In Palmer v. Kees, No. E2014-00239-COA-R3-CV (Tenn. Ct. App. June 1, 2015), a recent premises liability case, plaintiff leased an apartment from defendant and sued defendant for injuries sustained when a board on the stairs leading from the apartment to the ground collapsed. The deck and stairs at the apartment had been built two days before plaintiff began his lease on March 1, 2011. According to plaintiff, during the fall of 2011 he complained to defendant landlord about some wood boards on the deck and stairs that were warped. Defendant hired a repairman to fix the warped boards, and the repairman stated that he left the deck and stairs in good condition. Plaintiff’s fall occurred on April 30, 2012, and he did not present any evidence that he informed defendant about problems with the stairs between the repair and the fall or that defendant otherwise had knowledge of any alleged problems preceding the fall.
Lawyer Who Cheated Sanctioned Almost $1,000,000
The ABA’s Litigation News has an interesting story on a defense lawyer in a medical malpractice case who was found to have knowingly violated an order on a motion in limine and sanctioned almost $1,000,000.
A court order is an order, not a suggestion. It is possible, in the heat of trial, to make an error and violate an order. While this is and should be consequences of such a mistake, but when, as the trial judge said here, “it is glaringly apparent that [defense counsel’s] conduct was orchestrated to improperly influence the outcome of this trial” there will be hell, or almost $1,000,000, to pay.
I love to win and I hate to lose. I despise people, including lawyers, who feel the need to cheat to win. I cannot see why any responsible insurer, company or individual would ever hire this lawyer in the future.
Tennessee Certificate of Good Faith Mandate Does Not Require Disclosure of Zero Prior Violations
The Tennessee Supreme Court recently issued an opinion reversing several poorly decided lower court cases regarding the failure to disclose zero prior violations on a Healthcare Liability Act (HCLA) certificate of good faith. In Davis ex rel. Davis v. Ibach, No. W2013-02514-SC-R11-CV (Tenn. May 29, 2015), plaintiff filed an HCLA claim against defendant, but plaintiff’s certificate of good faith failed to state that plaintiff’s counsel had zero prior violations under the statute. Defendants moved for dismissal on the grounds that plaintiff failed to comply with § 29-26-122(d)(4), which states that a “certificate of good faith shall disclose the number of prior violations of this section by the executing party,” but before the Court could hear the motion plaintiff requested a dismissal without prejudice. The trial court allowed the dismissal, and the Court of Appeals affirmed. Defendant argued, though, that because the certificate of good faith was noncompliant the Court was required to dismiss the case with prejudice.
The Supreme Court heard the case to determine “whether the failure to indicate the absence of any prior violations of the statute constitutes a failure to comply with the requirement of section 29-26-122(d)(4).” The Court noted that the Court of Appeals had previously held that a plaintiff’s failure to disclose zero prior violations required dismissal with prejudice. (See, e.g., Vaughn ex rel. Vaughn v. Mountain States Health Alliance, No. E2012-01042-COA-R3-CV, 2013 WL 817032 (Tenn. Ct. App. Mar. 5, 2013)). The Supreme Court expressly overruled those decisions, holding that the HCLA “does not require disclosure of the absence of any prior violations of the statute.” The Court reasoned:
[The statute] does not require disclosure of whether or not there have been any prior violations. The General Assembly easily could have worded the statute to instruct a party to disclose whether or not there have been any prior violations and, if so, the number of such prior violations. It did not do so. Logically, if there have not been any prior violations there is no “number of prior violations” to disclose.
Truck Owner Not Liable for Sister-in-Law’s Tennesssee Truck Accident
In a recent Tennessee car accident case, the Court of Appeals affirmed summary judgment for defendant on the theories of family purpose doctrine and negligent entrustment. In Daniels v. Huffaker, No. E2014-00869-COA-R3-CV (Tenn. Ct. App. May 12, 2015), plaintiff’s vehicle was hit by a truck driven by Huffaker as Huffaker drove to her boyfriend’s apartment. The truck driven by Huffaker was owned by Mr. Norris, Huffaker’s brother-in-law, who was deployed on active duty to Iraq at the time of the accident. While Mr. Norris was in Iraq, Huffaker split her time between her boyfriend’s apartment and her sister’s (Ms. Norris’s) home. Ms. Norris allowed Huffaker to drive Mr. Norris’s truck during his deployment since the truck was not otherwise in use. By the time of the appeal, Mr. Norris had conceded that Huffaker was a permissive user of the truck.
Plaintiff sued Huffaker and Mr. Norris for her damages related to the accident, making claims against Mr. Norris under the theories of the family purpose doctrine and negligent entrustment. Because Huffaker was never properly served, Mr. Norris was ultimately the only defendant in the case. After a hearing, the trial court granted Mr. Norris’s motion for summary judgment on both of plaintiff’s theories of liability, and the Court of Appeals affirmed.
Informed Consent Expert Testimony Not Limited to Risks that Actually Materialized
A recent informed consent case provided the Supreme Court with the opportunity to analyze what risks a plaintiffs’ expert should be allowed to testify about at trial. In White v. Beeks, No. E2012-02443-SC-R11-CV (Tenn. May 18, 2015), plaintiff had undergone spinal fusion surgery after other attempts at pain management were unsuccessful. After the surgery, plaintiff’s pain initially improved but then became worse, and plaintiff alleged that this was because of an ectopic bone growth caused by the surgery. Plaintiff filed suit against defendant doctor asserting that the doctor had not given him adequate information before the surgery to enable him to give informed consent. Specifically, plaintiff alleged that the doctor failed to inform him that a bone mass product called InFuse would be used, how such product would be used, or the risks associated with InFuse.
To prove his informed consent case, plaintiff needed to “prove by expert testimony 1) the information that [defendant] should have disclosed to [plaintiff] to obtain his informed consent for the surgery, as established by the recognized standard of acceptable professional practice in the specialty [in the same or similar community], 2) whether [defendant] disclosed appropriate information to [plaintiff] to comply with the [standard of care], and 3) whether a reasonable person in [plaintiff’s] position would have consented to the surgery if he had been provided with the information required by the recognized acceptable professional practice.”
Summary Judgment Reversed Given Evidence of Opposing Party
In Chambers v. Illinois Central Railroad Co., No. W2013-02671-COA-R3-CV (Tenn. Ct. App. May 5, 2015), plaintiffs brought a negligence action against defendant for property damage sustained in a flood. A culvert ran under defendant’s railroad track, and according to plaintiffs, the failure to maintain and keep this culvert free from debris was the cause of the flooding on plaintiffs’ property.
Defendant filed a motion for summary judgment, which the trial court eventually granted on two grounds. First, the trial court found that a relevant federal regulation “substantially subsumed the subject matter of the plaintiffs’ state law claim,” such that if defendant had complied with the regulation the action was preempted. The trial court determined that defendant had presented uncontroverted testimony regarding the condition of the culvert before the flood and thus proved the “affirmative defense of preemption.” Second, the trial court determined that expert proof was required on this issue of causation, and since plaintiffs had no expert to contradict the condition of the culvert immediately before the flooding, plaintiffs could not prove causation, an essential element of their negligence claim. The Court of Appeals, however, reversed on both of these grounds.
Summary Judgment Reversed in Fall-Down Case
The Tennessee Court of Appeals reversed a grant of summary judgment in negligence case where plaintiff testified that she was paying attention and evidence presented did not depict scene from plaintiff’s perspective.
In Walden v. Central Parking System of Tennessee, Inc., No. E2014-00939-COA-R3-CV (Tenn. Ct. App. April 27, 2015), plaintiff sued defendants for negligence after falling in a parking garage. According to plaintiff, she was leaving a doctor’s appointment and walking toward her car when she fell because she did not see a step down from the curb/lobby area to the garage floor. Plaintiff testified in her deposition that she was looking down, paying attention, was not distracted, and that everything looked gray and she did not see any yellow or any other reason to notice that there was a step down. Instead, plaintiff testified that from where she was walking, everything looked the same.
Defendants moved for summary judgment, submitting photographs of the place where plaintiff fell as evidence. These photos showed yellow striping on the curb and in the “no parking area immediately in front of the curb.” Defendants admitted, however, that these photographs were taken “from an angle and viewpoint different from the one Plaintiff would have had as she was walking toward her vehicle.” The trial court granted summary judgment to defendants, finding that there no genuine issue of fact, that there was no fault on the part of defendants, and that the accident occurred “due to [plaintiff’s] own failure to observe the open and obvious condition of the premises that was there to be seen.” The Court of Appeals reversed.
Tennessee HCLA Case Dismissed for Non-Compliant HIPAA Form.
As HCLA cases continue to make their way through the court system, we are learning more about what will constitute substantial compliance with the pre-suit notice content requirements. In the recent case of Harmon v. Shore, No. M2014-01339-COA-R3-CV (Tenn. Ct. App. April 23, 2015), the Court of Appeals reaffirmed what seems like an overly harsh result related to substantial compliance with the required HIPAA authorization.
In Harmon, plaintiff was injured by a procedure performed solely by Dr. Shore. Plaintiff submitted pre-suit notice to the two defendants she later named in her suit, Dr. Shore and the relevant hospital. The HIPAA form enclosed, however, only released plaintiff’s medical records to her own lawyer. Defendants filed a motion to dismiss, which was initially denied in 2013, but following a denial of Rule 9 appeal from the Court of Appeals and then a remand from the Supreme Court to reconsider in light of the holding in Stevens v. Hickman Cmty. Health Care Servs., 418 S.W.3d 547 (Tenn. 2013), the motion to dismiss was granted by the trial court.
Plaintiff did not argue that her HIPAA form strictly complied with the statutory requirements. Instead, her essential argument was that her non-compliance with the technical requirements should be excused because the defendants already had all the records at issue in this case. In her reply to defendants’ motion to dismiss, plaintiff stated:
Understanding the Discretionary Function Exception to the Tennessee GTLA
In a recent case that fell under the Governmental Tort Liability Act (GTLA), the Tennessee Court of Appeals addressed the discretionary function exception to the GTLA as well as the findings a trial court must make to support a summary judgment decision.
In Lewis v. Shelby County, No. W2014-00408-COA-R3-CV (Tenn. Ct. App. April 17, 2015), two counselors who worked at a correctional facility in Shelby County sued for negligence related to injuries they sustained when attacked by an inmate. Plaintiffs alleged that on the night of the attack, the facility was understaffed; that they radioed their supervisor two times prior to the attack but he failed to appear; and that they made four “code red” calls for assistance during the attack, but that no one responded. Their suit was based on each of these three allegedly negligent acts.
GTLA Complaint Survives Motion to Dismiss
In Holder v. Shelby County, No. W2014-01910-COA-R3-CV (Tenn. Ct. App. April 21, 2015), a father sued the county for acts of negligence by a county employee that he alleged caused the death of his son. The son was involved in a car accident and subsequently arrested. Upon evaluation, the son was determined to have a mental condition that caused him to be a threat to himself and others. He was accordingly put into a special housing unit for unstable inmates, where policy dictated that a guard perform mandatory safety checks of all inmates every thirty minutes.
Officer Moore was on duty from 2:00 pm to 10:00 pm on the day the son was in the facility. Moore later admitted that he did not do any safety checks during that time, despite writing in the log book that he did and that at 9:16 pm all the inmates, including plaintiff’s son, were resting peacefully. After the 10:00 shift change, another deputy performed a safety check at 10:14 pm and found the son hanging in his cell by a bed sheet. The son still had a pulse but was not breathing, and he eventually died from his injuries.
Plaintiff filed suit alleging that his son died as a “result of Deputy Moore’s negligence and that Shelby County was vicariously liable.” The County filed a motion to dismiss for failure to state a claim on the grounds that 1) the complaint alleged only intentional acts and 2) Officer Moore was not acting within the scope of his employment, either of which would be enough to find that immunity was not removed under the Governmental Tort Liability Act (GTLA). The trial court granted the County’s motion, finding that the complaint failed to allege any negligent acts and that Moore’s falsification of the logs was not within the scope of his employment. The Court of Appeals, however, reversed this decision.