Civil Procedure

February 20, 2024

Practical Procedure and Evidence Blog

My other blog is Practical Procedure and Evidence. This is where I share new case law and practical tips on using the rules of procedure and evidence in your Tennessee law practice.

By way of example, today’s post addresses the issue of whether a plaintiff who is facing a motion to amend may amend his, her or its complaint without filing a motion to amend. The answer is “yes,” so long as the plaintiff has not previously amended the complaint and no answer has been filed. The post includes citations to the relevant case law.

There are 100 other posts similar to this one – posts the advise (or remind) you on a given issue of procedure or evidence and give you citations to the relevant case law. Each post gives you a real head start on researching evidence and procedure issues.

January 5, 2024

Major TSC Opinion – Blame-Shifting and HCLA Medical Expense Recovery

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

According to the Tennessee Supreme Court, where an HCLA defendant did not assert in his answer that a non-party physician was the cause-in-fact of plaintiff’s injuries, the trial court did not err by excluding evidence supporting that allegation at trial, even when the defendant did not seek to prove that the other physician was negligent. Further, where plaintiff’s medical bills were discounted due to an insurance policy plaintiff purchased and paid for privately, the collateral source rule was not abrogated under Tenn. Code Ann. § 29-26-119, and plaintiff could use the “full, undiscounted medical bills to satisfy the burden of proving the reasonable value of medical expenses.”

In Crotty v. Flora, 676 S.W.3d 589 (Tenn. 2023), plaintiff filed an HCLA claim against defendant doctor, alleging that her ureter was perforated during a surgery performed by defendant. Five days after the surgery performed by defendant, plaintiff had to have a second surgery, which was performed by Dr. Wiatrak. Plaintiff’s ureter perforation was found during this second surgery.

Plaintiff did not name Dr. Wiatrak as a defendant in her HCLA case. When defendant filed his answer, he reserved the right to amend his answer to assert comparative fault allegations, but he never did so.

December 26, 2023

Conservator had authority to release HCLA claims against doctor.

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

A disabled person’s conservator had the authority to enter into a consent agreement releasing the person’s HCLA claims against a doctor without approval from the probate court.

In Hamilton v. Methodist Healthcare Memphis Hospitals, No. W2022-00054-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2023), plaintiff filed an HCLA suit as conservator on behalf of a disabled 24-year-old patient. In the original suit, plaintiff conservator named multiple defendants, including a doctor and defendant hospital. All claims against the hospital were based on its vicarious liability for the actions of the doctor.

At the end of a jury trial, the jury was unable to come to a unanimous verdict, and plaintiff conservator was granted a mistrial. The conservator thereafter entered into a consent agreement with the doctor whereby she agreed not to name the doctor as a defendant in any subsequent suit in exchange for the doctor not pursuing discretionary costs related to him being voluntarily dismissed from the original suit. The same day the consent agreement was signed, plaintiff refiled the HCLA claim against the hospital, naming the hospital as the sole defendant and alleging that it was vicariously liable for the actions of the doctor.

December 13, 2023

Defendant was not equitably estopped from limitations defense based on vague statements by insurance adjuster.

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

Plaintiff’s argument that defendant was equitably estopped from asserting a statute of limitations defense based on vague statements by defendant’s insurance carrier adjuster that a limitations defense would not be raised and that there was no rush in providing releases was rejected.

In Barrett v. Garton, No. M2022-01064-COA-R3-CV (Tenn. Ct. App. Oct. 6, 2023), plaintiff was injured in a car accident with defendant. Plaintiff filed suit within the one-year statute of limitations, but she failed to have service issued at the time of the filing or within one year thereafter. Defendant accordingly moved for summary judgment based on the statute of limitations, which the trial court granted after rejecting plaintiff’s argument that defendant should be equitably estopped from asserting a statute of limitations defense. This ruling was affirmed on appeal.

Tenn. R. Civ. P. 3 states that filing a complaint commences an action, “but if no process is issued upon the filing of the complaint, the plaintiff must issue process within one year from the filing of the complaint to rely on the filing of the complaint to toll the statute of limitations.” It was undisputed that plaintiff had failed to have process issued within a year of filing her complaint, but she argued that defendant should be equitably estopped from asserting a timeliness defense based on statements made by defendant’s insurance carrier.

December 6, 2023

Recent Cases on Damages for Frivolous Appeal

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

My other blog, Practical Procedure and Evidence, has an updated post discussing the law of damages for frivolous appeal. The post includes citations to cases where damages for frivolous appeal appeal have been granted and denied in the last four months.

Writing a brief on appeal? Save yourself at least thirty minutes of research time checking out this blog post.

October 24, 2023

Defendant waived appellate arguments by failing to renew motion for directed verdict or file motion for new trial.

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

Where defendant moved for a directed verdict after the close of plaintiff’s proof but failed to renew the motion at the close of all proof, and did not file a post-trial motion seeking a new trial, defendant waived review of the denial of the motion for directed verdict as well as review of the sufficiency of the evidence.

In Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023), plaintiff purchased a home at auction and later brought this claim against defendant, who marketed and facilitated the auction. Plaintiff alleged that defendant knew the home had mold issues and failed to disclose them, and defendant misrepresented the number of acres sold with the home. In addition to contract claims, plaintiff asserted a claim for reckless misrepresentation.

At the end of plaintiff’s proof, defendant moved for a directed verdict, which the trial court denied. Defendant failed to renew its motion at the close of its own proof, and the jury returned a verdict for plaintiff. Defendant did not file a post-trial motion for a new trial, but appealed asserting that the trial court erred in denying the motion for directed verdict and that the evidence was not sufficient to support the jury’s finding. The Court of Appeals ruled that defendant had waived both of these arguments and affirmed the jury’s verdict.

August 18, 2023

HCLA abrogates operation-of-law exception for vicarious liability claims in health care liability actions.

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

Where “application of the operation-of-law exception would bar a vicarious liability claim that is timely filed within the [HCLA’s] extended statute of limitations solely because the statute of limitations had expired for any claims against the principal’s agents, the exception must give way to the [HCLA].”

In two nearly identical opinions, the Tennessee Supreme Court addressed the interplay between claims for vicarious liability, common law exceptions to the ability to assert vicarious liability claims, and the HCLA. In Ultsch v. HTI Memorial Hospital Corp., No. M2020-00341-SC-R11-CV (Tenn. July 20, 2023) and Gardner v. Saint Thomas Midtown Hospital, No. M2019-02237-SC-R11-CV (Tenn. July 20, 2023), the Supreme Court held that a vicarious liability claim filed within the 120-day extension of the statute of limitations could proceed against a principal, even when the relevant agents were not named as defendants, were not given pre-suit notice and thus not subject to an extended statute of limitations, and were barred from being sued by the statute of limitations at the point the complaint was filed against the principal.

In both cases, the plaintiff sent pre-suit notice to the hospital at which they were treated, but did not send pre-suit notices to any agents of said hospitals. The statute of limitations as to claims against the hospitals were extended 120-days pursuant to the HCLA, and the plaintiffs filed their vicarious liability claims against the hospitals beyond the one-year mark but before the 120-day extension had run.

July 5, 2023

Legislature Changes TCA Section 20-1-119 To Expressly Include Uninsured Motorist Insurers

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

The Tennessee General Assembly has modified Tenn. Code Ann. Section 20-1-119 to make it clear that the plaintiff gets the benefits of the statute even if the fault allegations against a nonparty are made by a uninsured/underinsured motorist insurer. The new legislation, Public Chapter No. 294, states as follows:

Section 1. Tennessee Code Annotated, Section 20-1-119(a), is amended by

redesignating the current language as subdivision (a)(1) and adding the following new

June 23, 2023

Practical Procedure and Evidence

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

Have you checked out my newest blog?

Practical Procedure is a blog about, well, practical procedure and evidence issues for trial lawyers. I have several sources for the issues I discuss on the blog.

First, if I see something in a new Tennessee Court of Appeals or Supreme Court opinion that I think will be helpful to Tennessee lawyers I write up a summary and post it to the blog.

June 5, 2023

Parents could not file suit on behalf of adult child.

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

Where plaintiff was in a car accident when she was four years old, and her parents filed a personal injury suit purporting to represent her once she turned 18, the trial court properly granted summary judgment based on the statute of limitations. The parents, who were not attorneys, could not represent plaintiff, and by the time the motion to dismiss had been filed more than one year had passed since plaintiff turned 18, so any claim was time-barred.

In McCall v. United Parcel Service, No. M2022-01112-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff was in a car accident when she was four, and after she turned 18, her mother and father filed this personal injury action on her behalf. Plaintiff did not sign the complaint, and neither parent was an attorney. Defendant filed a motion to dismiss based on the one-year statute of limitations. At the hearing, the mother stated that plaintiff had been on an IEP in school but “had never been adjudicated incompetent or disabled.” The trial court granted dismissal, and the Court of Appeals affirmed.

On appeal, the Court first analyzed whether it would consider certain post-judgment facts submitted by plaintiff. Tenn. R. App. P. 14 provides that “the consideration of post-judgment facts that are ‘unrelated to the merits and not genuinely disputed’ may be ‘necessary to keep the record up to date.’” Post-judgment facts that “could be disputed in the trial court or from which different conclusions could be drawn” should not be considered. (internal citation omitted). The facts presented by plaintiff included a school psychoeducational evaluation, an IEP, a psychologist evaluation, and letters of guardianship and letters of conservatorship dated after the order of dismissal was entered. The Court of Appeals declined to consider any of this evidence, finding that the school evaluation and IEP “existed at the time of the trial court’s ruling” and that the psychologist evaluation and letters were “offered to establish [plaintiff’s] competency, which is a disputed issue in this case,” so did not qualify as being “unrelated to the merits and not genuinely disputed.