New Laws Effective in Tennessee on July 1, 2018

Here is an abstract of the new laws that go into effect in Tennessee on July 1, 2018, to wit:

http://www.capitol.tn.gov/legislation/publications/Effective%207-1-2018.pdf

New Tennessee Supreme Court Health Care Liability Action Opinion: Trial Court and Court of Appeals Reversed; Plaintiffs' Claims Found to Be Time-barred Due to Ineffective Presuit Notice

The Tennessee Supreme Court released its opinion today in Runions v. Jackson-Madison County General Hospital District, No. W2016-00901-SC-R11-CV (Tenn. Jun. 6, 2018).  Here is the syllabus from the slip opinion:

The Tennessee Health Care Liability Act, Tennessee Code Annotated section 29-26-121(a)(1) (2012 & Supp. 2017), requires a person who asserts a potential health care liability claim to give written pre-suit notice of the claim to each health care provider that will be named a defendant at least sixty days before the complaint is filed. The question we address is whether the trial court erred by allowing the plaintiff to amend her complaint, after the expiration of the statute of limitations, to substitute as a defendant a health care provider to which the plaintiff had not sent pre-suit notice. The health care provider the plaintiff sought to substitute had knowledge of the claim based on pre-suit notice the plaintiff had mistakenly sent to another potential defendant. We hold that the plaintiff did not comply with the mandatory pre-suit notice provision of Tennessee Code Annotated section 29-26-121(a)(1) because she did not give written pre-suit notice of the potential claim to the health care provider she later sought to substitute as a defendant after the expiration of the statute of limitations. Although the health care provider learned about the claim based on the pre-suit notice the plaintiff sent to another potential defendant, this form of notification did not comply with the notice requirement of section 29-26-121(a)(1). Because the plaintiff did not comply with Tennessee Code Annotated section 29-26-121(a)(1), the 120-day filing extension under Tennessee Code Annotated section 29-26-121(c) is not applicable. Under Tennessee Rule of Civil Procedure 15.03, the filing date of the proposed amended complaint may relate back to the filing date of the original complaint. The plaintiff, however, filed the original complaint after the expiration of the statute of limitations. As a result, the plaintiff’s motion to substitute the health care provider is futile because the amended suit would be subject to dismissal based on the expiration of the one-year statute of limitations. The trial court erred by allowing the plaintiff to amend her complaint. We reverse the trial court and the Court of Appeals and remand this case to the trial court for further proceedings.

Here is a link to the slip opinion:

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

NOTE: This post is related to Feb. 8, 2017 blog post, which can be found at this link:

http://theduncanlawfirm.blogspot.com/2017/02/new-health-care-liability-opinion-trial.html

New Opinion on Spoliation of Evidence: Dismissal of Plaintiffs' Case Upheld on Appeal

The Tennessee Court of Appeals recently issued its opinion in Gardner v. R & J Express, LLC, No. E2017-00823-COA-R3-CV (Tenn. Ct. App. May 7, 2018).  Here is the syllabus from the slip opinion:

In this negligence action that arose from a tractor-trailer accident, the trial court dismissed the plaintiffs’ claims following the court’s determination that a critical piece of evidence had been destroyed by the plaintiffs, resulting in severe prejudice to the defendant. The court further determined that dismissal was the only equitable remedy for the plaintiffs’ spoliation of evidence. The plaintiffs timely appealed the dismissal of their claims. Discerning no reversible error, we affirm. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/john_a._gardner_et_al._v._r__j_express_llc.pdf

New Health Care Liability Action Opinion: Trial Court's Dismissal Reversed as to Some Defendants

The Tennessee Court of Appeals just released its opinion in Brookins v. Tabor, No. W2017-00576-COA-R3-CV (Tenn. Ct. App. May 8, 2018).  The syllabus from the slip opinion states as follows:

A plaintiff filed a health care liability complaint in 2015 against several physicians and entities that he later non-suited in order to comply with the pre-suit notice requirements set forth in Tenn. Code Ann. § 29-26-121(a). The plaintiff then filed a second complaint against the same defendants, relying on the saving statutes of Tenn. Code Ann. § 28-1- 105 and Tenn. Code Ann. § 29-26-121(c) to extend his statute of limitations. The plaintiff’s wife joined him as a plaintiff in the second complaint. The defendants filed motions to dismiss, alleging non-compliance with the pre-suit notice requirements and the statute of limitations. The trial court granted all of the defendants’ motions and dismissed the complaint. The plaintiffs appealed the trial court’s dismissal of the complaint against the physicians. Interpreting the complaint liberally and presuming the truth of plaintiffs’ allegations regarding the HIPAA authorizations, we reverse the trial court’s dismissal of the complaint against two of the physicians and affirm the dismissal of the complaint against one of the physicians on statute of limitations grounds. We affirm the trial court’s judgment dismissing the wife’s claims against all of the defendants.

Here is a link to the slip opinion:

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

NOTE: We are blessed to have some really good judges and justices on our appellate courts in Tennessee.  This opinion is one example of why that is the case: it discusses presuit notice in health care liability actions (med mal cases), the saving statute, the discovery rule, etc.  It's a good read in my humble opinion.

Docket Info. for Various Counties in Tenn.

Useful links to various court dockets across Tennessee, to wit:

https://tncrtinfo.com/

New Tennessee Supreme Court Opinion: Wrongful Death Claim of Surviving Spouse Trumps Claim Made by Deceased's Children in This Intance

The Supreme Court of Tennessee just issued its opinion in Nelson v. Myres, No. M2015-01857-SC-R11-CV (Tenn. Mar. 5, 2017).  The syllabus from the slip opinion reads as follows:

The primary issue in this appeal is whether a surviving spouse maintains priority to file a wrongful death action when the decedent’s child has also filed a wrongful death action in which the child alleges that the surviving spouse negligently caused the decedent’s death. The trial court dismissed the daughter’s wrongful death complaint, but the Court of Appeals reversed the trial court, ruling that under the circumstances presented in this case, the surviving spouse was disqualified from filing the wrongful death action. Because the wrongful death statutes do not include an exception to the spousal priority rule and because the surviving spouse did not waive his right to file the wrongful death action, we hold that the trial court properly dismissed the daughter’s wrongful death action. The judgment of the Court of Appeals is reversed and the cause remanded to the trial court. 

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/nelson.brittany.opn__0.pdf

NOTE: This is a follow-up post to my January 19, 2017 blog post about this same case after the Court of Appeals issued its decision.  Here is a link to that post:

http://theduncanlawfirm.blogspot.com/2017/01/new-wrongful-death-opinion-surviving.html

Also, this opinion, as are all opinions from the Tennessee Supreme Court, is a must-read opinion and a reminder that wrongful death claims are creatures of statute and must be construed under the canons of statutory construction.  In this instance, there is no statutory exception to spousal priority to file and maintain such an action.

New Opinion on Motions to Strike and Tennessee Code Annotated section 20-1-119

The Tennessee Court of Appeals just issued its opinion in Santore v. Stevenson, No. W2017-01098-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2018).  The syllabus from the slip opinion states as follows:

At issue in this personal injury action is whether the trial court erred by striking the defendant’s affirmative defense that an unknown “John Doe” driver of an Averitt Express truck was comparatively at fault for the plaintiff’s injuries. Relying on Brown v. WalMart Discount Cities, 12 S.W.3d 785 (Tenn. 2000) and Tenn. Code Ann. § 20-1-119, the trial court struck the affirmative defense as to John Doe and Averitt Express upon the finding that the defendant failed to sufficiently identify John Doe so that the plaintiff may serve process on John Doe. We have determined the trial court’s discretionary decision to strike the affirmative defense of comparative fault as to John Doe and Averitt Express was premature because the defendant was not afforded a reasonable opportunity to engage in pre-trial discovery to endeavor as to the identity of John Doe in sufficient detail for the plaintiff to serve process on John Doe. Therefore, we reverse and remand for further proceedings consistent with this opinion.

Here is a link to the opinion:

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

NOTE: This opinion does a good job of explaining motions to dismiss under Rule 12 and its interpretive case law.  However, it appears to be in conflict with two cases: Breeding v. Edwards, 62 S.W.3d 170, 171 (Tenn. Ct. App. 2001), https://scholar.google.com/scholar_case?case=17466177028433188467&q=Breeding+v.+Edwards&hl=en&as_sdt=4,43, and Marler v. Scoggins, 105 S.W.3d 596, 597 (Tenn. Ct. App. 2002), https://scholar.google.com/scholar_case?case=12866630331774870801&q=Marler+v.+Scoggins&hl=en&as_sdt=4,43.  Both of those cases acknowledge an exception to the rule against faulting a phantom (i.e., John Doe) tortfeasor, which is relied upon in this case.  It is also interesting that this opinion makes no mention of Breeding or Marler, which are reported opinions and controlling authority under Tennessee Supreme Court Rule 4(G)(2).  I might need to give this case another think (I've been up since 4:30 a.m.), but, as for now, I cannot reconcile it with Breeding or Marler.  Perhaps the litigants did not bring Breeding or Marler to the Court's attention.  

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

The Court of Appeals issued its opinion in Shaw v. Gross, No. W2017-00441-COA-R3-CV (Tenn. Ct. App. Feb. 9, 2018).  The syllabus from the slip opinion states as follows:

The plaintiff in a health care liability action appeals the dismissal of her claim on the basis of the expiration of the statute of limitations and the failure to provide pre-suit notice compliant with Tennessee Code Annotated section 29-26-121(a)(3)(B). Because the undisputed facts in the record fail to establish that decedent was aware of the alleged misdiagnosis prior to his death, we reverse the trial court’s ruling on this issue. We also determine that the trial court failed to apply the appropriate standard or adequately explain its decision regarding the plaintiff’s alleged non-compliance with section 29-26-121(a)(3)(B). We therefore vacate the dismissal of the complaint on this basis and remand for reconsideration in light of the appropriate standard. Reversed in part, vacated in part, and remanded.

Here is a link to the slip opinion:

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

NOTE: This is a good opinion on the application of the discovery rule in health care liability actions (formerly known as medical malpractice actions or cases) and a trial court's duty when granting summary judgment, inter alia.  I highly recommend reading this opinion.  

New Wrongful Death Case on the Number of Peremptory Challenges That Parents Have Who Both Join in a Suit for the Wrongful Death of Their Child

The Tennessee Court of Appeals just issued its opinion in O'Dneal v. Baptist Mem'l Hosp.-Tipton, No. W2016-01912-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2018).  The syllabus from the slip opinion reads:

Plaintiff parents of infant who died in child birth appeal a jury verdict in favor of the medical provider defendants. During voir dire, the trial court denied Plaintiffs’ request for additional peremptory challenges under Tennessee Code Annotated section 22-3-104(b) on the basis that Plaintiffs were bringing their claim on behalf of the decedent infant. Based upon the Tennessee Supreme Court’s decision in Beard v. Branson, 528 S.W.3d 487 (Tenn. 2017), we conclude that the trial court erred in treating Plaintiffs as a single “party plaintiff” and that Plaintiffs were entitled to eight peremptory challenges under the statute at issue. We also hold that under Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 107 (Tenn. 1996), the trial court’s error resulted in prejudice to the judicial process that necessitates a new trial. All other issues are pretermitted. Reversed and remanded. 

Here is a link to the slip opinion:

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

NOTE: This is a must-read opinion for any Tennessee trial lawyer who handles wrongful death cases.

New Health Care Liability Action Opinion: Refiled Case Time-barred Because Prior Case That Was Nonsuited Was Untimely Filed

The Tennessee Court of Appeals just issued its opinion in Dortch v. Methodist Healthcare Memphis Hosp., No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018).  The syllabus from the slip opinion reads as follows:

This is a health care liability case. Appellant/Plaintiff first filed suit against Appellees/Defendants for medical malpractice in April 2014. Defendants filed motions to dismiss based on Plaintiff’s failure to comply with the pre-suit notice requirements for health care liability claims. Before the trial court could hear Defendants’ motions to dismiss, Plaintiff filed a notice of voluntary nonsuit, and an order was entered thereon. Plaintiff subsequently re-filed her case against Defendants in September 2016 in reliance on the one year savings statute. Defendants moved the court to dismiss Plaintiff’s suit based on the statute of limitations. The trial court granted Defendants’ motions and dismissed Plaintiff’s claims with prejudice, holding that, because Plaintiff’s original presuit notice was defective, her first complaint was untimely and she could not rely on the savings statute to revive a time-barred cause of action. We affirm the judgment of the trial court.

Here is a link to the slip opinion:

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

NOTE: This case is a reminder of two things: first, a case can only be filed under the saving statute if it was timely filed before it was nonsuited; and, second, health care liability actions are very difficult to prosecute.

New Tennessee Court of Appeals' Opinion on Tennessee Code Annotated section 20-1-119

The Tennessee Court of Appeals just issued its opinion in Scales v. H.G. Hill Realty Co., No. M2017-00906-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2018).  The syllabus from the slip opinion is as follows:

A customer slipped and fell at a grocery store and sued four different entities that owned and/or operated the store. When two of the defendants filed a motion to compel the plaintiff to respond to discovery responses, the plaintiff voluntarily dismissed these defendants from the action. Then, in response to an answer to an amended complaint in which another defendant asserted the comparative fault of the dismissed defendants, the plaintiff filed a second amended complaint adding the dismissed defendants back in as named defendants pursuant to Tenn. Code Ann. § 20-1-119. The newly added defendants filed a motion to dismiss, which the trial court granted. The plaintiff appealed, and we reverse the trial court’s judgment. We hold that the statute permitted the plaintiff to add the formerly dismissed defendants back into the lawsuit.

Here is a link to the slip opinion:

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

NOTE: This is my case.  I represent the plaintiff.  In my totally biased opinion, I think the Court of Appeals got this one right.  Also, this is a must-read opinion as to section 20-1-119 and how it is to be construed and applied.

New Opinion: How Long Does a Plaintiff Have to File Suit When the Tortfeasor Dies After the Wrongful Conduct? This Opinion Answers That Question.

The Tennessee Court of Appeals has issued its opinion in Putnam v. Leach, No. W2017-00728-COA-R3-CV (Tenn. Ct. App. Jan. 23, 2018).  The syllabus from the slip opinion is as follows:

This is a personal injury case involving a motor vehicle accident. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs were unaware of the decedent’s death and commenced this suit naming him as a defendant. Some months later, after learning of the decedent’s death, the plaintiffs sought the appointment of an administrator ad litem in the Probate Court and amended their complaint naming the administrator ad litem as a party as required by the survival statute. The defendant filed a motion to dismiss arguing that the plaintiffs’ complaint was not properly filed until after the expiration of the applicable statute of limitations. The trial court agreed and granted the defendant’s motion to dismiss. The plaintiffs timely appealed. Having concluded that the plaintiffs did not properly commence their lawsuit within the time afforded by the applicable statute of limitations, we affirm. 

Here is a link to the slip opinion:

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

NOTE: This opinion contains a great discussion of the statute of limitations in personal injury actions, the discovery rule, and what happens when a tortfeasor dies and a lawsuit must be commenced against the tortfeasor (and when an adminstrator ad litem needs to be appointed).  This is a must-read opinion for any Tennessee lawyer who handles tort cases.

New Health Care Liability Action Opinion: Intentional Acts Are Not Covered by the Tennessee Health Care Liability Act; Negligent Training and Supervision Claims Are Covered by the THCLA; and If Wrongful Acts Fall Within the Common-knowledge Exception to Expert Testimony No Certificate of Good Faith Is Required to Be Filed

The Tennessee Court of Appeals just issued it opinion in C.D. v. Keystone Continuum, LLC, No. E2016-02528-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2018).  The syllabus from the slip opinion reads: 

The plaintiff, C.D., a minor, was a resident of Mountain Youth Academy, a trauma focused residential treatment facility,1 when he got into a physical altercation with an employee of the defendant Keystone Continuum, LLC doing business as Mountain Youth Academy. The employee, Jacob Spencer, is described by the defendant as a “mental health associate.” The plaintiffs describe him as a “third shift night guard.” The minor’s mother filed this action, proceeding both individually and on behalf of her son. The complaint alleges, among other things, that Spencer pulled the minor plaintiff to the ground and stomped on his foot, causing him injury. Defendant moved to dismiss and/or for summary judgment, arguing that the complaint in this case alleges health care liability claims. Defendant argued that because of plaintiffs’ (1) failure to provide pre-suit notice under the Tennessee Health Care Liability Act (the THCLA), Tenn. Code Ann. § 29-26- 121 (Supp. 2017), and (2) their failure to file a certificate of good faith with the complaint, id. § 29-26-122, the lawsuit should be dismissed with prejudice. The trial court held that plaintiffs’ claims sounded in health care liability. It dismissed the mother’s action with prejudice. The court also dismissed the minor’s action, but did so without prejudice.2 Defendant appeals, arguing that the minor’s action should have been dismissed with prejudice. The plaintiffs also present issues. They argue that the trial court erred in ruling that their claims are based upon health care liability. Additionally and alternatively, plaintiffs argue that their claims fall within the “common knowledge” exception to the general requirement of expert testimony in a health care liability action. We hold that plaintiffs’ claims for assault and battery are unrelated to the provision of, or failure to provide, health care services. As a consequence of this, we hold that the plaintiffs’ assault and battery claims do not fall within the ambit of a “health care liability action” as defined by the statute. We further hold that plaintiffs’ direct claims against the defendant, for negligent supervision and/or training of its employees, are health care liability claims but ones involving matters that ordinary laypersons will be able to assess by their common knowledge. Hence, expert medical testimony is not required. The trial court’s judgment dismissing the plaintiffs’ claims for assault and battery is vacated. We further hold that mother’s failure to provide the defendant with pre-suit notice mandates a dismissal of her claim for negligent supervision and/or training, but that dismissal should have been without prejudice rather than with prejudice. Accordingly, the trial court’s judgment on this part of mother’s claim is modified to reflect that the dismissal is without prejudice. We affirm the trial court’s judgment dismissing the minor’s claim of negligent supervision and/or training and further affirm the trial court’s judgment that this dismissal is without prejudice.

Here is a link to the slip opinion: 

http://www.tncourts.gov/sites/default/files/c.d._et_al._v._keystone_continuum_llc_dba_mountain_youth_academy.pdf

New Opinion: Contractual Indemnification Claim Against a Health Care Provider Not a Health Care Liability Action

The Tennessee Court of Appeals recently released its opinion in Johnson v. Rutherford County, Tenn., No. M2017-00618-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2018).  The syllabus from the slip opinion states as follows:

The plaintiffs, as co-conservators for their adult son, filed this action against the county, seeking payment of medical expenses incurred by their son following an assault upon him by another inmate while he was incarcerated at the county jail facility. The plaintiffs later amended their complaint to add allegations of civil rights violations, general negligence, and health care liability. The county filed a third-party complaint against the medical provider with whom the county had contracted to provide medical services for the inmates at the jail. The third-party complaint was based upon an indemnity clause contained within the respective parties’ contract. The medical provider filed a motion to dismiss the county’s third-party complaint because the county had not complied with the requirements of the Tennessee Health Care Liability Act (“THCLA”). Following a hearing, the trial court dismissed the county’s third-party complaint by reason of the county’s failure to comply with the requirements of the THCLA. The county timely appealed. Having determined that the trial court erred by treating the county’s third-party complaint as a THCLA claim, we reverse the court’s dismissal of the county’s third-party complaint.

Here is a link to the slip opinion:

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

New Tennessee Supreme Court Opinion: Court Holds Child Support Arrearage Will Not Disqualify Surviving Spouse from Pursuing a Claim for His or Her Deceased Spouse's Wrongful Death or Sharing in the Proceeds from Such a Claim

The Tennessee Supreme Court just issued its opinion in Spires v. Simpson, No. E2015-00697-SC-R11-CV (Tenn. Dec. 27, 2017).  The syllabus from the slip opinion states as follows:

We granted permission to appeal in this case to clarify when two Tennessee statutes would apply to preclude a parent who owes child support arrearages from recovering proceeds from a wrongful death lawsuit. In this case, the plaintiff and the decedent were married and had one child; the plaintiff abandoned the decedent and their son soon after the child was born. The plaintiff and the decedent never divorced. The decedent spouse died unexpectedly, and soon afterward the plaintiff surviving spouse filed this wrongful death action. At the time, the plaintiff surviving spouse owed child support arrearages for four other children unrelated to the decedent. The trial court dismissed the plaintiff surviving spouse from the wrongful death lawsuit based on a provision in Tennessee’s wrongful death statutes, Tennessee Code Annotated section 20-5-107(b) (2009 & Supp. 2017), and a similar provision in Tennessee’s intestate succession statutes, Tennessee Code Annotated section 31-2-105(b) (2015 & Supp. 2017). It held that these two statutes disqualified the plaintiff from filing the wrongful death action or recovering the proceeds from it because he never provided financial support for his child with the decedent spouse and because he had child support arrearages for his four children unrelated to the decedent spouse. The Court of Appeals affirmed in part and reversed in part. It held that the two statutes did not bar the plaintiff from commencing the lawsuit for the wrongful death of his spouse, but it also held that they precluded him from recovering proceeds from the wrongful death lawsuit until his outstanding child support arrearages were satisfied. Consequently, the Court of Appeals ordered that the plaintiff’s recovery from the wrongful death action be paid toward satisfaction of his child support arrearages for his four children who were unrelated to the decedent spouse. On appeal, we hold that the prohibitions in Tennessee Code Annotated sections 20-5-107(b) and 31-2-105(b) apply only when (1) the “parent” who seeks to recover in the wrongful death lawsuit is a parent of the decedent child, and (2) that parent’s child support arrearage is owed for the support of that decedent child. Therefore, neither statute is applicable under the facts of this case. Accordingly, the decisions of the lower courts are reversed and vacated insofar as they applied those two statutes to this case. We affirm the Court of Appeals’ holding that newly enacted wrongful death statutes regarding a surviving spouse’s waiver based on abandonment of a decedent spouse may not be applied retroactively. 

Here is a link to the opinion: 

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

NOTE: This is a very good opinion that delves into Tennessee's wrongful-death statutes and statutory construction.  This is a very good read for the Tennessee practitioner if she or he handles wrongful death cases.  

New Laws Effective in Tennessee on Jan. 1, 2018

http://www.capitol.tn.gov/legislation/publications/01-01-2018%20effective.pdf

New Tennessee Supreme Court Opinion: Rule 60 Motions Analyzed in Detail

The Tennessee Supreme Court issued its opinion yesterday in Hussey v. Woods, No. W2014-01235-SC-R11-CV (Tenn. Ct. App. Dec. 18, 2017).  The syllabus from the slip opinion states as follows:

Tennessee Rule of Civil Procedure 60.02 allows a trial court to set aside a final judgment under certain circumstances, including when the judgment is void or “for any other reason justifying relief.” Here, a decedent’s mother, in her capacity as her unmarried son’s next of kin, filed a lawsuit seeking damages for his wrongful death. The case was settled and dismissed. Nearly twenty months later, the decedent’s alleged minor child filed a Rule 60.02 motion to set aside the order of dismissal and to be substituted as the plaintiff. The motion asserted that the child was the decedent’s next of kin and the proper party to pursue the wrongful death claim, based on the decedent’s execution of an acknowledgment of paternity and a Mississippi trial court order for support. The trial court denied the motion, finding it was not timely filed. The Court of Appeals vacated the trial court’s ruling, holding that the Rule 60.02 motion was not ripe for adjudication until the trial court conclusively established the child’s paternity. We find the Court of Appeals erred by focusing on issues surrounding the child’s paternity rather than reviewing the correctness of the trial court’s ruling on the Rule 60.02 motion. We hold that the trial court properly denied relief under Rule 60.02. The judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated.

Here is a link to the slip opinion:

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

NOTE: This opinion does a very good job of explaining the intricacies of motions seeking relief under Rule 60 of the Tennessee Rules of Civil Procedure.  It's a must-read opinion.

New Tennessee Supreme Court Opinion: Mary Carter Agreements, Remittitur & Causation

The Tennessee Supreme Court recently issued its opinion in Borne v. Celdaon Trucking Services, Inc., No. W2013-01949-SC-R11-CV (Tenn. Oct. 20, 2017).  The syllabus from the slip opinion states as follows:

This appeal arises out of sequential rear-end collisions involving three tractor trailer vehicles. The plaintiff’s tractor trailer was rear-ended by a tractor trailer owned by the defendant, which was in turn rear-ended by a third tractor trailer. The plaintiff sued the owners and drivers of both of the other tractor trailers, seeking compensation for personal injuries. Before trial, the plaintiff entered into an agreement with the owner of the third tractor trailer that neither would take any action adverse to the other and that the owner of the third tractor trailer would only owe the plaintiff half of any judgment entered against it. The owner of the third tractor trailer was later dismissed on a directed verdict. The jury returned a verdict for the plaintiff against the defendant. The trial court denied the defendant’s motion for new trial and, with little explanation, also suggested a remittitur of the jury’s verdict in all four categories of damages awarded. After the defendant appealed, the Court of Appeals affirmed the trial court’s rulings regarding the pretrial agreement between the plaintiff and the owner of the third tractor trailer. Regarding the trial court’s remittitur, the Court of Appeals reinstated the jury’s award for lost earning capacity, suggested a further remittitur to the award for loss of enjoyment of life, and affirmed the remitted award in the remaining two categories of damages. On appeal, we affirm the trial court’s rulings regarding the pretrial agreement. We find no error in the trial court’s decision not to give the jury a special instruction on superseding cause. We hold that the Court of Appeals had no authority to suggest a further remittitur absent a finding that the jury’s award—as remitted by the trial court—exceeds the uppermost boundary of the range of reasonableness under the evidence at trial, and so we reverse the Court of Appeals’ remittitur of the award for loss of enjoyment of life. As to the trial court’s remittitur, in view of the sharply conflicting evidence on the plaintiff’s damages, the trial court’s failure to indicate the reasons for its suggested remittitur leaves us unable to determine whether the evidence preponderates against the remittitur and, consequently, unable to conduct a proper appellate review of the trial court’s remittitur decision. Accordingly, we remand the case to the trial court for explanation of its reasons for suggesting remittitur of the jury’s award. For the same reason, the Court of Appeals was without sufficient information to perform a meaningful review of the trial court’s suggested remittitur, so we vacate the Court of Appeals’ decision to reverse the trial court’s remittitur of the award on lost earning capacity. The decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings. 

Here is a link to the slip opinion:

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

Justice Lee wrote a separate opinion in which she concurred in part and dissented in part, to wit:

https://www.tncourts.gov/sites/default/files/borne.donriel.sep_.opn_.pdf

NOTE: Like all opinions from the Tennessee Supreme Court this one is a must-read opinion.

New Tennessee Supreme Court Opinion: The Collateral Source Rule Is Alive and Well!

Today the Tennessee Supreme Court issued its opinion in Dedmon v. Steelman, No. No. W2015-01462-SC-R11-CV (Tenn. Nov. 17, 2017).  The syllabus from the slip opinion states as follows:

We granted this appeal to address whether our holding in West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014), applies in personal injury cases. We hold that it does not. West held that “reasonable charges” for medical services under Tennessee’s Hospital Lien Act, Tennessee Code Annotated sections 29-22-101 to –107 (2012), are the discounted amounts a hospital accepts as full payment from patients’ private insurers, not the full, undiscounted amounts billed to patients. West, 459 S.W.3d at 46. West defined “reasonable charges” in the context of interpreting the Hospital Lien Act, and its holding is limited to that Act. As an alternative argument, we are asked in this appeal to consider applying the principles in West to the determination of reasonable medical expenses in personal injury cases. Doing so involves the collateral source rule, which excludes evidence of benefits to the plaintiff from sources collateral to the tortfeasor and precludes the reduction of the plaintiff’s damage award by such collateral payments. The rule is based on the principles that tortfeasors should be responsible for all of the harm they cause and that payments from collateral sources intended to benefit an injured party should not be used to reduce the liability of the party who inflicted the injury. After a thorough review of court decisions in Tennessee and across the country on the collateral source rule, we decline to alter existing law in Tennessee. We hold that the collateral source rule applies in this personal injury case, in which the collateral benefit at issue is private insurance. Consequently, the plaintiffs may submit evidence of the injured party’s full, undiscounted medical bills as proof of reasonable medical expenses. Furthermore, the defendants are precluded from submitting evidence of discounted rates accepted by medical providers from the insurer to rebut the plaintiffs’ proof that the full, undiscounted charges are reasonable. The defendants remain free to submit any other competent evidence to rebut the plaintiffs’ proof on the reasonableness of the medical expenses, so long as that evidence does not contravene the collateral source rule. The decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings.

(Emphasis added via italics and bolding.)  Here is a link to the slip opinion:

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

NOTE: This is a big win for the people of Tennessee.  The Tennessee Supreme Court made certain that the citizens of Tennessee were protected with this decision.  And for that, I am grateful. 

New Health Care Liability Action Opinion: Defense Verdict Upheld on Appeal

The Tennessee Court of Appeals recently issued its opinion in Commercial Bank & Trust Co. v. Children's Anesthesiologists, P.C., No.  E2016-01747-COA-R3-CV (Tenn. Ct. App. Oct. 25, 2017).  The syllabus from the slip opinion states as follows:

Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert P. Mjekiqi, a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as Legal Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan, Inc. ... sued Children’s Anesthesiologists, P.C.; Heather D. Phillips, D.O.; Kari L. Clinton; Neurosurgical Associates, P.C.; Lewis W. Harris, M.D.; and East Tennessee Children’s Hospital Association, Inc. d/b/a East Tennessee Children’s Hospital alleging health care liability in connection with surgery performed on Albert P. Mjekiqi [] in May of 2011. After a trial, the Circuit Court for Knox County ... entered judgment on the jury’s verdict finding no liability on the part of the defendants. Plaintiffs appeal to this Court raising issues with regard to admission of evidence and jury instructions. We discern no error, and we affirm.

Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/commercial_bank__trust_company_et_al._v_childrens_anesthesiologists_p.c._et_al..pdf