Day on Torts

With several important limitations, T.C.A. § 20-1-119 permits a plaintiff to add parties defendant to a case even if the statute of limitations has expired. The triggering event for adding nonparties as parties is typically language in the defendant's answer or amended answer.

Rather than waiting for the defendants to get around to blaming others, try to force the issue by using the following interrogatory:

Do you contend that any person or entity other than yourself caused or contributed to cause plaintiff's [insert appropriate word] as alleged in the complaint? If so, please state (a) the identify of each such person; (b) what you contend he or she did (or did not do) to cause or contribute to cause the injuries; and (c) identify any documents or things that support your contention.

Be sure to define the word "identify."

Insist upon a timely response and seasonable supplementation of this interrogatory. The failure to get a timely response may help you defeat an umtimely motion to amend the answer to assert the fault of a co-defendant or nonparty.

Assuming an incient occurred in Tennessee with the federal government as the primary defendant (2 yr S/L to file federal tort claim notice), would section 119 be applicable if federal government later files a nonparty defense?

I am not aware of any case on point. I would work under the assumption that 20-1-119 would not extend the SOL applicable to the federal government. In other words, I would push the defendants in the state court case to blame the feds before the expiration of the fed SOL. Do this with a scheduling order.

"The failure to get a timely response may help you defeat an umtimely motion to amend the answer to assert the fault of a co-defendant or nonparty."
Do you believe that such a tactic will be successful in stopping the application of comparative fault among co-defendants?

Yes, assuming that there is nothing in the answer blaming a co-defendant and you can show prejudice. My position is that should be able to rely on the pleadings and the answers to interrogatories when you settle a case against one of multiple defendants. If a settling defendant is not blamed by a co-defendant, a plaintiff should be able to settle with the settling defendant and the co-defendant should not be able to ask the jury to assign fault to the settling party. Why? Because the plaintiff relied upon the absence of fault allegations in deciding how much to accept from the settling defendant.

My position is why isn't affrimatively pleading comparative fault in the answer without specifically identifying co-defendants by name sufficient. The plaintiff brought suit against all potential tortfeasors by naming them in the suit. Why should a plaintiff be put on notice of parties he is already aware of and settling with. There should be no prejudice b/c he is settling with those very parties which the jury could apportion fault to and in order to settle, plenty of discovery has already taken place concerning those very co-defendants. If there would have been no settlement, an apportionment would have been allowed among all the co-defendants regardless of whether comparative fault was pled or not. The jury would not be able to hear "mini-cases" within the same trial and have multiple verdict forms. After the current trial involving this matter wraps up I intend to invoke a change in the system. Good luck to me cause I'll need it.

In our case the plaintiff has had the medical records for 5 years. Trial date is May 31, 2006. On May 8, 2006 defendant chiropractor files Motion to Amend Answer naming treating doctor who did surgery resulting from the injury caused by chiropractor, claiming surgeon negligently operated at wrong cervical level, all of which was in the medical records defendant had for the five years. Does his Motion to Amend come too late?

Tom: the short answer is that granting leave to amend is in the discretion of the trial court. The best argument in favor of the motion to amend is that it won't hurt the plaintiff - plaintiff is barred by the statute of repose in suing the surgeon. The best argument for the plaintiff is (a) if the chiropractor or the chiro's lawyer knew that the surgery was done at the wrong level within the 3-year statute of repose they had a duty to timely plead it and (b) plaintiff no longer has time to find an expert to contest liability or, more importantly, causation.