Tort Cases Pending Before the Tennessee Supreme Court

The Tennessee Supreme Court is currently reviewing the twelve cases of interest to Tennessee personal injury and wrongful death lawyers.  Click on the “continue reading”link to see the full list.

1.  Action Chiropractic Clinic, LLC v. Prentice Delon Hyler & Erie Ins. Exchange.  The case was argued on February 5, 2015.  Here is the lower court summary:

Chiropractic clinic which provided services to party injured in an automobile accident brought action against the injured party, who had assigned the proceeds of his claim against tortfeaser to the clinic in payment of the services, and the tortfeasor’s liability insurer, which did not honor the assignment. The trial court granted summary judgment to the insurer holding that: the victim did not have any rights relative to the insurance provider; the insurance policy required written consent for an assignment and there was no evidence of such consent; there was no privity between the clinic and the insurance provider; the clinic was not a beneficiary of the insurance policy; and the suit was a direct action against an insurance company which is prohibited by Tennessee law. The clinic appeals. Finding no error, we affirm the grant of summary judgment.

2.  Clayton Arden v. Kenya I. Kozawa, M.D.  Oral argument is pending.   Here is the lower court summary:

The plaintiff, as surviving spouse, appeals the trial court’s dismissal of his health care liability action against the defendant doctor who treated the plaintiff’s wife prior to her death and the hospital wherein the treatment occurred. The trial court granted the defendants’ motions for summary judgment based upon the plaintiff’s failure to strictly comply with the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 (Supp. 2013). We reverse the trial court’s ruling that the plaintiff had to strictly comply with the provisions of the notice requirement and conclude that the plaintiff substantially complied with said requirement. We affirm, however, the trial court’s ruling that the plaintiff could not rely upon the statutory 120-day extension of the statute of limitations due to his failure to properly serve the notice. We therefore affirm the trial court’s dismissal of the plaintiff’s claims as barred by the statute of limitations.

3.  Richard A. Berent v. CMH Homes, Inc.  This case was argued November 3, 2015 in Knoxville.  A decision is expected shortly.  Here is the lower court summary:

The issue on this appeal is the enforceability of an arbitration agreement. The trial court, applying the principles promulgated in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 1996), held that the arbitration agreement was unconscionable because it requires the plaintiff to submit to arbitration virtually all of his claims, while allowing the defendants access to a judicial forum for some of their potential claims. We agree with the trial court that the Supreme Court’s decision in Taylor is controlling and that Taylor mandates a holding that the agreement is unconscionable and unenforceable. The judgment of the trial court is affirmed.

4.  Donriel A. Borne v. Celadon Trucking Services, Inc.    Dissent.  Oral argument has not been set. Here is the lower court summary:

Plaintiff was injured in an accident involving three tractor-trailer trucks. Plaintiff, who was driving a tractor-trailer, sued the other truck drivers and the trucking company owners of the vehicles. However, prior to trial, Plaintiff entered into an agreement with one of the trucking companies whereby Plaintiff and the agreeing defendant agreed to cooperate regarding the litigation and to work together to expose the defenses asserted by the non-agreeing defendant. The jury returned an itemized verdict of $3,705,000 for the Plaintiff against the non-agreeing defendant. The trial court denied the non-agreeing defendant’s motion for a new trial, but it suggested a remittitur of $1,605,000, for a total award of $2,100,000. Plaintiff accepted the remittitur under protest and the non- agreeing defendant appealed to this Court. For the following reasons, we affirm in part and we reverse in part. Specifically, we affirm the physical pain and mental anguish and permanent injury awards as reduced by the trial court; we reverse the trial court’s suggested remittitur of the loss of earning capacity award and we instead reinstate the jury verdict of $1,455,000; and we further reduce the loss of enjoyment of life award to $50,000. Thus, we approve a total award to Plaintiff of $2,105,000.

5.  Circle C Construction, LLC v. D. Sean Nilsen.  Oral argument is set for September 2, 2015 in Knoxville.  Here is the lower court summary:

The issue in this case is whether a tolling agreement between the parties precludes the application of the savings statute set forth in Tenn. Code Ann. § 28-1-105(a). The Court of Appeals agreed with the trial court that the tolling agreement does preclude application of the savings statute and that the plaintiff’s legal malpractice action is barred by the termination date established in the agreement.

6. Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D. The case was argued in Jackson on March 4, 2015.  Here is the lower court summary:

This is a medical malpractice wrongful death action. After the plaintiff filed this lawsuit, hetimely filed a certificate of good faith, as required by the medical malpractice statute. Thecertificate did not include a statement that the executing party had “zero” violations of thestatute. The defendants filed a motion to dismiss based on this omission. The plaintiff in turnfiled a notice of voluntary nonsuit without prejudice. The defendants objected to a dismissalwithout prejudice. The defendants argued that, if the certificate of good faith does not strictlycomply with the statutes, the trial court must dismiss the case with prejudice. The trial courtgranted the voluntary nonsuit without prejudice, and the defendants now appeal that decision. Discerning no error, the Court of Appeals affirmed.

7.  Adam Ellithorpe, et al. v. Janet Weismark.   The case will be argued June 3, 2015 in Nashville.  Here is the lower court summary:

Parents and minor child brought this action against a licensed clinical social worker, alleging that the social worker provided counseling to the minor child in violation of a court order. The social worker moved to dismiss the complaint for failure to comply with the Tennessee Health Care Liability Act’s procedural requirements. The trial court found that the complaint sounded in health care liability and accordingly dismissed it in its entirety. The Court of Appeals concluded that the trial court applied an improper standard in dismissing the complaint, vacated the judgment, and remanded for further proceedings.

8.  Richard Moreno v. City of Clarksville.   Oral argument was held February 5, 2015 in Nashville.  Here is the lower court summary:

Plaintiff filed a timely claim with the Division of Claims Administration, whichdid not resolve the claim within the statutory period. The claim was transferred to the Claims Commission, and Plaintiff filed a complaint pursuant to the Claims Commission Rules. Much later, the State amended its answer to allege fault by the City of Clarksville. Plaintiff filed suit against the City. The suit was dismissed because the trial court found that the “original complaint” under Tenn. Code Ann. § 20-1-119 was not filed within a year of the alleged injury. Plaintiff appealed. We reverse.

9.  Anne Payne v. CSX Transportation, Inc.  Oral argument was held in Greenville on January 7, 2015.  Here is the lower court summary:

Winston Payne brought this action against his former employer, CSX Transportation, Inc., under the Federal Employers’ Liability Act (“FELA”), alleging that CSX negligently exposed him to asbestos, diesel fumes, and radioactive materials in the workplace causing his injuries. The jury returned a verdict finding (1) that CSX negligently caused Payne’s injuries; (2) that CSX violated the Locomotive Inspection Act or safety regulations regarding exposure to asbestos, diesel fumes, and radioactive materials; and (3) that Payne’s contributory negligence caused 62% of the harm he suffered. The jury found that “adequate compensation” for Payne’s injuries was $8.6 million. After the jury returned its verdict, the trial court, sua sponte, instructed the jury, for the first time, that, under FELA, its finding that CSX violated a statute or regulation enacted for the safety of its employees meant that plaintiff would recover 100% of the damages found by the jury. The court sent the jury back for further deliberations. It shortly returned with an amended verdict of “$3.2 million @ 100%.” Six months after the court entered judgment on the $3.2 million verdict, it granted CSX’s motion for a new trial, citing “instructional and evidentiary errors.” The case was then assigned to another trial judge, who thereafter granted CSX’s motion for summary judgment as to the entirety of the plaintiff’s complaint. The second judge ruled that the causation testimony of all of plaintiff’s expert witnesses was inadmissible. We hold that the trial court erred in instructing the jury, sua sponte, on a purely legal issue, i.e., that the jury’s finding of negligence per se under FELA precluded apportionment of any fault to the plaintiff based upon contributory negligence, an instruction given after the jury had returned a verdict that was complete, consistent, and based on the instructions earlier provided to it by the trial court. We further hold that, contrary to the trial court’s statements, the court did not make any prejudicial evidentiary rulings in conducting the trial, and that its jury instructions, read as a whole, were clear, correct, and complete. Consequently, the trial court erred in granting a new trial. We remand to the trial court. We direct the first trial judge to review the evidence as thirteenth juror and determine whether the jury verdict in the amount of $8.6 million is against the clear weight of the evidence. If it is not, the trial judge is directed to enter judgment on that verdict. If, on the other hand, the trial judge finds that the larger verdict is against the clear weight of the evidence, the court is directed to enter a final judgment on the jury’s verdict of $3.2 million. The trial court’s grant of summary judgment is rendered moot by our judgment. However, in the event the Supreme Court determines that our judgment is in error, we hold that the grant of summary judgment was not appropriate.

10.  Michelle Rye, et al. v. Women’s Care Center of Memphis, MPLLC.  Oral argument was held March 4, 2015 in Jackson.  Here is the lower court summary:

This interlocutory appeal concerns the trial court’s grant of partial summary judgment to the Defendant/Appellee medical providers on various issues. The Plaintiff/Appellant couple filed a complaint for damages stemming from the medical providers’ failure to administer a RhoGAM injection during wife’s pregnancy. The couple alleged causes of action for compensatory damages associated with medical malpractice, negligent infliction of emotional distress, and disruption of family planning. The trial court granted summary judgment to the medical providers on the wife’s claim for future medical expenses, husband’s claim for negligent infliction of emotional distress, and the couple’s claim for disruption of family planning. The trial court declined to grant summary judgment on wife’s physical injury claim, her negligent infliction of emotional distress claim, and the claim that wife could present evidence of the disruption of her family planning as evidence in her negligent infliction of emotional distress claim. We reverse the trial court’s grant of summary judgment on wife’s claim for future medical expenses associated with future pregnancy and husband’s claim for negligent infliction of emotional distress, which he may support with evidence concerning the disruption of the couple’s family planning. The trial court’s ruling is affirmed in all other respects. Affirmed in part, reversed in part, and remanded.

Note:  The Court also asked the parties to brief the summary judgment standard issue.

11.  Ike J. White, III v. David A. Beeks, M.D.  This case was heard November 4, 2015 in Knoxville and thus a decision is expected shortly.  Here is the lower court summary:

This appeal involves the question of whether the trial court properly limited a medical expert’s testimony at trial regarding the standard of care in an informed consent health care liability action. In the case at bar, the defendant filed a motion in limine seeking to limit the testimony of the plaintiff’s expert at trial regarding risks that should have been disclosed to the plaintiff to only those risks that actually resulted in injury. The trial court granted the motion. A jury trial was held, and the jury found in favor of the defendant. Plaintiff appeals, asserting that the trial court committed reversible error when it restricted the ability of the plaintiff’s medical expert to testify about other known risks. Discerning no error, we affirm.

12.  In re Estate of Sarah Margaret Wilkins.  The case was heard February 2, 2015 in Nashville.  Here is the lower court summary:

This appeal stems from a case of alleged nursing home abuse and neglect and involves a dispute as to whether a health care power of attorney executed by decedent was effective to authorize the agent to execute an optional arbitration agreement on the decedent’s behalf. The trial court denied the nursing home’s motion to compel arbitration, holding that the attorney-in-fact did not have authority to sign the optional arbitration agreement on the principal’s behalf. The nursing home appeals. Finding no error, we affirm.