Day on Torts

June 28, 2023

Legal malpractice claim required expert proof from plaintiff.

Where a legal malpractice plaintiff provided no expert testimony to support his claims against defendant lawyer, summary judgment for the defendant was affirmed.

In Parks v. Holland, No. E2021-01506-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff filed a pro se legal malpractice claim against defendant attorney based on the attorney’s representation of plaintiff in an employment discrimination/wrongful termination case. In the underlying case, plaintiff had settled his claim for $75,000 during a second mediation, but in this action, plaintiff asserted that he had instructed defendant attorney not to settle the underlying case for less than mid-to-high six figures. Plaintiff further asserted that defendant was negligent in failing to take into account plaintiff’s loss of health benefits, and in failing to file suit against another potential defendant.

Defendant attorney filed a motion for summary judgment, arguing that “Plaintiff provided no expert testimony to establish the standard of care for attorneys and no such evidence of any breach of that standard of care.” With his motion, defendant filed the expert affidavit of another attorney as well as his own affidavit. Both affidavits pointed out problems with plaintiff’s underlying case, opined that the plaintiff received a favorable settlement in the employment case, pointed out that plaintiff signed and agreed to the settlement, and stated that defendant did not breach the required standard of care. In addition, defendant presented evidence that plaintiff was informed that defendant would not file suit against the additional defendant and that plaintiff had stated he was happy with his representation after the mediated settlement.

June 26, 2023

HCLA Standard of Care Expert Competent to Testify.

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

Where plaintiff’s medical malpractice expert was a registered nurse with extensive experience in wound care, the fact that the expert had not practiced in a hospital went “to the weight of her testimony, not to whether she [was] competent.” (internal citation omitted). The trial court’s ruling excluding her as an expert was thus overturned.

In Owens v. Vanderbilt University Medical Center, No. M2021-01273-COA-R3-CV (Tenn. Ct. App. May 18, 2023), plaintiff had surgery on her fractured ankle at defendant hospital and was inpatient for eight days. When she was discharged, she had stage three pressure wounds, and she ended up being readmitted to defendant hospital four days later for treatment of the pressure wounds.

Plaintiff filed this HCLA suit based on defendant’s failure to prevent, detect, and treat her pressure wounds. She disclosed a registered nurse from Virginia as her standard of care expert. Defendant moved for summary judgment, arguing that plaintiff’s expert was “not qualified to testify under Tennessee Code Annotated § 29-26-115(b)” because she was “not familiar with the standard of care for hospital employees in caring for post surgical orthopedic repair patients during the statutorily relevant period.” The trial court agreed with defendant and granted the motion for summary judgment, but that ruling was vacated on appeal.

June 23, 2023

Practical Procedure and Evidence

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

Have you checked out my newest blog?

Practical Procedure is a blog about, well, practical procedure and evidence issues for trial lawyers. I have several sources for the issues I discuss on the blog.

First, if I see something in a new Tennessee Court of Appeals or Supreme Court opinion that I think will be helpful to Tennessee lawyers I write up a summary and post it to the blog.

June 21, 2023

Defendant physician cannot be compelled to give expert opinion of other healthcare provider’s care.

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

In a recent HCLA case, the Tennessee Supreme Court held that “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard.”

In Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, — S.W.3d —, No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023), plaintiff filed a healthcare liability action against multiple defendants, including the midwife who was overseeing her birth and the midwife’s supervising physician, Dr. Seeber. Plaintiff suffered permanent brain damage and was severely debilitated by injuries received during the birth. During the supervising physician’s deposition, plaintiff’s counsel questioned him about what his expectations of the midwife would be in hypothetical situations, when the mother’s condition became concerning, and other questions related to the standard of care for the midwife, all of which the physician’s attorney instructed him not to answer.

Plaintiff filed a “motion to compel Dr. Seeber to testify concerning [the midwife’s] performance prior to his arrival,” which the trial court denied. The Court of Appeals, however, reversed the trial court and ruled that “the trial court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition.” In this appeal to the Supreme Court, the judgment of the trial court denying the motion to compel was affirmed.

June 19, 2023

Biomechanical Expert’s Testimony on Medical Causation Rejected

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

What is the permitted scope of testimony of a biomechanical expert in a car crash case? The Kentucky Supreme Court has given some guidance on the issue.

In Renot v. Secura Supreme Ins. Co., 2021-SC-0281-DG (Ky. June 15, 2023), plaintiff claimed injuries in a motor vehicle collision. The defendant driver settled out, and the case proceeded against plaintiff’s underinsured motorist’s carrier. The carrier contested the nature and degree of injuries alleged by the plaintiff, calling both a medical doctor and a biomechanical engineer as witnesses.

The defense doctor said the injuries caused by the wreck were minimal and the plaintiff’s problems were caused by preexisting osteoarthritis.

June 5, 2023

Parents could not file suit on behalf of adult child.

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

Where plaintiff was in a car accident when she was four years old, and her parents filed a personal injury suit purporting to represent her once she turned 18, the trial court properly granted summary judgment based on the statute of limitations. The parents, who were not attorneys, could not represent plaintiff, and by the time the motion to dismiss had been filed more than one year had passed since plaintiff turned 18, so any claim was time-barred.

In McCall v. United Parcel Service, No. M2022-01112-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff was in a car accident when she was four, and after she turned 18, her mother and father filed this personal injury action on her behalf. Plaintiff did not sign the complaint, and neither parent was an attorney. Defendant filed a motion to dismiss based on the one-year statute of limitations. At the hearing, the mother stated that plaintiff had been on an IEP in school but “had never been adjudicated incompetent or disabled.” The trial court granted dismissal, and the Court of Appeals affirmed.

On appeal, the Court first analyzed whether it would consider certain post-judgment facts submitted by plaintiff. Tenn. R. App. P. 14 provides that “the consideration of post-judgment facts that are ‘unrelated to the merits and not genuinely disputed’ may be ‘necessary to keep the record up to date.’” Post-judgment facts that “could be disputed in the trial court or from which different conclusions could be drawn” should not be considered. (internal citation omitted). The facts presented by plaintiff included a school psychoeducational evaluation, an IEP, a psychologist evaluation, and letters of guardianship and letters of conservatorship dated after the order of dismissal was entered. The Court of Appeals declined to consider any of this evidence, finding that the school evaluation and IEP “existed at the time of the trial court’s ruling” and that the psychologist evaluation and letters were “offered to establish [plaintiff’s] competency, which is a disputed issue in this case,” so did not qualify as being “unrelated to the merits and not genuinely disputed.

June 1, 2023

Pre-Impact Terror in Plane Crash Litigation

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

A federal judge in Chicago has agreed to allow a jury to consider whether airplane crash victims experience preimpact terror before their deaths.

Faced with no Illinois law directly on point, the federal court determined that the reasoning in Haley v.

Pan American World Airways, Inc., 746 F.2d 311, 314-15 (5th Cir. 1984), was persuasive. The Haley could found the courts of Louisiana would permit recovery for emotional distress “during a negligently produced ordeal”

May 31, 2023

Amended Complaint Removed Defendants From Suit.

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

Where plaintiff originally filed a health care liability suit under the GTLA against multiple defendants, but before any responsive pleading was filed plaintiff filed an amended complaint naming only the physician as a defendant, a subsequent notice and order of voluntary dismissal entered as to the defendants not named in the amended complaint were “of no legal effect.” The original defendants other than the physician were removed from the action through the filing of the amended complaint.

In Ingram v. Gallagher, — S.W.3d —, No. E2020-01222-SC-R11-CV (Tenn. May 17, 2023), plaintiff filed an HCLA suit against multiple defendants, including the physician and the hospital at which the physician worked. Because the hospital was a governmental entity, the GTLA applied to this case. After filing his original complaint but before any responsive pleading had been filed, plaintiff filed an amended complaint naming only the physician as a defendant. Five minutes after the amended complaint was filed, plaintiff filed a notice of voluntary dismissal as to the hospital and other defendants, and an order of voluntary dismissal was entered the following day.

When defendant physician filed his answer to the amended complaint, he raised as a defense that the complaint should be dismissed under the GTLA, as Tenn. Code Ann. § 29-20-310(b) required that since the physician was an employee of a governmental entity, the governmental entity must also be a party to the action. Subsequently, plaintiff “filed a motion to amend his complaint in an effort to reinstate [the hospital] as a defendant.” Plaintiff also “filed a motion to alter or amend the order dismissing [the hospital] as a defendant on the grounds that ‘[the hospital] was inadvertently dismissed in light of the affirmative defense assertation by a co-defendant…that [the hospital] is a necessary party to this action.’” The trial court denied the motion to alter or amend the dismissal order, but it eventually allowed plaintiff to amend his complaint after a second motion to amend was filed.

May 26, 2023

Psychologist selected by mother pursuant to court order immune from later HCLA suit.

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

Court appointed psychologists enjoy immunity in Tennessee. Where a juvenile court ordered that a mother select a new psychologist to replace the existing one in a custody case, the psychologist selected by the mother was entitled to summary judgment based on immunity in a later suit brought by the father based on the psychologist’s treatment of the minor and parents in the underlying custody case.

In Justice v. Hanaway, No. E2022-00447-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff filed an HCLA case against defendant psychologist based on the psychologist’s treatment and involvement in an underlying child custody case. Plaintiff was the father in the child custody case, and after the first court-appointed psychologist was removed from the case, the juvenile court asked the mother to select a new psychologist. The juvenile court’s order stated: “There will be a transition from the current therapist…to a new therapist to be selected by the Mother. …The parties shall sign releases for the new therapist to speak with [the former therapist.] …Once the transition to the new therapist is made, the therapist shall set out a goal and a plan as to how the therapy shall be conducted.” The mother selected defendant psychologist, who went on to have sessions with the mother, father, and minor and to testify in the custody case. This HCLA claim by the father followed.

The trial court granted summary judgment to defendant based on his role as a court-appointed psychologist. The trial court found that it was “reasonable from the record to conclude that Defendant was replacing the court-appointed therapist…and would therefore be stepping into [her] shoes and occupying the same status as that which [she] had enjoyed,” and that defendant was “entitled to the same benefit of the doctrine of [judicial]immunity as that which could have been claimed” by the original court-appointed therapist. On appeal, this ruling was affirmed.

May 24, 2023

Stats About Personal Injury and Wrongful Death Cases and Verdicts in Dyer County, Tennessee

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

Information is now available on the number of personal injury and wrongful death trials and jury verdicts in Dyer County, Tennessee (county seat: Dyersburg) for the fiscal year ending June 30, 2022.

There were 64 personal injury and wrongful death cases closed in closed in Dyer County (not including health care liability act cases) and only 1 tort trials. Here is how that compares with prior years:

dyer1-1024x598
But look at the graph below. Not only did the plaintiff not recover in the sole trial that occurred last year (which is not that unusual) but a plaintiff has not prevailed in a single personal injury or wrongful death case in Dyer County in the last six fiscal years (fourteen total trials).