Civil Procedure

January 13, 2022

Collection of Case Law on the Issue of Whether a Civil Trial Should be Conducted Virtually

The parties in Djeneba Sidibe et al. v. Sutter Health, Case No. 3:12-cv-04854-LB, a civil antitrust case in federal court in San Francisco, are in a dispute over whether a case ready for trial should be tried virtually. Plaintiff seeks an immediate virtual trial. Defendant opposes it.

The joint submission by the parties on the issue includes arguments for and against virtual jury civil jury trials and a host of case law on the issue. This 16-page letter , which includes an exhibit for remote and safety protocols for the trial, cost tens of thousands of dollars in lawyer time to prepare.

And you get the benefit of the work at no cost.

December 17, 2021

Practice Before the Tennessee Claims Commission

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

The Tennessee Claims Commission hears and adjudicates claims alleging that personal injury or wrongful death was caused by the acts or omissions of employees of the State of Tennessee. The Commission also hears worker’s compensation claims asserted by State employees and breach of contract claims when the State is a party to the contract.

The Commission follows the Tennessee Rules of Civil Procedure, but has modified the rules in several important respects.

BirdDog Law has created a resource that merges the rules of civil procedure with the modifications set forth by regulation. Thus, those practicing before the Claims Commission can look to one resource to determine the rules of procedure in the Commission.

December 15, 2021

Snap Removals to Federal Court

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

The Fifth Circuit Court of Appeals has ruled that a defendant in a state court lawsuit served with process can immediately remove to federal court before the in-state defendants are served and the federal court will assume control of the for the out-of-state party (ies). The decision is Texas Brine Company, L.L.C. v. American Arbitration Association.

Thus, a plaintiff filing an action in state court with both in-state and out-of-state defendants and who is attempting to avoid federal court will want to promptly serve at least one in-state defendant.

The word on the street is that some out-of-state defendants are monitoring state court filings and will immediately remove a case before they are served and any in-state defendant is served. (This practice was criticized in Bowman v. PHH Mortgage Co.; the Bowman court required that one least one defendant needed to be properly served and joined before removal could properly take place.)

September 20, 2021

Cancellation rule should have applied to defendant’s contradictory testimony.

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

Where an insured driver stated under oath that he was driving another person’s truck in his capacity as a mechanic to test the vehicle, but then after a declaratory judgment action was filed by his insurance company he testified that he was driving the truck on a personal errand, the trial court should have applied the cancellation rule to his testimony.

In Tennessee Farmers Mutual Insurance Co. v Simmons, No. E2020-00791-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2021), defendant Simmons was a mechanic, and he had been hired by Jeremy Shipley to repair Shipley’s truck. While Simmons was driving Shipley’s truck, Simmons was involved in a car accident. The other driver filed suit against Simmons and Shipley, alleging that Simmons was negligent and caused the accident.

August 13, 2021

Discretionary costs award to defendants affirmed.

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

Where the jury returned a verdict for defendants and the trial court awarded defendants certain discretionary costs, the judgment was affirmed because plaintiff had not properly raised several of his arguments in the trial court and “the trial court did not abuse its discretion on the remaining issues.”

In Murphy v. Sarta, No. E2020-00445-COA-R3-CV (Tenn. Ct. App. July 26, 2021), plaintiff filed a personal injury action against defendants, and the jury returned a verdict for defendants. Defendants filed a motion for discretionary costs under Rules 54.04 and 68 of the Tennessee Rules of Civil Procedure, seeking $8,346.06. Plaintiff responded in opposition to the motion, but the trial court ultimately awarded defendants $3,449.81 in discretionary costs, and the Court of Appeals affirmed.

Plaintiff raised four issues on appeal. First, he argued that “court reporter costs for pre-trial hearings are not authorized under Rule 54.04(2).” After citing a Tennessee Supreme Court case which stated that Rule 54.04(2) “does not necessarily provide for expenses incurred for pretrial hearings,” the Court wrote that it “might be inclined to agree with [plaintiff] on the law.” Whether plaintiff had correctly interpreted the Rule did not matter in this case, however, because plaintiff had waived this argument by not raising it prior to the appeal. “It is well-settled that issues may not be raised for the first time on appeal.” (internal citation omitted). Because plaintiff “raised no argument that court reporter fees incurred at pre-trial hearings were not allowable costs under Rule 54.04(2) until this appeal,” the argument was waived.

August 10, 2021

Plaintiff should have been allowed to revise voluntary dismissal where dismissal was not a final order.

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

Where plaintiff voluntarily dismissed the governmental entity that employed defendant doctor, then defendant doctor asserted in his answer that the employer was a necessary party under the GTLA, the trial court should have granted plaintiff’s motion to revise the order granting voluntary dismissal pursuant to Tennessee Rule of Civil Procedure 54.02. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV (Tenn. Ct. App. July 19, 2021), plaintiff filed an HCLA suit and originally named Dr. Gallagher, Chattanooga Neurosurgery and Spine Group, Dr. Worthington, and Chattanooga-Hamilton County Hospital Authority (Erlanger) as defendants. All named defendants had received proper pre-suit notice. Shortly after filling suit, plaintiff filed a notice of voluntary dismissal without prejudice as to all defendants other than Dr. Gallagher. The trial court entered an order granting the voluntary dismissal, leaving only Dr. Gallagher as a defendant.

When Dr. Gallagher filed his answer to the complaint, he included as a defense “that he was an employee of a governmental entity, Erlanger, and that entity had not been included as a party to the action.” Plaintiff then filed a motion to alter or amend the order of voluntary dismissal, “seeking to set aside the dismissal of Erlanger as a defendant to this action.” Plaintiff cited Rules 54 and 60 in his motion, and he stated that the Erlanger was dismissed inadvertently, as “he was unsure whether Dr. Gallagher was employed by Erlanger because Dr. Gallagher was also listed as being employed by the neurology group.”

The trial court denied plaintiff’s motion to alter or amend the order of voluntary dismissal, and also denied his motion to amend his complaint. Although a later amendment to the complaint was allowed, which added Erlanger as a defendant again, Erlanger was ultimately successfully granted dismissal, and Dr. Gallagher was granted summary judgment on the basis that Erlanger was a required party under the GTLA. This appeal followed, wherein the Court of Appeals ruled that plaintiff’s motion to revise the voluntary dismissal should have been granted.

July 27, 2021

Defendant doctor can be compelled to testify regarding standard of care of co-defendant nurse he supervises; Minor on Tenncare Has Right to Sue for Medical Expenses

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

Where defendant doctor was the supervising physician for defendant nurse midwife, the Court of Appeals ruled that he could be compelled to testify regarding his “expert opinion about the care and treatment provided by” the nurse. And, perhaps more importantly, the court also ruled that a minor on TennCare has a right to recover medical expenses. Also discussed: what changes to testimony can be made on an errata sheet.

In Borngne v. Chattanooga-Hamilton County Hospital Authority, No. E2020-00158-COA-R3-CV (Tenn. Ct. App. July 1, 2021), plaintiff mother brought this HCLA suit based on injuries to her minor daughter during birth. Plaintiff, who was full term in her pregnancy, was admitted to the hospital and labor was induced. Plaintiff was at risk for preeclampsia, and her labor was managed by defendant nurse-midwife Mercer. Plaintiff pushed for one hour and forty-eight minutes, but the baby made no progress and the fetal heart monitoring strip showed concerning signs. Nurse Mercer called her supervisor defendant Dr. Seeber, who arrived 45 minutes later and ordered a c-section be performed as soon as possible. When plaintiff child was born, she was not breathing and was diagnosed with permanent brain damage due to lack of oxygen, as well as “severely debilitating injuries.”

Plaintiff filed this suit, naming several parties as defendants. Before trial, Dr. Seeber moved for summary judgment on the claims of direct negligence against him, which the trial court granted, meaning the only claims remaining against him were those of vicarious lability for the alleged negligence of Nurse Mercer. The case was eventually tried before a jury, and the jury returned a verdict for defendants. The trial court denied plaintiff’s motion for a new trial, and plaintiff then filed this appeal.

May 10, 2021

Summary judgment reversed where tombstone fell and injured plaintiff.

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

Where plaintiff responded to a summary judgment motion by “offering proof of the cause of her injuries” from which a “rational trier of fact” could find in her favor, summary judgment should not have been granted. In Davis v. Keith Monuments, No. E2020-00792-COA-R3-CV (Tenn. Ct. App. April 29, 2021), plaintiff was injured when she was visiting her brother’s grave and the tombstone fell onto her hand. Plaintiff filed this negligence suit against defendant, alleging in the complaint that defendant was “negligent in the construction, placement, and maintenance of the gravestone.”

Defendant moved for summary judgment, and the trial court granted the motion. The trial court ruled that there was “not sufficient proof that [defendant] used the wrong adhesive or otherwise improperly installed the gravestone,” and that there were other reasonably probable causes, including that the gravestone could have been run over by lawnmowers or other vehicles. On appeal, summary judgment was partially reversed.

May 5, 2021

Insurance statute did not create private right of action for general contractor

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

The Tennessee Supreme Court recently explained the analysis for whether a statute creates a private right of action.

In Affordable Construction Services, Inc. v. Auto-Owners Insurance Company, No. M2020-01417-SC-R23-CV (Tenn. April 26, 2021), plaintiff was a general contractor who had been hired to repair property owned by a property association that had been damaged by severe weather. When the association and defendant insurance company settled the matter, defendant issued a check payable only to the association. Plaintiff general contractor brought this action in chancery court, asserting that it had a private right of action pursuant to a Tennessee statute. The case was removed to federal court under diversity jurisdiction, and the district court certified three questions to the Tennessee Supreme Court. The only question considered by the Court, because it was dispositive of the case, was whether the statute cited by plaintiff created a private right of action.

Tenn. Code Ann. § 56-7-111 states that “when an insured property owner’s home or other structure sustains more than $1,000 in damages, the property or casualty insurance company shall name the general contractor of an uncompleted construction contract as a payee when issuing payment to the owner for the loss.” The issue here was whether plaintiff general contractor could bring a private right of action against defendant insurance company who failed to include plaintiff as a payee on the insurance proceeds.

March 30, 2021

Case against deceased defendant time-barred.

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

Where the other driver in a car accident case died before suit was filed and the plaintiff failed to “timely file his tort action against the personal representative within the applicable statute of limitations,” summary judgment for the personal representative was affirmed.

In Mott v. Luethke, No. E2020-00317-COA-R3-CV (Tenn. Ct. App. Mar. 16, 2021), the plaintiff was in a car accident with another driver on March 22, 2016. Plaintiff filed a civil action in general sessions court against the driver on March 3, 2017, but the driver had died on December 7, 2016. After the plaintiff learned of the driver’s death, he filed a petition on August 30, 2017, to have the defendant appointed as the personal representative of the estate, and the probate division of the chancery court entered an order appointing the defendant on October 31, 2017. Plaintiff filed a “re-issued” civil summons in the sessions court on January 31, 2018, which was served on the defendant as the personal representative. The matter was transferred to the trial court by agreement of the parties, and then in February 2019, the defendant filed a motion for summary judgment based on the statute of limitations. The trial court agreed that the case was time-barred and thus granted summary judgment, which was affirmed on appeal.