Day on Torts

March 24, 2014

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

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.

March 5, 2014

Tennessee Medical Malpractice Trial: The Third Time Is Not the Charm

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

Tennessee health care liability (formerly called medical malpractice) cases are tough. Tough because there is lots of sympathy for the defendant health care providers. Tough because the defendants spare no expense and thus they are expensive for patients to try. Tough because the health care providers hire excellent lawyers. Tough because rarely does a jury verdict end the case – there is almost always an appeal.

The case of Cullum v. Baptist Hospital System, Inc., M2012-02640-COA-R3-CV, 2014 WL 576012 (Tenn. Ct. App. Feb. 12, 2014).has been tried three times and each of the three times the verdict has been set aside and a new trial ordered. In the most recent trial, the jury returned a verdict of $7,974,505 against the defendants and the defendants appealed raising a number of evidentiary issues. The Court of Appeals decided two of them.

First, the trial court refused to allow the defendants to play a video of their expert’s testimony from the previous trial. Doctors are exempt from subpoena to trial under a Tennessee statute, Tenn. Code Ann. § 24-9-101. However, the trial court made a distinction between a treating doctor and a doctor testifying as an expert witness at trial, and ordered that the doctor was not exempt from trial and that he must testify live or not testify at all.

March 4, 2014

Tennessee Court of Appeals Upholds Punitive Damage Award On Due Process Grounds But Then Reduces It Because It Exceeded the Ad Damnum Clause

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

In Tennessee, punitive damages may be awarded only if a defendant has acted intentionally, fraudulently, maliciously, or recklessly. This must be proven by clear and convincing evidence. Several factors shall be considered, which are set out in the leading case Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992):

(1) The defendant’s financial affairs, financial condition, and net worth;

(2) The nature and reprehensibility of defendant’s wrongdoing, for example

March 4, 2014

Tennessee’s Prior Suit Pending Doctrine

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

The Tennessee Court of Appeals recently had the opportunity to discuss the doctrine of prior suit pending in a car wreck case, Farmers Insurance Exchange v. Shempert. The Shemperts filed suit for a wreck in which Mr. Shempert was injured and included his own uninsured motorist carrier, Farmers Insurance Exchange, as a defendant. After discovery in the first lawsuit, Farmers filed a separate declaratory judgment action seeking a ruling that the Shempert’s policy with Farmers provided no coverage for the wreck. The Shemperts filed a motion to dismiss the second case on the basis of the doctrine of prior suit pending.

The Court of Appeals explained that the doctrine of prior suit pending provides that an action is subject to being dismissed if a prior lawsuit involving the same parties and the same subject matter is pending. The first lawsuit must be pending in a court that has jurisdiction over the subject matter and the parties.

The Court of Appeals found that the first lawsuit did include the issue of whether the Farmers policy provided coverage for the wreck, and that Farmers had raised coverage as a defense in the first lawsuit. Also, the court noted that the court in the first lawsuit had jurisdiction over the parties and the subject matter. Therefore, the court reversed the entry of summary judgment for the insurer in the declaratory judgment case and remanded it to the trial court to be dismissed.

March 3, 2014

Tennessee Defamation Law and Legislative Immunity

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

You don’t see a lot of defamation cases winding their way up Tennessee appellate courts. Rarer still are defamation cases decided entirely on an affirmative immunity defense. Miller v. Wyatt hits both those marks, so it’s worthy of a crash course in legislative immunity even though it’s a very fact-specific result.

Defendant, a City Councilman, placed on item on the Council’s meeting agenda to discuss campaign ads for the City Mayor’s race. Defendant explained that he wanted to address a political ad placed by another City Councilman who was running for Mayor. Defending the ad, the candidate pulled out a letter written by Plaintiff, a former City Manager referring to the incumbent mayor as “the most ethically challenged, ego-mani[a]cal, narcissistic elected official I have ever know.” (We haven’t gotten to the allegedly defamatory stuff yet, by the way.) Defendant responded at the meeting by saying that Plaintiff “was discharged from City Manager up here because of misappropriating funds and not following procedures.” (There’s the allegedly defamatory part.)

Plaintiff sued Defendant for slander. The trial court granted summary judgment to Defendant based on the legislative privilege, and Plaintiff appealed.