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Articles Posted in Discovery

This article by Steven Auvil in the National Law Journal gathers case law supporting the right of the parties to take remote video depositions during the Pandemic.

An excerpt:

In Ogilvie v. Thrifty Payless, the Western District of Washington court denied the parties’ joint motion to extend court deadlines, including the fact discovery deadline, due to the dilatory impact of COVID-19 on the parties’ ability to conduct depositions. After noting the parties’ failure to address the possibility of taking depositions by remote means (and encouraging their use), the court put a sharp point on why the parties needed to resort to such depositions: “This pandemic may well be with us for many months to come. We will all need to adjust to keep litigation moving forward. Unless the parties have explored alternative means to complete discovery, the court does not consider the mere existence of the pandemic as ‘good cause’ for a delay in the case schedule.”

With COVID-19, courts in Tennessee are encouraging rapid adoption of remote video depositions while in-person proceedings are limited.  Remote video depositions provide the opportunity for all litigants and litigators who want the case to progress to its ultimate resolution.

Brandon Bass, an experienced trial lawyer and shareholder in our firm, shares his thoughts about remote video depositions in the following blog post:

Deciding whether to agree to (or push for) a remote video deposition is a case-by-case strategy decision with some intangible factors to consider. The deponent’s demeanor and rapport with the questioning attorney may change, whether positive or negative. Attorneys must be attentive to logistical and technical issues that may be outside the attorney’s comfort zone from past experiences. Delay, on the other hand, costs time in each case and threatens to create a backlog of work to be done later – right as we should be working on the next batch of cases in discovery.

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A party’s failure to supplement its discovery responses or deposition testimony can result in a jury verdict for that party being vacated. For businesses, this duty to supplement may include the testimony of its employees.

In Collier v. Roussis, No. E2016-01591-COA-R3-CV (Tenn. Ct. App. Aug. 7, 2017), a minor filed suit through his parents for birth injuries “allegedly suffered by plaintiff when his mother had an allergic reaction during labor.” The named defendants were the doctor treating the mother and the hospital where plaintiff was born. Much of the relevant testimony surrounded how and how often plaintiff’s mother’s blood pressure was being monitored, with the medical chart showing two blood pressure readings by a fetal monitor and one by defendant doctor. The trial court directed a verdict for defendants on one issue, and the jury returned a verdict that neither the doctor nor “the nurses employed by the Hospital were” negligent. Plaintiff appealed, citing multiple issues for review.

First, on an issue that ended up being dispositive of the appeal, plaintiff argued that “the trial court erred in allowing previously undisclosed testimony from the nurses, testimony which was inconsistent with the nurses’ earlier deposition testimony.” During their depositions, two nurses who worked for the hospital and treated plaintiff’s mother testified that they had no independent recollection beyond what was in the medical record. Mother’s file only indicated that her blood pressure was recorded three times during the relevant period. At trial, however, both of these nurses testified that counsel for the hospital had shown them pictures that plaintiff’s family took in the hospital room, and that those pictures had caused them to remember additional facts. Specifically, they both testified that the mother’s blood pressure was being monitored by a special machine. One stated that because the machine was in use the mother “was not hypotensive, or we would have treated that,” and another stated the nurses “were continuously glancing over at that…monitor to see what her blood pressure was.” Over plaintiff’s objection, the trial court allowed the new testimony, but the Court of Appeals ruled that this was error and the judgment should be vacated.

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The United States Supreme Court recently analyzed a federal court’s “inherent authority to sanction bad-faith conduct by ordering a litigant to pay the other side’s legal fees,” holding that such an award was “limited to the fees the innocent party incurred solely because of the misconduct.”

In Goodyear Tire & Rubber Co. v. Haegger, No. 15-1406, 581 U.S. ____ (April 18, 2017), the Haeger family had sued Goodyear after a Goodyear tire allegedly failed and caused their motorhome to flip over. During the original suit, Goodyear was slow and unresponsive to many of the Haegers’ discovery requests, especially when the Haegers requested internal company tests for the tire at issue. The case eventually settled just before trial. Months later, the Haegers’ attorney noticed a news story indicating that, in a similar suit, Goodyear had disclosed “test results indicating that the tire got unusually hot at highway speeds.” Goodyear subsequently admitted to the attorney that it had withheld information in the Haeger suit.

Because the case had already settled, the district court was limited in its options when addressing Goodyear’s misconduct, and “[a]ll it could do for the Haegers was to order Goodyear to reimburse them for attorney’s fees and costs paid during the suit.” The district court determined that this award could be “comprehensive, covering both expenses that could be causally tied to Goodyear’s misconduct and those that could not.” The district court calculated all the Haegers’ litigation expenses after the very early moment when Goodyear first dishonestly responded to discovery and awarded the Haegers $2.7 million. When explaining its award, the district court stated that while the usual case requires the fees awarded to be causally related to the misconduct, the misconduct in this case “rose to a truly egregious level.” The district court found that the level of misconduct here meant that all attorneys’ fees could be awarded with no need to find a causal link between the fees and the sanctioned party’s conduct.

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In Denton v. Taylor, No. E2015-01726-COA-R3-CV (Tenn. Ct. App. July 25, 2016), the Court of Appeals affirmed summary judgment in a car accident case because “plaintiff provided no evidence establishing that the decedent’s negligence caused the accident.”

Plaintiff and the decedent, whose wife was the defendant here, were involved in a car accident in March 2013. Plaintiff could not remember anything about the accident, and the other driver was pronounced dead at the scene. In March 2014, plaintiff filed this negligence action.

Defendant moved for summary judgment fifteen months after the complaint was filed, submitting an affidavit from a sheriff’s deputy who stated that there were no witnesses to the accident and that a review of photographs and other evidence “was not able to determine the point of impact.” Defendant argued that plaintiff could not show that decedent’s alleged negligence had caused the accident. Plaintiff responded, relying on the post-mortem toxicology results that showed that decedent had hydrocodone and hydromorphone in his system.

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The noncompliant Dr. Evans strikes again. For the third time, the Tennessee Court of Appeals heard a case revolving around the exclusion of Dr. Martin Evans as plaintiffs’ standard of care expert due to his failure to provide certain financial documents.

In Buman v. Gibson, No. W2015-00511-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2016), plaintiffs filed an HCLA claim in July 2011. In September 2012, plaintiffs identified Dr. Evans as their expert witness regarding the applicable standard of care. Dr. Evans was deposed in November 2012, during which he “refused to answer questions regarding his income from medical-legal review.” The trial court granted defendants’ motion to compel discovery on this issue, and on May 30, 2013, the trial court “orally ruled that Dr. Evans was to provide his annual income from medical-legal review from 2005-2011 within thirty days of the entry of the written order.” At that hearing, plaintiffs made an oral motion for additional time to obtain a new expert, and the trial court directed them to file a written motion to that effect. At the hearing, the trial judge stated: “In all candor, I probably will look on your motion with favor.” Following the hearing, however, plaintiffs did not file a written motion to allow time for a new expert. Accordingly, the trial court granted the motion to compel, and when the information was not provided, defendants filed a motion to exclude Dr. Evans and an accompanying motion for summary judgment based on plaintiffs’ lack of a standard of care expert, a requirement for proving an HCLA claim.

In the face of the motion to exclude and motion for summary judgment, plaintiffs still did not mile a motion for time to find a different expert. Instead, plaintiffs responded with a motion to revise that argued about the propriety of allowing discovery of the financial information sought. The court denied the plaintiffs’ motion on November 18, 2013, but gave them additional time to provide the requested financial information.

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The medical community in Tennessee doesn’t want judges and juries to know how much money they make from testifying as expert witnesses.   So they have persuaded two members of the General Assembly to introduce legislation that applies not only to medical doctors but to every type of expert witness.

This is the substance of HB 1466:

Except for good cause shown and pursuant to court order, a party may not discover a statement of compensation that is paid to an expert witness for any study and testimony in a case.

In Steele v. Primehealth Med. Center, P.C., No. W2015-00056-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2015), the  Tennessee Court of Appeals affirmed summary judgment for defendant in a premises liability case, “concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk [at issue] was unreasonably dangerous.”

Plaintiff was an office supply store delivery person, and he was making his first delivery to defendants’ building. The building was owned by one defendant and occupied by another defendant, a medical center. In front of the entrance, the sidewalk had a curb-cut for a wheelchair ramp. One side of the cut sloped down to the incline, but the other side did not slope and instead had a “single step riser approximately 5 inches high.” The ramp, the lower landing, and the curb cut were lighter in color than the surrounding concrete sidewalk, but there were no particular markings. While plaintiff was pulling his dolly down the sidewalk to make a delivery and “looking straight ahead toward the entrance as he walked,” he stepped off the single step riser and broke his leg.

Plaintiff brought this premises liability action, alleging that defendants “fail[ed] to either make the condition safe or warn others of the dangerous condition by appropriate warning signs.” Defendants filed a motion for summary judgment supported primarily by expert testimony. Defendant’s expert stated that the sidewalk in question met all building codes, was inspected and approved by city officials, and that it was “similar in detail to figures shown in the 1999 North Carolina Accessibility Code.” Further, defendant building owner testified that there had been no other incidents between the 2001 construction of the building and sidewalk and this litigation.

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What is it with drillers and spoliation of evidence cases?  First it was Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc. which is a Tennessee leading case on the subject.  And now, we have a new spoliation case with a different drilling company, Griffith Services Drilling, LLC v. Arrow Gas & Oil, Inc.   So, let’s drill down on this issue a bit, shall we? 

Griffith Services Drilling, LLC (Griffith Drilling) and its insurance carrier sued Arrow Gas & Oil, Inc. (Arrow) for $1.2 million in property damage caused by a fire.  On the day of the fire, an Arrow employee, Mr. Burress, delivered fuel to Griffith Drilling.  During the refueling, Burress walked away to converse with some of the Griffith Drilling employees.  Shortly thereafter, a Griffith Drilling employee yelled that fuel was spraying and a fire ignited.  When Burress moved the Arrow truck to get it away from the fire, the fuel nozzle broke off.  The next day, Burress took the broken nozzle to a retailer and traded it in for a new nozzle.  Griffith Drilling was not provided any notice of Arrow’s intent to replace the nozzle. 

After the fire and without notifying Arrow, Grifftih Drilling’s insurance carrier authorized clean up of the site and disposed of all evidence of the fire.  One month after the clean-up was completed, Griffith Drilling sent Arrow a notice of its intent to pursue a claim for the fire damage.  Suit was eventually filed and Arrow counterclaimed for breach of contract as Griffith Drilling had failed to pay for the fuel delivered to the site.   Thereafter, Arrow filed two motions: (1) a motion to dismiss for spoliation of evidence based on Griffith Drilling’s clean up of the site; (2) a motion for summary judgment on the breach of contract counterclaim.  The trial court granted both motions.  Griffith Drilling appealed alleging the trial court erred by granting both motions. 

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