Articles Posted in Civil Procedure

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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The ABA’s Litigation News has an interesting story on a defense lawyer in a medical malpractice case who was found to have knowingly violated an order on a motion in limine and sanctioned almost $1,000,000.

A court order is an order, not a suggestion.  It is possible, in the heat of trial, to make an error and violate an order.  While this is and should be consequences of such a mistake, but when, as the trial judge said here,   “it is glaringly apparent that [defense counsel’s] conduct was orchestrated to improperly influence the outcome of this trial” there will be hell, or almost $1,000,000, to pay.

I love to win and I hate to lose.  I despise people, including lawyers, who feel the need to cheat to win.  I cannot see why any responsible insurer, company or individual would ever hire this lawyer in the future.

 

The Tennessee Supreme Court recently issued an opinion reversing several poorly decided lower court cases regarding the failure to disclose zero prior violations on a Healthcare Liability Act (HCLA) certificate of good faith. In Davis ex rel. Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015), plaintiff filed an HCLA claim against defendant, but plaintiff’s certificate of good faith failed to state that plaintiff’s counsel had zero prior violations under the statute. Defendants moved for dismissal on the grounds that plaintiff failed to comply with § 29-26-122(d)(4), which states that a “certificate of good faith shall disclose the number of prior violations of this section by the executing party,” but before the Court could hear the motion plaintiff requested a dismissal without prejudice. The trial court allowed the dismissal, and the Court of Appeals affirmed. Defendant argued, though, that because the certificate of good faith was noncompliant the Court was required to dismiss the case with prejudice.

The Supreme Court heard the case to determine “whether the failure to indicate the absence of any prior violations of the statute constitutes a failure to comply with the requirement of section 29-26-122(d)(4).” The Court noted that the Court of Appeals had previously held that a plaintiff’s failure to disclose zero prior violations required dismissal with prejudice. (See, e.g., Vaughn ex rel. Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. Mar. 5, 2013)). The Supreme Court expressly overruled those decisions, holding that the HCLA “does not require disclosure of the absence of any prior violations of the statute.” The Court reasoned:

 [The statute] does not require disclosure of whether or not there have been any prior violations. The General Assembly easily could have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations. It did not do so. Logically, if there have not been any prior violations there is no “number of prior violations” to disclose.

Accordingly, the Court held that the trial court did have the authority to dismiss plaintiff’s case without prejudice.

This was definitely the correct interpretation of the HCLA. As the Supreme Court noted, the Court of Appeals has either affirmed or ordered dismissal of several cases because the certificate of good faith did not state that the executing party had zero prior violations. This was an absurd result. As the plaintiff’s argued here and the Supreme Court agreed with, if there are no prior violations there is nothing to disclose. A sensible final resolution to an issue that has plagued many healthcare liability plaintiffs’ attorneys over the last few years.

In Chambers v. Illinois Central Railroad Co., No. W2013-02671-COA-R3-CV (Tenn. Ct. App. May 5, 2015), plaintiffs brought a negligence action against defendant for property damage sustained in a flood. A culvert ran under defendant’s railroad track, and according to plaintiffs, the failure to maintain and keep this culvert free from debris was the cause of the flooding on plaintiffs’ property.

Defendant filed a motion for summary judgment, which the trial court eventually granted on two grounds. First, the trial court found that a relevant federal regulation “substantially subsumed the subject matter of the plaintiffs’ state law claim,” such that if defendant had complied with the regulation the action was preempted. The trial court determined that defendant had presented uncontroverted testimony regarding the condition of the culvert before the flood and thus proved the “affirmative defense of preemption.” Second, the trial court determined that expert proof was required on this issue of causation, and since plaintiffs had no expert to contradict the condition of the culvert immediately before the flooding, plaintiffs could not prove causation, an essential element of their negligence claim. The Court of Appeals, however, reversed on both of these grounds.

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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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