Nursing Homes: Court of Appeals Holds Arbitration Agreement Unconscionable

The Middle Section of the Tennessee Court of Appeals just released its opinion in McGregor v. Christian Care Ctr. of Springfield, LLC, No. M2009-01008-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2010). The Court held that the arbitration agreement in question was unconscionable.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Lula%20McGregor%20v%20Christian%20Care%20Center%20Opn.pdf

Criminal Law: Helpful Video for Defendants

Here's a video that covers a defendant's basic rights and responsibilities. While it is not a substitute for competent legal advice, it is very helpful in covering basic information.

http://www.tsc.state.tn.us/programs/self-help-center/what-should-i-expect-court-video

Torts: Summary Judgment for Defendant Reversed

The Eastern Section of the Tennessee Court of Appeals issued its opinion in Phillips v. Mullins, No. E2009-01930-COA-R3-CV (Tenn. Ct. App. Apr. 26, 2010). The trial court granted the defendant's motion for summary judgment; the Court of Appeals reversed, finding the genuine issues of material fact existed.

I agree with the Court of Appeals one-hundred percent. In my humble opinion, the trial court misapplied the standard of review that is required to be applied in determining whether or not to grant a motion for summary judgment. We must remember that the right to a trial by jury remains inviolate and that genuine issues of material fact must be decided by juries (assuming one is properly requested by the parties, of course).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Danny%20J%20Phillips%20v%20Wm%20T%20Mullins%20OPN.pdf

An Interesting Case

The Tennessee Supreme Court just issued its opinion in In re Estate of Davis, No. M2009-00660-SC-S09-CV (Tenn. Apr. 23, 2010). While this case involves the probate of a will, the opinion offers a good discussion of (1) statutes of limitations vs. statutes of repose; (2) statutory construction; and (3) fraudulent concealment and how it tolls the limitations period.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Inre%20Estate%20of%20Mary%20Reeves%20Davis%20opn.pdf

Medical Malpractice: Delay in Service Proves Fatal for Plaintiffs' Lawsuit

The Western Section for the Tennessee Court of Appeals just issued its opinion in Jones v. Vasu, No. W2009-01873-COA-R10-CV (Tenn. Ct. App. Apr. 22, 2010). The Court of Appeals reversed the trial court and dismissed the plaintiffs' lawsuit due to their delay in effecting service upon the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Stephanie%20and%20Howard%20Jones%20v%20Renga%20Vasu%20MD%20etal%20OPN.pdf

Trial Practice: Damages & Remittitur

The Tennessee Court of Appeals just issued its opinion in Riley v. Orr, No. M2009-01215-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2010). The opinion offers a good discussion of damages recoverable in a personal-injury action, remittitur, etc.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Bobby%20G%20Riley%20and%20wife%20for%20Hunter%20Riley%20v%20James%20Orr%20opn.pdf

Torts & Affirmative Defenses: Tenn. R. App. P. 11 Application for Permission to Appeal in Allgood Denied

This post is related to my post of September 24, 2009 having to do with Allgood v. Gateway Health Sys., No. M2008-01779-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2009). The Tennessee Supreme Court denied Defendant Christopher Hoffman, M.D.'s application for permission to appeal under Tenn. R. App. 11 by an order dated April 14, 2010.

Here's a link to my September 24, 2009 post:

http://theduncanlawfirm.blogspot.com/search?q=affirmative+defenses.

Medical Malpractice: Court Upholds Dismissal of Plaintiff's Lawsuit for Failure to Comply with Pre-filing Notice Requirements

Today the Eastern Section of the Tennessee Court of Appeals issued its opinion in Long v. Hillcrest Healthcare - West, No. E2009-01405-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2010). Plaintiff contended that the claim sounded in general negligence. However, the trial court and the Court of Appeals held that it sounded in medical negligence, which required its dismissal due to the Plaintiff's failure to comply with the statutorily required pre-filing notice requirements, inter alia.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Opal%20Hughes%20estate%20Medlinda%20Long%20Admin%20v%20Hillcrest%20HC%20west%20etal%20opn.pdf

Here's a link to the concurring and dissenting opinion filed by Judge Susano:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Opal%20Hughes%20estate%20Medlinda%20Long%20Admin%20v%20Hillcrest%20HC%20west%20etal%20DIS.pdf

A Message to Garcia

I'd like to thank my friend Morgan Adams from Chattanooga, Tennessee for reminding me of this story, to wit:

http://www.birdsnest.com/garcia.htm

Wrongful Death: New Opinion

The Court of Appeals just released its opinion in Wilburn v. City of Memphis, No. W2009-00923-COA-R3-CV (Tenn. Ct. App. Apr. 9, 2010). The opinion offers a good discussion of the damages recoverable in a wrongful death case. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/WilburnLauraOPN.pdf

Justice Stevens to Retire

Supreme Court Justice John Paul Stevens to retire this summer. Here's a link to the story from MSNBC.com:

http://www.msnbc.msn.com/id/36317045/ns/politics.

Medical Malpractice: Trial Court Upheld in Ruling for the Defense

The Court of Appeals issued its opinion today in Flatt v. Claiborne County Hosp. and Nursing Home, No. E2009-01341-COA-R3-CV (Tenn. Ct. App. Apr. 8, 2010). The case was tried to the bench because it was a GTLA case. The trial court held for the defense; it did so based upon the issue of standard of care.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Alvin%20Flatt%20re%20Falnetta%20Nobel%20v%20Claiborne%20Co%20Hospital%20opn.pdf

Latin Pronunciation

In the law, although not so much lately, you need to be able to pronounce Latin words or phrases, e.g., fiat justia ruat caelum (which is the motto of the Tennessee Supreme Court); ejusdem generis, or res ipsa loquitur. I found this paper written by Michael A. Covington, which is entitled Latin Pronunciation Demystified, to be helpful in this endeavor. Here's a link to it: http://www.ai.uga.edu/mc/latinpro.pdf

Straight Talk on Torts

Below is a link to an article written by Jim Marcinkowski entitled Tort reform made simple. It's from Freep.com. Here's a quote from page 3 of the article:

[T]ort reform is the equivalent of choosing not to prosecute criminals so they can remain on the streets to do more crime. We all suffer and pay as a society while the wrongdoers continue to make more profits without penalty....

http://www.freep.com/article/20100406/OPINION05/100405056/1336/Opinion/Tort-reform-made-simple

Happy Easter and Passover!

I hope you have a great holiday weekend.

Firm News: Tenn. R. App. P. 11 Application for Permission to Appeal Filed in Harris v. Horton

This post is related to two previous posts of mine: one on December 15, 2009 and the other on December 29, 2009. It has to do with the following case: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009), reh'g denied (Feb. 2, 2010).

An application for permission to appeal the Court of Appeals' ruling was filed on Thursday. This means that the current cite to the case is now: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009) ) (Tenn. R. App. P. 11 application for permission to appeal filed Apr. 1, 2010).