Articles Posted in Forms for Tennessee Tort Practice

         One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

          I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

Did you that our appellate courts had forms to help guide you through the appellate court process?

This page at the Administrative Office of the Courts website has various forms relevant at different stages of the appellate process, inlcuding a sample brief cover page, a motion for extension of time, etc.

That being said, the recent decision in  Range v. Baese reminds us of the importance of knowing and following the rules of appellate procedure.  The Tennessee Court of Appeals reversed a grant of summary judgment because "multiple deficiencies in the record on appeal" did not permit it to reach the merits.

This is a brief in response to a defendant’s motion in limine to exclude the expert witness testimony of an economist. The economist was disclosed in a wrongful death case arising out of the drowning of a three-year-old boy. The economist is expected to testify about the present value of the child’s loss of earning capacity.

Obviously, with a child so young there is very little empirical evidence to establish the child’s likely career path. The economist was asked, then, to simply address the likely present value of the child’s earnings had he graduated high school and entered the workforce, and alternatively had he graduated college and entered the workforce. We are prepared to prove the child’s likely success in life through other witnesses, to let the jury decide his probable earning capacity, and to let the economist explain how to calculate that in today’s dollars.

The Defendants moved to exclude the economist’s testimony in part because he did not have a sufficient basis on his own for the assumptions of educational achievement. The Defendants also moved to exclude his testimony because the economist’s original report did not include a deduction for personal maintenance expenses, which the Defendants’ termed as “mandatory” under the Tennessee Supreme Court’s holding in Wallace v. Couch. A careful reading of Wallace and Tennessee evidentiary law on expert witnesses demonstrates the Defendants in our case were wrong.

A pre-trial brief takes a lot of effort, but it can really set the stage for success before you walk into the courtroom – particularly in a bench trial.

Preparing for trial is exhausting enough, so it’s tempting to put the pre-trial brief on the backburner. Don’t. Give the court all of the information that should be necessary for you to win, and then a little bit more. Acknowledge the weaknesses in your case so the court isn’t surprised when you walk into trial with half as good a case as your brief would suggest.

Here is an example of a brief Brandon Bass of our office recently used in a construction negligence case where a driver was critically injured in a car wreck on an Interstate exit ramp. We alleged that the State failed to use appropriate signs and other markings to advise drivers and that the failure to do so left the intersection confusing and dangerous. We used photos in the text of the brief to help her understand the confusing nature of the intersection without having to like flip back and forth to an appendix.

Requests for Admissions under Tenn. R. Civ. P. 36 must be responded to within 30 days. If your opponent fails to respond to a request for admission, technically the facts are deemed admitted. To rely on the admission, however, Tennessee Dept. of Human Servs. v. Barbee, 714 S.W.2d 263 (Tenn. 1986) says that you need to bring the admission to the court’s attention through a special motion. Not much should be required to establish your opponent simply never responded, so this form motion should take care of it. Download file

Barbee needs to be overruled – the requirement that this type of motion be filed makes little sense. In the meantime, however, this motion should be of some help to you.

Here is a complaint for filing suit in a car wreck case against a John Doe driver. The complaint references Tenn. Code Ann. sec. 56-7-1201(e), which outlines the requirements for recovering from uninsured motorist coverage. Also look to sec. 56-7-1206, which describes how to serve process on a John Doe driver. Download file

While investigating a potential case, you may find that a possible defendant has a piece of evidence you want. This is a letter requesting the potential defendant preserve the evidence and make it available for inspection. If the defendant refuses to let you view the evidence – or outright destroys it – you have a paper trail to ask for a spoiliation instruction.

Even if the evidence is in the hands of a third-party with no direct relationship to the case, such a letter may help you avoid any implication that your client passively (or actively) participated in destroying crucial evidence. Download file

Wrongful death cases are a unique breed, and the damages recoverable in a wrongful death case deserve special attention. Through the Tennessee Supreme Court’s holding in Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999), the jury is allowed to consider the human losses suffered by the victim’s surviving family members. Unlike a personal injury case, however, the surviving family members do not hold a separate claim for loss of consortium. To the contrary, the Supreme Court made clear that it’s holding in Jordan did not create a new cause of action, but merely “refines the term ‘pecuniary value.'” The family members do not have their own claims, but the family members’ personal losses are considered part of the victim’s worth. The distinction of who owns the claim for Jordan type damages has it’s greatest practical impact in the admission of evidence, the verdict form, and the distribution of proceeds among the surviving family members.
At the pleading stage, the plaintiff should try to provide notice to the defendants of each of the family members whose losses will be asserted. This Complaint covers a wrongful death where the victim leaves behind one minor child but no spouse. Note that, under Jordan, an adult child also has a right to recover, but the trier of fact takes into consideration factors that suggest the closeness and dependency of the parent-child relationship. Download file

In some cases, a personal injury plaintiff will have medical records that merit extra protection against needless disclosure. A prime example: psychological counseling records. This simple agreed protective order can allow the defendants to discover the plaintiff’s mental health records, consult with experts in evaluating the records, and use the records in the litigation without destroying the plaintiff’s privacy.
Download file