Day on Torts

August 18, 2022

Defense Counsel Brags About Result in Medical Malpractice Trial – Judge Orders New Trial

The Los Angeles Times reports that a new trial has been ordered in an Orange County medical malpractice after the winning lawyer posted an online celebration video saying the case involved “a guy who was probably negligently killed but we kind of made it look like other people did it.” [The video still on line only has the last part of this statement. I do not know the accuracy of the first portion of the statement attributed to the winning lawyer but the article says the judge referenced it.]

The Times reported that the judge said ““When he says on video a ‘guy was probably negligently killed,’ probably is more likely than not. Then he goes on to say, ‘But we kind of made it look like other people did it,’” [and] ‘[t]That seems like an admission of negligence. Seems like an admission the plaintiff should have prevailed.’”

According to the article, Plaintiff’s counsel said defense counsel “had improperly pointed the finger at other medical personnel as culpable in Sanchez’s death, contrary to an agreement not to do so, and later bragged about it on tape.”

August 17, 2022

USDC-MD TN Rules Presuit Notice and Certificate of Merit Statutes to Not Apply to TN HCLA Claims Filed in Federal Court

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

Judge Aleta Trauger has ruled that, given a recent decision of the Sixth Circuit Court of Appeals looking at Michigan law, “it is clear that the presuit notice requirement set forth in Tenn. Code Ann. § 29-26-121(a)(1) and the certificate of good faith requirement in Tenn. Code Ann. § 29-26-122(a) conflict with the Federal Rules of Civil Procedure. As such, they must give way to the Federal Rules and, therefore, do not apply to health care liability claims filed in federal court.”

The Sixth Circuit ruled in Albright v. Christensen, 24 F.4th 1039 (6th Cir. 2022) that “held that requirements under Michigan state law that an affidavit-of-merit signed by a health care professional be filed with a medical malpractice complaint and that presuit notice be provided to the defendant in a medical malpractice action did not apply to a diversity lawsuit filed in federal court. Albright, 24 F.4th at 1045–49.”

This is how Judge Trauger summed up the Sixth Circuit’s opinion in Albright:

August 16, 2022

Williamson County, Tennessee Tort Trial Statistics

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

BirdDog Law is the leading resource center for Tennessee trial lawyers and paralegals. Among the free information included on the site is 95 databases, one for each county in Tennessee, which contain information about the court system in each county. In addition to information about court clerks, local rules, local forms, and more, each county’s database includes information about tort jury and non-jury trials. Here is the information for Williamson County, Tennessee:

Thus, readers can see that in Williamson County for the five year period ending June 30, 2021 (the most recent date statistics are available (a) there have been only fourteen jury trials; (b) eight nonjury trials; (c) of those twenty-two trials the plaintiff has been awarded damages in twelve of them, which in turn tells us that (d) the defense outright won ten of the twenty-two trials.

For more information about personal injury and wrongful death trials in your county, click here, go to the “Court and Other Information for Each of Tennessee’s 95 Counties bar, find your county, and look under the “Case Statistics” tab.

August 15, 2022

Tennessee Supreme Court Agrees to Review Two Cases

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

The Tennessee Supreme Court has agreed to review two new cases, Commercial Painting Company Inc. v. The Weitz Company LLC, and Welch v. Oaktree Health and Rehabilitation Center LLC D/B/A Christian Care Centers of Memphis.

Commercial Painting addresses the applicable of the economic loss doctrine in a construction project and an attorney’s fee award issue.

Welch concerns health care powers of attorney, Tennessee Health Care Decisions Act, Tenn. Code Ann. § 68-11-1801 to -1815, and arbitration agreements in nursing home contracts.

August 14, 2022

Last Opportunity to Register for Seminar – August 24 and 25, 2022.

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

Only a few days remain for the opportunity to register for the Fundamentals of Civil Litigation in Tennessee seminar! This is a two-day program designed to help new lawyers grasp practical matters of civil litigation. In addition to hearing lectures on many substantive and procedural aspects of Tennessee civil litigation, you will be provided with useful forms, checklists, and other documents to help you in your daily practice. You will learn how to organize your case and how to prepare for all aspects of litigation with efficiency and excellence. The seminar is not slanted towards any particular type of litigation or side of the case. Rather, the course focuses on basic information and techniques for all civil litigators.

This seminar is sponsored by the Law Offices of John Day, P.C. to share our collective years of experience in courtrooms across Tennessee. We believe that “a rising tide lifts all boats” and that the public and profession are best served by reducing the learning curve faced by all new lawyers when entering the practice of law. Attendance for the seminar is limited to enhance opportunities for interaction between the speakers and attendees, and registration at the door cannot be accommodated. The cost to attend is $199.99. We hope you will join us on August 24 – 25, 2022 at the Nashville School of Law for this program.

Here is the schedule:

August 10, 2022

Summary judgment based on GTLA and Recreational Use Statute affirmed.

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

Where defendant governmental entity did not own the park where plaintiff was injured, and plaintiff was attending a concert in the park when she fell, summary judgment based on both the GTLA and Recreational Use Statute was affirmed.

In Costner v. Maryville-Alcoa-Blount County Parks & Recreation Commission, No. E2021-00189-COA-R3-CV, 2022 WL 3092906 (Tenn. Ct. App. Aug. 3, 2022), plaintiff was attending a concert in a park when she stepped into a hole covered by grass clippings and broke her ankle. The park was owned by the City of Alcoa but controlled by the Maryville-Alcoa-Blount County Parks and Recreation Commission (the Commission).

Plaintiff initially filed a premises liability case against the City of Alcoa, but later filed an amended complaint naming Alcoa, the City of Maryville, Blount County, and the Commission as defendants. The trial court first granted summary judgment to Alcoa, Maryville and Blount County, finding that Alcoa did not control the park, and Maryville and Blount County neither owned nor controlled the park, both of which are required to remove immunity under the GTLA. The Commission later filed its own motion for summary judgment, arguing that it was immune from suit under the GTLA and Recreational Use Statute. The trial court agreed, granting the motion, and summary judgment was affirmed on appeal.

August 8, 2022

Nursing home arbitration agreement ruled unenforceable.

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

In a recent HCLA case, the Court of Appeals affirmed the trial court’s denial of defendant’s motion to compel arbitration, agreeing that the arbitration agreement was an unenforceable contract of adhesion.

In Stancil v. Dominion Crossville, LLC, No. E2021-01378-COA-R3-CV (Tenn. Ct. App. July 29, 2022), plaintiff filed an HCLA claim on behalf of her mother (who died while this litigation was pending) based on the care she received at defendant nursing home. At the time of the mother’s admission to the nursing home, she had dementia, so plaintiff signed the admission documents on her behalf as her durable general power of attorney and durable power of attorney for health care.

After plaintiff filed this suit, defendant filed a motion to compel arbitration based on an arbitration provision in the admission contract. Considering the evidence presented, the trial court denied the motion, and the Court of Appeals affirmed this denial.

August 2, 2022

Conversion claim was time-barred due to plaintiffs’ constructive notice of claim.

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

Where plaintiffs could have discovered in October 2009 that funds had been transferred out of an account payable to them upon decedent’s death and into an account payable to defendant, the conversion claim filed in 2019 was time-barred.

In Kidd v. Lewis, No. E2021-01156-COA-R3-CV, 2022 WL 2866006 (Tenn. Ct. App. July 21, 2022), plaintiffs were the adult daughters of decedent and defendant was the widow of decedent. During the later years of decedent’s life, he suffered from Alzheimer’s and his competency was disputed.

August 1, 2022

Premises liability summary judgment affirmed where divot complained of was a minor aberration.

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

Where a premises liability plaintiff tripped when her shoe heel went into a small divot in an outdoor stairway that was “mere centimeters thick,” summary judgment for defendant was affirmed on the basis that the divot “amounted to a minor aberration and…the defendants did not owe her a duty of care.”

In Tino v. Walker, No. M2021-01230-COA-R3-CV, 2022 WL 2794096 (Tenn. Ct. App. July 18, 2022), plaintiff was shopping at a shopping center area in Nashville. After leaving one store, she exited down a set of outdoor brick stairs, and the heel of her shoe caught in a small divot in the brick on the second-to-last step, causing her to fall.

Plaintiff filed this premises liability suit, and defendants filed a motion for summary judgment. The trial court granted summary judgment to defendants, finding that “because the defects complained of were small aberrations, the foreseeability and gravity of harm considerations [did] not support a finding of liability on the part of Defendants,” and the Court of Appeals affirmed.

July 26, 2022

No civil liability for sharing truthful information about matter of public concern.

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

Where defendant shared truthful information that was a matter of public record “concerning a matter of public significance,” summary judgment on plaintiffs’ claims for intentional and/or negligent infliction of emotional distress and invasion of privacy was affirmed.

In Adreacchio v. Hamilton, No. M2021-01021-COA-R3-CV, 2022 WL 2718659 (Tenn. Ct. App. July 13, 2022), plaintiffs’ son died and the local police department ruled the death a suicide. Plaintiffs believed the death was actually a homicide, and they went on a podcast and television series to discuss the death and investigation. Defendant was a private citizen who agreed with investigators that the death was a suicide, and he created a Facebook page “to counter plaintiffs’ assertions.” In the context of countering plaintiffs’ assertion that the death was a homicide, defendant shared autopsy photographs of the son as well as some of his text messages, both of which were public records released by the Mississippi Attorney General’s Office.