Civil Procedure

May 3, 2017

It Takes Evidence to Defeat A Motion for Summary Judgment

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.

February 15, 2017

Exclusion of Expert Testimony Reversed – New Trial Ordered

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

In Holmes v. Christ Community Health Services, Inc., No. W2016-00207-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2016), the Court of Appeals overturned the exclusion of expert testimony in an HCLA case.

In 2004, plaintiff fell and hurt her right shoulder, and she did not seek treatment until five days after her fall. When she visited defendant doctor, he examined her shoulder and diagnosed her with bursitis, never ordering an x-ray or other scan. Defendant doctor recommended an exercise program to plaintiff. Plaintiff’s pain continued to worsen, and she saw a different doctor a month later. This doctor took an x-ray of her shoulder and referred her to an orthopedic surgeon, who ordered a CT scan. The scan showed that plaintiff had a fracture dislocation. She was then sent to Dr. Weiss, a surgeon specializing in shoulder injuries, who performed open reduction surgery on plaintiff. During surgery, Dr. Weiss determined that plaintiff’s shoulder socket was “so badly damaged that it had to be repaired utilizing a cadaver bone piece and surgical screws.” Plaintiff suffered many complications, including a severe infection, an additional surgery, and a PICC line for antibiotics. After her shoulder healed, plaintiff was left with a “partial physical impairment.”

February 14, 2017

Tennessee’s “Rule of Sevens” Applied to Dismiss Case

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

Citing the Rule of Sevens, the Court of Appeals recently affirmed a finding that a 13-year-old was solely responsible for his injury when he fell on the bleachers at his school.

In Crockett v. Sumner County Board of Educ., No. M2015-02227-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), injured plaintiff and his parents sued his school after he fell on bleachers in the gym. Plaintiff was attending summer school, and the day before his injury someone had intentionally caused flooding in a boys’ bathroom. Because no one would confess, two coaches had all of the eighth grade boys help clean the bathroom and pick up trash from the bleachers. According to plaintiff, he mopped the bathroom and then was told to begin helping in the bleachers, though the coach supervising the work testified that plaintiff was not told to work in the bleachers after mopping.

At the time of his injury, plaintiff was using the bleacher seats as stairs, rather than using the designated stairway on the bleachers. Plaintiff stated that the coach had left the gym when he fell, but the coach testified that he had left for a couple of minutes to retrieve a dry mop and had returned to the gym by the time of plaintiff’s accident.

During a bench trial, plaintiff testified that “he knew from the time he was a little kid that he was not supposed to use the bleacher seats as steps,” and that such usage could cause injury. He further testified that he “just wasn’t thinking about it” at the time of the accident. Two coaches from his school testified that they had told the students on many occasions not to use the seats as steps but to instead use the designated steps, which had non-slip material on them.

January 8, 2017

Blank HIPAA Form Deemed Non-Compliant by Tennessee Court

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

In J.A.C. v. Methodist Healthcare Memphis Hospitals, No. W2016-00024-COA-R3-CV (Tenn. Ct. App. Nov. 2, 2016), a plaintiff lost her chance to pursue her Tennessee medical malpractice claim due to an insufficient HIPAA release form.

Plaintiff was forty weeks pregnant when she went to the defendant hospital with lower back and abdominal pain on January 23, 2012, and she was found to have elevated blood pressure. Plaintiff was nonetheless discharged. She had her baby the next day, January 24, 2012, and a placental abruption was noted. The baby, a girl, allegedly “sustained severe brain damage that would not have occurred but for the Providers’ actions in failing to properly treat [plaintiff].”

Plaintiff filed this action on May 1, 2015, purportedly on behalf of both herself and her daughter. Plaintiff alleged that she followed the pre-suit notice requirements of the HCLA, but defendants moved to dismiss the case based on an insufficient HIPAA form. Defendants argued that, because the HIPAA form was insufficient to fulfill the statutory requirements, plaintiff was not entitled to the 120-day extension provided by the HCLA, and that her suit was thus filed outside the three-year statute of repose.