Lawsuit Against Agent for Inadequate Insurance Limits

 The case of Barrick v. State Farm Mut. Auto. Ins. Co. and Jones, No. M2013-01773-COA-R3-CV (Tenn. Ct. App. June 27, 2014) first begins in 2008, when the Barrick family was sued after their minor son accidentally killed a motorcyclist in a tragic crash while driving his father’s car.  For over 20 years, the Barricks had been insured with State Farm through their insurance agent Thomas Jones. Unfortunately, however, at the time of the crash their policy limits for auto liability coverage was only $100,000 per person. The family of the deceased motorcyclist ultimately settled their lawsuit against the Barricks for a total sum of $200,000, with State Farm paying $100,000 and the Barricks paying the remaining $100,000 in excess of their policy limits.

Thereafter, the Barricks sued State Farm and their insurance agent, Mr. Jones, and asserted claims of negligence, negligent training and supervision (of Mr. Jones by State Farm), assumption of duty (because Mr. Jones had taken additional duties beyond those of an insurance agent by recommending and also selecting the Barricks’ insurance coverage limits), and violation of the Tennessee Consumer Protection Act (“TCPA”).  The trial court eventually dismissed all of the Barricks’ claims by granting State Farm’s and Mr. Jones’ motions for summary judgment, and the Barricks appealed.

On appeal, the Barrick court affirmed dismissal of the negligence claim, based on consideration of two undisputed facts: (1) that the Barricks had procured State Farm insurance through Mr. Jones for over 20 to 25 years, and (2) that the Barricks received copies of their insurance policies, declarations pages, and renewal notices during this time period. Relying on Tennessee precedent from Weiss v. State Farm Fire & Casualty Company, 107 S.W.3d 503, 506 (Tenn. Ct. App. 2001) – which holds that an agent’s duty ends when the agent obtains insurance for plaintiffs and properly provides copies, notices, and declarations – the Barrick court held that State Farm and Mr. Jones did not owe a duty to the Barricks and therefore could not be liable for negligence.

For the assumption of duty claim, the Barricks argued that Mr. Jones, their insurance agent, had assumed responsibility for selecting appropriate insurance coverage for the family by choosing the terms and limits of coverage on all policies during the time the Barricks bought insurance from him. Mr. and Mrs. Barrick each testified that they never selected the coverage or limits on their insurance policies, that they were never advised to increase their limits or to obtain an umbrella policy, and that had they been so advised they would have increased their limits or obtained an umbrella policy. As a result, the Barricks argued that they had a special relationship with Mr. Jones because Mr. Jones had assumed duties beyond those of an ordinary insurance agent thereby obligating him to select appropriate liability insurance and limits.

Significantly, after reviewing the Tennessee Supreme Court’s decision in Bennett v. Trevecca Nazerene Univ., 216 S.W.3d 293 (Tenn. 2007) – which held that “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully” – the Barrick court held that the principle of assumption of duty applied to the case. Hence, if Mr. Jones regularly recommended and selected coverage for the Barricks, then he had a duty to do so with reasonable care.

Upon reconsidering State Farm’s and Mr. Jones’ burden on summary judgment under the Hannan standard, the Barrick court ruled that Defendants could not affirmatively negate an element of the Barricks’ remaining claims  nor could they show that the Barricks could not prove an element of the remaining claims at trial.  Therefore, the Barricks’ claims based on assumption of duty, vicarious liability, failure to supervise, and violation of the TCPA all survived and were remanded back to the trial court for further proceedings. 


Truck Driver Left Vehicle and Loses Protection Under UM Coverage

 An over-the-road truck driver parked his truck on the shoulder of a road, got out, walked across a five-lane highway to a convenience store, purchased a soft drink and chewing tobacco, walked back across the highway towards his truck, but in the lane second-nearest the truck was struck by a vehicle which fled the scene.  The truck driver was injured and sough coverage under his employer’s uninsured motorist policy.  The UM carrier denied coverage and moved for summary judgment arguing that the truck driver was not entitled to coverage because he was not “occupying” a covered auto at the time of the accident.  The policy defined “occupying” as “in, upon, getting in, on, out or off” a covered auto.  The trial court granted summary judgment and the truck driver appealed.  The case is Beech v. John Doe, No. M2013-02496-COA-R2-CV (June 11, 2014).

            The issue on appeal was whether the truck driver was “upon” the truck at the time of the accident for purposes of uninsured motorist coverage.  The court of appeals found he was not and upheld the trial court’s grant of summary judgment.  The court of appeals looked at a number of other cases interpreting “upon.”  Most notably, the court looked to Tata v. Nichols, 848 S.W.2d 649 (Tenn. 1993) in which the Tennessee Supreme Court found that the term “upon” when used to define “occupying” for purposes of UM coverage is ambiguous.  The Supreme Court adopted four criteria for determining whether a person is “upon” a vehicle so as to “occupy” it:

(1) there is a causal relation or connection between the injury and use of the insured vehicle;

(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;

(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and

(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.

848 S.W.2d at 651-52.  These factors were initially set forth in the Pennsylvania case of Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (Pa. 1984) and are referred to as the “Utica test.” 

            Considering the Utica test and several other Tennessee cases applying the factors, the court of appeals found that, based on the facts stated above, the truck driver in Beech was not “upon” the insured vehicle when he was struck. 

Mr. Beech argued that there was a causal relationship between his injury and the insured truck because he was making a customary stop in an employer-owned vehicle.  The court was not persuaded instead finding that Mr. Beech was not operating the vehicle at the time of the injury and its use did not bring about his injuries.  Mr. Beech also argued that he was engaged in a transaction that was essential to the use of the truck because “[i]t is essential for truck drivers to have refreshments and comfort items on their trips” and federal law requires truck drivers to make stops on long trips.  The court was not persuaded by these arguments either because Mr. Beech had just begun the trip and was not at a point where federal law required him to take a break.  The court found that Mr. Beech had severed his relationship with the truck when he exited it to make a purchase and that he had not yet resumed his relationship when he was struck and injured.


Tennessee Insurance Coverage Decision

 In Cleveland Custom Stone v. Acuity Mutual Insurance Company, No. E2013-02132-COA-R3-CV (June 10, 2014), the Tennessee Court of Appeals considered a myriad of issues in a case concerning an insurance company’s failure to pay insurance proceeds to the Plaintiffs for a building destroyed by fire. 

The business that owned the building sought to add insurance coverage for the building to the business’s existing insurance policy with Acuity when it purchased the building in 2007.  The business used USIG, an agent of Acuity, to procure the coverage.  USIG provided a certificate of insurance form at the closing of the sale of the building to the business.

Following the fire, Acuity denied payment and notified the business that it never had successfully added coverage for the building.  Acuity also alleged that the business owners intentionally set the fire. 

Following a jury trial, the jury found that USIG was Acuity’s agent, that the business had procured insurance coverage from Acuity, and that the business owners did not intentionally set the fire.  The jury awarded compensatory damages, but denied punitive damages despite finding that Acuity had violated the Tennessee Consumer Protection Act (TCPA). 

On appeal, the court considered several issues, with the two most interesting being (1) whether the trial court erred in denying Acuity’s motion for directed verdict and (2) whether the trial court erred in instructing the jury.

With regard to issue (1), Acuity asserted that it should have been granted directed verdict because USIG acted outside of its agency relationship with Acuity when it issued the certificate of insurance.  Acuity also argued that the business was barred from recovering because it failed to read the policy of insurance, and that the business failed to prove that it procured insurance coverage for the building.  Under the standard for directed verdict, the trial court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence and deny the motion if the party with the burden of proof has presented sufficient evidence to create a fact issue for the jury to decide.  Under this standard, the court of appeals upheld the trial court’s denial of directed verdict to Acuity pointing to testimony that plaintiffs desired to add coverage for the building and that plaintiffs believed they had procured such insurance.  The court also noted that under Allstate Ins. Co. v. Tarrant, 363 S.W.3d 508, 522 (Tenn. 2012), insureds are not required to search their policies in an effort to discover errors.  Lastly, the court found that the plaintiffs provided alibis for their whereabouts at the time of the fire and offered an explanation for the suspicious nature of the fire that a former employee may have caused it in retaliation for his termination.

With regard to issue (2), the trial court instructed the jury on Tenn. Code Ann. § 55-6-115(b), which provides, in relevant part, that:

An insurance producer who solicits or negotiates an application for insurance shall be regarded, in any controversy arising from the application for insurance or any policy issued in connection with the application between the insured or the insured’s beneficiary and the insurer, as the agent of the insurer and not the insured or insured’s beneficiary.

Acuity complained that the trial court instructed the jury on this statute because the case involved misrepresentations made in a certificate of insurance and not an erroneous application for insurance.  The court of appeals found that Acuity was mistaken in its position finding the case involved mistakes in each renewed policy following the business’s request for insurance coverage for the building. 

The court likened the case to Tarrant in which the insured instructed his insurance agent to place his business vans under his commercial insurance policy but instead the insurance agent mistakenly added the business vans to the insured’s personal policy.  After an accident involving one of the business vans, the insurance carrier refused to pay the claim under the commercial policy.  The Tennessee Supreme Court held that the insurance carrier was estopped to deny coverage under the commercial policy because the insurance carrier should bear the consequences of the agent’s mistake.  The Supreme Court cited Tenn. Code Ann. § 56-6-115(b) in reaching its holding and found that the insured had not ratified the agent’s mistake when the agent was acting for the insurance carrier and not for the insured. 

In the present case, the court of appeals found that the business owners relied on USIG to provide the coverage requested and that as a result of USIG’s mistake, the coverage was not provided.  Thus, the court found that the jury instruction was relevant and applicable.

Remember that the Tennessee Code was amended in the tort reform legislation of 2011 and no longer allows TCPA claims to be brought for actions involving insurance policies.  


Fraudulent Concealment Exception to Medical Malpractice Statute of Limitations and Statute of Repose in Tennessee

 In Robinson v. Baptist Memorial Hospital, No. W2013-01198-COA-R3-CV (July 11, 2014), the court addressed the fraudulent concealment exception to the statute of limitations and statute of repose for medical negligence actions in Tennessee.  In this case, the defendant doctor erased the initial version of his consult note and changed his initial, incorrect, diagnosis of the decedent.  During discovery, the plaintiff learned of this change and was granted leave to amend the complaint to add the defendant doctor and his medical practice as defendants.  This amended complaint was filed around five years after the initial lawsuit was filed – outside of the one-year statute of limitations and three-year statute of repose for medical negligence claims in Tennessee.

Under Tennessee law, the doctrine of fraudulent concealment will toll the running of a statute of limitations.  It tolls the statute when a defendant has taken steps to prevent the plaintiff from discovering that he was injured.  There are four elements that must be met to prove fraudulent concealment:

(1) that the defendant affirmatively concealed the plaintiff’s injury or the identity of the wrongdoer or failed to disclose material facts regarding the injury or the wrongdoer despite a duty to do so;

(2) that the plaintiff could not have discovered the injury or the identity of the wrongdoer despite reasonable care and diligence;

(3) that the defendant knew that the plaintiff had been injured and the identity of the wrongdoer; and

(4) that the defendant concealed material information from the plaintiff by withholding information or making use of some device to mislead the plaintiff in order to exclude suspicion or prevent inquiry.

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 462-63 (Tenn. 2012).

When these conditions are met, “[t]he statute of limitations is tolled until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered the defendant’s fraudulent concealment or sufficient facts to put the plaintiff on actual or inquiry notice of his or her claim.”  Id. at 463.  The statute of limitations runs from the point at which the plaintiff discovers or should have discovered the claim and the plaintiff must file the claim within the statutory limitations period.  Id.

Usually the question of whether a plaintiff exercised reasonable care and diligence in discovering the injury or wrong is one of fact for the jury; however, where the undisputed facts show that no reasonable trier of fact could conclude a plaintiff did not know or should not have known about an injury or wrong, Tennessee law provides for dismissal of the lawsuit on the pleadings or through summary judgment. 

The court of appeals found that the trial court in Robinson based its grant of summary judgment on two grounds – the plaintiffs’ failure to aver facts sufficient to show that the doctor fraudulently concealed any material fact or to create a fact dispute as to fraudulent concealment, and that the plaintiffs were not diligent in discovering the alleged injury when they had discovery materials containing the information within the limitations period.

The court of appeals first analyzed the evidence presented by the plaintiffs to establish fraudulent concealment.  The court found that under the summary judgment standard, which requires the court to review the evidence in the light most favorable to the nonmoving party and to draw all reasonable inferences in favor of the nonmoving party, that an issue of fact exists with regard to whether the defendant doctor’s action in erasing the initial version of his consult note was a violation of the standard of care which would allow an inference of fraudulent concealment.  The court found that the inference is “somewhat tenuous, but it is not outside the realm of reasonableness” and concluded that the trial court erred in granting summary judgment on the ground of lack of evidence of fraudulent concealment.

However, the court went on to find that, giving the nonmoving party the most favorable reading of the facts and giving every inference in their favor, the plaintiffs had the information about the changed diagnosis in their possession on July 22, 2010, and therefore should have known of the wrong as of that date.  The court found this would extend the statute of limitations to July 22, 2011, but that due to the pre-suit notice requirement, that limitations period would be further extended for 120 days to November 19, 2011.  The plaintiffs did not file their complaint until February 1, 2012 and therefore, the court found that the suit was filed well outside of the adjusted statute of limitations and repose period.  Thus, the court of appeals affirmed the dismissal of the case.  

As it should have.  

Train Wreck. Divorce Trial. But I Repeat Myself

This is a decision about a divorce trial but we are reviewing it on Day on Torts because we always write about cases involving train wrecks.

Seriously, we will cover this case because it contains some useful reminders about (1) a party’s obligation when briefing issues on appeal; (2) the appropriateness of a court’s use of findings of fact and conclusions of law submitted by a party; and (3) discovery sanctions.   The opinion is 31 pages long and a large portion of those pages are related to the tortured procedural history in the trial court. Rather than recount the history, below is just enough to give you a flavor of what the trial court was confronted with:

1.       The parties had been married 32 years and had 3 grown children.

2.      Wife engaged in a lengthy extramarital affair and Husband filed for divorce.

3.      During the marriage, the parties had lived on substantial passive income from Husband’s interests in several family businesses.  Wife sought to characterize that income as marital property.

4.      During the divorce proceedings, Wife hired 7 different lawyers, requested five continuances of the trial and filed five motions to compel discovery, eight motions for civil contempt or sanctions, and one motion to reconsider for discovery non-compliance.

5.      Wife served four sets of interrogatories and five sets of production of documents. Other discovery was also served but it was ultimately quashed. The primary goal of all this discovery was to allow Wife’s consulting experts to value Husband’s business interests and to attempt to establish the business interests were marital property.

6.      In an effort to resolve the seemingly never-ending discovery war, the trial court ordered the parties experts to meet and confer and conduct two document reviews in Arkansas at one of the family businesses at issue.

7.      In response to Wife’s discovery, Husband produced over 20,000 pages of documents, signed releases for documents not in his possession and offered at least 4,000 other documents for review and copying.

8.      Shortly before trial, Wife switched consulting experts and ultimately failed to provide proper expert disclosures by the deadline in the trial court’s scheduling order.

9.      Although Wife tried to cure the problem by filing late disclosures, the trial court granted Husband’s motion to exclude her experts.

10.   At trial, the trial court awarded a divorce based on Wife’s adultery. The family business were classified as separate property and the marital estate was divided equally. Wife was awarded significant home furnishings and nearly $1.1 million dollars in cash. She was also awarded alimony in the amount of $8,000 per month for 10 years.

11.   Husband was awarded $100,000 as sanctions for wife’s abuse of the discovery process.

On appeal, Wife raised several issues. First, she argued the trial court abused its discretion by “plagiarizing” Husband’s proposed findings of fact and conclusions of law without regard to the factual and legal errors they contained. Because the trial judge was scheduled to leave the bench, Wife claimed he had hurriedly adopted the Husband’s submission and failed to conduct an independent review. As for the issue of the trial court using a party’s submission, the Court of Appeals noted it was a “long-standing practice in this state for a trial court to request the parties submit finding and fact and conclusions of law and orders following a hearing or trial on the merits.” The Supreme Court had previously approved of such a practice if the following conditions were met: (a) the trial court does not require the parties to prepare the order or proposed findings; (b) the trial court carefully reviews the submission to ensure it properly reflects the court’s opinion; (c) the order disposes of all relevant issues ; (d) and irrelevant matters are not included. The Court of Appeals found it significant that more than 3 months passed between the conclusion of the trial and the entry of the final judgment, Wife had failed to offer a single citiation to the record to support her allegations and the trial judge had modified the Husband’s proposed findings of fact and conclusions of law which indicated he had carefully reviewed the matter to ensure it reflected his opinion.

Wife’s next issues on appeal were as follows:

II. This court should rule on all aspects of this case based upon a de novo review.

II. This court should enter findings of fact pursuant to Tenn. Code. Ann. §27-1-113.

Not surprisingly, the Court of Appeals found these issues to be inadequate pursuant to the Tennessee Rules of Appellate Procedure and instead declared them to be an unacceptable invitation for the Court to hunt for error. The Court of Appeals reminded litigants that for an issue to be appropriately presented for review that it must specifically outlined in the brief and supported by citations to the record or legal authority. Despite Wife’s failure to properly develop reviewable issues, the Court of Appeals deduced some issues from the briefs. The only ones we will address relate to discovery sanctions; we are not reviewing those dealing with the division of marital property and alimony.

As for discovery sanctions, Wife contended it was error for the trial court to deny her motion for sanctions on the eve of trial and she also took issue with the trial court’s award of a $100,000 sanction against her for discovery abuse. In her motion for sanctions, Wife had asked for the “severest sanction” for Husband’s delay in producing documents, his perjury and unclean hands and for denying her right to a fair trial. As a sanction, Wife requested Husband’s business interests be classified as marital property. After reviewing Tennessee Rule of Civil Procedure 37.02 and case law interpreting it, the Court of Appeals affirmed the trial court’s decision finding Wife had failed to explain why the more than 20,000 documents produced by Husband were not sufficient, and Wife failed to explain what documents were still missing or delayed that would have helped her case. More importantly, Wife had repeatedly argued these documents were needed by her experts but yet her experts had been excluded for failing to comply with the trial court’s scheduling order and Wife had not appealed that ruling. Finally, Wife did not offer any proof in the record of the Husband’s alleged perjury or unclean hands.

Finally, we turn to the $100,000 discovery sanction against Wife. While this is a staggering amount of money to be assessed against an individual, the Court of Appeals found it was not an abuse of discretion for several reasons. First, even an “economically disadvantaged spouse is not insulated from monetary sanctions when he or she engages in culpable conduct such as abuse of the discovery process.” Second, Husband actually requested $185,685 in sanctions and submitted an affidavit detailing the more than $300,000 in attorney fees he had incurred during the five years of litigation.  After recounting Wife’s discovery antics, the Court of Appeals ultimately concluded that while reasonable minds could differ as to the amount the actual award was not an abuse of discretion given the trial court’s wide discretion over discovery sanctions pursuant to both Tenn. R. Civ. P. 37 and it inherent powers.    

Leo Berg v. Julie Ann Rutledge Berg, No. M2013-00211-COA-R3-CV (Tenn. Ct. App. June 25, 2014) .


Defendant's Lie Under Oath May Be A Sin, But It Is Not Admissible in MVA Trial

This appeal arises from a December 24, 2010 motor vehicle accident involving a vehicle driven by Johnny Miller and another vehicle driven by Mr. Moretz. The cause of the accident was hotly contested with both parties claiming the other to be at fault. As for damages, Mr. Miller and his wife, who was a passenger in the vehicle, claimed they sustained soft tissue injuries.  The jury returned a verdict finding Mr. Moretz to be 10% at fault and Mr. Miller 90% at fault. As to Mrs. Miller, the jury found zero damages. On appeal, the Millers took issue with a ruling regarding Mr. Moretz’s prescription drug use on the day of the accident and the trial court’s failure to grant an additur or a new trial on damages as to Mrs. Miller. 

Mr. Moretz’s Prescription Drug Use on the Day of the Accident.

During discovery, the Millers served interrogatories on Mr. Moretz. One interrogatory asked whether Mr. Moretz had consumed any alcohol or drugs in the twelve hours prior to the accident. Mr. Moretz denied doing so.  Under oath in his deposition and for a second time, Mr. Moretz denied drug use on the day of the accident.  Prior to trial, Mr. Moretz moved in limine to prohibit the plaintiffs from introducing any evidence he had taken oxycodone on the day of the accident. Mr. Moretz’s offered that his personal physician had told him he could drive while taking the medication and he provided a letter for his employer to that effect. In support of the motion in limine, Mr. Moretz argued that mere use was insufficient and impairment had to be demonstrated for the prescription drug use to be relevant.  

Mr. Moretz pointed out that there was no allegation in the original or re-filed complaint that he was impaired at the time of the accident. None of the witnesses who were at the scene or observed the accident testified Mr. Moretz appeared to be impaired.  And to the extent that evidence of his drug use was relevant, Mr. Moretz contended it was unduly prejudicial under Rule 403 of the Tennessee Rules of Evidence. Conversely, the Millers argued it was a prior inconsistent statement and could be used to impeach Mr. Moretz’s credibility. Using the jury instruction on the credibility of witnesses, the Millers wanted to argue to the jury that they could disregard Mr. Moretz’s account of the accident if they found him untruthful on the issue of drug use. Ultimately, the trial court agreed with Mr. Moretz and ruled that evidence of his drug use was inadmissible as unduly prejudicial.  

The Court of Appeals affirmed the exclusion of the drug use finding it significant that there was no evidence that Mr. Moretz was driving erratically or that the prescription drug use played any role in the accident and noting its highly prejudicial nature given the “general contempt for drug use”.   Moreover, the Court of Appeals concluded even if the trial court’s ruling was incorrect, the error would have been harmless as other witnesses testified consistent with Mr. Moretz’s version of events and the physical evidence supported his account of the accident. As such, its value as an inconsistent statement was minimal.

New Trial or Additur for Mrs. Miller’s Damages

At the time of the accident, Mrs. Miller was 73 years old and she regularly sought the services of a chiropractor. Following the accident, she claimed her pains increased in severity and so she continued to see her chiropractor for three more months. In terms of limitations, Mrs. Miller testified she was unable to do yard work, had difficulty running the vacuum and standing for long periods of time. She also reported a lack of energy and desire to do regular activities. On direct exam, Mrs. Miller’s chiropractor testified the car accident had caused Mrs. Miller’s back problems to worsen and she would need future medical treatment consisting of at least one visit per month. On cross-examination, the chiropractor testified Mrs. Miller had suffered a fall three months before the car accident and was restricted in standing, sitting and walking. In addition, when Mrs. Miller presented to him for her first visit following the accident, she did not mention the accident when completing the chiropractor’s intake form which asked for any new history or symptoms.

The Court of Appeals noted the amount of damages to be awarded is primarily left to the jury and appellate courts should not substitute their judgment. Since there was material evidence supporting the jury’s findings, the verdict was approved.

The Millers’ reaction to shout “Liar, Liar” from the rooftop, or at least from counsel table, is understandable. They had him. They had caught their adversary in a lie -- not once, but twice. To be denied the opportunity to exploit it seems wrong. But, in the end, we want verdicts to be based on relevant facts. And so sometimes, that means we have to swallow a jagged, bitter pill handed to us by the trial judge.

If you should happen to find yourself in a similar situation, might I suggest an end-of-the-day Old Fashioned to help wash it down.  And remember the good ole' "abuse of discretion" rule: win your evidence battles in the courtroom - you are not likely to win them at the Court of Appeals.

The case: Miller v. Moretz, No. E2013-01893-COA-R3 CV (Tenn Ct. App. July 7, 2014).


Health Care Liability Expert Need Not Know Community Statistics from Date of Alleged Injury to Testify in Tennessee Medical Malpractice Case

As far as I can remember, Evans v. Williams, No. W2013-02051-COA-R3-CV (Tenn. Ct. App. June 30, 2014),is the first and only case dealing with whether a health care liability expert must be familiar with demographic information about the defendant’s community from the time the alleged malpractice occurred. To be sure, the injury in this case occurred in 1991, twenty-two years before it was finally tried in 2013. Even with that much time, though, the Court of Appeals held that present day statistics are sufficient to establish an expert’s familiarity with a defendant’s community or a similar community.

At the trial of Evans, the trial judge granted Defendants’ motion to exclude one of Plaintiffs’ standard of care experts. The trial judge ruled that the expert was not familiar with the standard of care in Defendants’ county or a similar community when the treatment was rendered in the early 1990s. The trial judge denied Plaintiffs’ motion to exclude one of Defendants’ standard of care experts. The jury returned a verdict of no liability.

The Court of Appeals looked to Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011), for competency requirements under Tenn. Code Ann. sec. 29-26-115. 

Generally, an expert's testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has discussed with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the defendant practices, will be sufficient to establish the expert's testimony as relevant and probative to “substantially assist the trier of fact to understand the evidence or to determine a fact in issue” under Tennessee Rule of Evidence 702 in a medical malpractice case and to demonstrate that the facts on which the proffered expert relies are trustworthy pursuant to Tennessee Rule of Evidence 703.

Shipley, 350 S.W.3d at 552.

In this case, Plaintiffs’ excluded standard of care expert testified about the current population and hospital size in Defendants’ community, that the expert had been by the hospital in Defendants’ community, and described the medical services that were available for obstetrics in Defendants’ community in 1991. Defendants contended this was not sufficient, and that experts should be required to show similarity between the two communities in 1991, not at the time of trial. The trial court agreed and excluded the expert.

The Court of Appeals disagreed, stating Plaintiffs’ expert’s familiarity with “the medical services and practices available in the area at that time” was sufficient. However, because Plaintiffs were still able to present standard of care testimony from Plaintiffs’ other experts at trial, the Court of Appeals concluded that the trial court had committed harmless error.

Tennessee Law of Civil Trial Book

Tennessee Law of Civil Trial has been printed and is now available for purchase.  

The 500+ page book is largely a discussion of the law of trying civil cases in Tennessee - the law of scheduling orders, pretrial conferences, jury selection, opening statement and closing arguments, use of depositions at trial, and more.  

The book does touch on some aspects of the law of evidence, but candidly the book largely leaves that topic to other texts.   Instead, this book is designed to be a reference guide that judges and lawyers can turn to for a ready reference on the substantive law of trial.

Also included is a chanter of 75 of my tips on preparing cases for trial and related forms.

Here is the Table of Contents:

Chapter 1: Scheduling Orders
Chapter 2: Final Pretrial Conferences
Chapter 3: Motions in Limine
Chapter 4: Jury Selection
Chapter 5: The Rule
Chapter 6: Opening Statements and Closing Arguments
Chapter 7: Examination of Witnesses
Chapter 8: Use of Depositions at Trial
Chapter 9: Opinion and Expert Testimony
Chapter 10: Mistrials
Chapter 11: Motions for Directed Verdict
Chapter 12: Findings of Fact
Chapter 13: Jury Instructions
Chapter 14: Juror Questions
Chapter 15: Verdict Forms
Chapter 16: Discretionary Costs
Chapter 17: Motions for a New Trial and to Alter or Amend Judgment
Chapter 18: Remittitur
Chapter 19: Additur
Chapter 20: Motions for Judgment Notwithstanding the Verdict
Chapter 21: Preparing to Win

The book should be delivered next week and will be available for shipping shortly thereafter. To order your copy, click on the Tennessee Law of Civil Trial link.  Discounts available for bulk purchases.  Email me a for more information.

Case Dismissed Because Plaintiff Sent Notice by FedEx Instead of U.S. Postal Service

 In Arden v. Kozawa, M.D, No. E2013-01598-COA-R3-CV (Tenn. Ct. App. June 18, 2014), Plaintiff in a health care liability action appealed after his lawsuit brought on behalf of his deceased wife was dismissed at trial for failing to strictly comply with Tennessee’s pre-suit notice requirements.

Plaintiff’s wife was allegedly negligently treated by a doctor at a hospital for abdominal pain and she later died from pancreatitis and other complications. Prior to the statute of limitations, plaintiff sent pre-suit notice letters to the doctor and hospital, as required by TCA statute 29-26-121. However, there were four problems with the pre-suit notice letters: (1) plaintiff omitted his own address from the notice letters; (2) the doctor’s letter was sent to an address that was different from the listing on the Tennessee Department of Health website; (3) the provider’s list accompanying the letters did not include the hospital’s address; and (4) there was no certificate of mailing from the U.S. Postal Service because the letters were sent via Federal Express. The trial court dismissed plaintiff’s case at summary judgment based on plaintiff’s failure to strictly adhere to the requirements of the pre-suit notice statute, and plaintiff appealed.

The Tennessee Court of Appeals first observed that the trial court had wrongly applied the “strict compliance” standard to the pre-suite notice requirements, instead of the correct “substantial compliance” standard as previously held by Tennessee’s Supreme Court in Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, No. M2012-02270-SC-R11-CV, 2014 WL 1632183 at *6-7 (Tenn. Apr. 24, 2014).  Reviewing the content of plaintiff’s pre-suit notice letters in light of the correct “substantial compliance” standard, the appellate court ruled that defendant doctor and hospital were not prejudiced by plaintiff’s failure to include his own address and the hospital’s address on the providers list and, therefore, the content in plaintiff’s notice letters had substantially complied with the pre-suit notice requirements of 29-26-121.

However, even if plaintiff had substantially complied with the content requirements of his pre-suit notice letters, defendant doctor and hospital still argued that plaintiff failed to properly serve the pre-suit notice in the manner required by statute. If the notice is mailed, then 29-26-121 provides that compliance “shall be demonstrated by filing a certificate of mailing from the United States postal service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested.” The appellate court found that the statute was clear and unambiguous, and that it was apparent that the legislature deliberately intended that the U.S. Postal Service would be the only acceptable means of service of the notice other than personal delivery. The Arden court then cites to one of my prior published articles from 2009 wherein I noted that the legislative amendments provided for mailing only through the U.S. Postal Service, with a certificate of mailing from the post office to definitively show the date of the actual mailing.

So even though Plaintiff had filed a copy of the documentation from Federal Express tracking delivery of the notice letters, along with an affidavit from the person who sent the letters, and it was undisputed that defendant doctor and hospital had received actual notice, the Arden court still ruled that plaintiff’s service via Federal Express did not substantially comply with 29-26-121(a)(3) and (4).  Consequently, the court held that plaintiff’s service was improper and ineffective and plaintiff could not rely on the 120-day statute of limitation extension provided by the notice statute to file his lawsuit. Plaintiff’s lawsuit was dismissed as untimely for being filed after the one year statute of limitations.

The Arden court did not address the issue concerning the lack of service to the doctor’s address as listed on the Tennessee Department of Health website.

The asserted purpose of the pre-suit notice requirement was to give health care providers to opportunity to settle claims before suit was filed.  The statute requires plaintiffs to jump through many costly and time consuming hoops, with some hoops that are clear and others that are anything but. Unfortunately, clarity is only provided at the expense of people’s legal rights when their lawsuits are dismissed on technicalities rather than being tried on the merits.

It is true that the legislature provided that notice must be served by US Mail or by personal service.  That said, it is difficult to see why the doctrine of substantial compliance would not save the plaintiff's service of notice via Federal Express if the provider in fact received the notice.  Remember, the statute doesn't require proof that notice was received, it only requires proof that notice was sent in a certain matter.  It seems to me that if notice was actually received, whether accomplished via Federal Express, Pony Express, or carrier pigeon, that the statute has been substantially complied with because the defendant actually received notice of a potential claim and was able to investigate and settle the case if appropriate.  This is especially true when Fed Ex is used to deliver notice, given that one can readily identify the date the notice was sent from the receipt.

The Tennessee Supreme Court should accept a Rule 11 application in this case and reverse.

Just Give Him the Dang Forms!

Mr. Fleming needed medical forms completed for his workers’ compensation case.  He submitted the forms to the defendants but after “20 or more days” he had still not received the completed forms and his phone calls were not being returned.   Consequently, a frustrated Mr. Fleming filed a civil warrant in Shelby County General Sessions Court alleging “dereliction of duty, negligence and conspiracy”, which had caused him “financial and stressful harm.”   Seven months later, in January of 2012, the Defendants filed a motion to dismiss based on the Tennessee Medical Malpractice Act (TMMA). Defendants argued Mr. Fleming had failed to provide written notice of the claim and had failed to supply a good faith certificate. The case was dismissed by the General Sessions judge.

Undeterred, Mr. Fleming appealed to Shelby County Circuit Court.   In July of 2012, the Defendants again filed a motion to dismiss with the same arguments made in the General Sessions matter.   A month later, the Court held a hearing. At the beginning of the hearing, Mr. Fleming was finally given his completed forms which he had been pursuing for more than one year. Since he had finally received the paperwork, Mr. Fleming did not oppose the motion to dismiss. As such, the trial court entered an order granting the unopposed motion to dismiss and citing the failure to comply with the TMMA. 

But that was not the end of the matter because the trial court assessed costs against Mr. Fleming. In response to the assessment of costs, Mr. Fleming filed a “Motion for Judicial Review” In his motion, Mr. Fleming outlined his efforts to obtain the records which included 2 court appearances, 15 phone calls to the Defendants and an appointment with Dr. Sanai. Since he ultimately obtained the relief he sought (his medical forms) at the hearing on the motion to dismiss, Mr. Fleming argued he was the prevailing party and costs should not have been assessed against him. The Defendants opposed Mr. Fleming’s motion citing the trial court’s order granting the motion to dismiss based on the failure to comply with the TMMA. After a hearing, the trial court denied Mr. Fleming’s Motion for Judicial Review. 

On January 7, 2013, and before an order was entered on the Motion for Judicial Review, Mr. Fleming filed a “Motion to Alter or Amend Judgment” asking the court to reconsider the original ruling on the defendants’ motion to dismiss. However, Mr. Fleming’s Motion to Alter or Amend Judgment was filed roughly 5 months after the order of dismissal, so it was well outside the thirty days outlined in Tenn. R. Civ. P. 59.04. Therefore, on January 22, 2013, the trial court entered an order denying Mr. Fleming’s Motion for Judicial Review finding he was not the prevailing party and the trial court also refused to revisit its prior dismissal of Mr. Fleming’s complaint. In March of 2013, the Defendants filed their response to Mr. Fleming’s second post-judgment motion (Motion to Alter or Amend Judgment). Defendants argued the motion was untimely because it was not filed within thirty days of the August 31, 2012 judgment.   On May 24, 2013, the trial court held another hearing in which Mr. Fleming’s motion was denied with one exception: the trial court changed the dismissal to one with prejudice instead of without prejudice. 

On June 27, 2013, this mess that had started two years before, over the return of some completed medical forms, went to the Court of Appeals. Mr. Fleming’s Assignment of Error is a stream of consciousness paragraph that ranges from the trial court not drawing on life experiences to the importance of getting medical forms returned. Boiled down to its essence, Mr. Fleming’s was still upset at being required to pay court costs.   In response, the Defendants argued the appeal was untimely; Mr. Fleming consented to the dismissal and the trial court had not abused its discretion in denying the post-judgment motions.

The Court of Appeals analyzed the timing of all the motions and concluded Mr. Fleming’s assignment of error was appealing the ruling on his second post-judgment motion, which was not timely filed with the trial court as it was filed more than thirty days after the entry of final judgment. In addition, the second post-judgment motion was really just a motion to reconsider the first post-judgment motion (Motion for Judicial Review). So under all the circumstances, the Court of Appeals concluded the trial court did not abuse its discretion in denying the Motion to Alter or Amend Judgment. The trial court was affirmed and, to add insult to injury, costs were taxed again to Mr. Fleming. 

This case made me want to pull my hair out.  The procedural history is a hot mess, but that is not the maddening part.  No, what is jaw-dropping is that litigation over the return of the forms continued for more than 2 years and progressed through three courts. Instead of simply returning the forms, the defendants waited 7 months and then filed a motion to dismiss based on the TMMA no less. Notably, the Court of Appeals expressed its “surprise” that the defendants tried to couch Mr. Fleming’s case as a healthcare liability action subject to the notice and certificate of good faith requirements.  The Court of Appeals was equally “surprised “the trial court agreed with the defendants argument in the motion to dismiss and cautioned: “[t]rial courts should be vigilant to guard against misuse of the TMMA as a vehicle for a defendant to obtain dismissal of a lawsuit that is not primarily a health care liability action.”    

To be sure, pro se parties can be hard to deal with. Filing a lawsuit because you have been waiting for three weeks for your medical forms is a bit much. But this case is an excellent example of just how costly and time-consuming litigation can be when communications break down and/or the easy solution is given the middle finger.  While Mr. Fleming arguably should have accepted defeat much earlier in the game, it is interesting to me that the defendants or their insurance carrier thought it was wiser to pay defense lawyers in a leading law firm for two years of litigation than to simply eat a couple of hundred bucks in court costs. But, of course, you can’t complain about  the cost of so-called frivolous lawsuits if you do things the easy way and eliminate or  substantially reduce those costs.

Remember too that there is no over-riding legitimate principle at stake here in the fight over court costs.  This is a pro se litigant who was irritated that he could not get his medical information in timely fashion, not a fight over the integrity of a product or other interest worth spending lots of money to protect.  

In short, we would all would do well to remember that just because you can fight about an issue does not mean you should. 

The case is Fleming v. Tejinder Saini, M.D. and Healthquest Clinic, No. W2103-01540-COA-R3-CV (Tenn. Ct. App. June 10, 2014).

By the way, if the defendants or their lawyers want to comment on this post and tell us why it made sense to fight this matter so aggressively or why it took this man seven months to get the data he requested I will make sure the comment is posted.  Please be sure to include the total fees paid to the defense lawyers in the case so that each reader can weigh whether the juice was worth the squeeze.