Articles Posted in Civil Procedure

In a recent case that fell under the Governmental Tort Liability Act (GTLA), the Tennessee Court of Appeals addressed the discretionary function exception to the GTLA as well as the findings a trial court must make to support a summary judgment decision.

In Lewis v. Shelby County, No. W2014-00408-COA-R3-CV (Tenn. Ct. App. April 17, 2015), two counselors who worked at a correctional facility in Shelby County sued for negligence related to injuries they sustained when attacked by an inmate. Plaintiffs alleged that on the night of the attack, the facility was understaffed; that they radioed their supervisor two times prior to the attack but he failed to appear; and that they made four “code red” calls for assistance during the attack, but that no one responded. Their suit was based on each of these three allegedly negligent acts.

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In Holder v. Shelby County, No. W2014-01910-COA-R3-CV (Tenn. Ct. App. April 21, 2015), a father sued the county for acts of negligence by a county employee that he alleged caused the death of his son. The son was involved in a car accident and subsequently arrested. Upon evaluation, the son was determined to have a mental condition that caused him to be a threat to himself and others. He was accordingly put into a special housing unit for unstable inmates, where policy dictated that a guard perform mandatory safety checks of all inmates every thirty minutes.

Officer Moore was on duty from 2:00 pm to 10:00 pm on the day the son was in the facility. Moore later admitted that he did not do any safety checks during that time, despite writing in the log book that he did and that at 9:16 pm all the inmates, including plaintiff’s son, were resting peacefully. After the 10:00 shift change, another deputy performed a safety check at 10:14 pm and found the son hanging in his cell by a bed sheet. The son still had a pulse but was not breathing, and he eventually died from his injuries.

Plaintiff filed suit alleging that his son died as a “result of Deputy Moore’s negligence and that Shelby County was vicariously liable.” The County filed a motion to dismiss for failure to state a claim on the grounds that 1) the complaint alleged only intentional acts and 2) Officer Moore was not acting within the scope of his employment, either of which would be enough to find that immunity was not removed under the Governmental Tort Liability Act (GTLA). The trial court granted the County’s motion, finding that the complaint failed to allege any negligent acts and that Moore’s falsification of the logs was not within the scope of his employment. The Court of Appeals, however, reversed this decision.

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At what point do email blasts from one state into another allow a defendant to be sued in the state where the emails were sent (and where the plaintiff resides)?

Plaintiff lived in Illinois and was injured at a ski resort in Wisconsin.  He sued the resort in Illinois and the resort moved to dismiss for lack of personal jurisdiction.

The evidence indicated that 65 – 70% of the guests at the ski resort were from Illinois and that representatives of the resort attended a trade show in Chicago each year.  The resort did no print or other ads in Illinois.  It did collect email addresses from people, including those from Illinois, and did email blasts in an effort to solicit customers.  It also had a website where people from Illinois and elsewhere could reserve rooms (but not purchase lift tickets.  Finally, it offered tour packages from Chicago to the resort.

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While some parts of the Health Care Liability Act (HCLA) are making their way towards substantial compliance, the Court of Appeals recently reiterated that the requirement to file a certificate of good faith under Tenn. Code Ann. § 29-26-122 is mandatory. In Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. March 31, 2015), plaintiffs filed an HCLA claim against defendant. Defendant filed a motion to dismiss on the grounds (1) that plaintiffs did not comply with the pre-suit notice requirements because plaintiffs did not attach a HIPAA compliant authorization form to the notice letter, did not attach a list of all heath care providers receiving notice, and did not list the address of the claimant, and (2) that plaintiffs failed to file a certificate of good faith and failed to disclose the number of prior disclosure violations under § 29-26-122(d)(4). The trial court granted defendant’s motion to dismiss, and the Court of Appeals affirmed.

On appeal, the Court focused solely on the certificate of good faith issue, as failure to comply with the certificate of good faith requirements leads to dismissal with prejudice and would therefore be dispositive of the case. Plaintiffs here “concede[d] in their brief on appeal that instead of filing a certificate of good faith in compliance with the statute, plaintiffs filed a statement signed by their expert.” According to plaintiffs, this filing “over-complied by providing more information than the statute requires.” Essentially, plaintiffs argued that they provided the required information plus some and thus should be excused for not technically complying with the statute. The Court firmly disagreed.

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Although summary judgment is often thought of as a tool for defendants, plaintiffs in personal injury cases should remember that motions for summary judgment can be beneficial and successful for them as well. In Bloomfield v. Metro. Govt. of Nashville and Davidson Co., No. M2014-00438-COA-R3-CV (Tenn. Ct. App. March 26, 2015), plaintiff was a firefighter employed by Metro. He responded to a call regarding an elderly patient who was in a wheelchair. When a paramedic arrived to assist in moving the patient, the plaintiff and the paramedic moved the patient in the wheelchair towards the door of the home, where they realized that the patient would have to be lifted to clear a door threshold and step down. Plaintiff was at the head of the chair while the paramedic was at the foot. Plaintiff told the paramedic to hold on a second and turned to get information from family members, but the paramedic lifted the foot of the wheelchair without communicating to plaintiff first. When plaintiff saw that the chair was about to tip backwards he grabbed it, injuring himself.

Because the paramedic was also employed by Metro, plaintiff sued Metro for the injuries he alleged to have sustained due to the paramedic’s negligence. Plaintiff used the deposition testimony of several Metro employees to show that there was a standard for lifting a patient in a wheelchair and that the person at the head of the wheelchair was responsible for initiating the lift. Further, plaintiff used the paramedic’s own deposition testimony, wherein he admitted that he violated procedure by lifting at the foot before everyone was ready. Relying on these facts, plaintiff successfully moved for summary judgment as to liability for the paramedic’s negligence, and a trial was conducted on damages only, wherein plaintiff was awarded the maximum amount allowed under the Governmental Tort Liability Act.

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The issue of whether a Tennessee plaintiff who nonsuits his or her first medical malpractice (now heatlh care liability)  complaint must give a second notice before re-filing is a closed matter given the recent ruling in Foster v. Chiles.   In the recent case of  Potter v. Perrigan, No. E2013-01442-COA-R3-CV (Tenn. Ct. App. March 26, 2015), just such a scenario played out.

Plaintiffs gave pre-suit notice on January 8, 2009; they filed their initial suit on April 8, 2009; then on September 8, 2009, they voluntarily dismissed the action. One year later, pursuant to the savings statute, plaintiffs filed a second complaint on September 8, 2010. Attached to this complaint was a certificate of good faith and copy of the previously filed pre-suit notice. Plaintiffs did not send defendants a second pre-suit notice before re-filing their claims. Upon motion of the defendant, the trial court dismissed for failure to comply with Tenn. Code Ann. § 29-26-121. The Court of Appeals initially reversed this decision, holding that “Plaintiffs fulfilled the notice requirement[.]” Defendant then appealed to the Tennessee Supreme Court, which remanded the case for reconsideration in light of an opinion it issued in January, 2015.

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The judge’s in Tennessee’s 23rd Judicial District – Cheatham, Dickson, Houston, Humphreys and Stewart Counties – have adopted new rules of court for the circuit and chancery courts.

Among the new rules is a requirement that all civil cases except appeals from the general sessions court be mediated before they can be set for trial.  Rule 3.04.

The Tennessee Supreme Court will hear two health care liability disputes among four cases scheduled for oral arguments March 4, 2015 in Jackson, Tennessee, one of which will address an interesting civil procedure question.

The first case concerns the procedures required when filing a health care liability lawsuit. At the time the suit was filed, state law required a plaintiff to file a certificate within 90 days of the initiation of a lawsuit, confirming that the plaintiff has consulted with medical experts before filing the suit and stating whether the plaintiff’s lawyer has ever been in violation of the law requiring the certificate. In this case from Dyer County, the attorney, who had never violated the statute, filed the required certificate but did not state that he had zero prior violations of the statute. The defendants sought dismissal of the case based on that omission. The plaintiffs sought to dismiss the case with the option to refile it.

The trial court allowed the dismissal and the defendants appealed. The Supreme Court will consider whether the failure to indicate zero prior violations of the law constitutes a failure to comply with the law requiring the good faith certificate.  The case is Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D. 

In the second health care liability case, the Supreme Court will consider whether to change the standard for granting and denying motions for summary judgment. Summary judgment is a decision by a trial court before the case is heard, based on a determination that there is no material dispute about the case’s facts.

In this case, a couple sued a Memphis health care center for failing to provide treatment during the mother’s pregnancy that, while not injuring the mother or harming her unborn child, could lead to complications in future pregnancies. The Court will determine whether the trial court properly granted the defendant’s summary judgment on some of the issues in the case. Michelle Rye  v. Women’s Care Center of Memphis, MPLLC.  

 The Judges in the Chancery and Circuit Courts for Williamson, Hickman, Perry and Lewis Counties have announced substantial changes to the local rules of court.  The changes were effective December 1, 2014.

Among other significant changes, the local rules  now require that one who objects to a motion filed by an opponent file written opposition to the motion. Rule 5.03(c).  Regular motions must be filed at least fourteen days before a hearing, and opposition to the motion filed and served at least 4 days before the hearing.