Civil Procedure

August 18, 2023

HCLA abrogates operation-of-law exception for vicarious liability claims in health care liability actions.

Where “application of the operation-of-law exception would bar a vicarious liability claim that is timely filed within the [HCLA’s] extended statute of limitations solely because the statute of limitations had expired for any claims against the principal’s agents, the exception must give way to the [HCLA].”

In two nearly identical opinions, the Tennessee Supreme Court addressed the interplay between claims for vicarious liability, common law exceptions to the ability to assert vicarious liability claims, and the HCLA. In Ultsch v. HTI Memorial Hospital Corp., No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023) and Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-SC-R11-CV (Tenn. July 20, 2023), the Supreme Court held that a vicarious liability claim filed within the 120-day extension of the statute of limitations could proceed against a principal, even when the relevant agents were not named as defendants, were not given pre-suit notice and thus not subject to an extended statute of limitations, and were barred from being sued by the statute of limitations at the point the complaint was filed against the principal.

In both cases, the plaintiff sent pre-suit notice to the hospital at which they were treated, but did not send pre-suit notices to any agents of said hospitals. The statute of limitations as to claims against the hospitals were extended 120-days pursuant to the HCLA, and the plaintiffs filed their vicarious liability claims against the hospitals beyond the one-year mark but before the 120-day extension had run.

July 5, 2023

Legislature Changes TCA Section 20-1-119 To Expressly Include Uninsured Motorist Insurers

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

The Tennessee General Assembly has modified Tenn. Code Ann. Section 20-1-119 to make it clear that the plaintiff gets the benefits of the statute even if the fault allegations against a nonparty are made by a uninsured/underinsured motorist insurer. The new legislation, Public Chapter No. 294, states as follows:

Section 1. Tennessee Code Annotated, Section 20-1-119(a), is amended by

redesignating the current language as subdivision (a)(1) and adding the following new

June 23, 2023

Practical Procedure and Evidence

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

Have you checked out my newest blog?

Practical Procedure is a blog about, well, practical procedure and evidence issues for trial lawyers. I have several sources for the issues I discuss on the blog.

First, if I see something in a new Tennessee Court of Appeals or Supreme Court opinion that I think will be helpful to Tennessee lawyers I write up a summary and post it to the blog.

June 5, 2023

Parents could not file suit on behalf of adult child.

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

Where plaintiff was in a car accident when she was four years old, and her parents filed a personal injury suit purporting to represent her once she turned 18, the trial court properly granted summary judgment based on the statute of limitations. The parents, who were not attorneys, could not represent plaintiff, and by the time the motion to dismiss had been filed more than one year had passed since plaintiff turned 18, so any claim was time-barred.

In McCall v. United Parcel Service, No. M2022-01112-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff was in a car accident when she was four, and after she turned 18, her mother and father filed this personal injury action on her behalf. Plaintiff did not sign the complaint, and neither parent was an attorney. Defendant filed a motion to dismiss based on the one-year statute of limitations. At the hearing, the mother stated that plaintiff had been on an IEP in school but “had never been adjudicated incompetent or disabled.” The trial court granted dismissal, and the Court of Appeals affirmed.

On appeal, the Court first analyzed whether it would consider certain post-judgment facts submitted by plaintiff. Tenn. R. App. P. 14 provides that “the consideration of post-judgment facts that are ‘unrelated to the merits and not genuinely disputed’ may be ‘necessary to keep the record up to date.’” Post-judgment facts that “could be disputed in the trial court or from which different conclusions could be drawn” should not be considered. (internal citation omitted). The facts presented by plaintiff included a school psychoeducational evaluation, an IEP, a psychologist evaluation, and letters of guardianship and letters of conservatorship dated after the order of dismissal was entered. The Court of Appeals declined to consider any of this evidence, finding that the school evaluation and IEP “existed at the time of the trial court’s ruling” and that the psychologist evaluation and letters were “offered to establish [plaintiff’s] competency, which is a disputed issue in this case,” so did not qualify as being “unrelated to the merits and not genuinely disputed.

May 31, 2023

Amended Complaint Removed Defendants From Suit.

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

Where plaintiff originally filed a health care liability suit under the GTLA against multiple defendants, but before any responsive pleading was filed plaintiff filed an amended complaint naming only the physician as a defendant, a subsequent notice and order of voluntary dismissal entered as to the defendants not named in the amended complaint were “of no legal effect.” The original defendants other than the physician were removed from the action through the filing of the amended complaint.

In Ingram v. Gallagher, — S.W.3d —, No. E2020-01222-SC-R11-CV (Tenn. May 17, 2023), plaintiff filed an HCLA suit against multiple defendants, including the physician and the hospital at which the physician worked. Because the hospital was a governmental entity, the GTLA applied to this case. After filing his original complaint but before any responsive pleading had been filed, plaintiff filed an amended complaint naming only the physician as a defendant. Five minutes after the amended complaint was filed, plaintiff filed a notice of voluntary dismissal as to the hospital and other defendants, and an order of voluntary dismissal was entered the following day.

When defendant physician filed his answer to the amended complaint, he raised as a defense that the complaint should be dismissed under the GTLA, as Tenn. Code Ann. § 29-20-310(b) required that since the physician was an employee of a governmental entity, the governmental entity must also be a party to the action. Subsequently, plaintiff “filed a motion to amend his complaint in an effort to reinstate [the hospital] as a defendant.” Plaintiff also “filed a motion to alter or amend the order dismissing [the hospital] as a defendant on the grounds that ‘[the hospital] was inadvertently dismissed in light of the affirmative defense assertation by a co-defendant…that [the hospital] is a necessary party to this action.’” The trial court denied the motion to alter or amend the dismissal order, but it eventually allowed plaintiff to amend his complaint after a second motion to amend was filed.

May 22, 2023

Tennessee GTLA case that includes non-governmental entity defendants can be heard by a jury.

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

Where a GTLA case involves both governmental and non-governmental defendants and a party demands a jury trial, the entire case is to be heard by the jury.

In Vandyke v. Cheek, No. M2022-00938-COA-R10-CV (Tenn. Ct. App. May 3, 2023), plaintiff filed suit after a car accident caused in part by a malfunctioning traffic light. Defendants in the case included Montgomery County and other governmental entities as well as the other driver, a non-governmental entity. Plaintiff requested a jury trial, and the governmental entities asked for the case to be severed so that the claims against the governmental entities would be heard in a bench trial. The trial court granted the motion, but in this extraordinary appeal, the Court of Appeals reversed the order severing the claims and remanded the case to be heard by a jury as a whole.

Before 1994, the GTLA provided that cases against governmental entities were to be heard “without the intervention of a jury,” and it provided that jury demands for claims against non-governmental entities could be severed and heard separately from claims against governmental parties. In 1994, however, the GTLA was amended.

May 12, 2023

Dismissal based on statute of limitations affirmed; court relied on judicial notice of court file

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

Where the trial court took judicial notice of items from the court case underlying a tort action for invasion of privacy, abuse of process, and intentional infliction of emotional distress, it did not convert the motion to dismiss to a motion for summary judgment and dismissal of the claims based on the statute of limitations was affirmed.

In Doe v. Rosdeutscher, No. M2022-00834-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff had filed an underlying HCLA suit. Plaintiff eventually took a voluntary nonsuit in that case, and following a motion by defendants in that case, the trial court assessed Rule 37 and Rule 11 sanctions against plaintiff’s counsel.

Plaintiff then filed this action against the defendants and the defendants’ attorneys from the previous HCLA case. In this case, plaintiff asserted claims for invasion of privacy, abuse of process, intentional or reckless infliction of emotional distress, and breach of contract based on the allegation that defendants “filed Plaintiff’s medical records in the healthcare liability action which included nude photographs of Plaintiff and details about her sexual and mental health history[.]” Defendants filed a motion to dismiss, which the trial court granted. The trial court also assessed damages against plaintiff and Rule 11 sanctions against plaintiff’s attorney. On appeal, these rulings were affirmed.

March 30, 2023

Misrepresentation summary judgment affirmed where plaintiffs failed to comply with appellate procedure rules.

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

Where plaintiffs’ appellate brief failed to include appropriate citations to the record and failed to “even address the revised judgment from which they appealed,” summary judgment for defendants on claims of intentional and/or negligent misrepresentation was affirmed in a memorandum opinion.

In Smith v. Walker, No. W2022-00748-COA-R3-CV (Tenn. Ct. App. Mar. 28, 2023) (memorandum opinion), plaintiffs purchased a home from defendants, and soon after the purchase, plaintiffs discovered that the home was contaminated with mold. Plaintiffs filed suit for breach of contract, negligence, negligent misrepresentation, and intentional misrepresentation, but the trial court granted summary judgment for defendants based on the “as is” nature of the purchase agreement. Plaintiffs appealed the summary judgment order, and the Court of Appeals found that the trial court order “was deficient because it did not address each of the causes of action alleged by Buyers and included scant reasoning and explanation regarding its ruling….”

On remand, the trial court entered a new order granting summary judgment. In this more detailed order, the trial court addressed all of plaintiffs’ claims and explained the basis for summary judgment. The trial court noted that plaintiffs could not support their misrepresentation claims because they “failed to identify any ‘false information’ provided by [defendants],” and that plaintiffs “failed to present any credible proof that [defendants] represented to them that the home was ‘free from mold or other contaminants.’” The trial court also pointed out that the sales contract stated that plaintiffs had a duty “to inspect for mold or other contaminates,” and that plaintiffs had presented no proof that defendants knew about the mold.

March 17, 2023

New Procedure and Evidence Blog

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

Don’t forget to check out my newest blog, Practical Procedure and Evidence. The blog addresses procedural issues at the trial and appellate level and the law of evidence.

I write about issues that are of interest to lawyers working in the trenches of civil trial law. The law of procedure and evidence are the rules of litigation “game,” and those who do not know or follow the rules are at an extreme disadvantage in the preparation and trial of civil cases. Conversely, those who know and use the rules can gain a fair, strategic advantage.

The blog already has 26 published posts with three more posts scheduled to appear in the coming days. Already published posts include spoliation of evidence, serving out-of-state defendants in motor vehicle cases, and a presumption of adequate consideration when a contract is in writing.

March 10, 2023

Plaintiff waived objection to discovery from testifying expert where objection was not made until expert deposition was in progress.

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

In an HCLA case discovery dispute, the Tennessee Court of Appeals ruled that plaintiff’s testifying experts’ “notes, drafts, and communications with counsel” were discoverable under the Tennessee Rules of Civil Procedure and that plaintiff had waived any claim that the requested items were privileged.

In Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023), plaintiff filed a healthcare liability case against defendants based on injuries that occurred during plaintiff’s c-section. During the deposition of one of plaintiff’s testifying experts, the expert referenced an email sent to plaintiff’s counsel that included a bullet-point list as well as a page of handwritten notes, neither of which had been provided to defendants in response to defendants’ interrogatories, requests for production of documents, or requests accompanying the deposition notice. Defendants filed a motion to compel plaintiff to produce certain documents from her testifying experts, including “correspondence to and from her expert witnesses, draft reports of expert witnesses, and any similar materials.” Plaintiff responded that the documents were protected from discovery, but the trial court ultimately granted the motion to compel, which was affirmed (but modified) on appeal.

In its analysis, the Court initially clarified which Rules of Civil Procedure applied here. Because the experts at issue were identified as testifying experts, Rule 26.02(4)(A) applied to discovery related to these experts. Further, the Court ruled that Rule 26.02(3), which addresses discovery of trial preparation materials, applied, but it clarified that “the requirements of subdivision (3) are subject to those of subdivision (4) for discovery of expert witness information.”