Another Post-Hannan Summary Judgment Case

The Court of Appeals recently decided Condra v. Bradley County, Tenn., No. E2007-01290-COA-R3-CV (Tenn. Ct. App. Jan. 28, 2009). This case offers an analysis of when a court is to grant summary judgment to a party, particularly in a GTLA case.

Here's the link to the case:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/condrajopn.pdf

New Case on Hospital Lien Statute

The Court of Appeals has held that a hospital's lien is not reduced by one-third for plaintiff's attorney's fee when the recovery is sufficient to pay the hospital's lien and the attorney's fee. The case is Breazeale v. Hensley, E2008-00234-COA-R3-CV (Tenn. Ct. App. Jan. 28, 2009).

Here's the link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/091/breazealewrOPN.pdf

Inauguration Day

This is a proud and hopeful day for all Americans. Whether you voted for Mr. Obama or not, he is now our president. We need to support him as best we can.

May God continue to bless America.

Frivolous Medical Malpractice Cases Don't Make It To Trial

Here is a great article by Gerry Spence. This may be a re-post, but it's worth reading again.

http://www.chattanoogan.com/articles/article_64607.asp

A Great Web Site

The Traffic Accident Reconstruction Origin's Web site has many useful tools and a lot of information. I discovered it today.

Here's the link: http://www.tarorigin.com/index.html

Third Anniversary!

Wow! This blog is three years old. I started it in January 2006.  Thanks to all of you who read this blog on a regular basis. I appreciate it.

ABA Principles for Juries and Jury Trials

The American Jury Project, on behalf of the American Bar Association, promulgated the Principles for Juries and Jury Trials. This information -- especially Principle 11 -- might help improve the trial process, if it is shared with the judge before trial.

Here's the link, to wit:

http://www.abanet.org/juryprojectstandards/principles.pdf

New Med Mal Opinion

I spoke too soon about not posting anything till January. The Court of Appeals issued a medical malpractice opinion in Geesling v. Livingston Reg'l Hosp., LLC, No. M2007-02726-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2008).

The opinion stresses the importance of complying with the locality rule, which is codified at Tennessee Code Annotated section 29-26-115.

Here's the link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/Geesling%20v%20Livingston%20OPN.pdf

Happy Holidays!

Folks,

I'm not going to post anything till early January unless something major comes up. This is because I'm going to enjoy the holidays with my family and friends. I hope you can do the same.

Tony

Summary Judgment & Comparative Fault

The Middle Section of the Tennessee Court of Appeals issued its opinion in Allen v. Historic Hotels of Nashville, LLC, No. M2007-02423-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2008).

This opinion does an excellent job of describing the proper standard for granting summary judgment in Tennessee as recently refined by our Supreme Court in Hannan v. Alltel Publ'g Co., E2006-01353-SC-R11-CV (Tenn. Oct. 31, 2008) (see Nov. 8, 2008 post).

The opinion also does an excellent job of describing the interplay between comparative fault and Tennessee Code Annotated section 20-1-119.

This is a must-read opinion for any Tennessee litigator.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/AllenElmer.OPN.pdf

New Saving Statute Case

Talk about dodging a bullet!! Whew!

Plaintiff in this case originally filed suit in general session court and then voluntarily dismissed her lawsuit. Plaintiff's counsel sent two orders dismissing the case, one via facsimile and the other via U.S. mail. The judge signed both orders and both orders were entered by the clerk. However, only the order that was sent via U.S. mail, which was entered AFTER the order that was sent via facsimile, was returned to Plaintiff's counsel. Plaintiff's counsel relied upon the order he received for purposes of refiling the lawsuit under the saving statute, Tennessee Code Annotated section 28-1-105. The second lawsuit was refiled in circuit court. The trial court dismissed it as being time-barred under 28-1-105. The Court of Appeals reversed.

The case is styled Williams v. Cliburn, No. M2007-01763-COA-R3-CV (Tenn. Ct. App. Dec. 1, 2008). Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/Williams%20v%20CliburnOPN.pdf

P.S. Please note the precedential value of the case, which is noted in footnote 1 on page 2 of the slip opinion.

A Legal Citation Web Site

Here's a site to use if you don't have your Bluebook handy, to wit:

http://www.law.cornell.edu/citation/

Hope this helps. Good luck!

Medical Malpractice v. Common Law Negligence

The Court of Appeals recently issued its opinion in Cannon v. McKendree Village, Inc., No. M2008-00456-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2008). The opinion was written by Justice Lee, who was sitting as a special judge for this matter. It offers a good explanation of when a cause of action or claim sounds in medical malpractice or common law negligence. It also touches upon claims made under the Tennessee Adult Protection Act and res ipsa loquitur.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/CannonEugeneOPN.pdf

Happy Thanksgiving!

Happy Thanksgiving to you all. I hope you all have a great holiday.

Thanks for reading my blog.

An Unfortunate Result

The Tennessee Court of Appeals recently issued its opinion in Gilchrist v. Aristorenas, No. W2007-01919-COA-R3-CV (Tenn. Ct. App. Nov. 24, 2008). The Court of Appeals upheld the trial court's grant of summary judgment in favor of the defendant.

This case demonstrates the dangers and pitfalls of handling medical malpractice cases. The plaintiff's expert recanted an earlier plaintiff-friendly opinion during his deposition. This resulted, in part, in the plaintiff not having the necessary expert testimony to rebut the defendant's motion for summary judgment. Therefore, the motion for summary judgment was granted.

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/084/GilchristEEopn.pdf

Pretrial Discovery under the Tennessee Rules of Civil Procedure in General Sessions Court

Everyone knows that the Tennessee Rules of Civil Procedure do not apply in general session court, right? In fact, subject to three exceptions, Rule 1 says they do not apply. See Tenn. R. Civ. P. 1 (stating that the rules shall not apply to general sessions courts). But is there ever an occasion when the rules do apply, even if one of the three exceptions listed in Rule 1 aren't operative? The answer is yes. Discovery under Rules 26-34 and 36-37 may be had if a motion is filed and granted, to wit:

24-9-102. General sessions cases. —

(a) Discovery pursuant to Rules 26-37 of the Tennessee Rules of Civil Procedure, excluding physical and mental examinations under Rule 35 of such rules, may be taken in all civil cases pending in the courts of general sessions in the discretion of the court after motion showing both good cause and exceptional circumstances and pursuant to an order describing the extent and conditions of such discovery.

(b) Depositions of custodians of hospital and medical records may be taken in all cases pending before the judges of the courts of general sessions, under the same rules, regulations, and restrictions as in cases pending in the courts of record.

[Acts 1986, ch. 750, § 1; 1988, ch. 943, § 1.]

Hope this helps. Good luck!

Nashville/Davidson County Juror Info.

Here's a link to juror information from the Metro. Nashville & Davidson County Circuit Court Clerk's Office:

http://juryduty.nashville.gov/portal/page/portal/juryDuty/home

No Credit to Nonsettling Defendants

Are nonsettling defendants entitled to a credit for amounts paid by former defendants or non-parties? Short answer: no. So long as uninsured or underinsured motorist coverage is not in play, defendants receive no such credit. See generally Varner v. Perryman, 969 S.W.2d 410 (Tenn. Ct. App. 1997); Williams Holding Co. v. Willis, 166 S.W.3d 707 (Tenn. 2005); see also 17 John A. Day et al., Tennessee Practice Series: Tennessee Law of Comparative Fault § 11:3, at 213 (2nd ed. 2002); id. § 11:6, at 49 (Supp. 2007-08).

Another Summary Judgment Case

The Tennessee Supreme Court recently issued another opinion (with a separate concurring opinion) regarding summary judgment practice in this state. The case is Martin v. Norfolk Southern Ry. Co., E2006-01021-SC-R11-CV (Tenn. Nov. 14, 2008). The Court in Martin reiterates and reaffirms its recent holding in Hannan (see previous post), which is that summary judgment should only be granted when (1) the movant affirmatively negates an essential element of the non-movant's claim; or (2) the movant shows that the non-movant cannot prove an essential element of its claim at trial. Martin, E2006-01021-SC-R11-CV, slip op. at 6.

Here is a link to the majority opinion that was written by Chief Justice Holder:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/MartinTOPN.pdf.

Here is a link to Justice Koch's separate concurring opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/MartinTConcurOPN.pdf.

Summary Judgment in Tennessee

The Tennessee Supreme Court recently issued an important opinion on summary judgment in Hannan v. Alltel Publ'g Co., E2006-01353-SC-R11-CV (Tenn. Oct. 31, 2008). Justice Koch filed a dissenting opinion.

Here is a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/HannanOPN.pdf

Here is a link to Justice Koch's dissent:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/084/HannanOPN.pdf