Day on Torts

May 12, 2023

Dismissal based on statute of limitations affirmed; court relied on judicial notice of court file

Where the trial court took judicial notice of items from the court case underlying a tort action for invasion of privacy, abuse of process, and intentional infliction of emotional distress, it did not convert the motion to dismiss to a motion for summary judgment and dismissal of the claims based on the statute of limitations was affirmed.

In Doe v. Rosdeutscher, No. M2022-00834-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff had filed an underlying HCLA suit. Plaintiff eventually took a voluntary nonsuit in that case, and following a motion by defendants in that case, the trial court assessed Rule 37 and Rule 11 sanctions against plaintiff’s counsel.

Plaintiff then filed this action against the defendants and the defendants’ attorneys from the previous HCLA case. In this case, plaintiff asserted claims for invasion of privacy, abuse of process, intentional or reckless infliction of emotional distress, and breach of contract based on the allegation that defendants “filed Plaintiff’s medical records in the healthcare liability action which included nude photographs of Plaintiff and details about her sexual and mental health history[.]” Defendants filed a motion to dismiss, which the trial court granted. The trial court also assessed damages against plaintiff and Rule 11 sanctions against plaintiff’s attorney. On appeal, these rulings were affirmed.

May 9, 2023

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

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

Information is now available on the number of tort trials and jury verdicts in Sullivan County, Tennessee (county seat: Blountville) for the fiscal year ending June 30, 2022.

There were 181 personal injury and wrongful death cases closed in Sullivan County (not including health care liability act cases) and only one trial. Here is how that compares with prior years:

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Note that 1-2 % of all closed personal injury and wrongful death cases in Sullivan County are tried to judgment. When your client asks you “what are the odds my Sullivan County personal injury case will go to trial” you can say that, on average 98-99% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

May 5, 2023

Practical Procedure and Evidence

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

Have you checked out my new blog, “Practical Procedure and Evidence?”

The blog concentrates on Tennessee procedure and evidence issues, although occasionally I review out-of-state decisions that I think may be of interest to Tennessee lawyers. Thirty-seven posts have already been published on a variety of topics of interest to Tennessee civil practice lawyers.

Stop by for a visit. And add it to your bookmarks.

May 4, 2023

HCLA plaintiff entitled to limited discovery to show that defendant was not prejudiced by noncompliant HIPAA authorization.

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

Where an Tennessee HCLA plaintiff’s HIPAA authorization had an error in the “purpose” section, but the potential defendants only included two physicians who were employed by the third potential defendant health system and plaintiff asserted that the defendant health system was the only potential defendant who possessed any relevant medical records, the Court of Appeals vacated dismissal based on the noncompliant HIPAA authorization and held that plaintiff should have been allowed “to conduct limited discovery to determine whether [defendant health system] had been prejudiced by Plaintiff’s failure to provide a HIPAA-compliant medical authorization[.]”

In Hayward v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2022-00488-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff filed an HCLA claim against defendants related to a bladder surgery and related complications. Before filing suit, plaintiff sent pre-suit notice to three potential defendants, including two physicians and one health system (“Erlanger”). A HIPAA authorization was included with the pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E).

After suit was filed, Erlanger filed a motion to dismiss based on the HIPAA authorization being noncompliant. Specifically, Erlanger pointed out that the purpose section of the HIPAA authorization, which is one of the six core elements required on a HIPAA authorization, only permitted disclosure of records to plaintiff’s attorney. Erlanger argued that this prevented the potential defendants from obtaining records from each other and that dismissal was thus appropriate.

May 3, 2023

Gender-Affirming Care Creates Tort Liability

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

My newest article, “Gender-Affirming Care Creates Tort Liability,” as published in the Tennessee Bar Journal.

May 3, 2023

Stats on Personal Injury and Wrongful Death Cases in Rutherford County, Tennessee

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

Information is now available on the number of tort trials and jury verdicts in Rutherford County, Tennessee (county seat – Murfreesboro) for the fiscal year ending June 30, 2022. The data is some of the most shocking data that comes from the recently released Tennessee case filing statitics

There were 69 tort cases closed in Rutherford County (not including health care liability act cases) and 1 (that is correct – 1) tort trial.

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As the graph below demonstrates, that one trial was a jury trial, and it was lost by the plaintiff:

April 27, 2023

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

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

Information is now available on the number of tort trials and jury verdicts in Putnam County, Tennessee (county seat: Cookeville) for the fiscal year ending June 30, 2022.

There were 93 personal injury and wrongful death cases closed in Putnam County (not including health care liability act cases) and not a single trial. Here is how that compares with prior years:

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Is it possible that this is correct? That Putnam County, home to 80,000 people that is the home of miles and miles of Interstate 40, has not have a single personal injury or wrongful death trial in the last six fiscal years?

April 25, 2023

Stats on Personal Injury and Wrongful Death Filings and Verdicts in Williamson County, Tennessee

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

Information is now available on the number of tort trials and jury verdicts in Williamson County, Tennessee (county seat – Franklin) for the fiscal year ending June 30, 2022.

There were 255 tort cases closed in Williamson County (not including health care liability act cases) and 4 tort trials. Here is how that compares with prior years:

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A couple observations. First, note that despite huge increases in population (and traffic volume) Williamson County personal injury and wrongful death filings are less than they were five years ago.

April 24, 2023

Stats About Personal Injury and Wrongful Death Cases and Verdicts in Maury 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 Maury County, Tennessee for the fiscal year ending June 30, 2022.

There were 157 personal injury and wrongful death cases closed in Maury County (not including health care liability act cases) and no personal injury or wrongful death trials. Here is how that compares with prior years:

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Over the years, about 1% of closed cases result in a trial When your client asks you “what are the odds my Maury County personal injury case will go to trial” you can say that, on average, 99% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

April 21, 2023

TPPA Motion to Dismiss Required Trial Court to Engage in Three-Step Analysis.

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

Where defendant moved to dismiss a defamation suit under the Tennessee Public Participation Act (“TPPA”), and the trial court failed to take into account the third step of the TPPA burden-shifting framework which considers whether a defendant can establish a valid defense to the claims, the case was remanded for further consideration of the third step in the analysis.

In Pragnell v. Franklin, No. E2022-00524-COA-R3-CV (Tenn. Ct. App. April 18, 2023), plaintiffs filed a defamation suit against defendants, who were plaintiffs’ former employer. Plaintiffs were financial advisors, and when they left defendants’ company, SEC regulations required defendants to file a U5 form online as to plaintiffs’ departure. Plaintiffs asserted that the U5 forms initially filed by defendants stated that plaintiffs left the company voluntarily, but that after a dispute arose and plaintiffs filed suit against defendants in chancery court, defendants changed the U5 forms to state that plaintiffs were discharged for violating “client privacy rights, misrepresentation, and selling away.” Plaintiffs thus filed this defamation suit based on the statements in the revised U5 forms.

Defendants filed a motion to dismiss based on the TPPA, Tenn. Code Ann. § 20-17-101, et seq. Defendants argued that they were required to file the amended U5 forms upon discovering additional information about plaintiffs’ employment, that the statements contained therein were true, and that the case was subject to dismissal under the TPPA.