Articles Posted in Uncategorized

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Data has been released that shows the number of Tennessee medical malpractice (now called health care liability actions) filed and disposed of for the year ending June 30, 2019.

A total of 422 claims were filed in our state courts in FY 2019, about the same as the previous year (416).  The courts disposed of 385 cases in FY 2019, compared with 382 the previous year.

Only 27 of the cases went to trial in FY 2019, 17 of which were tried to a jury and 10 of which were non-jury trials.  In FY 2018 there were 18 total trials, 13 of which were jury trials and 5 of which were non-jury trials.

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Rule 15 of the Tennessee Rules of Civil Procedure allows complaints and answers to be amended under the conditions set forth in the rule, but amendments do not make the statements in the original pleading disappear.

In Lanier v. Bane, No. M2000-03199-COA-R3CV, 2004 WL 1268956, at *2 (Tenn. Ct. App. June 8, 2004), Lanier pleaded that his host driver was drunk and caused a one-car accident, resulting in the death of Bane and injuries to Lanier.  In his amended complaint, Lanier materially changed those allegations and said his host driver was not drunk.  Bane’s estate defended by asserting that Lanier was partially at fault by voluntarily becoming a passenger in a vehicle driven by one he knew to be intoxicated.

In Footnote 1 of the Court of Appeals opinion affirming a 50% finding of fault on Lanier for contributing to his own injuries, the court noted as follows: “How Mr. Lanier came to “un-know” in his amended complaint that which he knew well in the original complaint about his host driver’s intoxication makes for interesting reading.”

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Tennessee law will permit a plaintiff who properly voluntarily dismisses a suit  in state  to timely re-file it and avoid a statute of limitations defense, but the correct procedure must be followed.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S .W.3d 710, 716-717 (Tenn.2002) tells us that “absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule 3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations.”

Rule 41.01, governing the taking of voluntary dismissals, provides that,
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Certain claims for personal injury, wrongful death and property damage may be asserted against the State of Tennessee, but different rules apply and there are plenty of pitfalls for those unfamiliar with the law or procedures of litigating in the Claims Commission.  One such pitfall arise at the intersection of the law of claims against the State and the law of comparative fault.

In Moreno v. City of Clarksville[1]  plaintiff filed a claim against the State of Tennessee after a tree on state law fell on his vehicle.  When the claim was not settled, he timely filed a formal complaint with the Claims Commission.  The State of Tennessee then blamed the City of Clarksville for causing the damage and, within the 90-day period provided by §20-1-119 plaintiff sued the City of Clarksville under the Governmental Tort Liability Act in state court.  As permitted by statute,[2] the Claims Commission action was transferred to the Circuit Court for Montgomery County and consolidated with the action pending against the City of Clarksville. [3]

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The number of trials in Tennessee state court continued to decline in 2019, although jury trials in Circuit Court ticked up slightly.

What follows is the number of jury and non-jury trials in Tennessee state courts for the indicated fiscal years (July 1 – June 30):

Year   Chancery Non-Jury     Chancery Jury            Circuit Non-Jury                 Circuit Jury              Total

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An order awarding sanctions to defendants after plaintiffs sent a letter to healthcare providers allegedly interfering with ex parte interviews between defense counsel and the deceased’s patients former healthcare providers was not appealable as a final order.

In Ibsen v. Summit View of Farragut, LLC, No. E2018-01249-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2019), plaintiffs brought an HCLA suit against defendants based on the care provided to a now-deceased patient. Defendants “filed a motion for a qualified protective order allowing them to conduct ex parte interviews with a list of [the deceased’s] treating healthcare providers pursuant to Tenn. Code Ann. § 29-26-121(f).” The trial court granted the motion and informed plaintiffs’ counsel that he could “contact the doctors and explain[] to them that this order is voluntary,” but that he could not “contact them and tell them not to participate” or otherwise “interfere with the Defendants’ rights to conduct these interviews[.]”

Defendants later filed a motion for sanctions against plaintiffs “asserting that six letters sent by plaintiffs’ counsel to [the deceased’s] treating healthcare providers violated the Court’s order by attempting to keep the health care providers from taking part in the interviews.”* The trial court agreed that the letters violated the order, and it entered an order imposing sanctions against plaintiffs, including having to pay costs and expenses for defendants related to preparing for and deposing the providers. “The trial court also ordered plaintiffs’ counsel to send a retraction letter to all of the treating healthcare providers he had contacted…” Plaintiffs then sought to appeal this case under Tenn. R. App. P. 3, but the Court of Appeals determined that there was no basis for appeal under that rule.

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Those of you who are interested in the interaction between the law of comparative fault and the law of subrogation (or at least my view on how the two should interact) may wish to read “Made-Whole Made Fair:  A Proposal to Modify Subrogation in Tennessee Tort Actions” published in the Belmont Law Review. 

Likewise, if you are having difficulty getting to sleep, you may wish to read the same article.

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The Tennessee Supreme Court has adopted proposed amendments to several rules of civil procedure.

Rules 5 and 5B have been amended to account for changes in the court system given the expansion of e-filing across the state.

Rule 33 has been amended in the hope of eliminating gamesmanship in answering interrogatories.

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In a Tennessee defamation case, statements made in an email regarding a deposition in a federal lawsuit fell under the litigation privilege and dismissal was affirmed.

In Kilgore v. State of Tennessee, No. E2018-01790-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2019), plaintiff had been involved in a previous federal lawsuit. In the federal case, plaintiff, who owned a towing service, had brought an action against certain highway patrol officers. During that case, the officers were represented by two attorneys, Ms. Jordan and Ms. Lyford. Shortly before the scheduled deposition of a witness, the witness’s son’s business caught fire. The day before the deposition, Ms. Jordan sent an email to plaintiff’s counsel in the federal case stating that one of the co-plaintiff’s emissaries had told the witness to “watch out” and that “the timing [did] not seem to be coincidental.” The email stated that the incident would be fully investigated and that witness intimidation was a crime, and also stated that future depositions would be held at secure locations with metal detectors. Later that day, Ms. Lyford sent an email explaining that she was attempting to locate a secure location for the deposition the following day.

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Where defendants’ truck rolled into a duplex owned by plaintiff causing real property damage, a directed verdict for defendants on all but plaintiff’s negligence claim as well as a jury verdict for diminution in value to the property was affirmed.

In Twenty Holdings, LLC v. Land South LLC and Brandon Majors, No. M2018-01903-COA-R3-CV (Tenn. Ct. App. Sept. 5, 2019), plaintiff owned a duplex in Nashville, and defendant Majors lived nearby. Majors drove a tractor trailer truck for defendant Land South, and on the day of the incident, he “parked the truck, with an attached 53 foot trailer…, near his residence at the top of a steep hill with the front of the truck pointing toward the drop off of the hill and toward Plaintiff’s property.” Within hours of the truck being parked, it rolled down the hill. The trailer detached from the truck, but the truck portion struck the duplex and stopped in one of the living rooms, causing significant damage to the building. According to Majors, he had parked the truck on a safe area and “took various precautions in securing the tractor-trailer, including engaging the parking brake, placing garden timbers under the wheels, letting the trailer down, and placing the tractor-trailer in reverse.”

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