The Seventh Circuit Court of Appeals has affirmed a $8.3 million damage award in the brachial plexus injury case brought under the Federal Tort Claims Act.
The damage award was broken down as follows:
Where plaintiff knew that he would likely be paddled before joining a fraternity but did not understand the full scope of the hazing he would endure, summary judgment based on the plaintiff’s comparative fault was overturned. Further, where the college had received previous reports of hazing from the fraternity in question, summary judgment based on a lack of duty was overturned.
In Halmon v. Lane College, No. W2019-01224-COA-R3-CV (Tenn. Ct. App. May 29, 2020), plaintiff joined a fraternity at defendant college. He admittedly knew that he would be paddled as part of his initiation process, but he alleged that he was unaware of the extent of the hazing that would be involved. He claimed that he was subjected to extreme hazing, including being beaten, burned, sleep deprived, and compelled to drink concoctions. Plaintiff suffered serious injuries, forcing him to withdraw from college, and he filed this action for negligence and vicarious liability against defendant.
In his complaint, plaintiff alleged that defendant college was vicariously liable based on “the actions (and failures to act) of a Lane College employee, Calvin Walker.” Mr. Walker was the faculty adviser for the fraternity at issue, as well as a member of the fraternity, and plaintiff asserted that “Mr. Walker had failed to prevent injuries to him by failing to properly intervene in the hazing and by failing to report it.” Plaintiff also asserted that defendant was directly negligent in its hiring, supervising, and retention of Mr. Walker.
Where plaintiff’s initial HCLA pre-suit notice included HIPAA authorizations that were left blank, and plaintiff’s supplemental authorization that attempted to correct the problem was sent after the one-year statute of limitations on his claim had run, dismissal was affirmed.
In Carrasco v. North Surgery Center, LP, No. W2019-00558-COA-R3-CV (Tenn. Ct. App. May 28, 2020), plaintiff filed a health care liability suit against defendants based on “injuries sustained by a guidewire left in the plaintiff’s neck following a procedure.” Prior to filing his suit, plaintiff sent defendants a pre-suit notice letter on August 31 and September 1, 2016, that was accompanied by the HIPAA authorizations required by Tenn. Code Ann. § 29-26-121(a)(2)(E). The authorizations, however, contained blanks that were not filled in, and “plaintiff concede[d] that the authorizations did not substantially comply with the requirements of the [HCLA].” Later, on November 2, 2016, plaintiff sent new authorizations which purportedly corrected the issues with the first set of authorizations. In paragraph three of the new authorizations, however, the information to be used or disclosed named “Narinder Sanwal, Deceased,” instead of plaintiff.
Defendants filed a motion to dismiss based on the noncompliant HIPAA authorizations, which the trial court granted, and the Court of Appeals affirmed.
When determining the amount of attorneys’ fees to award in a post-settlement attorney fee dispute, the trial court should have considered the relevant facts and factors contained in Tennessee Rules of Professional Conduct 1.5(a).
In Cordova v. Nashville Ready Mix, Inc., No. M2018-02002-COA-R3-CV (Tenn. Ct. App. May 19, 2020), the issues at play were “post-settlement disputes concerning an attorney’s fee lien filed by the plaintiffs’ first attorney, a subrogation lien filed by the employer’s workers’ compensation carrier, and the assessment of post-settlement discretionary costs against the carrier.” In the underlying case, Sergio Lopez had died from injuries he sustained at work. The injuries were caused by a third party (defendant), and Mr. Lopez’s employer’s workers’ compensation insurance carrier had been paying benefits to his wife and children. The wife filed a wrongful death claim against defendant company and its employee, alleging that the employee caused her husband’s death and that the company was vicariously liable.
In the wrongful death action, plaintiffs were initially represented by attorney Gary Hodges, whose fee agreement “entitled him to 33% of the gross recovery obtained through arbitration, settlement conference or trial.” The agreement also provided that if Mr. Hodges was discharged and plaintiff recovered after the discharge, Mr. Hodges would be entitled to “a reasonable attorney’s fee and reimbursement for all costs advanced.” Notably, the agreement did not differentiate between “discharge for good cause and discharge without cause.” After he was hired by the plaintiffs, “Mr. Hodges entered a separate fee-sharing agreement with another solo practitioner, Robert L. Martin.” Plaintiffs never had an agreement with Mr. Martin and were not told about the agreement between Mr. Hodges and Mr. Martin.
Where defendant introduced no material evidence at trial to support a finding that plaintiff was 77% at fault for a fall cased by a faulty automatic door, the jury’s verdict was vacated.
In Gilmore v. NOL, LLC A/K/A Premier Radiology, No. M2019-01308-COA-R3-CV (Tenn. Ct. App. May 27, 2020), plaintiff* was an 84-year-old physical therapy patient. When she was exiting defendant’s building after her physical therapy appointment, “the automatic door closed while she was standing just outside the threshold of the doorway,” causing her to fall and break her arm and leg.
Plaintiff filed a negligence and premises liability suit against defendant, and defendant asserted the defense of comparative fault in its answer. After a jury trial, the jury returned a verdict finding plaintiff 77% at fault and defendant 23% at fault, meaning that plaintiff did not recover any damages. Plaintiff filed a motion for a new trial, which the trial court denied. On appeal, plaintiff asserted that the trial court used the wrong standard in its role as thirteenth juror and that there was no evidence to support the comparative fault finding.
Where plaintiffs sued for $500,000 in flood damages to a bus and trailer, but disposed of the bus and trailer shortly after the flood before defendant could examine the alleged damages, the Court of Appeals affirmed dismissal of the gross negligence claim based on spoliation of evidence.
In Legacy Five Leasing, LLC v. Busforsale.com, LLC, No. M2019-01615-COA-R3-CV (Tenn. Ct. App. May 27, 2020), plaintiffs leased a parking space for their bus and trailer from defendant. When leasing the space, plaintiffs signed an agreement that stated that defendant “assumed no liability or responsibility for damages to [the bus and/or trailer] due to theft, vandalism, fire, flood or other acts of God or man,” and the agreement stated that plaintiffs’ equipment would be “parked in a floodway or floodplain.”
Less than a year after the agreement was signed, the parking lot flooded, and plaintiffs claimed their bus and trailer were extensively damaged. Plaintiffs “confronted” defendant just four days after the flood regarding defendant’s actions with respect to the flood. The following day, plaintiffs gave control of the bus and trailer to their insurance company, and the property was disposed of before defendant could examine any of the alleged damage.
Where a premises liability plaintiff produced photographs showing possibly damp conditions around a gas pump where she fell, testified that the EMTs who arrived to help her slipped, and relied on an incident report stating that the store was “not for sure if it was slick from oil or gas,” plaintiff had shown that there were genuine issues of material fact and summary judgment for defendant was reversed.
In Wilson v. Weigel Stores, Inc., No. E2019-00605-COA-R3-CV (Tenn. Cr. App. May 19, 2020), plaintiff was fueling her car at defendant convenience store. As she stepped towards her car to get trash out, she slipped and fell. Two EMTs came to help plaintiff, and the manager at the store took photos of the area, completed an incident report, and wrote down another customer’s contact information who had witnessed the incident.
Plaintiff filed this premises liability case, and plaintiff, the EMTs, the store manager, and an HR representative from defendant were deposed. Plaintiff testified that her foot slipped, though she admitted that “she did not see any oil, gas, or spills before or after her fall…” Plaintiff also claimed that the two EMTs “both slipped and almost fell while tending to her.”
Where plaintiff failed to include one of the core elements in the HIPAA authorizations sent with her HCLA pre-suit notice, she could not rely on her notice letter to “cure any deficiency on the authorization document.”
In Hancock v. BJR Enterprises, LLC, No. E2019-01158-COA-R3-CV (Tenn. Ct. App. May 14, 2020), plaintiff sued defendants as power of attorney for patient, who allegedly suffered skin problems, pressure sores, and severe sepsis after his treatment by defendants. Plaintiff sent a timely pre-suit notice “packet” to defendants, which included a cover letter directed to each provider, an attached list of the names and addresses of all providers being sent notice, and a HIPAA authorization.
Where the probative value of an expert witness’s testimony outweighed the risk that such testimony would confuse the jury, the expert testimony should have been allowed and the jury verdict was vacated.
In Ellis v. Modi, No. M2019-01161-COA-R3-CV (Tenn. Ct. App. May 11, 2020), plaintiff filed a complaint for assault, battery and intentional infliction of emotional distress related to an alleged sexual assault committed by defendant. According to plaintiff, she was working as a caregiver in defendant’s home. Defendant needed in-home care after sustaining injuries in a car accident and receiving a diagnosis of stage four lymphoma. While plaintiff was in defendant’s home, she alleged that he sexually assaulted her for approximately three hours.
Where a HIPAA authorization included with HCLA pre-suit notice “permits a defendant to obtain medical records in actual fact but simply does not include the word ‘obtain,’ it is still compliant.”
In Combs v. Milligan, No. E2019-00485-COA-R3-CV (Tenn. Ct. App. May 1, 2020), plaintiffs filed a health care liability suit against several defendants based on a surgically inserted port that became infected and caused permanent injuries. Before filing their complaint, plaintiffs sent the defendants pre-suit notice and included a HIPAA authorization as required by the HCLA. The authorization was accompanied by a letter that stated: “Attached please find a list of providers to whom a substantially similar notice is being sent…[Plaintiff] has executed a HIPAA-compliant medical authorization authorizing you to obtain complete medical records from [same list of providers].”
