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Saturday, February 25, 2012

Comparative Fault: Another New Opinion on Tenn. Code Ann. § 20-1-119

The Tennessee Supreme Court recently issued its opinion in Mills v. Fulmarque, Inc., No. W2010-00933-SC-R11-CV (Tenn. Feb. 24, 2012). The summary of the case form the slip opinion is as follows:

We accepted this appeal to determine whether the phrase “a defendant named . . . within the applicable statute of limitations” in Tennessee Code Annotated section 20-1-119(a) (2009) refers only to a defendant sued within the statute of limitations applicable to the plaintiff’s claim or also refers to defendants not sued within the statute of limitations applicable to the plaintiff’s claim, but added to the lawsuit during the ninety-day period provided by section 20-1-119(a). Whether section 20-1-119(a) affords successive ninety-day windows during which a plaintiff may amend a complaint to add a new nonparty defendant as a comparative tortfeasor is an issue of first impression. Because we answer that question in the negative, we reverse the Court of Appeals and reinstate the judgment of the trial court granting Fulmarque’s motion for summary judgment and dismissing this action.
Here's a link to the majority opinion:

Justice Wade issued a dissent, which can be found at this link:

Oral Argument in Florida Supreme Court Case on Non-economic Damages

On February 9, 2012 the Florida Supreme Court heard oral arguments in Estate of McCall v. United States of America, Case No. SC11-1148. Here's a link to the oral argument:

Monday, February 20, 2012

Medical Malpracitce: New Case on the Locality Rule Post-Shipley, Etc.

The Tennessee Court of Appeal (Western Section) recently released its opinion in McDonald v. Shea, No. W2010-02317-COA-R3-CV (Feb. 16, 2012). The opinion, among other things, addresses the qualification of an expert witness in a medical malpractice case under the locality rule post Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). The summary from the opinion is as follows:

This is a medical malpractice appeal. The plaintiff patient was treated by the defendant physician for ear problems. After the treatment, she had a complete loss of hearing in one ear. The plaintiff patient filed this lawsuit against the physician, alleging medical malpractice and lack of informed consent. After potential experts in Tennessee and contiguous states declined to testify against the defendant physician, the trial court permitted the plaintiff to use an expert physician witness from a non-contiguous state. At the jury trial, after the jury was sworn and counsel gave opening statements, a juror notified the trial judge of the her concern about an upcoming social event she planned to attend, at which a relative of the defendant physician would be present. After voir dire, the trial judge noted that the plaintiff patient had unused remaining peremptory challenges and excused the juror. The trial court denied the defendant physician’s motion for directed verdict on informed consent. the jury awarded the plaintiff substantial compensatory damages. The defendant physician now appeals, arguing that the trial court erred in permitting the plaintiff to obtain an expert from a non-contiguous state, in allowing the plaintiff to exercise a peremptory challenge after trial was underway, in permitting the informed consent claim to go to the jury, and in denying the defendants’ motion to exclude the expert retained by the plaintiff. We affirm on all issues except the dismissal of the juror. We hold it would be error to permit the exercise of a peremptory challenge after the trial is underway, but find that any error was harmless under the facts of this case. Therefore, we affirm.

Here's a link to the majority opinion:

Here's a link to Judge Highers's separate concurring and dissenting opinion:

Saturday, February 11, 2012

Medical Malpracitce: New Opinion on Comparative Fault

The Western Section of the Tennessee Court of Appeals recently released its opinion in Dickson v. Kriger, No. W2011-00379-COA-R9-CV (Tenn. Ct. App. Feb. 10, 2012). The summary from the opinion states as follows:

This appeal arises from injuries Plaintiff sustained after undergoing laser corrective eye surgery. Plaintiff filed a complaint against Defendant alleging medical negligence. Subsequently, Defendant filed an amended answer alleging, inter alia, the affirmative defense of comparative fault. Plaintiff filed a motion to atrike portions of Defendant’s amended answer, and following a hearing on the motion, Defendant agreed to the entry of a consent order waiving the defense of comparative fault. Thereafter, Plaintiff filed motions in limine to preclude the testimony of two of Defendant’s experts. Plaintiff argued that, because Defendant waived comparative fault, he could not use the causation testimony of the two experts to shift blame away from himself unless he first plead comparative fault under Rule 8.03 of the Tennessee Rules of Civil Procedure. The trial court denied both motions. We granted permission for interlocutory appeal. We affirm in part, reverse in part, and remand for further proceedings.
Here's a link to the opinion: