Day on Torts

April 6, 2023

Stats About Personal Injury and Wrongful Death Cases and Verdicts in Madison County, Tennessee

Information is now available on the number of personal injury and wrongful death trials and jury verdicts in Madison County, Tennessee for the fiscal year ending June 30, 2022.

There were 187 personal injury and wrongful death cases closed in Madison County (not including health care liability act cases) and 5 tort trials. Here is how that compares with prior years:

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Note that about 3% of all closed cases in Madison County are tried to judgment, a number which is generally consistent with past years. When your client asks you “what are the odds my Madison County case will go to trial” you can say that, on average 97% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

April 5, 2023

No certificate of good faith required for HCLA case that falls under common knowledge exception.

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

Where plaintiff alleged that the nursing facility she lived in gave her a defective shower chair, and the broken wheel lock and torn netting on the chair caused her to fall and be injured, no certificate of good faith was required due to the common knowledge exception to Tennessee’s health care liability (historically referred to as “medical malpractice”) law.

In Mears v. Nashville Center for Rehabilitation and Healing, LLC, No. M2022-00490-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2023), plaintiff was a resident at defendant skilled nursing facility. Defendant’s policy required residents to use a shower chair when showering, and plaintiff was provided such a shower chair. According to plaintiff, the shower chair she was given was defective because the wheel lock did not work and the netting was torn. While showering, plaintiff fell out of the chair and was injured.

Plaintiff filed this suit against defendant asserting various acts of negligence. Plaintiff did not, however, provide pre-suit notice or a certificate of good faith under the HCLA, and defendant filed a motion to dismiss on that basis. The trial court agreed that the case fell within the HCLA and dismissed the suit without prejudice due to plaintiff’s failure to provide pre-suit notice. The court ruled, however, that the claims did “not require expert medical testimony and came within the common knowledge of laymen and, therefore, that a certificate of good faith [was] not required.” The trial court thus refused defendant’s request to dismiss the case with prejudice, which was affirmed on appeal.

April 4, 2023

Stats on Tort Trials and Verdicts in Memphis, Shelby County, Tennessee

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

Information is now available on the number of tort trials and jury verdicts in Shelby County, Tennessee for the fiscal year ending June 30, 2022.

There were 2164 tort cases closed in Shelby County (not including health care liability act cases) and 55 tort trials. Here is how that compares with prior years:

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Note that about 3% of all closed cases in Shelby County are tried to judgment, a number which is generally consistent with past years. When your client asks you “what are the odds my case will go to trial” you can say that, on average 96-97% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

April 3, 2023

ACTL Podcast

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

One thing you can do to become a great trial lawyer is to listen to great trial lawyers speak about the profession.

The American College of Trial Lawyers has a podcast that does just that. The podcast will be starting its sixth season this summer, but there are over 20 podcasts of great trial lawyers already available.

The most recent podcast interviewed Tennessee’s own J. Houston Gordon.

March 30, 2023

Misrepresentation summary judgment affirmed where plaintiffs failed to comply with appellate procedure rules.

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

Where plaintiffs’ appellate brief failed to include appropriate citations to the record and failed to “even address the revised judgment from which they appealed,” summary judgment for defendants on claims of intentional and/or negligent misrepresentation was affirmed in a memorandum opinion.

In Smith v. Walker, No. W2022-00748-COA-R3-CV (Tenn. Ct. App. Mar. 28, 2023) (memorandum opinion), plaintiffs purchased a home from defendants, and soon after the purchase, plaintiffs discovered that the home was contaminated with mold. Plaintiffs filed suit for breach of contract, negligence, negligent misrepresentation, and intentional misrepresentation, but the trial court granted summary judgment for defendants based on the “as is” nature of the purchase agreement. Plaintiffs appealed the summary judgment order, and the Court of Appeals found that the trial court order “was deficient because it did not address each of the causes of action alleged by Buyers and included scant reasoning and explanation regarding its ruling….”

On remand, the trial court entered a new order granting summary judgment. In this more detailed order, the trial court addressed all of plaintiffs’ claims and explained the basis for summary judgment. The trial court noted that plaintiffs could not support their misrepresentation claims because they “failed to identify any ‘false information’ provided by [defendants],” and that plaintiffs “failed to present any credible proof that [defendants] represented to them that the home was ‘free from mold or other contaminants.’” The trial court also pointed out that the sales contract stated that plaintiffs had a duty “to inspect for mold or other contaminates,” and that plaintiffs had presented no proof that defendants knew about the mold.

March 23, 2023

No legal malpractice where plaintiff could not show that he was harmed by representation.

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

Where plaintiff could not show that he was harmed in any way by defendant attorney’s alleged legal malpractice, summary judgment on the malpractice claim was affirmed.

In a memorandum opinion in Sutton v. The Westmoreland Law Firm, No. M2021-01209-COA-R3-CV (Tenn. Ct. App. Mar. 21, 2023) (memorandum opinion), plaintiff consulted with and hired defendant attorney after receiving a detainer warrant from his apartment complex. When plaintiff met with defendant, they discussed a $1,000 retainer but did not discuss who was responsible for paying filing fees.

Defendant attorney filed an answer to the detainer warrant, and at plaintiff’s request, filed a counter-complaint alleging that the apartment had been unlivable due to a water leak. At the hearing on the matter, the attorney for the apartment complex admitted to an accounting error, and while the trial court granted possession to the complex, it refused any request for damages against plaintiff. Regarding plaintiff’s counter-complaint, the trial court informed plaintiff that the filing fee had not been paid and therefore dismissed the counter-complaint. After the hearing, plaintiff terminated his representation by defendant attorney.

March 18, 2023

Stats on Davidson County, Tennessee Tort Trials and Verdicts

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

Information is now available on the number of tort trials and jury verdicts in Davidson County, Tennessee for the fiscal year ending June 30, 2022.

There were 1883 tort cases filed in Davidson County (not including health care liability act cases) and 41 tort trials. Here is how that compares with prior years:

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Note that barely 2% of all filed cases are tried to judgment, a number which is generally consistent with past years. When your client asks you “what are the odds my case will go to trial” you can say that, on average 98% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

March 17, 2023

New Procedure and Evidence Blog

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

Don’t forget to check out my newest blog, Practical Procedure and Evidence. The blog addresses procedural issues at the trial and appellate level and the law of evidence.

I write about issues that are of interest to lawyers working in the trenches of civil trial law. The law of procedure and evidence are the rules of litigation “game,” and those who do not know or follow the rules are at an extreme disadvantage in the preparation and trial of civil cases. Conversely, those who know and use the rules can gain a fair, strategic advantage.

The blog already has 26 published posts with three more posts scheduled to appear in the coming days. Already published posts include spoliation of evidence, serving out-of-state defendants in motor vehicle cases, and a presumption of adequate consideration when a contract is in writing.

March 13, 2023

Defamation claim dismissed pursuant to Fair Credit Reporting Act.

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

Where plaintiff asserted a defamation claim based on his car insurance company putting an “at fault designation” on a federally regulated database, summary judgment for defendant insurance company was affirmed.

Seely v. GEICO Advantage Insurance Company, No. M2021-01263-COA-R3-CV (Tenn. Ct. App. Mar. 6, 2023) arose out of a dispute between an insured driver and his insurance company following a minor car accident. The insurance company determined that plaintiff driver was at fault, and it paid the claims from the injured party. Despite plaintiff’s assertion that the accident was caused by brake failure and his submission of receipts for brake work, GEICO put an “at fault designation” on plaintiff’s Comprehensive Loss Underwriting Exchange (CLUE) report. Plaintiff’s premiums were thereafter raised.

In his complaint, plaintiff asserted several causes of actions, including one for defamation. Plaintiff alleged that “[b]y filing an erroneous entry in Plaintiffs’ CLUE reports GEICO damaged not only their driving records but affected their creditworthiness and good names.” Defendant filed a motion to dismiss the defamation claim, which the trial court granted, and the Court of Appeals affirmed.

March 10, 2023

Plaintiff waived objection to discovery from testifying expert where objection was not made until expert deposition was in progress.

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

In an HCLA case discovery dispute, the Tennessee Court of Appeals ruled that plaintiff’s testifying experts’ “notes, drafts, and communications with counsel” were discoverable under the Tennessee Rules of Civil Procedure and that plaintiff had waived any claim that the requested items were privileged.

In Starnes v. Akinlaja, No. E2021-01308-COA-R10-CV (Tenn. Ct. App. Mar. 2, 2023), plaintiff filed a healthcare liability case against defendants based on injuries that occurred during plaintiff’s c-section. During the deposition of one of plaintiff’s testifying experts, the expert referenced an email sent to plaintiff’s counsel that included a bullet-point list as well as a page of handwritten notes, neither of which had been provided to defendants in response to defendants’ interrogatories, requests for production of documents, or requests accompanying the deposition notice. Defendants filed a motion to compel plaintiff to produce certain documents from her testifying experts, including “correspondence to and from her expert witnesses, draft reports of expert witnesses, and any similar materials.” Plaintiff responded that the documents were protected from discovery, but the trial court ultimately granted the motion to compel, which was affirmed (but modified) on appeal.

In its analysis, the Court initially clarified which Rules of Civil Procedure applied here. Because the experts at issue were identified as testifying experts, Rule 26.02(4)(A) applied to discovery related to these experts. Further, the Court ruled that Rule 26.02(3), which addresses discovery of trial preparation materials, applied, but it clarified that “the requirements of subdivision (3) are subject to those of subdivision (4) for discovery of expert witness information.”