The Tennessee Supreme Court has adopted proposed amendments to several rules of civil procedure.
Rules 5 and 5B have been amended to account for changes in the court system given the expansion of e-filing across the state.
Rule 33 has been amended in the hope of eliminating gamesmanship in answering interrogatories.
How do you authenticate a Facebook account? A Georgia court affirmed a prosecutor’s successful efforts to have excerpts of a criminal defendant’s Facebook account admitted into the evidence.
The defendant (Nichols) claimed
that the trial court abused its discretion by admitting Facebook records that included several private messages that the State claimed he had sent. The State used a search warrant to obtain the records from Facebook, which also provided a certification of authenticity. Nichols argues that the State did not sufficiently authenticate that the messages were sent by him.
The Tennessee Rules of Civil Procedure permit a Tennessee personal injury or wrongful death plaintiff to serve discovery with a complaint. Ordinarily, responses to interrogatories, requests for production of documents, and requests for admissions are due 30 days after service. However, if they are served with the complaint the defendant has an additional 15 days to respond to them.
Why do you want to serve discovery with the complaint?
In a Tennessee HCLA case, the statutorily required certificate of faith must be a separate document and cannot simply be contained within the complaint.
In Dotson v. State, No. E2019-00325-COA-R9-CV (Tenn. Ct. App. Dec. 3, 2019), plaintiff filed a healthcare liability case against the state based on the alleged negligence of Dr. Brooks, who was a state employee, related to the death of her newborn baby. Because the claim was against a state employee, this suit was filed with the Claims Commission. Plaintiff also filed suit against another doctor and a private hospital in Washington County. When plaintiff filed her complaint with the Claims Commission, she attached a certificate of good faith, but that certificate of good faith contained the caption from the Washington County lawsuit and only mentioned the Washington County defendants, not Dr. Brooks. Within the complaint filed with the commission, however, paragraph 22 tracked the certificate of good faith language found in Tenn. Code Ann. § 29-26-122.
A compensatory damages personal injury award, by settlement or judgment, is not taxable under federal law if the case arises out of personal physical injury or sickness. This is true even if the award includes monies for pain and suffering and lost wages.
The support for this view is Section 104 of the Internal Revenue Code. The law is further explained in the 2011 publication, Lawsuits, Awards, and Settlements Audit
Techniques Guide published by the Internal Revenue Service.
The second edition of Tennessee Law of Civil Trial is now available for purchase. The new edition updates the first edition of the text published five years ago.
The 500-page book is designed to help lawyers prepare for the procedural issues that arise from jury selection through post-trial motions. It also includes the law of scheduling orders, and discusses alternative provisions that can be incorporated into scheduling orders depending on the complexity of the case. (The chapter on Tennessee scheduling orders is available for free by clicking on the link.) There is also a chapter on the law of motions in limine, and the Appendix includes multiple forms for use in drafting motions.
Reading this book will cause inexperienced trial lawyers to discover answers to questions they did not even know were questions and those with more experience will have their recollection of the law of trial quickly refreshed. The book is written to make it readily capable of use in the middle of trial.
The absolute privilege against a Tennessee defamation claim given to some state officials “for statements made in the course of their official duties” does not extend to district attorneys general.
In Burns v. State of Tennessee, No. E2018-02174-COA-R9-CV (Tenn. Ct. App. Nov. 26, 2019), plaintiff was the lead investigator for the Gatlinburg Police Department on a case involving a high school basketball player who was assaulted with a pool cue. Plaintiff testified during a preliminary hearing, and according to news coverage of the hearing plaintiff stated that “the assault did not constitute a rape because the alleged assailants were not seeking sexual gratification.” After reports regarding plaintiff’s testimony, General Neal Pinkston, who was the Hamilton County District Attorney, sent out a press release to news outlets stating that General Pinkston had requested the TBI to “investigate [plaintiff] for perjurious testimony related to statements he made during sworn testimony” in the preliminary hearing. The next day, General Pinkston’s office released a statement saying “General Pinkston believes [plaintiff] perjured himself in Hamilton County Juvenile Court on Monday, February 15.”
Those interested in the current law of Tennessee on the issue of whether contractual waivers of liability are enforceable in Tennessee may wish to read my recent article in Tennessee Bar Journal.
Contractual waivers, also referred to as exculpatory provisions, attempt to limit liability for negligence (or perhaps even reckless and intentional misconduct).
Where a trial court did not undergo the required analysis under Tennessee Rules of Evidence 702 and 703 before deciding to exclude plaintiff’s expert witness testimony in a premises liability case, summary judgment for defendant was vacated and the case was remanded.
In Linkous v. Tiki Club, Inc., No. E2019-00357-COA-R3-CV (Tenn. Ct. App. Nov. 22, 2019), plaintiff went to defendant restaurant/bar with his friends. While there, he went to the bathroom, which he had done numerous times on previous visits. On this particular occasion, it had been drizzling outside. The bathroom at defendant restaurant was “two portable restrooms that were located approximately three feet above the outdoor level of a floating dock and were accessible by metal stairs.” Defendant had purchased the bathrooms from another company and had self-installed the units. Plaintiff alleged that as he exited the bathroom on the night in question, “he slipped on the first step and fell several feet, sustaining multiple injuries.”
Plaintiff brought this premises liability suit, and defendant filed a motion for summary judgment asserting that it had no actual or constructive notice of the allegedly dangerous condition. Defendant asserted that any building codes would not have applied to the restroom structure, and that even if they did, they would only impose a duty on the company that manufactured the portable restroom. Defendant further alleged that it had never received any complaints about the bathroom structure before this incident.
In a Tennessee defamation case, statements made in an email regarding a deposition in a federal lawsuit fell under the litigation privilege and dismissal was affirmed.
In Kilgore v. State of Tennessee, No. E2018-01790-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2019), plaintiff had been involved in a previous federal lawsuit. In the federal case, plaintiff, who owned a towing service, had brought an action against certain highway patrol officers. During that case, the officers were represented by two attorneys, Ms. Jordan and Ms. Lyford. Shortly before the scheduled deposition of a witness, the witness’s son’s business caught fire. The day before the deposition, Ms. Jordan sent an email to plaintiff’s counsel in the federal case stating that one of the co-plaintiff’s emissaries had told the witness to “watch out” and that “the timing [did] not seem to be coincidental.” The email stated that the incident would be fully investigated and that witness intimidation was a crime, and also stated that future depositions would be held at secure locations with metal detectors. Later that day, Ms. Lyford sent an email explaining that she was attempting to locate a secure location for the deposition the following day.
