New Summary Judgment Opinion: Summary Judgment for Defendant Upheld on Appeal Because Plaintiff Failed to Comply with Rule 56.03, Tenn. R. Civ. P.

The Tennessee Court of Appeals has released its decision in Brennan v. Goble, No. E2020-00671-COA-R3-CV (Tenn. Ct. App. May 27, 2021).  The syllabus from the slip opinion reads:

This appeal arose from a personal injury action. The defendant filed a motion for summary judgment, accompanied by a statement of material facts in compliance with Tennessee Rule of Civil Procedure 56.03. The plaintiff responded to the defendant’s motion for summary judgment but failed to respond to the separate statement of material facts. As a result of the plaintiff’s failure to respond to the statement of material facts, the Trial Court deemed those facts as stated by the defendant as admitted and granted summary judgment in favor of the defendant upon its determination that the defendant had negated an essential element of the plaintiff’s claim. Discerning no error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/e2020-671_brennan_v._goble.pdf.

NOTE: This is a correct result.  I have seen both movants and nonmovants fail to comply with Rule 56.03's requirement of citing to the record to support or oppose a motion for summary judgment (which does not end well for the noncompliant party).  As noted on page 10 of this decision, Rule 56.03 exists so that a court does not have to unnecessarily dig through an entire record just to determine if a dispute exists as to a material fact.  

New Health Care Liability Action Opinion: Denial of Summary Judgment for a Defendant Upheld on Appeal; Authorization for Medical Records Substantially Complied with HIPAA

The Tennessee Court of Appeals released its decision today in Savannah v. State, No. E2020-01232-COA-R9-CV (Tenn. Ct. App. May 19, 2021).  The syllabus from the slip opinion reads:

Parents filed a healthcare liability and wrongful death complaint after the mother delivered a stillborn infant. We granted this interlocutory appeal to review whether the claims commission erred in denying summary judgment to the defendants. Finding no error in the Commission’s ruling, we affirm. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/savannah_leigh_jackson_et_al._v._the_state_of_tennessee_et_al..pdf.

NOTE: This is a must-read decision for any lawyer who handles health care liability action (HCLA) cases governed by Tennessee substantive law.  It addresses whether an authorization required under Tenn. Code Ann. sec. 29-26-121 complies with HIPAA, which has become all-too-common issues in HCLA cases.  

New Tort Opinion: Summary Judgment for Defense Reversed on Appeal Because Plaintiff Had Demonstrated That a Genuine Issue of Material Fact Existed for Trial

The Tennessee Court of Appeals released its opinion the other day in Davis v. Keith Monuments, No. E2020-00792-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2021).  The syllabus from the slip opinion reads:

Plaintiff filed suit for damages alleging that she had been injured when the headstone at her deceased brother’s grave fell on her and broke bones in her hand. After Defendant, the installer of the headstone, moved for summary judgment, the trial court dismissed Plaintiff’s claims with prejudice. On appeal, we reverse that portion of the trial court’s summary judgment order dismissing Plaintiff’s claim which is based on Defendant’s alleged negligence in installing the headstone.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/sylvia_davis_v._keith_monuments.pdf.

NOTE: This is a great opinion!  It addresses the proper application of the standard of review in summary judgment proceedings, computation of time, and expert-witness qualifications.  If you have to deal with a motion for summary judgment under Tennessee law, you need to read this opinion.   

New Health Care Liability Action Opinion: Trial Court's Dismissal of Refiled Suit Upheld on Appeal Due to Failure to Provide Statutorily Required Presuit Notice of Second Suit

The Tennessee Court of Appeals has released its opinion in Byington v. Reaves, No. E2020-01211-COA-R3-CV.  Here is the syllabus from the slip opinion:

This is a health care liability case. The trial court granted Appellees’ motion to dismiss because Appellant failed to provide Appellees with the proper pre-suit notice under Tennessee Code Annotated section 29-26-121(a)(1). Discerning no error, we affirm.

Here is the link to the slip opinion:  

https://www.tncourts.gov/sites/default/files/debra_sue_byington_v._jamie_reaves_d.o._et_al..pdf.

NOTE: Procedurally, this case is mess.  In a nutshell, the suit that is the subject of this appeal, which was plaintiff's second suit against the defendants, was dismissed because the plaintiffs failed to send to the defendants the statutorily required presuit notice letters.  Byington, slip op. at 4–5.  

Health Care Liability Action Opinion: Trial Court's Grant of Relief Under Rule 60.02, Tenn. R. Civ. P., Reversed on Appeal

The Tennessee Court of Appeals recently released its decision in Mack v. Baptist Memorial Hospital, No. W2020-00809-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2021).  The syllabus form the slip opinion reads:

This appeal arises from a health care liability action. Darryl G. Rush-Mack . . . died while receiving care at Baptist Memorial Hospital . . . .  Alvin Mack . . . , Kevin Mack, and Darwisha Mack Williams . . . sued the Hospital and Dr. Aaron Kuperman . . . in the Circuit Court for Shelby County . . . .  Defendants filed motions to dismiss, which the Trial Court granted. Thirty days from entry of the order passed without Plaintiffs filing a notice of appeal. Plaintiffs later filed a motion to set aside pursuant to Tenn. R. Civ. P. 60.02 asserting that the order was not stamped to be mailed until six days after it was filed and it went to a PO Box Plaintiffs’ counsel does not use for business. The Trial Court granted the motion and entered a new order of dismissal, from which Mr. Mack appeals. We find that Mr. Mack failed to meet the clear and convincing evidentiary burden necessary for Rule 60.02 relief; indeed, the Trial Court relied only upon statements of counsel rather than evidence. We, therefore, reverse the Trial Court’s grant of Plaintiffs’ Rule 60.02 motion. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/mackalvinopn.pdf.

NOTE: This case is a reminder of the high burden to meet under the clear-and-convincing standard of evidentiary proof.  

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case as Being Time-barred Due to a Failure to Comply with Presuit Notice Requirements Upheld on Appeal

The Tennessee Court of Appeals has released its decision in Shaw v. Gross, No. W2019-01448-COA-R3-CV (Tenn. Ct. App. Apr. 13, 2021).  The syllabus form the slip opinion reads:

Appellant appeals the dismissal of her health care liability complaint on the basis of the expiration of the applicable statute of limitations. Because Appellant did not substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E), she was not entitled to an extension on the statute of limitations. The trial court’s decision that her complaint should be dismissed is affirmed. 

Here is a link to the slip opinion:

 https://www.tncourts.gov/sites/default/files/shawhelen2opn.pdf.

NOTE: This case is related to my Feb. 9, 2018-blog post.  Tony Duncan, New Health Care Liability Action Opinion: Trial Court Reversed Due to Discovery Rule, Its Decision Vacated Because It Failed to Adhere to the Proper Summary Judgment Standard, Which Leads to a Remand by Court of Appeals, TONY DUNCAN L. BLOG (Feb. 9, 2018, 6:28 PM), http://theduncanlawfirm.blogspot.com/2018/02/new-health-care-liability-action_9.html.

New Case on Attorney Signature to Complaint: Trial Court's Dismissal Reversed on Appeal Because Signature Complied with Tenn. R. Civ. P. 11

The Tennessee Court of Appeals recently issued its decision in Smith v. Gonzalez, No. W2019-02028-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2021).  The syllabus from the slip opinion reads:

This appeal involves a challenge to the trial court’s dismissal of Plaintiff’s complaint. Specifically, Plaintiff contends that the trial court erred in finding that his complaint was deficient per the signature requirements in Rule 11.01(a) of the Tennessee Rules of Civil Procedure. For the reasons stated herein, we reverse the trial court’s dismissal of Plaintiff’s complaint and conclude it is in compliance with the requirements of Rule 11.01. 

Here is link to the slip opinion:

https://www.tncourts.gov/sites/default/files/smithjohnl.opn_.pdf.

NOTE: I am surprised this appeal had to happen.  Lawyers sign for other lawyers "by permission" all . . . the . . . time!  Glad the Tennessee Court of Appeals got this one right.  

Two New Health Care Liability Action Opinions on Same Issue: Trial Court's Grant of Summary Judgment and Motion to Dismiss Reversed on Appeal Due to Statutory Changes as They Relate to Vicarious Liability

Today, the Tennessee Court of Appeals released its decisions in Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-COA-R3-CV (Tenn. Ct. App. Apr. 1, 2021) and Ultsch v. HTI Memorial Hospital Corporation, No. M2020-00341-COA-R9-CV (Tenn. Ct. App. Apr. 1, 2021).  Both cases hinge on the same issue and arise from the same trial court.  The common issue being whether a principal in a health care liability action may be held vicariously liable for the acts or omissions of its employees and agents if the statute of limitations was extended as to the principal but not the employees and agents via service of presuit notice letters under Tenn. Code Ann. sec. 29-26-121.  

The syllabus from the slip opinion in Gardner reads:

A patient filed a health care liability claim against a hospital, asserting the hospital was vicariously liable for injuries she suffered as a result of the anesthesia providers’ conduct. The hospital moved for summary judgment, arguing that the anesthesia providers were not employed by the hospital and the hospital was, therefore, not liable for the anesthetists’ actions as a matter of law because the statute of limitations had run on the plaintiff’s direct claims against the anesthesia providers by the time the plaintiff filed her complaint against the hospital. The trial court granted the hospital’s motion and dismissed the plaintiff’s complaint, relying on the common law set forth in Abshure v. Methodist HealthcareMemphis Hospitals, 325 S.W.3d 98 (Tenn. 2010). Acknowledging the conflict between provisions of the Tennessee Health Care Liability Act and the common law, we hold that the statute prevails. Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings.

Here is a link to the Gardner slip opinion:

https://www.tncourts.gov/sites/default/files/gardner.beverly.opn_.pdf.

The syllabus from the slip opinion in Ultsch reads:

This appeal concerns the interplay between the Tennessee Health Care Liability Act [] and the common law on vicarious liability with respect to pre-suit notice in a health care liability claim against the principal only. We have determined that the provisions of the HCLA take precedence over the common law and that the plaintiff’s claims in this case were timely filed. Therefore, we reverse the decision of the trial court.

Here is a link to the Ultsch slip opinion:

https://www.tncourts.gov/sites/default/files/ultsch.dennis.opn_.pdf.

NOTE: Both of these opinions offer an excellent explanation of how a vicarious liability claim may be prosecuted under Tennessee's Health Care Liability Act (f/k/a the Tennessee Medical Malpractice Act). SCOTN will be asked to review these two decisions via a Rule 11 application.  It may deny review, however, because these decision are very well reasoned and jibe with applicable Tennessee law in my humble opinion.  

UPDATE (Oct. 1, 2021): I was wrong.  SCOTN has granted permission to appeal in both cases on Sept. 24, 2021, to wit:

https://tncourts.gov/sites/default/files/sc_discretionary_appeals_list_2021sept27.pdf.

 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiff's Case Upheld on Appeal Due to Noncompliance with Statutory Presuit-notice Requirements

The Tennessee Court of Appeals recently released its decision in Woods v. Arthur, No. W2019-01936-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2021).  The syllabus from the slip opinion reads:

This appeal concerns the dismissal of a health care liability action for failure to comply with a pre-suit notice content requirement in Tenn. Code Ann. § 26-29-121(a)(2). The trial court determined that the plaintiff failed to provide the defendant doctors and hospital with medical authorization forms that would permit pre-suit investigation of his claims. The plaintiff contends the dismissal was unwarranted because the medical authorizations substantially complied with the statute and the defendants already had the relevant records. The defendants argue that the forms were invalid because they lacked several required elements, including a description of the purpose for which the records could be disclosed and used. We affirm.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/woodsarthuropn_3.pdf.

NOTE: As I have noted in the past, an authorization may not be needed for the defendants to share medical records.  If that ends up being true, all these decision holding that a case should be dismissed due to some defect in an authorization are wrongly decided.  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM), http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.

New Auto Case: Out-of-state Automotive Insurance Policy Construed on Appeal: Summary Judgment for Insuror Reversed and Summary Judgment for Insured to Be Granted on Remand

The Tennessee Court of Appeals just released its opinion in Progressive Specialty Insurance Company v. Kim, No. M2019-01998-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2021).  The syllabus from the slip opinion reads:

After being injured in a car accident, a man filed a negligence lawsuit against several defendants, including the driver of the vehicle and the company that employed the driver. The insurance company that provided insurance coverage to the company in Alabama filed a declaratory judgment action seeking a determination of whether the policy provided liability coverage for the company in the underlying tort action. After the insurance company and the plaintiff in the underlying tort action filed cross-motions for summary judgment, the trial court granted summary judgment to the insurance company based on respondeat superior principles. We conclude that the trial court erred in granting summary judgment to the insurance company because, under Alabama law, the policy provided liability coverage for the company at the time the accident occurred.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/progressivespecialtyins.co_.opn_.pdf.

NOTE: This is an excellent opinion on the doctrine of lex loci contractus (while it does not mention the doctrine specifically, the doctrine is discussed extensively in Nelson v. Nelson, 409 S.W.3d 629 (Tenn. Ct. App. 2013), which is cited on page 4 of this slip opinion). In cases like this one, as a matter of contract, the law of the state where the contract was made controls, i.e., the "lex loci contractus."  Since people are becoming increasingly mobile, and because Tennessee has eight border states, this opinion is a must-read for any lawyer who handles auto tort cases in Tennessee because it explains very well how out-of-state automotive insurance polices are to be interpreted under this doctrine in a Tennessee civil action.    

New Case Discussing Proper Procedure for Reviving Tort Suit Against a Tortfeasor Who Dies Before Suit Is Filed: Trial Court's Dismissal of Action as Untimely Upheld on Appeal

The Tennessee Court of Appeals released its decision today in Mott. v. Luethke, No. E2020-00317-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2021).  The syllabus from the slip opinion reads:

Following an automobile accident that occurred on March 22, 2016, the plaintiff filed a cause of action, in the form of a civil summons, in the Washington County General Sessions Court . . . on March 3, 2017, seeking an award of damages from the defendant, who was the other driver involved in the car accident. Unbeknownst to the plaintiff, however, the defendant had passed away in December 2016. On January 31, 2018, the plaintiff filed a “re-issue[d]” summons to be served upon the administrator ad litem of the decedent’s estate. After the matter was subsequently transferred to Washington County Circuit Court . . . , the trial court granted the administrator’s motion for summary judgment, determining that the plaintiff had failed to timely file his tort action against the personal representative within the applicable statute of limitations. The trial court consequently dismissed the plaintiff’s claims with prejudice. The plaintiff has appealed. Discerning no reversible error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/vernon_mot_v._k_jeffrey_luethke_esq._et_al..pdf.

NOTE: This is an excellent decision!  It is also a must-read one for any lawyer who must deal with the issue of revivor of a claim against a tortfeasor who dies before suit is filed under Tennessee substantive law.  It also touches upon equitable estoppel.  Worth the time it takes to read it.   

New Case on Judgment on the Pleadings and the Discovery Rule to Toll the Statute of Limitations in a Legal Malpractice Case

In October 2020, the Tennessee Court of Appeals released its opinion in Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No. E2019-01932-COA-R3-CV (Oct. 16, 2020).  The syllabus from the slip opinion reads:

In this legal malpractice action, the trial court granted judgment on the pleadings in favor of the defendants, determining that the plaintiff had waived any conflict of interest in his signed engagement letter. The court also ruled that the plaintiff’s legal malpractice claims were barred by the applicable statute of limitations. The plaintiff has appealed. Upon our review of the pleadings and acceptance as true of all well-pleaded facts contained in the plaintiff’s complaint and the reasonable inferences that may be drawn therefrom, we determine that the plaintiff has pled sufficient facts in support of his claim of legal malpractice. We therefore reverse the trial court’s grant of judgment on the pleadings with regard to the plaintiff’s legal malpractice claim.

(Footnote omitted.)

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/culpepper_v._baker_donelson_e2019-01932.pdf

NOTE: This case discusses judgment on the pleadings and the discovery rule under Tennessee law.  It is a good read.  Please note, however, that it was appealed to SCOTN on January 11, 2021 (https://www2.tncourts.gov/PublicCaseHistory/) and no decision has been made as to whether SCOTN will take it up yet.  Until that happens, one must, obviously, monitor this case before citing it.  Stay tuned.  

New Health Care Liability Action Opinion: Trial Court’s Dismissal of Action Against Hospital Upheld on Appeal; Discovery Rule Does Not Apply to Save the Claim

The Tennessee Court of Appeals has released its opinion in Karr v. Thomas Midtown Hospital, No. M2020-00029-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2021).  The syllabus from the slip opinion reads:

This appeal concerns the dismissal of a health care liability action against Saint Thomas Midtown Hospital, Saint Thomas Health, and Ascension Health. The trial court dismissed the complaint with prejudice on the ground the statute of limitation, through the application of the discovery rule, barred all of the claims. The plaintiffs appealed. We affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/karr.christa.opn_.pdf

NOTE; This opinion offers up an excellent explanation of the discovery rule and how it applies to toll the statute of limitations under certain circumstances.  It would behoove anyone interested in the discovery rule to read this opinion.  

New Opinion on Recently Enacted Tennessee Law Extending One-year Statute of Limitations for Personal Injury Actions to Two Years Based upon Certain Criminal Charges Being Brought Against Tortfeasor: Trial Court's Denial of Defendant's Motion for Summary Judgment Based upon That New Law Upheld on Appeal

Yesterday the Tennessee Court of Appeals released its decision in Younger v. Okbahhanes, No. E2020-00429-COA-R10-CV (Tenn. Ct. App. Jan,. 28, 2021).  The syllabus from the slip opinion reads:

This appeal arises from a personal injury action. The plaintiff filed this action more than one year after the vehicle collision from which the cause of action accrued. The defendant filed a motion for summary judgment, arguing that the plaintiff’s action was untimely. The plaintiff filed a response arguing that the statute of limitations for personal injury actions was extended to two years, pursuant to Tennessee Code Annotated § 28-3-104(a)(2), due to the traffic citation issued to the defendant for failure to exercise due care in violation of section 55-8-136 as a result of the vehicle collision. The Trial Court found that section 28-3-104(a)(2) was applicable to extend the statute of limitations to two years because the defendant had been charged with a criminal offense and a criminal prosecution had been commenced against him. Discerning no error, we affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/e2020-429_younger_v._okbahhanes.pdf

NOTE: This opinion hinges on statutory construction.  As it points out, the primary goal of a court in interpreting a statute is to "apply the plain meaning of a statute’s words in normal and accepted usage without a forced interpretation."  Younger, slip op. at 5 (emphasis added) (quoting Baker v. State, 417 S.W.3d 428, 433 (Tenn. 2013).  That is exactly what the court did here.  

Further, another canon of statutory construction is reductio ad absurdum, which means reduction to the absurd; such an interpretation is to be avoided. Ronald Benton Brown & Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent 73 (NITA 2d. ed. 2011) [hereinafter Intent at _____ ].  I would submit that the defendant's offered interpretation of Tenn. Code Ann. sec. 28-3-104(a)(2) is a reduction to the absurd, and that is yet another reason (aside from just the statute's plain meaning) to reject that forced interpretation. Compare Tenn. Code Ann. § 28-3-104(a)(2) (LEXIS through 2020 Reg. Sess. and Second Extraordinary Sess.) with Intent, supra, at 73; see also Black's Law Dictionary 1283 (West Grp. 7th ed. 1999) (defining reductio ad absurdum).

Lastly, this decision is absolutely correct in my professional opinion.  However, look for the defendant to seek review of it by SCOTN via an application for permission to appeal via Rule 11 of the Tenn. Rules of Civil Procedure.  Due to this portion of the statute's novelty (enacted in 2015; amended subsection (a)), I think SCOTN might take this one up.  However, I also think if it does it will affirm this decision.  My two cents' worth.

New Decision from the Tennessee Court of Appeals on Premises Liability: Summary Judgment for Defendant Reversed on Appeal

The Tennessee Court of Appeals released its decision today in Vaughn v. DMC-Memphis, LLC, No. W2019-00886-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2021).  The syllabus from the slip opinion reads:

Plaintiff filed a claim in general sessions court for injuries she allegedly received when she fell in standing water on the defendant’s premises. Judgment was rendered in favor of the defendant, and the plaintiff appealed to circuit court. The defendant then filed a motion for summary judgment arguing that it owed no duty to the plaintiff and that she was at least 50% at fault for her injuries. In support, the defendant relied on plaintiff’s testimony from the trial in general sessions court. The circuit court granted the motion for summary judgment, and plaintiff again appealed. We vacate the judgment of the trial court.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/vaughntopn_1.pdf

NOTE: This case is a premises liability case.  This decision offers an excellent analysis of Tennessee law on the element of duty in a negligence action and the affirmative defense of a plaintiff’s comparative fault.  It is worth the read in my humble opinion.  

New Health Care Liability Action Opinion: Tennessee Supreme Court Upholds Dismissal of Defendants

The Tennessee Supreme Court just released its decision in Bidwell ex rel. Bidwell v. Strait, No. E2018-02211-SC-R11-CV (Tenn. Jan. 26, 2021).  The syllabus from the slip opinion reads:

James Bidwell filed this health care liability action individually and on behalf of his deceased wife, Clarissa Bidwell, and her estate against Drs. Timothy Strait and Jeffrey Colburn (“the physician Defendants”) and the entities he believed to be their employers—the Neurosurgical Group of Chattanooga, P.C., EmCare Inc., and Envision Healthcare Corporation. Mr. Bidwell timely provided pre-suit notice to the named defendants and timely filed his lawsuit. Mr. Bidwell did not provide Chattanooga-Hamilton County Hospital Authority (“Erlanger”) with pre-suit notice, nor did he name Erlanger as a defendant. Furthermore, Dr. Strait and Dr. Colburn did not provide Mr. Bidwell written notice of Erlanger as their correct employer within thirty days of receiving pre-suit notice. See Tenn. Code Ann. § 29-26-121(a)(5). Dr. Strait answered Mr. Bidwell’s complaint, denying the allegations made against him and asserting that he was employed by Erlanger at all relevant times. Dr. Colburn similarly answered, denying the allegations made against him and that either EmCare Inc. or Envision Healthcare Corporation was his employer. Drs. Strait and Colburn then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, no judgment could be rendered against them because Mr. Bidwell had failed to name as a defendant their actual employer, Erlanger. See Tenn. Code Ann. § 29-20-310(b). Within ninety days of Dr. Strait’s and Dr. Colburn’s answers, Mr. Bidwell filed two motions for leave to amend his complaint to add Erlanger as a defendant. Mr. Bidwell relied on Tennessee Code Annotated section 20-1-119, which provides a plaintiff with a ninety-day “grace period” within which to amend a complaint when comparative fault “is or becomes an issue,” and section 29-26-121(a)(5), which he argued required the physician Defendants to notify him of Erlanger within thirty days of receiving pre-suit notice. The trial court granted Dr. Strait’s and Dr. Colburn’s motions for summary judgment, finding that Mr. Bidwell’s motions to amend were futile because he had not provided Erlanger with presuit notice. Mr. Bidwell appealed, and the Court of Appeals vacated the trial court’s orders granting summary judgment and remanded the case for further proceedings. Dr. Strait and Dr. Colburn subsequently filed an application for permission to appeal with this Court. We hold that, although the physician Defendants failed to comply with section Tennessee Code Annotated 29-26-121(a)(5), the statute provides no remedy for noncompliance, and their noncompliance does not constitute extraordinary cause sufficient to excuse Mr. Bidwell’s failure to provide Erlanger with pre-suit notice. However, we additionally hold that Dr. Strait’s and Dr. Colburn’s answers sufficiently asserted Erlanger’s comparative fault. Therefore, Mr. Bidwell was entitled to amend his complaint to name Erlanger as a defendant pursuant to section 20-1-119, so long as he amended his complaint and caused process to issue to Erlanger within ninety days of Dr. Strait’s answer—the first answer alleging Erlanger’s fault. Because section 20-1-119 applied, Mr. Bidwell was not obligated to provide Erlanger with pre-suit notice under Tennessee Code Annotated section 29-26-121(c). We conclude that, because the record on appeal reflects that Mr. Bidwell failed to file an amended complaint and cause process to issue, he is not entitled to amend his complaint to add Erlanger as a defendant. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals on the grounds stated herein and reinstate the trial court’s orders granting the physician Defendants’ motions for summary judgment and denying the Plaintiff’s motions to amend.

Here is a link to the majority opinion:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.opn_.pdf

Here is a link to Justice Lee's partial concurrence and dissent:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.l._sep.opn_.pdf

Here is Justice Kirby's concurrence:

http://www.tncourts.gov/sites/default/files/bidwell.clarissa.k.sep_._opn.pdf

NOTE: There is a lot going on in this opinion.  Taken down to its base element, it appears that the physician-employees were sued before the statute of limitations had expired but the hospital-employer was not, which meant the physicians could not be sued individually because the hospital happened to be a governmental entity, and also because the hospital was not added as a party-defendant within ninety days of an answer being filed as allowed by Tenn. Code Ann. sec. 20-1-119.  

Lastly, there are no consequences for when a defendant fails to notify a claimant of other potentially at-fault persons as required by Tenn. Code Ann. sec. 29-26-121(a)(5). 

New Health Care Liability Action Opinion: Trial Court’s Grant of Summary Judgment to the Defendant Upheld on Appeal in GTLA Case

The Tennessee Court of Appeals recently released its opinion in Williamson v. Regional One Health, No. W2019-02213-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2021).  The syllabus from the slip opinion reads:

In this healthcare liability action, Appellant/patient appeals the trial court’s grant of summary judgment in favor of Appellee/hospital. The trial court granted summary judgment based, inter alia, on its conclusion that Appellant failed to provide evidence that Appellee’s immunity under the Governmental Tort Liability Act is waived due to some action/inaction of its employee. Affirmed and remanded.

Here is a link to the slip opinion:

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

NOTE: This opinion offers a good explanation of Tennessee’s law on health care liability (formerly medical malpractice) as it intersects with its law on governmental tort liability.  It is worth the read if you handle these types of cases.  

New Health Care Liability Action Opinion: Trial Court Upheld on Appeal; Tennessee Health Care Liability Act Does Not Apply to Claims for Intentional Misrepresentation, Medical Batter, Civil Conspiracy, Loss of Consortium

Last month, the Tennessee Court of Appeals released its decision in Cooper v. Mandy, No. M2019-01748-COA-R9-CV (Tenn. Ct. App. Nov. 17, 2020).  The slip opinion reads:

The principal issue in this interlocutory appeal is whether intentional misrepresentations made by health care providers to induce a prospective patient to engage the health care providers’ services are within the purview of the Tennessee Health Care Liability Act (“the Act”), Tenn. Code Ann. § 29-26-101 to -122. The complaint filed by the patient, Donna Cooper (“Mrs. Cooper”), and her husband alleges that Dr. Mason Wesley Mandy (“Dr. Mandy”) and Rachelle Norris (“Ms. Norris”) with NuBody Concepts, LLC, intentionally misrepresented that Dr. Mandy was a board-certified plastic surgeon and, based on their misrepresentation, Mrs. Cooper gave Dr. Mandy her consent to perform the surgery. Following “painful, disastrous results,” the plaintiffs asserted four claims: (1) intentional misrepresentation; (2) medical battery; (3) civil conspiracy; and (4) loss of consortium. Defendants filed a Tenn. R. Civ. P. 12 motion to dismiss for failure to comply with the presuit notice and filing requirements of the Act, specifically Tenn. Code Ann. §§ 29-26-121 and -122. The trial court denied the motion to dismiss, finding the Act did not apply. This interlocutory appeal followed. We hold that Mrs. Cooper is entitled to proceed on her claims of intentional misrepresentation and civil conspiracy because the alleged misrepresentations were inducements made prior to the existence of a patient-physician relationship; thus, the claims were not related to “the provision of . . . health care services.” See Tenn. Code Ann. § 29-26-101(a)(1). We also affirm its ruling on the medical battery claim because a physician’s misrepresentation of a material fact, if proven, may vitiate consent, and, without consent, the very act of touching Mrs. Cooper may constitute an unlawful and offensive act that is not related to the provision of health care services. See Holt v. Alexander, No. W2003-02541-COA-R3-CV, 2005 WL 94370, at *6 (Tenn. Ct. App. Jan. 13, 2005). Further, we affirm the trial court’s ruling on Mr. Cooper’s claim for loss of consortium because, as the trial court held, his claims relate to Dr. Mandy’s and Ms. Norris’s false representations of Dr. Mandy’s credentials, not to a provision of, or a failure to provide, a health care service. Accordingly, we affirm the trial court in all respects and remand for further proceedings consistent with this opinion.

Here is a link to that opinion:

http://www.tncourts.gov/sites/default/files/cooper.donna_.opn_.pdf.

NOTE: This opinion delves into the torts of intentional misrepresentation, medical battery, and civil conspiracy; it also touches upon claims for loss of consortium.  It is a must-read decision for any lawyer whose practice is affected by Tennessee substantive law.  

Also, look for the defendants to ask SCOTN to take a look at this case.  

UPDATE: SCOTN overruled this decision on Jan. 20, 2022, which can be verified at this link: 

http://theduncanlawfirm.blogspot.com/2022/01/tennessee-supreme-court-holds-that.html.

New Health Care Liability Action Opinion: Summary Judgment for Defendant Reversed Because Plaintiff Demonstrated That There Was a Genuine Issue of Material Fact as to the Applicable Standard of Care, Its Breach, and Causation; Intervening and Superseding Cause Does Not Exist at Present

The Tennessee Court of Appeals recently released its decision in Davis v. Ellis, No. W2019-01367-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020).  The syllabus from the slip opinion reads:

This is a health care liability case. The trial court granted summary judgment in favor of Appellee/doctor finding that Appellant’s expert witness failed to connect the decedent’s death to Appellee’s alleged deviation from the standard of care. We conclude that Appellant presented sufficient evidence, at the summary judgment stage, to create a dispute of fact concerning deviation from the standard of care and causation. Accordingly, we reverse the trial court’s grant of summary judgment. 

Here is a link to the decision:

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

NOTE: This is a must-read opinion for any lawyer who practices in the area of health care liability (f.k.a., medical malpractice) where the case is governed by Tennessee substantive law.  It addresses expert testimony as to the applicable standard of care, causation of injury, and intervening-superseding causes, which makes it a great primer for a new lawyer and a great refresher for the seasoned practitioner.    

New Opinion on the Discovery Rule and Governmental Tort Liability Under Tennessee Substantive Law

Today, the Tennessee Court of Appeals released its decision in Durham v. Estate of Losleben, No. W2019-01623-COA-R3-CV (Tenn. Ct. App. Dec. 8, 2020).  The syllabus from the slip opinion reads:

A Hardin County firefighter and Appellant’s husband died after their vehicles collided. Appellant alleged that the firefighter had negligently caused the accident, and thus filed tort claims against Hardin County under a theory of vicarious liability and Tennessee’s Governmental Tort Liability Act. She filed her claims more than one year after the accident, so the trial court dismissed them as barred by the applicable one-year statute of limitations. She appeals, and we affirm.

Here is a link to the slip opinion:

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

NOTE: Among other things, this opinion explains the discovery rule and how it affects the running of the one-year statute of limitations in tort actions, especially in civil actions under the Tennessee Governmental Tort Act (GTLA).  This decision reaffirms the application of the discovery rule to GTLA cases, but holds that it did not apply under the facts presented herein.  This is a very informative read in my humble opinion.  

New Case on Uninsured Motorist Coverage and Amended Pleadings

The Tennessee Court of Appeals released it decision in Evans v. Croxdale, No. E2019-01880-COA-R3-CV (Tenn. Ct. App. Dec. 2, 2020).  The syllabus from the slip opinion reads: 

This appeal concerns the trial court’s summary judgment dismissal of the plaintiff’s uninsured motorist insurance claim filed against his employer following a car accident. We affirm the judgment of the trial court. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/kevin_e_evans_et_al_v._ricki_k._croxdale_et_al..pdf.

NOTE: This is a pretty straight forward opinion.  It offers quick guidance on uninsured motorist claims and amended pleading under Tennessee law.  

New Case Concerning Motions to Dismiss Under Rule 12.02(6) of the Tennessee Rules of Civil Procedure and When a Duty Arises in Negligence Cases

The Tennessee Court of Appeals recently released its decision in Thompson v. Southland Constructors, No. M2019-02060-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2020).  The syllabus from the slip opinion reads:

This action involves a tragic accident resulting in the death of Tommy Smith (“Decedent”), who was working as a plumber connecting a sewer line when the trench he was in collapsed and crushed him. Decedent’s children (“Plaintiffs”) sued, among others, Focus Design Builders, LLC, general contractors for the building project, alleging negligence. The trial court granted Focus Design’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6). The trial court held that Focus Design did not owe a duty of reasonable care under the circumstances because Decedent’s death was unforeseeable. We hold the complaint states a cause of action for negligence and consequently reverse the judgment of the trial court.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/thompson.melanie.opn_.pdf.

NOTE: This is a great opinion because it gives us a good overview of the current state of the law on motions to dismiss under Rule 12.02(6), Tenn. R. Civ. P., and when a duty arises in negligence cases. 

New Case on Who Is Able to Bring a Tort Claim on Behalf of a Decedent Who Died Before Suit Is Filed from Causes Unrelated to the Tort Action in Question

The Tennessee Court of Appeals recently released its opinion in Jones v. Martin, No. W2019-02047-COA-R3-CV (Tenn. Ct. App. Nov. 20, 2020).  The syllabus from the slip opinion reads:

Appellant and her son were driver and passenger, respectively, in a motor vehicle when they were struck in the rear by a vehicle driven by one of the Appellees. Appellant’s son later died from medical causes not related to the accident. Appellant then filed suit for injuries in her own name and as next of kin of her deceased son. Following arguments by the Appellees that Appellant had no authority to prosecute the case on behalf of her son, the trial court dismissed the claim corresponding to the injuries allegedly sustained by the son. Appellant then took a nonsuit of her remaining claim. This appeal concerns initially whether or not the judgment on appeal is a final judgment and, if so, the application of Tennessee Code Annotated section 20-5-102 to this case. Tennessee Code Annotated section 20-5-102, which provides for the survival of actions despite the death of the person wronged, specifies that the right of action shall pass “in like manner as the right of action described in § 20-5-106.” By way of that referenced authority, it is clear that a next of kin is one of the persons authorized to bring an action that survives under section 20-5-102. For the reasons set out herein, we conclude that we have jurisdiction to hear this appeal and reverse the trial court’s dismissal. 

Here is a link to the slip opinion:

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

NOTE: As the title of this blog post indicates, this opinion does a good job of explaining who may bring a tort claim on behalf of a decedent who dies before suit is filed from causes unrelated to the tort action in question.  Pay attention to footnote 4 and its citation to Tenn. Code Ann. sec. 20-5-104; a prerequisite to being able to revive the tort suit via the deceased's heirs is that it be shown that no person will administer the deceased's estate.   (Be mindful, too, that any recovery made in instances like the one presented in this case is property of the deceased's estate.)  

New Health Care Liability Action Opinion: Dismissal of Claim Against Provider Upheld on Appeal Due to Improper Service of Presuit Notice of the Claim to the Provider

The Tennessee Court of Appeals recently released its opinion in Webb v. Trevecca Center for Rehabilitation and Healing, LLC, No. No. M2019-01300-COA-R3-CV (Tenn. Ct. App. Nov. 10, 2020).  They syllabus from the slip opinion reads:

This appeal concerns the dismissal of a health care liability action against a long-term care facility. The trial court dismissed the complaint without prejudice because the plaintiff did not provide the long-term care facility with pre-suit notice of her claim as required by statute. The plaintiff argues that the notice she mailed to the facility’s administrator at the facility’s business address satisfied the statutory requirement. Because her letter was not directed to the facility, we affirm the dismissal of her complaint. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/webb.judy_.opn_.pdf.

NOTE: This opinion emphasizes the importance of proper service of presuit notice of a potential health care liability action claim.  It is very difficult to do that a lot of the time due to one not being able to determine what entity is the correct one to send notice to before suit is filed.  However, in this instance, it appears that the procedure set out under Tenn. Code Ann. sec. 29-26-121(a)(3)(B)(ii), which governs notice that must be sent to "a health care provider that is a corporation or other business entity," was not followed.        

New Opinion on Prejudgment Interest in Uninsured Motorist Cases: Propriety of Prejudgment Interest to Be Determined by the Trial Court on Remand

The Tennessee Court of Appeals recently released its opinion in Lewis v. State Farm, No. W2019-01493-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2020).  The syllabus from the slip opinion reads:

Appellant was injured in an automobile accident, and a jury found that an unknown motorist was 100% at fault and awarded damages in favor of Appellant. Thereafter, the trial court denied Appellant prejudgment interest on its finding that Appellant’s uninsured automobile insurance policy with Appellee State Farm Mutual Automobile Insurance Company precludes an award of prejudgment interest. We conclude that the policy language “all damages” is sufficiently broad to include prejudgment interest. However, because the award of prejudgment interest is an equitable consideration within the discretion of the trial court, we decline to address Appellant’s issue concerning whether prejudgment interest is necessary and equitable in this case. This question is remanded to the trial court. Vacated and remanded.

Here is a link to the slip opinion:

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

NOTE: This opinion offers a good analysis of prejudgment interest in a uninsured-motorist case.  

New Health Care Liability Action Opinion: Dismissal of Plaintiff's Case (Erroneously?) Upheld on Appeal Due to Defective HIPAA-compliant Authorizations

Yesterday, the Tennessee Court of Appeals released its opinion in Dial v. Klemis, No. W2019-02115-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2020).  The syllabus from the slip opinion reads:

This is a health care liability case. The defendants moved to dismiss the complaint due to the plaintiff’s failure to comply with Tennessee Code Annotated section 29-26- 121(a)(2)(E), arguing that the plaintiff had not provided them HIPAA compliant medical authorizations allowing them to receive medical records from the other providers being sent statutorily-required pre-suit notice. The trial court agreed with the defendants’ argument and, upon observing that the plaintiff was not entitled to rely on the 120-day extension of the statutory limitation period pursuant to Tennessee Code Annotated section 29-26-121(c), held that the complaint was time-barred and should be dismissed with prejudice. Discerning no error, we affirm.

Here is a link to the opinion:

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

NOTE: I think this opinion missed something, respectfully, because the defendants could have actually gotten the decedent's protected health information without a authorization at all as part of their "health care operations."  Tony Duncan, New Health Care Liability Action Opinion: Trial Court's Dismissal of Action as Time-barred Overturned on Appeal, TONY DUNCAN L. BLOG, Note (Jul. 3, 2018, 3:58 PM), http://theduncanlawfirm.blogspot.com/2018/07/new-health-care-liability-action.html.

New Motor Vehicle Collision Case: Jury Verdict for Defendant Upheld on Appeal

The Tennessee Court of Appeals recently rendered its decision Justice v. Gaiter, No. M2019-01299-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a motor vehicle accident in a shopping center complex during the Christmas season. Plaintiff appeals the jury’s finding that he was sixty percent at fault for the accident and the trial court’s denial of his motion for a new trial. Finding that the jury’s apportionment of fault is supported by material evidence and that the trial court did not abuse its discretion in denying the motion for a new trial, we affirm the trial court in all respects.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/justice.james_.opn_.pdf.

NOTE: There is a lot going on in this opinion for it to be only six pages long: namely, comparative fault, motions for new trial, the material evidence rule, the thirteenth juror rule, abuse of discretion, etc.  Primarily, what I took from it is the discussion of the material evidence rule, which is great in my opinion.  For that reason alone, this is a must-read decision for any lawyer who has handles auto cases governed by Tennessee substantive law.  

Also, I think the plaintiff left out a potentially culpable person by not suing the driver who waived the defendant into the lane, which probably cost him a win here.  That could have been accomplished via the discovery rule or Tenn. Code Ann. sec. 20-1-119 (the comparative fault joinder statute), even if that driver was unknown (with -119 being the more likely way to have done that).  Here is why: while a "phantom" tortfeasor or a "John Doe" is generally not allowed in Tennessee under our system of modified comparative fault, see Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 786 (Tenn. 2000) ("[W]e conclude that the defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119 . . . ."), they are allowed in auto cases, see, e.g., Breeding v. Edwards, 62 S.W.3d 170, 171 (Tenn. Ct. App. 2001) (allowing fault to be attributed to an unknown tortfeasor in a auto case and a monetary recovery for that fault to be made from plaintiff's underinsured-motorist insurance (UIM)); Marler v. Scoggins, 105 S.W.3d 596, (Tenn. Ct. App. 2002) (allowing fault to be attributed to a John Doe in an auto case under Tennessee law even if there is no UIM to pay plaintiff for fault attributed to the Doe).  Doing that would have made a difference in the outcome here because under our state's system of modified comparative fault, a plaintiff may only recover if he is 49% at fault of less.  Had the driver been made a party and been found to be more than 10% at fault, which is probable, the plaintiff would have recovered something (minus his fault, of course (which would probably not have been 60% and would have been less than 50% had the driver been added as a John Doe party-defendant)).  

Trial practice is not easy, folks.  There are so many moving parts in a case at times that it is like herding cats. Lord willing, me all make our way.  

P.S.  And, of course, if the driver's identity was known (or became known), the plaintiff could have added her as a named party-defendant and the fault calculations above would probably have played out the same way in my opinion.  Assuming the addition was timely done.  

New Case on Service of Leading Process and the Tolling of the Statute of Limitations: Dismissal of the Case Vacated and Remanded Because Trial Court Did Not Consider Enlargement of Time to Effect Service of Leading Process First

The Tennessee Court of Appeals has released its opinion in Stafford v. Lucas, No. W2019-01438-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020).  The syllabus from the slip opinion reads:

The trial court dismissed this lawsuit for failure to timely serve the defendants after finding that it was “unaware of an exception to this rule or authority to expand the time for service.”  Prior to the hearing, however, the plaintiffs filed a motion for enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure. The trial court did not specifically address this motion. As such, the trial court’s dismissal of the complaint is vacated, and this matter is remanded with instructions for the trial court to rule on plaintiffs’ motion for an enlargement of time. 

Here is a link to the opinion:

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

NOTE: This case is a "MEMORANDUM OPINION" and "shall not be published, and shall not be cited or relied on for any reason in any unrelated case."  Stafford, No. W2019-01438-COA-R3-CV, slip op. n.1, at 1 (quoting Tenn. Ct. App. R. 10).  However, even with that admonition in mind, this is still a must-read opinion for any lawyer who practices in Tennessee state courts.  Here's why: even though this case appears to be a "health care liability action," compare id., passim, with T.C.A. § 29-26-101(a) (LEXIS through 2020 Reg. Sess.) (defining a "health care liability action" in Tennessee to be an a civil action against a health care provider or providers arising from an injury caused by the provision of, or failure to provide, health care services to a person), the enlargement of time dealt with herein applies to all cases in Tennessee trail courts of record.  Tenn. R. Civ. P. 1 (2005) (noting that "the Rules of Civil Procedure shall govern procedure in the circuit or chancery courts in all civil actions, whether at law or in equity, and in all other courts while exercising the civil jurisdiction of the circuit or chancery courts" (emphasis added)).  And, of course, the authorities cited in this opinion can be cited in other cases based upon their respective weight of authority.  See generally Tenn. Sup Ct. R. 4(G) (2015) (discussing weight to be given to Tennessee decisions).  

To cut to the chase, this case deals with the enlargement of time to effect service of leading process upon a defendant.  Stafford, supra, passim.  While the plaintiff in this case could have made things a lot easier on the trial court by paying better attention to the service-of-process issue and not letting the issue arise, I think this opinion is correctly decided.  Assuming the plaintiff can meet the criteria to establish excusable neglect upon remand, see id. at 6, the case should be allowed to proceed for at least two reasons: first, continued litigation in and of itself is not prejudicial to a defendant in Tenn., see Henry v. Goins, 104 S.W.3d 475, (Tenn. 2003) ("Simply having to proceed to trial does not constitute prejudice, nor does the mere passage of time."  (Citations omitted.)); second, Tennessee has a long-established policy of settling cases upon their merits and not upon procedural technicalities, Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975) (noting that civil actions are to be determined upon their merits and not on procedural technicalities); accord Karash v. Piggott, 530 S.W.2d 775, 777 (Tenn. 1975) (same); Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996) (same); Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn. 2001) (same); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 422 (Tenn. Ct. App. 2004) (same); Jones v. Prof'l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 572 (Tenn.2006) (same); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 432 (Tenn. 2011) (same); see also Abraham Caruthers, History of a Lawsuit § 1, at 2 (Sam B. Gilreath & Bobby R. Aderholt eds., 8th ed. 1963, The W.H. Anderson Co.) (discussing, inter alia, the reasons our state's courts exist). 

New Health Care Liability Action Opinion: Trial Court's Denial of Sanctions Sought by Defendant-Physician Against Other Defendants for the Latter's Failure to Support Claim Against Defendant-Physician with Competent Expert Testimony Under Tenn. Code Ann. sec. 29-26-122 Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Smih v. Outen, No. W2019-01226-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2020).  The syllabus from the slip opinion reads:

In this health care liability action, the defendant pharmacists were sued for dispensing the wrong medication to the plaintiff. The defendants then alleged comparative fault against Appellant doctor, who was treating the patient. The plaintiff amended her complaint to allege fault against the doctor. However, the doctor was eventually granted summary judgment when no expert was produced to support the claim. Appellant doctor then sought sanctions pursuant to Tennessee Code Annotated section 29-26-122(d)(3) on the basis that, inter alia, the defendants’ certificate of good faith was supported by the written statement of an incompetent expert witness. The trial court denied the motion for sanctions. We affirm. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/smithdebraopn_0.pdf.

NOTE: This opinion analyzes the effects of a defendant failing to comply with Tenn. Code Ann. sec. 29-26-122.  It is a must-read opinion for any lawyer who handles health care liability actions (f.k.a. medical malpractice cases) governed by Tennessee law.  

P.S. On February 5, 2021 this opinion was designated as "Not for Citation" by the Tennessee Supreme Court under its Rule 4.  

New Health Care Liability Action Opinion: Summary Judgment and Multiple Defendants; Respondeat Superior Claim to Be Considered upon Remand

The Tennessee Court of Appeals issued its opinion yesterday in Kidd v. Dickerson, No. M2018-01133-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2020).  The syllabus reads:

In this health care liability action, the surviving daughter of a woman who died as a result of a stroke brought suit as executrix of her mother’s estate and as her next-of-kin against two physicians and their practice group as well as a pharmacist who filled a prescription for her and the pharmacist’s employer. Plaintiff alleged that the death occurred due to a stroke her mother suffered as a result of taking the drug Pradaxa, which had been prescribed by the defendant doctors and filled by the defendant pharmacist and the defendant pharmacy (the “pharmacy defendants”). The trial court granted summary judgment to the pharmacy defendants on all claims, holding that the proof submitted by Plaintiff was insufficient to establish the element of causation; the court granted summary judgment to the defendant doctors on Plaintiff’s claims that their negligence caused and hastened the decedent’s death, and the claim that the doctors did not have the decedent’s informed consent to administer Pradaxa; the court granted summary judgment to one doctor on all claims; and the court denied summary judgment to one doctor and the practice group on the remaining claims. Plaintiff appeals the grant of summary judgment to the pharmacy defendants and the doctors; the remaining doctor and practice group appeal the denial of their motions for summary judgment on the remaining claims. Upon our de novo review, we affirm the grant of summary judgment to the pharmacy defendants; we affirm the grant of summary judgment to Dr. Thomas Farmer in toto; we affirm in part the grant of partial summary judgment to the doctors and their group and remand for further proceedings on whether the nurse practitioner’s actions caused Ms. Grimes’ injury and suffering during the period of October 20 until she was stabilized in the hospital, as well as whether the remaining doctor and practice group are liable for that negligence under a respondeat superior theory. 

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/kidd.teresa.opn_.pdf

NOTE: This opinion is long for a state-court opinion.  However, it is a good read if one handles health care liability cases (f.k.a. medical malpractice cases) governed by Tennessee substantive law.  

New Health Care Liability Action Opinion: Defendant-Physician Blamed Nurses Without Pleading Their Comparative Fault as Required by Law, Which Necessitated a New Trial, Etc.

The Tennessee Court of Appeals released its opinion today in Kanipe v. Patel, No. E2019-01211-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a health care liability lawsuit. In 2013, Sandra Kanipe . . . died from an undiagnosed aortic dissection while in the care of Dr. Pragnesh Patel, M.D. . . .  Travis Kanipe . . . , Ms. Kanipe’s son, sued Dr. Patel in the Circuit Court for Hamblen County . . . .  After a trial, the jury found in favor of Dr. Patel. The Trial Court granted Mr. Kanipe’s motion for a new trial on grounds that Dr. Patel had, through his testimony, shifted blame to a non-party despite having never pled comparative fault. After a second trial, the jury found in favor of Mr. Kanipe. Dr. Patel appeals, arguing among other things that he never shifted blame. From our review of the record, we conclude that Dr. Patel did, in fact, shift blame to a non-party when he testified in the first trial that the nurses never notified him of Ms. Kanipe’s ongoing chest pain. In view of our Supreme Court’s holding in George v. Alexander, 931 S.W.2d 517 (Tenn. 1996), the Trial Court did not abuse its discretion in ordering a retrial. We affirm the judgment of the Trial Court. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/kanipe_v._patel_e2019-01211.pdf

NOTE: This is a must-read opinion for any lawyer who handles tort cases governed by Tennessee substantive law where our system of modified comparative fault comes into play.  Oftentimes, defendants will try to shift blame (and fault) to nonparties in an attempt to avoid liability without complying with Rule 8.03 of the Tennessee Rules of Civil Procedure (which requires facts to be pleaded to support such a defense as well as the identity or description of any alleged nonparty tortfeasor).  As this opinion reminds us, Rule 8.03 is to be "strictly adhered to" by the courts.  Kanipe,  No. E2019-01211-COA-R3-CV, slip. op. at 14 (emphasis added) (citations omitted).    

This opinion also offers up a good explanation of Tennessee's peer review privilege and the "thirteenth juror" rule.  Id. at 15–18.  

New Tennessee Health Care Liability Action Opinion (Nursing Home): Case Remanded to Trial Court to Determine Whether an Agreement to Arbitrate Was Formed Under Federal Arbitration Act

The Tennessee Court of Appeals recently issued its opinion in Manley v. Humboldt Nursing Home, Inc., No. W2019-00131-COA-R3-CV (Tenn. Ct. App. Sept. 17, 2020).  The syllabus from the slip opinion reads:

After a nursing home resident died, her daughter filed a wrongful death action against the facility. The nursing home moved to compel arbitration based on an arbitration agreement signed by the daughter when her mother was admitted to the facility. The daughter claimed that she lacked authority to sign the arbitration agreement for her mother. The trial court agreed and denied the motion to compel. On appeal, we conclude that the Federal Arbitration Act required the trial court to resolve the issue of whether an agreement to arbitrate had been formed. Because the nursing home failed to establish an agreement to arbitrate had been formed with the patient, we affirm. 

Here is a link to the slip opinion:

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

NOTE: This opinion, like my prior post, offers a good explanation of arbitration in Tennessee.  It also offers a good discussion of agency (implied and apparent).  A good read.  

New Tennessee Health Care Liability Action Opinion (Nursing Home): Trial Court's Denial of Motion to Compel Arbitration Reversed on Appeal

The Tennessee Court of Appeals recently released its opinion in Stokes v. Allenbrooke Nursing and Rehabilitation Center, LLC, No. W2019-01983-COA-R3-CV (Tenn. Ct. App. Sept. 15, 2020).  The syllabus reads:

In this health care liability action, the defendant moved to compel arbitration based upon an agreement entered into between the parties that provided for binding arbitration. The plaintiff opposed the defendant’s motion, taking specific umbrage at a provision in the parties’ agreement that indicated the expenses of arbitration would, by default, be subject to a [fifty-fifty] split. Contending that he was unable to pay for arbitration expenses, the plaintiff opposed enforcement of the arbitration agreement by advancing a cost-based unconscionability defense. Although the defendant acted to relieve the plaintiff of this asserted burden by offering to pay for the costs of arbitration, the trial court held that the subject fee-splitting provision in the agreement was unconscionable and denied the motion to enforce the agreement and compel arbitration. For the reasons stated herein, while we agree with the trial court that, under the facts of this case, the fee-splitting provision was unconscionable, we hold that the trial court erred in denying the defendant’s motion to compel arbitration.

Here is a link to the slip opinion:

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

NOTE: This opinion offers a good explanation of arbitration agreements in Tennessee and whether they are enforceable or not.  It also discusses severability in contract interpretation.  It is worth reading in my opinion.  

New Case on the Relation Back of Amended Complaints Under Rule 15 of the Tennessee Rules of Civil Procedure

Today, the Tennessee Court of Appeals issued its opinion in Hensley v. Stokely Hospitality Properties, Inc., No. E2019-02146-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2020).  The syllabus from the slip opinion reads:

In this premises liability case, the plaintiff appeals the trial court’s dismissal of her claims against a hotel based on her failure to satisfy the notice requirements of Tennessee Rule of Civil Procedure 15.03 for amending her complaint to add a new party. We affirm.

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/hensley_v._stokely_e2019-02146.pdf

NOTE: This is a darn good opinion by Judge Davis.  While this is a premises liability case, the opinion explains the relation back of amended complaints under Rule 15.03 (as well as motions to dismiss under Rule 12 and motions for summary judgment under Rule 56) of the Tennessee Rules of Civil Procedure.  This is a must-read opinion for any lawyer who practices civil litigation in Tennessee state courts.  

As a practical matter, I have found that good ways to discover who owns (or controls) realty are: (1) check the property records (deeds, leases, etc.); (2) check business licenses with the county clerk (what name is the business operating under); (3) check with the county assessor's office to see who is paying the personal and real property taxes, and (4) check those names with the Tennessee Secretary of State's records (via the Secretary's website).  In Tennessee, one should be able to determine who owns and controls the realty in question in a premises liability case by doing these things.  

Dismissal of Spouse's Loss-of-consortium Claim Upheld on Appeal Because Notice of That Claim Was Not Filed with the Division of Claims and Risk Management Prior to Suit Being Filed

The opinion of Kampmeyer v. State, No. M2019-01196-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2020) was released today by the Tennessee Court of Appeals.  The syllabus from the slip opinion reads:

Appellants, Husband and Wife, filed a complaint for damages, including Wife’s loss of consortium claim, with the Tennessee Claims Commission. The State filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss Wife’s loss of consortium claim because she did not file notice of her claim with the Division of Claims Administration within the applicable statute of limitations. The Claims Commission dismissed Wife’s claim for failure to comply with the notice requirement. See Tenn. Code Ann. § 9-8- 402(b). Discerning no error, we affirm. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/kampmeyer.steven.opn_.pdf

NOTE: The takeaway from this decision: notice of a spouse's derivative loss-of-consortium claim must be filed with the Division of Claims and Risk Management before suit is filed for it and the injured spouse's claim.    

New Opinion on Vicarious Liability and the Tennessee Saving Statute

The Tennessee Court of Appeals released its opinion today in Helyukh v. Buddy Head Livestock & Trucking, Inc., No. M2019-02301-COA-R9-CV (Tenn. Ct. App. Aug. 28, 2020).  The syllabus from the slip opinion reads:

The dispositive issue in this personal injury action is whether the claims against the defendant trucking company for the tortious acts of its employee/truck driver are time-barred under Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010) or saved by the commencement of a new action under Tenn. Code Ann. § 28-1-105, Tennessee’s “savings statute.” After the plaintiffs commenced the new action, the company filed a motion to summarily dismiss the complaint, asserting the plaintiffs’ claims against the employee were procedurally barred before the new action was commenced. The trial court denied the motion because the first action was instituted before the plaintiffs’ right of action against the employee became extinguished by operation of law, and the second complaint was timely filed pursuant to the savings statute. For the same reason, we affirm and remand for further proceedings.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/volodymyrhelyukh.opn_.pdf

NOTE: This is a good opinion to read about vicarious liability and the saving statute.  The key to the plaintiffs' prevailing on appeal here is that the vicarious liability of the principal-defendant was pleaded against it before the one-year statute of limitations expired in the first action.  See Abshure, 325 S.W.3d at 100; id. at 112.  That is why they were able to use the saving statute to refile against the principal-defendant in this case.  

Also, because the plaintiffs had not effected service of leading process upon Heller in the first suit, they could have sent a copy of the complaint with the notice of voluntary dismissal and the saving statute would have preserved their claims against him for a year after entry of the order dismissing him from the first action.  Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 711 (Tenn. 2002).

New Opinion on Hospital Charges and Their Reasonableness

The Tennessee Court of Appeals released its opinion in Blount Memorial Hospital v. Glasgow, No. E2019-00776-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2020).  The slip opinion reads:

This appeal arises from a hospital’s action against a patient to recover payment for medical services. After a bench trial, the court determined there was not an enforceable contract between the parties, but the hospital was entitled to recover the value of its services under a quantum meruit theory and ruled that the charges billed to the patient represented the actual value of the hospital’s services. The court based its determination on the testimony of the hospital’s witness that, because the rates that a hospital could charge were set by Medicare, the amount charged to the patient was comparable to what other hospitals would charge for the same or similar services. The patient appeals and asks this court to consider whether the hospital proved by a preponderance of the evidence that the amount it charged for medical services represented the actual value of those services. We affirm the trial court’s decision.

Here is the link to the opinion:

http://www.tncourts.gov/sites/default/files/blount_memorial_hospital_v._glasgow_e2019-00776.pdf

NOTE: This case offers a good explanation as to the value of medical services provided.  

New Health Care Liability Action Opinion: Directed Verdict in Favor of Hospital on Direct Negligence Claim Upheld on Appeal

The Tennessee Court of Appeals recently issued its decision Surber v. Mountain States Health Alliance d/b/a Johnson City Medical Center, No. E2019-01494-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2020).  The syllabus from the slip opinion reads:

This is a medical malpractice action in which the plaintiff filed suit against the hospital for treatment he received following an eye injury, raising claims of direct and vicarious liability. The case proceeded to a jury trial, at which the court granted a directed verdict on the claim of direct liability at the close of the plaintiff’s proof. The plaintiff filed this appeal, claiming the trial court erred in limiting his expert witness testimony. We affirm.

The link to the majority opinion is here:

http://www.tncourts.gov/sites/default/files/surber_v._mountain_states_e2019-01494.pdf

Judge Swiney's concurring opinion is here:

http://www.tncourts.gov/sites/default/files/surber_v._mountain_states_e2019-01494_b.pdf

NOTE: This case offers a good discussion of direct hospital liability under a negligence theory.  This difference between this case and Barkes v. River Park Hospital, Inc., 328 S.W.3d. 829 (Tenn. 2010) is explained herein: it is nuanced, but worth noting: the standard of care is not the same thing as hospital rules and regulations (although the rules and regulations can be in accord with the standard of care required of a hospital).  

New Health Care Liability Action Opinion: Denial of Motion to Strike Upheld on Appeal; Dismissal of the Case, However, Was Reversed

The Tennessee Court of Appeals has released its opinion in Eskridge v. NHC Healthcare Farragut, LLC, No. E2019-01671-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2020).  The syllabus from the slip opinion reads:

This appeal arises from a healthcare liability action. In these proceedings, the plaintiff filed a complaint against the defendants in January 2018. The Trial Court issued summonses the following day, and the plaintiff’s attorney took the summonses to serve through private process instead of through the local sheriff’s department. Service was subsequently completed on the defendants’ registered agent eighty-nine days after issuance of the summonses. The defendants filed an answer raising as an affirmative defense that the defendants had not been properly served with process pursuant to Tennessee Rule of Civil Procedure 4. The returns for the original summonses were not filed with the Trial Court until January 2019. The plaintiff filed a motion to strike the defendants’ affirmative defense alleging that the defendants had not sufficiently pled it pursuant to Tennessee Rule of Civil Procedure 8.03. Thereafter, the defendants filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 4.01(3) and 12.02(4)-(5), alleging intentional delay of process, insufficient service of process, and insufficient process. The Trial Court denied the plaintiff’s motion to strike the affirmative defense and granted the defendants’ motion to dismiss. The plaintiff appeals. Upon a review of the record, we affirm the Trial Court’s denial of the plaintiff’s motion to strike but reverse the Trial Court’s grant of the defendants’ motion to dismiss. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/eskridge_v._nhc_e2019-01671.pdf

NOTE: This is the correct decision as to the motion to dismiss.  Defendants, as movants of that motion, had the burden of proving that the delay in service was intentional under Rule 4.01(3),  Tenn. R. Civ. P., Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 12, which they failed to do.  This is where one must be mindful of one of the common law maxims of pleading: "affirmanti, non neganti, incumbit probatio–the burden of proof rests upon him who affirms, not upon him who denies."  City Nat’l Bank v. Barnes, 51 S.W.2d 503, 504 (Tenn. 1932). 

Further, service of a summons within the ninety-day window of it effectiveness suffices; to hold otherwise would be to require a court to look into any service effected in less than ninety days that might otherwise not be prompt, etc.  See Tenn. R. Civ. P. 4.01, -.03; Fair v. Cochran, 418 S.W.3d 542, 546 (Tenn. 2013) ("[I]f [a plaintiff] establishes that [a defendant] was served within ninety days of [the issuance of the summons for that defendant], then [plaintiff's] lawsuit is not barred by the statute of limitations and may proceed.").  See also Holder v. Tennessee Judicial Selection Comm’n, 937 S.W.2d 877, 882 (Tenn. 1996) (noting that inferior courts in Tennessee must follow a "pronouncement of a superior court when it speaks directly on the matter before it, particularly when the superior court seeks to give guidance to the bench and bar" (emphasis added)); Barger v, Brock, 535 S.W.2d 337, 341 (Tenn. 1976) (noting same).  I am a little surprised that Fair, which is a SCOTN case, was not mentioned in this appeal.  

Additionally, it appears that the motion to strike should have been granted because the affirmative defense in question, Eskridge, No. E2019-01671-COA-R3-CV, slip op. at 9–10, did not comply with Rule 8.03, Tenn. R. Civ. P., because it was mot supported by any pleaded facts.  Tenn. R. Civ. P. 8.03 (requiring, inter alia, facts to be pleaded in support of any affirmative defense); George v. Alexander, 931 S.W.2d 517, (Tenn. 1996) ("Rule 8.03 is a prophylactic rule of procedure that must be strictly adhered to if it is to achieve its purposes."  (Emphasis added.)).

While I admire the defense's zeal here, their argument was just wrong.  See Fair, 418 S.W.3d at 546.  I am glad the Tennessee Court of Appeals reached the correct result by reversing the dismissal of the case.  (I also think any affirmative defense concerning service of leading process can be disposed of upon remand via partial summary judgment.  See id.)

P.S.  For purposes of information, Fair was one of my cases.  Plaintiff's counsel was kind enough to let me help them with the appeal to SCOTN, which we won.  Id. at 543.

P.P.S.  For a case involving intentional delay of service of a summons, read Estate of Butler v. Lamplighter Apartments, 278 S.W.3d 321 (Tenn. Ct. App. 2008).  

New Case on the Certification of Nonfinal Orders Under Rule 54 of the Tennessee Rules of Civil Procedure

The Tennessee Court of Appeals recently released its opinion in Blackburn v. McLean, No. M2019-00428-COA-R3-CV (Tenn. Ct. App. July 31, 2020).  The syllabus from the opinion reads:

This is a wrongful death healthcare liability action against two defendants, a hospital and an emergency room physician. Following extensive discovery and scheduling orders, the physician defendant filed a motion for summary judgment, and the hospital joined in the motion. The trial court granted each defendant partial summary judgment by dismissing 17 claims alleging the defendants breached standards of care. When the hospital filed its motion to summarily dismiss the remaining claims against it, the plaintiff filed a response and a motion to substitute his physician expert witness for a different expert witness. The defendants opposed the motion, and the trial court denied the motion to substitute the plaintiff’s expert witness. The court also summarily dismissed all remaining claims against the hospital, leaving only the claims against the emergency room physician for trial. Upon motion of the plaintiff, the court certified the summary dismissal of all claims against the hospital as a final judgment pursuant to Tenn. R. Civ. P. 54.02. This appeal followed. We have determined that the trial court erred in certifying the order as a final judgment under Tenn. R. Civ. P. 54.02 because, inter alia, any decision we make regarding the adjudicated claims against the hospital may encroach upon the unadjudicated claims to be tried against the emergency room physician. Moreover, there is no basis upon which to conclude that an injustice may result from the delay in awaiting adjudication of the entire case. Therefore, there is a just reason for delaying the expedited appeal of the summary dismissal of all claims against the hospital. Accordingly, we vacate the trial court’s order certifying the judgment as final under Rule 54.02 and remand for further proceedings. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/blackburn.barry_.opn_.pdf

NOTE: There is a lot going on in this opinion.  However, the quick takeaway from it is that trial courts need to be careful when certifying nonfinal orders as final under Rule 54.02, Tenn. R. Civ. P.  The Tennessee Court of Appeals has been focused on this issue over the last few years because it has dealt with it in a number of cases where trial courts have erred in certifying nonfinal orders as final so that an appeal can be taken while a case is pending. This is a good opinion to read to understand the current state of the law on this issue.  

New Premises Liability Case: Summary Judgment for the Defense Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Chittenden v. BRE/LQ Properties, LLC, No. M2019-01990-COA-R3-CV (Tenn. Ct. App. July 15, 2020).  The syllabus from the slip opinion reads:

This is a premises liability action arising from an injury suffered by a guest who slipped on ice in the parking lot of a hotel. The plaintiffs appeal the trial court’s grant of summary judgment to the defendant. Upon a thorough review of the record, we conclude that there is no dispute of material fact and that summary judgment in favor of the defendant was properly granted; accordingly, we affirm.

Here is a link to that opinion:

http://www.tncourts.gov/sites/default/files/chittenden.geoge_.opn_.pdf

NOTE: The ice that caused the fall was the result of a snow storm.  See Chittenden v. BRE/LQ Properties, LLC, No. No. M2019-01990-COA-R3-CV, slip op. at 1–2 (Tenn. Ct. App. July 15, 2020).  While I haven not seen the operative complaint in this case, since it was venued here in Nashville, it probably would have behooved the plaintiffs to have pleaded a negligence per se claim due to a violation of a local code provision, to wit:

     It shall be the duty of every owner or proprietor of any dwelling house, business house or other house abutting on any public street, square or avenue within the fire district to remove or cause to be removed from the sidewalk immediately in front of his premises all snow and ice which may each day accumulate thereon.

The Code of the Metro. Gov't of Nashville and Davidson County, Tenn. § 13.32.040 (2017) (emphasis added), https://library.municode.com/tn/metro_government_of_nashville_and_davidson_county/codes/code_of_ordinancesnodeId=CD_TIT13STSIPUPL_DIVIIURSEDIRE_CH13.32STSIRE_13.32.040SNICREWNRE; but see Shaw v. Metro. Gov't of Nashville & Davidson Cnty., 596 S.W.3d 726, 734–39 (Tenn. Ct. App. 2019) (discussing when negligence per se applies as to the violation of a municipal code), no app.

Lastly, this slip opinion has been designated as a memorandum opinion and may not be cited or relied upon as authority in any other case.  Chittenden, slip op. at 1, n.1 (citing Tenn. Ct. App. R. 10).  However, this opinion may, obviously, still be used to aid one is doing research on the law of premises liability in Tenn.  

 

New Wrongful Death Case: Application of the Statutory Cap on Noneconomic Damages by the Trial Court Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Davis v. 3M Co., No. M2018-02029-COA-R3-CV (Tenn. Ct. App. June 30, 2020).  The syllabus from the slip opinion reads:

In this wrongful death action, the plaintiff, the decedent’s spouse, asserted claims against multiple defendants. The plaintiff settled with all but one of the defendants prior to trial, and the settling defendants were dismissed from the case. At trial, the sole remaining defendant asserted the comparative fault of the decedent and the settling defendants. The jury assigned percentages of fault to the decedent, the defendant, and the settling defendants but returned a verdict in favor of the plaintiff. The jury found noneconomic damages that, when reduced by the percentage of the decedent’s fault, exceeded the statutory cap. So the trial court entered a judgment against the defendant based on its percentage fault as applied to the statutory cap. On appeal, the plaintiff argues that the statutory cap was incorrectly applied. We affirm. 

Here is a link to the opinion:

http://www.tncourts.gov/sites/default/files/davis.lois_.opn_.pdf

NOTE: Respectfully, I think this opinion is per incuriam for at least one very salient reason: the cap should have been 1.5 million and not $750,000.00 because there were two party-plaintiffs.  See Yebuah v. Ctr. for Urological Treatment, PLC, No. 2018-M2018-01652-COA-R3-CV, 2020 Tenn. App. LEXIS 250, at *2–3 (Tenn. Ct. App. May 28, 2020)(no Tenn. R. App. P. 11 application filed as of July 1, 2020) (affirming trial court's application of the statutory cap on noneconomic damages to each plaintiff); OD'neal Baptist Mem'l Hosp.-Tipton, 556 S.W.3d 759, 761 (Tenn. Ct. App. 2018) (noting that a child's surviving parents were two party-plaintiffs in a wrongful death action filed for the wrongful death of the parents' child).  

New Case on Attorney-Client Privilege: Wife's Claim of Privilege Disallowed Due to the Presence of a Third Party While She Spoke with Attorneys

The Tennessee Court of Appeals recently issued its opinion in Pagliara v. Pagliara, No. M2019-01397-COA-R9-CV (Tenn. Ct. App. June 29, 2020).  The syllabus from the slip opinion reads:

This interlocutory appeal arises from a pending divorce action. During discovery, the husband sought certain communications between the wife and her attorneys. During some of these meetings between the wife and her attorneys, a third party was present during discussions of whether the wife should report conduct by the husband to law enforcement. The wife could not identify which of the meetings the third party had been present and which she had not. Because the wife did not meet her burden of proof in demonstrating that attorney-client privilege applied to the communications, we affirm the judgment of the Trial Court.

Here is a link to the slip opinion:

 http://www.tncourts.gov/sites/default/files/pagliara.dana_.opn_.docx_.pdf

NOTE: This opinion offers a good discussion of the attorney-client privilege in Tennessee.  It is worth reading if you practice law Tennessee.