West Virginia Personal Injury Settlement Proceeds Could Not Be Recharacterized as Wrongful Death Proceeds When Deceased Died After His Personal Injury Suit Was Settled

The Tennessee Court of Appeals has issued its opinion in Welch v. Welch, No. M2021-00081-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2021).  The syllabus reads: 

Prior to his death, the decedent brought suit for personal injury and loss of consortium in the Circuit Court of Kanawha County, West Virginia against more than seventy defendants after being diagnosed with mesothelioma. Ultimately, the parties in that matter reached a settlement. After informing the West Virginia court of the resolution of the matter, the case was closed by the court. Shortly thereafter, and prior to full disbursement of the settlement proceeds, the decedent died from mesothelioma. Several of the decedent’s heirs then brought the present action in Tennessee, seeking to have the settlement proceeds received pursuant to the West Virginia litigation characterized as wrongful death proceeds. The trial court dismissed the heirs’ action, and this appeal followed. We affirm the trial court’s dismissal. 

Here is a link to the slip opinion:

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

NOTE: Despite a creative legal argument made by the losing side, this is the correct decision.  Once the W. Va. personal injury case was settled, prior to the injured plaintiff's death, the proceeds became personalty, which in turn became property of the his probate estate on his death.  The significance of this fact is that those proceeds pass under his will and not under the laws of intestacy as wrongful death proceeds pass.  See Welch, No. M2021-00081-COA-R3-CV, slip op. at 3–6.  While the opinion does not address this issue directly, obviously the plaintiffs below stood to receive (more) money if the proceeds were declared to be wrongful death proceeds that passed outside of the probate estate and under the laws of intestacy.  See id.

Death of a Party in a Pending Civil Action: Trial Court's Dismissal of Plaintiff's Claim Upheld on Appeal Because Counsel Failed to Properly Revive the Suit Within the Time Allotted by Law and Trial Court Found No Reason to Enlarge Time for a Revivor to Be Effected

The Tennessee Court of Appeals has released its opinion in Mead v. Tucker, No. M2020-01512-COA-R3-CV (Tenn. Ct. App. Nov. 5, 2021).  The syllabus from the slip opinion reads:

In this personal injury negligence action, the defendant died while the litigation was pending. The plaintiff failed to file a motion for substitution of party within ninety days of the original defendant’s death being suggested on the record. Over a month later, the plaintiff moved the trial court to enlarge the time to substitute the parties pursuant to Tennessee Rule of Civil Procedure 6.02(2). The trial court denied the motion for an enlargement of time. Because the trial court did not abuse its discretion, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/mead._deric.j._opn.pdf.

NOTE: This case reminds one of how important it is to properly revive a case against a deceased party and that an enlargement of time to do that is not always granted after the time to act has expired.  

New Case on Service of Leading Process: Trial Court's Dismissal of Plaintiff's Lawsuit Due to Counsel's Intentional Delay in Effecting Service Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Bridges v. Roth, No. W2020-01508-COA-R3-CV (Tenn. Ct. App. Nov. 5. 2011).  The syllabus reads:  

This appeal involves a Tennessee Rule of Civil Procedure 4.01(3) summons issue. The trial court granted defendant’s motion to dismiss after finding that plaintiff intentionally delayed the issuance of the summons for the complaint in contradiction to Rule 4.01(3) of the Tennessee Rules of Civil Procedure. Plaintiff appeals. We affirm. 

Here is a link to the opinion: 

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

NOTE: This opinion accentuates the fact that filing a complaint on time is 1(a) and effecting service of leading process os 1(b).  Both are so important.  

New Tennessee Claims Commission Case: Summary Judgment for the State Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Victory v. State, No. M2020-01610-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2021).  The syllabus from the slip opinion reads:

This appeal arises from an action before the Tennessee Claims Commission for personal injuries filed on behalf of a minor child who broke her arm when she fell from playground equipment at Tims Ford State Park. The complaint asserted claims for negligence, gross negligence, and gross negligence per se. It alleged that the State was negligent by failing to adequately maintain its property, and by failing to discover, rectify, and/or warn against a dangerous condition, and allowing park visitors “to use the playground which did not have a safe surface area.” The State denied liability under Tenn. Code Ann. § 9-8- 307(a)(1)(C), insisting it had no notice of any dangerous condition; it also raised the “Recreational Use Statute,” Tenn. Code Ann. §§ 70-7-101 to -105, as an affirmative defense. Following discovery, the State filed a motion for summary judgment, which the claims commissioner granted. The commissioner found the State was entitled to judgment as a matter of law on two grounds. The commissioner found that Tenn. Code Ann. § 70-7- 102 of the Recreational Use Statute provided immunity to the State as a landowner against premises-liability claims and that the gross negligence exception under the statute, Tenn. Code Ann. § 70-7-104(a)(1), did not apply. The commissioner also held that the claimants failed to show that notice of the alleged dangerous condition had been provided to the State, which is an essential element of the Claims Commission Act. The plaintiffs appeal one issue, asserting a genuine issue of material fact existed concerning whether the State’s failure to maintain the playground was gross negligence. We affirm the Commissioner’s decision on both grounds. 

Here is a link to the opinion:

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

NOTE: This opinion is an all-too-common reminder of the harsh effects of the Tennessee Recreational Use Statute [hereinafter Act] because it provides immunity to landowners and leaves persons who have been injured due to negligence uncompensated.  See Victory v. State, No. M2020-01610-COA-R3-CV, slip. op., passim (Tenn. Ct. App. Oct. 29, 2021).

This opinion also offers up a good explanation of gross negligence under the Act. Id. at 4.   

Lastly, the opinion reminds us of an important point regarding appellate practice, to wit:

     The State also argues that we should affirm the Commissioner’s decision because the Commissioner provided two independent grounds for summary judgment, and Plaintiffs appealed only one. “Tennessee law . . . provide[s] that where a trial court provides more than one separate and independent ground for its judgment and a party fails to appeal one or more of the independent grounds, we must affirm the judgment of the trial court on the ground that was not challenged on appeal.” Buckley v. Elephant Sanctuary in Tennessee, Inc., No. M2020-00804-COA-R10-CV, 2021 WL 2450456, at *12 (Tenn. Ct. App. June 16, 2021) (citations omitted)[, perm. app. denied (Tenn. Oct. 14, 2021)]. 

     In addition to finding insufficient evidence of gross negligence, the Commissioner determined that Plaintiffs failed to establish an essential element of their claim under § 9- 8-307(a)(1)(C) of the Claims Commission Act because there was no evidence that the proper state official had been given notice of the playground’s condition. Plaintiff did not appeal this finding. Accordingly, we are compelled to affirm the Commissioner on this ground as well. 

Id. at 5. 

New Health Care Liability Action Opinion: Trial Court's Striking of Affirmative Defense Because a Certificate of Good Faith Was Not Filed to Support the Defense Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Hanson v. Levan, No. E2020-01581-COA-R9-CV (Tenn. Ct. App. Oct. 25, 2021).  The syllabus form the slip opinion reads:

In this healthcare liability action, the plaintiff sued several medical professionals and facilities. Following an amended complaint, which had removed multiple parties from the action, the remaining defendants filed their answer to the amended complaint that included allegations of comparative fault against a doctor that the plaintiff had removed as a party to the action in the amended complaint. The defendants did not file a certificate of good faith in compliance with Tennessee Code Annotated § 29-26-122, which is required when a defendant alleges comparative fault against a “non-party.” Following a motion by the plaintiff, the trial court entered an order striking the defendants’ allegations of comparative fault. The trial court further found that the defendants had not demonstrated good cause to support an extension of time to file a certificate of good faith. Discerning no error, we affirm.

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/brett_hanson_et_al._v._sarah_j._levan_et_al._0.pdf.

NOTE: This is the correct result under Tenn. Code Ann. sec. 29-26-122.  

New Case on Waiver of Affirmative Defenses and Summary Judgment: Trial Court's Grant of Summary Judgment Upheld on Appeal

The Tennessee Court of Appeals issued its opinion in F & M Bank v. Fleming, No. M2020-01086-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2021).  The syllabus from the slip opinion reads:

Appellant debtor appeals the trial court’s decision to find certain affirmative defenses waived, to deny his motion to continue the summary judgment hearing in order to conduct discovery, and to grant summary judgment to the defendant bank. Discerning no reversible error, we affirm. 

Here is a link to that opinion:

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

NOTE: This opinion is a one that every trial lawyer in Tennessee must read because it addresses waiver of affirmative defenses, motions filed under Rule 56.07 of the Tennessee Rules of Civil Procedure seeking additional time to respond to motions for summary judgment, and summary judgments in general.  Keep this one handy.       

Trial Court's Denial of Directed Verdict to Insuror in Declaratory Judgment Action Reversed on Appeal

The Tennessee Court of Appeals has recently released its decision Tennessee Farmers Mutual Insurance Co. v. Simmons, No. E2020-00791-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2021).  The syllabus from the slip opinion reads:

In the underlying declaratory judgment action, an insurance company sought a judgment that an automobile insurance policy issued to a mechanic does not provide coverage for an accident involving the mechanic. After examining the mechanic under oath, the insurance company moved for summary judgment, arguing that the policy contained a business purpose exclusion for accidents occurring while road testing a vehicle, which the mechanic stated he was doing at the time the accident occurred. The mechanic responded with an affidavit asserting that he was driving the vehicle for personal errands. The trial court denied the motion, finding that there was a genuine issue of material fact as to the mechanic’s purpose for driving the vehicle. At trial, the mechanic testified that he was running personal errands at the time of the accident but offered no explanation for his contradictory sworn statements. Following the close of proof, the insurance company renewed its argument regarding the policy’s exclusion and moved for a directed verdict. The trial court denied the motion and submitted the matter to a jury, which found that the exclusion did not preclude coverage of the accident. On appeal, the insurance company contends that the trial court erred by not applying the cancellation rule. We agree and hold that if the rule had been applied, no genuine issue existed for the jury to consider with respect to the mechanic’s business purpose at the time the accident occurred. Thus, the trial court should have directed a verdict in favor of the insurance company. The judgment of the trial court approving the jury verdict is vacated and the case is remanded.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/e2020-791_tn_ins._v._simmons.pdf.

NOTE: This opinion offers a good discussion of Tennessee insurance policies, the cancellation rule, etc.  It is worth reading in my humble opinion.  

New Tennessee Claims Commission Case: Dismissal of Claim Upheld on Appeal

The Tennessee Court of Appeals recently released its decision in Howard v. State, No. M2020-00735-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2021).  The syllabus from the slip opinion reads:

Following a car accident involving an employee of the State of Tennessee, Irene Howard . . . sought damages against the State based on alleged injuries arising from the accident.  The claim was denied by the Division of Claims and Risk Management . . . , and Claimant thereafter appealed to the Claims Commission . . . .  Because Claimant failed to appeal the DCRM’s decision within ninety days, however, the Commission concluded it lacked jurisdiction over the case and dismissed the appeal. We affirm. 

Here is a link to that opinion:

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

NOTE: This opinion offers a good discussion on filing claims in Tennessee Claims Commission and the  procedure associated with doing that.  A must read for one who handles claims against the State of Tennessee.     

  

New Health Care Liability Action Opinion: Trial Court's Dismissal of Plaintiff's Claim Due to Defective Presuit Medical Records Authorization Upheld on Appeal

The Tennessee Court of Appeals has released its opinion in Reese v. Waters of Clinton, LLC, No. E2020-01466-COA-R3-CV (Tenn. Ct. App. Aug. 4, 2021).  The syllabus from the slip opinion reads:

This healthcare liability action was brought against a skilled nursing facility. The plaintiff sent pre-suit notice to multiple potential defendants prior to initiating the action. The plaintiff, however, failed to include as part of the pre-suit notice a HIPAA-compliant medical authorization as one of the six core elements was missing from the authorization. Following a motion to dismiss filed pursuant to Tennessee Rule of Civil Procedure 12.02(6), the Trial Court granted the motion and dismissed the action against the defendant due to noncompliance with Tennessee Code Annotated § 29-26-121 and as being untimely. The Trial Court denied the plaintiff’s request to compel discovery in this matter concerning whether the plaintiff had substantially complied with the pre-suit notice requirement. The plaintiff argues on appeal that the Trial Court erred by not treating the defendant’s motion as a motion for summary judgment and by preventing the plaintiff from conducting discovery regarding the plaintiff’s compliance with Section 29-26-121, as well as the resulting prejudice to the defendant. Discerning no error, we affirm the Trial Court’s judgment in all respects.

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/e2020-1466_reese_v._clinton.pdf.

NOTE: This case offers a good discussion on what needs to be done to comply with HIPAA as it relates to authorizations to share and receive a patient's protected health information (PHI); those authorizations are supposed to be included as part of any presuit notice package sent to a potential defendant under Tennessee Code Annotated section 29-26-121.  In this case, a blank was left in each authorization so that the provider receiving presuit notice could ostensibly fill it in.  Reese, E2020-01466-COA-R3-CV, slip op. at 2.  That practice, however, has been held to not comply with HIPAA.  Id. at 13–14.  Since the authorizations did not comply with HIPAA, the plaintiff's claim fails as a matter of law.  See T.C.A. § 29-26-121 (LexisNexis 2021).  

This case also offers a good discussion of motions to dismiss versus motions for summary judgment to the extent that both challenge a plaintiff's noncompliance the presuit notice requirements contained in Tenn. Code Ann. sec. 29-26-121.  See id., passim.

Also, this opinion touches upon an attorney-in-fact (agent) acting on behalf of a patient in a Tennessee health care liability action (formerly known as a "medical malpractice case").  Id. at 2.  To the extent that the agent signs an authorization required for the release and sharing of a patient's PHI under -121 via a power of attorney form (POA), that form must be for health care purposes and not a general POA.  See June M. Sullivan & Shannon B. Hartsfield, HIPAA: A Practical Guide to the Privacy and Security of Health Data 39–40 (2d ed. 2020) ("For purposes of HIPAA, an individual's personal representative is a person with authority under state law to make health care decisions for the individual."  (Footnote omitted.)).  

New Tennessee Supreme Court Case: The Economic Loss Doctrine Clarified; Jury Verdict for Plaintiff Overturned, Etc.

The Tennessee Supreme Court has released its opinion in Milan Supply Chain Solutions, Inc. v. Navistar, Inc., No. W2018-00084-SC-R11-CV (Tenn. Aug. 8, 2021).  The syllabus from the slip opinion reads:

We granted permission to appeal primarily to consider how, if at all, the economic loss doctrine, which generally precludes recovery for purely economic losses in tort actions, applies in Tennessee to claims of fraudulent inducement. We hold that when, as here, a fraud claim seeks recovery of only economic losses and is premised solely on misrepresentations or nondisclosures about the quality of goods that are the subject of a contract between sophisticated commercial parties, the economic loss doctrine applies. Accordingly, we affirm the judgment of the Court of Appeals holding that the economic loss doctrine bars the plaintiff’s fraudulent inducement claim. We also affirm the judgment of the Court of Appeals holding that the plaintiff’s claim under the Tennessee Consumer Protection Act (“TCPA”) is barred as a matter of law because the trucks at issue are not “goods” as that term is defined by the portion of the TCPA on which the plaintiff relied. Tenn. Code Ann. § 47-18-104(b)(7) (2013 & Supp. 2020). We, therefore, set aside the plaintiff’s award of attorney’s fees and costs based on the TCPA. In all other respects, we affirm the judgment of the Court of Appeals on the separate grounds stated herein. 

Here is a link to the opinion:

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

NOTE: As a matter of full disclosure, I represented some of the amici in this case.  This opinion clarifies the law in Tennessee concerning the economic loss doctrine, which was unclear till now.    

New Uninsured Motorist (UM) Insurance Coverage Case: Trial Court's Finding of No UM Coverage for the Plaintiff Upheld on Appeal

The Tennessee Court of Appeals recently released its opinion in Medders v. Newby, No. M2020-01094-COA-R3-CV (Tenn. Ct. App. July 6, 2021).  The syllabus from the slip opinion reads:

An insurance company denied coverage for an accident its insured had with an uninsured/underinsured motorist because the insured had a “non-owner’s” policy, and the car she was driving did not fit the definition of a “non-owned auto.” The trial court concluded, following a bench trial on the bifurcated issue of coverage, that the insured’s policy did not cover the accident, and the insured appealed. We affirm the trial court’s judgment. 

Here is a link to the opinion:

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

NOTE: This is a good opinion to read for some insight into Tennessee's UM law., especially when it comes to the construction of insurance policies (which are contracts).  

New Wrongful Death Opinion: Grant of Summary Judgment to Defendant Upheld on Appeal

The Tennessee Court of Appeals released its opinion in O'Guin v. State, No. M2020-00732-COA-R3-CV (Tenn. Ct. App. July 28, 2021).  Here is the syllabus from the slip opinion:

A patient died after a fall at a state-owned rehabilitation facility. The administrator of the deceased patient’s estate filed a monetary claim against the State of Tennessee for negligently creating or maintaining a dangerous condition on real property. The State moved for summary judgment arguing that the claimant lacked sufficient evidence of causation. The Claims Commission agreed and granted summary judgment to the State. Because the claimant lacked sufficient evidence that the State’s conduct more likely than not caused the patient’s fall, we affirm.

Here is a link to the opinion:

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

NOTE: This opinion offers a good discussion of causation of injury (in this case, death) under Tennessee law.  

New Health Care Liability Action Opinion: Trial Court's Denial of Motion to Revise Interlocutory Order Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Ingram v. Gallagher, No. E2020-01222-COA-R3-CV (Tenn. Ct. App. July 19, 2021).  The syllabus from the slip opinion reads:

This appeal arises from a healthcare liability action wherein the plaintiff initially sued the doctor, the hospital, and two other defendants. The plaintiff voluntarily dismissed the action without prejudice against all defendants except for the doctor. The doctor subsequently filed an answer to the complaint, stating that the action should be dismissed under the Governmental Tort Liability Act because the hospital, a governmental hospital entity and the doctor’s employer, was not a party to the action. Shortly thereafter, the plaintiff filed a “Motion to Alter or Amend,” seeking to set aside the Trial Court’s order of dismissal in order to withdraw his voluntary dismissal of the hospital as a party. The Trial Court denied the plaintiff’s motion to alter or amend, determining that the voluntary dismissal order was a final order and that the plaintiff knew about the doctor’s employment with the hospital prior to the voluntary dismissal. We determine that the Trial Court erred by treating the plaintiff’s motion as a Tennessee Rule of Civil Procedure 60 motion, instead of a motion to revise pursuant to Rule 54.02, and further hold that the Trial Court erred by denying the plaintiff’s motion to revise the non-final order of voluntary dismissal.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/ingram_vs._gallagher_coa_opinion.pdf.

NOTE: Procedurally, this case is a mess.  There was a lot going on in the trial court below.  This opinion, however, is a great one that addresses motions to revise interlocutory orders under Rule 54 of the Tennessee Rules of Civil Procedure.  A lot of lawyers file motions to "alter or amend" interlocutory (nonfinal) orders, which is procedurally improper; this opinion sheds light on the issue and hopefully will clear up any confusion on this issue.  

Also, practically speaking, the plaintiff could have added the hospital as a party-defendant under Tennessee's comparative fault joinder statute, Tennessee Code Annotated section 20-1-119, after the doctor's answer was filed indicating that he was an employee of the hospital at the time in question.  That would have remedied the problem of the employer not being a party to the lawsuit under Tennessee's Governmental Tort Liability Action (and would have been an easy fix, too).  See Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 323–30 (Tenn. 2021), https://scholar.google.com/scholar_case?case=12106812184700824746&q=618+S.W.3d+309&hl=en&as_sdt=4,43.

New Health Care Liability Action Opinion: Trial Court's Dismissal of Case Upheld on Appeal Because Defendant-physician's Employer Not Added as a Party-defendant as Required by Statute

The Tennessee Court of Appeals has issued its opinion in Braylon W. v. Walker, No. W2020-00692-COA-R3-CV (Tenn. Ct. App. July 15, 2021).  The syllabus reads:

This appeal stems from a dismissal pursuant to Tennessee’s Governmental Tort Liability Act [(GTLA)]. Suit was filed against Appellant’s treating physician, among other defendants, for health care liability involving Appellant’s birth. The trial court ultimately granted summary judgment in favor of the physician, finding that, because the physician was an employee of a governmental entity at the time of the incident, Appellant was required by statute to name the physician’s employing governmental entity as a party defendant. Because Appellant failed to do so, the lawsuit against the treating physician could not proceed. Appellant now appeals the trial court’s grant of summary judgment. Discerning no error, we affirm the trial court’s dismissal.

Here is a link to the opinion: 

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

NOTE: This case is one that used to be called a "medical malpractice case," but is now called a "health care liability action" by statute; that change was effected by Tennessee Code Annotated section 29-26-101.  

This case accentuates the importance of naming a defendant "health care practitioner's" employer as a party-defendant if the case is a health care liability action that falls under the GTLA; failing to do that is generally fatal to the case, as pointed out here.  Plaintiff, however, could have added Dr. Walker's employer as a party-defendant under Tennessee Code Annotated section 20-1-119 (commonly referred to as the "comparative fault joinder statute" or just "-119") after her answer was filed indicating who her employer was at the time of the complained of negligence.  Bidwell ex rel. Bidwell v. Strait, 618 S.W.3d 309, 323–29 (Tenn. 2021) (explaining how -119 can be used to add a defendant's employer in a health care liability action covered by the GTLA), https://scholar.google.com/scholar_case?case=12106812184700824746&q=618+S.W.3d+309&hl=en&as_sdt=4,43.  I am not sure what that was not done here.  

New Case on the Tennessee Governmental Tort Liability Act: Liability Based on Negligence, Gross Negligence, Recklessness, and Exceptions to the Public Duty Doctrine Save the Day; Trial Court's Dismissal Reversed on Appeal

The Tennessee Court of Appeals released its opinion in Lawson v. Hawkins County, No. E2020-01529-COA-R3-CV (Tenn. Ct. App. July 14, 2021.  The syllabus from the slip opinion reads:

This appeal arises from litigation concerning a fatal road accident. Steven W. Lawson [] , by and through his wife, Penny Lawson, and on behalf of Corey Lawson, Decedent’s child . . . , sued the Hawkins County Emergency Communications District Board [] , Hawkins County, Tennessee and Hawkins County Emergency Management Agency . . .  in the Circuit Court for Hawkins County . . . alleging negligence, gross negligence, and recklessness in Defendants’ response to a road washout that led to Decedent’s death. Plaintiffs specifically alleged nepotism in Defendants’ hiring practices and a failure to train. Defendants filed motions for judgment on the pleadings, which the Trial Court granted partly on grounds that claims of recklessness could not proceed against the Defendant entities under the Governmental Tort Liability Act (“the GTLA”). Plaintiffs appeal. We hold that Plaintiffs could, in fact, proceed with their claims of recklessness and gross negligence under the GTLA, and the facts pled by Plaintiffs were sufficient to state claims based upon recklessness and gross negligence. We hold further that, based on the facts alleged at this stage, the third special duty exception to the public duty doctrine applies so as to remove Defendants’ immunity. We reverse the judgment of the Trial Court. 

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/penny_lawson_v._hawkins_county_coa_opinion.pdf.

NOTE: This is a good opinion for any judge or lawyer who has a case governed by the GTLA.  

THIS OPINION HAS BEEN OVERRULED ON FURTHER APPEAL BY THE TENNESSEE SUPREME COURT. That opinion is at this link:

Tony Duncan Law: New SCOTN Opinion: Dismissal of Complaint Due to the Fact that Governmental Immunity Is Removed for "Negligent" Employee Conduct and Not "Reckless" Conduct Upheld on Appeal (theduncanlawfirm.blogspot.com).

New Case on the Collateral Source Rule: Trial Court's Ruling that Disallowed Information About Collateral Sources Upheld on Appeal

The Tennessee Court of Appeals released its opinion in Doty v. City of Johnson City, No. E2020-00054-COA-R3-CV (Tenn. Ct. App. July 7, 2021).  The syllabus from the slip opinion reads:

This is a personal injury action in which the defendant tortfeasor claims that the trial court erroneously excluded evidence concerning plaintiff’s claimed medical expenses. On appeal, we affirm the trial court’s rulings on the admissibility of evidence. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/doty_vs._city_of_johnson_city_coa_opinion.pdf.

NOTE: This opinion is a must-read one for any lawyer who handles personal injury cases governed by Tennessee substantive law.  Also, in my humble opinion, this is a correct decision, too, based upon the applicable law.  

New Health Care Liability Action Opinion: New Trial Ordered Due to Trial Court Errors as to Expert Witness Testimony and Premajority Medical Expenses

The Tennessee Court of Appeals has released its opinion in Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, No. E2020-00158-COA-R3-CV (Tenn. Ct. App. July 1, 2021).  The syllabus from the slip opinion reads: 

This health care liability action arises from injuries suffered by a minor, Miyona Hyter, during her birth. Miyona Hyter, a minor by and through her next friend and mother, Brittany Borngne[,]  . . . sued, among others, Dr. Michael Seeber who delivered the child via cesarean section and certified nurse midwife Jennifer Mercer who assisted with the birthing process. Plaintiff alleged that Nurse Mercer was negligent by failing to recognize concerning signs on the fetal monitoring strip and by failing to call Dr. Seeber for assistance sooner than she did. The Circuit Court for Hamilton County . . . , by agreed order, granted Dr. Seeber partial summary judgment on all claims of direct negligence against him; he remained in the case as a defendant only upon Plaintiff’s theory that he was vicariously liable for Nurse Mercer’s actions as her supervising physician. During his deposition, Dr. Seeber declined to answer questions that he argued required him to render an expert opinion regarding Nurse Mercer’s care during times that Dr. Seeber was not present and had no involvement in Plaintiff’s care. The Trial Court declined to require Dr. Seeber to answer questions that “call[] for an opinion by Dr. Seeber that asks him to comment on the actions of other healthcare providers and does not involve his own actions, as required by Lewis v. Brooks,” 66 S.W.3d 883, 887-88 (Tenn. Ct. App. 2001). After Nurse Mercer’s deposition, she submitted an errata sheet that substantively altered her answers to some of the questions. Plaintiff moved to suppress the errata sheet, arguing that Tenn. R. Civ. P. 30.05 does not allow a witness to make substantive changes to her deposition testimony. The Trial Court denied the motion but allowed Plaintiff the opportunity to reopen Nurse Mercer’s deposition and to fully cross-examine her at trial about the changes. The case proceeded to trial before a jury, which returned a verdict in Defendants’ favor. We hold that the Trial Court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition. Deeming this case distinguishable from Lewis v. Brooks, we reverse the Trial Court in its declining to compel Dr. Seeber to testify concerning the conduct of his supervisee, Nurse Mercer, and remand for a new trial. We also reverse the Trial Court in its decision to exclude proof of Miyona Hyter’s pre-majority medical expenses. We affirm the Trial Court as to the remaining issues.

Here is a link to the majority opinion:

https://www.tncourts.gov/sites/default/files/e2020-158_borngne_v._chattanooga.pdf.

Here is Judge Davis's opinion that concurs in part and dissents in part:

https://www.tncourts.gov/sites/default/files/e2020-158_borngne_v._chattanooga_sep_opin.pdf.

NOTE: This decision offers a good discussion of deposition testimony and errata sheets under Rule 30.05 of the Tennessee Rules of Civil Procedure, expert witness testimony (especially related to subordinate providers), and premajority medical expenses. 

Once can be certain that the Tennessee Supreme Court will be asked to review this case via an application for permission to appeal under Rule 11 of the Tennessee Rules of Appellate Procedure.  More to come.  

UPDATE: SCOTN granted permission to appeal in this case on Oct. 16, 2021, to wit: https://tncourts.gov/sites/default/files/sc_discretionary_appeals_list_2021oct18.pdf.

Tennessee Appellate Practice: Jury Verdict for the Defense Upheld on Appeal Because It Was Supported by Material Evidence

The Tennessee Court of Appeals has issued its decision in Justice v. Hyatt, No. M2019-02105-COA-R3-CV (Tenn. Ct. App. June 30, 2021).  The syllabus from the slip opinion reads:

Two cars collided at a four-way stop. One driver filed a personal injury action against the other. At trial, the two sides presented conflicting descriptions of the accident. The jury found the defendant driver was not at fault. And the trial court, as thirteenth juror, approved the jury verdict. Because the jury verdict is supported by material evidence, we affirm. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/justice.james_.opn__0.pdf.

NOTE: This decision is a good refresher of the importance and effect Rule 13(d) of the Tennessee Rules of Appellate Procedure has on appeals of jury verdicts.  

Tennessee Civil Procedure: A Plaintiff May Amend Complaint Any Time Before a Responsive Pleading Is Filed or the Dismissal of Initial Complaint Becomes Final

The Tennessee Court of Appeals has released its opinion in Justice v. Nordquist, No. E2020-01152-COA-R3-CV (Tenn. Ct. App. June 29, 2021).  Here is the syllabus from the slip opinion:

Loring Justice . . . [,] individually and as next friend of N.N./N.J.],] . . . sued Vey Michael Nordquist, Ph.D.  . . . in the Circuit Court for Knox County . . . over Defendant’s actions in connection with paternity litigation to which Plaintiff was a party. Defendant filed a motion to dismiss, but never filed a responsive pleading to the original complaint. The Trial Court granted Defendant’s motion to dismiss. Before time for appeal expired, Plaintiff filed an amended complaint as he was entitled to do under Tenn. R. Civ. P. 15.01 given that Defendant never filed a responsive pleading to the original complaint. However, the Trial Court never ruled on Plaintiff’s amended complaint. The order appealed from is not a final judgment, meaning we lack subject matter jurisdiction to hear this appeal. Therefore, we dismiss this appeal.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/e2020-01152_justice_v._nordquist.pdf.

NOTE: This opinion is a good reminder that a motion to dismiss is not a responsive pleading that would prohibit free amendment under Rule 15 of the Tennessee Rules of Civil Procedure.  

New Health Care Liability Action Opinion: Defense Verdict in Second Trial (Which Was Bifurcated) Upheld on Appeal

The Tennessee Court of Appeals released its decision in Jernigan v. Paasche, No. No. M2020-00673-COA-R3-CV (Tenn. Ct. App. June 21, 2021).  The syllabus from the slip opinion reads:

In this health care liability action, an initial jury trial resulted in a verdict for the defendant physicians. The plaintiff filed a motion for new trial, which the trial court granted. Prior to the second jury trial, the trial court determined that the trial should be bifurcated such that the first phase would address only the applicable standard of care and whether the defendants deviated therefrom, and the second phase would address causation. Following completion of the standard of care phase, the jury again ruled in favor of the defendants. The plaintiff filed a second motion for new trial, which the trial court denied. The plaintiff timely appealed. Discerning no reversible error, we affirm.

Here is a link to the slip opinion:

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

NOTE: This opinion deals with the bifurcation of issues for trial, the admission of expert witness testimony, and waiver of issues.  It is a must-read decision for any lawyer who handled health care liability actions governed by Tennessee substantive law.  

Further, I expect the Tennessee Supreme Court will be asked (via an application for permission to appeal) to review this decision.  The bifurcation below might be what gets that application granted; we shall see.