Day on Torts

December 18, 2013

Arbitration Agreements: What Constitutes Waiver And What Constitutes A Contract Of Adhesion?

Lawyers in Tennessee see more and more arbitration clauses in contracts and thus more and more people trying to avoid these provisions by arguing that the provision was waived or invalid because the contract requiring arbitration was a contract of adhesion.

In Skelton v. Freese Construction Company, Inc. the Tennessee Court of Appeals gives us some insight into both these issues. In this case, the defendant did not file its motion to compel arbitration until three years after the commencement of the suit. During that time, the defendant had filed an answer, answered discovery and filed a motion to dismiss based on standing.

However, in reviewing the record, the Court of Appeals determined that much of the delay had been occasioned by the plaintiff. Specifically, the plaintiff had failed to timely comply with court orders, had changed counsel and filed amended complaints to correct standing issues and other errors. In addition, some of the delay was related to the parties’ attempts to resolve the arbitration issue on their own. Moreover, the Court of Appeals noted the defendant had expressly reserved its right to arbitrate the dispute in its answer to the plaintiff’s second amended complaint and had filed its motion to compel within two months of the filing of the second amended complaint (which finally resolved the standing issues). Further, the Court of Appeals noted the defendant’s motion to dismiss was related to standing as opposed to the merits of the underlying case. All in all, there was not a "clear, unequivocal and decisive" act by the defendant which signaled its intention to forgo its right to arbitrate.

December 16, 2013

Failure of Court to Strike Juror For Cause Results in Reversal Of Health Care Liability Verdict

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

The Kentucky Supreme Court has reversed a verdict for the defendants in a medical malpractice (health care liability) case because the trial judge failed to grant a request of the patient’s lawyer to strike two jurors for cause.

The reversal was granted notwithstanding the fact that the lawyer for the plaintiff was able to challenge one of the jurors that should have been dismissed for cause with a peremptory challenge. Why? Because the plaintiff ran out of peremptory challenges and there were two other jurors that they would have removed had they had any other peremptory strikes remaining.

A majority of the court did not believe it was necessary to show any actual prejudice to the party. Rather, the court determined that when a party is forced to use a peremptory challenge on a juror that should have been dismissed for cause by the trial court that harm has been done.

December 11, 2013

Tennessee Supreme Court Reconciles Federal Rules on Voluntary Dismissal with Tennessee’s Three-Dismissal Rule

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

The Tennessee Supreme Court recently ruled that two voluntary dismissals – one in a California state court and one in a Tennessee federal court – do not preclude a plaintiff from re-filing an action based on the same claims in a Tennessee state court.

In Cooper v. Glasser, the court analyzed Rule 41 (a)(1)(B) of the Federal Rules of Civil Procedure and Rule 41.01(2) of the Tennessee Rules of Civil Procedure.

The federal Rule 41 provides that a plaintiff’s notice of dismissal is “without prejudice” unless the plaintiff previously dismissed any action (federal or state) based on the same claims.

December 11, 2013

Tennessee Standard for Reversal of a Verdict Based on a Bad Jury Instruction

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

An important component of any jury trial is the instructions that will be given to the jury about the law that applies to the particular case, how to analyze the evidence, and how to assess the credibility of witnesses. To avoid appeals on the basis of erroneous jury instructions, the best practice is for the parties to agree on the instructions given if at all possible.

When a party takes issue with a particular instruction and wishes to appeal on that basis, he or she faces an uphill battle in overturning the jury verdict in Tennessee. Under our Rules of Appellate Procedure, a jury verdict will only be reversed based on a trial court’s error in giving a jury instruction, failing to give a jury instruction, or giving an erroneous instruction if the error more probably than not affected the verdict or would result in prejudice to the judicial process. Tenn. R. A. P. 36(b).

Recently, in Land v. Dixon, the Court of Appeals reiterated this standard. On appeal, the plaintiffs complained that the trial court erred in giving a comparative fault instruction to the jury because of allegations that the plaintiffs were at fault in a professional negligence case. The plaintiffs argued that under Tennessee law plaintiffs cannot be at fault in professional negligence actions. (That is, shall we say, an imaginative argument.)

December 9, 2013

Suing the Wrong Defendant and Tennessee’s Relation Back Doctrine

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

The Court of Appeals clarified the requirements for an amended complaint to relate back to the filing date when the plaintiff mistakenly sues the wrong defendant.

In Ward v. Wilkinson Real Estate Advisors, Inc., No. E2013-01256-COA-R3-CV, (Tenn. Ct. App. Nov. 30, 2013) Plaintiff sued Glazers for a slip and fall about a week before the one year statute of limitations for personal injury cases expired. Plaintiff quickly found out that Glazers had nothing to do with the property where Plaintiff fell. The day after the statute of limitations expired, Plaintiff filed an amended complaint suing several others who we will collectively call the "Wilkinsons," who did own the property at issue, and served the amended complaint on Wilkinsons within two months. The trial court granted summary judgment to Wilkinsons based on the statute of limitations.

The Court of Appeals affirmed, with a concurring opinion by Judge Susano. The majority rejected Plaintiff’s contention that the amended complaint related back to the original filing based on Tenn. R. Civ. P. 15.03, which provides:

December 6, 2013

Tennessee Man Who Suffered Severe Injuries From Fall While Assisting Neighbor Granted Jury Trial

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

Plaintiff Martin was an apprentice lineman for Upper Cumberland Electrical Membership Cooperative. He agreed to help a neighbor move an electrical line to a barn. As the plaintiff climbed the electrical pole which had been installed by the neighbor, the pole fell over and the Plaintiff sustained serious injuries from the fall. The plaintiff filed suit against his neighbor alleging negligence in the installation of the pole. Specifically, the plaintiff alleged the pole had not been set at a sufficient depth to ensure stability. The neighbor defended claiming the accident was a result of the plaintiff’s failure to follow proper safety protocols and ensure the stability of the pole before climbing it.

During discovery, the plaintiff testified about the steps he took to ensure the safety of the pole before climbing it. Thereafter, the defense filed a motion for summary judgment supported by affidavits of experienced linemen who opined the plaintiff had not followed basic safety requirements. In response, the plaintiff submitted three affidavits to establish the subject pole had not been set at the proper depth per established standards and that the plaintiff had followed proper safety procedures in checking the stability of the pole before climbing it. The trial court granted the defendant neighbor’s motion for summary judgment finding (1) there was no material issue of fact and (2) despite the affidavits indicating the plaintiff had followed proper safety protocols before climbing the pole, the court was of the opinion he did not, (3) and that electrical work was an "ultrahazardous activity".

The Court of Appeals reversed noting that while they had several times noted that electricity was inherently dangerous they had never held it to be an "ultrahazardous activity". Moreover, the defendant’s injuries had not been caused by electricity but instead were caused solely by the fall. Second, the Court of Appeals concluded the plaintiff had established the neighbor had a duty to either ensure the safety of the premises or to warn the plaintiff of any dangers. Since the neighbor had been the one to actually set the pole, he was on notice of its depth. In addition, proof was adduced to show the neighbor had removed some dirt from around the pole thereby making it less stable. On the issue of whether the plaintiff had followed safety protocols, the competing affidavits created an issue of fact and had to be viewed in the light most favorable to the non-moving party. As for the defendant’s argument regarding the application of the contractor exception (a contract of repair is sufficient by itself to impart notice of a danger), the Court of Appeals noted that the plaintiff was not repairing anything but instead simply moving the line; therefore, the exception did not apply.

December 2, 2013

Tennessee Supreme Court Holds Inmate Assault is not Foreseeable Per Se

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

Should a county bear any financial responsibility when it fails to release a jail inmate on time and the inmate gets injured in an altercation when he should no longer have been in jail and therefore not in the position to be harmed.

The Tennessee Supreme Court recently decided such a case. King, an inmate of the Anderson County Detention Center, sued following an attack by another inmate in which he sustained injuries including an eye injury that required surgery and a broken nose. He maintained he should not have been in jail at the time of the attack.

The trial court determined that both the Plaintiff Inmate and the Defendant County were responsible for Plaintiff’s injuries and assigned 45% fault to the Plaintiff for instigating the fight and 55% fault to the Defendant for failing to timely release the Plaintiff. The Court of Appeals upheld the judgment of the trial court. The Defendant County appealed to the Tennessee Supreme Court.

November 29, 2013

Motions to Alter or Amend and Notices of Appeal – Timing is Everything Under Tennessee Law

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

Tennessee Court of Appeals rules that Tennessee courts lose jurisdiction to reconsider dismissal when an aggrieved party fails to take proper action within the limited 30-day window after entry of final judgment.

In Hailey v. Wesley of the South, Inc., d/b/a Wesley at Dyersburg, No. W2012-01629-COA-R3-CV (Tenn. Ct. App. Nov. 19, 2013),the plaintiffs filed suit for wrongful death, medical negligence, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress stemming from the care and treatment of the decedent, Beatrice Jackson. Defendant filed a motion to dismiss citing the plaintiff’s failure to file a certificate of good faith within ninety days of the filing of the complaint, as then-required by Tenn. Code Ann. § 29-26-122 (note: current law requires contemporaneous filing of certificate of good faith in health care liability actions requiring expert testimony). Not finding any adequate basis for the plaintiff’s failure to comply with the certificate of good faith requirement, the circuit court granted the motion and on April 22, 2010, dismissed the entire case finding that all claims were for medical malpractice and required a certificate of good faith. A timeline of the ensuing procedural events is as follows:

· May 21, 2010 – Plaintiff files first motion to alter or amend arguing that the court erred in finding that all of her claims arose from charges of medical malpractice.
· May 21, 2010 – Plaintiff also files first notice of appeal.
· July 19, 2010 – Plaintiff’s motion to alter or amend is heard and court orders parties to file memorandums on whether the Medical Malpractice Act governs the plaintiff’s claims.
· August 3, 2010 – Defendant files a supplemental memorandum.
· August 12, 2010 – After the plaintiff fails to file a memorandum, the court enters order denying the plaintiff’s motion to alter or amend.
· August 23, 2010 – The trial judge and attorneys hold a conference call and plaintiff’s counsel claims to have authority that would convince the court to grant the plaintiff’s motion to alter or amend, resulting in the trial court instructing plaintiff’s counsel to immediately file a second motion to alter or amend along with the claimed convincing authority.
· August 30, 2010 – Plaintiff files second motion to alter or amend
· August 30, 2010 – Plaintiff also files a second amended complaint, without leave, attempting to assert new claims of negligence per se and violation of the Tennessee Adult Protection Act
· September 8, 2010 – The trial court denies plaintiff’s second motion to alter or amend, noting that the plaintiff failed to argue any new authority other than to mention the Tennessee Adult Protection Act, which was not cited in the original complaint.
· June 14, 2011 – The Court of Appeals orders the plaintiff to show cause as to why her appeal should not be dismissed for failure to timely file a notice of appeal, noting that the circuit court clerk’s only record of the notice of appeal was received by facsimile, which is not permitted under Tenn. R. Civ. P. 5A.02.
· August 11, 2011 – Court of Appeals dismisses plaintiff’s appeal for lack of jurisdiction because the plaintiff provided no proof that the notice of appeal was mailed to the trial court clerk for filing, as the plaintiff had alleged.
· August 30, 2011 – Court of Appeals denies the plaintiff’s petition for rehearing.
· December 15, 2011 – Plaintiff files third motion to alter or amend in the trial court, based on the same purported new authority that would convince the trial court that the plaintiff’s claims were not governed by the Medical Malpractice Act.
· May 9, 2012 – The trial court denies plaintiff’s third motion to alter or amend, ruling that the trial court lost all subject matter jurisdiction after the appeal without remand by the Court of Appeals.
· June 8, 2012 – Plaintiff files second notice of appeal, prompting this appeal.

The main issues on appeal concerned: (1) whether the trial court correctly dismissed the plaintiff’s third motion to alter or amend for lack of subject matter jurisdiction; and (2) whether the Court of Appeals had subject matter jurisdiction to entertain the appeal.

November 28, 2013

Deadline for Filing Medical Malpractice Claims Against the Federal Government in Tennessee, Kentucky, Ohio and Michigan

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

There is a new case on how one establishes the deadline for filing medical malpractice claims against the military hospitals and other health care providers associated with the federal government under the Federal Tort Claims Act (FTCA). The case applies to FTCA claims arising in Tennessee, Kentucky, Ohio, and Michigan.

Federal law is different that state law. The general rule in Tennessee is that a person or entity that is going to be sued for medical malpractice (now called health care liability) must be given written notice in the manner prescribed by law within one year of the date of the negligent act or omission causing an injury. This is, I repeat, the general rule: at actual rule is more complicated.

The Tennessee rule does not apply in actions against the hospitals and other health care providers of the federal government under the FTCA. In such cases, notice must be given within two years after the claim accrues. Once again, the actual rule gets more complicated, but "two years" is the basis rule.

November 27, 2013

2012 Tennessee Medical Malpractice (Health Care Liability) Statistics – Part 2

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

More of our coverage of the 2013 Tennessee Health Care Liability Report issue by the Tennessee Department of Commerce and Insurance reflecting medical malpractice claims information for the year ending December 31, 2012.

As mentioned in Part 1 of this series, the total damages paid to claimants in 2012 was $90,520,000, for an average of $208,000 per claimant. Here are the numbers for the previous four years.

Total Payments to Claimants
2008	2009	2010	2011	2012
119,300,00	111,000,000	109,000,000	114,000,000	90,520,00

Thus, we see an almost 25% decline in the total dollars paid to claimants in the last five years.

This chart gives us an understanding of the severity of injuries in the claims paid in 2012:

Severity of Injury
Injury	Number Paid	Amount Paid
Death	124	$51,403,476
Major Temporary	72	$11,855,186
Minor Temporary	72	$5,436,395
Significant Permanent	23	$7,732,010
Insignificant	21	$338,185
Emotional Only	3	$103,804
Major Permanent	11	$4,116,000
Grave Permanent	13	$7,003,500
Minor Permanent	16	$1,222,309

Now let’s add a few more columns of data to get a clear understanding of what is going on in the medical malpractice claims world in Tennessee:

Severity of Injury – Paid and Unpaid Claims Data – 2012
Injury	Total Number of Claims	Paid Claims	% Paid of Total Claims	Unpaid Claims	% Unpaid of Total Claims	Total Claim Payments	Average Amount Per Paid Claim
Death	549	124	23%	335	77%	$51,403,476	$414,544
Major Temporary	277	72	26%	205	74%	$11,855,186	$164,655
Minor Temporary	263	72	27%	191	73%	$5,436,395	$75,505
Significant Permanent	128	23	18%	105	82%	$7,732,010	$336,174
Insignificant	90	21	23%	69	77%	$338,185	$16,104
Emotional Only	88	3	3%	85	97%	$103,804	$34,601
Major Permanent	67	11	16%	56	84%	$4,116,000	$374,182
Grave Permanent	63	13	21%	50	79%	$7,003.500	$538,731
Minor Permanent	52	16	31%	36	69%	$1,222,309	$76,394

Let this data be a warning to inexperienced medical malpractice lawyers: severe injury and death do not result in settlements or judgments. More than 70% of the time allegations involving that type of injury result in no payment whatsoever to the claimant.

The average settlement of per claim data on some of these categories is quite a surprise. To be sure, some number of cases involve two or more claims, and thus the settlement or judgment would tend to be higher. But, still, the numbers here are lower than I would expect.

There will be more data in the our next post, Tennessee Medical Malpractice (Health Care Liability) Statistics – Part 3.