Day on Torts

September 3, 2014

Tennessee Court Rules on Discovery of Income from Testifying Expert

This appeal arises from a medical malpractice case that went off the rails when the defense sought to discover financial information from plaintiff’s liability expert. On further consideration, since the procedural history involves four motions for sanctions, two trial continuances, a denied interlocutory appeal, a dismissal and this appeal, perhaps I should say the case went off the rails, down an embankment into a sewage-filled ditch replete with rats the size of small dogs.

It all started simply enough. Defense counel served a notice of deposition for plaintiff’s liability expert, Dr. Evans, and requested financial information. Specifically, the notice requested documents reflecting the income the good doctor had earned serving as an expert witness including his schedule of charges, all income received from reviewing cases, consulting or testifying for a 10 year period and 1099s and related documents showing his income for the same 10 year period. No objection was filed to the notice but Dr. Evans failed to bring them to his deposition. The deposition proceeded nonetheless and Dr. Evans was asked questions related to his income. Dr. Evans testified he did not know how much he earned annually from his work as an expert witness and could not even give an estimate. While he estimated 15 to 20% of his income was derived from his work as an expert witness, he could not provide any information as to the actual dollar amount.

Thereafter, a trial date was scheduled and the defense moved to compel production of the documents previously requested as part of Dr. Evans deposition. Plaintiff urged the trial court to deny the motion as the documents were not in her possession. Defense counsel insisted plaintiff could obtain the documents from her expert but asked the trial court to grant a motion for out-of-state subpoena if the trial court was inclined to deny the motion to compel. While plaintiff conceded the financial information was relevant on the issue of bias, plaintiff asked the court to balance the privacy interests of the expert. Ultimately, the trial court denied the motion to compel since the requested documents were not in the possession of the plaintiff but instructed defense counsel to file a petition for an out-of-state subpoena. The trial court suggested the scope of the subpoena should be reduced to a five year period instead of ten and also suggested the parties agree to the production of an affidavit from Dr. Evans’ accountant giving the information as opposed to the production of the underlying documents which contained other personal, financial information.

August 28, 2014

Tennessee Law of Civil Trial – Free Sample Chapter

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

My newest book, Tennessee Law of Civil Trial, examines the law of trying civil cases in Tennessee state courts. Here is the Table of Contents:

Chapter 1: Scheduling Orders
Chapter 2: Final Pretrial Conferences
Chapter 3: Motions in Limine
Chapter 4: Jury Selection
Chapter 5: The Rule
Chapter 6: Opening Statements and Closing Arguments
Chapter 7: Examination of Witnesses
Chapter 8: Use of Depositions at Trial
Chapter 9: Opinion and Expert Testimony
Chapter 10: Mistrials
Chapter 11: Motions for Directed Verdict
Chapter 12: Findings of Fact
Chapter 13: Jury Instructions
Chapter 14: Juror Questions
Chapter 15: Verdict Forms
Chapter 16: Discretionary Costs
Chapter 17: Motions for a New Trial and to Alter or Amend Judgment
Chapter 18: Remittitur
Chapter 19: Additur
Chapter 20: Motions for Judgment Notwithstanding the Verdict
Chapter 21: Preparing to Win at Trial

If you want to get a good feel for the book, clicking on the link and enjoy a free preview of the chapter on scheduling orders. You can purchase the 500-page book for only $49.95 by clicking on the link.

August 27, 2014

Tennessee Appellate Court Reviews Business Tort Case

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

This case arises from the housing market crash. First Community Bank had purchased asset-backed securities primarily in the form of collateralized debt obligations (CDOs) and residential mortgage-backed securities (RMBSs) from a number of entities including First Tennessee Bank, Morgan Keegan & Company, Merrill Lynch, Pierce, Fenner & Smith, Inc., Bear Stearns & Company and Sun Trust Robinson Humphrey, Inc. and Keefe, Bruyette & Woods, Inc. The sale of each security was conditioned upon the receipt of a minimum rating, and all sales received the rating. While initially First Community Bank profited from these transactions, in August of 2008, after Moody’s downgraded the rating on a number of the investments, the bottom fell out. First Community Bank lost nearly 100 million dollars.

Trying to recoup some of its massive losses, First Community sued everyone involved: the rating agencies, the placement agents and the issuing entities. In its 207 page complaint, which was later amended and expanded to 260 pages, First Community Bank alleged fraud, constructive fraud, negligent misrepresentation, civil conspiracy, unjust enrichment and a violation of the Tennessee Securities Act. Procedurally, the case took some twists and turns. The defendants initially moved to dismiss on multiple grounds: statute of limitations, statute of repose, failure to plead with specificity, the losses were caused by general market conditions and, for some defendants, lack of personal jurisdiction. The trial court granted the motions to dismiss and First Community Bank appealed. The Court of Appeals upheld the dismissal of some of the defendants based on lack of personal jurisdiction. As to the other defendants, the Court of Appeals found the trial court had considered matters outside the pleadings thereby converting the motions to dismiss into motions for summary judgment. As such, First Community Bank was entitled to discovery. The remaining defendants appealed to the Tennessee Supreme Court who found the Court of Appeals had failed to consider the trial court’s alternative basis for dismissal i.e., the failure to state a claim upon which relief may be granted (other than statute of limitations or statute of repose). Accordingly, the case was remanded to the Court of Appeals for consideration of that lone issue. The Court of Appeals ultimately reversed the trial court’s decision on that issue and remanded for further proceedings.

Given the issue on appeal, the Court of Appeals’ analysis was limited to whether the complaint was legally sufficient as opposed to the strength of the plaintiff’s proof. Ultimately, after construing the complaint “liberally and presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences”, the Court of Appeals concluded the amended complaint was sufficient to survive the motions to dismiss.

August 6, 2014

Yet Another Tennessee Medical Malpractice Notice Case

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

This appeal arises from a healthcare liability action. At issue is the adequacy of the pre-suit notice, whether the partial summary judgment on the non-healthcare liability claims should have been set aside due to alleged concealment by the defendant, whether the plaintiff should have been permitted to amend the complaint and a motion for sanctions.

Plaintiff’s decedent, 46-year old Jana Johnson, awoke in the early morning hours of April 4, 2008 with severe chest, groin and leg pain. Her husband called an ambulance, and Ms. Johnson arrived via ambulance at Parkwest Hospital at 6:00 a.m. She was first examined by Dr. Daigle at 6:15 a.m. and a chest x-ray and blood work were ordered. The test results were conveyed to Dr. Daigle at approximately 6:30 a.m. and he then examined the decedent a second time. Concerned the decedent was suffering from a pulmonary embolism, Dr. Daigle ordered an immediate CT scan with IV contrast. The doctor gave the order to the unit clerk between 6:40 and 6:45 a.m. so that it could be transmitted to the imaging department.

Because of a shift change, the order did not get entered until 7:16 a.m. The decedent was taken to the imaging department at approximately 7:20 a.m., but for unexplained reasons the order was cancelled. At some point thereafter, Dr. Daigle inquired about the CT scan and was told by Nurse Wolfe that the decedent’s IV had “blown” and the decedent was insisting Nurse Irons be called to replace it. At 7:56 a.m., Nurse Wolfe paged Nurse Irons without a response. At 8:28, the decedent fell into severe distress and she died at 8:44, or nearly three hours after her initial arrival to the hospital.

August 5, 2014

Deficient Certificates of Good Faith in Tennessee

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

If a health care liability defendant moves to dismiss based on the failure to file a sufficient certificate of good faith, can the plaintiff nonsuit before the trial court rules on the motion? Davis v. Ibach, W2013-02514-COA-R3-CV (Tenn. Ct. App. July 9, 2014) is the latest opinion that says the answer is yes. Based on the various cases in which the question has been raised, it looks like the answer is “yes” in just about any circumstances:

– Where the plaintiff files a certificate of good faith but it is allegedly deficient. (Davis)

– Where the plaintiff fails to file a certificate of good faith at all. (Robles v. Vanderbilt University Medical Center, M2010-01771-COA-R3-CV, 2011 WL 1532069 (Tenn. Ct. App. Apr. 19, 2011))

July 28, 2014

Lawsuit Against Agent for Inadequate Insurance Limits

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

The case of Barrick v. State Farm Mut. Auto. Ins. Co. and Jones, No. M2013-01773-COA-R3-CV (Tenn. Ct. App. June 27, 2014) first begins in 2008, when the Barrick family was sued after their minor son accidentally killed a motorcyclist in a tragic crash while driving his father’s car. For over 20 years, the Barricks had been insured with State Farm through their insurance agent Thomas Jones. Unfortunately, however, at the time of the crash their policy limits for auto liability coverage was only $100,000 per person. The family of the deceased motorcyclist ultimately settled their lawsuit against the Barricks for a total sum of $200,000, with State Farm paying $100,000 and the Barricks paying the remaining $100,000 in excess of their policy limits.

Thereafter, the Barricks sued State Farm and their insurance agent, Mr. Jones, and asserted claims of negligence, negligent training and supervision (of Mr. Jones by State Farm), assumption of duty (because Mr. Jones had taken additional duties beyond those of an insurance agent by recommending and also selecting the Barricks’ insurance coverage limits), and violation of the Tennessee Consumer Protection Act (“TCPA”). The trial court eventually dismissed all of the Barricks’ claims by granting State Farm’s and Mr. Jones’ motions for summary judgment, and the Barricks appealed.

On appeal, the Barrick court affirmed dismissal of the negligence claim, based on consideration of two undisputed facts: (1) that the Barricks had procured State Farm insurance through Mr. Jones for over 20 to 25 years, and (2) that the Barricks received copies of their insurance policies, declarations pages, and renewal notices during this time period. Relying on Tennessee precedent from Weiss v. State Farm Fire & Casualty Company, 107 S.W.3d 503, 506 (Tenn. Ct. App. 2001) – which holds that an agent’s duty ends when the agent obtains insurance for plaintiffs and properly provides copies, notices, and declarations – the Barrick court held that State Farm and Mr. Jones did not owe a duty to the Barricks and therefore could not be liable for negligence.

July 25, 2014

Truck Driver Left Vehicle and Loses Protection Under UM Coverage

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

An over-the-road truck driver parked his truck on the shoulder of a road, got out, walked across a five-lane highway to a convenience store, purchased a soft drink and chewing tobacco, walked back across the highway towards his truck, but in the lane second-nearest the truck was struck by a vehicle which fled the scene. The truck driver was injured and sough coverage under his employer’s uninsured motorist policy. The UM carrier denied coverage and moved for summary judgment arguing that the truck driver was not entitled to coverage because he was not “occupying” a covered auto at the time of the accident. The policy defined “occupying” as “in, upon, getting in, on, out or off” a covered auto. The trial court granted summary judgment and the truck driver appealed. The case is Beech v. John Doe, No. M2013-02496-COA-R2-CV (June 11, 2014).

The issue on appeal was whether the truck driver was “upon” the truck at the time of the accident for purposes of uninsured motorist coverage. The court of appeals found he was not and upheld the trial court’s grant of summary judgment. The court of appeals looked at a number of other cases interpreting “upon.” Most notably, the court looked to Tata v. Nichols, 848 S.W.2d 649 (Tenn. 1993) in which the Tennessee Supreme Court found that the term “upon” when used to define “occupying” for purposes of UM coverage is ambiguous. The Supreme Court adopted four criteria for determining whether a person is “upon” a vehicle so as to “occupy” it:

(1) there is a causal relation or connection between the injury and use of the insured vehicle;

July 23, 2014

Tennessee Insurance Coverage Decision

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

In Cleveland Custom Stone v. Acuity Mutual Insurance Company, No. E2013-02132-COA-R3-CV (June 10, 2014), the Tennessee Court of Appeals considered a myriad of issues in a case concerning an insurance company’s failure to pay insurance proceeds to the Plaintiffs for a building destroyed by fire.

The business that owned the building sought to add insurance coverage for the building to the business’s existing insurance policy with Acuity when it purchased the building in 2007. The business used USIG, an agent of Acuity, to procure the coverage. USIG provided a certificate of insurance form at the closing of the sale of the building to the business.

Following the fire, Acuity denied payment and notified the business that it never had successfully added coverage for the building. Acuity also alleged that the business owners intentionally set the fire.

July 21, 2014

Fraudulent Concealment Exception to Medical Malpractice Statute of Limitations and Statute of Repose in Tennessee

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

In Robinson v. Baptist Memorial Hospital, No. W2013-01198-COA-R3-CV (July 11, 2014), the court addressed the fraudulent concealment exception to the statute of limitations and statute of repose for medical negligence actions in Tennessee. In this case, the defendant doctor erased the initial version of his consult note and changed his initial, incorrect, diagnosis of the decedent. During discovery, the plaintiff learned of this change and was granted leave to amend the complaint to add the defendant doctor and his medical practice as defendants. This amended complaint was filed around five years after the initial lawsuit was filed – outside of the one-year statute of limitations and three-year statute of repose for medical negligence claims in Tennessee.

Under Tennessee law, the doctrine of fraudulent concealment will toll the running of a statute of limitations. It tolls the statute when a defendant has taken steps to prevent the plaintiff from discovering that he was injured. There are four elements that must be met to prove fraudulent concealment:

(1) that the defendant affirmatively concealed the plaintiff’s injury or the identity of the wrongdoer or failed to disclose material facts regarding the injury or the wrongdoer despite a duty to do so;

July 10, 2014

Train Wreck. Divorce Trial. But I Repeat Myself

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

This is a decision about a divorce trial but we are reviewing it on Day on Torts because we always write about cases involving train wrecks.

Seriously, we will cover this case because it contains some useful reminders about (1) a party’s obligation when briefing issues on appeal; (2) the appropriateness of a court’s use of findings of fact and conclusions of law submitted by a party; and (3) discovery sanctions. The opinion is 31 pages long and a large portion of those pages are related to the tortured procedural history in the trial court. Rather than recount the history, below is just enough to give you a flavor of what the trial court was confronted with:

1. The parties had been married 32 years and had 3 grown children.