Articles Posted in Discovery


In Denton v. Taylor, No. E2015-01726-COA-R3-CV (Tenn. Ct. App. July 25, 2016), the Court of Appeals affirmed summary judgment in a car accident case because “plaintiff provided no evidence establishing that the decedent’s negligence caused the accident.”

Plaintiff and the decedent, whose wife was the defendant here, were involved in a car accident in March 2013. Plaintiff could not remember anything about the accident, and the other driver was pronounced dead at the scene. In March 2014, plaintiff filed this negligence action.

Defendant moved for summary judgment fifteen months after the complaint was filed, submitting an affidavit from a sheriff’s deputy who stated that there were no witnesses to the accident and that a review of photographs and other evidence “was not able to determine the point of impact.” Defendant argued that plaintiff could not show that decedent’s alleged negligence had caused the accident. Plaintiff responded, relying on the post-mortem toxicology results that showed that decedent had hydrocodone and hydromorphone in his system.

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The noncompliant Dr. Evans strikes again. For the third time, the Tennessee Court of Appeals heard a case revolving around the exclusion of Dr. Martin Evans as plaintiffs’ standard of care expert due to his failure to provide certain financial documents.

In Buman v. Gibson, No. W2015-00511-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2016), plaintiffs filed an HCLA claim in July 2011. In September 2012, plaintiffs identified Dr. Evans as their expert witness regarding the applicable standard of care. Dr. Evans was deposed in November 2012, during which he “refused to answer questions regarding his income from medical-legal review.” The trial court granted defendants’ motion to compel discovery on this issue, and on May 30, 2013, the trial court “orally ruled that Dr. Evans was to provide his annual income from medical-legal review from 2005-2011 within thirty days of the entry of the written order.” At that hearing, plaintiffs made an oral motion for additional time to obtain a new expert, and the trial court directed them to file a written motion to that effect. At the hearing, the trial judge stated: “In all candor, I probably will look on your motion with favor.” Following the hearing, however, plaintiffs did not file a written motion to allow time for a new expert. Accordingly, the trial court granted the motion to compel, and when the information was not provided, defendants filed a motion to exclude Dr. Evans and an accompanying motion for summary judgment based on plaintiffs’ lack of a standard of care expert, a requirement for proving an HCLA claim.

In the face of the motion to exclude and motion for summary judgment, plaintiffs still did not mile a motion for time to find a different expert. Instead, plaintiffs responded with a motion to revise that argued about the propriety of allowing discovery of the financial information sought. The court denied the plaintiffs’ motion on November 18, 2013, but gave them additional time to provide the requested financial information.

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

This is the substance of HB 1466:

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

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

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

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

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What is it with drillers and spoliation of evidence cases?  First it was Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc. which is a Tennessee leading case on the subject.  And now, we have a new spoliation case with a different drilling company, Griffith Services Drilling, LLC v. Arrow Gas & Oil, Inc.   So, let’s drill down on this issue a bit, shall we? 

Griffith Services Drilling, LLC (Griffith Drilling) and its insurance carrier sued Arrow Gas & Oil, Inc. (Arrow) for $1.2 million in property damage caused by a fire.  On the day of the fire, an Arrow employee, Mr. Burress, delivered fuel to Griffith Drilling.  During the refueling, Burress walked away to converse with some of the Griffith Drilling employees.  Shortly thereafter, a Griffith Drilling employee yelled that fuel was spraying and a fire ignited.  When Burress moved the Arrow truck to get it away from the fire, the fuel nozzle broke off.  The next day, Burress took the broken nozzle to a retailer and traded it in for a new nozzle.  Griffith Drilling was not provided any notice of Arrow’s intent to replace the nozzle. 

After the fire and without notifying Arrow, Grifftih Drilling’s insurance carrier authorized clean up of the site and disposed of all evidence of the fire.  One month after the clean-up was completed, Griffith Drilling sent Arrow a notice of its intent to pursue a claim for the fire damage.  Suit was eventually filed and Arrow counterclaimed for breach of contract as Griffith Drilling had failed to pay for the fuel delivered to the site.   Thereafter, Arrow filed two motions: (1) a motion to dismiss for spoliation of evidence based on Griffith Drilling’s clean up of the site; (2) a motion for summary judgment on the breach of contract counterclaim.  The trial court granted both motions.  Griffith Drilling appealed alleging the trial court erred by granting both motions. 

A Florida appellate court has recently restricted largely unfettered discovery from the Facebook account of a personal injury plaintiff who was filing suit because of injuries to her minor son.  She also asserted her own claim for loss of parental consortium. 

Root v. Balfour Beatty Construction LLC, 2014 WL 444005 (Fl. D.C.A. 2nd Feb. 5, 2014)  Defendant served written discovery that sought access to social media accounts. The appellate court quashed an order permitting extensive discovery and suggesting that in camera review may be necessary to protect the privacy rights of the plaintiff. The opinion cites several cases and a recent article about social media discovery.

The Montana Supreme Court has ordered that a trial court may not order a Rule 35 psychological examination of a personal injury plaintiff who has asserted a typical pain and suffering claim.

In Lewis v. 8th Judicial District,  OP 12-0401 (Mont. S. C. Sept. 11, 2012) Lewis brought a claim for damages arising after she hit by a car while crossing the street as a pedestrian.  Lewis did not claim damages for any mental or psychological disorder or injury due to the accident, nor did she claim that a pre-existing mental condition was exacerbated by the accident or assert an independent tort claim for negligent infliction of emotional distress. Rather, she made only a general claim for "emotional pain, suffering and anxiety" associated with her physical injuries from the accident.

Lewis maintained that the motor vehicle/pedestrian accident is solely responsible for her current and continuing issues with pain. However, a physician who examined Lewis on behalf of State Farm questioned whether her chronic pain may be caused or exacerbated by her preexisting mental health issues.

I am in a lawsuit and had to answer interrogatories.  I didn’t tell the truth about some things and the other side found out about it.  Can I get sent to jail for not tellling the truth?

There is a risk of jail or a fine because interrogatories are answered under oath and lying under oath is perjury.  However, I am unaware of any person actually having been jailed for not telling the truth in answers to interrogatories.

A more realistic risk is that the trial judge may sanction you (he or she would have the right to dismiss your case or, if you were sued, strike the answer in the case and enter judgment against you.)   Lesser sanctions would include telling the jury what you did, awarding attorneys fees against you, and other penalties.  Your mistake will also hurt your credibility with the judge and jury.

What burden should be placed on a party seeking a new trial if the losing party discovers that the winning party engaged in deliberate discovery misconduct?  In Duart v. Dep’t of Correction,  No. 18476 (Conn. Jan. 24, 2012), the Connecticut Supreme Court  said  the movant must establish the following:

(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a reasonable probability that the result of the new trial will be different.

A‘ ‘reasonable probability’ ’’ means ‘‘’a probability sufficient to undermine confidence in the ‘outcome’’  or, in other words, that ‘’the favorable evidence could reasonably be taken to put the [whole case in such a different light as to undermine confidence in the verdict.’’"  [Citations omitted.] 

A New York Appellate Court has ruled in Patterson v. Turner Construction that a defendant in a personal injury case does not have an unfettered right to access the plaintiff’s Facebook account.

Instead, the defendant can seek only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

The appellate court reversed a trial court order which "granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived."