Civil Procedure

September 23, 2025

Summary judgment on HCLA claim based on overtreatment of cancer affirmed.

Where a patient signed a consent form for a double mastectomy after being told about multiple options for treating her breast cancer, summary judgment on her HCLA claim against the surgeon based on surgical overtreatment and lack of informed consent was affirmed.

In Oakes v. Fox, No. E2024-00453-COA-R3-CV (Tenn. Ct. App. Aug. 22, 2025), the plaintiff patient was diagnosed with early-stage breast cancer and met with defendant surgeon to discuss treatment options. According to the defendant and the notes in the plaintiff’s file, the defendant discussed multiple options with the plaintiff, including a lumpectomy and a double mastectomy. The parties agreed that the plaintiff asked the surgeon what he would choose for his wife, and he responded that he would choose the double mastectomy. The plaintiff expressed a desire to avoid radiation treatment, which the doctor informed her could likely be avoided with the mastectomy. The plaintiff chose to move forward with the double mastectomy.

On the day of the surgery, the plaintiff signed a consent form stating that she expressly consented to the double mastectomy and the removal of lymph nodes. A few months after the surgery, the plaintiff experienced lymphedema. She opted to undergo an elective revision surgery with a different doctor.

September 3, 2025

Alleged fraudulent invoice sent from Florida to Tennessee resulted in personal jurisdiction over tort claim.

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

Where a Florida general contractor allegedly used a fraudulent invoice to defraud a Tennessee company, the Court of Appeals ruled that Tennessee could exercise personal jurisdiction over the general contractor for the plaintiffs’ tort claims.

In Hannah Development, LLC v. Maverick General Contractors, LLC, No. M2024-01592-COA-R3-CV (Tenn. Ct. App. July 21, 2025), the plaintiff, a Tennessee company, had worked with the defendants, a Florida general contractor and its principal, on two homebuilding projects. The homes were built in Florida. During the construction of the homes, the defendants sent an invoice to the plaintiff that included a charge for the painting of the defendant principal’s residential fence. The expense was “fraudulently disguised…as a legitimate business expense” for the home building project. The invoice was sent to the Tennessee company, and it was paid with a Tennessee account.

When the plaintiff later learned of the fraudulent expense, it brought this tort action in Tennessee. The defendants moved to dismiss for lack of personal jurisdiction. In response, the plaintiff responded with voluminous exhibits including emails, invoices, text messages, money transfers, and other documents purportedly showing that the defendants “knowingly and intentionally engaged in tortious conduct aimed at Tennessee and that they injured a Tennessee domiciliary in the State of Tennessee.” The circuit court granted dismissal, finding a lack of personal jurisdiction, but the Court of Appeals reversed.

July 29, 2025

Mailman’s notation on certified mail was not sufficient for service of process.

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

A mailman’s notation on a certified letter sent by the Secretary of State did not constitute proper service of process in a car accident case.

In Lowe v. Harvey, No. E2024-01588-COA-R3-CV (Tenn. Ct. App. June 27, 2025), the plaintiff and defendant were in a car accident, and the defendant lived in Indiana. The plaintiff attempted to serve the defendant under the Tennessee statutes addressing service of an out-of-state motorist, Tenn. Code Ann. § 20-2-203 through -207. Pursuant to the statute, the plaintiff had a summons issued to the Tennessee Secretary of State, who then sent a summons to the defendant by registered mail. At the time of service in 2021, however, the postal service had “suspended its signature requirement for certified mail and registered return receipt mail because of Covid-19.” The letter to the defendant was returned with a marking made by the mail carrier in the signature space.

After the plaintiff filed suit, the defendant moved to dismiss based on insufficient service of process. The trial court agreed that the defendant had not been served and dismissed the case, and the Court of Appeals affirmed.

July 23, 2025

Tennessee Products Liability Act did not apply to foreign plaintiffs’ claim.

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

The Tennessee Products Liability Act (“TPLA”) does not apply extraterritorially, and therefore dismissal of a case where the plaintiffs’ injuries occurred in the Dominican Republic was affirmed.

In Renel v. Drexel Chemical Company, No. W2023-01693-COA-R3-CV (Tenn. Ct. App. June 6, 2025), the plaintiffs worked in the sugar cane industry. The plaintiffs filed suit against the defendant chemical company, claiming they were injured by chemicals produced and sold by the defendant, which was a Tennessee company located in Tennessee.

The trial court granted the defendant company’s motion to dismiss, ruling that “the TPLA does not have extraterritorial application,” and that “even if a case were to proceed in Tennessee, the applicable law would be the law of the Dominican Republic.” The Court of Appeals affirmed dismissal.

March 21, 2025

Exclusion of HCLA expert as discovery sanction vacated.

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

Where an HCLA plaintiff failed to provide deposition dates for her expert witness by the deadline listed in the scheduling order, but she filed a motion to revise the scheduling order on the day of the deposition deadline, exclusion of the plaintiff’s expert was too harsh a sanction and was vacated.

In Buckley v. Jackson Radiology Associates, P.A., No. W2023-01777-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2025), the plaintiff filed an HCLA suit in 2016. Due to a motion for a qualified protective order, the case was stayed pending the outcome of a separate case. After the stay was lifted, the trial court set a scheduling order in September 2021. This scheduling order was later modified to require the plaintiff to disclose her expert by February 13, 2023, and to have all expert depositions completed by June 12, 2023.

The plaintiff disclosed Dr. Esposito on February 13, 2023. Counsel for the defendants immediately requested available deposition dates. According to the defendants, they requested deposition dates several times and received no response from the plaintiff. The plaintiff explained in her appellate brief that Dr. Esposito’s wife filed for divorce during this time and he did not cope well, causing the scheduling issues.

March 14, 2025

Defense jury verdict affirmed in case involving patron falling from stage

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

In a negligence case, a brief reference to the lottery during opening statements and an unintentional mention of employment benefits that paid partial wages during the plaintiff’s time off work were not enough to require overturning the jury verdict for defendant.

In Campbell v. T.C. Restaurant Group, LLC, No. M2024-00362-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2025), the plaintiff filed a negligence claim against a musician and the bar at which he performed. When the musician did a birthday shoutout on stage, the plaintiff climbed onto the stage. The plaintiff stated that the musician grabbed her, spun her around, and then dropped her off the stage. The musician testified that he tried to guide the plaintiff off the stage, but she was drunk and stepped off the stage, causing her to fall. The plaintiff hit her head and was diagnosed with a concussion several days later. At trial, the plaintiff’s credibility was called into question when her testimony regarding her medical status appeared to conflict with online videos that had been posted showing her dancing.

The jury returned a verdict for the defendant, finding that the musician was not at fault for the plaintiff’s injuries. The plaintiff moved for a new trial, citing two errors: 1) a reference during opening statements that the plaintiff hoped to be “a lottery lawsuit winner,” and 2) an alleged violation of the collateral source rule. The trial court denied the motion, and the Court of Appeals affirmed the jury’s verdict.

February 20, 2025

Previous party brought back into suit under comparative fault statute.

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

When an amended answer asserted comparative fault against the city, which had previously been a party but had been voluntarily dismissed before the amended answer was filed, the plaintiff was allowed to add the city as a defendant within ninety days of the comparative fault allegation under Tenn. Code Ann. § 20-1-119.

In Sands v. Williard, No. W2024-00772-COA-R9-CV (Tenn. Ct. App. Jan. 24, 2025), the plaintiff filed suit against both the city and homeowners after she tripped on a sidewalk in front of the homeowners’ property. The city raised an issue about service of process in its initial answer. In their initial answer, the homeowners admitted to two paragraphs stating that the city had a duty, but there was no other allegation of comparative fault.

The city eventually filed a motion for summary judgment based on the statute of limitations, asserting that it was not properly served and, thus, the limitations period had run. While this motion was pending, the homeowners moved to amend their answer to assert comparative fault against the city. The plaintiff then moved to voluntarily dismiss her claim against the city. The plaintiff explained in her motion that “the purpose of the dismissal was to avoid the alleged outstanding service issues” and that she intended to rely on Tenn. Code Ann. § 20-1-119 to bring the city back into the suit after the homeowners filed their amended answer. The trial court granted the voluntary dismissal, and it allowed the plaintiff to bring the city back into the suit after the homeowners’ amended answer asserted comparative fault against the city.

January 6, 2025

HCLA (Medical Malpractice) summary judgment based on cancellation rule affirmed.

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

Because an HCLA (Medical Malpractice) plaintiff is required to prove the elements of his claim through expert testimony, summary judgment was affirmed after the trial court applied the cancellation rule to plaintiff’s expert’s conflicting testimony regarding damages.

In Simmons v. Islam, No. M2023-01698-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2024), the plaintiff filed an HCLA claim alleging that the defendant psychiatrist had engaged in improper, sexualized conduct directed toward the plaintiff. When his claim was filed, the plaintiff relied on Expert 1, but Expert 1 dropped out of the case after depositions.

The defendants filed a motion for summary judgment, asserting that without Expert 1 plaintiff could not prove his case. The plaintiff requested more time to identify a new expert, which the trial court granted. The plaintiff then disclosed Expert 2. In Expert 2’s affidavit, she stated that the plaintiff suffered damages as a result of the defendant’s conduct. During her deposition, however, she testified that you would expect damages and that they were possible, but that she “didn’t go into damages. I just basically put that you would expect damages, damages can be reignited.”

December 20, 2024

TPPA petition to dismiss not affected by nonsuit where defendant also filed motion for summary judgment.

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

Where defendant had filed both a TPPA petition to dismiss and a motion for summary judgment, plaintiff was not allowed to voluntarily dismiss the action against that defendant.

In Garramone v. Dugger, No. M2023-00677-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2024), plaintiff filed a false light invasion of privacy claim against defendants based on events that occurred when plaintiff ran for re-election as a city commissioner. According to plaintiff, defendants were involved in creating a website that alleged plaintiff had been given a free pass on drinking and driving and speeding because she was a commissioner.

Defendant Curtsinger and Defendant Patrick both filed petitions to dismiss under the Tennessee Public Participation Act. Defendants asserted that the claim was related to their exercise of free speech. Defendant Patrick also filed a motion for summary judgment.

December 4, 2024

Discoverability of Surveillance Films

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

On Wednesday, December 4, 2025, the Tennessee Supreme Court heard an oral argument about the ability of a plaintiff to discover surveillance films a defendant took. Here is how the Court described the background of the case:

Plaintiffs/Appellants Teresa and Randy Locke filed a health care liability action alleging that Defendants/Appellees negligently performed a surgery on Ms. Locke’s colon. While the case was pending, Defendants hired a private investigator to take surveillance videos of the Plaintiffs in an attempt to show that Ms. Locke was exaggerating her injuries. Thereafter, the Defendants expressed their intention to use some of the surveillance footage at trial. The Plaintiffs sought to obtain all the private investigator’s surveillance videos, including those that the Defendants did not intend to use at trial. The trial court rejected the Plaintiffs’ request under the work-product doctrine, requiring the Defendants to produce only the videos they intend to use at trial. The Court of Appeals granted the Plaintiffs’ request for permission to appeal. The Court of Appeals concluded that the trial court did not abuse its discretion in shielding the surveillance videos from discovery and affirmed the trial court’s decision to limit production to the videos that the Defendants intended to use at trial. The Tennessee Supreme Court granted the Plaintiffs’ application for permission to appeal to determine whether a litigant has a “substantial need” under Tennessee Rule of Civil Procedure 26.02(3) to obtain surveillance footage collected in anticipation of litigation or preparation for trial when the party who conducted the surveillance designates some, but not all, of the surveillance footage for use at trial.

The oral argument is being conducted at Austin Peay State University in Clarksville, Tennessee, as part of the Court’s SCALES program. It begins at 9:00 a.m. and will be live-streamed on the Court’s YouTube channel.