Day on Torts

The Tennessee Supreme Court has issued an opinion interpreting Rule 35 of the Tennessee Rules of Civil Procedure.

Rule 35 is the rule the permits a party to have a physician of the party’s choice examine the adverse party.  Unfortunately, it is often referred to as an independent medical examination, and indeed the opinion mistakenly refers to it as such.  Rule 35 exams usually have the same degree of objectivity as a mother opining on  the character and physical appearance of her only son. 

But on to substance.  Very few civil procedure cases find their way to the Tennessee Supreme Court (exception:  Rule 56) and when one does get there we need to read it.  This is true even in this case where the plaintiff was pursuing a worker’s compensation claim and the issue is primarily covered by the Worker’s Compensation Act.

Governor Bredesen has signed the "Uniform Interstate Depositions and Discovery Act" into law.  The Act is effective for discovery requests after July 1, 2008. 

The legislation establishes a procedure for litigants in other states to do discovery in Tennessee.  However, the Act is a uniform act, so Tennessee lawyers will benefit from knowledge of it when they have to do discovery in other states that also have the Act

The legislation also repeals on portion of the current chapter, T.C.A. Section 24-9-103.

The Tennessee Supreme Court has released an opinion that settles (and changes) the law on the "prior suit pending" doctrine.  The issue rises infrequently in tort cases, but is still worthy of note.

In Tennessee a worker’s compensation lawsuit cannot be filed until after a benefit review conference (BRC) does not result in resolution of the case.  Either the employer or the employee may file a worker’s compensation complaint.  When the employee and employer reside in two different judicial circuits and one or both lawyers perceive that one forum is more favorable than the other there is a literal race to see who can file first where after an unsuccessful BRC.  If both file on the same day which action is permitted to proceed?

The Court said that "a lawsuit becomes “pending” when the complaint is filed. Although the filing of the complaint initiates the pendency of the case, a subsequent case will be subject to dismissal under the prior suit pending doctrine only if the court in the prior case has acquired personal jurisdiction over the parties."