Day on Torts

May 22, 2023

Tennessee GTLA case that includes non-governmental entity defendants can be heard by a jury.

Where a GTLA case involves both governmental and non-governmental defendants and a party demands a jury trial, the entire case is to be heard by the jury.

In Vandyke v. Cheek, No. M2022-00938-COA-R10-CV (Tenn. Ct. App. May 3, 2023), plaintiff filed suit after a car accident caused in part by a malfunctioning traffic light. Defendants in the case included Montgomery County and other governmental entities as well as the other driver, a non-governmental entity. Plaintiff requested a jury trial, and the governmental entities asked for the case to be severed so that the claims against the governmental entities would be heard in a bench trial. The trial court granted the motion, but in this extraordinary appeal, the Court of Appeals reversed the order severing the claims and remanded the case to be heard by a jury as a whole.

Before 1994, the GTLA provided that cases against governmental entities were to be heard “without the intervention of a jury,” and it provided that jury demands for claims against non-governmental entities could be severed and heard separately from claims against governmental parties. In 1994, however, the GTLA was amended.

May 18, 2023

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

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

Information is now available on the number of personal injury and wrongful death trials and jury verdicts in Wilson County, Tennessee (county seat: Lebanon) for the fiscal year ending June 30, 2022.

There were 201 personal injury and wrongful death cases closed in Wilson County (not including health care liability act cases) and 2 tort trials. Here is how that compares with prior years:

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Note that in recent years about 1 – 2 % of all closed cases in Wilson County are tried to judgment. When your client asks you “what are the odds my Madison County case will go to trial” you can say that, on average 98-99% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

May 16, 2023

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

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

Information is now available on the number of personal injury and wrongful death trials and jury verdicts in Montgomery County, Tennessee (county seat: Clarksville) for the fiscal year ending June 30, 2022.

There were 315 personal injury and wrongful death cases closed in Montgomery County (not including health care liability act cases) and 2 tort trials (which was materially down from prior years). This graph illustrates the relevant data:

Note that historically about 3% of all closed cases in Montgomery 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.

May 15, 2023

Stats of Personal Injury and Wrongful Death Cases and Jury Verdicts in Robertson 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 Robertson County, Tennessee (county seat: Springfield) for the fiscal year ending June 30, 2022.

There were 82 tort cases closed in Robertson County (not including health care liability act cases) and 0 tort trials. Here is how that compares with prior years:

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Note that in the last six years there have been a little less than 550 personal injury and wrongful death cases closed and only 7 trials. There have been no personal injury or wrongful death trials in the last two fiscal years. When your client asks you “what are the odds my Robertson County personal injury case will go to trial” you can say that, on average over 98% of closed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

May 12, 2023

Supreme Court addresses standard for favorable termination in a malicious prosecution claim based on a criminal case.

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

In a malicious prosecution case where the underlying case was criminal rather than civil, a plaintiff “can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused.”

In Mynatt v. National Treasury Employees Union, Chapter 39, — S.W.3d —, No. M2020-01285-SC-R11-CV (Tenn. Oct. 5, 2023), plaintiff filed a malicious prosecution claim based on an underlying criminal case. Plaintiff alleged that after he criticized defendant union, defendant accused him of misusing union funds and caused him to be charged with two state felonies. In the criminal case, the prosecutor retired the charges against plaintiff for one year and never revived them, such that the charges were formally dismissed when the year passed.

Defendants filed a motion to dismiss the malicious prosecution claim, arguing that “plaintiff could not show that the retirement and dismissal constituted a favorable termination on the merits, which is an essential element of a malicious prosecution claim.” The trial court agreed and dismissed the case, but the Court of Appeals reversed dismissal, ruling that “there are outcomes other than acquittal following trial that can constitute a favorable termination and it is plausible that the charges were dismissed due to a lack of evidence.” (internal citation omitted). In this opinion, the Supreme Court ruled that the trial court was correct to dismiss the case.

May 12, 2023

Dismissal based on statute of limitations affirmed; court relied on judicial notice of court file

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

Where the trial court took judicial notice of items from the court case underlying a tort action for invasion of privacy, abuse of process, and intentional infliction of emotional distress, it did not convert the motion to dismiss to a motion for summary judgment and dismissal of the claims based on the statute of limitations was affirmed.

In Doe v. Rosdeutscher, No. M2022-00834-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff had filed an underlying HCLA suit. Plaintiff eventually took a voluntary nonsuit in that case, and following a motion by defendants in that case, the trial court assessed Rule 37 and Rule 11 sanctions against plaintiff’s counsel.

Plaintiff then filed this action against the defendants and the defendants’ attorneys from the previous HCLA case. In this case, plaintiff asserted claims for invasion of privacy, abuse of process, intentional or reckless infliction of emotional distress, and breach of contract based on the allegation that defendants “filed Plaintiff’s medical records in the healthcare liability action which included nude photographs of Plaintiff and details about her sexual and mental health history[.]” Defendants filed a motion to dismiss, which the trial court granted. The trial court also assessed damages against plaintiff and Rule 11 sanctions against plaintiff’s attorney. On appeal, these rulings were affirmed.

May 9, 2023

Stats About Personal Injury and Wrongful Death Cases and Verdicts in Sullivan 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 Sullivan County, Tennessee (county seat: Blountville) for the fiscal year ending June 30, 2022.

There were 181 personal injury and wrongful death cases closed in Sullivan County (not including health care liability act cases) and only one trial. Here is how that compares with prior years:

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Note that 1-2 % of all closed personal injury and wrongful death cases in Sullivan County are tried to judgment. When your client asks you “what are the odds my Sullivan County personal injury case will go to trial” you can say that, on average 98-99% of filed cases are resolved (through voluntary dismissal, dismissal on motion, or settlement) before a jury verdict or judgment is announced.

May 5, 2023

Practical Procedure and Evidence

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

Have you checked out my new blog, “Practical Procedure and Evidence?”

The blog concentrates on Tennessee procedure and evidence issues, although occasionally I review out-of-state decisions that I think may be of interest to Tennessee lawyers. Thirty-seven posts have already been published on a variety of topics of interest to Tennessee civil practice lawyers.

Stop by for a visit. And add it to your bookmarks.

May 4, 2023

HCLA plaintiff entitled to limited discovery to show that defendant was not prejudiced by noncompliant HIPAA authorization.

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

Where an Tennessee HCLA plaintiff’s HIPAA authorization had an error in the “purpose” section, but the potential defendants only included two physicians who were employed by the third potential defendant health system and plaintiff asserted that the defendant health system was the only potential defendant who possessed any relevant medical records, the Court of Appeals vacated dismissal based on the noncompliant HIPAA authorization and held that plaintiff should have been allowed “to conduct limited discovery to determine whether [defendant health system] had been prejudiced by Plaintiff’s failure to provide a HIPAA-compliant medical authorization[.]”

In Hayward v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System, No. E2022-00488-COA-R3-CV (Tenn. Ct. App. April 27, 2023), plaintiff filed an HCLA claim against defendants related to a bladder surgery and related complications. Before filing suit, plaintiff sent pre-suit notice to three potential defendants, including two physicians and one health system (“Erlanger”). A HIPAA authorization was included with the pre-suit notice pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E).

After suit was filed, Erlanger filed a motion to dismiss based on the HIPAA authorization being noncompliant. Specifically, Erlanger pointed out that the purpose section of the HIPAA authorization, which is one of the six core elements required on a HIPAA authorization, only permitted disclosure of records to plaintiff’s attorney. Erlanger argued that this prevented the potential defendants from obtaining records from each other and that dismissal was thus appropriate.

May 3, 2023

Gender-Affirming Care Creates Tort Liability

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

My newest article, “Gender-Affirming Care Creates Tort Liability,” as published in the Tennessee Bar Journal.