Here are some of the most recent statistics concerning tort claims and trials in the Tennessee court system for the fiscal year ending June 30, 2015:

  1. There were 9777 tort filings in state court, with 9695 tort cases concluded.  Only 339 of those cases were tried to a judge or jury.
  2. There were 356 health care liability actions filed, with 346 such cases concluded. Only 28 of those cases were tried.
  3. Only 3.7% of all tort and health care liability dispositions were resolved by a trial.
  4. There were only 183 jury trials in torts cases.
  5. Of the 367 total trials, only 116 resulted in an award of damages.  Total damages awarded was just under $47,000,000.
  6. There were 7 damage awards of $1,000,000 or more in the entire state.
  7. There were 14 damage awards between $100,000 and $1,000,000.
  8. There were 99 damages awards under $99,999.  (Think about the average award in those cases, and consider how many of these can be considered “wins” by the plaintiff.)
  9. The largest award of the year was a $30,000,000 verdict in Shelby County.
  10. In the past seven years, the number of cases being disposed of by trial has decreased by almost 40%, from 608 to 357.
  11. There were 42 jury trials and 11 non-jury trials in Davidson County, 26 of which resulted in an award of damages.
  12. Shelby County had 30 jury trials and 35 non-jury trials.  Damages were awarded in 32 of those cases.

More thoughts on this data in the coming days.

In Jones v. Bradley County, No. E2015-00204-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2016), plaintiff sued Bradley County after she collided with a truck responding to a fire at a red-light intersection. Plaintiff had the green light at the intersection. Defendant, a fire rescue employee, was driving a Ford F-250 truck that was equipped with a siren and emergency lights. Defendant proceeded to turn left against a red-light, at which time plaintiff’s car collided with defendant’s truck, causing plaintiff significant injuries.

Bradley County relied on Tenn. Code Ann. § 55-8-108, which “provides privileges to emergency vehicle drivers under certain circumstances.” This statute allows emergency vehicle drivers to “proceed past a red or stop signal[,]” but still requires the driver “to drive with due regard for the safety of all persons[.]” While analyzing this case, though, the Court pointed out that that “[t]he obligation to exercise due care is, thus, not excused by the fact that the [emergency] driver is responding to an emergency call.” (citation omitted).

Bradley County further asserted that the sole cause of this accident was plaintiff’s failure to comply with Tenn. Code Ann. § 55-8-132, which provides that “upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals…the driver of every other vehicle shall yield the right-of-way.” The Court pointed out that, when previously applying this statute, the Court has “noted the requirement of due care when entering an intersection even under authority of a green light” and “observed that if plaintiff should have heard the siren or should have seen the blue lights flashing, she…cannot evade her duty to yield to an emergency vehicle by saying that she did not hear and did not see because she did not look.” (citation and internal quotations omitted). In response to this argument, plaintiff pointed to the County Rescue Service operations manual, claiming that defendant violated the portions of the manual that stated that emergency drivers should “slow to a safe speed at which a stop could be made, and insure that all traffic has yielded” and “change the siren mode” when approaching an intersection. Plaintiff further argued that the evidence showed that defendant did not drive with due care through the intersection.

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In Willis v. McDonald’s Restaurants of Tennessee, Inc., No. E2015-00615-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff’s inability to prove the cause of her fall proved fatal to her premises liability action. Plaintiff and her husband entered a McDonald’s restaurant that they had been to several times. Husband sat at a table while plaintiff went to the counter to order. After ordering, she walked to the drink station and prepared two large drinks, then walked past the service counter toward her husband, at which time she slipped and fell, spilling the liquid and ice from the drinks she was holding on the floor.

Plaintiff claimed that a “sharp object” and/or “hard object” caused her fall, as she said she felt it through her shoe immediately before slipping. She believed it was a piece of ice, but had no proof of that assertion. No such object was identified before the fall, and after the fall plaintiff’s own ice was covering the area.  The restaurant in question had tile flooring, and there was a non-skid surface in front of the service counter. At the time of plaintiff’s fall, there was a French fry on one corner of the non-skid surface, which plaintiff stepped over shortly before falling. Plaintiff also pointed out that an employee found a straw wrapper on the floor soon after her fall, and that employees allegedly tracked grease from the kitchen to the service area of the restaurant. A security camera captured plaintiff’s fall and showed that on the day of the incident, “placards were placed throughout the restaurant…to alert patrons of possible slippery conditions.”

Defendant moved for summary judgment, asserting that “plaintiffs could not identify the cause of her fall and that she could not establish that Defendant created the dangerous condition that caused the fall or that Defendant had any knowledge, either actual or constructive, of the dangerous condition prior to the fall.” The trial court granted summary judgment, which the Court of Appeals affirmed.

In its analysis, the Court noted that plaintiff pointed out many potentially dangerous conditions—“the absence of a mat at the drink station, the transition from a non-skid surface to tile, the French fry on the rug…, and the negligent behavior of employees who traversed the area with greasy shoes and mops.” In this case, however, plaintiff had admitted that none of those conditions caused her fall. Instead, she specifically testified that a “hard object” was the problem here, and that “hard object” had not been and could not be identified. According to the Court, “[t]he ‘fatal flaw’ in this action is that Plaintiffs cannot identify the hard object that actually caused the fall; therefore, they cannot establish that Defendant caused the dangerous condition or that Defendant had actual or constructive notice that the condition existed long enough to be discovered by proper diligence.” The Court found that while “Defendant may be responsible for a myriad of dangerous conditions throughout the restaurant[,] Plaintiff simply cannot establish that any of these conditions caused her fall without identifying the object responsible.” Accordingly, summary judgment was affirmed, as plaintiff could not establish the element of causation.

This is a case where plaintiff’s testimony simply did not match her evidence. In a premises liability action, plaintiff must be able to prove causation and that the dangerous condition was created by the defendant or that defendant had knowledge (actual or constructive) of the condition. Where plaintiff has evidence regarding one or more dangerous conditions, yet testifies that something different for which she has no evidence caused her fall, this is a likely result.

In 2007, the Tennessee legislature enacted Tenn. Code Ann. § 44-8-413, which addresses injuries caused by dogs. This statute draws a distinction between (1) injuries caused by a dog “running at large” and (2) injuries caused by a dog on its owner’s property. For the latter group, the statute provides that “the claimant shall be required to establish that the dog’s owner knew or should have known of the dog’s dangerous propensity,” and a recent case gave the Tennessee Court of Appeals its first opportunity to interpret this language.

In Moore v. Gaut, No. E2015-00340-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2015), plaintiff went to defendant’s house to service a satellite dish. Defendant had a great dane fenced in his backyard. According to plaintiff, he was greeted by defendant’s father, who told him that the dog was “gentle” and “jovial” and encouraged him to greet the dog. Plaintiff alleged that when he went to get tools out of his vehicle, which was parked next to the fence, the dog “jumped up, leaned over the fence and bit [his] face.” Plaintiff filed suit against defendant dog owner.

Defendant moved for summary judgment, which he supported with an affidavit stating that his dog “was in a fenced-in area of his backyard” and that the “dog [had] never bitten anyone or attacked anyone.” In response, plaintiff filed his own affidavit detailing the incident and reiterating that he was never warned that the dog might act aggressively. The trial court held that “the undisputed facts established that there had been no previous history of the dog biting, attacking, or acting aggressively.” Instead, the trial court ruled that the evidence showed the opposite—that the dog had never bitten or attacked anyone, and that there was no evidence it had engaged in playful behavior that could be dangerous. Finding that there was no evidence to “put the defendant on notice that the dog was dangerous,” summary judgment was granted to defendant, which the Court of Appeals affirmed.

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A continued problem for HCLA plaintiffs seems to be complying with the requirement to provide a HIPAA authorization with their pre-suit notice. In Dolman v. Donovan, No. W2015-00392-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), another HCLA claim was dismissed due to the inadequacy of plaintiffs’ HIPAA authorizations.

Plaintiffs’ claims related to the treatment of their father at Methodist Hospital. In their suit, plaintiffs named two doctors, Methodist LeBonheur Healthcare, Memphis Vascular Center, and Memphis Radiological, P.C. as defendants. In addition to the named defendants, pre-suit notice was served on an additional three parties—another doctor, Methodist Healthcare Germantown, and Mid-South Pulmonary Specialists. “The notice letters were accompanied by three Methodist LeBonheur Healthcare medical records authorizations forms. Substantively, the three authorizations were identical, but each was signed by a different [plaintiff].”

After suit was filed, defendants moved to dismiss, asserting that the authorizations did not comply with the HCLA statute in that they “only allow[ed] the release of records from Methodist LeBonheur Healthcare” and “did not enable them to obtain the records from ‘each provider being sent a notice’ as required by statute.” In response, plaintiffs argued that the HIPAA authorizations were compliant because they authorized the release of records from “Methodist LeBonheur Healthcare and its affiliates,” and that “the doctors and other named healthcare providers were ‘affiliates’ of Methodist….” Finding that the authorizations were not statutorily compliant, the trial court dismissed the case, and the Court of Appeals affirmed.

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In 2011, the Tennessee legislature amended Tenn. Code. Ann. § 28-1-106 regarding tolling of statutes of limitations, replacing the language “of unsound mind” and “after the removal of such disability” with “adjudicated incompetent” and “after legal rights are restored.” The current version of the statute reads:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

Recently, the Tennessee Court of Appeals analyzed the meaning of this language change, marking the first time a state court has interpreted the new terms.

 

In Johnson v. UHS of Lakeside, LLC, No. W2015-01022-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015), plaintiff filed an HCLA claim related to her late husband’s fall at defendant’s facility. It was uncontested that she gave pre-suit notice more than one year after the cause of action accrued, and that she filed the complaint more than one year and 120 days after the same. Defendant moved to dismiss the claim based on the statute of limitations. Plaintiff opposed the motion on the basis that her husband met the criteria of § 28-1-106 and that the statute of limitations was thus tolled. The trial court dismissed the action, and the Court of Appeals affirmed.

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The medical community in Tennessee doesn’t want judges and juries to know how much money they make from testifying as expert witnesses.   So they have persuaded two members of the General Assembly to introduce legislation that applies not only to medical doctors but to every type of expert witness.

This is the substance of HB 1466:

Except for good cause shown and pursuant to court order, a party may not discover a statement of compensation that is paid to an expert witness for any study and testimony in a case.

Set aside the historical notion that the judicial branch of government is normally tasked with the responsibility of determining what evidence should be admitted in the courtroom and discovered by the litigants during the pre-litigation process.  Think instead of the public policy implications here:  it allows one side or another to buy testimony and impede the opposing party’s ability to cross-examine for bias.   It someone wants to make a living testifying for a car manufacturer or a doctor or for plaintiffs in asbestos cases so be it – but the fact-finder should be permitted to know that is exactly what they do and how much they earn from such endeavors.

Tennessee’s civil justice system already has a mechanism in place for protecting experts from unreasonable discovery of personal financial affairs.   This bill guts a process that works, and replaces it with a plan that encourages litigants to pay whatever they want to get the testimony they need, leaving the judge and jury in the dark about what any rational person would recognize is a relevant point:  what was paid to obtain the testimony.

At best, the legislation reflects a misunderstanding of how the civil justice system works.  At worst, it reflects a desire to protect those who have the resources to buy whatever testimony they need to win with no fear of being exposed.

One last point.  Note that the legislation also applies to criminal cases.  Thus, wealthy defendants will get even more power to create a reasonable doubt because the jury will not be permitted to know what they paid to their expert witnesses on DNA testing, eyewitness identification issues, etc.

 

In Steele v. Primehealth Med. Center, P.C., No. W2015-00056-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2015), the  Tennessee Court of Appeals affirmed summary judgment for defendant in a premises liability case, “concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk [at issue] was unreasonably dangerous.”

Plaintiff was an office supply store delivery person, and he was making his first delivery to defendants’ building. The building was owned by one defendant and occupied by another defendant, a medical center. In front of the entrance, the sidewalk had a curb-cut for a wheelchair ramp. One side of the cut sloped down to the incline, but the other side did not slope and instead had a “single step riser approximately 5 inches high.” The ramp, the lower landing, and the curb cut were lighter in color than the surrounding concrete sidewalk, but there were no particular markings. While plaintiff was pulling his dolly down the sidewalk to make a delivery and “looking straight ahead toward the entrance as he walked,” he stepped off the single step riser and broke his leg.

Plaintiff brought this premises liability action, alleging that defendants “fail[ed] to either make the condition safe or warn others of the dangerous condition by appropriate warning signs.” Defendants filed a motion for summary judgment supported primarily by expert testimony. Defendant’s expert stated that the sidewalk in question met all building codes, was inspected and approved by city officials, and that it was “similar in detail to figures shown in the 1999 North Carolina Accessibility Code.” Further, defendant building owner testified that there had been no other incidents between the 2001 construction of the building and sidewalk and this litigation.

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In a case that could have only arisen in Shelby County,  Weatherspoon v. Minard, No. W2015-01099-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2015), the Court of Appeals affirmed a trial court’s decision to dismiss a health care liability claim after excluding the plaintiff’s expert witness five days before trial.

The alleged negligence occurred in 1998, and this case had been pending in different forms for over fifteen years. After defendant filed a motion for summary judgment in 2009 on the basis that plaintiff did not have a standard of care expert, plaintiff responded and provided the affidavit of Dr. Evans. Defendant served a notice of deposition for Dr. Evans on May 22, 2013, with the deposition to occur one week later. “The notice requested that [plaintiff] ensure Dr. Evans produced certain documents at the deposition, including those related to the income he earned as an expert witness.” Dr. Evans failed to provide this information at his deposition, and continued to refuse to do so, even after the trial court granted defendant’s motion to compel production pursuant to a subpoena duces tecum.

The trial was set for February 2, 2015. On January 13th, counsel for defendant appeared at Dr. Evans’s office per the subpoena, but was told that Dr. Evans was not there and that counsel “did not have permission to be on the property.” Three days later, defendant filed a motion in limine to exclude Dr. Evans based on his refusal to provide these financial documents. The trial court heard arguments on January 28th and granted defendant’s motion excluding Dr. Evans. Because Dr. Evans was plaintiff’s only standard of care expert, and because standard of care must be proven by expert testimony in an HCLA case, the court dismissed plaintiff’s case.

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