New Health Care Liability Action Opinion: Summary Judgment for the Defense Upheld on Appeal Because Plaintiff's Expert Proof Was Insufficient to Create a Genuine Issue of Material Fact

The Tennessee Court of Appeals has released its decision in Dickerson v. United Medical Transportation, LLC, No.  No. W2023-01084-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2024). The opinion's syllabus reads:

After suffering an injury, patient alleged that in-patient facility was negligent in failing to inform medical transportation company of his physical limitations prior to his discharge from the facility. In response to the facility’s summary judgment motion, patient relied on the testimony of an “expert in passenger ground transportation.” The trial court found that issues of fact remained as to patient’s ambulation needs, but granted summary judgment as to standard of care and breach because patient’s expert was not competent to testify under the Tennessee Health Care Liability Act, and the common knowledge exception did not apply. Finding no reversible error, we affirm.

Here is a link to the slip opinion: DickersonRobertOPN.pdf.

NOTE: This opinion reminds one of the general need for expert testimony for one to prevail in a health care liability action. 

Claim Against the State Barred Because Sovereign Immunity Has Not Been Removed for Gross Negligence.

The Tennessee Court of Appeals has released its decision in Gordon v. State, No. W2023-01012-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2024). The syllabus from the slip opinion reads:

The State appeals a judgment against it for an injury caused by the gross negligence of its employees in the creation or maintenance of a dangerous condition on state-owned property. Because we conclude that the Tennessee Claims Commission lacks subject matter jurisdiction over claims for gross negligence, we reverse.

Here is a link to that opinion: GordonTannaOPN.pdf (tncourts.gov).

NOTE: This is a must-read opinion for any lawyer who is handling a case before the Tennessee Claims Commission (especially where Tennessee's Recreational Use Statute is in play). 

Dismissal of Plaintiff's Third Lawsuit Upheld on Appeal Because It Was Not Timely Filed under the Saving Statute; Appeal Held to Be Frivolous

The Tennessee Court of Appeals has issued its opinion in Abdou v. Brown, No. M2023-01593-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2024). The syllabus reads:

This appeal arises from a civil action that was commenced and voluntarily dismissed without prejudice twice before the plaintiff refiled the same action for a third time. The defendants responded to the third filing by moving to dismiss on the ground that the third action was filed outside of the applicable statute of limitations. Relying on the authority in Payne v. Matthews, 633 S.W.2d 494 (Tenn. Ct. App. 1982), the trial court agreed with the defendants and dismissed the action with prejudice. The plaintiff appeals. We affirm. In their brief, the defendants/appellees ask this court to award them their attorney’s fees and expenses incurred in defending this appeal, contending that the appeal is frivolous. Finding that the appeal is devoid of merit and, therefore, frivolous, we remand this matter to the trial court to award the defendants/appellees their reasonable and necessary attorney’s fees and expenses incurred in defending this frivolous appeal.

Here is a link to that slip opinion: Majority Opinion - M2023-01593-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion explains the interaction between the saving statute and Rule 41 of the Tennessee Rules of Civil Procedure. It also explains when an appeal is frivolous. Being familiar with this opinion will keep a lawyer out of trouble in my humble opinion. 

Summary Judgment for the Defense Upheld on Appeal: Plaintiff Failed to Rebut Defendant's Motion for Summary Judgment

The Tennessee Court of Appeals has released its opinion in Brooks v. Whaley Construction, LLC, No. E2023-00711-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2024). The syllabus from the slip opinion reads:

This is an appeal from a premises liability claim brought against a construction company. The plaintiff tripped over a cut signpost while walking along a highway in Blount County, Tennessee. The plaintiff alleged that the defendant construction company caused, created, or had knowledge of the signpost and had a duty to the plaintiff. Following a motion for summary judgment by the construction company, the trial court determined that that construction company was not responsible for the signpost and thus owed the plaintiff no duty of care. The plaintiff appealed to this Court. Discerning no reversible error, we affirm. 

Here is a link to that opinion: E2023-00711 Opinion.pdf (tncourts.gov).

NOTE: This opinion does, among other things, a good job of setting out what must be done by a defendant or a plaintiff who moves for summary judgment. A good read in my humble opinion. 

New Health Care Liability Action Opinion: Summary Judgment for the Defense Reversed on Appeal Due to Lack of Imputation of Knowledge to Plaintiff's Attorney and the Discovery Rule

The Tennessee Court of Appeals released its opinion today in Mark v. Eck, No. E2023-01643-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2024). The syllabus reads: 

This appeal concerns the discovery rule. Dr. Jason C. Eck, D.O. (“Defendant”) performed spinal surgery on Keetly Marc (“Plaintiff”). On November 10, 2020, Plaintiff’s counsel, who then was representing Plaintiff only in a workers’ compensation case, received information through discovery reflecting that Plaintiff’s surgery was performed at the wrong level. Counsel reviewed the material on November 30, 2020, and informed Plaintiff by December 4, 2020. On November 24, 2021, Plaintiff sent pre-suit notice. On March 30, 2022, Plaintiff sued Defendant in the Circuit Court for Hamilton County (“the Trial Court”) alleging health care liability. Defendant filed a motion for summary judgment asserting the statute of limitations. The Trial Court granted summary judgment to Defendant. Plaintiff appeals. We hold that Plaintiff cannot be charged with constructive notice based on her attorney’s November 10, 2020, receipt of the relevant information because counsel was then representing Plaintiff only in a workers’ compensation case, and a potential health care liability claim was beyond the scope of her representation. Thus, the knowledge obtained by Plaintiff’s counsel on November 10, 2020, may not be imputed to Plaintiff. Plaintiff was made aware of the relevant information at some point from November 30, 2020, through December 4, 2020, meaning her lawsuit against Defendant was timely filed. We reverse the Trial Court’s judgment and remand for this case to proceed.

Here is the slip opinion: Keetly Marc v. Jason Eck, D.O. Opinion.pdf (tncourts.gov).

NOTE: Look for the defendant to seek review of this decision by the Tennessee Supreme Court. 

Summary Judgment Reversed on Appeal Because Movant Supplied an Altered Memorandum Opinion to the Trial Court in Support of That Motion

The Tennesse Court of Appeals just issued its opinion in Giro v. Wilburn, No. E2023-01541-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2024). The syllabus from the slip opinion reads: 

This appeal concerns service of process and the statute of limitations. Vicki Ann Giro (“Giro”) sued Kaleb Wilburn (“Wilburn”) in the Circuit Court for Knox County (“the Trial Court”) for injuries Giro sustained in a car accident with Wilburn. Giro failed to timely serve the summons in compliance with Tenn. R. Civ. P. 3 and failed to issue new process before the statute of limitations expired. Giro filed a motion for enlargement of time. In opposition to Giro’s motion, the Trial Court was furnished with an altered copy of Hollis ex rel. Nicole N. v. Sanchez, No. M2022-01190-COA-R3-CV, 2023 WL 5920145 (Tenn. Ct. App. Sept. 12, 2023), no appl. perm. appeal filed. The altered copy of Hollis retains the heading “MEMORANDUM OPINION” but omits Footnote 1 stating that, as a memorandum opinion, Hollis is not to be cited or relied on in any unrelated case pursuant to Tenn. Ct. App. R. 10. The Trial Court, which had been furnished on Wilburn’s behalf with the altered copy missing the explanatory footnote, relied heavily on Hollis to deny Giro’s motion for enlargement of time. We therefore vacate the judgment of the Trial Court and remand for the Trial Court to exercise its discretion on whether to grant Giro’s motion for enlargement of time without considering Hollis or any other opinion designated by this Court as a memorandum opinion.

Here is a link to the opinion: Giro vs. Giro Memorandum Opinion (unsigned).pdf (tncourts.gov).

NOTE: It is not a win if you have to cheat. My two cents' worth. 

Tennessee Anti-SLAPP Opinion: Supreme Court of Tennessee Holds That a Petitioner Was a Limited-purpose Public Figure, That He Failed to Establish Actual Malice on Respondent's Part, and That Appellee Preserved Her Claim for Attorney's Fees

The Tennesse Supreme Court has issued its opinion in Charles v. McQueen, M2021-00878-SC-R11-CV (Tenn. July 3, 2024). The syllabus from the slip opinion reads:

Ordinarily, a plaintiff asserting a defamation claim must prove that the defendant made a false statement and did so negligently. If the plaintiff is a public figure, however, he must prove that the statement was made with actual malice. This is a steep hill to climb, so determining whether the plaintiff is a public figure is a crucial inquiry in any defamation case. This case is no exception. The plaintiff here, Bill Charles, assisted with the development of the Durham Farms community in Hendersonville, Tennessee, and is president of its homeowners’ association. Charles brought defamation and false light claims against Donna McQueen, a Durham Farms resident who posted a Google review that was critical of him. McQueen sought dismissal of Charles’s claims under the Tennessee Public Participation Act, arguing that Charles could not establish a prima facie case for his claims because he could not prove actual malice. The trial court agreed with McQueen and dismissed the claims. The Court of Appeals reversed in part. It agreed with McQueen that Charles had to prove actual malice to prevail on his false light claim and had failed to do so. But it held that Charles is not a public figure and therefore need not prove actual malice for his defamation claim. We disagree with the Court of Appeals on that score. We hold that Charles is a limited-purpose public figure given the voluntary and prominent role he played in a controversy concerning changes to the Durham Farms development plan. We further hold that Charles failed to establish a prima facie case of actual malice. Finally, we reject Charles’s argument that McQueen waived her request for appellate attorney’s fees by failing to list it as an issue in her Court of Appeals brief. We reverse the Court of Appeals in part and affirm in part, and we remand for further proceedings.

Here is a link to that opinion: Majority Opinion - M2021-00878-SC-R11-CV.pdf (tncourts.gov).

NOTE: This opinion explains the law of defamation and when someone is a public figure, Tennessee's Anti-SLAPP Statute (the Tennessee Public Participation Act), and practice on appeal before Tennessee state courts. A must-read decision in my humble opinion.