The Legislature has approved the following changes to the Tennessee Rules of Civil Procedure:
Decision Upholding the Right to Take Depositions by the Use of Remote Video
Here is an excellent decision supporting the right of a party to take depositions by remote video despite an objection raised by the opposing party.
The court’s order references many of the issues that arise during remote video depositions and thus is a great resource for lawyers who are unfamiliar with such issues.
Sample Remote Deposition Protocol
Here is a sample of a protocol for remote depositions from the SDNY.
Large jury award affirmed in negligence case against Kroger
Where plaintiff fell and broke her hip in a grocery store due to her shopping cart missing a wheel, yet she mostly recovered from the injury, a jury verdict of approximately $90,000 in medical expenses and the maximum allowable amount of $750,000 in noneconomic damages was affirmed.
In Wortham v. Kroger Limited Partnership I, No. W2019-00496-COA-R3-CV (Tenn. Ct. App. July 16, 2020), plaintiff, an 88-year-old woman, went to defendant grocery store with her adult daughter. The daughter retrieved a shopping cart from the vestibule for plaintiff’s use, and plaintiff proceeded to shop for around thirty minutes. Near the end of her shopping trip, plaintiff turned her cart to the right and it tipped over, causing her to fall. After plaintiff fell, it was discovered that the shopping cart was missing one wheel, and despite searching the property, the missing wheel and/or parts that would have held the wheel in place were not found. Plaintiff broke a bone and injured her hip in the fall, and she required surgery. She spent time four days in the hospital and fourteen days in a rehabilitation center, and despite doing well, she testified that the she still had some pain and had lost much of her independence due to the fall.
Chairs stacked on top of table not a dangerous condition
Where a middle school student was injured when he tripped on his backpack strap, beginning a chain of events that knocked down a chair that was stacked on top of a table and injured his hand, summary judgment was affirmed based the lack of a dangerous condition and the injury not being foreseeable.
In Landry v. Sumner County Board of Education, No. M2019-01696-COA-R3-CV (Tenn. Ct. App. June 30, 2020), plaintiff was an 11-year-old student sitting with friends in his school cafeteria as he waited for the bell to ring to begin the school day. At this school, the chairs were always placed upside down on the top of the tables the day before so the custodians could clean. In the mornings, the kids would take down a chair to sit. On this particular morning, plaintiff’s backpack strap had unknowingly become wrapped around the leg of his chair. When plaintiff stood to leave, he tripped on the strap. As he fell, he pushed his chair away, and that chair hit a chair that was still upside down on a table. The upside down chair fell and hit plaintiff’s hand, severing the tip of one of his fingers.
No duty to remove snow from parking lot while snow is still falling.
Where plaintiff slipped on ice in a hotel parking lot during a snowstorm, summary judgment for defendant hotel was affirmed.
In Chittenden v. BRE/LQ Properties, LLC, No. M2019-01990-COA-R3-CV (Tenn. Ct. App. July 15, 2020), plaintiff checked into defendant hotel during a snowfall that had already produced two inches of snow on the ground. It was still snowing when plaintiff went to his hotel room. When plaintiff left his room fifteen minutes later, it was still snowing, and he slipped in the parking lot. Plaintiff brought this premises liability action, and the trial court granted summary judgment, which was affirmed on appeal.
No damages to plaintiff despite fault of defendant in car accident affirmed.
Where defendant admitted liability for a car accident but denied that the accident caused plaintiff’s alleged injuries, a jury verdict for defendant was affirmed where there was material evidence showing that the accident was minor, evidence showed plaintiff had a history of back and/or neck pain, and plaintiff’s expert witness admitted that “she based her opinion on purely subjective findings[.]”
In Bell v. Roberts, No. M2018-02126-COA-R3-CV (Tenn. Ct. App. July 8, 2020), plaintiff, a 70-year-old woman, filed suit after her vehicle was rear ended by a car driven by defendant. Defendant admitted fault, but he denied that the accident caused any injury to plaintiff.
During a jury trial, plaintiff, defendant, plaintiff’s doctor, and the police officer who responded to the accident testified. Plaintiff stated that she drove herself to the ER after the accident, and “scans of her spine showed changes consistent with degenerative disc disease.” After the medicine prescribed at the ER failed to alleviate her neck pain, she went to her doctor 15 days later and was given “additional pain relief measures and physical therapy.” Plaintiff admitted that she had a history of degenerative disc disease and back surgery, but she stated that she had never had neck pain before the accident. On cross examination, however, defense counsel pointed out that her testimony about previous pain was different in her deposition. Plaintiff also admitted that she did not complain about neck pain to her doctor past April 2016, although she maintained that she did not fully recover.
Dismissal of libel and false light invasion of privacy claims affirmed.
Dismissal of claims of defamation and false light invasion of privacy by the former CEO of a credit union was affirmed where the email she cited “was not capable of conveying a defamatory meaning” and could not “be considered highly offensive to a reasonable person;” the statement she cited was “not capable of conveying a defamatory meaning” and was not sufficiently publicized; and the audit report she cited was not given the requisite publicity.
In Tidwell v. Holston Methodist Federal Credit Union, No. E2019-01111-COA-R3-CV (Tenn. Ct. App. June 25, 2020), plaintiff had been the CEO of defendant credit union and was fired after an audit by a regulatory agency. Several issues were identified by the audit, and plaintiff claimed “she became the scapegoat for these problems.” Plaintiff brought suit against the credit union, the chairman of the Board of Directors, the chairman of the Supervisory Committee, and an independent auditor for libel, false light invasion of privacy, and retaliatory discharge.
The trial court granted defendants’ motion to dismiss all claims. Plaintiff appealed, the Court of Appeals affirmed dismissal.
Expert proof needed on standard of care in legal malpractice case.
Where defendant attorneys presented expert proof consisting of their own affidavits and the affidavit of another attorney stating that they complied with the applicable standard of care in their previous representation of plaintiff, the testimony of plaintiff and another witness, neither of whom were attorneys, was not enough to defeat summary judgment in a legal malpractice case.
In Hobson v. Frank, No. M2019-01556-COA-R3-CV (Tenn. Ct. App. June 4, 2020), plaintiff filed a pro se legal malpractice case against the two attorneys who had previously represented her in a “federal failure to hire case.” In her federal case, plaintiff had claimed that the Department of Defense committed racial discrimination by not hiring her. She originally filed that case pro se, but defendants were appointed to be her trial counsel. Defendants worked on the case for around seven months and “filed several motions in limine, frequently communicated with Plaintiff…, participated in several pre-trial conferences, reviewed thousands of pages of discovery…, and litigated the three-day jury trial.” Defendants and their staff worked around 700 hours on the case and were not paid for their representation of plaintiff, but the jury returned a verdict for the defendant.
Noneconomic damages cap should be applied to each plaintiff separately in personal injury cases.
When an HCLA plaintiff was awarded a verdict for her health care liability claims and her husband was awarded damages for loss of consortium, the trial court correctly considered the plaintiffs separately for the purpose of applying the statutory cap on noneconomic damages.
In Yebuah v. Center for Urological Treatment, No. M2018-01652-COA-R3-CV (Tenn. Ct. App. May 28, 2020), plaintiff had surgery to remove a cancerous kidney in 2005. A CT scan was done four months after surgery, and the radiologist reported no signs of cancer. The radiology report on a subsequent CT scan noted a “tubular structure” within plaintiff’s abdominal cavity, but plaintiff’s treating physician “did not read the reference to the foreign object.” Seven years later, plaintiff required gallbladder surgery due to severe abdominal pain. During that surgery, it was discovered that a “part of a gelport device” had been left inside plaintiff during her 2005 kidney surgery. Plaintiff required another surgery to have the device removed.