Civil Procedure: Motions to Revise Under Tenn. R. Civ. P. 54.02

Here's a good opinion from the Tennessee Court of Appeals that discusses motions to revise under Rule 54.02 of the Tennessee Rules of Civil Procedure, motions for summary judgment, and the Dead Man's Statute. The case is Johnson v. Tanner-Peck, LLC, W2008-00767-COA-R3-CV (Tenn. Ct. App. Sept. 25, 2009).

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Clarence%20E%20Johnson%20v%20Tanner-Peck%20LLC%20OPN.pdf

Affirmative Defense Must Be Properly Pleaded

The Court of Appeals recently issued its opinion in Allgood v. Gateway Health Sys., M2008-01779-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2009). The Court held that the defendant waived the affirmative defense of insufficiency of service or process by failing to comply with Rule 8.03 of the Tennessee Rules of Civil Procedure.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Wm%20and%20Rose%20Allgood%20v%20Gateway%20MC%20and%20Dr%20HOffman%20OPN.pdf

This opinion is consistent with prior decisions from the Tennessee Supreme Court regarding affirmative defenses and Rule 8.03. See generally Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000); George v. Alexander, 931 S.W.2d 517 (Tenn. 1996).

Federal Practice: Pleading Standards

It has recently become more difficult for a plaintiff to obtain justice in federal court. The difficulty arises due to more-stringent pleading requirements imposed upon plaintiffs, which must be met in order to survive a motion to dismiss. Read this article that describes the problem:

http://amlawdaily.typepad.com/amlawdaily/2009/09/the-battle-over-pleading-standards.html

The Release of Civil Claims in Tennessee

Here is a recent Court of Appeals' opinion that covers the law in Tennessee on the release of civil claims (i.e., settlements). The case is Peatross v. Shelby County, W2008-02385-COA-R3-CV (Tenn. Ct. App. Sept. 10, 2009).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/S%20Peatross%20Administrator%20of%20B%20Greenwood%20v%20Shelby%20County%20OPN.pdf

Trial Practice: The Mention of Insurance at Trial

We all know that a defendant's liability insurance coverage should not be intentionally interjected into a personal injury trial. However, what happens when it is mentioned incidentally? The Court of Appeals just issued an opinion on this subject in Steward v. Smith, No. M2009-00048-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2009). The Court of Appeals held that the mention of a defendant's liability insurance coverage will not per se cause a mistrial; nor does it necessitate a remittitur.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Emily%20Steward%20v%20William%20F%20Smith%20III%20OPN.pdf

Sept. 11, 2001

This is the eighth anniversary of the cowardly attacks upon our nation that occurred on September 11, 2001. This is a somber day in our history.

We must never forget those who died that day or their families. And may God continue to bless America.

Slip-and-Fall Case: Summary Judgment for Defendant Reversed

Recently the Court of Appeals issued its opinion in Masters v. Wal-Mart Stores East, L.P., No. M2008-02752-COA-R3-CV (Tenn. Ct. App. Sept. 1, 2009). This opinion does a good job of analyzing the law of summary judgment in a slip-and-fall case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Victoria%20and%20Michael%20Masters%20v%20WalMart%20Stores%20East%20OPN.pdf

New Governmental Tort Liability Act ("GTLA") Case

The Middle Section of the Tennessee Court of Appeals issued its opinion in Petty v. City of Whitehouse, No. M2008-02453-COA-R3-CV (Tenn. Ct. App. Sept. 1, 2009). The case offers an excellent explanation of the removal of a governmental entity's immunity for an injury caused by a dangerous or defective public improvement under Tennessee Code Annotated section 29-20-204, which is part of the Tennessee GTLA.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Sharon%20Petty%20v%20White%20House%20OPN.pdf

Tort Reform Won't Lower Healthcare Costs

Q: Will tort reform lower healthcare costs?

A: No.

Here's a link to a New York Times piece that you should read, to wit:

http://prescriptions.blogs.nytimes.com/2009/08/31/would-tort-reform-lower-health-care-costs/

Medical Malpractice: Summary Judgment for Defendant Affirmed

The Eastern Section of the Court of Appeals issued its opinion today in Harris v. Jain, No. E2008-01506-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2009). This is an unfortunate case involving adolescent suicide. However, the opinion offers good insight into the general qualifications of experts (e.g., when the common-knowledge exception is inapplicable) in medical malpractice case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Herb%20A%20Harris%20v%20Pradumna%20S%20Jain%20MD%20OPN.pdf

A Trial Lawyer's Prayer

Grant me the wisdom of Solomon; the patience of Job; and the aim of David.

Abe Lincoln

This is one of my favorite pics of Abe Lincoln. Take a look at this link to see what I'm talking about:

http://www.lawgallery.com/go.php?page=detail&pid=71&gid=2

Judicial Notice

The Tennessee Supreme Court just issued a criminal opinion that has a good discussion of judicial notice starting on page 4. The opinion is State v. Lawson, No. E2007-00330-SC-R11-CD (Tenn. Aug. 24, 2009).

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/093/SC%20State%20v%20Neddie%20Mack%20Lawson%20OPN.pdf

New Tennessee Products Liability Case

Today the Tennessee Supreme Court issued its opinion in Lincoln Gen. Ins. Co. v. Detroit Diesel Corp., No. M2008-01427-SC-R23-CV (Tenn. Aug. 21, 2009). The Court answered a certified question of law that it accepted from the United States District Court for the Middle District of Tennessee, to wit: Does Tennessee law recognize an exception to the economic loss doctrine under which recovery in tort is possible for damage to the defective product itself when the defect renders the product unreasonably dangerous and causes the damage by means of a sudden, calamitous event? The Court answered it in the negative.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/093/SC%20Lincoln%20General%20Ins%20v%20Detroit%20Diesel%20Corp%20et%20al%20Opn.pdf

Medical Malpractice: Summary Judgment for Defendant Reversed

The Tennessee Court of Appeals just issued its opinion in Givens, Administrator of the Estate of Jessica E. Givens v. The Vanderbilt Univ., M2008-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2009). Plaintiff never received Defendants' motion for summary, which was granted. Upon finding out what had happened, Plaintiff filed a motion to set aside the grant of summary judgment. Plaintiff's motion was was denied. This appeal ensued.

The Court of Appeals reversed the trial court and held that it abused its discretion in failing to grant Plaintiff's Rule 60.02 motion for relief.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Aubrey%20E%20Givens%20v%20Vanderbilt%20OPN.pdf

Medical Malpractice: Update

This post concerns Cox v. M.A. Primary and Urgent Care Clinic, No. M2007-01840-COA-CV (Tenn. Ct. App. Jan. 30, 2009). It was the subject of my February 2, 2009 post. Today the Tennessee Supreme Court granted M.A. Primary and Urgent Care Clinic and Austin Adams's application for permission to appeal. The new docket number is M2007-01840-SC-R11-CV.

Does a "Free Lunch" Still Exist?

Despite the old saying that "There's no such thing as a free lunch," some lawyers in Tennessee are enjoying one. Why? Because lawyers who do personal injury cases and who do not belong to the Tennessee Association for Justice ("TAJ") and the American Association for Justice ("AAJ") are getting a "free lunch." They simply do not support the organizations that support and improve the very system from which their livelihood is derived.

Moreover, lawyers who belong to the above-referenced organizations have access to a wealth of knowledge and experience to draw from that will benefit their clients.

So, if you're a Tennessee lawyer who handles personal injury cases, please consider joining TAJ and AAJ. Here's their Web sites:

http://www.tnaj.org/TN/

http://www.justice.org/cps/rde/xchg/justice/hs.xsl/default.htm

P.S. If you are already a member, ask someone you know who is not a member to join. Thanks!

Medical Malpractice: 2.78 Million Dollar Jury Verdict Upheld on Appeal

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Farley v. Oak Ridge Med. Imaging, P.C., No. E2008-01731-COA-R3-CV (Tenn. Ct. App. Aug. 13, 2009). The Court of Appeals upheld the jury's verdict for 2.78 million dollars because the defendants were negligent in diagnosing Mrs. Farley's breast cancer.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Robin%20Farley%20et%20al%20v%20Oak%20Ridge%20Med%20Imaging%20PC%20et%20al%20OPN.pdf

Chain-of-custody Case

This is a rare post on this blog because it involves a criminal case styled State v. Banks, No. 40600738, No. M2008-00044-CCA-R3-CD (Tenn. Crim. App. Aug. 11, 2009). Pages 9-12 of this slip opinion offer a good discussion on the law relating to the chain of custody of evidence offered at trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/093/State%20v%20John%20M%20Banks.pdf.

Sonia Sotomayor Confirmed

The U.S. Senate confirmed Sonia Sotomayor. She will be our newest U.S. Supreme Court associate justice. Here's a link to the story:

http://www.msnbc.msn.com/id/32312026/ns/politics-white_house?GT1=43001