Day on Torts

April 1, 2014

Preserving Timely Filings of Tort Actions in Tennessee General Sessions Court

The Tennessee Court of Appeals recently held that a General Sessions plaintiff cannot skip the procedure for filing unserved process to avoid letting the statute of limitations run.

Tenn. Code Ann. § 16-15-902 requires a plaintiff in General Sessions court to return process within 60 days of issuance. § 16-15-902 does not explicitly state that a plaintiff must return the process if it is unserved. Under Tenn. Code Ann. § 16-15-710, however, a plaintiff who does return process as unserved must take action to rely on the original filing date for the statute of limitations. Once the plaintiff returns the process as unserved, the plaintiff has to either have process reissued within 9 months or refile the case within one year.

In Gates v. Perry, No. 2013-01992-COA – R9-CV (Tenn. Ct. App. March 26, 2014) the plaintiff never filed the unserved process with the court, and instead had a new warrant issued eighteen months later. The plaintiff argued that, since he never filed the unserved process, Tenn. Code Ann. § 16-15-710 was never triggered. The trial court agreed, and denied a motion to dismiss by the defendant.

March 31, 2014

Close Enough for Horseshoes and Hand Grenades: Substantial Compliance Rather Than Strict Compliance in HealthCare Liability Case

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

This is yet another Tennessee medical malpractice (health care liability) notice case and the issue is whether strict compliance is required for T.C.A. § 29-26-121 (a)(3) and (4), which requires an affidavit from the party mailing the notice. The underlying procedural facts were not in dispute: plaintiff fully and strictly complied with the pre-suit notice provisions of T.C.A. § 29-26-121(a) but failed to simultaneously file an affidavit of the party mailing the pre-suit notice. Instead, the plaintiff filed it after the notice was given and before the defendants filed any responsive pleading. In response, the defendants filed a “gotcha” motion to dismiss arguing the failure to simultaneously file the affidavit required a dismissal of the case.

The trial court disagreed noting the error had been remedied prior to the defendants filing a responsive pleading and ultimately finding the plaintiff had complied with the notice provision of the Act. An interlocutory appeal was granted pursuant to Rule 10 and the Court of Appeals made quick work of the issue relying on the Tennessee Supreme Court’s decision in Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., No. M2012-00582-SC-SO9-CV, 2013 WL 61580000.

In Stevens, the Tennessee Supreme Court had been asked to decide whether strict compliance was required with T.C.A. § 29-26-121(a)(2)(E) (the HIPPA compliant medical authorization section of the Act). Ultimately, the Tennessee Supreme Court held that substantial compliance rather than strict compliance was all that was required for that particular section because the provision was non-substantive and no prejudice had befallen the defendants as a result of the non-compliance.

March 28, 2014

Tennessee Medical Malpractice Case Rich With Law on Speculative Damages, NIED Claims and Whether Disruption of Family Planning Is A Valid Claim

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

Memphis, Tennessee medical malpractice cases always seem to have a more than their fair share of twists and turns. This health care liability case has more twists and turns than the Cherohala Skyway TN 165 / NC143 from Tellico Plains to Robbinsville ( a great road for our motorcycling friends).

During her third pregnancy, Plaintiff Michelle Rye was under the care of Dr. Diane Long, a physician with Women’s Care Center of Memphis. Because Ms. Rye has Rh negative blood, the standard of care dictated she be given a RhoGAM injection during her pregnancy. The defendants failed to give Ms. Rye the RhoGAM injection and she developed Rh-sensitization as a result. Rh-sensitization is a condition in which, if the in utero child has Rh positive blood, the mother’s antibodies attack the baby’s blood cells causing injury to the baby.

The defendants admitted they failed to comply with the standard of care but denied the plaintiffs had suffered any damage. In particular, in support of their motion for summary judgment, the defendants attached the affidavit of Dr. Stovall who opined it could not be said with any reasonable degree of medical certainty that any Rh-sensitized female would ever sustain any injuries or damage and the same was true even if the woman conceived another child as the child would have to have Rh-positive blood for the condition to be in play.

March 25, 2014

Tennessee Defamation Case Flushed

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

In Nardone v. Cartwright, et al., No. E2013-00522-COA-R3-CV (Tenn. Ct. App. March 17, 2014), Plaintiff sued his previous employer for slander (spoken defamation) and libel (written defamation). The case arose after Plaintiff quit his job and was told that he would not receive his final paycheck until he turned in his uniforms. The employer’s office manager was then informed by the Tennessee Department of Labor that it could not withhold plaintiff’s paycheck pending plaintiff’s return of the uniforms and was also advised to contact the police to seek assistance in getting plaintiff to return the uniforms. Employer then contacted Knox County Sheriff’s Office. The officer who took the call keyed in information to create a report, and in the section labeled “primary offense” the officer selected “theft from business by employee.” The employer did not request that plaintiff be prosecuted, nor did the employer say that plaintiff was guilty of theft.

After plaintiff’s lawyer returned the uniforms, plaintiff filed suit against employer alleging that he had been defamed by the report. At trial, plaintiff admitted that nothing in the narrative of the report was untrue. Plaintiff also testified that he still had his job with his new employer after leaving the defendant and also that he was making more money at his new job. No evidence was submitted to show plaintiff’s reputation was damaged, and plaintiff could not name one person who thought less of him as a result of the report.

Finding no evidence in the record to support a case of libel, and because the six-month statute of limitation had run on the slander allegation, the trial court granted employer’s motion for directed verdict and dismissed plaintiff’s case. Plaintiff appealed the dismissal of his libel claim, but the appellate court affirmed the trial court’s decision.

March 24, 2014

Party Seeking to Compel Arbitration Under Tennessee’s Uniform Arbitration Act Must Specifically Request Such Relief to Preserve Issue For Appeal

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

A defendant’s failure to seek appropriate relief when filing a motion to dismiss deprived the Tennessee Court of Appeals of jurisdiction to hear the dispute.

Plaintiff was a family owned limited partnership that held a rare collection of William Eggleston photography. The family partnership contracted with Defendant Christie’s Inc., the world renowned auction company, to sell a dozen Eggleston’s photos. After the works arrived for auction in New York, Christie’s decided to remove five of the prints from the scheduled list of items up for sale, and then later Christie’s withdrew six more after their authenticity was called into question by the Eggleston Artistic Trust. Only one of the partnership’s photographs was auctioned and allegedly the other eleven were not returned by Christie’s. The family partnership then sued Christie’s for its refusal to honor the agreement to auction the Eggleston photographs.

The agreement between the parties had an alternative dispute resolution provision. Christie’s moved to dismiss but did not ask the court to compel arbitration or stay the litigation. The trial court denied Christie’s motion, finding that the language in the agreement bound only Christie’s, and not the family partnership, to submit a dispute to mediation. The court ruled that, because mediation was a condition precedent to arbitration, the family partnership was not required to arbitrate the dispute.

March 12, 2014

Should Defense Counsel Be Permitted to Have Ex Parte Communications With a Patient’s Health Care Providers?

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

Health care liability attorneys for defendants want the right to have private meetings with the doctors of patients who sue health care providers. Not just with the doctors who were sued, but also the other doctors who treated the patient over the years.

The Tennessee Supreme Court ruled years ago that the patient’s privacy rights did not permit this type of activity. Then, the Tennessee legislature got involved and passed legislation (T.C.A. Section 29-26-121(f)) that lawyers for medical malpractice defendants maintain opened the door to ex parte communications with the the medical malpractice plaintiff doctors and other health care providers. The issue are further complicated by the federal law known as "HIPPA," and whether this federal law which recognizes a consumer’s right to privacy regarding health care information preempts the Tennessee state statute.

T.C.A. Section 29-26-121(f) creates a host of problems and the courts are struggling with how to interpret it. Attached is a collection of documents on this issue, all generated out of one case presided over by Judge Thomas Brothers of the Circuit Court for Davidson County, Tennessee. The lawyers for the patient are Matt Hardin, ably assisted on this issue by Amy Farrar. The defendant in the case is The Vanderbilt University, represented by Steve Anderson. The case is on its way to the Court of Appeals.

March 11, 2014

Slip and Fall Cases and Ice

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

A plaintiff’s verdict in a slip-and-fall case against the county school board was recently overturned by the Tennessee Court of Appeals in Traylor v. Shelby County Board of Education, No. W2013-00836-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014). Plaintiff was a sophomore at Bolton High School in Shelby County when he slipped on a patch of black ice on the school’s sidewalk and broke his ankle. The incident occurred on a Thursday morning while plaintiff was walking to his next class on a normal route that received heavy foot traffic. The school had been closed the previous Monday and Tuesday due to freezing temperatures and an inch and half of frozen precipitation. There were no reports of ice on the sidewalk and no incidents during the preceding Wednesday or on Thursday morning before plaintiff’s fall.

Plaintiff’s case was tried before a judge and not a jury, just like all cases against local governmental entities under Tennessee’s Governmental Tort Liability Act (“GTLA”). The trial judge ruled that the school did not fulfill its duty to maintain a safe premises after having constructive knowledge of the unsafe condition and therefore awarded the plaintiff and his father a total of $76,000 in compensatory damages.

There were three ways that the plaintiff could prove that the school had constructive knowledge of the dangerous condition that was the ice on the sidewalk leading to plaintiff’s fall. First, the plaintiff could have established that the school caused or created the condition. Second, the plaintiff could have proven that the condition existed for a sufficient amount of time that the school should have become aware of it (“the passage of time theory”). Third, and finally, the plaintiff could have shown that the ice was a common occurrence, recurring condition, or a generally continuing dangerous condition of which the school should have been aware (“common occurrence theory”).

March 8, 2014

A Proposed Cure for an Emergency Room Doctor

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

Dr. Rebecca Hierholzer is an emergency room doctor who practices in Missouri (and perhaps Kansas). She reportedly believes that the citizens of Missouri – some of whom she has undoubtedly treated as patients, some of whom she may know socially – are incapable of following the law when called to serve as jurors. She reportedly believes her fellow citizens should be restricted from awarding the fair value of pain, suffering, disfigurement and loss of enjoyment of life by the imposition of arbitrary caps on compensatory damages.

Now, there are lots of doctors who share that view (and, by the way, lots that do not). So the fact that a doctor does not trust jurors is not something causes a blip on my radar screen. Telling me that a doctor wants to limit responsibility for medical errors is like telling me that he or she wears a white coat at work.

So why write about Dr. Hierholzer? I write because of the remarks attributed to her in an article in the St. Louis Post Dispatch about her effort to limit the rights of jurors, the injured and the dead in Missouri:

March 7, 2014

Another Day, Another Tennessee Medical Malpractice Notice Case

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

Long story short, Givens v. Vanderbilt Univ. M2013-00226-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014), is a medical malpractice case that was dismissed without prejudice for failure to give pre-suit notice, since that is the appropriate remedy identified by the Tennessee Supreme Court in Stevens v. Hickman Community Health Care, Inc., – S.W.3d –, 2013 WL 6158000 (Tenn. Nov. 25, 2013).

Because Plaintiffs did not make any attempt to give pre-suit notice, the Court of Appeals rejected Plaintiffs’ claim that the failure to give notice should be excused for extraordinary cause under Tenn. Code Ann. Sec. 29-26-121(b). Plaintiffs previously used their savings statute by way of a voluntary nonsuit in the case, so the Court of Appeals acknowledged that dismissal without prejudice effectively makes the case time-barred.

The longer version is a painful tour down civil and appellate procedure, with multiple cases, dismissals, appeals, and remands. Suffice it to say that (based on prior appellate opinions applied to this case):

March 6, 2014

Agreements to Arbitration: “Good for the Goose, Good For the Gander” Rule Applied By Tennessee Court

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

You won’t see the "good for the goose, good for the gander" rule articulated as such in many court opinions. But stop by any courtroom in Tennessee on any motion day and you will hear it being argued by someone. It is a fundamental concept that is part of the law of equity.

And here, the gander got bit square in the ass – the absolute right result.

Plaintiff bought a mobile home and entered into a retail installment contract with Defendant CMH Homes who then assigned the contract to Vanderbilt Mortgage. Two years after the purchase, the plaintiff filed suit against both CMH Homes and Vanderbilt Mortgage alleging various theories of recovery including breach of express and implied warranties, violation of the Tennessee Consumer Protection Act, breach of contract and fraud. Plaintiff also alleged the retail installment contract was unconscionable and void. Defendants filed a motion to dismiss or to compel arbitration pursuant to the arbitration provision in the contract.