Day on Torts

January 14, 2020

HCLA certificate of good faith must be separate from 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.

January 14, 2020

Are Personal Injury Compensatory Damages Awards Taxable?

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

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.

January 13, 2020

Tennessee Law of Civil Trial – New Edition

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

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.

January 10, 2020

Absolute executive privilege does not apply to district attorney general.

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

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.”

January 9, 2020

Pre-Suit Waivers of Liability in Tennessee

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

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).

January 6, 2020

Trial court erred by excluding expert testimony in premises liability case

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

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.

January 2, 2020

Litigation Privilege Defeats Defamation Claim.

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

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.

December 21, 2019

North Carolina Adopts New Case Citation Format

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

North Carolina has come into the late 20th century by adopting a legal citation system that makes sense for the lawyers of today – and the public.

The state Supreme Court adopted a new format for case citations, the reference that tells the public how to find a specific court opinion. The new format adds a universal pinpoint citation with paragraph numbering so that for parallel citations opinions can be uniformly cited across different research platforms.

According to the Court, “the new citation format will include both a reference to the hardbound case reports and the new universal reference. Beginning January 1, 2021, each paragraph in a published opinion will be numbered so that particular sections can be referenced without a traditional page number. References to paragraph numbers will allow readers to more quickly and accurately identify source material in both electronic and hard copy formats.”

December 20, 2019

Motion for Substitution Needed After Death of Plaintiff

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

Where a plaintiff filed a Tennessee health care liability (medical malpractice) action and died of unrelated causes while the suit was pending, the cause of action did not automatically pass to his wife. Instead, the suit was “eligible to be revived” and a motion for substitution of party should have been filed within 90 days of the filing of the suggestion of death pursuant to Rule 25.01.

In Joshlin v. Halford, No. W2018-02290-COA-R9-CV (Tenn. Ct. App. Nov. 6, 2019), plaintiff filed a medical malpractice suit against defendants, and his wife was a co-plaintiff asserting loss of consortium claims. While the suit was pending, plaintiff died from causes unrelated to the alleged malpractice. In March 2014, plaintiffs’ counsel filed a notice of death in the HCLA suit, and an estate was opened for decedent in May 2014. In October 2014 defense counsel sent plaintiff a letter stating that “a suggestion of death and a new plaintiff” were needed, but plaintiff responded by sending a copy of the notice of death previously filed.

In June and July 2015, defendants filed motions to dismiss based on plaintiffs’ “failure to timely substitute a proper party for [decedent].” The trial court denied the motion, ruling that the cause of action automatically passed to the wife, and that since she was already a plaintiff, there was no need to do a party substitution. The Court of Appeals reversed this decision.

December 18, 2019

Fair Report Privilege Did Not Apply to Private Conversation in Defamation Case

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

The Tennessee Supreme Court recently affirmed that the fair report privilege does not apply to “a nonpublic, one-on-one conversation between a newspaper reporter and a detective of the county sheriff’s department, who also served as the public information officer for the sheriff’s department.” In Burke v. Sparta Newspapers, Inc., No. M2016-01065-SC-R11-CV (Tenn. Dec. 5, 2019), plaintiff filed a defamation suit against a newspaper that ran an article stating that he had “misappropriated” money from a football league fundraiser. Plaintiff took issue with several statements from the story, which quoted as its source “the case’s lead investigator, Detective Chris Isom, of the White County Sheriff’s Office[.]”

Defendant newspaper filed a motion for summary judgment “asserting immunity from liability based on the fair report privilege.” Defendant argued that “the privilege applied because the article was a fair and accurate report of the statements Detective Isom made to [the reporter] in his official capacity both as lead detective and as public information officer for the White County Sheriff’s Department.” Defendant acknowledged that the statements occurred during a private, one-on-one conversation, but urged that the fair report privilege nevertheless applied.