Day on Torts

May 27, 2014

Failure to Read a Motion is Not Excusable Neglect under Tennessee Law

Rule 60.02(1) of the Tennessee Rules of Civil Procedure allows the court to relieve a party from a final judgment or order on grounds of “mistake, inadvertence, surprise or excusable neglect.” This is the rule that the plaintiffs attempted to rely on to set aside an order dismissing their case in Brown v. Juarez, No. E2013-00979-COA-R3-CV (Tenn. Ct. App. Apr. 10, 2014).

In Brown, after about three years of inactivity in the case, the defendants filed a motion to dismiss the case for failure to prosecute. The motion included a notice of hearing and a statement that the motion would be granted if there was no response. Plaintiffs’ counsel received the motion but failed to file a response and did not appear at the hearing. Plaintiffs’ counsel argued that the notice was crafted to conceal the hearing date. The court was not persuaded by that argument. Nor was the court persuaded by the argument that the plaintiffs’ failure to appear and to respond was due to “mistake, inadvertence, surprise or excusable neglect.”

The court noted that an absence of willfulness does not equate to neglect that is excusable. So, while the court found that plaintiffs’ counsel did not willfully fail to appear or respond to the motion, the court found that the neglect was not excusable because had plaintiffs’ counsel read the entire motion, he would have noticed the hearing date. Thus, the court concluded that the plaintiffs failed to prove entitlement to relief under Rule 60.02 and upheld the dismissal.

May 23, 2014

Failure to Timely Appeal Results in Dismissal

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

In Wright v. Dunlap, No. M2014-00238-COA-R3-CV (Tenn. Ct. App. April 30, 2014), a jury rendered a defense verdict in plaintiff’s car crash case. The trial court entered a judgment dismissing the case, and then Plaintiff’s case was dismissed on appeal because of her failure to take appropriate action within 30 days following entry of the trial court’s judgment.

After the entry of an adverse final judgment, Tennessee law requires that a notice of appeal be filed within 30 days from the entry of the judgment. However, there are various motions a party can file with the trial court that will extend the deadline to file the notice of appeal as long as the motions are filed within 30 days of the judgment. These motions are listed in Tenn. R. App. P. 4(b) and Tenn. R. Civ. P. 59.01. Once the trial court rules on the motion, the party then has 30 days from the entry of the order on the motion to file the notice of appeal.

The trial court’s judgment was entered on October 11, 2013. Plaintiff’s Rule 59 motion to alter or amend was filed more than thirty days later on November 15, 2013. Plaintiff argued on appeal that the Rule 59 motion was timely because a duplicate judgment virtually identical to the October 11, 2013 judgment was entered on October 22, 2013. However, the appellate court disagreed. Tennessee case law holds that where two substantially identical judgments are entered, the time for filing a notice of appeal or Rule 59 motion begins to run upon entry of the first judgment. Ball v. McDowell, 288 S.W.3d 833, 838 (Tenn. 2009). The later entry of a virtually identical judgment that doesn’t affect the parties’ substantive rights or obligations resolved by the first judgment does not extend the time for filing a Rule 59 motion or notice of appeal.

May 22, 2014

Article on Countering Adverse Authority

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

Each one of us has, from time to time, picked up a brief written by an opponent and felt a sharp pain in the chest – our opponent has landed what seems to be a mortal blow.

This article – "The Best Lawyers Demonstrate the Best Ways to Attack Adverse Authority" – explains what to next. It is excellent.

May 21, 2014

Tennessee Certificate of Good Faith Statute – Extension of Time To File Amended Certificate Granted

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

The Tennessee Court of Appeals has affirmed a trial court’s decision to grant an extension to file certificate of good faith in a medical malpractice case, finding “good cause” based on parties’ confusion on Tennessee case law.

In Stovall v. UHS of Lakeside, LLC , No. W2013-01504-COA-R9-CV (Tenn. Ct. App. April 22, 2014), the Tennessee Court of Appeals rejected defendant medical providers’ attempts to dismiss plaintiff’s medical malpractice suit for failure to strictly comply with the certificate of good faith requirements set forth in Tennessee’s health care liability act.

In December 2010, Mrs. Stovall filed a medical malpractice suit against defendants for allegedly causing the death of her husband. A certificate of good faith was filed with the complaint, as required by Tenn. Code. Ann. §29-26-122(d)(4). That statute states that “the certificate of good faith shall disclose the number of prior violations of this section by the executing party.” Here, however, the certificate attached to the complaint did not assert that Mrs. Stovall’s counsel had no prior violations of the good faith certificate statute.

May 21, 2014

Delaware Court Reminds Tennessee Lawyers That Causation Must be Established in Cancer Malpractice Cases

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

Our office is fortunate to be sought out in a large number of Tennessee medical malpractice cases involving cancer. Most of the cases involve a delay in the diagnosis of cancer, that is, that the patient presented with certain symptoms or physical findings that should have triggered a diagnosis of cancer earlier than the cancer was actually diagnosed.

Our internal review of these cases often cause us to conclude that the health care provider failed to properly and / or promptly respond the the patient’s complaints, condition and symptoms. Where we often get hung up, however, is what lawyers causally call the "so what?" question. In other words, even if we can establish that an error was made, how did the delay in diagnosis (and the start of treatment) harm the patient?

We know, or at least think we know, that prompt treatment is good and delayed treatment is bad. Prompt treatment cannot start without prompt diagnosis. Thus, the thought goes, a delay in diagnosis always harms the patient because treatment was by definition delayed.

May 15, 2014

Tolling of Statute of Limitations Not Lost by Failure to Comply with Return of Process Rule

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

Although Rule 4.03 of the Tennessee Rules of Civil Procedure requires return of process within ninety days of its issuance, a plaintiff failing to comply with this standard may still keep his or her case alive under Rule 3. In the recent case of Monday v. Thomas, the Tennessee Court of Appeals explored the interplay between Rules 3 and 4.03. A plaintiff in Monday had been hit by a truck driven by an individual, and plaintiffs alleged the truck was owned by three other individuals and/or two businesses. In total, the plaintiffs named and alleged fault against 6 defendants (the driver, three individual owners, and two business owners).

Plaintiffs filed suit within the appropriate one-year statute of limitations, and initially had six summonses issued in September 2010. In May 2011, the plaintiffs had four alias summons issued against the driver, two of the individual owners, and one of the business owners. In January 2012, another set of alias summonses was issued, this time to the driver, one of the individual owners and the business owner included in the 2011 summonses, and one of the individual owners who was not included in the 2011 summonses. Finally, in November 2012, process was issued to the individual owner who was included in the May 2011 summonses but excluded from those issued in January 2012.

Rule 4.03(1) of the Tennessee Rules of Civil Procedure requires that a summons, even if not served, be returned to the court within ninety days of issuance. Rule 3 provides that if process is not served within ninety days of being issued, plaintiffs cannot rely on their original filing to toll any statutes of limitation “unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process.”

May 13, 2014

You’ll Get Nothing and Like It!

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

It is a classic line in the movie Caddyshack, but it quickly sums up the end result in this case too. This is a two car, intersection case in which both drivers sought damages from the other. After a two day trial, the jury returned a verdict finding both the plaintiff and the defendant 50% at fault. Plaintiff filed a motion for new trial which was denied. An appeal followed.

The following relevant facts were established at trial:

1. Plaintiff was traveling south on U.S. 11-E with the intention of turning right on Allison Road.

May 12, 2014

How NOT to Handle an ERISA Subrogation Lien

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

Georgia lawyer David T. Lashgari thought it was a good idea to distribute $500,000 in personal injury settlement proceeds knowing that there was an ERISA-protected subrogation interest for $180,000.

Then he thought it was a good idea to fight an effort by the subrogee to get the money from him and his client.

Then he thought it was a good idea not to obey a court order that required him and his client to put $180,000 into his trust fund pending final judgment in the case. (He said he and his client didn’t have the money.)

May 6, 2014

After this Case, the Wedding is Going to be Pretty Awkward

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

This is a slip and fall case. The plaintiff was engaged to the defendants’ daughter. On multiple occasions, the defendants had hosted the plaintiff at their lake home for extended visits. In the summer of 2010, the plaintiff was again the invited guest of the defendants. Shortly before his visit, the power company had cut down numerous trees and bushes on the property but failed to remove them. In an effort to make himself useful, the plaintiff began helping his fiance’s mother remove the brush and trees. While performing the work, the plaintiff slipped on a large rock on the ground and fell and broke his arm in two places. The following facts were not in dispute:

· The plaintiff had worked in that area for two or three days before the fall.

· The accident occurred in the daylight.

April 29, 2014

Tennessee Adopts Statute of Repose for Malpractice Claims Against Attorneys and Accountants

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

Effective July 1, 2014 state law will grant Tennessee lawyers and accountants a five-year statute of repose for malpractice claims. The only exception is for fraudulent concealment by the defendant, in which event the claim must be filed within one year of the date of discovery.

A one year statute of limitations still applies in malpractice cases against lawyers and accountants and the discovery rule is still applicable to those claims. However, the new statute of repose cuts off the right of the claimant five years after the negligent act or omission occurred (absent fraudulent concealment).

Presumably, the test for fraudulent concealment for accountants and lawyers would be the same as it is for physicians and other health care providers. Here is the test for health care providers: a plaintiff must establish that (1) the health care provider took affirmative action to conceal the wrongdoing or remained silent and failed to disclose material facts despite a duty to do so, (2) the plaintiff could not have discovered the wrong despite exercising reasonable care and diligence, (3) the health care provider knew of the facts giving rise to the cause of action and, (4) a concealment, which may consist of the defendant withholding material information, making use of some device to mislead the plaintiff, or simply remaining silent and failing to disclose material facts when there was a duty to speak." Shadrick v. Coker, 963 S.W.2d 726, 736 (Tenn. 1998).