Day on Torts

March 30, 2015

Tennessee Products Liability Claim Falls Short

A recent Court of Appeals case illustrates that trying to make a Tennessee product liability claim against a product that did not technically cause the injury can be quite difficult. In Long v. Quad Power Products, LLC, No. E2013-02708-COA-R3-CV (Tenn. Ct. App. March 20, 2015), plaintiff was injured while pressure testing a product at work. Plaintiff tried to turn a ball valve in the test, and when the valve would not turn he “used an extension or cheater bar to continue his attempt to relieve pressure.” A mechanism attached to the valve then broke, which caused extremely high-pressured water to hit plaintiff, injuring his left arm and shoulder. Plaintiff eventually had to have his left arm amputated. At the time of appeal, there was only one defendant remaining in the case: the distributor from whom plaintiff’s employer purchased the ball valve used in the testing system. According to this defendant, however, this ball valve would have only been in its possession for around 24 hours and was not “assembled, designed, manufactured, or altered” by defendant. After some procedural history, the case eventually boiled down to a strict liability failure to warn claim on which the trial court granted summary judgment to defendant, and the Court of Appeals affirmed.

When granting summary judgment for defendant, the trial court made certain relevant findings of fact: that the “failed component was not a part of the valve sold by defendant;” that the ball valve had actually been removed from service several days before the accident because it was difficult to use, but that in violation of the employer’s own safety rules it was later put into the test panel used by plaintiff; that a “simple inspection” by the employee who put the valve in the test panel would have showed that it was corroded; and that if the employer “had properly supported the valve in its test panel, the stress in the connected components would not have been sufficient to cause the connecting components to fracture.” In affirming summary judgment, the Court of Appeals relied on these facts and addressed four issues raised by plaintiff.

March 25, 2015

When Does Bad Conduct Rise to the Level of Outrageous Conduct?

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

A recent Tennessee Court of Appeals case serves as a reminder that the bar for proving outrageous conduct is high for plaintiffs attempting to make a case for intentional infliction of emotional distress (“IIED”). In Kindred v. Nat’l College of Bus. and Tech., Inc., No. W2014-00413-COA-R3-CV (Tenn. Ct. App. March 19, 2015), plaintiff sued her former college for, among other things, IIED related to the cancellation of her classes for one term. Plaintiff had her GED, and at the time of her initial enrollment the school did not require students to have an official copy of their equivalency certificate in their file. That policy later changed. Two weeks prior to the start of term 107, plaintiff went to the college to get a copy of that term’s schedule and was informed that her file did not have an official copy of her GED and that she was thus not in compliance with the school’s requirements. Plaintiff alleged that she presented the school with her GED equivalency card, but she did not dispute that she took no steps to get an official copy of her GED into her file.

Plaintiff started attending classes at the beginning of term 107, but after one week the director of the campus cancelled plaintiff’s schedule because her file did not comply with the official copy requirement. The director told plaintiff that she would not be charged tuition for that term and that she could return to classes the next term as long as she had provided an official copy of her GED. Plaintiff provided the school with her GED on the same day she was informed about her schedule cancellation, but the director refused to reinstate her for that term. Two months later, plaintiff enrolled in another term (term 111) at the same college. She was not allowed to enroll until she paid an outstanding balance for textbooks from term 107 (the cancelled term), which she paid after protest. Plaintiff attended two additional terms at the school, but at the end of term 113 she received a failing grade, which she unsuccessfully challenged. After that, plaintiff alleged that “she could no longer suppress her pain and distress that began with [defendant’s] degrading termination of her enrollment eight months earlier. Plaintiff further allege[d] that this forced her to cease her attendance at [the school] and abandon her educational/professional goals.”

March 23, 2015

No Proof on Notice of Hazard Results in Dismissal of Case

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

In a recent premises liability case, the Tennessee Court of Appeals overturned a trial court decision for plaintiff on the basis of lack of actual or constructive notice of a dangerous condition, a key element in any premises liability case. In Barkley v. Shelby Co. Board of Educ., No. W2014-00417-COA-R3-CV (Tenn. Ct. App. March 18, 2015), plaintiff, a grandmother, visited an elementary school attended by two of her grandchildren. While there, she slipped and fell near a hand washing station in the hallway. Plaintiff alleged that there was water on the floor, and that such water was the cause of her fall.

Because the school was operated by the Shelby County Board of Education, this action fell under the Governmental Tort Liability Act (“GTLA”). The trial court found defendant liable, though it did reduce plaintiff’s award pursuant to comparative fault findings. On appeal, one issue raised by defendant was whether the trial court erred by not finding defendant immune from suit under the GTLA. The Court of Appeals, however, did not get that far, instead focusing solely on the issue of lack of notice.

Under the GTLA, a plaintiff making a premises liability claim must prove that “(1) the governmental entity owns and controls the location or instrumentality alleged to have caused the injury; (2) a dangerous, defective, or, in the case of sidewalks, unsafe condition caused the injury; (3) the governmental entity had actual or constructive notice of the dangerous condition; and (4) the governmental entity breached either its duty to eliminate the condition or its duty to warn of the condition.” Here, the Court stated that there was conflicting evidence regarding whether there was water on the floor causing the fall or whether plaintiff’s shoes caused her to fall and drop a cup of water she was holding, which accounted for the water on the floor. Either way, the Court summarily determined that, regarding actual notice, there was “no evidence in support of a determination that the Board had notice of water on the floor at or near the location of [plaintiff’s] fall, sufficient either to remove its immunity or to otherwise establish liability.”

March 16, 2015

Sponge Case Falls Under HCLA Not Ordinary Negligence

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

In Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. March 10, 2015), the Court of Appeals recently took up the issue of whether a case sounds in ordinary negligence or health care liability. After a hernia repair, plaintiff developed an infection requiring additional surgery to place a wound vacuum and a sponge. One defendant was allegedly tasked with changing the sponge as necessary, and another of the defendants was charged with removing the sponge at the appropriate time. When the wound vacuum was removed the sponge was not, eventually leading the wound to burst. Plaintiff sued defendants alleging that they “were negligent by failing to either remove the sponge or communicate with the other physicians to ensure that the sponge had been removed.”

Defendant filed a motion to dismiss asserting that the claims fell under the Health Care Liability Act (“HCLA”) and that plaintiff’s failure to comply with the pre-suit notice and certificate of good faith requirements thus necessitated dismissal of the case. Plaintiff responded that he was claiming only ordinary negligence and was therefore not required to comply with the HCLA. Plaintiff asserted that “the fact that the alleged malpractice lies within the common knowledge of laypersons” and therefore did not require expert testimony was proof that the claim sounded in ordinary negligence.

The trial court denied the motion to dismiss, and the Court of Appeals granted interlocutory appeal to address “[w]hether an action seeking compensatory damages for injuries sustained as a result of a foreign object having been left in the patient’s body following surgery is a ‘health care liability action’ as defined by the [HCLA], such that the mandatory presuit provisions set forth in Tennessee Code Annotated sections 29-26-121 and 29-26-122 apply.”

March 16, 2015

Sandy Hook Parents Sue Mother of Murderer

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

The parents of the Sandy Hook Elementary School shooting have sued the shooter’s mother.

The complaint alleges that the late Nancy Lanza, mother of Adam Lanza, negligently allowed her son access to the Bushmaster A-15 used in the shootings when she knew or should have known made her son a danger to others.

The shootings resulted in the deaths of twenty children and six adults.

March 6, 2015

Trial Court Cannot Impose Additional Limitations on Ex Parte Interviews in Healthcare Liability Cases.

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

Tenn. Code Ann. § 29-26-121(f) allows defendants in a Tennessee medical malpractice (now called healthcare liability) case to petition the court for a “qualified protective order allowing the defendant…and their attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the relevant patient’s treating ‘healthcare providers[.]’” The section goes on to specifically list four conditions placed on these interviews: (1) that the petition identify healthcare providers the defendant seeks to interview; (2) that plaintiff may object and seek to limit or prohibit the interview, which “may be granted upon good cause shown that a treating healthcare provider does not possess relevant information[;]” (3) that the protective order should limit the use/dissemination of the information and provide for its return or destruction after the litigation; and (4) that the protective order expressly states that a healthcare provider’s participation in such interview is voluntary.[1] In two almost identical recent cases, the Court of Appeals took up the issue of whether a trial court may place additional conditions or restraints on these interviews.

In both Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015) and S.W. v. Baptist Memorial Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015), plaintiffs filed health care liability claims against defendants for alleged professional negligence. At issue in these appeals were the ex parte interviews defendants wanted to conduct with plaintiffs’ treating physicians without plaintiffs or their counsel present. Both sets of defendants moved for qualified protective orders to conduct these interviews, pursuant to § 29-26-121(f), which plaintiffs opposed. The trial courts granted the qualified protective order for the interviews but ultimately placed eight conditions on the interviews in both cases:

(1) That participation by healthcare providers in the interviews was voluntary;

February 28, 2015

Upcoming Civil Case Arguments at the Tennessee Supreme Court

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

The Tennessee Supreme Court will hear two health care liability disputes among four cases scheduled for oral arguments March 4, 2015 in Jackson, Tennessee, one of which will address an interesting civil procedure question.

The first case concerns the procedures required when filing a health care liability lawsuit. At the time the suit was filed, state law required a plaintiff to file a certificate within 90 days of the initiation of a lawsuit, confirming that the plaintiff has consulted with medical experts before filing the suit and stating whether the plaintiff’s lawyer has ever been in violation of the law requiring the certificate. In this case from Dyer County, the attorney, who had never violated the statute, filed the required certificate but did not state that he had zero prior violations of the statute. The defendants sought dismissal of the case based on that omission. The plaintiffs sought to dismiss the case with the option to refile it.

The trial court allowed the dismissal and the defendants appealed. The Supreme Court will consider whether the failure to indicate zero prior violations of the law constitutes a failure to comply with the law requiring the good faith certificate. The case is Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D.

February 27, 2015

Court of Appeals Rules that 120-Day Extension Applies to HCLA Cases Filed under Saving Statute.

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

The interplay between the saving statute and the 120-day extension provided by the HCLA in Tenn. Code Ann. § 29-26-121(c) continues to be a hotly litigated topic, with the Tennessee Court of Appeals adding another opinion to the mix this week. In 2013, the Supreme Court held that transitional plaintiffs (those whose initial suits were filed before the pre-suit notice requirement was enacted but who nonsuited and re-filed after the pre-suit notice requirement went into effect), who were required to give pre-suit notice before re-filing their lawsuit, were entitled to the 120-day extension even though they were filing their second suit pursuant to the saving statute instead of the traditional statute of limitation. Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013). Then just a month ago, the Supreme Court held that the HCLA “requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed,” meaning that a plaintiff who gives proper notice, nonsuits, then re-files must give a second notice before the re-filing of the claims, even if the claims are identical. Foster v. Chiles, 2015 WL 343872 (Tenn. Jan. 27, 2015). Now, in Tinnel v. East Tenn. Ear, Nose, and Throat Specialists, P.C., No. E2014-00906-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2015), the Court of Appeals has interpreted these prior cases to find that a plaintiff who nonsuits an HCLA case and then gives proper notice and re-files is entitled to the 120-day extension on the re-filed complaint.

In Tinnel, plaintiff suffered an injury during an outpatient procedure resulting in blindness in one eye. The procedure was performed on February 3, 2009. Plaintiff gave proper pre-suit notice on May 19, 2009, then filed suit on February 3, 2010. On December 14, 2010, plaintiff voluntarily dismissed the first lawsuit. Subsequently, on October 18, 2011 and within one year of the nonsuit, plaintiff provided a second set of pre-suit notices to defendants. Plaintiff filed her second suit on April 3, 2012, which was more than a year from the date of her previous nonsuit but within the time that would be included if the 120-day extension were applied. Defendant moved for summary judgment on the basis that the second suit was not timely.

Plaintiff argued that the reasoning the Supreme Court used in Rajvongs should not be confined to transitional plaintiffs and should apply to provide her with the 120-day extension. Moreover, she asserted that since her first suit was filed within the traditional one-year statute of limitation, she had not yet utilized the 120-day extension. Defendants asserted that the Rajvongs holding should be limited only to transitional plaintiffs and that plaintiff automatically received the 120-day extension on her first suit, whether she used it or not, and was therefore not entitled to another extension. The trial court dismissed the case, and plaintiff appealed.

February 14, 2015

Juror Interview in Vanderbilt Rape Trial Offers Good Practice Reminders

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

The Tennessean has a fascinating video interview of Todd Easter, one of the jurors in the Corey Batey and Brandon Vandenburg rape trial. Juror feedback in any case gives trial lawyers helpful information about how to present information to a jury. Mr. Easter’s interview yielded the following reminders:

1. Under Promise and Over Deliver — In the Vanderbilt rape trial, one of the areas in which the lawyers over promised was the expected length of the trial. The initial projection by the lawyers was 9 days. Instead, the trial took 3 weeks. Mr. Easter mentions this twice in his interview. Since it sounds like both sides underestimated the time needed, the jurors were probably not mad at either side. But, if one side unilaterally makes a commitment on time (or evidence) and does not deliver, it could get ugly. So, Mr. Easter’s interview reminds us to be respectful of jurors time and under promise and over deliver.

2. Digital Evidence is Hard to Overcome – If you are unfamiliar with the Vanderbilt rape case, the rape of the unconscious woman was videotaped and then shared with friends. In addition, cameras in the dorms captured the defendants carrying the unconscious victim into the dorm and then later depositing her naked in the hallway. Not surprisingly, the jurors found this evidence to be compelling and “impossible to refute”, which takes us to the next point.

February 7, 2015

Punitive Damages Affirmed in Tennessee Fraud Case

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

In Overton v. Westgate Resorts, LTD., L.P., No. E2014-00303-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2015), the Court of Appeals recently affirmed a punitive damage award in a fraud and misrepresentation case. Plaintiffs had traveled to Gatlinburg to look for and purchase a timeshare. Their primary concern was being able to accommodate their extended family for a trip the same week each December. While in downtown, they saw a Westgate booth and made arrangements to attend a presentation. According to plaintiffs, the presentation was “high pressure” and salespeople spent almost eight hours with plaintiffs on the relevant day. Plaintiffs found a unit that would fit their needs and decided to purchase the timeshare from Westgate.

Plaintiffs asserted that their decision to purchase was based on assurances from the Westgate salespeople. Specifically, the Westgate representatives stated that plaintiffs would be able to retain the unit they looked at for the same week in December each year; that they would be able to book unlimited additional nights at any Westgate resort at a promotional price; that the two salespeople they worked with would refund part of their commission; and that the salespeople would purchase a foosball table to be kept at the resort for plaintiffs to use during their stays. The agreements regarding the commission and foosball table were put in writing, but the other two were not. Plaintiffs closed on the timeshare at 11:00 pm that night and were given copies of their closing documents and three CD-ROMs. The purchase price was just under $40,000.

After closing, plaintiffs tried to confirm their December reservation, and after some unsuccessful attempts were informed that the booking would not be guaranteed for the unit they had looked at and that units were not assigned until a few days before arrival. After speaking to several customer service individuals, they also found out that they did not have the ability to book unlimited nights at other resorts as described during the presentation. Plaintiffs retained counsel, who realized that plaintiffs had not been given a current copy of the Westgate’s public offering statement, as required by the Tennessee Consumer Protection Act. Instead, plaintiffs had received an old version on CD-ROM which was extremely difficult to access and navigate. Plaintiffs sought to rescind the contract based on the TCPA, but Westgate refused. Plaintiffs then brought this action.