Civil Procedure

June 9, 2017

Testimony on Whether Doctor “Did Her Best” Excluded in Medical Malpractice Case

In Bradley v. Bishop, No. W2016-01668-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2017), the Court of Appeals affirmed a jury verdict for defendants in a health care liability case.

For eight years, plaintiff had been treated for a fibroid in her uterus that caused extensive bleeding. In 2012, another fibroid was discovered, and after an unsuccessful surgery to remove the fibroid, plaintiff decided to undergo a hysterectomy. Defendant doctor recommended a laparoscopic hysterectomy, but warned plaintiff that she might have to convert to an open procedure. During the surgery, defendant did convert to an open procedure. Defendant called for surgical back-up, but no one was available, and defendant determined that she could complete the procedure herself. During the procedure, defendant noticed a “superficial cut” on plaintiff’s colon, but she did not see or notice any signs of a bowel injury. In the days following the hysterectomy, plaintiff’s “condition deteriorated,” and she was eventually diagnosed with a bowel injury which required surgical repair, three weeks of hospitalization, and additional procedures in the following years.

Plaintiff filed this suit, alleging that defendant “negligently caused injury to [plaintiff’s] small bowel.” Throughout the litigation, causation was not contested, as defendant admitted that the bowel was injured during the surgery. Whether defendant’s actions met the applicable standard of care, however, was hotly contested, with several experts testifying for both sides. Plaintiffs’ experts testified that defendant had fallen below the standard of care, that a different type of hysterectomy would have been more appropriate, that defendant had made mistakes during the surgery, and that defendant should have noticed the bowel injury. Defendants’ experts, however, testified that the chosen procedure was appropriate, that defendant acted in accordance with the standard of care at all times, and that bowel injuries were a common complication of hysterectomies and could occur even when the surgery was done appropriately. Ultimately, the jury returned a verdict for defendant, finding that defendant “did not deviate from the recognized standard of care,” which the trial court affirmed as thirteenth juror. On appeal, the Court of Appeals also affirmed.

June 5, 2017

Tennessee COA Reverses Order – Too Similar to that Drafted by Winning Party

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

In Battery Alliance, Inc. v. Allegiant Power, LLC, No. W2015-02389-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2017), the Court vacated a summary judgment order for defendants because the trial court failed to state the legal grounds for summary judgment before asking counsel for defendants to draft an order.

The facts underlying this case revolved around the president and other employees of a Tennessee battery company leaving and starting a competing battery company in Florida. Plaintiff, the Tennessee company, filed suit against the Florida company and several individual defendants, citing various causes of action including intentional interference with business relationships. Defendants filed a counterclaim against plaintiff and also filed a motion for summary judgment. In response to defendants’ filings, plaintiff filed a motion to dismiss the counterclaim.

May 15, 2017

Patient Alleging Rape at Hospital – Pre-suit Notice Not Required

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

In Cordell v. Cleveland Tenn. Hosp., LLC, No. M2016-01466-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2017), the Court of Appeals reversed dismissal in a case filed against a hospital, determining that the complaint did not contain claims covered by the HCLA and that the plaintiff was thus not required to follow the HCLA statutory requirements.

Plaintiff was taken to defendant hospital by “police who were concerned that she had taken too high of a dosage of prescribed medication.” She was put in a hospital room, and her husband alleged that when he arrived to see her he was forced to leave. Plaintiff had her cell phone, and she called her husband to tell him that the security guard outside her room was making her uncomfortable. She stated that he “kept opening her door and coming into her room in order to stare at her.” Plaintiff’s husband called the hospital to complain, and plaintiff alleged that the security guard then took her phone away. Plaintiff was relocated to another room, but she allegedly had “no recollection of any events that took place in the twelve-plus hours following her relocation.” The next evening, she was told she was being transferred to another hospital, and while there she “noticed blood and soreness when she used the restroom.” After she was discharged, she felt pain while showering and her husband observed “several injuries on her vaginal and anal areas.” She went to her obstetrician the next day, where “evidence of rape, including semen, was discovered.”

May 3, 2017

It Takes Evidence to Defeat A Motion for Summary Judgment

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

In Rushing v. AMISUB Inc., No. W2016-01897-COA-R3-CV (Tenn. Ct. App. Feb. 8, 2017), a premises liability claim once again failed when the plaintiff had no evidence regarding how long the dangerous condition existed or who had created it.

Plaintiff was walking into defendant hospital’s emergency room, and as she approached the registration desk she allegedly “slipped and fell in a clear liquid on the floor.” Plaintiff filed this premises liability suit against the hospital and at some point was represented by counsel, though by the time of the trial court’s grant of summary judgment she was proceeding pro se. In its answer, the hospital alleged comparative fault against its housekeeping management service, which plaintiff then added as a defendant.

Defendants moved for summary judgment on the basis that plaintiff could not prove notice of the alleged spill. In her response, plaintiff stated that two hospital employees “admitted that the spill was sprite. They said that they had contacted the housekeeping company…to remove the spill. To their knowledge they thought the employees had gotten it up but apparently not.” At the summary judgment hearing, the trial court determined that these two employees had not been deposed and accordingly gave plaintiff sixty additional days for discovery. When the second hearing occurred, plaintiff had still not deposed the two employees who she claimed admitted that they knew the liquid was on the floor. Finding that “plaintiff’s evidence is insufficient to establish an essential element of her claim, which is notice of the allegedly dangerous condition,” the trial court granted defendants’ motions for summary judgment. The Court of Appeals affirmed.

May 1, 2017

Amount of Attorneys’ Fees Awarded as Sanction Must be Causally Related to Misconduct

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

The United States Supreme Court recently analyzed a federal court’s “inherent authority to sanction bad-faith conduct by ordering a litigant to pay the other side’s legal fees,” holding that such an award was “limited to the fees the innocent party incurred solely because of the misconduct.”

In Goodyear Tire & Rubber Co. v. Haegger, No. 15-1406, 581 U.S. ____ (April 18, 2017), the Haeger family had sued Goodyear after a Goodyear tire allegedly failed and caused their motorhome to flip over. During the original suit, Goodyear was slow and unresponsive to many of the Haegers’ discovery requests, especially when the Haegers requested internal company tests for the tire at issue. The case eventually settled just before trial. Months later, the Haegers’ attorney noticed a news story indicating that, in a similar suit, Goodyear had disclosed “test results indicating that the tire got unusually hot at highway speeds.” Goodyear subsequently admitted to the attorney that it had withheld information in the Haeger suit.

Because the case had already settled, the district court was limited in its options when addressing Goodyear’s misconduct, and “[a]ll it could do for the Haegers was to order Goodyear to reimburse them for attorney’s fees and costs paid during the suit.” The district court determined that this award could be “comprehensive, covering both expenses that could be causally tied to Goodyear’s misconduct and those that could not.” The district court calculated all the Haegers’ litigation expenses after the very early moment when Goodyear first dishonestly responded to discovery and awarded the Haegers $2.7 million. When explaining its award, the district court stated that while the usual case requires the fees awarded to be causally related to the misconduct, the misconduct in this case “rose to a truly egregious level.” The district court found that the level of misconduct here meant that all attorneys’ fees could be awarded with no need to find a causal link between the fees and the sanctioned party’s conduct.

April 21, 2017

No Misrepresentation where Plaintiffs Had Access to Information

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

In Haynes v. Lunsford, No. E2015-01686-COA-R3-CV (Tenn. Ct. App. Feb. 2, 2017), the Tennessee Court of Appeals affirmed summary judgment for a real estate agent and agency on a misrepresentation claim where plaintiffs had access to the same information as defendants.

Plaintiffs contacted defendant real estate agent, who worked for the defendant agency, about buying a log cabin. While looking at MLS with defendant, plaintiffs found the cabin they eventually purchased. Defendant was not the listing agent on this cabin. Defendant and plaintiff visited the cabin together and both felt it looked new and “smelled great.” Plaintiffs had a home inspection done prior to the purchase, which revealed some “common cracks” but did not mention mold. Plaintiffs did not “take any action to make sure the basement was moisture free” before the purchase.

Before the closing, defendant sent plaintiff all the documents in her possession, including the MLS listing, the CRS property report, seller’s disclosure, the home inspection report, and the seller’s warranty deed. The deed showed that a bank was the grantor, which defendant admitted could mean that the property had been involved in a foreclosure. Plaintiffs closed on the cabin and moved in, and five months later they “began smelling a mildew type odor.” Six months after the purchase, an inspector found moisture in a wall, and some months after that, mold spores were found.

Plaintiffs brought suit against defendant real estate agent and the agency she worked for, alleging that “the cabin was presented to them as ‘new’ and ‘just recently built.’” Plaintiffs’ complaint included claims of fraudulent misrepresentation, failure to disclose adverse facts, and violations of the Tennessee Consumer Protection Act. Plaintiffs asserted that “the cabin had a moisture and mold problem about which the defendants knew or should have known,” and that “defendants had a duty to disclose the moisture and mold problems to plaintiffs[.]”

The trial court granted defendants’ motion for summary judgment, finding that there was “no evidence whatsoever that Defendants…were aware of mold being present in this house,” and that “plaintiffs had the same information that [defendants] had about the home.” The Court of Appeals affirmed this ruling.

April 20, 2017

Summary Judgment Vacated When Order Failed to State Reason for Decision

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

In Battery Alliance, Inc. v. Allegiant Power, LLC, No. W2015-02389-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2017), the Tennessee Court of Appeals vacated a summary judgment order for defendants because the trial court failed to state the legal grounds for summary judgment before asking counsel for defendants to draft an order.

The facts underlying this case revolved around the president and other employees of a Tennessee battery company leaving and starting a competing battery company in Florida. Plaintiff, the Tennessee company, filed suit against the Florida company and several individual defendants, citing various causes of action including intentional interference with business relationships. Defendants filed a counterclaim against plaintiff and also filed a motion for summary judgment. In response to defendants’ filings, plaintiff filed a motion to dismiss the counterclaim.

The trial court held a hearing on the motions and denied plaintiff’s motion to dismiss, but it “took the motion for summary judgment under advisement.” The next day, the judge’s law clerk emailed counsel for the parties and said the judge was going to grant summary judgment to defendants, and further asked defense counsel to “draw up the order.” At a subsequent hearing on a motion to compel, “counsel for Plaintiffs requested that the court provide its legal reasoning supporting the decision to grant Defendants’ motion for summary judgment prior to entry of the judgment.” The trial court replied that the reasoning would be provided in its order. The trial court further stated that “counsel for Defendants was preparing only a ‘template’ for the court’s order and that the actual court order entered would be the court’s ‘work.’” Weeks later, defendants sent the template to the court, plaintiff lodged an objection to the template, and the court eventually entered an order granting summary judgment.

March 29, 2017

HCLA (Medical Malpractice) Claim Dismissed – Notice Insufficient

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

A recent Court of Appeals opinion shows yet another case of a potentially valid health care liability claim failing because of plaintiff’s failure to follow the goofy yet mandatory procedural notice requirements of the HCLA statute.

In Piper v. Cumberland Medical Center, No. E2016-00532-COA-R3-CV (Tenn. Ct. App. Jan. 20, 2017), plaintiff wife sued after her husband died while under the care of defendant physicians and hospital. According to the allegations in the complaint, husband went to the hospital due to fatigue and was diagnosed with stage four kidney failure. Plaintiff asserted that ten days after her husband’s admission to the hospital, one of the defendant physicians told her that “it was a shame they couldn’t treat her husband due to his religious beliefs.” At this point, plaintiff discovered that her husband had incorrectly been identified as a Jehovah’s Witness. She corrected the information and gave consent to treat, but her husband died shortly thereafter. Plaintiff alleged that defendants provided negligent treatment and “were negligent because they incorrectly assumed that Decedent’s religious beliefs guaranteed that he would reject available life-saving treatment and because they failed to ask Decedent or [plaintiff] for permission to administer such treatment.”

March 28, 2017

Limit on Right of Surviving Spouse to Bring Wrongful Death Claim

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

While a surviving spouse typically has the superior right to bring a wrongful death suit, there are certain exceptions to that rule. In Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017), the Court held that a suit filed by the deceased’s daughter rather than her husband could proceed, as the husband was alleged to have at least partially caused her death.

Wife died in a multi-car accident while she was a passenger in a vehicle driven by her husband. In the accident, husband and a car driven by Mr. Bennett collided, then those two vehicles crossed into opposing traffic and hit two other vehicles. Both the husband and daughter of deceased wife filed wrongful death actions. The trial court dismissed daughter’s action, holding that her action “must yield to the claim of the surviving spouse.” The Court of Appeals reversed and reinstated daughter’s complaint.

In her complaint, daughter named husband as a defendant and alleged that husband was guilty of negligence and negligence per se because he was driving under the influence and was traveling at a high rate of speed, racing Mr. Bennett. In the suit filed by husband, Mr. Bennett was the only defendant named, and husband alleged that “Mr. Bennett’s actions were the sole cause of the accident and death of [wife].”

March 7, 2017

One Year Statute of Limitations Bars Misrepresentation Claims

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

In Sakaan v. FedEx Corporation, Inc., No. W2016-00648-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2016), the Court of Appeals affirmed dismissal of a misrepresentation claim based on the statute of limitations.

Plaintiff had previously been employed by defendant FedEx, and had been presented with a severance package as part of a cost-cutting initiative by the company. Before signing the severance agreement, plaintiff asked about how it would affect his ability to work on FedEx projects that were staffed by third-party vendors, and he “allege[d] he was assured that his acceptance of the severance agreement would not prohibit him from working on FedEx projects sourced through a third-party vendor.” Plaintiff signed the agreement in March 2013, officially left his employment in November 2013, and was hired by a company that contracted with FedEx. In his role with this new company, he attended a meeting at FedEx on December 19, 2013. When members of the FedEx legal team recognized him, they had him removed from the premises, and “he has not worked on a FedEx project since that time.”

Plaintiff filed suit on April 21, 2015, making claims for intentional and negligent misrepresentation. After filing their answers, defendants moved for judgment on the pleadings based on the statute of limitations, which the trial court granted. The trial court determined that the one-year statute of limitations found in Tenn. Code Ann. § 28-3-104(a)(1) applied to this matter, and that the claims were thus time-barred. The Court of Appeals affirmed.