Day on Torts

September 12, 2022

Finding of extraordinary cause to excuse HCLA noncompliance reversed.

Where the HIPAA authorizations sent with plaintiff’s HCLA pre-suit notice were noncompliant, and plaintiff’s attorney claimed that the noncompliance was due to a set of extremely stressful work and family circumstances but his affidavit did not explain how the noncompliant error was made or how the circumstances caused the error, the Court of Appeals overturned the trial court’s finding of extraordinary cause excusing the noncompliance.

In Moxley v. AMISUB Inc. D/B/A Saint Frances Hospital, No. W2021-1422-COA-R9-CV, 2022 WL 3715056 (Tenn. Ct. App. Aug. 29, 2022), plaintiff alleged that he was injured by defendants’ medical negligence on July 5, 2019. Plaintiff’s counsel sent pre-suit notice to all potential defendants on July 3, 2020, and those notices included medical release forms that were allegedly HIPAA complaint pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). The forms, however, all listed the recipient medical provider as the “releasing provider” rather than the receiving provider, essentially giving the recipient the ability to release documents but not obtain them.

September 9, 2022

Vegetation management contractor had no duty to remove tree located beyond scope of contract with electrical service.

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

The Tennessee Court of Appeals has ruled that where a vegetation management company contracted by the county electric service was only contractually responsible for a maintaining a certain area, and the diseased tree that allegedly fell and caused a fire was outside that area, the vegetation management company “owed no duty to prune” the tree and was not liable for the fire or the damages caused thereby.

In Allstate Property & Casualty Insurance Company v. Sevier County Electric System, No. E2021-01085-COA-R3-CV, 2022 WL 3589838 (Tenn. Ct. App. Aug. 23, 2022), several insurance companies filed suit against the City of Sevierville, Sevier County Electric System (SCES), and Wolf Tree, who was SCES’s vegetation management contractor (the cases filed by the insurance companies were consolidated). Plaintiffs asserted claims for negligence, nuisance and trespass based on damage to property they insured caused by a fire which was allegedly started when a diseased tree fell on an electrical service conductor. Continue reading

September 7, 2022

Evidence of car accident occurring not enough to support negligence claim.

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

Where defendant driver stated that the accident that injured plaintiff passenger was due to her swerving to avoid a wild animal that unexpectedly entered the roadway, and plaintiff “presented no evidence of negligence on the part of the defendant,” summary judgment for defendant was affirmed by the Tennessee Court of Appeals.

In Owings v. Owings, No. E2021-01330-COA-R3-CV, 2022 WL 3570880 (Tenn. Ct. App. Aug. 19, 2022), plaintiff was a passenger while defendant was driving. According to defendant, she swerved to avoid hitting a deer that jumped out in front of her, causing her to hit two or three parked vehicles. Defendant was allegedly injured during the accident and filed this negligence suit.

During plaintiff’s deposition, he stated that defendant had “done what she had to do” and “acknowledged that he did not think she had done anything wrong.” Plaintiff also stated that defendant had told him that “something jumped out in front of her,” but that he did not see the animal.

August 22, 2022

Tennessee Court of Appeals: HCLA plaintiff should have been allowed to substitute expert.

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

Where an HCLA plaintiff’s expert refused to testify due to no fault of plaintiff or plaintiff’s counsel, the Tennessee Court of Appeals ruled that the trial court should have allowed plaintiff to secure a substitute expert.

In Blackburn v. McLean, No. M2021-00417-COA-R3-CV, 2022 WL 3225397 (Tenn. Ct. App. Aug. 10, 2022), plaintiff filed an HCLA complaint in connection with the death of 35-year-old decedent who died after presenting at defendant emergency room and being treated by defendant doctor. Plaintiff identified Dr. Sobel as his standard of care expert and Dr. Allen as his causation expert. During Dr. Allen’s deposition, he testified that the decedent would “probably be alive” if he had sought treatment earlier, and defendant doctor thereafter filed a motion to amend his answer to plead the comparative fault of decedent. Defendant also filed a motion to compel the production of certain tax records from Dr. Sobel showing “the amount of money he was paid for medico-legal matters during certain prior years.”

After a hearing, both the motion to amend and the motion to compel were granted. After financial documents related to Dr. Sobel were produced, defendant doctor moved to lift the protective order regarding these documents, which the trial court granted. After the protective order was granted, Dr. Sobel refused to testify as an expert witness for plaintiff in this case.

Plaintiff filed a Motion to Substitute Expert Witness seeking to substitute a new expert whose opinions were “for the most part identical” to those of Dr. Sobel, but the trial court denied the motion. Plaintiff also sought to retain an expert to respond to the newly added comparative fault allegations. While the trial court ruled that plaintiff could obtain a cardiologist to respond to the newly asserted comparative fault defense, it placed extensive limitations on what that expert could address, specifically stating that plaintiff could not identify new experts “to address the standard of care for Defendants or alleged violations of the standard of care[,]…to testify about the alleged fault of Defendant [doctors] and/or what he allegedly did wrong[,] …to compare the fault of the decedent to the fault of the Defendants.”

August 18, 2022

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

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

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.