Articles Posted in Uncategorized

In Stockton v. Ford Motor Co., No. W2016-01175-COA-R3-CV (Tenn. Ct. App. May 12, 2017), the  Court of Appeals vacated a jury verdict in a Tennessee products liability case due to a defective jury verdict form.

Plaintiff was the wife of an auto mechanic who owned his own shop. Husband worked on all types of cars, including cars made by defendant Ford. It was undisputed that for a period of time, all car manufacturers, including Ford, used asbestos in their brake pads and linings. When brake pads and linings are replaced and/or grinded to the correct size, a dust is created, and the dust “can spread into the air and can be inhaled by mechanics and bystanders.” Plaintiff wife never worked directly with the brake pads or linings, but she cleaned the store twice a week and did her husband’s laundry. In 2011, plaintiff was diagnosed with mesothelioma, which was caused by exposure to asbestos.

Plaintiff filed this products liability suit against Ford seeking compensatory and punitive damages. During a jury trial, Ford pointed out that it had sent husband “warnings that brakes and other components contained asbestos,” and that husband had received training in 1977 and 1982 “explicitly warning that breathing dust from asbestos-containing automobile products could be hazardous…” The jury found Ford 71% at fault for plaintiff’s injuries, and plaintiff was awarded a total judgment of just over $3 million, which Ford appealed.

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In Battery Alliance, Inc. v. Allegiant Power, LLC, No. W2015-02389-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2017), the Court vacated a summary judgment order for defendants because the trial court failed to state the legal grounds for summary judgment before asking counsel for defendants to draft an order.

The facts underlying this case revolved around the president and other employees of a Tennessee battery company leaving and starting a competing battery company in Florida. Plaintiff, the Tennessee company, filed suit against the Florida company and several individual defendants, citing various causes of action including intentional interference with business relationships. Defendants filed a counterclaim against plaintiff and also filed a motion for summary judgment. In response to defendants’ filings, plaintiff filed a motion to dismiss the counterclaim.

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Numbers confirm what those of us who represent patients in Tennessee medical malpractice cases thought we knew:  the number of claims paid in medical malpractice cases is declining.

Using data gather from the National Practioner Data Bank, JAMA Internal Medicine  reports that the overall rate of claims paid on behalf of physicians deceased by 55.7% from 1992 to 2014. The mean compensation payment was $329, 565. The mean payment increased by 23.3%, from $286 ,751 in 1992-1996 to $353 ,473 in 2009-2014, a rate less than the increase in inflation (and far less than the rate of health care inflation, during the period.

Why did this happen?  Here is my view:

In Redick v. Saint Thomas Midtown Hospital, No. M2016-00428-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2016), the Court addressed the need for a certificate of good faith in an HCLA (f/k/a Tennessee medical malpractice) claim when the breach of duty question falls within the common knowledge exception, but the causation portion of the claim would require expert testimony.

Here, plaintiff was admitted to the hospital with complaints of dizziness and falling. Certain fall precautions were put into place during her stay. Five days after she was admitted, a hospital employee was assisting her in using a portable toilet and allegedly did not follow the prescribed fall precautions—the toilet was not put within reach of the bed, and the employee did not adequately assist plaintiff in getting back to her bed. Plaintiff fell when trying to return to her bed and struck the bedside table, which prompted this suit.

Before filing suit, plaintiff did not give pre-suit notice under the HCLA, and she failed to file a certificate of good faith with her complaint. In response to defendant hospital’s motion to dismiss with prejudice due to the lack of a certificate of good faith, plaintiff asserted that “her claims [fell] within the common knowledge exception such that expert proof is not required, thus forgiving her failure to file a certificate of good faith.” After a hearing, the trial court held: “While this Court finds this case is appropriate for application of the common knowledge exception, expert testimony would still be required on the element of causation to show that ‘as a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.’” On appeal, the ruling was affirmed.

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In Estate of Cunningham v. Epstein Enterprises LLC, No. W2015-00498-COA-R3-CV (Tenn. Ct. App. June 30, 2016), the Court of Appeals affirmed summary judgment in a premises liability case where an armed security guard was shot and killed while on duty at an apartment complex.

The guard worked for a security company, and the company contracted with the apartment. The contract between the two entities provided that the security company was making “no representations that the security requested is reasonably adequate for the Client’s purpose,” and that the apartment was “relying upon its own knowledge and investigation as to the number and type of security personnel required.” On the night in question, the armed guard was on duty when “criminals, apparently fleeing from a nearby apartment complex, shot and killed [him].”

The guard’s wife filed a premises liability suit against the apartment, and the defendant apartment filed a motion for summary judgment. Defendant argued that “they did not owe a duty of care to [the guard] because the risk by which he was fatally injured was inherent in the performance of his duties as a security guard.” Defendant filed a statement of undisputed, material facts, to which plaintiff did not respond. Instead, plaintiff filed a memorandum stating that she did not dispute the facts and arguing that the apartment “owed [the guard] a duty as an employee of an independent contractor working within the bounds of an invitation to perform work,” and that because the criminal acts here were foreseeable, the apartment “owed a duty to protect [the guard] from such acts.” The trial court granted summary judgment to defendant, holding that the apartment had “no duty to [the guard] to protect him from a risk inherent in the task which he was hired to perform,” and the Court of Appeals affirmed.

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Judge Thomas Brothers of Nashville has declared Tenn. Code Ann. Section 29-26 -121(f)(1) and (2) unconstitutional.    Memorandum Order – Judge Brothers

The code section allows defense lawyers in Tennessee health care liability actions virtually unfettered  ex parte communications with the plaintiff’s non-party health care providers.   The code section was adopted by the Tennessee General Assembly in an attempt to override two  Tennessee Supreme Court  decisions.

The first of those cases was Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 20o2), which held that a covenant of confidentiality between patients and their treating physicians arises because of an implied understanding between patient and doctor and from a public policy concern that private medical information should be protected.

Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks.   Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago.  Famed mediator Howard Vogel joins us as a participant this year.

I will be speaking about torts, comparative fault, and preparation for taking meaningful depositions.   Other topics are listed on the Justice Programs website.  Fifteen continuing legal education credits (which includes four ethics / professionalism / dual credits) will be awarded for those that attend the entire program

Hundreds of people attend this program every year, many coming year after year.  Please join us in

Justice Programs will present its annual seminar program in Knoxville, Nashville and Memphis in a few weeks.   Former Justice Penny White and former Judge Joe Riley and I started this seminar over a decade ago.  Famed mediator Howard Vogel joins us as a participant this year.

I will be speaking about torts, comparative fault, and preparation for taking meaningful depositions.   Other topics are listed on the Justice Programs website.  Fifteen continuing legal education credits (which includes four ethics / professionalism / dual credits) will be awarded for those that attend the entire program

Hundreds of people attend this program every year, many coming year after year.  Please join us in

In Garvin v. Malone, No. M2015-00856-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2016), plaintiffs sued defendant after defendant’s van ran into the rear of plaintiffs’ car. After a jury found for defendant, the issue on appeal was whether photographs showing damage to the vehicles should have been admitted since plaintiffs had not made a claim for property damage.

Defendant was traveling behind plaintiffs, a husband and wife, when a police car traveling in the opposite lane allegedly crossed into plaintiffs’ path. Plaintiff husband was driving and slammed on the brakes. Defendant hit her brakes as well, but “was unable to prevent her van from hitting the rear bumper of the [plaintiffs’] vehicle.” Plaintiffs brought a negligence claim seeking personal injury damages and loss of consortium–$825,000 for husband and $75,000 for wife.

During trial, plaintiff husband testified that he felt a “heavy impact,” and that the accident “impacted [him] heavily.” He admitted that he had no cuts or bruises, and that his body did not touch anything during the accident, but that he was “moved around in [his] vehicle.” Likewise, plaintiff wife testified: “I wasn’t thrown; I was just thrown forward…my body didn’t hit anything except to just react.” Defendant testified, however, that the accident was much less substantial, stating that she “tapped the passenger side rear bumper, about maybe an eight-inch mark, but didn’t see any paint off or anything.”

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The following is taken from an article in Clinical Advisor:

A new study has revealed mostly good news for anesthesiologists – since 2005, anesthesia-related medical malpractice claims have decreased dramatically, particularly in inpatient situations. The study, “Comparison and Trends of Inpatient and Outpatient Anesthesia Claims Reported to the National Practitioner Data Bank,” examined inpatient and outpatient anesthesia-related clinician malpractice claims between 2005 and 2013. The study was presented at the 2015 Annual Meeting of the American Society of Anesthesiologists.

During the 9-year study period, anesthesia-related medical malpractice claim frequency decreased by a total of 41.4% (or 4.6% per year). Inpatient claims saw the greatest decrease (a total of 45.5%), while the decrease was significantly less in outpatient settings (a total of 23.5%). According to study author Richard J. Kelly, MD, JD, MPH, FCLM, an anesthesiologist from the University of California, Irvine School of Medicine, the proportion of claims for outpatient procedures has actually increased compared with inpatients, but the amount paid for outpatient claims is significantly less than for inpatient claims.