Expert Witness Research

Here's a link to an expert witness research firm's Web site, to wit:

http://www.expertwitnessprofiler.com/
I got this link from the following blog:
http://www.dayontorts.com/expert-witnesses-new-expert-witness-background-search-service.html

Medical Malpractice: Yet Another Opinion on the Locality Rule Post-Shipley

The Tennessee Court of Appeals from the Western Section recently issued its opinion in Kennard v. Townsend, No. W2011-01843-COA-RM-CV (Tenn. Ct. App. Mar. 2, 2012). The summary from the opinion is as follows:

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Kennard v. Townsend, No. W2010–00461–COA–R3C, 2011 WL 1434625 (Tenn. Ct. App. April 14, 2011), in light of the Tennessee Supreme Court's decision in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In our previous review of this medical malpractice case, we upheld the trial court’s exclusion of Appellant’s medical expert under the locality rule, and further affirmed the trial court’s grant of summary judgment against the Appellant. Because the qualifications of Appellant’s expert were not considered in light of Shipley, and because the admission of expert testimony is a matter of discretion in the trial court, we vacate the orders excluding the testimony of the Appellant’s expert and the grant of summary judgment, and remand for reconsideration in light of the Shipley decision. Vacated and remanded.

(Emphasis and bolding in original.)

Here's a link to the opinion:

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

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

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

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

Here's a link to the majority opinion:

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

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

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

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

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

http://wfsu.org/gavel2gavel/archives/flash/viewcase.php?case=11-1148

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

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

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

Here's a link to the majority opinion:

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

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

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

Medical Malpracitce: New Opinion on Comparative Fault

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

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

Here's a link to the opinion:

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

Sixth Anniversary!

This month marks the sixth anniversary of this blog. It is hard to believe that six years have gone by so quickly. Wow! I want to take this opportunity to thank my readers for, of course, reading this blog; and for their nice comments and e-mails over the years. It is appreciated. I also want to look back at 2011, which was a good year. I was honored (and humbled) to have been selected to be a Mid-South Super Lawyer (which is a very prestigious honor) and a member in the invitation-only group known as The National Trial Lawyers. Thanks, again, to the readers of this blog. You make doing this very rewarding and fun for a boy from East Tennessee who likes to keep his nose in a book and go to court to help people out.

Medical Malpractice: Verdict for Plaintiffs Reversed Due to Lack of Proof of Proximate Cause

The Middle Section of the Tennessee Court of Appeals recently released its opinion in Wilson v. Americare Sys., Inc., No. M2011-COA-R3-CV (Tenn. Ct. App. Jan. 5, 2012). Here's the summary from the opinion:

Decedent’s next of kin filed this wrongful death action against an assisted living facility, two nurses, and the facility’s management company for failure to provide proper care and treatment. This appeal concerns only the jury verdict and judgment finding the management company directly liable for failure to provide adequate staff at the assisted living facility. We find no material evidence to support a conclusion that any staffing deficiency proximately caused the decedent’s death. We therefore reverse the judgment finding direct liability on the part of the management company.

Here's a link to the opinion:

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

The lead lawyer for the plaintiffs, C.J. Gideon Jr., rarely does plainitffs' work; he mostly defends cases. Here's the link to his firm's Web site:

http://www.gideoncooper.com/.

He is also an adjunct professor of law at Vanderbilt University Law School, which makes you wonder why he didn't prove such an elementary thing as causation as the Court of Appeals found in this case.

New Tennessee Supreme Court Decision: Products Liabilty

Yesterday the Tennessee Supreme Court released its opinion in Lind v. Beaman Dodge, Inc., No. M2010-01680-SC-S09-CV (Tenn. Dec. 15, 2011). Here's the summary from the majority opinion:

The plaintiff, who had purchased a truck from an automobile dealership, filed a products liability suit in 2007 against not only the manufacturer, but also the dealership, as seller. Later, the plaintiff entered a voluntary nonsuit as to the seller and proceeded only against the manufacturer. Over one year after the order granting nonsuit, the manufacturer declared bankruptcy, and, in 2009, the plaintiff again sued the seller, alleging both negligence and strict liability in tort. The seller filed a motion to dismiss, contending that the suit was barred by the statute of limitations. The trial court denied the motion but granted an interlocutory appeal. The Court of Appeals denied the appeal. This Court granted the seller’s application for permission to appeal to consider the application of the saving statute to these unique circumstances. We hold that the plaintiff may proceed under the strict liability claim because that cause of action did not accrue until the manufacturer was judicially declared insolvent. because, however, the second suit alleged acts of negligence on the part of the seller, an exception to the statutory rule prohibiting products liability suits against sellers, and could have been brought in 2007, the statute of limitations is a bar to recovery under that theory. The judgment of the trial court is, therefore, affirmed in part and reversed in part, and the cause is remanded for trial.

Here's a link to that opinion:

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

Justice Clark wrote a separate concurring opinion. Here it is:

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

New Tennessee Supreme Court Opinion: Expert Testimony

This is a follow-up post to one I did on June 25, 2010 on this same case; that opinion was from the Tennessee Court of Appeals. The day before yesterday, the Tennessee Supreme Court released its opinion in Holder v. Westgate Resorts Ltd., No. E2009-01312-SC-R11-CV (Tenn. Dec. 12, 2011). The summary of the opinion is as follows:

During a trial of the plaintiffs’ premises liability claim, the trial court excluded as hearsay a portion of the testimony of the defendant’s expert. The expert would have testified that he consulted an authoritative source whose interpretation of the applicable building code was consistent with that of the testifying expert. The jury returned a verdict for the plaintiff, and the defendant appealed. The Court of Appeals held that the trial court erred because the expert’s testimony was admissible pursuant to Tennessee Rule of Evidence 703. The Court of Appeals concluded that the trial court’s error was harmless, however, and affirmed the judgment. We hold that the Court of Appeals improperly applied an amended version of Rule 703 that was not in effect at the time of trial. We hold that the trial court properly excluded as hearsay portions of the proffered testimony of the testifying expert. We vacate the judgment of the Court of Appeals and affirm the judgment of the trial court.

Here's a link to the opinion:

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

Summary Judgment and Proximate Cause

The Western Section of the Tennessee Court of Appeals recently issued its opinion in Moore v. Butler, No. W2010-02374-COA-R3-CV (Tenn. Ct. App. Dec. 1, 2011). Here's the summary of the opinion:

This appeal involves summary judgment in a vehicular accident case. In a line of vehicles, the defendant service vehicle was first, followed by the plaintiff’s tractor-trailer, and then bythe co-defendant’s tractor-trailer. The defendant’s service vehicle allegedly made a left turn without braking or using a turn signal, forcing the plaintiff’s tractor-trailer to brake quickly. This resulted in the co-defendant’s tractor-trailer rear-ending the plaintiff’s tractor-trailer. The plaintiff filed a personal injury lawsuit against the defendant tractor-trailer for rear-ending him, and against the defendant service vehicle that turned in front of him. The defendant service vehicle owner filed a motion for summary judgment. The trial court granted the motion, finding that the defendant service vehicle owner had negated the element of proximate cause. The defendant tractor-trailer owner appeals. We reverse under the summary judgment standard in Hannan v. Alltel Publ’g Co., 270 S.W.3d 1 (Tenn. 2008).

Here's a link to the opinion:

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

Medical Malpractice: Statutorily Required Presuit Notice Provides 120-day Extension of One-year Statute of Limitations Against Governmental Entity

The Tennessee Court of Appeals released its opinion yesterday in Cunningham ex rel. Cunningham v. Williamson Cnty. Hosp. Dist., No. M2011-00554-COA-R9-CV (Tenn. Ct. App. Nov. 30, 2011). The summary of the opinion reads as follows:

Defendants, Williamson Medical Center and five of its employees, appeal from the denial of their motion to dismiss this medical malpractice action. They contend the action is time barred because it was filed more than one year after the cause of action accrued, in violation of the one year statute of limitations applicable to Tennessee Governmental Tort Liability Act actions, codified at Tennessee Code Annotated § 29-20-305(b). The trial court, however, found that the action was timely filed because it was commenced within the 120-day extension afforded to the plaintiffs pursuant to an amendment to the Tennessee Medical Malpractice Act, codified at Tennessee Code Annotated § 29-26-121(c) (2009). We have determined that the amendment codified at Tennessee Code Annotated § 29-26-121(a)-(c) applies, notwithstanding the one-year statute of limitations provision under the Governmental Tort Liability Act, that the plaintiffs’ compliance with the pre-suit notification provision in Tennessee Code Annotate § 29-26-121(a) extended the statute of limitations by 120 days, and that this action was timely filed within the 120-day extension. Therefore,were affirm.

Here's a link to the opinion:

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

New Case on the Element of Duty in a Negligence Case

The Middle Section of the Tennessee Court of Appeals recently issued its opinion in Norfleet v. Pulte Homes Tenn. Ltd. P'ship., No. M2011-01362-COA-R3-CV (Tenn. Ct. App. Nov. 9, 2011). The summary of the opinion is as follows:

While touring a model home in a new residential home development, the plaintiff fell when she failed to see a four-inch step as she walked from the foyer into the sunken living room. This premises liability action followed. The defendant constructed, owned, and managed the model home in which the plaintiff fell. Upon motion of the defendant, the trial court summarily dismissed the complaint upon two findings: that the defendant did not owe a legal duty to the plaintiff and that the plaintiff was more than fifty percent at fault. We affirm upon the finding that the plaintiff cannot establish that a duty was owed to her by the defendant.

Here's a link to the opinion:

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

Medical Malpractice: Yet Another Case on Certificates of Good Faith

The Tennessee Court of Appeals issued its opinion today in Crawford v. Kavanaugh, No. E2011-00696-COA-R3-Cv (Tenn. Ct. App. Nov. 21, 2011). Here's the summary of the case from the opinion:

This is a medical malpractice case in which Pauletta C. Crawford (“Wife”) and James Crawford (“Husband”) filed suit against Eugene Kavanaugh, M.D. (“Doctor”). While the suit was pending, Tennessee Code Annotated section 29-26-122 was amended to require the contemporaneous filing of a certificate of good faith with complaints alleging medical malpractice. Husband and Wife (collectively the “Crawfords”) dismissed their suit and filed a new complaint that did not include a certificate of good faith. Doctor filed a motion to dismiss, and the court dismissed the case. The Crawfords appeal. We affirm the trial court.

Here's a link to the opinion:

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

Tony Duncan Named 2011 Mid-South Super Lawyer

I'm pleased to announce that I have been selected as a 2011 Mid-South Super Lawyer. I'm greatly honored and humbled by this, which is due in part to the selection process. That process is explained at this link:

http://digital.superlawyers.com/superlawyers/2011midsouth?pg=27#pg11

My listing is on page 29, which can be viewed at the following link:

http://digital.superlawyers.com/superlawyers/2011midsouth?pg=27#pg29

"Hot Coffee"

Here's a link to a site about the movie Hot Coffee. It's a documentary about the McDonald's coffee case.

If you've taken the time to look at this blog, please take the extra time to look at this link: http://hotcoffeethemovie.com/. Please get around to actually watching the movie, too.

"The Medical Malpractice Myth," by Tom Baker

Think medical malpractice lawsuits are a problem? You're wrong.

Please read The Medical Malpractice Myth by Professor Tom Baker (a law professor whose father and father-in-law are physicians). The book can be purchased at this link:

http://www.press.uchicago.edu/Misc/Chicago/036480.html

Getting Ready to Start Trial

I usually say the Serentiy Prayer before trial (and many other things), as you all know, it goes (in part) like this: "God grant me the serenity to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference. Amen."

Medical Malpractice: Court Holds Re-filed Case Subject to New Laws and Dismisses It Because They Weren't Complied with by the Plaintiff

The Court of Appeals recently issued its opinion in Cude v. Herren, No. W2010-01425-COA-R3-CV (Tenn. Ct. App. Sept. 26, 2011). The court held that the plainitff had to comply with the new medical malpractice laws on pre-suit notice and certificates of good faith in a case re-filed under the saving statute, even though those laws did not apply when the case accrued.

Here's the summary of the case from the opinion:

The trial court dismissed Plaintiff’s re-filed suit for failure to comply with the 60-day notice and certificate of good faith requirements set out in the Medical Malpractice Act. Because we find such requirements applicable to Plaintiff’s suit and no extraordinary cause to excuse her non-compliance, we affirm the trial court’s dismissal.

Here's a link to the opinion:

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

New Tennessee Supreme Court Opinion on the Family Purpose Doctrine

The Tennessee Supreme Court issued its opinion in Starr v. Hill, No. W2009-00524-SC-R11-CV (Tenn. Aug. 31, 2011). The opinion is a must-read if you are doing research on the family purpose doctrine in Tennessee.

Here is the summary of the opinion:

A father and his sixteen-year-old son were sued after the son was involved in an accident while driving a vehicle owned, insured, and provided to him by his father. The basis for the suit against the father was the family purpose doctrine, which imposes vicarious liability on the owner of a vehicle for the negligent operation of the vehicle by a family member. Whether the family purpose doctrine applies to the father requires us to address these issues: (1) whether the father, who does not reside in the same household as the son, was a head of the household under the family purpose doctrine; (2) whether the vehicle was maintained for the comfort or pleasure of the family or solely for use by the son; and (3) whether the vehicle was being driven with the father’s permission such that he had control over its use. The essential elements of the family purpose doctrine are that the owner must be a head of the household who furnishes and maintains the vehicle for the purpose of providing pleasure or comfort for the family, and at the time of the injury, the vehicle must have been driven in furtherance of that purpose with the head of the household’s express or implied permission. The trial court granted summary judgment to the father, finding that the family purpose doctrine did not apply. The Court of Appeals reversed, ruling that the family purpose doctrine applied to the father as a matter of law. We hold that the father was a head of the household because he had a family relationship with his son and a duty to support his son and the father furnished and maintained the vehicle for the purpose of providing pleasure or comfort to the family. However, a genuine issue of material fact remains as to whether the father had sufficient control over the vehicle. We vacate the decision of the Court of Appeals and remand for trial.

Here is a link to the opinion:

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