Day on Torts

July 9, 2014

Defendant’s Lie Under Oath May Be A Sin, But It Is Not Admissible in MVA Trial

This appeal arises from a December 24, 2010 motor vehicle accident involving a vehicle driven by Johnny Miller and another vehicle driven by Mr. Moretz. The cause of the accident was hotly contested with both parties claiming the other to be at fault. As for damages, Mr. Miller and his wife, who was a passenger in the vehicle, claimed they sustained soft tissue injuries. The jury returned a verdict finding Mr. Moretz to be 10% at fault and Mr. Miller 90% at fault. As to Mrs. Miller, the jury found zero damages. On appeal, the Millers took issue with a ruling regarding Mr. Moretz’s prescription drug use on the day of the accident and the trial court’s failure to grant an additur or a new trial on damages as to Mrs. Miller.

Mr. Moretz’s Prescription Drug Use on the Day of the Accident.

During discovery, the Millers served interrogatories on Mr. Moretz. One interrogatory asked whether Mr. Moretz had consumed any alcohol or drugs in the twelve hours prior to the accident. Mr. Moretz denied doing so. Under oath in his deposition and for a second time, Mr. Moretz denied drug use on the day of the accident. Prior to trial, Mr. Moretz moved in limine to prohibit the plaintiffs from introducing any evidence he had taken oxycodone on the day of the accident. Mr. Moretz’s offered that his personal physician had told him he could drive while taking the medication and he provided a letter for his employer to that effect. In support of the motion in limine, Mr. Moretz argued that mere use was insufficient and impairment had to be demonstrated for the prescription drug use to be relevant.

July 8, 2014

Health Care Liability Expert Need Not Know Community Statistics from Date of Alleged Injury to Testify in Tennessee Medical Malpractice Case

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

As far as I can remember, Evans v. Williams, No. W2013-02051-COA-R3-CV (Tenn. Ct. App. June 30, 2014),is the first and only case dealing with whether a health care liability expert must be familiar with demographic information about the defendant’s community from the time the alleged malpractice occurred. To be sure, the injury in this case occurred in 1991, twenty-two years before it was finally tried in 2013. Even with that much time, though, the Court of Appeals held that present day statistics are sufficient to establish an expert’s familiarity with a defendant’s community or a similar community.

At the trial of Evans, the trial judge granted Defendants’ motion to exclude one of Plaintiffs’ standard of care experts. The trial judge ruled that the expert was not familiar with the standard of care in Defendants’ county or a similar community when the treatment was rendered in the early 1990s. The trial judge denied Plaintiffs’ motion to exclude one of Defendants’ standard of care experts. The jury returned a verdict of no liability.

The Court of Appeals looked to Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011), for competency requirements under Tenn. Code Ann. sec. 29-26-115.

July 4, 2014

Tennessee Law of Civil Trial Book

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

Tennessee Law of Civil Trial has been printed and is now available for purchase.

The 500+ page book is largely a discussion of the law of trying civil cases in Tennessee – the law of scheduling orders, pretrial conferences, jury selection, opening statement and closing arguments, use of depositions at trial, and more.

The book does touch on some aspects of the law of evidence, but candidly the book largely leaves that topic to other texts. Instead, this book is designed to be a reference guide that judges and lawyers can turn to for a ready reference on the substantive law of trial.

July 2, 2014

Case Dismissed Because Plaintiff Sent Notice by FedEx Instead of U.S. Postal Service

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

In Arden v. Kozawa, M.D, No. E2013-01598-COA-R3-CV (Tenn. Ct. App. June 18, 2014), Plaintiff in a health care liability action appealed after his lawsuit brought on behalf of his deceased wife was dismissed at trial for failing to strictly comply with Tennessee’s pre-suit notice requirements.

Plaintiff’s wife was allegedly negligently treated by a doctor at a hospital for abdominal pain and she later died from pancreatitis and other complications. Prior to the statute of limitations, plaintiff sent pre-suit notice letters to the doctor and hospital, as required by TCA statute 29-26-121. However, there were four problems with the pre-suit notice letters: (1) plaintiff omitted his own address from the notice letters; (2) the doctor’s letter was sent to an address that was different from the listing on the Tennessee Department of Health website; (3) the provider’s list accompanying the letters did not include the hospital’s address; and (4) there was no certificate of mailing from the U.S. Postal Service because the letters were sent via Federal Express. The trial court dismissed plaintiff’s case at summary judgment based on plaintiff’s failure to strictly adhere to the requirements of the pre-suit notice statute, and plaintiff appealed.

The Tennessee Court of Appeals first observed that the trial court had wrongly applied the “strict compliance” standard to the pre-suite notice requirements, instead of the correct “substantial compliance” standard as previously held by Tennessee’s Supreme Court in Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, No. M2012-02270-SC-R11-CV, 2014 WL 1632183 at *6-7 (Tenn. Apr. 24, 2014). Reviewing the content of plaintiff’s pre-suit notice letters in light of the correct “substantial compliance” standard, the appellate court ruled that defendant doctor and hospital were not prejudiced by plaintiff’s failure to include his own address and the hospital’s address on the providers list and, therefore, the content in plaintiff’s notice letters had substantially complied with the pre-suit notice requirements of 29-26-121.

June 24, 2014

Just Give Him the Dang Forms!

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

Mr. Fleming needed medical forms completed for his workers’ compensation case. He submitted the forms to the defendants but after “20 or more days” he had still not received the completed forms and his phone calls were not being returned. Consequently, a frustrated Mr. Fleming filed a civil warrant in Shelby County General Sessions Court alleging “dereliction of duty, negligence and conspiracy”, which had caused him “financial and stressful harm.” Seven months later, in January of 2012, the Defendants filed a motion to dismiss based on the Tennessee Medical Malpractice Act (TMMA). Defendants argued Mr. Fleming had failed to provide written notice of the claim and had failed to supply a good faith certificate. The case was dismissed by the General Sessions judge.

Undeterred, Mr. Fleming appealed to Shelby County Circuit Court. In July of 2012, the Defendants again filed a motion to dismiss with the same arguments made in the General Sessions matter. A month later, the Court held a hearing. At the beginning of the hearing, Mr. Fleming was finally given his completed forms which he had been pursuing for more than one year. Since he had finally received the paperwork, Mr. Fleming did not oppose the motion to dismiss. As such, the trial court entered an order granting the unopposed motion to dismiss and citing the failure to comply with the TMMA.

But that was not the end of the matter because the trial court assessed costs against Mr. Fleming. In response to the assessment of costs, Mr. Fleming filed a “Motion for Judicial Review” In his motion, Mr. Fleming outlined his efforts to obtain the records which included 2 court appearances, 15 phone calls to the Defendants and an appointment with Dr. Sanai. Since he ultimately obtained the relief he sought (his medical forms) at the hearing on the motion to dismiss, Mr. Fleming argued he was the prevailing party and costs should not have been assessed against him. The Defendants opposed Mr. Fleming’s motion citing the trial court’s order granting the motion to dismiss based on the failure to comply with the TMMA. After a hearing, the trial court denied Mr. Fleming’s Motion for Judicial Review.

June 13, 2014

John Day’s New Book – Tennessee Law of Civil Trial

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

My newest book, Tennessee Law of Civil Trial, will be released on July 1, 2014 and may be ordered now for July 1 delivery.

The book consists of 500+ pages of the law of civil trial in Tennessee, covering the law of scheduling orders to the law of motions for a new trial or judgment notwithstanding the verdict. Also included is a chapter called "Preparing to Win At Trial" which consists of over 75 tips that I have developed over the years and multiple forms and checklists.

Click on the link to see the Table of Contents.

June 6, 2014

Memphis Premises Liability Case Fails

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

In the recent premises liability opinion of Wolfe v. Felts, Jr. No. W2013-01995-COA-R3-CV (Tenn. Ct. App. May 29, 2014), the court of appeals affirmed a trial court’s decision to grant directed verdict in favor of defendants in a case where plaintiff fell on ice that had formed in front of defendants’ building after the building’s sprinkler system had activated during freezing temperatures.

The plaintiff in Wolfe did not argue, as is customary in most premises cases, that defendants had actual or constructive knowledge of the dangerous condition (the sprinkler system operating in freezing temperatures). Instead, plaintiff argued that defendants had created the dangerous condition by negligently failing to properly manage the sprinkler system. Tennessee law holds that a plaintiff is not required to prove that a premises owner had prior notice of a dangerous condition if the premises owner created the condition that caused plaintiff’s injury.

However, according to the appellate court, plaintiff’s case failed because there was no evidence as to what constituted proper sprinkler management or maintenance so as to establish that improper sprinkler management or maintenance had caused the sprinkler to malfunction.

June 4, 2014

Amended Medical Malpractice Complaint Not Subject to Certificate of Good Faith Requirement when Initial Action was Filed Before October 1, 2008

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

Tenn. Code Ann. Sec. 29-26-122 requires medical malpractice complaints to be supported by a certificate of good faith. This statute became effective October 1, 2008, yet because health care cases can linger for years in pre-trial stages, many cases filed before that date are still active. The Tennessee Court of Appeals recently considered how the certificate of good faith statute affects amended pleadings in cases originally filed before October 1, 2008.

In Rogers v. Jackson, No. M2013-02357-COA-R3-CV (Tenn. Ct. App. May 19, 2014), plaintiff filed a medical malpractice suit regarding the death of his wife. The original complaint was filed on February 1, 2008. Defendants filed an answer, then on October 2, 2008 moved to amend their answer to assert comparative fault against a second doctor’s group as well as the deceased patient. The motion to amend was granted. Based on this amended answer, plaintiff filed an amended complaint on December 29, 2008, adding this additional doctor and his group as defendants in the suit.

Arguing that the amended pleadings were filed after the implementation of the certificate of good faith requirement, the added defendants filed a motion to strike the allegations of fault in the amended answer and amended complaint based on the argument that no certificates of good faith were filed regarding the claims against them. The trial court denied the added defendants’ The Tennessee Court of Appeals, however, affirmed the trial court’s decision to allow the case to proceed against the defendants named in both the original and the amended complaint.

June 3, 2014

Can The Owner of LLC Also Be A Defendant in a Tort Action Against the LLC?

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

The plaintiff in Akers v. McLemore Auction Co., LLC, No. M2012-02398-COA-R3-CV (Tenn. Ct. App. May 27, 2014) chose to hire an auction company to sell his real and personal property that the plaintiff valued at more than $350,000, but chose to go pro se in suing the auction company. That might explain why the appellate opinion needed ten pages to summarize – and affirm – the trial court’s Tenn. R. Civ. P. 12.02(6) dismissals on the plaintiff’s four claims against more than twenty defendants.

One potentially helpful nugget for other cases is the appellate court’s discussion of the dismissal of claims against an individual defendant affiliated with the auction company. The plaintiff alleged, in pertinent part, that the individual defendant was a “person” who called himself the auction company’s President, but who was really the sole member of the auction company’s LLC. The trial court dismissed the claims against the individual defendant under Rule 12.02(6), finding there were no facts to support the plaintiff’s allegation that the defendant “was acting outside his capacity as agent for [the auction company] at any time.”

The Court of Appeals concluded that the trial court erred on this point. A trial court is bound to review only the complaint for purposes of Rule 12.02(6), and nothing in the complaint alleged that the individual defendant was ever acting on behalf of the auction company. For this reason, he should not have been dismissed.

May 30, 2014

Spoliation of Evidence in Tennessee: Intent v. Prejudice

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

What is it with drillers and spoliation of evidence cases? First it was Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc. which is a Tennessee leading case on the subject. And now, we have a new spoliation case with a different drilling company, Griffith Services Drilling, LLC v. Arrow Gas & Oil, Inc. So, let’s drill down on this issue a bit, shall we?

Griffith Services Drilling, LLC (Griffith Drilling) and its insurance carrier sued Arrow Gas & Oil, Inc. (Arrow) for $1.2 million in property damage caused by a fire. On the day of the fire, an Arrow employee, Mr. Burress, delivered fuel to Griffith Drilling. During the refueling, Burress walked away to converse with some of the Griffith Drilling employees. Shortly thereafter, a Griffith Drilling employee yelled that fuel was spraying and a fire ignited. When Burress moved the Arrow truck to get it away from the fire, the fuel nozzle broke off. The next day, Burress took the broken nozzle to a retailer and traded it in for a new nozzle. Griffith Drilling was not provided any notice of Arrow’s intent to replace the nozzle.

After the fire and without notifying Arrow, Grifftih Drilling’s insurance carrier authorized clean up of the site and disposed of all evidence of the fire. One month after the clean-up was completed, Griffith Drilling sent Arrow a notice of its intent to pursue a claim for the fire damage. Suit was eventually filed and Arrow counterclaimed for breach of contract as Griffith Drilling had failed to pay for the fuel delivered to the site. Thereafter, Arrow filed two motions: (1) a motion to dismiss for spoliation of evidence based on Griffith Drilling’s clean up of the site; (2) a motion for summary judgment on the breach of contract counterclaim. The trial court granted both motions. Griffith Drilling appealed alleging the trial court erred by granting both motions.