Day on Torts

July 7, 2020

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.

July 6, 2020

Noneconomic damages cap should be applied to each plaintiff separately in personal injury cases.

by The Law Offices of John Day, P.C.

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.

July 2, 2020

Damage Award Affirmed in Brachial Plexus Injury Case

by The Law Offices of John Day, P.C.

The Seventh Circuit Court of Appeals has affirmed a $8.3 million damage award in the brachial plexus injury case brought under the Federal Tort Claims Act.

The damage award was broken down as follows:

$64,967.77 for past medical expenses
$80,000 for future medical expenses
$2,653,000 in lost earnings
$1,500,000 for the permanent disfigurement of his right arm
$2,000,000 for the deprivation of a normal life and
$2,000,000 for pain, suﬀering, and emotional distress.

July 1, 2020

College had duty to student where fraternity hazing was foreseeable.

by The Law Offices of John Day, P.C.

Where plaintiff knew that he would likely be paddled before joining a fraternity but did not understand the full scope of the hazing he would endure, summary judgment based on the plaintiff’s comparative fault was overturned. Further, where the college had received previous reports of hazing from the fraternity in question, summary judgment based on a lack of duty was overturned.

In Halmon v. Lane College, No. W2019-01224-COA-R3-CV (Tenn. Ct. App. May 29, 2020), plaintiff joined a fraternity at defendant college. He admittedly knew that he would be paddled as part of his initiation process, but he alleged that he was unaware of the extent of the hazing that would be involved. He claimed that he was subjected to extreme hazing, including being beaten, burned, sleep deprived, and compelled to drink concoctions. Plaintiff suffered serious injuries, forcing him to withdraw from college, and he filed this action for negligence and vicarious liability against defendant.

In his complaint, plaintiff alleged that defendant college was vicariously liable based on “the actions (and failures to act) of a Lane College employee, Calvin Walker.” Mr. Walker was the faculty adviser for the fraternity at issue, as well as a member of the fraternity, and plaintiff asserted that “Mr. Walker had failed to prevent injuries to him by failing to properly intervene in the hazing and by failing to report it.” Plaintiff also asserted that defendant was directly negligent in its hiring, supervising, and retention of Mr. Walker.

June 30, 2020

Second HIPAA authorization sent after statute of limitations had run could not cure previous defects.

by The Law Offices of John Day, P.C.

Where plaintiff’s initial HCLA pre-suit notice included HIPAA authorizations that were left blank, and plaintiff’s supplemental authorization that attempted to correct the problem was sent after the one-year statute of limitations on his claim had run, dismissal was affirmed.

In Carrasco v. North Surgery Center, LP, No. W2019-00558-COA-R3-CV (Tenn. Ct. App. May 28, 2020), plaintiff filed a health care liability suit against defendants based on “injuries sustained by a guidewire left in the plaintiff’s neck following a procedure.” Prior to filing his suit, plaintiff sent defendants a pre-suit notice letter on August 31 and September 1, 2016, that was accompanied by the HIPAA authorizations required by Tenn. Code Ann. § 29-26-121(a)(2)(E). The authorizations, however, contained blanks that were not filled in, and “plaintiff concede[d] that the authorizations did not substantially comply with the requirements of the [HCLA].” Later, on November 2, 2016, plaintiff sent new authorizations which purportedly corrected the issues with the first set of authorizations. In paragraph three of the new authorizations, however, the information to be used or disclosed named “Narinder Sanwal, Deceased,” instead of plaintiff.

Defendants filed a motion to dismiss based on the noncompliant HIPAA authorizations, which the trial court granted, and the Court of Appeals affirmed.

June 29, 2020

Determining reasonable attorneys’ fees in post-settlement dispute.

by The Law Offices of John Day, P.C.

When determining the amount of attorneys’ fees to award in a post-settlement attorney fee dispute, the trial court should have considered the relevant facts and factors contained in Tennessee Rules of Professional Conduct 1.5(a).

In Cordova v. Nashville Ready Mix, Inc., No. M2018-02002-COA-R3-CV (Tenn. Ct. App. May 19, 2020), the issues at play were “post-settlement disputes concerning an attorney’s fee lien filed by the plaintiffs’ first attorney, a subrogation lien filed by the employer’s workers’ compensation carrier, and the assessment of post-settlement discretionary costs against the carrier.” In the underlying case, Sergio Lopez had died from injuries he sustained at work. The injuries were caused by a third party (defendant), and Mr. Lopez’s employer’s workers’ compensation insurance carrier had been paying benefits to his wife and children. The wife filed a wrongful death claim against defendant company and its employee, alleging that the employee caused her husband’s death and that the company was vicariously liable.

In the wrongful death action, plaintiffs were initially represented by attorney Gary Hodges, whose fee agreement “entitled him to 33% of the gross recovery obtained through arbitration, settlement conference or trial.” The agreement also provided that if Mr. Hodges was discharged and plaintiff recovered after the discharge, Mr. Hodges would be entitled to “a reasonable attorney’s fee and reimbursement for all costs advanced.” Notably, the agreement did not differentiate between “discharge for good cause and discharge without cause.” After he was hired by the plaintiffs, “Mr. Hodges entered a separate fee-sharing agreement with another solo practitioner, Robert L. Martin.” Plaintiffs never had an agreement with Mr. Martin and were not told about the agreement between Mr. Hodges and Mr. Martin.

June 24, 2020

Jury Verdict Finding Plaintiff 77% at Fault Vacated

by The Law Offices of John Day, P.C.

Where defendant introduced no material evidence at trial to support a finding that plaintiff was 77% at fault for a fall cased by a faulty automatic door, the jury’s verdict was vacated.

In Gilmore v. NOL, LLC A/K/A Premier Radiology, No. M2019-01308-COA-R3-CV (Tenn. Ct. App. May 27, 2020), plaintiff* was an 84-year-old physical therapy patient. When she was exiting defendant’s building after her physical therapy appointment, “the automatic door closed while she was standing just outside the threshold of the doorway,” causing her to fall and break her arm and leg.

Plaintiff filed a negligence and premises liability suit against defendant, and defendant asserted the defense of comparative fault in its answer. After a jury trial, the jury returned a verdict finding plaintiff 77% at fault and defendant 23% at fault, meaning that plaintiff did not recover any damages. Plaintiff filed a motion for a new trial, which the trial court denied. On appeal, plaintiff asserted that the trial court used the wrong standard in its role as thirteenth juror and that there was no evidence to support the comparative fault finding.

June 22, 2020

Case dismissed for negligent spoliation of evidence.

by The Law Offices of John Day, P.C.

Where plaintiffs sued for $500,000 in flood damages to a bus and trailer, but disposed of the bus and trailer shortly after the flood before defendant could examine the alleged damages, the Court of Appeals affirmed dismissal of the gross negligence claim based on spoliation of evidence.

In Legacy Five Leasing, LLC v. Busforsale.com, LLC, No. M2019-01615-COA-R3-CV (Tenn. Ct. App. May 27, 2020), plaintiffs leased a parking space for their bus and trailer from defendant. When leasing the space, plaintiffs signed an agreement that stated that defendant “assumed no liability or responsibility for damages to [the bus and/or trailer] due to theft, vandalism, fire, flood or other acts of God or man,” and the agreement stated that plaintiffs’ equipment would be “parked in a floodway or floodplain.”

Less than a year after the agreement was signed, the parking lot flooded, and plaintiffs claimed their bus and trailer were extensively damaged. Plaintiffs “confronted” defendant just four days after the flood regarding defendant’s actions with respect to the flood. The following day, plaintiffs gave control of the bus and trailer to their insurance company, and the property was disposed of before defendant could examine any of the alleged damage.

June 19, 2020

Summary Judgment for Convenience Store Reversed in Slip-and-File Case

by The Law Offices of John Day, P.C.

Where a premises liability plaintiff produced photographs showing possibly damp conditions around a gas pump where she fell, testified that the EMTs who arrived to help her slipped, and relied on an incident report stating that the store was “not for sure if it was slick from oil or gas,” plaintiff had shown that there were genuine issues of material fact and summary judgment for defendant was reversed.

In Wilson v. Weigel Stores, Inc., No. E2019-00605-COA-R3-CV (Tenn. Cr. App. May 19, 2020), plaintiff was fueling her car at defendant convenience store. As she stepped towards her car to get trash out, she slipped and fell. Two EMTs came to help plaintiff, and the manager at the store took photos of the area, completed an incident report, and wrote down another customer’s contact information who had witnessed the incident.

Plaintiff filed this premises liability case, and plaintiff, the EMTs, the store manager, and an HR representative from defendant were deposed. Plaintiff testified that her foot slipped, though she admitted that “she did not see any oil, gas, or spills before or after her fall…” Plaintiff also claimed that the two EMTs “both slipped and almost fell while tending to her.”

June 16, 2020

Notice letter could not cure deficiencies in HIPAA authorization.

by The Law Offices of John Day, P.C.

Where plaintiff failed to include one of the core elements in the HIPAA authorizations sent with her HCLA pre-suit notice, she could not rely on her notice letter to “cure any deficiency on the authorization document.”

In Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV (Tenn. Ct. App. May 14, 2020), plaintiff sued defendants as power of attorney for patient, who allegedly suffered skin problems, pressure sores, and severe sepsis after his treatment by defendants. Plaintiff sent a timely pre-suit notice “packet” to defendants, which included a cover letter directed to each provider, an attached list of the names and addresses of all providers being sent notice, and a HIPAA authorization.