Civil Procedure

October 2, 2018

No Response to Statement of Undisputed Material Facts Results in Loss

In a case based on an altercation that occurred while a worker was attempting to recover an unreturned cable modem, defendant cable company filed a motion for summary judgment with supporting proof that the worker was an independent contractor of a separate entity. Because plaintiff failed to respond to defendant’s statement of undisputed material facts, summary judgment was granted and affirmed.

In Mack v. Comcast Corporation, No. W2017-02326-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2018), plaintiff had an unreturned Comcast cable modem at his house, and a worker attempted to retrieve it. During this attempted retrieval, there was an altercation, and the worker was injured. Plaintiff was arrested, his mug shot was published and he lost his job, but the criminal charges were eventually dismissed. Plaintiff brought this case alleging various causes of action against several defendants, including Comcast.

September 28, 2018

No Duty to Help Plaintiff With Service of Process

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

When a sheriff’s deputy delivered service of process to an office employee at a front desk, that employee and clinic had no duty to assist plaintiff in ensuring that process was served in the proper manner.

In Koczera v. Steele, No. E2017-02056-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2018), plaintiff had previously filed an HCLA claim against a Dr. O’Connor. When a sheriff’s deputy arrived at the office to serve Dr. O’Connor, defendant Steele was at the front desk, and the deputy handed her the papers and said they were for Dr. O’Connor. Steele gave the papers to Dr. Pearson, who then gave them to Dr. O’Connor, and upon motion by Dr. O’Connor, he was dismissed from the HCLA suit due to insufficient service of process.

This negligence suit followed, wherein plaintiff alleged that defendants Steele, Dr. Pearson, and the clinic in which they worked were liable for “prevent[ing] the doctor from being served with process in the healthcare liability action.” The trial court granted summary judgment to defendants, finding that no duty existed, and the Court of Appeals affirmed.

September 24, 2018

Court Requires Production of Pre-suit Expert Statement Supporting Certificate of Good Faith

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

When a defendant files a motion “requesting the court to compel the plaintiff or his counsel to provide the court with a copy of the expert’s signed written statement that was relied upon in executing the certificate of good faith” pursuant to Tenn. Code Ann. Section 29-26-122 of the HCLA, that motion does not have to be raised as part of a motion for summary judgment or motion for discretionary costs.

In Jones v. Hargreaves, No. M2017-01271-COA-R3-CV (Tenn. Ct. App. July 23, 2018), plaintiff filed an HCLA complaint accompanied by a certificate of good faith signed by his counsel. Defendant doctor filed a motion for summary judgment, supported by his own affidavit. Plaintiff never responded to the motion for summary judgment, and plaintiff’s counsel moved to withdraw before the hearing. The motion was eventually granted, with plaintiff never filing a response.

After summary judgment, defendant “filed a motion pursuant to section 29-26-122(d)(2) to compel [plaintiff] to produce the expert’s signed written statement relied upon in executing the certificate of good faith filed with the complaint and requesting the court to determine if [plaintiff’s] attorneys complied with [the statute] in executing and filing the certificate of good faith.” Plaintiff’s former counsel responded to this motion, asserting that he did comply with the statute but that he “decided not to pursue the case due to the lack of a permanent injury and the expense of pursuing this matter with lack of significant damages.”

September 21, 2018

Nuisance and Trespass Claims Dismissed

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

Where a pipe could be altered but the expense to do so would be “considerable” and there were no indications that any alterations were intended, a nuisance claim based on the pipe was considered to be a permanent nuisance, meaning that the statute of limitations was three years “from the time of the creation of the nuisance.” In addition, where a trespass claim involved complicated questions regarding water runoff and flow patterns and plaintiffs did not have a competent expert witness to testify as to causation, summary judgment for the defendant was appropriate.

In Ray v. Neff, No. M2016-02217-COA-R3-CV (Tenn. Ct. App. July 20, 2018), plaintiffs filed a claim for nuisance and trespass related to their adjacent neighbors’ installation of a pipe on their property. Plaintiffs claimed that the pipe was first placed in 2008, and that after extensive flooding in 2010, “changes to the pipe…modified the course of a creek” and caused water to flow directly towards their home, causing property damage.

September 20, 2018

Denial of Motion to Revise (Alter or Amend) Reversed

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

Where plaintiffs had attempted to communicate with a second expert and eventually obtained an affidavit from him, the Court of Appeals ruled that the trial court should have granted plaintiffs’ motion to alter or amend.

In Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-COA-R3-CV (Tenn. Ct. App. June 29, 2018), plaintiffs filed an HCLA claim after decedent died shortly after being incarcerated at the Hickman County jail. Decedent was arrested at a traffic stop and found to be in possession of drugs. She “started experiencing symptoms of narcotic withdrawals” and requested medical treatment. She was treated at the jail by Nurse Cloud, was later found unresponsive in her cell, and died the next day. Nurse Cloud was an employee of defendant, and the jail had a contract with defendant for medical care.

Both plaintiffs and defendant filed motions for summary judgment in this case. The trial court ultimately granted defendant’s motion for summary judgment based on plaintiffs’ inability to prove causation. The trial court ruled that the expert relied upon by plaintiff was not competent to give causation testimony under Tennessee law, and that there was thus no genuine issue of material fact. One month after this ruling, plaintiffs submitted a Motion to Revise (which the trial court and Court of Appeals determined was actually a Rule 59 Motion to Alter or Amend), supported by declarations from a new expert witness. The trial court denied the motion, but the Court of Appeals reversed this ruling.

September 10, 2018

One Million Dollar Additur Determined to Destroy Verdict

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

When an additur changed a jury verdict from $300,000 to over $1.3 million, the Court of Appeals ruled that it destroyed the jury’s verdict.

In Walton v. Tullahoma HMA, LLC, No. M2017-01366-COA-R3-CV (Tenn. Ct. App. June 7, 2018), plaintiff brought a health care liability and wrongful death claim after her husband died while in defendant’s hospital being treated for kidney stones. According to plaintiff, her husband was put on a pain pump to self-administer morphine, and she was told to press the button while he slept, which she did. The husband coded the following morning, suffered brain damage, and was eventually taken off life support.

Plaintiff filed this HCLA/ wrongful death suit, seeking medical expenses, the pecuniary value of husband’s life, and damages for a loss of consortium claim. Defendant hospital answered and asserted that plaintiff was comparatively at fault for administering the pain medication to her husband. After a trial, a jury found defendant 51% at fault and plaintiff 49% at fault, and determined that the total damages were $300,000, which included “$300,000 for loss of earning capacity and $0 for loss of consortium.”

August 23, 2018

“Excusable Neglect” As A Grounds For Extending Time for Service of Process

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

When a plaintiff files a complaint within the statute of limitations but fails to have process issued and served within the required time parameters, an extension of time for service of process may be granted if a trial court finds excusable neglect.

In Edwards v. Herman, No. E2017-01206-COA-R9-CV (Tenn. Ct. App. May 16, 2018), plaintiff filed a personal injury case based on an automobile-motorcycle accident. The complaint was filed within the one-year statute of limitations on April 21, 2015, and process was issued, but the “original summons was never returned to the trial court and…there is no record of it having been served upon [defendant].” On May 26, 2016, an alias summons was issued, which was served on defendant on June 11, 2016. On July 21, 2016, the sheriff’s department sent a letter to the court clerk stating that they could not find the original summons. The “issuance and service of process undisputedly occurred after the one-year deadline contained in Tennessee Rule of Civil Procedure 3.”

August 2, 2018

Sanctions Ordered For Failure to Comply With Rule 35 Order

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

When a plaintiff refuses to comply with an order to submit to a medical examination under Rule 35 of the Tennessee Rules of Civil Procedure, the trial court may refuse to allow the plaintiff to introduce evidence of medical expenses at trial.

In Prewitt v. Brown, No. M2017-01420-COA-R3-CV (Tenn. Ct. App. April 30, 2018), plaintiff was injured in a car accident with defendant. Defendant admitted that he was at least partially at fault, but “disputed the nature and extent of Plaintiff’s injuries.” After initial discovery, defendant “filed a Tenn. R. Civ. P. 35 motion for an Independent Medical Examination (IME) (sic),” which the trial court granted.

(Note: a Rule 35 examination is not an “independent medical examination” but rather an examination, usually of a plaintiff, by a doctor of an adversary’s choosing. Calling such an examiner “independent” is untrue and unfair. In the typical case, a fairer label would be “defense medical examination (“DME”).)

May 2, 2018

Typed Signature Qualifies as “Signature” for Rule 11 Purposes

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

In some circumstances, a typed name may qualify as a signature on a pleading.

In Jones v. Mortgage Menders, LLC, No. M2017-01452-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2018), plaintiff initially filed his complaint in 2006, then took a voluntary nonsuit on February 12, 2016. Plaintiff, acting pro se, filed a “purported complaint” on February 2, 2017, attempting to re-assert the original claims. This pleading “featured his typewritten name rather than his handwritten signature.”

The court clerk alerted plaintiff to the lack of signature , but instead of signing the complaint, plaintiff “signed a certificate of service.” Defendants moved for summary judgment, which the trial court granted, finding that the lack of signature meant that the complaint did “not satisfy the signature requirement under Rule 11,” and further finding that the purported complaint was so deficient as to not be a complaint at all. The Court of Appeals overturned these holdings.

April 10, 2018

Improper Notice Under TCA § 29-26-121 – The Savings Statute Does Not Save Case

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

If an HCLA plaintiff fails to provide proper pre-suit notice and files her first complaint after the statute of limitations has passed (but within the 120-day grace period), her case will not be saved by voluntarily dismissing and trying to use the savings statute to refile.

In Dortch v. Methodist Healthcare Memphis Hospitals, No. W2017-01121-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2018), plaintiff filed a health care liability suit against defendants based on the death of her son following a surgery on April 3, 2014. On April 6, 2015, plaintiff’s counsel served a purported pre-suit notice of her HCLA claim on defendants, pursuant to Tenn. Code Ann. § 29-26-121. This notice contained HIPAA authorization forms that “only permitted the recipient entity to send the medical records of [the deceased] to plaintiff’s counsel.” The statute, however, requires that the HIPAA forms included with the notice permit “the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” (Tenn. Code Ann. § 29-26-121(a)(2)(E)).

Plaintiff filed her initial complaint on July 1, 2015, after which defendants filed a motion to dismiss based on the deficiencies in the pre-suit notice. Plaintiff then filed a notice of voluntary dismissal, and an order of dismissal was entered on September 17, 2015.

On July 6, 2016, plaintiff sent a second pre-suit notice to defendants, then she re-filed her complaint on September 16, 2016. Defendants moved to dismiss this complaint, alleging that plaintiff’s first complaint was untimely and that she was thus not entitled to take advantage of the one-year savings statute. The trial court agreed, granting the motion to dismiss, and the Court of Appeals affirmed.