Articles Posted in Civil Procedure

When an additur changed a jury verdict from $300,000 to over $1.3 million, the Court of Appeals ruled that it destroyed the jury’s verdict.

In Walton v. Tullahoma HMA, LLC, No. M2017-01366-COA-R3-CV (Tenn. Ct. App. June 7, 2018), plaintiff brought a health care liability and wrongful death claim after her husband died while in defendant’s hospital being treated for kidney stones. According to plaintiff, her husband was put on a pain pump to self-administer morphine, and she was told to press the button while he slept, which she did. The husband coded the following morning, suffered brain damage, and was eventually taken off life support.

Plaintiff filed this HCLA/ wrongful death suit, seeking medical expenses, the pecuniary value of husband’s life, and damages for a loss of consortium claim. Defendant hospital answered and asserted that plaintiff was comparatively at fault for administering the pain medication to her husband. After a trial, a jury found defendant 51% at fault and plaintiff 49% at fault, and determined that the total damages were $300,000, which included “$300,000 for loss of earning capacity and $0 for loss of consortium.”

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When a plaintiff files a complaint within the statute of limitations but fails to have process issued and served within the required time parameters, an extension of time for service of process may be granted if a trial court finds excusable neglect.

In Edwards v. Herman, No. E2017-01206-COA-R9-CV (Tenn. Ct. App. May 16, 2018), plaintiff filed a personal injury case based on an automobile-motorcycle accident. The complaint was filed within the one-year statute of limitations on April 21, 2015, and process was issued, but the “original summons was never returned to the trial court and…there is no record of it having been served upon [defendant].” On May 26, 2016, an alias summons was issued, which was served on defendant on June 11, 2016. On July 21, 2016, the sheriff’s department sent a letter to the court clerk stating that they could not find the original summons. The “issuance and service of process undisputedly occurred after the one-year deadline contained in Tennessee Rule of Civil Procedure 3.”

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When a plaintiff refuses to comply with an order to submit to a medical examination under Rule 35 of the Tennessee Rules of Civil Procedure, the trial court may refuse to allow the plaintiff to introduce evidence of medical expenses at trial.

In Prewitt v. Brown, No. M2017-01420-COA-R3-CV (Tenn. Ct. App. April 30, 2018), plaintiff was injured in a car accident with defendant. Defendant admitted that he was at least partially at fault, but  “disputed the nature and extent of Plaintiff’s injuries.” After initial discovery, defendant “filed a Tenn. R. Civ. P. 35 motion for an Independent Medical Examination (IME) (sic),” which the trial court granted.

(Note: a Rule 35 examination is not an “independent medical examination” but rather an examination, usually of a plaintiff, by a doctor of an adversary’s choosing.  Calling such an examiner “independent” is untrue and unfair.  In the typical case, a fairer label would be “defense medical examination (“DME”).)

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In some circumstances, a typed name may qualify as a signature on a pleading.

In Jones v. Mortgage Menders, LLC, No. M2017-01452-COA-R3-CV (Tenn. Ct. App. Feb. 21, 2018), plaintiff initially filed his complaint in 2006, then took a voluntary nonsuit on February 12, 2016. Plaintiff, acting pro se, filed a “purported complaint” on February 2, 2017, attempting to re-assert the original claims. This pleading “featured his typewritten name rather than his handwritten signature.”

The court clerk alerted plaintiff to the lack of signature , but instead of signing the complaint, plaintiff “signed a certificate of service.” Defendants moved for summary judgment, which the trial court granted, finding that the lack of signature meant that the complaint did “not satisfy the signature requirement under Rule 11,” and further finding that the purported complaint was so deficient as to not be a complaint at all. The Court of Appeals overturned these holdings.

When a plaintiff asserts the discovery rule as a response to a statute of limitations defense, some documents covered by the attorney-client privilege may become discoverable.

In Outpost Solar, LLC v. Henry, Henry & Underwood, P.C., No. M2016-00297-COA-R9-CV (Tenn. Ct. App. Dec. 29, 2017), “two companies brought suit against their former attorney for legal malpractice.” Defendant attorney moved for summary judgment based on the statute of limitations, and plaintiff “responded that it learned of its cause of action within one year of the assertion of the claim.” Defendant tried to use discovery requests to obtain communications between plaintiff and the new attorney, but plaintiff refused, asserting the attorney-client privilege. Defendant moved to compel production, which the trial court granted, “holding that the client impliedly waived attorney-client privilege in asserting that the client discovered the cause of action within the year preceding the assertion of the claim.”

The trial court appointed a special master “to determine whether any of the 151 documents which [plaintiff] had withheld from production as privileged were relevant to [defendant’s] statute of limitations defense.” The special master found that eight were relevant, and the trial court ordered that those eight documents be produced, noting that “plaintiffs put their privileged information at issue by pleading the discovery rule.” On appeal, the decision and process was affirmed.

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The American College of Trial Lawyers recently released on white paper on attorney-client privilege.  The paper updates an earlier publication on the subject.

The paper is an excellent summary of the law in this area, and is especially helpful to those of us in smaller states that have a less established body of law in this field.

A Rule 60.02 motion to set aside the final judgment in a Tennessee wrongful death action was deemed untimely when filed almost twenty months after the order of dismissal.

In Hussey v. Woods, No. W2014-01235-SC-R11-CV (Tenn. Dec. 18, 2017), decedent and Ms. Harris had a long-term relationship but were never married, but Ms. Harris had a child during this time period in 2005. When sued for support by the Mississippi Department of Human Services, decedent “signed an agreement admitting that he was the natural father of the child[.]” In 2008, decedent “died after being detained and handcuffed by the manager of a Family Dollar store in Memphis.” Decedent’s mother, with whom he lived, contacted an attorney about filing a wrongful death suit. This first attorney met with both mother and Ms. Harris in December 2008, and Ms. Harris “signed an agreement retaining [the attorney] to represent Ms. Harris and [decedent’s] minor child in a wrongful death suit against the Family Dollar store.”

In July 2009, the first attorney sent a family representative a letter declining representation. In November 2009, decedent’s mother hired another firm and filed a wrongful death suit as next of kin. This suit settled in March 2010, and a consent order of dismissal with prejudice was entered. Ms. Harris was not told about this suit, but in December 2011 she filed a motion to set aside the judgment under Tennessee Rule of Civil Procedure 60.02 on behalf of the child, after having consulted with a legal aid attorney. In response to the motion, decedent’s mother argued that there were questions regarding the child’s paternity and that attempts to contact Ms. Harris had been unsuccessful.

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