning left into the truck stop was using the entrance meant for semi-trailer trucks and had a limited view of oncoming traffic due to a hill that crested a short distance ahead. The plaintiff filed a negligence claim against the truck stop owners and operators, asserting they created a hazardous condition by failing to place visible signage on their property directing passenger vehicles to the appropriate entrance. The defendants moved to dismiss the complaint, contending they owed no duty to the traveling public because the collision occurred on a municipal road, not on their property. The trial court granted the motion to dismiss, and the plaintiff appealed. We reverse the trial court’s judgment, holding that a balancing test is required to determine whether the defendants owed a duty to the plaintiff’s husband and that dismissing the complaint is premature at this stage of the proceedings.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/mershon.melba_.opn_.pdf

NOTE: This is an excellent opinion that discusses the standard of review to be applied for motions to dismiss and when a duty of care arises.  This is a must-read opinion for attorneys who are interested in these two matters.  

Tennessee's Peer Review Statute Cannot Be Used to Suborn Perjury!

On Dec. 11, 2018, the Tennessee Court of Appeals issued its opinion in Reynolds v. Gray Medical Investors, LLC, No. E2017-02403-COA-R9-CV (Tenn. Ct. App. Dec. 11, 2018).  The syllabus from the slip opinion reads:

We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, (“the peer review statute”), to claim privilege and exclude evidence that an employee was threatened with dismissal or retaliation if the employee refused to change their story or alter documents in order to cover up possible negligent conduct. We find and hold that the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was intended to allow a healthcare provider to attempt without fear of adverse consequences to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order of the Circuit Court for Washington County ... excluding the testimony of defendants’ employee pursuant to the peer review privilege contained in Tenn. Code Ann. § 68-11-272 and remand this case for further proceedings consistent with this Opinion.

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/mark_reynolds_as_administrator_of_the_estate_of_carol_ann_reynolds_v._gray_medical_investors_llc._et_al..pdf

NOTE: The defendant herein was attempting to use the peer review statute to suborn perjury; take a minute for that to sink in.  Perjury!  That is why the panel, in construing the peer review statute, wrote: "[I]n no known universe does suborning perjury fit within the General Assembly’s stated purpose of Tenn. Code Ann. § 68-11-272...."  Reynolds, No. E2017-02403-COA-R9-CV, slip op. at 7 (emphasis added).  I am glad the panel did what it did and shut this sort of "argument" down, because what was being attempted was simply beyond the pale.

New Laws Effective in Tennessee on Jan. 1, 2019

http://www.capitol.tn.gov/Archives/Joint/publications/01-01-2019_effective.pdf

Dismissal of Plaintiffs' Lawsuit Upheld on Appeal Due to Their Failure to Properly Substitute a Representative of Deceased Tortfeasor Within the Time Prescribed by Applicable Law

The Tennessee Court of Appeals issued its opinion today in Owens v. Muenzel, No. E2018-00199-COA-R3-CV (Tenn. Ct. App. Dec. 21, 20180.  The syllabus from the slip opinion reads as follows:

This appeal arises from an action for personal injuries incurred in a vehicle collision. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs, unaware of the death of the decedent, commenced this action and named him as a defendant. The plaintiffs also sued their uninsured/underinsured motorist insurance carrier. Upon learning of the death of the decedent, the plaintiffs moved for the trial court to appoint an administrator ad litem. The trial court eventually dismissed the matter in its entirety with prejudice upon finding, inter alia, that it did not possess subject matter jurisdiction to appoint an administrator ad litem and that the action was barred by the statute of limitations. We affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/bill_e._owens_et_al._v._otto_muenzel_jr._et_al..pdf

NOTE: This opinion does a great job of outlining what must be done by a plaintiff to "revive" (although that term is not technically used now under current law, see generally Tenn. R. Civ. P. 25.01, https://www.tncourts.gov/rules/rules-civil-procedure/2501) a claim against a deceased tortfeaso so that claims asserted in a civil action do not become time-barred.  

Grant of Summary Judgment Overturned Because Trial Court Failed to Follow Rule 56.04, Tenn. R. Civ. P.

The Tennessee Court of Appeals recently released its opinion in Bertucelli v. Haehner, No. E2017-02068-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018).  The syllabus from the slip opinion reads as follows:

Appellants appeal the trial court’s order granting Appellees’ motion for summary judgment “as to all remaining issues” asserted by Appellants in their complaint. In its order granting summary judgment, the trial court failed to state the legal grounds on which it granted summary judgment on the remaining claims as required by Tennessee Rule of Civil Procedure 56.04. In the absence of such grounds, this Court cannot make a meaningful review of the trial court’s decision. We, therefore, vacate the trial court’s final order and remand the case for further proceedings. Vacated and remanded.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/raymond_bertuccelli_et_al._v._carl_mark_haehner_et_al..pdf

Here is a link to Rule 56.04, Tenn. R. Civ. P.:

http://www.tncourts.gov/rules/rules-civil-procedure/5604

Plaintiff's Case Not Subject to Dismissal Due to Lost Return of Proof of Service of Process

The Tennessee Court of Appeals recently released its opinion in Hart v. Memphis Light Gas & Water Division, No. W2018-00254-COA-R3-CV (Tenn. Ct. App. Dec. 13, 2018).  The syllabus from the slip opinion reads as follows:

The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the applicable statute of limitations was tolled by service of process when no proof of service was returned to the court as required under Tennessee Code Annotated section 16-15- 902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we conclude, as did the trial court, that Appellee’s failure to make return to the court did not, ipso facto, constitute a lack of service of process such that the statute of limitations expired.  Affirmed and remanded.

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/hartdeborahopn.pdf 

NOTE: In my opinion, I think this case hinges upon the fact that the appellant-defendant's attorney admitted in court that her client had been served with leading process.  Hart, No. W2018-00254-COA-R3-CV, slip op. at 2.  And, I think it mattered that Plaintiff's prior counsel's credible testimony evinced that he had made a proper return of proof of service to the clerk's office.  Id.

This opinion also cites one of my cases, Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), just like the one in my prior blog post.  Always nice to be part of a solid opinion that is relied upon for years to come.  

Trial Court's Dismissal of Civil Action Upheld on Appeal Because Plaintiff Failed to Have Leading Process Reissued and Properly Served upon a Defendant

The Tennessee Court of Appeals recently issued its opinion in Middleton v. City of Millington, No. W2018-00338-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2018).  The syllabus from the slip opinion reads as follows:

The trial court granted summary judgment to defendant city on the basis of the expiration of the statute of limitations. Specifically, the trial court ruled that plaintiff’s complaint was ineffective to toll the statute of limitations where service of process on the city clerk did not comply with Rule 4.04(8) of the Tennessee Rules of Civil Procedure and process was not reissued. Discerning no error, we affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/middletonwindellopn.pdf

NOTE: This opinion cites one of my cases, Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013).  Middleton, W2018-00338-COA-R3-CV, slip op. at 3.  Both this opinion and Fair are must-reads if you practice on the civil side in Tennessee state courts because they stress the point that while filing a civil action within the applicable statute of limitations is vitally important, the service of leading process is also vitally important to prevent claims in a civil action from becoming time-barred.  

What can a plaintiff do when insufficiency of service of process is pleaded as an affirmative defense like what was done in this case?  Take a look at Rule 4.07 of the Tennessee Rules of Civil Procedure, which can be viewed at this link: http://www.tncourts.gov/rules/rules-civil-procedure/407.

Rule 4.07 has a cost-shifting provision that helps ensure that a defendant is properly before a Tennessee state court (much like the similar federal provision).  It has some teeth.

New Health Care Liability Action: Trial Court's Dismissal of Case Upheld on Appeal

The Tennessee Court of Appeals just released its opinion in Parks v. Walker, No. E2017-01603-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018).  The syllabus from the majority opinion reads as follows:

This is a health care liability action. Plaintiff gave written pre-suit notice of her claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (2018). She then filed her complaint. Defendants filed motions to dismiss. After a hearing, the trial court held that plaintiff failed to substantially comply with the requirements of the notice statute by failing to provide a HIPAA-compliant medical authorization, pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). It entered an order granting defendants’ motions to dismiss. Plaintiff appeals. We affirm.

Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/parks_vs._walker_coa_majority_opinion.pdf

Judge Swiney authored a dissent, which can be found here:

http://www.tncourts.gov/sites/default/files/jennifer_parks_v._walker_dissenting_coa_separate_opinion.pdf

NOTE: Respectfully, I think the majority opinion is in error.  Again it confounds me that the courts of Tennessee—and many lawyers—have not picked up on the fact that a defendant (or potential defendant) in a health care liability action does not have to have a HIPAA-compliant authorization to share a patient's or plaintiff's protected health information ("PHI") with other defendants and their legal counsel because because doing that is part of a covered entity's "health care operations" as defined by 45 C.F.R. sections 164.501, -502(b), -.514(d).

As such, dismissal of a health care liability action because a defendant did not get a HIPAA-compliant authorization for a patient's PHI would be improper because Tenn. Code Ann. sec. 29-26-121's requirement that such an authorization be enclosed as part of a claimant's presuit notice appears to be preempted by HIPAA. 

Again, I think the dissent is in error for the reasons stated above.  

Here are some helpful links on this subject:

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/permitted-uses/index.html

http://www.hhs.gov/hipaa/for-professionals/faq/705/may-a-covered-entity-in-a-legal-proceeding-use-protected-health-information/index.html.  

https://www.hhs.gov/hipaa/for-professionals/faq/704/may-a-covered-entity-use-protected-health-information-for-litigation/index.html

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/disclosures-treatment-payment-health-care-operations/index.html

New Comparative Fault Opinion: Trial Court's Decision to Allow Fault to Be Allocated to an Agritourism Nonparty Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Green v. St. George's Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018).  The syllabus from the slip opinion reads as follows:

This appeal arises from a jury verdict in a personal injury action. The defendant alleged the comparative fault of a nonparty who was potentially immune from liability under Tennessee’s agritourism statute. See Tenn. Code Ann. §§ 43-39-101 to -103 (Supp. 2018). Before trial, the defendant asked the court to exclude all evidence and argument before the jury regarding statutory immunity as irrelevant and prejudicial. The court excluded argument and evidence of immunity but allowed the parties to present evidence on whether the nonparty had complied with the statute. At the conclusion of the trial, the court permitted the jury to apportion a percentage of fault to the nonparty without considering the nonparty’s compliance with the agritourism statute. On appeal, the plaintiff argues that the trial court erred in allowing the jury to allocate fault to the nonparty because the agritourism statute provided immunity from fault as well as liability. We conclude that nothing in the agritourism statute precludes the allocation of fault to a nonparty agritourism professional in a negligence action. So we affirm.

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/green.edna_.opn_.pdf

NOTE: This opinion does a good job of explaining Tennessee's system of modified comparative fault and the allocation of fault under as affected by our agritourism statutes, which grant immunity under certain circumstances.  

Defense Verdict in Second Trial Upheld on Appeal

Yesterday the Tennessee Court of Appeals issued its opinion in Alumbaugh v. Wackenhut Corp., No. M2016-01530-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2018).  The syllabus from the slip opinion reads as follows:

After the plaintiff’s father was killed by an armed security guard, she filed a wrongful death action against the security guard’s employer. The complaint alleged both vicarious and direct liability and sought an award of compensatory and punitive damages. The employer maintained that the guard acted in self-defense. After the first trial, the jury rendered a verdict in favor of the plaintiff. But the trial court ordered a new trial based on errors in the calculation of damages. A second jury verdict apportioned the greater proportion of fault to the decedent, resulting in a defense judgment. On appeal, the plaintiff contends that the trial court made numerous errors in the conduct of the second trial. After a thorough review, we conclude that the trial court did not commit reversible error. So we affirm.

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/alumbaugh.alicia.opn_.pdf

NOTE: This opinion offers an interesting analysis of rebuttal evidence, directed verdicts, punitive damages (pre-2011), negligent supervision, amendments to conform to the evidence, and missing evidence and spoliation of evidence.  

New Health Care Liability Action Opinion: Trial Court's Denial of Motions to Dismiss Based upon a Finding of Extraordinary Cause Upheld on Appeal

The Tennessee Court of Appeals just issued its opinion in Reed v. West Tennessee Healthcare, Inc., No. W2018-00227-COA-R9-CV (Tenn. Ct. App. Oct. 8, 2018).  Here is the syllabus from the slip opinion:

We granted this Rule 9 interlocutory appeal in this healthcare liabil[i]ty action to consider whether termination of representation by plaintiff’s prior legal counsel a few weeks before the expiration of the statute of limitations in this healthcare liability action constitutes sufficient extraordinary cause to excuse (1) plaintiff’s failure to wait at least sixty days to file the complaint after providing pre-suit notice as required by Tenn. Code Ann. § 29-26-121; and, (2) plaintiff’s failure to file a Certificate of Good Faith with the complaint as required by Tenn. Code Ann. § 29-26-122. We find and hold that the Trial Court did not err in finding and holding that termination of representation by plaintiff’s prior legal counsel a few weeks before the expiration of the applicable statute of limitations does constitute the type of extraordinary cause sufficient to excuse plaintiff’s failure to comply with Tenn. Code Ann. §§ 29-26-121 and 29-26-122. We, therefore, affirm the Trial Court’s orders denying the motions to dismiss.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/reedcharlesopn.pdf

NOTE: At times, "extraordinary cause" is required in some instances under our medical negligence law in Tennessee.  However, that phrase is not defined by statute, which is why this opinion helps shed some light on what it actually means.  As such, this is a must-read opinion for any lawyer who handles health care liability (f.k.a. medical malpractice) cases in Tenn.  

New Health Care Liability Opinion: Trial's Court's Grant of Summary Judgment Reversed on Appeal Due to the Application of Res Ipsa Loquitur

The Tennessee Court of Appeals recently released its opinion in Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018).  The syllabus from the slip opinion reads as follows:

This is a health care liability case. The trial court granted Appellees’ motion for summary judgment on Appellant’s res ipsa loquitur claim under Tennessee Code Annotated section 29-26-115(c). Appellant appeals. Because Appellant presented sufficient evidence at the summary judgment stage to create a dispute of fact, we reverse the trial court’s grant of summary judgment.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/anderson.katherine.opn_.pdf

NOTE: I'm glad my Deuel case helped in this one.  Anderson v. Wang, No. M2018-00184-COA-R3-CV, slip op. at 6–7 (Tenn. Ct. App. Oct. 5, 2018) (citing Deuel v. Surgical Clinic, PLLC,  No. M2009-01551-COA-R3-CV, 2010 WL 3237297, at *10 (Tenn. Ct. App. Aug. 16, 2010)).  In my humble opinion, the Tennessee Court of Appeals got this one right.  

New Tennessee Court of Appeals' Opinion: Trial Court Reversed Due to Erroneous Ruling as to the Admission of Medical Records

The Tennessee Court of Appeals recently issued its opinion in Goodwin v. Hanebis, No. M2017-01689-COA-R3-CV (Tenn. Ct. App. Aug. 29, 2018).  Here is the syllabus from the slip opinion:

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. The jury returned a verdict in favor of Appellee, and the trial court entered a final judgment for $68,995.02. Because the trial court erred in excluding relevant medical records, we reverse the judgment and remand for a new jury trial.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/goodwin.vallaree.opn_.pdf

NOTE: This opinion is a great reminder of Tenn. Code Ann. sec. 24-7-122 and its effects upon evidence at trial relating to the admission of medical records.  This is a must-read opinion for any trial lawyer who practices in Tennessee.