Day on Torts

March 12, 2019

Exclusion of Expert Witness Partially Overturned

Where an expert in a professional negligence case against an insurance agent admitted that he had very limited experience with a certain type of policy, he was not qualified to testify as to the standard of care regarding that policy type.

In Littleton v. TIS Insurance Services, Inc., No. E2018-00477-COA-R3-CV (Tenn. Ct. App. Jan. 9, 2019), plaintiffs filed a professional negligence case against defendant insurance agent. The facts of this case revolved around a company, Merit Construction, asking its insurance agent to procure a commercial general liability insurance policy. Merit requested that the policy come from a company with an A rating, and defendant agent provided three options. Merit chose an option from Highlands, which actually had a rating of B++. Defendant procured this policy and also procured a cut-through endorsement, which defendant claimed was “to raise the Highlands policy to an A-rating…” At the time Merit was given the three options, it was not given financial information about any of the potential carriers, and defendant’s agent “indicated that all three companies were A-rated companies with the cut-through endorsement from Highlands[.]” More than a year after the policy was purchased, Highlands’ rating dropped to a B, and defendant did not inform Merit or move the coverage to a different carrier. There were subsequent issues collecting when a claim was made to Highlands because it had been placed in receivership.

March 11, 2019

Assertion of the Fifth Amendment Privilege in Wrongful Death Cases

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

A motion for summary judgment cannot be based solely on “unverified reworded statements of some of the factual allegations of the complaint,” along with unsworn, unverified, and unsigned exhibits. In addition, when a defendant asserts their Fifth Amendment privilege against self incrimination in an answer or in response to discovery requests, such assertion cannot “in and of itself be taken as an admission of the allegations[,]” but a plaintiff should be allowed to “present corroborating evidence as to each fact for which it seeks a negative inference” in connection with the assertion of the privilege.

In Smith v. Palmer, No. M2017-01822-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2019), plaintiff filed a wrongful death suit against several defendants regarding the death of her daughter. The daughter and defendants were camping at a music festival, and daughter’s body was found one morning in the lake. There was a dispute as to the cause of death, and though criminal charges were not filed, plaintiff alleged that defendants “caused her daughter’s death and conspired to cover it up.”

March 4, 2019

Certificate of Good Faith Required for Negligent Supervision Claim

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

When a plaintiff filed suit against a massage therapist and his employer alleging various claims based on an intentional sexual assault, the requirements of the HCLA did not apply to the intentional tort claims against the massage therapist. For the negligent retention or supervision claim against the employer, however, a certificate of good faith was required under the HCLA.

In Jackson v. Burrell, No. W2018-00057-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2019), plaintiff alleged that during a massage, defendant massage therapist sexually assaulted her, which resulted in a genital infection and eventual outpatient surgery. Plaintiff filed suit against the therapist and his day spa employer, alleging assault and battery, intentional infliction of emotional distress, and false imprisonment against the therapist, and asserting claims for vicarious liability and negligent supervision, retention and training against the employer. Plaintiff gave pre-suit notice of her claims pursuant to the HCLA, but she did not file a certificate of good faith with her complaint. Defendants both filed motions for summary judgment based on the lack of a certificate of good faith, and the trial court granted the motions. On appeal, summary judgment as to the therapist was reversed, but the ruling for the employer was affirmed.

March 1, 2019

No Evidence From Plaintiffs Leads to Summary Judgment for Defendant

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

Where a child was injured at school but her parents had no evidence that the school had breached a duty of care or that an action by a school employee caused the injury, summary judgment was affirmed.

In Webster v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. M2018-00106-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2019), plaintiffs were the parents of a six-year-old girl with autism. While at kindergarten, the girl injured her arm, and plaintiffs brought a negligence suit under the GTLA. Plaintiffs amended their complaint more than once, and each version alleged that the injury was caused by a lack of appropriate care in the classroom. More than two years after filing suit and “after all discovery had been completed,” plaintiffs filed a motion to amend their complaint again, this time seeking to add “allegations that [the child’s] injuries occurred on the playground and that Metro was negligent in allowing her on the playground and in failing to provide appropriate supervision.” The trial court denied the motion to amend and then granted defendant’s motion for summary judgment, finding that plaintiffs could not “demonstrate that an employee of the Metropolitan Government breached a duty of care owed to plaintiffs,” and that “plaintiffs failed to prove cause in fact or proximate cause.” The Court of Appeals affirmed.

February 28, 2019

Tennessee Tort Filings and Trials – 2017-18 – Part 3

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

Two previous posts discussed Tennessee tort and health care case filings and the damages awarded in Tennessee personal injury and medical malpractice cases for the fiscal year ending June 30, 2018. This post will explore trial and damages data from the largest counties in Tennessee.

Shelby County saw 66 tort trials (33 jury, 33 nonjury) and 5 (3 jury, 2 nonjury) health care liability trials. Damages were awarded in 36 tort trials and none of the HCLA trials. The total damages awarded in tort trials was $7,228,488. There were 8 verdicts in tort trials over $100,000, one of which was over $1,000,000.
Davidson County conducted 52 tort trials (21 jury, 31 nonjury) and 4 (4 jury, 0 nonjury) health care liability trials. Damages were awarded in 36 tort trials and in 2 of the HCLA trials. The total damages awarded in tort trials was $2,509,836. There were 5 verdicts in tort trials over $100,000, one of which was over $1,000,000. The total damages awarded in HCLA trials was $968,578.

February 27, 2019

Tennessee Tort Filings and Trials – 2017-18 – Part 2

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

Yesterday we discussed the number of tort filings and dispositions in tort and health care liability cases in Tennessee and documented the number of trials in those cases. Today we look at damage awards.

In the fiscal year ending June 20, 2018, damages were awarded to the plaintiff in 98 of the 337 tort cases that went to trial. (Unfortunately, the data does not tell us whether the damages were awarded in the jury or non-jury trials.)

In fiscal 2016-17, damages were awarded to the plaintiff in 120 of 367 trials. In fiscal 2008-09, damages were awarded to the plaintiff in 281 of the 608 trials.

February 26, 2019

Tennessee Tort Filings and Trials – 2017-18 – Part 1

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

Despite what one would expect given Tennessee’s increasing population, Tennessee saw no real increase in filings of tort and health care liability cases in the fiscal year ending June 30, 2018.

There were a total of 11,081 tort cases filed in Tennessee in that year, essentially the same (an increase of 9 cases) from the 11,072 cases filed a year earlier. Health care liability filings were actually down, from 432 to 416.

A total of 10,781 tort cases were disposed of last year, very close to the 10,831 cases that were disposed of during the 2016-17 fiscal year. HCLA dispositions were up slightly, from 366 in fiscal 2016-17 to 382 last year.

February 25, 2019

Expert Required to Establish Case Against Water Distributor

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

The Court of Appeals recently held that “expert testimony is required to establish a water distributor’s applicable duty of care and breach of the same[.]”

In Tolliver v. Tellico Village Property Owners Assoc., Inc., No. E2018-00090-COA-R3-CV (Tenn. Ct. App. Jan. 7, 2019), plaintiffs were property owners whose house was damaged when a water pipeline broke. At the time of the damage a renter was living in the home, and the renter initiated this action, with plaintiff property owners joining later and asserting claims for negligence and breach of contract. Plaintiffs alleged that defendant homeowners association was negligent for “failing to properly maintain the water pipeline.” The renter consented to a judgment for defendants on his claims, leaving only the property owners as plaintiffs.

February 20, 2019

No Standard of Care Expert? No Case.

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

Where a plaintiff in an Tennessee HCLA (medical malpractice) case “failed to obtain a competent expert witness to testify on the applicable standard of care,” summary judgment as to all of her claims was affirmed.

In Akers v. Heritage Medical Associates, P.C., No. M2017-02470-COA-R3-CV (Tenn. Ct. App. Jan. 4, 2019), plaintiff was treated by a physician assistant at defendant medical center and was given a punch biopsy on her wrist. Two days later, plaintiff went to the emergency room with complications in the same area, which were diagnosed as cellulitis and staph infection.

Plaintiff subsequently filed this complaint pro se against the treating physician assistant and the medical practice, alleging that the practitioner “was not qualified to perform the punch biopsy and did not wash her hands, wear gloves, or use sterile medical equipment when performing the procedure,” and that the complications she experienced resulted from this negligence. In response to interrogatories asking plaintiff to disclose her expert witness, she identified the emergency room doctor she had seen, but failed to give additional information including his publications, other cases in which he had testified, and the compensation to be paid. Defense counsel made several attempts to get plaintiff to supplement her responses, which eventually led to plaintiff disclosing a second doctor, but providing the same very basic information about him. For both of these doctors, plaintiff stated that they would testify that her injuries “could not likely have been the result of any factors other than negligence on the part of…Defendants,” but she did not mention standard of care testimony in the description of either named expert.

February 19, 2019

Motion to Set Aside Judgment Must Show a Meritorious Defense

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

When a plaintiff files a motion to set aside a final order granting summary judgment, he must “demonstrate that [he] had a meritorious defense” in such motion.

In Berge v. Warlick, No. M2018-00767-COA-R3-CV (Tenn. Ct. App. Jan. 3, 2019), plaintiffs filed a legal malpractice claim against defendant. Defendant filed a motion for summary judgment, and he sent a copy of the motion to plaintiffs’ attorney on September 7, along with a notice that it was scheduled for hearing on October 20, 2017. Plaintiffs never responded to the motion, and on the day a response was due, defendant sent a second copy of the motion to plaintiffs’ attorney via U.S. mail and email. Neither plaintiffs nor their attorney showed up for the hearing, and they did not respond to a proposed order granting summary judgment sent by defendant.