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Thursday, March 02, 2023

New Health Care Liability Action Opinion: Trial Court's Grant of Motion to Compel Upheld on Appeal as Modified; Expert's Draft Reports, Notes, Communicaitons with Counsel, Etc., Are Discoverable

The Tennesse Court of Appeals has issued its opinion in Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023). The syllabus from the slip opinion reads: 

In this health care liability action, the trial court granted the defendants’ motions to compel the plaintiff to produce expert witness materials despite the plaintiff’s claim of the work product doctrine. The trial court subsequently denied the plaintiff’s motion for interlocutory appeal. Upon the plaintiff’s application, this Court granted leave for an extraordinary appeal. Determining that the plaintiff has waived any privilege or protection for specific materials requested by the defendants, including expert witnesses’ notes, draft reports, and communications with counsel, we affirm the trial court’s grant of the defendants’ motions to compel, inclusive of the trial court’s proviso allowing the plaintiff to present specific materials for review if she believes they contain mental impressions of her counsel. However, also determining the trial court’s order to be overly broad, we modify the language of the order to more closely track the language of Tennessee Rule of Civil Procedure 26.02(4)(A)(i) and the defendants’ specific requests.

Here is a link to the opinion: E2021-1308.pdf (

Here is Judge Swiney's concurring opinion: E2021-1308 Separate Opinion.pdf (

NOTE: This opinion concerns the scope of pretrial discovery, privilege logs, and waiver relating to expert witnesses. Any lawyer who is dealing with such pretrial discovery issues should read this opinion. 

Sunday, February 19, 2023

New SCOTN Opinion: Dismissal of Complaint Due to the Fact that Governmental Immunity Is Removed for "Negligent" Employee Conduct but Not "Reckless" Conduct Upheld on Appeal

The Tennesse Supreme Court has released its opinion in Lawson v. Hawkins County, No. E2020-01529-SC-R11-CV (Tenn. Feb. 16, 2023). The syllabus reads:

Governmental entities generally are immune from suit. But the Governmental Tort Liability Act removes immunity for certain injuries caused by the negligent acts of an employee. In this case, we consider whether the term “negligent” in the Act’s removal provision is limited to ordinary negligence or instead also encompasses gross negligence or recklessness. We hold that the Act removes immunity only for ordinary negligence. Because the Court of Appeals held to the contrary, we reverse the decision below and remand for further proceedings.

Here is a link to the slip opinion: 

0fdbd31a-edd1-44c4-a8ac-21567adf393a.pdf (

Justice Kirby's concurring opinion is at this link:

LAWSON - Separate Opinion.pdf (

NOTE: This opinion is a must-read one for any lawyer who handles claims under Tennessee's Governmental Tort Liability Act. 

The previous opinion from the Tennessee Court of Appeals can be found at this link:

Tony Duncan Law: New Case on the Tennessee Governmental Tort Liability Act: Liability Based on Negligence, Gross Negligence, Recklessness, and Exceptions to the Public Duty Doctrine Save the Day; Trial Court's Dismissal Reversed on Appeal (

Sunday, February 05, 2023

Summary Judgment for Defense Reversed on Appeal in Premises Liability (Wrongful Death) Case on the Issue of Duty, Etc.

The Tennessee Court of Appeals has released its decision in Estate of Smith v. Highland Cove Apartments, M2021-01215-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2023). The slip opinion reads:

This is negligence and wrongful death action brought be the decedent’s estate and the surviving spouse against the apartment complex owner and management company where the accident occurred. The decedent died from profound injuries he sustained when he fell while attempting to remove tree branches that blocked the only path his disabled stepson used for ingress and egress to his apartment. The complaint asserted claims for negligence based on premise liability, negligence per se, and wrongful death. Upon the motion of the defendants, the trial court summarily dismissed all claims based on the finding that the defendants did not owe the decedent a duty of care because the accident was not foreseeable. The court also dismissed the surviving spouse's independent claim for loss of consortium. Plaintiffs appealed. We find that sufficient facts exist from which a trier of fact could reach a different conclusion than that found by the trial judge on the issues of foreseeability and duty. Accordingly, we reserve the decision to dismiss the wrongful death claim. We nevertheless affirm the dismissal of the spouse’s independent claim for loss of consortium because it does not represent a claim for damages separate from the wrongful death action. Rather, “a claim for consortium. . .embodies one component of the decedent's pecuniary value of life.” Kline v. Eyrich, 69 S.W.3d 197, 207 (Tenn. 2002). Accordingly, the case is remanded to the trial court for further proceedings consistent with this opinion.

Here is a link to the slip opinion:

Majority Opinion 2021-1215-COA.pdf (

NOTE: This opinion offers up a good summary of the current state of Tennessee law on premises liability, summary judgment, and wrongful death. If you are a practitioner who has to deal with these areas of substantive law, then you need to read this opinion. 

Wednesday, January 11, 2023

Trial Court's Dismissal of Health Care Liability Action Upheld on Appeal Because Substitution of Deceased Plaintiff Was Not Timely Effected and Time to Substitute Could Not Be Enlarged Because No Excusable Neglect Was Shown to Exist

The Tennessee Court of Appeals has released its decision in Joshlin v. Halford, No. W2020-01643-COA-R3-CV (Tenn. Ct. App. Jan. 6, 2023). The syllabus from the slip opinion reads:

This appeal involves a failure to timely move for substitution of parties after the death of one of the two plaintiffs. In a previous appeal, this Court directed the trial court, on remand, to determine whether the plaintiff’s response to a motion to dismiss should be construed as a motion for enlargement of time pursuant to Tennessee Rule of Civil Procedure 6.02, and if so, to determine whether the plaintiff’s failure to timely move for substitution of the parties pursuant to Tennessee Rule of Civil Procedure 25.01 was the result of excusable neglect. On remand, the trial court determined that the plaintiff’s filing should be construed as a motion for an enlargement of time. However, the trial court also found that the plaintiff failed to timely move for substitution due to counsel’s misinterpretation of the law, which, the trial court concluded, did not constitute excusable neglect. As such, the trial court granted the defendants’ motion to dismiss for failure to timely substitute parties. The plaintiff appeals. We affirm and remand for further proceedings.

Here is a link to the opinion: TN Courts (scroll down; slip opinion may not be accessible via a smart phone or tablet due to a quirk in the system right now). 

NOTE: This appellate decision is another iteration of the case discussed in my blog post from Nov. 7, 2019, which can be found here:

Tuesday, December 13, 2022

Trial Court's Judgment in Favor of Plaintiffs in this Auto Tort Case Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Kindred v. Townsend, No. W2021-01481-COA-R3-CV (Tenn. Ct. App. Dec. 7, 2022). The syllabus from the slip opinion reads:

This negligence action arises from the collision of Plaintiff/Appellee’s Mercedes convertible with a tractor-trailer operated by Defendant/Appellant in the scope of her employment. The trial court determined that Appellant was more than 50 percent at fault for the accident and apportioned 75 percent fault to Appellant and 25 percent fault to Plaintiff/Appellee. The trial court also determined that Defendant/Appellant employer was vicariously liable for the damages awarded. Discerning no error, we affirm the judgment of the trial court.

The opinion can be found here:

NOTE: This is a good opinion for any Tennessee trial lawyer to read because it reminds us of the impact of forensic evidence at trial, the record on appeal, etc. It is just a good reminder in my humble opinion. 

Tuesday, November 29, 2022

New Health Care Liability Action: Dismissal of Complaint Against Hospital Upheld on Appeal Because Case Was a "Health Care Liability Action" (HCLA) as Defined by Tennessee Law and the Requirements for Filing a HCLA Were Not Met by Plaintiffs

The Tennessee Court of Appeals released its decision in Forsythe v. Jackson Madison Cnty. Gen. Hosp. Dist., No. W2021-01228-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2022). The syllabus from the opinion reads:

The trial court granted the defendant medical providers summary judgment on the basis of the plaintiff’s failure to comply with the Tennessee Health Care Liability Act’s pre-suit notice and good faith certificate requirements. On appeal, the plaintiff, an employee of the defendants, argues that her claim does not relate to the provision of health care services and that she was therefore not required to give pre-suit notice or file a good faith certificate. Because we conclude that the trial court did not err in determining that the claim is related to the provision of health care services, we affirm.

Here is a link to the slip opinion:

NOTE: This decision demonstrates how broad the definition of a "health care liability action" (HCLA) can be under Tenn. Code Ann. sec. 29-26-101(a)(1). When it doubt, treat these iffy cases like they are HCLAs—just to be safe.  

Tuesday, November 01, 2022

New Health Care Liability Action Opinion: Dismissal of Complaint Upheld on Appeal Because Proper Action Was Not Taken Before Statute of Limitations Expired

The Tennessee Court of Appeals has released its opinion in Jackson v. Vanderbilt University Medical Center, No. M2022-00476-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2022). The syllabus form the slip opinion reads: 
Patient, by next of kin, sued hospital alleging negligence during his treatment. Trial court granted hospital’s motion to dismiss based on patient’s failure to file the complaint prior to the expiration of the statute of limitations. Patient appealed the dismissal. Because the trial court correctly determined that the statute of limitations commenced running when the patient was discharged, we affirm.
Here is a link to the opinion: 

NOTE: This case reminds us of what needs to be done to ensure that a health care liability action is timely filed.