Medical Malpractice: Use of Transcribed Trial Testimony During Closing Argument

The Eastern Section of the Tennessee Coourt of Appeals issued its opinion in Chapman v. Lewis, No. E2009-01496-COA-R9-CV (Tenn. Ct. App. Jul. 28, 2010). The sole issue on appeal was set forth by the court as follows:

Did the trial court err when it granted a new trial on the basis that the court improperly allowed defense counsel to project portions of trial testimony during closing argument without establishing a proper foundation or providing prior notice to the plaintiff?

The court held that the trial court erred and reversed the trial court's grant of a new trial to the plaintiff. Below is the syllabus from the opinion:

On April 10, 2000, William D. Chapman, II (“the Deceased”) was involved in a motor vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and Medical Center in Kingsport where he came under the care of trauma surgeons, the defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other physicians and medical personnel. The plaintiff, Cathy L. Chapman, brought this wrongful death action against the defendants based upon her allegation that they were guilty of medical malpractice in the treatment of her husband; she claims that their malpractice caused the death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008, counsel for the parties made their closing arguments. During the defense’s argument, counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen what purported to be the Q. and A. trial testimony of the plaintiff’s medical expert, Dr. Philip Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict in favor of both defendants. Later, the trial court, acting on the plaintiff’s motion, reversed itself and held that the defendants failed to lay a proper foundation for the use of the projected testimony. The court also pointed out that the defendants failed to give the plaintiff prior notice of their intention to use portions of the trial transcript in closing argument. As a consequence, the court granted the plaintiff a new trial. The defendants appeal. We reverse the trial court’s grant of a new trial and reinstate the court’s judgment in favor of the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Cathy%20L%20Chapman%20vs%20James%20V%20Lewis%20MD%20OPN.pdf

Trial Practice: Effecting a Review of a General Sessions Court Judgment in Circuit Court

The Middle Section of the Tennessee Court of Appeals issued its opinion in Tennessee Protection Agency, Inc., v. Mathies, No. M2009-01775-COA-R3-CV (July 23, 2010). Here's the syllabus from the opinion:

Party A obtained a default judgment in general sessions court against Party B. The general sessions court subsequently granted Party B’s motion to set aside the default judgment. Party A appealed to circuit court. The circuit court reversed the general sessions court’s decision to set aside the default judgment. Party B appeals to this court. We affirm the decision of the circuit court.

As pointed out in this opinion, the general sessions court did not have jurisdiction to entertain a motion to set aside its prior judgment because the 10 days for doing so had passed. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/tennprotectionagencyOPN.pdf

Practice pointer: Party B should have filed a petition in the circuit court for a writ of supersedeas and certiorari. See my June 29, 2010 post for more information on this subject.

Trial Practice: Hearsay & Expert Opinion Testimony

The Eastern Section of the Tennessee Court of Appeals issued its opinion in Holder v. Westgate Resorts Ltd., No. E2009-01313-COA-R3-CV (Tenn. Ct. App. Jul. 23, 2010). Here's the syllabus from the majority opinion, to wit:

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/James%20Q%20Holder%20vs%20Westgate%20Resorts%20Ltd%20dba%20Westgate%20Smoky%20Mountain%20Resort%20at%20Gatlinburg.pdf

Judge Susano issued a separate concurring and dissenting opinion where he opined that the trial court did not err in sustaining the plaintiff's counsel's objection to the proffered testimony. In my very humble opinion, I think Judge Susano's opinion is accurate.

Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/James%20Q%20Holder%20vs%20Westgate%20Resorts%20Ltd%20dba%20Westgate%20Smoky%20Mountain%20Resort%20at%20Gatlinburg%20CON%20opn.pdf

Medical Malpractice: Court of Appeals Reverses Trial Court's Grant of Summary Judgment Against Plaintiff, Etc.

The Court of Appeals just issued its opinion in Jacobs v. Nashville Ear, Nose & Throat Clinic, No. M2009-01594-COA-R3-CV (July 15, 2010). Here's what the syllabus states:

This is a medical malpractice case. Vicki P. Jacobs (“the Plaintiff”) alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs (“the Decedent”), in May 2000 caused his death in November 2001. The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants’ motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court’s ruling was premised, in part, on the court’s holding that the affidavit of one of the experts was not timely filed and also because,according to the court, the Plaintiff’s experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court’s grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Vickie%20P%20Jacobs%20and%20Harris%20N%20Jacobs%20Deceased%20v%20Nashville%20Ear%20Nose%20&%20Throat%20Clinic%20OPN.pdf

Personal Injury: New Case on Causation & Damages

The Western Section of the Tennessee Court of Appeals just issued its opinion in Hampton v. Northwest Tenn. Human. Resource Agency, No. W2009-02668-COA-R3-CV (Tenn. Ct. App. Jul. 13, 2010). The opinion offers up a good discussion on the elements of causation and damages in a personal-injury case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/hamptongOPN.pdf

New GTLA Opinion: Notice

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Bivins v. City of Murfreesboro, No. M2009-01590-COA-R3-CV (Jul. 9, 2010). The opinion offers a good discussion of notice under the GTLA.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Jennifer%20Bivins%20et%20al%20v%20City%20of%20Murfreesboro%20OPN.pdf

Medical Malpractice: Court of Appeals Upholds Trial Court's Grant of Summary Judgment for Defendants

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Clifford v. Tacogue, No. M2009-01703-COA-R3-CV (Tenn. Ct. App. Jul. 18, 2010). The syllabus from the opinion is as follows:

Plaintiff husband alleged that he suffered an injury in the course of undergoing a cardiac catheterization procedure. Plaintiffs filed suit against the treating physician, alleging medical malpractice, lack of informed consent, and medical battery; against the hospital, alleging medical malpractice based on an actual or apparent agency with the physician; and against the manufacturer of the medical device used in the procedure, alleging that the manufacturer was vicariously liable for medical battery committed by its employee. The trial court granted summary judgment to the defendants on all claims, holding that plaintiffs failed to establish that the use of the medical device to close the site where the catheter was inserted was the cause of husband’s injury. Finding that the defendants negated the element of causation essential to each cause of action, the trial court’s judgment is affirmed.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/103/Clifford%20v.%20Tacogue%20Opinion.pdf

The Declaration of Independence

This is a re-post. I watch these two clips this time every year. Hope you enjoy them. See below.

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

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

Changes to the Tennessee Rules of Court Effective Today

New changes to certain Tennessee Rules of Court that are effective today:

Tenn. R. Civ. P., to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TRCivPamendments.pdf

Tenn. R. Evid., to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TREamendments.pdf

Tenn. R. App. P. , to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/Order-TRAPamendments.pdf

AOC’s Web site (which explains that everything passed EXCEPT the amendments to Rule 26 regarding the discoverability of insurance (near the bottom of the page)), to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2010/scrule2010.htm