Day on Torts

February 10, 2014

Discovery of Information from Facebook Accounts in Personal Injury Cases

A Florida appellate court has recently restricted largely unfettered discovery from the Facebook account of a personal injury plaintiff who was filing suit because of injuries to her minor son. She also asserted her own claim for loss of parental consortium.

Root v. Balfour Beatty Construction LLC, 2014 WL 444005 (Fl. D.C.A. 2nd Feb. 5, 2014) Defendant served written discovery that sought access to social media accounts. The appellate court quashed an order permitting extensive discovery and suggesting that in camera review may be necessary to protect the privacy rights of the plaintiff. The opinion cites several cases and a recent article about social media discovery.

February 10, 2014

Tennessee Injury Case and Medical Malpractice Case Filings Continue to Decline

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

Tennessee personal injury and wrongful death filings are down again.

For the fiscal year ending June 30, 2013, there were only 9868 tort filings in Tennessee circuit courts. The total number of filings for the year ending June 30, 2012 was 9933 The 2013 number represents less than a 1% decrease from a year earlier.

But what is more revealing is a look at the numbers from 10 years ago. For the year ended June 30, 2004, there were 13,192 tort cases filed. Thus, in the last ten years, tort filings are down over 25%.

February 5, 2014

Tennessee Court of Appeals Does Not Award Attorneys’ Fees on Request to Admit Issue

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

This case is an example of when it is best to leave well enough alone. Along the tortured path of this case, the parties switched positions i.e, plaintiff became defendant and vice versa. To keep it simple, I am going to refer to Ms. Allain by her last name and the two doctors as simply "the doctors".

While undergoing a procedure at Vanderbilt University Medical Center, Ms. Allain was told by the treating physician that a guide wire had been left in a vein leading to her heart. The treating physician opined the guide wire had been left during a prior procedure at Williamson Medical Center. Thereafter, Ms. Allain filed suit against Williamson Medical Center and the doctors. Several months after filing suit, Ms. Allain learned the guide wire was actually left by another Vanderbilt Medical Center physician. As such, she took a voluntary nonsuit against Williamson County Medical Center and the doctors.

Rather than being satisfied with the dismissal of the case against them, the doctors waited exactly one year and then filed suit against Ms. Allain for malicious prosecution and abuse of process. Summary judgment was denied on the malicious prosecution case and the trial court denied interlocutory appeal. The Court of Appeals granted a Rule 10 application but ultimately affirmed the denial of the motion for summary judgment. Next, the Tennessee Supreme Court reached down and took the case. Ultimately, the Tennessee Supreme Court, in a case of first impression, ruled a voluntary nonsuit pursuant to Rule 41 of the Tennessee Rules of Civil Procedure is not a favorable termination on the merits for purposes of a malicious prosecution case. Therefore, the doctors could not prove an essential element of their case. The Tennessee Supreme Court remanded the case to the trial court with instructions to enter summary judgment in favor of Ms. Allain on the malicious prosecution case and for a final determination on the abuse of process case.

February 4, 2014

An Objection May Need To Be Asserted At Trial Even If A Motion in Limine Has Been Denied on the Issue

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

You file a motion in limine to exclude testimony of defendant’s expert witness. The motion is denied. Do you have to object to the testimony of the expert at the time he or she testifies to preserve the issue for appeal?

Maybe. The Wyoming Supreme Court has ruled that a later objection must be made unless the trial judge’s ruling excluding the testimony was "definitive." in Hicks v. Zondag, 2014 WY 16 (Jan. 28, 2014) the trial court denied the motion in limine but said that its ruling was without prejudice to the right to assert an objection at trial that the proposed evidence was cumulative or otherwise in violation of Rule 403. Thus, counsel has to object again when the witness testified to properly preserve the issue for appeal.

Tennessee has a similar rule. In Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000) then Judge Koch said that if “the trial court has not ‘clearly and definitively’ acted on the motion [in limine], the moving party must renew the motion contemporaneously with the introduction of the objectionable evidence. Failure to renew the motion will preclude the moving party from taking issue on appeal with the admission of the evidence.” This language was cited with approval in State v. Banks, 271 S.W.3d 90, 170 (Tenn. 2008) and Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 192, fn. 11 (Tenn. Ct. App. 2008).

February 3, 2014

Alabama Court Permits New Malpractice Trial After Defense Lawyer Violates Order

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

It takes a lot of time and money to get a medical malpractice (now called health care liability) case to trial in Tennessee. Thus, when such cases do get to trial, it is essential that the lawyers and parties follow the orders of the court concerning evidentiary matters such that the case is determined on what the court has ruled the jury should hear, not influenced by matters that the court has determined that the jury should not hear.

There are some lawyers, through ignorance, negligence or intentional misconduct, that violate court orders on motions in limine. To be sure, such an error can be innocent – in the heat of the battle, mistakes can be made. And sometimes there can be legitimate disputes on the meaning of a ruling, which reinforces the need for all involved – the judge and the lawyers – to have a firm grasp on the ruling before making any comment on the subject matter in the presence of the jury.

I do not know what gave rise to the violations of the court order in Mottershaw v. Ledbetter. 1110959 (Ala. S. Ct. 11/08/13, modified 1/17/14), The opinion tells us the following

January 29, 2014

Claim Against City of Memphis for Dangerous Pothole Rejected

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

There are many hurdles to successfully bringing a premises liability case in Tennessee, and often the most difficult of which is proving that the defendant had notice of the dangerous condition allegedly responsible for causing the plaintiff’s injuries.

In Merrell v. City of Memphis, Tennessee, No. W2013-00948-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2014), the court of appeals affirmed a bench verdict in favor of the defendant in a case where the plaintiff sued the City of Memphis for negligently failing to fix or warn about a pothole in the City’s road that caused the plaintiff’s motorcycle to crash.

Cases against local governmental entities are brought under Tennessee’s Governmental Tort Liability Act (“GTLA”), and they are decided by judges instead of juries. Further, the City, just like in all GTLA claims, was protected from suit under the doctrine of sovereign immunity unless the plaintiff was able to successfully argue that an exception to immunity applied. Here, the plaintiff was required to show, under Tenn. Code Ann. § 29-20-203, that the City’s had actual or constructive notice of the pothole.

January 27, 2014

Essential Elements of a Malicious Prosecution Claim in Tennessee

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

In Tennessee, the essential elements of a malicious prosecution claim are (1) the defendant filed suit or instituted a judicial proceeding without probable cause, (2) the defendant brought the action with malice, and (3) the prior action was finally terminated in the plaintiff’s favor.

If the judgment in the prior action is terminated in the plaintiff’s favor, then the probable cause element is also met so long as the judgment was not procured by fraud.

A malicious prosecution claim may be brought as a result of a civil or criminal matter.

January 8, 2014

If You Tell The Judge You Want To Go Home, Don’t Be Upset When He Lets you (And You Lose)

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

This case is a good illustration of a couple of points: (1) proceeding pro se is in a Tennessee personal injury case is dangerous business, and (2) judges at both the trial court and appellate level can be very patient folks.

Plaintiff Jennifer Al-Athari was involved in a motor vehicle accident with a tractor-trailer driven by Mr. Gamboa who was an employee of Morgan Southern. Mrs. Al-Athari and her husband filed suit against Mr. Gambo and Morgan Southern After burning through two attorneys, the plaintiffs elected to proceed pro se. Thereafter, things went awry.

Judge Brothers entered a scheduling order which specified dates for medical proof. Plaintiff failed to produce any medical proof, so Morgan Southern moved in limine to exclude any medical evidence at trial. Plaintiffs did not appear at the hearing and the trial court granted the motion. In addition, shortly before the trial, Morgan Southern moved in limine to exclude settlement offers, liability insurance and any reference to Mr. Gamboa’s legal status in the United States or the process by which he was hired by Morgan Southern. All of these motions in limine were also granted.

January 7, 2014

You Only Get One Shot with Tenn. Code Ann. § 20-1-119 – The 90-day Extension is Based on the Date of Filing of the First Answer

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

Tennessee has a unique statute that allows a plaintiff to sue a nonparty tortfeasor alleged to have fault in a negligence case after the expiration of the one-year statute of limitations. the statute is triggered if a defendant sued within the original statute of limitations period blames the nonparty and the plaintiff either files an amendment to the pending lawsuit or files a separate lawsuit within 90 days of the filing date of the defendant’s answer raising an allegation of the nonparty’s fault. The statute is Tenn. Code Ann. § 20-1-119.

This statute has been the subject of many appeals in Tennessee, and was most recently addressed by the Middle Section of our Court of Appeals in Morris v. Phillips.

In this case, the Plaintiff was injured in a multi-vehicle wreck in August of 2010. Plaintiff sued the Driver and the Record Owner of the vehicle. In December 2011, Record Owner filed an answer alleging the fault of three Other Tortfeasors. In July 2012, Driver filed an answer also alleging the fault of the same three Other Tortfeasors. Plaintiff filed an amended complaint bringing the Other Tortfeasors into the lawsuit in August 2012, which was more than 90 days after the first answer alleging the fault of Other Tortfeasors was filed. One of the Other Tortfeasors filed a motion to dismiss on grounds that the statute of limitations had expired because of Plaintiff’s failure to file an amended complaint within 90 days of the first allegation of fault against Other Tortfeasors.

January 6, 2014

Reassurances that Lawyer Would Fix Mistake Do Not Toll Legal Malpractice Statute of Limitations in Tennessee

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

The statute of limitations for legal malpractice claims in Tennessee is one year from the date the action accrues. Tenn. Code Ann. § 28-3-104(a)(2). The “discovery rule” determines when the action accrues in most legal malpractice cases. Tennessee’s discovery rule says that a plaintiff’s time limit to file suit does not start to run until the plaintiff knows or in the exercise of reasonable diligence should know that he or she has an injury as a result of wrongful conduct by a defendant.

Recently, in Aleo v. Weyant, the Tennessee Court of Appeals examined a case involving a legal malpractice claim against a family law Attorney for failing to include a provision in a marital dissolution agreement and final decree of divorce specifying that the Wife would receive 50% of the Husband’s military pension and that she would be named as beneficiary of the pension. Attorney raised a statute of limitations defense and the trial court granted summary judgment.

The record showed that Wife went to a Staff Judge Advocate more than a year before she filed suit against Attorney and was advised by the Staff Judge Advocate that she would not get part of Husband’s pension benefits because the divorce decree was silent about that asset. Since the malpractice lawsuit was not filed within one year of Wife learning that she would not receive pension benefits, the Court of Appeals agreed with the Trial Court and upheld summary judgment.