Day on Torts

January 20, 2020

Day on Torts Nugget – Amending Complaint While a Motion to Dismiss is Pending

Does a plaintiff have the right to amend a complaint while a motion to dismiss is pending and no answer has been filed?

Yes. Rule 15.01 of the Tennessee Rules of Civil Procedure provides a party may amend its pleading “once as a matter of course at any time before a responsive pleading is served[.]” A motion to dismiss is not a responsive pleading and under Rule 15.01 the plaintiff has an absolute right to file an amended complaint. Grose v. Kustoff, 2017-01984-COA-R3-CV, 2019 WL 244469 , at * 4 (Tenn. Ct. App. Jan. 17, 2019); Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006 WL 2354763, at *12 (Tenn. Ct. App. Aug. 14, 2006) (citing Adams v. Carter County Mem’l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (noting that a motion to dismiss is not a responsive pleading for purposes of Rule 15.01). No motion to amend is necessary because the right to amend is granted in Rule 15.01 itself.

Indeed, some courts have held that a plaintiff who files a motion to amend under such circumstances loses the right to argue that the complaint is automatically amended by the filing of a motion and then leave of court is necessary to amend. See City of Oak Ridge v. Levitt, 493 S.W.3d 492, 497 n.3 (Tenn. Ct. App. 2015) (noting that the plaintiff chose not to take advantage of Rule 15.01 allowance of an amended pleading without leave of court); Mosley v. State, No. W2014-01307-COA-R3-CV, 2015 WL 3971883, at *5 (Tenn. Ct. App. June 30, 2015) (indicating that where a plaintiff does not take advantage of its right to amend without leave of the court, this Court cannot correct that choice on appeal).

January 19, 2020

Thoughts About the Interaction Between Subrogation and Comparative Fault

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

Those of you who are interested in the interaction between the law of comparative fault and the law of subrogation (or at least my view on how the two should interact) may wish to read “Made-Whole Made Fair: A Proposal to Modify Subrogation in Tennessee Tort Actions” published in the Belmont Law Review.

Likewise, if you are having difficulty getting to sleep, you may wish to read the same article.

January 17, 2020

HIPAA authorization required after plaintiff sent HCLA notice to multiple providers.

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

Where plaintiff only named one provider as a defendant in an HCLA case, but sent pre-suit notice to forty healthcare providers, a HIPAA-compliant medical authorization was required to be sent with her pre-suit notice. Further, a HIPAA form that left blank the section stating who could disclose records to defendant did not substantially comply with the statute.

In Moore-Pitts v. Bradley, No. E2018-01729-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2019), plaintiff filed an HCLA claim against a single defendant. Before filing suit, however, plaintiff sent pre-suit notice to approximately forty healthcare providers. With her pre-suit notice, plaintiff attached a HIPAA authorization, but the authorization left blank the portion listing “the name of the person or entity authorized to provide records to Defendant.” Attached to the authorization was a list of the forty providers who had received the notice.

Defendant filed a motion to dismiss based on the allegedly insufficient HIPAA authorization. The trial court ruled that the authorization provided did not comply with the statute, that plaintiff was thus not entitled to the 120-day extension of the statute of limitations, and that plaintiff’s complaint should be dismissed as time barred. The Court of Appeals affirmed.

January 17, 2020

Tennessee Court Adopts Revisions to Civil Procedure Rules

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

The Tennessee Supreme Court has adopted proposed amendments to several rules of civil procedure.

Rules 5 and 5B have been amended to account for changes in the court system given the expansion of e-filing across the state.

Rule 33 has been amended in the hope of eliminating gamesmanship in answering interrogatories.

January 16, 2020

How to Authenticate A Facebook Post.

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

How do you authenticate a Facebook account? A Georgia court affirmed a prosecutor’s successful efforts to have excerpts of a criminal defendant’s Facebook account admitted into the evidence.

The defendant (Nichols) claimed

that the trial court abused its discretion by admitting Facebook records that included several private messages that the State claimed he had sent. The State used a search warrant to obtain the records from Facebook, which also provided a certification of authenticity. Nichols argues that the State did not sufficiently authenticate that the messages were sent by him.

January 15, 2020

Seven Reasons To Serve Discovery With Your Complaint

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

The Tennessee Rules of Civil Procedure permit a Tennessee personal injury or wrongful death plaintiff to serve discovery with a complaint. Ordinarily, responses to interrogatories, requests for production of documents, and requests for admissions are due 30 days after service. However, if they are served with the complaint the defendant has an additional 15 days to respond to them.

Why do you want to serve discovery with the complaint?

Why not get the litigation started? You are going to serve discovery sooner or later – or you at least you should. Usually there is no reason not to get the process started early.

January 14, 2020

HCLA certificate of good faith must be separate from complaint

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

In a Tennessee HCLA case, the statutorily required certificate of faith must be a separate document and cannot simply be contained within the complaint.

In Dotson v. State, No. E2019-00325-COA-R9-CV (Tenn. Ct. App. Dec. 3, 2019), plaintiff filed a healthcare liability case against the state based on the alleged negligence of Dr. Brooks, who was a state employee, related to the death of her newborn baby. Because the claim was against a state employee, this suit was filed with the Claims Commission. Plaintiff also filed suit against another doctor and a private hospital in Washington County. When plaintiff filed her complaint with the Claims Commission, she attached a certificate of good faith, but that certificate of good faith contained the caption from the Washington County lawsuit and only mentioned the Washington County defendants, not Dr. Brooks. Within the complaint filed with the commission, however, paragraph 22 tracked the certificate of good faith language found in Tenn. Code Ann. § 29-26-122.

January 14, 2020

Are Personal Injury Compensatory Damages Awards Taxable?

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

A compensatory damages personal injury award, by settlement or judgment, is not taxable under federal law if the case arises out of personal physical injury or sickness. This is true even if the award includes monies for pain and suffering and lost wages.

The support for this view is Section 104 of the Internal Revenue Code. The law is further explained in the 2011 publication, Lawsuits, Awards, and Settlements Audit

Techniques Guide published by the Internal Revenue Service.

January 13, 2020

Tennessee Law of Civil Trial – New Edition

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

The second edition of Tennessee Law of Civil Trial is now available for purchase. The new edition updates the first edition of the text published five years ago.

The 500-page book is designed to help lawyers prepare for the procedural issues that arise from jury selection through post-trial motions. It also includes the law of scheduling orders, and discusses alternative provisions that can be incorporated into scheduling orders depending on the complexity of the case. (The chapter on Tennessee scheduling orders is available for free by clicking on the link.) There is also a chapter on the law of motions in limine, and the Appendix includes multiple forms for use in drafting motions.

Reading this book will cause inexperienced trial lawyers to discover answers to questions they did not even know were questions and those with more experience will have their recollection of the law of trial quickly refreshed. The book is written to make it readily capable of use in the middle of trial.

January 10, 2020

Absolute executive privilege does not apply to district attorney general.

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

The absolute privilege against a Tennessee defamation claim given to some state officials “for statements made in the course of their official duties” does not extend to district attorneys general.

In Burns v. State of Tennessee, No. E2018-02174-COA-R9-CV (Tenn. Ct. App. Nov. 26, 2019), plaintiff was the lead investigator for the Gatlinburg Police Department on a case involving a high school basketball player who was assaulted with a pool cue. Plaintiff testified during a preliminary hearing, and according to news coverage of the hearing plaintiff stated that “the assault did not constitute a rape because the alleged assailants were not seeking sexual gratification.” After reports regarding plaintiff’s testimony, General Neal Pinkston, who was the Hamilton County District Attorney, sent out a press release to news outlets stating that General Pinkston had requested the TBI to “investigate [plaintiff] for perjurious testimony related to statements he made during sworn testimony” in the preliminary hearing. The next day, General Pinkston’s office released a statement saying “General Pinkston believes [plaintiff] perjured himself in Hamilton County Juvenile Court on Monday, February 15.”