Articles Posted in Civil Procedure

Add Bockelman v. GGNSC Gallatin Brandywood LLC, No. M2014-02371-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2015), to the long list of cases in which a Tennessee court affirmed an order upholding the validity of an arbitration agreement signed by the deceased’s designated health care agent.

The patient at issue here had signed a “Health Care Agent” form in December 2008, appointing her daughter as her agent. The form provided that the daughter was given “permission to make health care decisions for me if I cannot make decisions for myself, including any health care decision that I could have made for myself if able.” In January 2010, the patient’s doctor deemed her incompetent to make health care decisions, and he documented and signed such designation.

Following the incompetence designation, the patient had several other medical appointments. Some notes from these subsequent appointments indicated that she did not have any “neurological deficits,” while others referred only to a “physical incapacity.” She was treated at times based on her own preferences rather than her best interests, yet the official incompetence designation was never overturned or amended.

In May 2010, the patient was admitted to defendant nursing home. During the admission process, daughter presented the health care agent form and signed all the admission documents on patient’s behalf, although daughter later testified that patient was competent at this time. One document signed by daughter as patient’s agent was an Alternative Dispute Resolution Agreement. At the top, this form noted in bold, capital letters that it was “not a condition of admission to or continued residence in the facility.”

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A recent Court of Appeals case reminds plaintiffs’ attorneys of the importance of diligently reading any answer filed and working quickly to remedy problems related to the proper party being named and/or service of process. In Urban v. Nichols, No. E2014-00907-COA-R3-CV (Tenn. Ct. App. Sept. 4, 2015), plaintiff filed a negligence claim after injuring her foot and heel while using a waterslide at Willow Brook Lodge. In her complaint, filed on July 11, 2012 (which was exactly one year to the date from her injury), plaintiff named Robin Nichols and Willow Brook Lodge as defendants. It was undisputed that the complaint was only served, however, by personal service to Robin Nichols’s son.

The named defendants filed an answer on August 27, 2012. Therein, they asserted that the Lodge was actually owned by Accommodations by Willow Brook Lodge, LLC and that Ms. Nichols was not an owner. Further, they plead “insufficiency of process and insufficiency of service of process.”

Plaintiff’s counsel sent a letter to counsel for defendants on November 7, 2012, requesting permission to amend the complaint. Defendants responded by letter one week later denying the request. Plaintiff’s counsel took no further action in the case until February 7, 2013, again sending a letter requesting to amend the complaint to defendants. Defendants’ attorney sent another denial on July 22, 2013. Finally, on August 21, 2013, plaintiffs filed a motion to amend with the trial court. In response, defendants filed a motion for summary judgment on the grounds that the “failure to correctly serve process on either Ms. Nichols or the Lodge required the dismissal of the action.” The trial court granted summary judgment to defendants, and the Court of Appeals affirmed.

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In Bradley v. Ameristep, Inc., No. 1:12-cv-01196 (6th Cir. Aug. 24, 2015), plaintiff appealed a district court dismissal of his product liability claims regarding ratchet straps he had purchased and used to secure a hunting treestand. Plaintiff bought the straps in 2007 or 2008, used the straps to secure his treestand for less than two months in 2008, stored the straps inside for almost three years, then used the straps to secure his treestand again in May or June 2011. He did not use the treestand until September 2011, at which time he visually inspected the straps. After plaintiff claimed into the stand, the straps broke and caused plaintiff to fall.

Plaintiff retained two expert witnesses to support his claims, but the district court granted defendant’s motion to exclude both of these experts. Because the expert testimony was excluded, the district court “concluded that there was no evidence to support the plaintiffs’ claims for strict product liability or negligent design and manufacture and granted the defendants’ motion for summary judgment on those claims.” The district court also granted summary judgment as to the failure to warn claim, determining that plaintiff was aware of the dangers of leaving the straps exposed to the elements, that plaintiff would not have heeded a warning to use a safety harness, and that plaintiff failed to proffer an adequate alternative warning. Accordingly, all of plaintiffs’ claims were dismissed.

On appeal, the Court reversed the dismissal, and in doing so provided an informative summary of Tennessee product liability law. First, the Court addressed the exclusion of one of plaintiffs’ experts, noting that Fed. R. Evid. 702 “impose[s] a threshold requirement of qualification by ‘knowledge, skill, experience, training or education,’ coupled with a two-part test for relevance…and reliability.” While the expert’s “qualifications contain[ed] numerous general attestations of expertise in materials analysis[,]” the district court focused on specific references to the expert’s metallurgical expertise to determine that he did not possess the necessary qualifications for this case. The Court of Appeals held that this was an error, pointing out that the proposed expert had “over thirty-five years of experience analyzing the forces and conditions that lead to product failures, “ that he had “served as an instructor in materials analysis and microscopic analysis” for multiple groups and organizations, and that he had conducted analysis on all types of polymer materials. Based on these qualifications, the expert testimony should have been allowed.

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The Tennessee Court of Appeals recently affirmed a refusal to dismiss a products liability case under the doctrine of forum non conveniens in Pantuso v. Wright Medical Tech. Inc., No. W2014-02135-COA-R9-CV (Tenn. Ct. App. Aug. 31, 2015). Plaintiff in this case was a resident of Utah and had double hip replacement surgery in Utah. The replacement devices used in plaintiff were designed, manufactured and marketed by Wright Medical Technology, a Delaware corporation with its principal place of business in Memphis, Tennessee, who was registered to do business in both Tennessee and Utah. Wright Medical Technology was a wholly owned subsidiary of Wright Medical Group, a Delaware corporation with its principal place of business in Memphis, Tennessee, registered to do business in Tennessee. Both corporations were named as defendants.

According to the complaint, the device implanted into plaintiff was marketed as being suitable for patients with active lifestyles. Six years after the surgery, though, one of the replacement devices failed “suddenly and catastrophically” and had to be replaced. The other device made by Defendant remained in plaintiff, but he alleged that he had to modify his lifestyle based on the knowledge that it would not stand up to the active lifestyle it was marketed towards.

Plaintiff filed a product liability suit in Shelby County Circuit Court, and defendants filed a motion to dismiss pursuant to the doctrine of forum non conveniens. According to defendants, Utah was the proper forum because plaintiff had received all of his medical treatment there. Defendants argued that they would “be prejudiced by proceeding in Tennessee because it would have ‘no access to any third-party witness or any third-party documents because they were all in Utah[.]’” In addition, defendants asserted that Utah was more appropriate because Utah law applied in this case and because the Shelby County courts were already overburdened. In response, plaintiff asserted that Shelby County was a proper forum, as the “crux of his complaint concerned not the medical treatment he received [in Utah], but the decisions made by Wright Medical concerning the manufacture, design, and marketing of the Profemur hip device, all of which occurred at Wright Medical’s Memphis office.” Plaintiff urged that the witnesses relevant to the core issues of the case were located in Tennessee, that the medical providers located in Utah could submit testimony by deposition, and that one of the two defendants was not subject to personal jurisdiction in Utah.

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In Evans v. Piedmont Natural Gas Co., Inc., No. M2014-01099-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2015), plaintiff asserted claims for property damage caused when sewage flowed into his home in 2013 allegedly due to a damaged sewer line. The undisputed facts in this case established that a gas line was installed on the relevant property in 1984 by Nashville Gas, that said gas line had not been repaired or serviced since 1984, and that no other “dig permits” had been issued for the property between 1980 and the 2013 sewage flooding. Plaintiff’s theory was that the sewage line was damaged during the gas line installation and that the gas company covered up the damage. The company who did the work in 1984 was Nashville Gas, which later merged into Piedmont Natural Gas Company, the named defendant.

Plaintiff in this case obtained a judgment in general sessions court, but on appeal to circuit court summary judgment was granted to defendant. As grounds for summary judgment, the trial court found that there was no evidence that the gas company “damaged the sewer line in question, repaired the sewer line in question or intentionally concealed any damage or repair[,]” that there was no proof that the alleged damage occurred during the gas line installation in 1984, and that there was no proof that the gas company “was ever aware of any damage to the sewer line at any time before 2013[.]” Further, the trial court found that the claim was barred by the four year statute of repose found in Tenn. Code Ann. § 28-3-202, which applies to improvements to real property. Finally, the trial court overturned the award of punitive damages to plaintiff, stating there was “no factual or legal basis for punitive damages here.”

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The Court of Appeals recently addressed the issue of which claims a parent who is not the primary residential parent may bring when his or her child has been injured. In Neale B/N/F Russell v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV (Tenn. Ct. App. July 28, 2015), a child was injured at an activity at defendant’s facility. The mother and father initially filed a joint action as next friends of the child, but they voluntarily dismissed that case and father subsequently filed alone. Father, as next friend of child, sought damages for permanent impairment, paint and suffering, medical expenses, and loss of earning capacity. Pursuant to the family’s parenting plan, father was not the primary residential parent.

Defendants filed a motion for summary judgment asserting that father lacked standing to bring the claims. The trial court agreed and granted summary judgment, which the Court of Appeals reversed in part and affirmed in part.

Tenn. Code Ann. § 20-1-105(b) states:

 In case the father and mother of the minor child are living apart and one parent has exclusive legal custody of the child, the parent with legal custody has the sole right to maintain an action for the expenses and the actual loss of service resulting from an injury to the child, except that the noncustodial parent in such case shall have a right to maintain or join an action brought under this section, for the expenses resulting from an injury to the minor child to the extent the noncustodial parent has paid those expenses.

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In Phillips v. Casey, No. E2014-01563-COA-R9-CV (Tenn. Ct. App. July 21, 2015) plaintiff’s late husband was a patient of defendant doctor. Sometime in 2011 or 2012, defendant diagnosed husband with angioedema. Defendant also diagnosed husband with hypertension and prescribed a medication to treat that condition. On April 2, 2012, husband had a bilateral tonsillectomy performed by another doctor, and husband died that evening. Plaintiff received a copy of the autopsy report on July 3, 2012, which listed the primary cause of death as angioedema. On April 2, 2013, plaintiff filed suit against defendant doctor and his employer alleging that doctor was negligent by prescribing medicine to husband known to aggravate angioedema and by failing to inform the doctor performing the tonsillectomy of husband’s condition.


Before filing her first health care liability claim, plaintiff did not send the statutorily required pre-suit notices to the two named defendants. Accordingly, defendants filed a motion to dismiss. While that motion was pending, plaintiff voluntarily dismissed her claims without prejudice. Plaintiff then sent proper pre-suit notice that met all the statutory requirements and subsequently re-filed her suit. Defendants moved to dismiss again, asserting that plaintiff’s initial complaint was untimely and that she could thus not rely on the saving statute and that plaintiff could not re-file her suit in order to comply with the pre-suit notice requirements. The trial court denied the motion to dismiss but granted an interlocutory appeal to consider the following issue:


Whether Tennessee Code Annotated section 29-26-121 permits a plaintiff to take a voluntary nonsuit pursuant to Tennessee Rules of Civil Procedure 41.01 with a motion to dismiss pending, resend notice of intent to the providers, and then refile a new action within the original statute of limitations or in accordance with the savings statute.

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A recent Court of Appeals case is a good reminder to pay close attention when drafting your complaint in a Governmental Tort Liability Act (GTLA) case. In Parrott v. Lawrence Co. Animal Welfare League, Inc., No. M2014-01241-COA-R3-CV (Tenn. Ct. App. June 25, 2015), plaintiff filed suit against two defendants regarding the allegedly negligent removal of her dogs from her property. After the dogs were removed, the County had some involvement and the dogs were housed at a Lawrence County jail, and one of the defendants therefore filed a third-party complaint against Lawrence County. Plaintiff subsequently amended her complaint to assert claims against the county as well.

The trial court granted the county’s motion to dismiss plaintiff’s claims, finding that the facts set out in her complaint were insufficient to state a claim under the GTLA, and the Court of Appeals affirmed. As to her negligence claim against the city, the complaint contained the following language:

As a direct and proximate result of the negligent, reckless and intentional acts or omissions of the Defendants, the Plaintiff has sustained damages and losses.

No additional negligence allegations were included, and no specific language regarding the county as a governmental entity was cited.

As the Court explained in its opinion, the GTLA removes immunity from governmental entities “for injur[ies] proximately caused by a negligent act or omission of any employee within the scope of his employment.” Tenn. Code Ann. § 29-20-205. The GTLA has been interpreted to require a complaint to “overtly allege that the tort was committed by an employee or employees of the governmental entity within the scope of his or their employment. A complaint which does not so state does not state a claim for which relief can be granted because the action is not alleged to be within the class of cases excepted by the statue from governmental immunity.”

Here, Plaintiff failed to allege that an employee of the county committed negligence while acting within the scope of his employment. Such an allegation is required by the GTLA, and dismissal of the case was therefore affirmed.

The lesson here is simple—when filing a claim that falls under the GTLA, pay special attention to the drafting and pleading requirements to avoid a fate like that of this plaintiff.

In Tennessee, the construction statute of repose begins to run when a project reaches substantial completion, which is when it can be used for its intended purpose. A flaw in the project will not prevent it from being substantially complete for statute of repose purposes, as recently demonstrated in the case of Raby v. Covenant Health, No. E2014-01399-COA-R3-CV (Tenn. Ct. App. June 9, 2015).*

In Raby, plaintiff worked at Methodist Hospital. The emergency room at the hospital was “substantially completed and opened in February of 2006.” Apparently a portion of lead-lined wall was left out when the radiology facilities were built, and plaintiff’s suit alleged that she was accordingly exposed to excessive radiation. In December 2013 a lead-lined wall was constructed, but during the entire time between 2006 and 2013 the facility was in use as intended. Plaintiff filed her suit in January 2014.

The trial court granted summary judgment to defendants based on the construction statute of repose found in Tenn. Code Ann. § 28-3-202 which requires that actions based on the construction of an improvement to real properly be brought within four years “after substantial completion of such an improvement.” The trial court found that the hospital radiology department was substantially completed in March 2006 when it became “available for its intended use as an emergency room.” Accordingly, the trial court held that plaintiff’s claim was untimely under the statute of repose, and the Court of Appeals affirmed.

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In Hughes v. Henry Co. Med. Center, No. W2014-01973-COA-R3-CV (Tenn. Ct. App. June 9, 2015), plaintiffs filed a health care liability action against defendants Henry County Medical Center (“HCMC”) and Dr. Gold. The defendants filed motions to dismiss alleging that plaintiffs failed to comply with the pre-suit notice requirements in Tenn. Code Ann. § 29-26-121. Specifically, defendants asserted that plaintiffs did not include a HIPAA-compliant medical authorization as required by the statute because the authorization did not permit the providers receiving the notice to obtain medical records from each other. The form provided to defendants only allowed HCMC to use its own records in the suit.

Plaintiffs admitted that the form was technically deficient but argued that defendants were not prejudiced because “Dr. Gold only saw [plaintiff] at HCMC and had no records independent of HCMC’s records.” In fact, during the hearing on the motions to dismiss, “counsel for HCMC conceded that Dr. Gold had no records, and there was no actual prejudice in view of this fact.” Nevertheless, the trial court dismissed the action due to plaintiffs’ failure to substantially comply with the statutory requirements. Plaintiffs appealed this decision as to HCMC, and the Court of Appeals overturned the dismissal in favor of that defendant.

The Court rejected HCMC’s argument that prejudice need not be analyzed since the plaintiffs “plainly and entirely failed to substantially comply” with the statutory requirements. Instead, the Court noted that in Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547 (Tenn. 2013), the Tennessee Supreme Court stated that “in determining whether a plaintiff has substantially complied with a statutory requirement, a reviewing court should consider the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the noncompliance. Not every non-compliant HIPAA medical authorization will result in prejudice.”

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