Civil Procedure

March 21, 2025

Exclusion of HCLA expert as discovery sanction vacated.

Where an HCLA plaintiff failed to provide deposition dates for her expert witness by the deadline listed in the scheduling order, but she filed a motion to revise the scheduling order on the day of the deposition deadline, exclusion of the plaintiff’s expert was too harsh a sanction and was vacated.

In Buckley v. Jackson Radiology Associates, P.A., No. W2023-01777-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2025), the plaintiff filed an HCLA suit in 2016. Due to a motion for a qualified protective order, the case was stayed pending the outcome of a separate case. After the stay was lifted, the trial court set a scheduling order in September 2021. This scheduling order was later modified to require the plaintiff to disclose her expert by February 13, 2023, and to have all expert depositions completed by June 12, 2023.

The plaintiff disclosed Dr. Esposito on February 13, 2023. Counsel for the defendants immediately requested available deposition dates. According to the defendants, they requested deposition dates several times and received no response from the plaintiff. The plaintiff explained in her appellate brief that Dr. Esposito’s wife filed for divorce during this time and he did not cope well, causing the scheduling issues.

March 14, 2025

Defense jury verdict affirmed in case involving patron falling from stage

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

In a negligence case, a brief reference to the lottery during opening statements and an unintentional mention of employment benefits that paid partial wages during the plaintiff’s time off work were not enough to require overturning the jury verdict for defendant.

In Campbell v. T.C. Restaurant Group, LLC, No. M2024-00362-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2025), the plaintiff filed a negligence claim against a musician and the bar at which he performed. When the musician did a birthday shoutout on stage, the plaintiff climbed onto the stage. The plaintiff stated that the musician grabbed her, spun her around, and then dropped her off the stage. The musician testified that he tried to guide the plaintiff off the stage, but she was drunk and stepped off the stage, causing her to fall. The plaintiff hit her head and was diagnosed with a concussion several days later. At trial, the plaintiff’s credibility was called into question when her testimony regarding her medical status appeared to conflict with online videos that had been posted showing her dancing.

The jury returned a verdict for the defendant, finding that the musician was not at fault for the plaintiff’s injuries. The plaintiff moved for a new trial, citing two errors: 1) a reference during opening statements that the plaintiff hoped to be “a lottery lawsuit winner,” and 2) an alleged violation of the collateral source rule. The trial court denied the motion, and the Court of Appeals affirmed the jury’s verdict.

February 20, 2025

Previous party brought back into suit under comparative fault statute.

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

When an amended answer asserted comparative fault against the city, which had previously been a party but had been voluntarily dismissed before the amended answer was filed, the plaintiff was allowed to add the city as a defendant within ninety days of the comparative fault allegation under Tenn. Code Ann. § 20-1-119.

In Sands v. Williard, No. W2024-00772-COA-R9-CV (Tenn. Ct. App. Jan. 24, 2025), the plaintiff filed suit against both the city and homeowners after she tripped on a sidewalk in front of the homeowners’ property. The city raised an issue about service of process in its initial answer. In their initial answer, the homeowners admitted to two paragraphs stating that the city had a duty, but there was no other allegation of comparative fault.

The city eventually filed a motion for summary judgment based on the statute of limitations, asserting that it was not properly served and, thus, the limitations period had run. While this motion was pending, the homeowners moved to amend their answer to assert comparative fault against the city. The plaintiff then moved to voluntarily dismiss her claim against the city. The plaintiff explained in her motion that “the purpose of the dismissal was to avoid the alleged outstanding service issues” and that she intended to rely on Tenn. Code Ann. § 20-1-119 to bring the city back into the suit after the homeowners filed their amended answer. The trial court granted the voluntary dismissal, and it allowed the plaintiff to bring the city back into the suit after the homeowners’ amended answer asserted comparative fault against the city.

January 6, 2025

HCLA (Medical Malpractice) summary judgment based on cancellation rule affirmed.

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

Because an HCLA (Medical Malpractice) plaintiff is required to prove the elements of his claim through expert testimony, summary judgment was affirmed after the trial court applied the cancellation rule to plaintiff’s expert’s conflicting testimony regarding damages.

In Simmons v. Islam, No. M2023-01698-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2024), the plaintiff filed an HCLA claim alleging that the defendant psychiatrist had engaged in improper, sexualized conduct directed toward the plaintiff. When his claim was filed, the plaintiff relied on Expert 1, but Expert 1 dropped out of the case after depositions.

The defendants filed a motion for summary judgment, asserting that without Expert 1 plaintiff could not prove his case. The plaintiff requested more time to identify a new expert, which the trial court granted. The plaintiff then disclosed Expert 2. In Expert 2’s affidavit, she stated that the plaintiff suffered damages as a result of the defendant’s conduct. During her deposition, however, she testified that you would expect damages and that they were possible, but that she “didn’t go into damages. I just basically put that you would expect damages, damages can be reignited.”

December 20, 2024

TPPA petition to dismiss not affected by nonsuit where defendant also filed motion for summary judgment.

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

Where defendant had filed both a TPPA petition to dismiss and a motion for summary judgment, plaintiff was not allowed to voluntarily dismiss the action against that defendant.

In Garramone v. Dugger, No. M2023-00677-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2024), plaintiff filed a false light invasion of privacy claim against defendants based on events that occurred when plaintiff ran for re-election as a city commissioner. According to plaintiff, defendants were involved in creating a website that alleged plaintiff had been given a free pass on drinking and driving and speeding because she was a commissioner.

Defendant Curtsinger and Defendant Patrick both filed petitions to dismiss under the Tennessee Public Participation Act. Defendants asserted that the claim was related to their exercise of free speech. Defendant Patrick also filed a motion for summary judgment.

December 4, 2024

Discoverability of Surveillance Films

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

On Wednesday, December 4, 2025, the Tennessee Supreme Court heard an oral argument about the ability of a plaintiff to discover surveillance films a defendant took. Here is how the Court described the background of the case:

Plaintiffs/Appellants Teresa and Randy Locke filed a health care liability action alleging that Defendants/Appellees negligently performed a surgery on Ms. Locke’s colon. While the case was pending, Defendants hired a private investigator to take surveillance videos of the Plaintiffs in an attempt to show that Ms. Locke was exaggerating her injuries. Thereafter, the Defendants expressed their intention to use some of the surveillance footage at trial. The Plaintiffs sought to obtain all the private investigator’s surveillance videos, including those that the Defendants did not intend to use at trial. The trial court rejected the Plaintiffs’ request under the work-product doctrine, requiring the Defendants to produce only the videos they intend to use at trial. The Court of Appeals granted the Plaintiffs’ request for permission to appeal. The Court of Appeals concluded that the trial court did not abuse its discretion in shielding the surveillance videos from discovery and affirmed the trial court’s decision to limit production to the videos that the Defendants intended to use at trial. The Tennessee Supreme Court granted the Plaintiffs’ application for permission to appeal to determine whether a litigant has a “substantial need” under Tennessee Rule of Civil Procedure 26.02(3) to obtain surveillance footage collected in anticipation of litigation or preparation for trial when the party who conducted the surveillance designates some, but not all, of the surveillance footage for use at trial.

The oral argument is being conducted at Austin Peay State University in Clarksville, Tennessee, as part of the Court’s SCALES program. It begins at 9:00 a.m. and will be live-streamed on the Court’s YouTube channel.

November 25, 2024

Trial court dismissal of uninsured motorist carrier overturned.

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

Where the trial court dismissed plaintiff’s claims against her uninsured motorist insurance carrier without stating any reason for the dismissal, the dismissal was vacated.

In Saulsberry v. Shannon, No. W2023-00532-COA-R3-CV (Tenn. Ct. App. Nov. 18, 2024) (memorandum opinion), the plaintiff filed suit against several defendants in connection with a car accident: the Shannons, three John Does, and the plaintiff’s uninsured motorist insurance carrier. Service was never issued for the John Does, and service on the Shannons was returned as “service incomplete.” No additional service was issued for the Shannons.

Plaintiff eventually moved to have her case consolidated with one the Shannons had filed against her. Consolidation was granted. Counsel for plaintiff and counsel for the Shannons corresponded about the complaint initially filed by plaintiff, but no additional summons was issued.

November 1, 2024

Tennessee Supreme Court rules that TPPA petition does not affect right to nonsuit.

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

The Tennessee Supreme Court has affirmed that the filing of a TPPA petition to dismiss by a defendant does not bar a plaintiff from voluntarily dismissing a case.

In Flade v. City of Shelbyville, — S.W.3d —, No. M2022-00553-SC-R11-CV (Tenn. Oct. 9, 2024), plaintiff filed suit against several defendants asserting claims for libel, intentional interference with business, and intentional infliction of emotional distress. These claims were based on statements allegedly made by defendants about plaintiff on social medial and through text messages.

In addition to motions to dismiss, two defendants filed petitions to dismiss under the Tennessee Public Protection Act (“TPPA”). Before the scheduled hearing for these petitions, plaintiff filed a notice of voluntary dismissal. The trial court dismissed the matter without prejudice pursuant to Tennessee Rule of Civil Procedure 41.01, and it denied defendants’ “Notice of Intent to Proceed” with their TPPA petitions. The Court of Appeals affirmed the allowance of the nonsuit and the refusal to consider defendants’ TPPA petitions thereafter, and in this opinion, the Tennessee Supreme Court affirmed this ruling.

October 18, 2024

Tennessee savings statute measured from dismissal of first tort complaint.

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

A third complaint filed more than one year after dismissal of the original complaint did not fall within the savings statute and was time barred.

In Abdou v. Brown, No. 2023-01593-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2024), plaintiff filed a complaint alleging several tort claims, including assault, battery, and trespass. This was the third complaint alleging these claims against the same defendant. The first complaint was filed in July 2017 and voluntarily dismissed in September 2019. The second complaint was filed in October 2019 and voluntarily dismissed in September 2022. This third complaint was filed in September 2023.

Defendant filed a motion to dismiss based on the statute of limitations. The trial court granted dismissal, and the Court of Appeals affirmed.

July 29, 2024

Default judgment and damages affirmed in shooting case

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

Where a premises liability defendant failed to file an answer and first participated in the case seven years after it was commenced, denial of his motion to set aside the default judgment was affirmed.

In Crutcher v. Ellis, No. M2023-00283-COA-R3-CV (Tenn. Ct. App. June 4, 2024), plaintiff was shot at point-blank range in a nightclub. Plaintiff filed this premises liability case against several defendants in 2015, but the only defendant at issue in this appeal was the owner and operator of the nightclub.

Defendant failed to respond to the complaint, and plaintiff obtained a default judgment. Defendant made no appearance whatsoever in the case until February 2022, when he appeared at the hearing on plaintiff’s motion to set a date to determine damages. The damages hearing was set for August 2, 2022. Defendant filed a motion for continuance the day before that hearing, which was denied.