Day on Torts

The male plaintiff said that he slipped, fell, and sustained various injuries on the sidewalk outside of his apartment early one morning. He and his wife brought suit.

Defendant found a medical record (from a provider not listed in answers to interrogatories by the plaintiffs) that indicated that plaintiff was treated for a dog bite on the morning of the alleged incident. He made no reference to his alleged fall. A scar he said was related to the fall was in a location similar to the site of the dog bite.

There were other problems with plaintiff’s medical history as well – the type of stuff that a defense lawyer drools over. This defense lawyer, however, stopped drooling long enough to file a motion to dismiss the case for fraud. The case was dismissed, and the Florida District Court of Appeal, First District, affirmed.

Don’t count on it. Read this new opinion from the Tennessee Supreme Court which affirmed a grant of summary judgment in favor of the defendant when the plaintiff submitted an affidavit in opposition to the motion after the date required by a previous order of the trial judge.

The core holding: “We conclude that the trial court did not abuse its discretion in denying the plaintiffs’ motion for an enlargement of time under Rule 6.02 after finding that there was no excusable neglect. The trial court held an extensive hearing and considered the factors identified above. The trial court considered the reasons for the plaintiffs’ delay, the length of the delay, the prejudice caused to the defendants, and the potential impact on the proceedings. Although the inquiry of prejudice and the effect of the delay generally should focus on the plaintiffs’ failure to identify expert witnesses by the deadline set by the trial court, this failure cannot be isolated from the plaintiffs’ failure to comply with other deadlines and magnifies both the prejudice to the defense and the effect of the delay.”

The case also held that the expert affidavit submitted by the plaintiff to oppose summary judgment was deficient: “Here, the plaintiffs relied on the affidavit of Dr. Robert Gordon. Dr. Gordon, a board-certified anesthesiologist who practiced in Winchester, Tennessee, stated that he was “familiar with the recognized standard of acceptable professional medical care in the metropolitan areas of Tennessee and specifically in Memphis, Tennessee and similar communities . . . .” The affidavit contains no information regarding the basis for Dr. Gordon’s familiarity with the standard of care in Memphis, Tennessee, nor does it contain a basis for finding that the standard of care in Memphis is similar to that in the community in which Dr. Gordon practices. In short, Dr. Gordon’s affidavit simply asserts that he is familiar with the applicable standard of care. As we have explained in prior cases, a bare assertion of familiarity is insufficient under Tennessee Code Annotated section 29-26-115(a)(1). Accordingly, we conclude that the affidavit was legally insufficient.”