Happy New Year!!

I hope you have a great 2010.

Medical Malpractice: Plaintiff Survives Summary Judgment with a Negligence Per Se Claim

The Tennessee Court of Appeals just issued its opinion in Watkins ex rel. Watkins v. Affiliated Internists, P.C. No. M2008-01205-COA-R3-CV (Tenn. Ct. App. Dec. 29, 2009). The plaintiff was able to survive summary judgment with a negligence per se claim. The court held as follows:

Thus, we must respectfully disagree with the trial court’s finding that TENN. COMP. R. & REGS. 0880-2-.18(7) cannot support the Plaintiff’s claim of negligence per se. We find that it constitutes a standard of care, and that the trial court erred in denying the Plaintiff’s motion to amend the complaint to allege a claim of negligence or negligence per se based on the breach of that standard.

Id., slip op. at 31 (emphasis added). As you can surmise, the defendant failed to comply with the above-referenced rule/regulation. See id.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/John%20Mark%20Watkins%20v%20Affiliated%20Internists%20and%20TK%20Pardue%20MD%20OPN.pdf

Harris v. Horton: Petition to Rehear Filed

I posted about Harris v. Horton on December 15, 2009. A petition to rehear under Rule 39(a) of the Tennessee Rules of Appellate Procedure was filed yesterday.

The current cite to the case, as of December 28, 2009, is as follows: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009), petition for reh'g filed (Dec. 28, 2009).

Municipal Codes in Tennessee

Here is a link to Tennessee municipal codes, which has been updated as of December 12, 2009, to wit:

http://mtas-notes.ips.utk.edu/public/web.nsf/Web/View+Codes

Merry Christmas!

I hope you all have a great Christmas. I'm looking forward to spending this one with my family.

Interference with and Mishandling of Human Remains; Invasion of Privacy; and Reckless Infliction of Emotional Distress

The Court of Appeals released its opinion yesterday in Harris v. Horton, No. M2008-02142-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2009). The opinion has to do with the causes of action of interference with and mishandling of human remains under the Restatement (Second) of Torts section 868 (1979); invasion of privacy under the Restatement (Second) of Torts sections 652B & 652D (1977); and reckless infliction of emotional distress under the Restatement (Second) of Torts section 46 (1965).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Debbie%20Harris%20et%20al%20v%20Don%20Horton%20and%20Robertson%20County%20opn.pdf

Summary Judgment: Another Post-Hannan Tennessee Supreme Court Case

Yesterday the Tennessee Supreme Court issued its opinion in Mills v. CSX Transp., Inc., No. E2006-01933-SC-R11-Cv (Tenn. Dec. 7, 2009). While this is a FELA case, it offers further explanation and clarification of when summary judgment is appropriate in a Tennessee state court action. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Charles%20D%20Mills%20v%20CSX%20Transportation.pdf

Miranda Rights

The United States Supreme Court recently heard a case from Florida regarding an accused's Miranda rights. The case is Florida v. Powell. Here's a link to a story about that case:

http://news.yahoo.com/s/ap/20091207/ap_on_go_su_co/us_supreme_court_miranda

Summary Judgment: New Tennessee Supreme Court Case

The Tennessee Supreme Court issued its opinion in Stanfill v. Mountain, M2006-01072-SC-R11-CV (Tenn. Dec. 3, 2009). The opinion offers a good discussion of our state's recently clarified summary judgment standard, which is discussed in my November 8 and 15, 2008 posts to this blog.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Robin%20Lee%20Stanfill%20et%20al%20v%20John%20T%20Mountain%20et%20al%20OPN.pdf

Chief Justice Holder wrote a separate opinion, which concurs in part and dissents in part with the majority opinion, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Robin%20Lee%20Stanfill%20et%20al%20v%20John%20T%20Mountain%20et%20al%20DIS.pdf

Computation of Time Under the Federal Rules of Civil Procedure to Change December 1, 2009

Here's a link to an article written by Professor Paine on the matter, to wit:

http://www.tba2.org/journal_new/index.php/component/content/article/369?ed=24

NPR Blog: "Docs Case for Tort Reform Harder to Make"

http://www.npr.org/blogs/health/2009/11/docs_case_for_tort_reform_gets.html

Slip-and-Fall Case: Summary Judgment for Defendant Reversed

The Court of Appeals just reversed a grant of summary judgment for the defendants in a slip-and-file case. The case is Burks v. The Kroger Co., M2008-02664-COA-R3-CV & M2008-02667-COA-R3-CV (Tenn. Ct. App. Nov. 23, 2009).

Here's the link:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Elizabeth%20Burks%20v%20The%20Kroger%20Company%20OPN.pdf

Happy Thanksgiving!

I hope you all have a great Thanksgiving holiday.

I spent some time yesterday thinking about this past year and the year to come. I am very thankful for many things in my life; I have truly been blessed by God. And for that, I am grateful.

Unfavorable Sixth Circuit ERISA Opinion

The United States Court of Appeals, Sixth Circuit, recently issued an opinion that is unfavorable to tort plaintiffs who have had their medical care paid for by an ERISA plan. The case is The Longaberger Co. v. Kolt, 09a0399p.06 (6th Cir. Nov. 16, 2009).

The opinion is a must-read for all tort-practitioners because of one very important thing: the court specifically disallowed a reduction for attorney's fees from the amount paid back to the ERISA plan.

Here's a link to the opinion:

http://www.ca6.uscourts.gov/opinions.pdf/09a0399p-06.pdf

Admissibility of Autopsy Reports, Etc.

I found this statute while looking for something else and thought I'd share it, to wit:

The records of the division of post mortem examination, the county medical examiner, or transcripts of the records certified to by the chief medical examiner or the deputy medical examiner or the duly appointed representative of the chief medical examiner, and the reports of the toxicology laboratory examinations performed by the testing laboratory or transcripts of the reports certified to by the director of the testing laboratory or the director's duly appointed representative, shall be received as competent evidence in any court of this state of the facts and matters contained in the records or reports.

T.C.A. § 38-7-110(a) (emphasis added).

The Return to Notice Pleading in Federal Court

Here's a recent article on this subject that I found interesting:

http://www.law.com/jsp/article.jsp?id=1202435525918&rss=newswire

Veterans Day: Thanks to Vets

My dad was in the Army and fought in Korea. I have a friend and a mentor of mine who is a West Point grad who fought in Viet Nam. My cousin, who is more like a brother to me, fought in Iraq during Desert Storm; so did a very good friend of mine. I think a lot of our Vets. It is my pleasure to say "Thank you!" to all Vets on this day. Your service is greatly appreciated.

The Return of Seized Property Under T.C.A. § 39-11-709

The Court of Appeals issued an interesting opinion today in McWhorter v. Selby, M2008-01502-COA-R3-CV (Tenn. Ct. App. Nov. 9, 2009). It has to do with the return of property seized by state authorities. Here is the summary of the opinion:

This appeal concerns the return of seized property. In the course of a criminal investigation, the respondents seized personal property from the petitioner. After a year passed with no forfeiture proceeding, the petitioner filed a petition for the return of his seized property, pursuant to Tennessee Code Annotated § 39-11-709. The respondents filed a motion to dismiss or for summary judgment, asserting that they no longer had possession of the property. The trial court granted the motion. The petitioner now appeals. We reverse and remand, finding that the petition was correctly filed in the county in which the property was seized, that it correctly named as the respondents the parties who seized the property, and that the respondents were not entitled to dismissal of the petition on the basis that the respondents had transferred possession of the property.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/James%20C%20McWhorter%20v%20Allen%20Selby%20and%20Sparta%20opn.pdf

Manual on Recurring Problems in Criminal Trials

This is a good resource from the late Judge Vorhees and the Federal Judicial Center, to wit: Donald S. Vorhees, Fed. Judicial Ctr., Manual on Recurring Problems in Criminal Trials (2001), available at http://www.fjc.gov/public/pdf.nsf/lookup/ManRecPr.pdf/$file/ManRecPr.pdf

Criminal Law: Probable Cause

This is a rare post to this blog because it has to do with criminal law. However, it's an important case from the Tennessee Supreme Court on probable cause, to wit: State v. Saine, No. M2007-01277-SC-R11-CD (Tenn. Nov. 4, 2009).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20State%20v%20Cedric%20Ruron%20Saine%20opn.pdf

Article on Balance Billing

Here's an AP article from the Miami Herald on balance billing:

http://www.miamiherald.com/news/florida/AP/story/1314183.html

Medical Malpractice: Plaintiff Fails to Survive Summary Judgment

The Tennessee Court of Appeals issued its opinion today in Range v. Sowell, No. M2006-02009-COA-R3-CV (Oct. 30, 2009). The Court held that summary judgment was proper due to a number of reasons, most notably the statute of limitations.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Katherine%20Range%20v%20CM%20Sowell%20Jr%20DDS%20Opn.pdf

There is also discussion in Range on discretionary costs.

Wrongful Death vs. Non-Fatal Personal Injury to the Deceased

The Court of Appeals issued its opinion in Timmins v. Lindsey, No. M2009-00500-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2009). This case discusses the difference between a wrongful death claim and a claim for personal injury to the deceased, which does not cause death, and how the proceeds from each claim are to be distributed.

Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Timmins%20v%20Lindsey%20OPN.pdf

Medical Malpractice: Plaintiff Fails to Survive Summary Judgment on Appeal

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Estate of Cusatis v. Casey, No. E2008-01786-COA-R3-CV (Tenn. Ct. App. Oct. 28, 2009). The Court held that the plaintiff's expert failed to satisfy the requirements of Tennessee's medical malpractice act.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Estate%20of%20Jeffrey%20M%20Cusatis%20v%20Robt%20R%20Casey%20MD%20opn.pdf

A Person's Character

This has to do with the law, and almost everything else too. A few years ago, a friend of mine said to me: "You can tell a lot about a person's character by how they treat people when they don't have to be nice to them." That struck a cord with me and I've never forgotten it. I doubt I ever will.

Food for thought.

What is a "Tort"?

You hear people talk about "torts" and "tort reform" a lot, but not may people know what a tort is. According to a leading legal dictionary, here's the definition: a tort is defined as "a civil wrong for which a remedy may be obtained, usu. in the form of damages[.]..." Notice that it's a civil wrong as opposed to a criminal wrong. As we all know, the state or federal government prosecutes criminal wrongs (i.e., crimes).

Tort law exists to protect you and me. For example, if your car gets hit from behind, with you in it, you get hurt, and your car is totaled, tort law says you have a remedy for the harms to your property and body. Further, suppose a young husband with a wife and kids is wrongfully killed by another. The law --- specifically tort law --- says the dead husband's wife and kids have a claim for the wrong done to them. This way, the wife and kids have some form of compensation from the wrongdoer and won't have to rely upon family or others to get by after such a devastating loss. Doesn't this make sense? Doesn't this seem like the right thing to do? Shouldn't we as a society make a wrongdoer accept responsibility? That's what tort law is all about.

This is why I'm so baffled, shocked, and amazed when others speak of tort reform (which should actually be called tort deform); and when they say they want to get rid of our civil justice system. Frankly, the civil justice system that we have now has worked well for hundreds of years. As the old saying goes: "If it ain't broke, don't fix it."

Medical Malpractice: Another Locality Rule Opinion

Yesterday the Court of Appeals issued its opinion in Plunkett v. Bradley-Polk, OB-GYN Serv's., P.C., No. E-2008-00774-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2009). Plaintiffs' expert primarily practiced in a large metropolitan community in Virginia near Washington, D.C. but demonstrated that he was familiar with other smaller communities in Virginia that were similar to the community in Tennessee where the defendants practiced. The trial court held that the plaintiffs' expert was disqualified under the locality rule. The Court of Appeals reversed the trial court and held that it abused its discretion in disqualifying Plaintiffs' expert.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Sara%20E%20Plunkett%20v%20Bradley-Polk%20OBGYN%20OPN.pdf

Medical Malpractice, Collateral Estoppel & Comparative Fault

The Tennessee Supreme Court just issued its opinion in Mullins v. State of Tennessee, E2007-01113-SC-R11-CV (Tenn. Sept. 30, 2009). It is a medical malpractice case, which was originally filed in federal court. However, it was later discovered that some of the defendants were immune from suit under federal law and had to be sued in the Tennessee Claims Commission. This opinion illustrates the interplay between federal and state court in Tennessee and how collateral estoppel affects that interplay.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/093/SC%20Juanita%20Mullins%20v%20State%20OPN.pdf

I'd like to thank John Day for bringing this opinion to my attention. Thanks John!

John's blog can be viewed at: http://www.dayontorts.com/. You should check it out on a regular basis.

Civil Procedure: Motions to Revise Under Tenn. R. Civ. P. 54.02

Here's a good opinion from the Tennessee Court of Appeals that discusses motions to revise under Rule 54.02 of the Tennessee Rules of Civil Procedure, motions for summary judgment, and the Dead Man's Statute. The case is Johnson v. Tanner-Peck, LLC, W2008-00767-COA-R3-CV (Tenn. Ct. App. Sept. 25, 2009).

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Clarence%20E%20Johnson%20v%20Tanner-Peck%20LLC%20OPN.pdf

Affirmative Defense Must Be Properly Pleaded

The Court of Appeals recently issued its opinion in Allgood v. Gateway Health Sys., M2008-01779-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2009). The Court held that the defendant waived the affirmative defense of insufficiency of service or process by failing to comply with Rule 8.03 of the Tennessee Rules of Civil Procedure.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Wm%20and%20Rose%20Allgood%20v%20Gateway%20MC%20and%20Dr%20HOffman%20OPN.pdf

This opinion is consistent with prior decisions from the Tennessee Supreme Court regarding affirmative defenses and Rule 8.03. See generally Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000); George v. Alexander, 931 S.W.2d 517 (Tenn. 1996).

Federal Practice: Pleading Standards

It has recently become more difficult for a plaintiff to obtain justice in federal court. The difficulty arises due to more-stringent pleading requirements imposed upon plaintiffs, which must be met in order to survive a motion to dismiss. Read this article that describes the problem:

http://amlawdaily.typepad.com/amlawdaily/2009/09/the-battle-over-pleading-standards.html

The Release of Civil Claims in Tennessee

Here is a recent Court of Appeals' opinion that covers the law in Tennessee on the release of civil claims (i.e., settlements). The case is Peatross v. Shelby County, W2008-02385-COA-R3-CV (Tenn. Ct. App. Sept. 10, 2009).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/S%20Peatross%20Administrator%20of%20B%20Greenwood%20v%20Shelby%20County%20OPN.pdf

Trial Practice: The Mention of Insurance at Trial

We all know that a defendant's liability insurance coverage should not be intentionally interjected into a personal injury trial. However, what happens when it is mentioned incidentally? The Court of Appeals just issued an opinion on this subject in Steward v. Smith, No. M2009-00048-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2009). The Court of Appeals held that the mention of a defendant's liability insurance coverage will not per se cause a mistrial; nor does it necessitate a remittitur.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Emily%20Steward%20v%20William%20F%20Smith%20III%20OPN.pdf

Sept. 11, 2001

This is the eighth anniversary of the cowardly attacks upon our nation that occurred on September 11, 2001. This is a somber day in our history.

We must never forget those who died that day or their families. And may God continue to bless America.

Slip-and-Fall Case: Summary Judgment for Defendant Reversed

Recently the Court of Appeals issued its opinion in Masters v. Wal-Mart Stores East, L.P., No. M2008-02752-COA-R3-CV (Tenn. Ct. App. Sept. 1, 2009). This opinion does a good job of analyzing the law of summary judgment in a slip-and-fall case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Victoria%20and%20Michael%20Masters%20v%20WalMart%20Stores%20East%20OPN.pdf

New Governmental Tort Liability Act ("GTLA") Case

The Middle Section of the Tennessee Court of Appeals issued its opinion in Petty v. City of Whitehouse, No. M2008-02453-COA-R3-CV (Tenn. Ct. App. Sept. 1, 2009). The case offers an excellent explanation of the removal of a governmental entity's immunity for an injury caused by a dangerous or defective public improvement under Tennessee Code Annotated section 29-20-204, which is part of the Tennessee GTLA.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Sharon%20Petty%20v%20White%20House%20OPN.pdf

Tort Reform Won't Lower Healthcare Costs

Q: Will tort reform lower healthcare costs?

A: No.

Here's a link to a New York Times piece that you should read, to wit:

http://prescriptions.blogs.nytimes.com/2009/08/31/would-tort-reform-lower-health-care-costs/

Medical Malpractice: Summary Judgment for Defendant Affirmed

The Eastern Section of the Court of Appeals issued its opinion today in Harris v. Jain, No. E2008-01506-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2009). This is an unfortunate case involving adolescent suicide. However, the opinion offers good insight into the general qualifications of experts (e.g., when the common-knowledge exception is inapplicable) in medical malpractice case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Herb%20A%20Harris%20v%20Pradumna%20S%20Jain%20MD%20OPN.pdf

A Trial Lawyer's Prayer

Grant me the wisdom of Solomon; the patience of Job; and the aim of David.

Abe Lincoln

This is one of my favorite pics of Abe Lincoln. Take a look at this link to see what I'm talking about:

http://www.lawgallery.com/go.php?page=detail&pid=71&gid=2

Judicial Notice

The Tennessee Supreme Court just issued a criminal opinion that has a good discussion of judicial notice starting on page 4. The opinion is State v. Lawson, No. E2007-00330-SC-R11-CD (Tenn. Aug. 24, 2009).

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/093/SC%20State%20v%20Neddie%20Mack%20Lawson%20OPN.pdf

New Tennessee Products Liability Case

Today the Tennessee Supreme Court issued its opinion in Lincoln Gen. Ins. Co. v. Detroit Diesel Corp., No. M2008-01427-SC-R23-CV (Tenn. Aug. 21, 2009). The Court answered a certified question of law that it accepted from the United States District Court for the Middle District of Tennessee, to wit: Does Tennessee law recognize an exception to the economic loss doctrine under which recovery in tort is possible for damage to the defective product itself when the defect renders the product unreasonably dangerous and causes the damage by means of a sudden, calamitous event? The Court answered it in the negative.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/093/SC%20Lincoln%20General%20Ins%20v%20Detroit%20Diesel%20Corp%20et%20al%20Opn.pdf

Medical Malpractice: Summary Judgment for Defendant Reversed

The Tennessee Court of Appeals just issued its opinion in Givens, Administrator of the Estate of Jessica E. Givens v. The Vanderbilt Univ., M2008-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2009). Plaintiff never received Defendants' motion for summary, which was granted. Upon finding out what had happened, Plaintiff filed a motion to set aside the grant of summary judgment. Plaintiff's motion was was denied. This appeal ensued.

The Court of Appeals reversed the trial court and held that it abused its discretion in failing to grant Plaintiff's Rule 60.02 motion for relief.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Aubrey%20E%20Givens%20v%20Vanderbilt%20OPN.pdf

Medical Malpractice: Update

This post concerns Cox v. M.A. Primary and Urgent Care Clinic, No. M2007-01840-COA-CV (Tenn. Ct. App. Jan. 30, 2009). It was the subject of my February 2, 2009 post. Today the Tennessee Supreme Court granted M.A. Primary and Urgent Care Clinic and Austin Adams's application for permission to appeal. The new docket number is M2007-01840-SC-R11-CV.

Does a "Free Lunch" Still Exist?

Despite the old saying that "There's no such thing as a free lunch," some lawyers in Tennessee are enjoying one. Why? Because lawyers who do personal injury cases and who do not belong to the Tennessee Association for Justice ("TAJ") and the American Association for Justice ("AAJ") are getting a "free lunch." They simply do not support the organizations that support and improve the very system from which their livelihood is derived.

Moreover, lawyers who belong to the above-referenced organizations have access to a wealth of knowledge and experience to draw from that will benefit their clients.

So, if you're a Tennessee lawyer who handles personal injury cases, please consider joining TAJ and AAJ. Here's their Web sites:

http://www.tnaj.org/TN/

http://www.justice.org/cps/rde/xchg/justice/hs.xsl/default.htm

P.S. If you are already a member, ask someone you know who is not a member to join. Thanks!

Medical Malpractice: 2.78 Million Dollar Jury Verdict Upheld on Appeal

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Farley v. Oak Ridge Med. Imaging, P.C., No. E2008-01731-COA-R3-CV (Tenn. Ct. App. Aug. 13, 2009). The Court of Appeals upheld the jury's verdict for 2.78 million dollars because the defendants were negligent in diagnosing Mrs. Farley's breast cancer.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Robin%20Farley%20et%20al%20v%20Oak%20Ridge%20Med%20Imaging%20PC%20et%20al%20OPN.pdf

Chain-of-custody Case

This is a rare post on this blog because it involves a criminal case styled State v. Banks, No. 40600738, No. M2008-00044-CCA-R3-CD (Tenn. Crim. App. Aug. 11, 2009). Pages 9-12 of this slip opinion offer a good discussion on the law relating to the chain of custody of evidence offered at trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/093/State%20v%20John%20M%20Banks.pdf.

Sonia Sotomayor Confirmed

The U.S. Senate confirmed Sonia Sotomayor. She will be our newest U.S. Supreme Court associate justice. Here's a link to the story:

http://www.msnbc.msn.com/id/32312026/ns/politics-white_house?GT1=43001

Municipal Codes in Tennessee

Here's a link to municipal codes for most of Tennessee's major cities, to wit:

http://www.municode.com/Resources/code_list.asp?stateID=42

This may assist a practitioner looking for a cause of action based upon negligence per se. Good luck!

Medical Malpractice: Summary Judgment for Defendant Affirmed

Here is an opinion from the Middle Section of the Tennessee Court of Appeals styled Badgett v. Adventist Health Sys. Sunbelt, Inc., No. M2007-02192-COA-R3-Cv (Tenn. Ct. App. July 31, 2009). The Court held that the plaintiffs' expert did not satisfy the locality rule under the Medical Malpractice Act and affirmed the trial court's grant of summary judgment.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/George%20Badgett%20et%20al%20v%20Adventist%20Health%20Sys%20dba%20TN%20Christian%20Med%20Ctr%20Opn.pdf

Medical Malpractice: Another Summary Judgment for Defendants Reveresed on Appeal

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Lane v. McCartney, No. E2008-02640-R3-CV (Tenn. Ct. App. July 30, 2009). The Court of Appeals reversed the trial court's ruling, which held that the plaintiff's expert had not demonstrated that the community he practiced in when the alleged tort occurred and the defendants' community were similar (which is required under the locality rule).

The opinion offers a good analysis of what is sufficient to qualify an expert under the locality rule. The Court of Appeals also mentions how similar this case is to Nabors v. Adams, which is the subject of my July 23, 2009 post. See infra.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Nancy%20L%20Lane%20v%20Jodi%20D%20McCartney%20MD%20et%20al%20OPN.pdf

Civil Procedure: The Motion to Revise

Q: How do you go about making changes to an interlocutory order in a Tennessee state court civil action?

A: File a motion to revise. Tenn. R. Civ. P. 54.02 (stating that interlocutory orders are subject to revision at any time prior to entry of judgment).

Please note that final orders are subject to revision under different rules. Tenn. R. Civ. P. 59 & 60.

Here's a link to the Tennessee Rules of Civil Procedure:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/TNRulesOfCourt/civlproindex.htm

Medical Malpractice: Summary Judgment for Defendants Reversed on Appeal

The Western Section of the Tennessee Court of Appeals just released its opinion in Nabors v. Adams, No. W2008-02418-COA-R3-CV (Tenn. Ct. App. July 23, 2009). The trial court granted the defendants' motion for summary judgment due to the plaintiff's expert's unfamiliarity with the Memphis, Tennessee medical community (as was required by the locality rule) during his deposition. The plaintiff moved to amend the trial court's judgment under Rule 59.04 of the Tennessee Rules of Civil Procedure with a curative affidavit from her expert, which was denied by the trial court. The appeal followed.

The Court of Appeals held that the affidavit cured the problems with the plaintiff's expert's testimony and that the trial court abused its discretion in not reversing the grant of summary judgment to the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Samantha%20Nabors%20v%20William%20M%20Adams,%20MD%20OPN.pdf

Walter Cronkite

This post has nothing to do with the law and everything to do with a kid who grew up in the '70s and '80s watching Walter Cronkite on television (i.e., me). He was THE news for my family and me.

I once heard someone say, "If Walter didn't say it happened, it didn't happen!" He would come into our living room every night and talk to us about the news and we took what he said as dead-on accurate --- because it was! After all, he was "the most trusted man in America."

Good bye, Mr. Cronkite. You'll be missed. I wish there were more out there like you.

More on Out-of-state Depositions

http://www.abanet.org/yld/litigation/lit101pdf/Wilkins.pdf

Out-of-State Depositions

Here's an interesting article that I found while doing some research over the weekend, to wit:

Victoria C. Fitlow, How to Take an Out-of-State Deposition, Utah B.J., Feb./Mar. 2001.

I apologize for the cite not being complete in that there's no page number for the first page of the article. I couldn't find one in the online version; nor could I find one in PDF or another version that had been scanned and placed online from the actual magazine (which would have shown a beginning page number).

While it's written from the perspective of a Utah lawyer, there's some good information in there (even though it might be a little dated because it was written in 2001). Even if you don't practice in Utah, it can help point you in the right direction.

Here's the link to the article:

http://www.utahbar.org/sites/litigation/how_to_take_out_of_state_depositions.html

The Declaration of Independence

I watch this every year at this time, to wit:

http://www.youtube.com/watch?v=rMaAtNHAtNI

http://www.youtube.com/watch?v=ZxTvS-kyHzs

Turn the volume up and have a great Fourth!

Medical Malpractice: New Legislation III

The new medical malpractice legislation goes into effect today. Here's an article from the Tennessee Bar Journal, which is authored by John Day, that explains the ins and outs of the new law. The article is a must-read for the medical malpractice practitioner.

Here's the link:
http://www.tba.org/journal_new/index.php/component/content/article/300?ed=20

Tennessee Legislative History

Oftentimes, when a statute is ambiguous, a determination must be made as to the legislative intent behind it to construe the law. This link provides you with information needed to research legislative history in Tennessee, which will assist you in determining the legislative intent behind a law.

Here's the link:

http://state.tn.us/tsla/legislative.htm

More Problems at a VA Hospital

Here's a link to a story from yesterday's New York Times, to wit:

http://www.nytimes.com/2009/06/21/health/21radiation.html?pagewanted=1&_r=1&ref=todayspaper

Medical Malpractice, Wrongful Death & Bankruptcy

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Gordon ex rel. Gordon v. Draughn, No. M2008-02224-COA-R10-CV (Tenn. Ct. App. June 16, 2009).

The opinion offers an excellent analysis of appellate court jurisdiction during an extraordinary appeal, judicial estoppel, and related civil procedure matters, among other things. Specifically, it addresses the issue of a parent's standing to bring a claim for the wrongful death of his or her child due to medical malpractice after the parent has filed for bankruptcy.

Here's the link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/Gordon%20v%20Draughn%20OPN.pdf

Tennessee Evidence Law: Four New Amendments Effective July 1, 2009

Tennessee evidence law will have four new amendments effective July 1, 2009. Rules 404(a)(1), 703, 803(26), and 804(b)(2) are the subjects of those amendments. You can read about them at this link, to wit:

http://www.tba2.org/journal_new/index.php/component/content/article/294?ed=19

Medical Malpractice: New Legislation II

Governor Bredesen signed the new medical malpractice legalisation into effect on June 11, 2009. Here is a link to the summary of the bill. I will have a link to the actual bill he signed later on.

http://wapp.capitol.tn.gov/apps/billinfo/BillSummaryArchive.aspx?BillNumber=HB2233&ga=106

Free Legal Research

http://www.plol.org/Pages/Search.aspx

Medical Malpractice: New Legislation

Tennessee's Medical Malpractice Act has just been recently amended, again, by the General Assembly. The bill is on its way to the Governor. It is anticipated that he will sign it. Once he does, I will have more information for you.

For purposes of information, the bill clears up some of the uncertainties from the prior amendments (Act of Apr. 24, 2008, ch. 919, 2008 Tenn. Pub. Acts 93, codified at Tenn. Code Ann. §§ 29-26-121 to -122) having to do with notice, extension of the statutes of limitations and repose, etc.

Appellate Practice in Tennessee

My friends Donald Capparella and Amy Farrar wrote these two articles on appellate practice. They are excellent articles that will help out a lot if you have an appeal coming up.

Here's the links:

http://www.dodsonparker.com/publications/Tips%20for%20Becoming%20a%20Better%20Appellate%20Advocate-%20Writing%20the%20Brief.pdf

http://www.dodsonparker.com/publications/Tips%20for%20Becoming%20a%20Better%20Appellate%20Advocate-%20The%20Oral%20Argument.pdf

Medical Malpractice: Court of Appeals Holds Plaintiffs' Appeal to Be Frivilous

The Eastern Section of the Tennessee Court of Appeals just held that the plaintiffs' appeal of a grant of summary judgment in the defendants' favor was frivolous. The case is Peters v. Lamb, E2008-00997-COA-R3-CV (Tenn. Ct. App. May 27, 2009).

The plaintiffs attempted to nonsuit the case without "filing" the notice of dismissal, which is required by Rule 41.01 of the Tennessee Rules of Civil Procedure.

There's some good old law from the nineteenth century in this opinion on what constitutes "filing" with the court, etc.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/Rick%20Peters%20v%20Ray%20Lamb%20MD%20OPN.pdf

U.S. Healthcare System Fails to Protect Patients from Deadly Medical Errors

http://www.consumersunion.org/pub/core_health_care/011324.html

SCOTUS Denies Cert in TN Products Case

Yesterday the United States Supreme Court denied certiorari ("cert") in the Flax case. (This case was the subject a July 25, 2008 post on this blog.)

The jury had assessed substantial punitive damages against Chrysler, which the Tennessee Supreme Court upheld after a substantial reduction. The United States Supreme Court (at least no more than a few of the justices) apparently thought the decision did not need to be disturbed.

As a reminder, a little boy died because of a defective seat in a Chrylser minivan that failed, fell back on him, and killed him in a car accident. The link in the July 5, 2008 post referenced above has all of the necessary background information about the case.

Here's a link showing the denial of cert:

http://origin.www.supremecourtus.gov/docket/08-1010.htm.

This is a very tragic case. However, at least the family was not denied some justice for their loss.

Tennessee Supreme Court Construes T.C.A. § 24-5-113(a)

The Tennessee Supreme Court just issued its opinion in Borner v. Autry, W2007-00731-SC-R11-CV (Tenn. May 26, 2009). The opinion construes Tennessee Code Annotated section 24-5-113(a), which is the statute that supplies a presumption of reasonableness and necessity of medical bills up to $4,000.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/092/Helen%20Borner%20v%20Danny%20Autry%20Opn.pdf

Memorial Day

This is a somber holiday where we honor fallen American soldiers. They made the ultimate sacrifice, and for that, I am eternally grateful.

Medical Malpractice: Plaintiff' Fails to Survive Summary Judgment

The Middle Section of the Tennessee Court of Appeals just held that the plaintiff's expert's affidavit was insufficient to survive summary judgment. While this is an unfortunate result, it demonstrates the importance of complying with Tennessee Code Annotated section 29-26-115, which is part of Tennessee's Medical Malpractice Act.

The style of the case is Mettes v. John, M2008-00901-COA-R3-CV (Tenn. Ct. App. May 20, 2009). Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/Rebecca%20Mettes%20v%20J%20Thomas%20John%20Jr%20MD%20OPN.pdf

Trial Court Abuses Its Discretion By Denying Motion to Amend

The Court of Appeals held that the trial court abused its discretion by not allowing an amendment to a pleading in Daniels v. Wray, No. 2008-M01781-COA-R3-CV (Tenn. Ct. App. May 22, 2008). This opinion offers a good analysis of the law of amendments, especially as it applies to counterclaims.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/Robt%20and%20Peggy%20Daniels%20v%20Michael%20D%20Wray%20Opn.pdf

Tennessee Pattern Jury Instructions -- Criminal

Here's a link to the Tennessee Pattern Jury Instructions -- Criminal, to wit: http://www.tncrimlaw.com/TPI_Crim/index.htm.

New Nursing Home Case

The Western Section of the Tennessee Court of Appeals just issued its opinion in Johnsey v. Northbrooke Manor, Inc., No. W2008-01118-COA-R3-CV (Tenn. C.t App. May 14, 2009). The opinion offers a good discussion on summary judgment standards and the difference between ordinary negligence in a healthcare setting and medical malpractice.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/JohnseyRoseOPN.pdf

Defendant Liability Insurance Information

Want to find out about or verify a defendant's liability insurance information? If so, MEA Services, Inc. can help. Here's MEA's Web site: http://www.measervicesinc.com/.

Hope this information helps.

Medical Malpractice: Expert Qualifications

The Western Section of the Tennessee Court of Appeals just issued a new opinion relating to the proper qualifications of a plaintiff's expert in a medical malpractice case. In this case, the plaintiff's expert did not practice in the same area as the defendants, which is not per se fatal to this type of claim. However, the opinion stresses the importance of an expert being familiar with the defendants' area of practice. The Court found that the plaintiff's expert was not familiar with the defendants' area of practice and granted summary judgment to the defendants.

The style of the case is McDaniel v. Rustom, No. W2008-00674-COA-R3-CV (Tenn. Ct. App. May 5, 2009).

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/McDanielTommyOPN.pdf

New Case on Causation

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Robbins ex rel. Robbins v. Perry County, Tennessee, No. M2008-00548-COA-R3-CV (Tenn. Ct. App. Apr. 28, 2009). The opinion has a good discussion of causation in Tennessee.

The opinion also discusses the standard of review for a Rule 12 motion to dismiss. The Court's discussion is a good refresher to the Tennessee practitioner.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/RobbinsDOPN.pdf

Pozner & Dodd's Book

Get this book, to wit: Larry S. Pozner & Roger J. Dodd, Cross-Examination: Science & Techniques (2nd ed. 2004). It's a very useful tool for your trial practice.

Here's their Web site: http://www.pozneranddodd.com/index.html

Why I Do What I Do

I'm a trial lawyer. And I am very proud of what I do. I help people who for one reason or another can't help themselves. I believe the law is a learned profession, which must be respected. Traditionally, law, religion, and medicine have always been "learned professions." Looking back on this history of human kind, lawyers, religious leaders, and doctors have made things better for us all.

I have heard others say that the only difference between a lawsuit and a back-alley brawl is the law. The law gives someone --- anyone --- who has been wronged, or charged with a crime, the right to go before twelve of his or her peers who will decide what should be done according to the law. This system prevents people from taking the law into their own hands; it prevents anarchy and injustice; and it prevents the few from being oppressed by the many or the strong from oppressing the weak. This right to a jury trial --- to justice --- is sacred. That is why I so strongly oppose those who would do away with it --- and with justice.

This is why I do what I do.

Lastly, I want to leave you with these two verses from the Bible:

1 Woe to those who make unjust laws,

to those who issue oppressive decrees,
2 to deprive the poor of their rights

and withhold justice from the oppressed of my people,

making widows their prey

and robbing the fatherless.

Isaiah 10:1-2 (NIV).

Happy Easter or Passover!

I hope you all have a great holiday.

New Med Mal Opinion

The Western Section of the Tennessee Court of Appeals just issued its opinion in Jackson v. Joyner, No. W2008-00906-COA-R3-CV (Tenn. C.t App. Apr. 7, 2009). It offers a good discussion on expert opinions and their admissibility.

Here's a link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/JacksonJackieOPN.pdf

Becky Mungai, RN, BA, CLNC

Need a nurse consultant who can get the job done? Contact Becky Mungai. She can help you out.

Here's the link to her Web site:

http://www.mungaiassociates.com/index.html

Speak-Write

Do you use Speak-Write? Have you even heard of it? It's a Web-based dictation service that can save you a lot of time and money.

Here's the Web site: http://www.speak-write.com/web/

Hope this helps!

New Court of Appeals Opinion on Agency

The Western Section of the Tennessee Court of Appeals just released its opinion in Abshure v. Upshaw, No. W2008-01486-COA-R3-CV (Tenn. Ct. App. Mar. 17, 2009).

The opinion holds that a second nonsuit of an agent after the saving statute has ran bars any claim against the principal based upon respondeat superior. Abshure, No. No. 2008-01486-COA-R3-CV, slip. op. at 8-12.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/AbshureJoannOPN.pdf

Tri-Star Health Systems

Here's a link to Tri-Star Health Systems Web site:

http://www.tristarhealth.com/

This site is useful because it gives you the number of beds a facility has and doctor contact information, among other things.

Another Uninsured Motorist Case

Here is another uninsured motorist case that discusses service of process under Tennessee Code Annotated section 56-7-1206. The case is Kirby v. Wooley, No. E2008-00916-COA-R3-CV (Feb. 27, 2009).

The case discusses how service of process is governed by section 56-7-1206 and not Rule 3 of the Tennessee Rules of Civil Procedure in uninsured motorist cases.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/KirbylcOPN.pdf

This case should be read with my post of June 8, 2007, which also discusses service of process in a uninsured motorist context in Buck v. Scalf.

I hope this helps.

New Premises Liability Case

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Freemon v. Logan's Roadhouse, Inc., No. M2007-01796-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2009).

The opinion does a great job of explaining (1) the proper standard for granting summary judgment after Hannan and Martin; (2) when a duty arises in the context of a premises liability case; and (3) determining if a plaintiff's degree of negligence is, as a matter of law, greater than that of a defendant (which would prevent a plaintiff from recovering under out system of modified comparative fault).

Here's the link to the slip opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/Freemon%20v%20LogansOPN.pdf

Sentinel Event Statistics

This link will take you to a document of the Joint Commission on the Accreditation of Healthcare Organizations that contains sentinel event statistics through last year. There's some pretty interesting stuff there.

Here's the link:

http://www.jointcommission.org/NR/rdonlyres/241CD6F3-6EF0-4E9C-90AD-7FEAE5EDCEA5/0/SE_Stats12_08.pdf

Firm News

It the interests of full disclosure, I wrote the Amicus Curiae Brief for the Tennessee Association for Justice in Thomas v. Oldfield, which is the subject of my Feb. 2, 2009 post.

Phil Campbell of Memphis, Tennessee helped a great deal with editing the brief. Phil's sharp intellect and keen eye were a blessing. Thanks Phil!

Totally Unrelated to the Law...

This post has NOTHING to do with the law. It does, however, have something to do with the enjoyment of life thought art. Clifford Bailey is one of my favorite artists. Here's a link to his Web site: http://www.cliffordbailey.com/. Check it out. I think you'll like his work.

Firm News

We won yesterday! We got a favorable jury verdict at trial for our clients in the Bedford County Circuit Court in Shelbyville, Tennessee. The jury did a great job of listening to the issues and coming up with a verdict.

Yesterday also reaffirmed my faith in the civil justice system and juries. The jury heard all the evidence, weighed it, and rendered a verdict after carefully deliberating over the issues. The system works.

Additionally, defense counsel and I proved that you can disagree with each other and still get along, which is how it should be.

Lastly, I want to congratulate everyone who worked on this case. It was truly a team effort. Thanks to all.

Another Locality Rule Opinion

The Middle Section of the Tennessee Court of Appeals just issued another medical malpractice opinion concerning the locality rule. The case is Grisham v. McLaughlin, No. M2008-00393-COA-R3-CV (Tenn. Ct. App. Feb. 4, 2008). The Court of Appeals affirmed the trial court's grant of summary judgment due to the plaintiffs failure to comply with the locality rule, which is codified at Tennessee Code Annotated section 29-26-115(a).

The parties' names may ring a bell to some of you. They should. This is the second time this case has been to the Court of Appeals over a summary judgment issue. The first time the trial court was reversed for not giving the plaintiff enough time to respond to the defendants' motion for summary judgment.

This new opinion stresses the importance of complying with the locality rule. which may be done by showing the the proffered expert practices in the same community or a similar community as the defendant. A community may be proven to be similar by showing the size of the community, the existence or non-existence of teaching hospitals, etc. Grisham, No. M2008-00393-COA-R3-CV, slip op. at 4.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/GrishamLOPN.pdf

The Discovery of a Defendant's Liability Insurance Information in Tennessee State Court

The Tennessee Supreme Court issued its much-awaited opinion today in Thomas v. Oldfield, M2006-02767-SC-R11-CF (Tenn. Feb. 2, 2009). With a few exceptions, the Court held that a defendant's liability insurance information is not discoverable.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/091/ThomasJGOpn.pdf

New Med Mal Case

The Middle Section of the Tennessee Court of Appeals recently issued a new med mal opinion. The case is Cox v. M.A. Primary and Urgent Care Clinic, No. M2007-01840-COA-CV (Tenn. Ct. App. Jan. 30, 2009).

The case is noteworthy because it offers a post-Hannan analysis of summary judgments in a medical malpractice context. (For the uninitiated, Hannan v. Alltel Publ'g Co., which is discussed in my Nov. 8, 2008 post, is the case that recently reaffirmed Tennessee's standard for granting summary judgments).

The Cox case also held that: "[t]he standard of care applicable to a physician assistant is that of the supervising physician in the community in which the supervising physician practices." Cox, M2007-01840-COA-CV, slip. op. at 6.

Here's the link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/Cox%20v%20MA%20PrimaryOPN.pdf

Another Post-Hannan Summary Judgment Case

The Court of Appeals recently decided Condra v. Bradley County, Tenn., No. E2007-01290-COA-R3-CV (Tenn. Ct. App. Jan. 28, 2009). This case offers an analysis of when a court is to grant summary judgment to a party, particularly in a GTLA case.

Here's the link to the case:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/condrajopn.pdf

New Case on Hospital Lien Statute

The Court of Appeals has held that a hospital's lien is not reduced by one-third for plaintiff's attorney's fee when the recovery is sufficient to pay the hospital's lien and the attorney's fee. The case is Breazeale v. Hensley, E2008-00234-COA-R3-CV (Tenn. Ct. App. Jan. 28, 2009).

Here's the link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/breazealewrOPN.pdf

Inauguration Day

This is a proud and hopeful day for all Americans. Whether you voted for Mr. Obama or not, he is now our president. We need to support him as best we can.

May God continue to bless America.

Frivolous Medical Malpractice Cases Don't Make It To Trial

Here is a great article by Gerry Spence. This may be a re-post, but it's worth reading again.

http://www.chattanoogan.com/articles/article_64607.asp

A Great Web Site

The Traffic Accident Reconstruction Origin's Web site has many useful tools and a lot of information. I discovered it today.

Here's the link: http://www.tarorigin.com/index.html

Third Anniversary!

Wow! This blog is three years old. I started it in January 2006.  Thanks to all of you who read this blog on a regular basis. I appreciate it.

ABA Principles for Juries and Jury Trials

The American Jury Project, on behalf of the American Bar Association, promulgated the Principles for Juries and Jury Trials. This information -- especially Principle 11 -- might help improve the trial process, if it is shared with the judge before trial.

Here's the link, to wit:

http://www.abanet.org/juryprojectstandards/principles.pdf