New Health Care Liability Action & Comparative Fault Opinion: Joinder of a Nonparty under Tenn. Code Ann. sec. 20-1-119

The Tennessee Court of Appeals recently released its opinion in Swearengen v. DMC-Memphis, No. W2014-00724-COA-R3-CV (Tenn. Ct. App. Apr. 2, 2015).  The summary from the opinion states as follows:

This is an appeal from the trial court‟s grant of a motion to dismiss Appellant‟s medical malpractice action[] against defendants named in Appellant‟s amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant‟s claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand. 

Here is a link to the opinion: 

http://www.tsc.state.tn.us/sites/default/files/swearengencliffordopn.pdf

NOTE: Respectfully, I think this opinion is wrongly decided,  This is because it appears to be contrary to the Tennessee Supreme Court opinion issued in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000), available at https://scholar.google.com/scholar_case?case=4690641893954946747&q=Brown+v.+Wal-Mart&hl=en&as_sdt=4,43 (last visited Apr. 6, 2015). Per Brown, and Rule 8.03, Tenn. R. Civ. P., it appears that a defendant must be more specific in pleading the fault of a nonparty as an affirmative defense than was allowed in this opinion.  Brown, 12 S.W.3d at 789.

New Opinion on Trial Practice in a Tort Case

The Tennessee Court of Appeals recently released its opinion in Monypeny v. Kheiv, No. W2014-00656-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2015).  The summary from the opinion states as follows:

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries sustained in the accident, the other some two years after the accident. The plaintiffs’ children were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing argument; (4) exclusion of notations on medical records; (5) various acts of alleged wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict; (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for medical and death payments made by State Farm under the insurance policy; and (11) award of discretionary costs. Because there is material evidence to support the jury’s verdict, and because the trial court did not abuse its discretion, we affirm and remand.

Here is a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/monypenybrooksopn.pdf

NOTE: This opinion offers a good discussion for the Tennessee trial lawyer as it relates to the trial of a tort suit in this state.  It is a must-read case in my opinion.

New Wrongful Death Opinion: Disqualification of Surviving Spouse under Recent Changes to Tennessee's Wrongful Death Law

The Tennessee Court of Appeals recently released its opinion in Baugh v. United Parcel Serv., No. M2014-00353-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2015).  The summary from the opinion states as follows:

In this wrongful death appeal, the main issue is whether, under Tenn. Code Ann. § 20-5-106(c)(1), a surviving spouse must have abandoned the decedent for a period of two years to have waived his or her right to institute an action or collect proceeds under that section.  We have concluded that the two-year period in Tenn. Code Ann. § 20-5-106(c)(1) applies only to “willful withdrawal.”

Here's a link to the opinion:

http://www.tsc.state.tn.us/sites/default/files/baughl.opn_.pdf

NOTE: This opinion offers an analysis of the recent changes to our state's wrongful death law, which was recently amended.

New Health Care Liability Action Opinion: Case Refiled under Saving Statute Dismissed Because Plainitffs Did Not Resend Presuit Notices Before Filing Second Suit

The Tennessee Court of Appeals recently issued its opinion on Potter v. Perrigan, No. E2013-01442-R3-CV (Tenn. Ct. App. Mar. 26, 2015).  The summary from the opinion states as follows:

This is a medical malpractice action. Plaintiffs timely filed a complaint [] after properly sending pre-suit notices to Defendants. After voluntarily dismissing the initial complaint, Plaintiffs filed a second complaint pursuant to the saving statute with an attached certificate of good faith and a copy of the original pre-suit notices. Defendants moved to dismiss the second complaint for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a). The trial court agreed and dismissed the action.  Plaintiffs appealed. We reversed the decision of the trial court. Defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for reconsideration in light of its opinion in Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. Jan. 27, 2015). Upon remand, we affirm the decision of the trial court.

(Footnote omitted.)

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/potteronremand.pdf