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September 17, 2020

Justice Programs On-Demand Seminars Now Live

Tennessee Justice Programs has released it Fall 2020 on-demand video seminar CLE programs.

Former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley, and I started Justice Programs almost 20 years ago. The seminar program is designed for civil trial practitioners who are interested in enhancing their legal knowledge as they earn CLE credit.

Historically, our seminar was presented in three live programs in Knoxville, Nashville and Memphis. This year, COVID-19 has caused us to abandon the normal and film 15 hours of on-demand legal education. The Tennessee Supreme Court now permits unlimited on-demand programs to fulfill all CLE obligations.

July 26, 2020

Decision Upholding the Right to Take Depositions by the Use of Remote Video

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

Here is an excellent decision supporting the right of a party to take depositions by remote video despite an objection raised by the opposing party.

The court’s order references many of the issues that arise during remote video depositions and thus is a great resource for lawyers who are unfamiliar with such issues.

July 21, 2020

Chairs stacked on top of table not a dangerous condition

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

Where a middle school student was injured when he tripped on his backpack strap, beginning a chain of events that knocked down a chair that was stacked on top of a table and injured his hand, summary judgment was affirmed based the lack of a dangerous condition and the injury not being foreseeable.

In Landry v. Sumner County Board of Education, No. M2019-01696-COA-R3-CV (Tenn. Ct. App. June 30, 2020), plaintiff was an 11-year-old student sitting with friends in his school cafeteria as he waited for the bell to ring to begin the school day. At this school, the chairs were always placed upside down on the top of the tables the day before so the custodians could clean. In the mornings, the kids would take down a chair to sit. On this particular morning, plaintiff’s backpack strap had unknowingly become wrapped around the leg of his chair. When plaintiff stood to leave, he tripped on the strap. As he fell, he pushed his chair away, and that chair hit a chair that was still upside down on a table. The upside down chair fell and hit plaintiff’s hand, severing the tip of one of his fingers.

May 27, 2020

HIPAA Form Releasing Records to Plaintiffs’ Counsel Not Compliant.

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

Where plaintiffs sent pre-suit notice to 45 health care providers, but the HIPAA authorization included with the notice only authorized disclosures to plaintiffs’ counsel, dismissal of their health care liability claim based on failure to comply with the statutory requirements was affirmed.

In Owens v. Stephens, No. E2018-01564-COA-R3-CV (Tenn. Ct. App. April 16, 2020), plaintiffs filed an HCLA claim against numerous defendants alleging that negligent care of plaintiff mother resulted in the death of her child. Before the suit was filed, plaintiffs sent pre-suit notice pursuant to the HCLA to 45 health care providers. This notice included a HIPAA authorization for the release of the mother and child’s medical records, but the release stated that it permitted providers “to disclose my entire medical record…to BREEDING & HENRY, LLC…” Breeding & Henry, LLC was the law firm representing plaintiffs.

April 27, 2020

Texas Supreme Court Reverses Sanctions Against Lawyer Alleged to Have Engaged in Push-Poll

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

The Texas Supreme Court has reversed the imposition of sanctions by a trial judge against a lawyer who was alleged to have engaged in push-polling in a case shortly before it was set for trial by jury.

The movants argued that a law firm employed by defendant product manufacturer “had improperly commissioned a telephone survey to be conducted in the county of suit mere weeks before the scheduled jury trial without ensuring witnesses, represented parties, judges, and court personnel were excluded from the survey database and without voluntarily disclosing the survey to the trial court or the litigants.” Maj. Op., p. 3. The manufacturer did not commission the poll or know it was being done. Maj. Op., p. 8. The poll is appended to the court’s opinion.

April 27, 2020

Fall Off Examination Table Within Health Care Liability Act

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

Plaintiff’s allegation that the examination table provided during a doctor’s appointment was unsafe fell under the Health Care Liability Act (HCLA) and was thus subject to dismissal due to plaintiff’s failure to provide pre-suit notice.

In Johnson v. Knoxville HMA Cardiology PPM, LLC, No. E2019-00818-COA-R3-CV (Tenn. Ct. App. Mar. 24, 2020), plaintiff had suffered from dizziness and fatigue, and he had a pacemaker implanted. In a later visit “for reprogramming of his pacemaker and other issues,” plaintiff fell off the examination table and hit the wall at defendant’s office “due to a fainting spell, resulting in injuries to [his] neck.”

Plaintiff filed suit alleging negligence, and his allegations were couched in premises liability language. Plaintiff asserted that defendants were negligent by failing to provide an examination table with railing and/or by failing to have padding. Plaintiff argued that “because Defendants knew that he suffered from fatigue and dizziness, they should have been aware of the risk associated with leaving him unattended on the examination table.”

April 2, 2020

Day on Torts Nugget: Proper Way to Draft a New Complaint After a Voluntary Dismissal

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

Sometimes, a voluntary dismissal under Rule 41 of the Tennessee Rules of Civil Procedure is required and appropriate but the plaintiff wishes to re-file the case within the time permitted by the “savings statute” (Tenn. Code Ann. Sec. 28-1-105).

What do you allege to avoid the risk of the defendant filing a motion to dismiss for failure to comply with the applicable statute of limitations?

Let’s use a hypothetical to demonstrate the point. Plaintiff is injured in a car crash on December 27, 2017. Plaintiff files suit against Defendant on August 14, 2018. Plaintiff needs to voluntarily dismiss the case, and does so by order dated April 20, 2019. The case is one to which the “savings statute” applies.

March 26, 2020

Who Decides the What Issue Is Subject to Arbitration: A Judge or Arbitrator?

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

It is, as the Second District Court of Appeals of Florida said, a “rather arcane”issue: who decides whether a dispute is subject to an arbitration provision – a judge or an arbitrator. Under the facts presented, the appellate court concluded that because the contract (a clickwrap agreement on AirBNB’s website) “did not provide clear and unmistakable evidence that only the arbitrator could decide the issue of arbitrability” the issue was one for the judge.

The case is Doe v. Natt and AirBNB, Inc., Case No. 2D19-1383 (Fla. Ct. App. March 25, 2019). The court reached a result different than several other intermediate appellate courts in Florida and thus is likely to go up on appeal.

March 23, 2020

Investigation into Self-Driving Car Crash in Florida

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

The federal government has finished its investigation into a 2019 car crash involving a Tesla on autopilot.

The report, by the National Transportation and Safety Board, reaches the following conclusions:

the design of the Autopilot system contributed to the crash because it allowed the Tesla driver to avoid paying attention

February 26, 2020

Day on Torts Nugget: Tennessee Medical Malpractice Filings and Trials

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

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.