Day on Torts

February 28, 2019

Tennessee Tort Filings and Trials – 2017-18 – Part 3

Two previous posts discussed Tennessee tort and health care case filings and the damages awarded in Tennessee personal injury and medical malpractice cases for the fiscal year ending June 30, 2018. This post will explore trial and damages data from the largest counties in Tennessee.

Shelby County saw 66 tort trials (33 jury, 33 nonjury) and 5 (3 jury, 2 nonjury) health care liability trials. Damages were awarded in 36 tort trials and none of the HCLA trials. The total damages awarded in tort trials was $7,228,488. There were 8 verdicts in tort trials over $100,000, one of which was over $1,000,000.
Davidson County conducted 52 tort trials (21 jury, 31 nonjury) and 4 (4 jury, 0 nonjury) health care liability trials. Damages were awarded in 36 tort trials and in 2 of the HCLA trials. The total damages awarded in tort trials was $2,509,836. There were 5 verdicts in tort trials over $100,000, one of which was over $1,000,000. The total damages awarded in HCLA trials was $968,578.

February 27, 2019

Tennessee Tort Filings and Trials – 2017-18 – Part 2

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

Yesterday we discussed the number of tort filings and dispositions in tort and health care liability cases in Tennessee and documented the number of trials in those cases. Today we look at damage awards.

In the fiscal year ending June 20, 2018, damages were awarded to the plaintiff in 98 of the 337 tort cases that went to trial. (Unfortunately, the data does not tell us whether the damages were awarded in the jury or non-jury trials.)

In fiscal 2016-17, damages were awarded to the plaintiff in 120 of 367 trials. In fiscal 2008-09, damages were awarded to the plaintiff in 281 of the 608 trials.

February 26, 2019

Tennessee Tort Filings and Trials – 2017-18 – Part 1

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

Despite what one would expect given Tennessee’s increasing population, Tennessee saw no real increase in filings of tort and health care liability cases in the fiscal year ending June 30, 2018.

There were a total of 11,081 tort cases filed in Tennessee in that year, essentially the same (an increase of 9 cases) from the 11,072 cases filed a year earlier. Health care liability filings were actually down, from 432 to 416.

A total of 10,781 tort cases were disposed of last year, very close to the 10,831 cases that were disposed of during the 2016-17 fiscal year. HCLA dispositions were up slightly, from 366 in fiscal 2016-17 to 382 last year.

February 25, 2019

Expert Required to Establish Case Against Water Distributor

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

The Court of Appeals recently held that “expert testimony is required to establish a water distributor’s applicable duty of care and breach of the same[.]”

In Tolliver v. Tellico Village Property Owners Assoc., Inc., No. E2018-00090-COA-R3-CV (Tenn. Ct. App. Jan. 7, 2019), plaintiffs were property owners whose house was damaged when a water pipeline broke. At the time of the damage a renter was living in the home, and the renter initiated this action, with plaintiff property owners joining later and asserting claims for negligence and breach of contract. Plaintiffs alleged that defendant homeowners association was negligent for “failing to properly maintain the water pipeline.” The renter consented to a judgment for defendants on his claims, leaving only the property owners as plaintiffs.

February 20, 2019

No Standard of Care Expert? No Case.

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

Where a plaintiff in an Tennessee HCLA (medical malpractice) case “failed to obtain a competent expert witness to testify on the applicable standard of care,” summary judgment as to all of her claims was affirmed.

In Akers v. Heritage Medical Associates, P.C., No. M2017-02470-COA-R3-CV (Tenn. Ct. App. Jan. 4, 2019), plaintiff was treated by a physician assistant at defendant medical center and was given a punch biopsy on her wrist. Two days later, plaintiff went to the emergency room with complications in the same area, which were diagnosed as cellulitis and staph infection.

Plaintiff subsequently filed this complaint pro se against the treating physician assistant and the medical practice, alleging that the practitioner “was not qualified to perform the punch biopsy and did not wash her hands, wear gloves, or use sterile medical equipment when performing the procedure,” and that the complications she experienced resulted from this negligence. In response to interrogatories asking plaintiff to disclose her expert witness, she identified the emergency room doctor she had seen, but failed to give additional information including his publications, other cases in which he had testified, and the compensation to be paid. Defense counsel made several attempts to get plaintiff to supplement her responses, which eventually led to plaintiff disclosing a second doctor, but providing the same very basic information about him. For both of these doctors, plaintiff stated that they would testify that her injuries “could not likely have been the result of any factors other than negligence on the part of…Defendants,” but she did not mention standard of care testimony in the description of either named expert.

February 19, 2019

Motion to Set Aside Judgment Must Show a Meritorious Defense

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

When a plaintiff files a motion to set aside a final order granting summary judgment, he must “demonstrate that [he] had a meritorious defense” in such motion.

In Berge v. Warlick, No. M2018-00767-COA-R3-CV (Tenn. Ct. App. Jan. 3, 2019), plaintiffs filed a legal malpractice claim against defendant. Defendant filed a motion for summary judgment, and he sent a copy of the motion to plaintiffs’ attorney on September 7, along with a notice that it was scheduled for hearing on October 20, 2017. Plaintiffs never responded to the motion, and on the day a response was due, defendant sent a second copy of the motion to plaintiffs’ attorney via U.S. mail and email. Neither plaintiffs nor their attorney showed up for the hearing, and they did not respond to a proposed order granting summary judgment sent by defendant.

February 18, 2019

Circuit Court Could Not Appoint Representative for Deceased Defendant

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

When an alleged tortfeasor in a car accident case died before suit was brought, and plaintiffs failed to have an administrator properly named before the statute of limitations on their claim expired, dismissal of the case as a whole was affirmed, including dismissal in favor of plaintiffs’ uninsured motorist insurance carrier.

In Owens v. Muenzel, No. E2018-00199-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2018), plaintiffs were involved in a car accident with another driver on May 11, 2015, and the other driver died on November 14, 2015. Plaintiffs were not aware of his death and filed a personal injury suit against him on March 30, 2016 in circuit court. The summons to the driver was returned with a notation stating that he was deceased. On April 12, 2016, plaintiffs served their uninsured motorist (UM) carrier in the action, who answered by asserting that plaintiffs had not complied with the conditions of their insurance policy.

The deceased driver did not have a personal representative (and no estate was ever opened for him), so plaintiffs petitioned the trial court to appoint an administrator ad litem pursuant to Tenn. Code Ann. § 30-1-109, which the court did. Later, in July 2017, the UM carrier moved for summary judgment on the basis that “(1) it could not be held liable as [plaintiffs’] [UM] carrier because [plaintiffs] failed to properly and timely bring an action against and serve with process either Deceased’s personal representative or properly appointed administrator ad litem prior to the running of the applicable statute of limitations and that (2) the order entered by the trial court appointing [an] administrator ad litem was void due to the circuit court lacking subject matter jurisdiction.” The circuit court ultimately agreed with both of these arguments, granting summary judgment to defendants, and the Court of Appeals affirmed.

February 15, 2019

Motion to Set Aside Judgment Must Show a Meritorious Defense

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

When a plaintiff files a motion to set aside a final order granting summary judgment, he must “demonstrate that [he] had a meritorious defense” in such motion.

In Berge v. Warlick, No. M2018-00767-COA-R3-CV (Tenn. Ct. App. Jan. 3, 2019), plaintiffs filed a legal malpractice claim against defendant. Defendant filed a motion for summary judgment, and he sent a copy of the motion to plaintiffs’ attorney on September 7, along with a notice that it was scheduled for hearing on October 20, 2017. Plaintiffs never responded to the motion, and on the day a response was due, defendant sent a second copy of the motion to plaintiffs’ attorney via U.S. mail and email. Neither plaintiffs nor their attorney showed up for the hearing, and they did not respond to a proposed order granting summary judgment sent by defendant.

Twenty-eight days after the order was entered, plaintiffs filed a “Motion to Set Aside” pursuant to Tennessee Rule of Civil Procedure 59.04. Plaintiffs asserted that they were entitled to relief due to the excusable neglect of plaintiffs’ counsel, who stated that “he misplaced the motion and forgot to mark the hearing on his calendar.” The trial court denied the motion to set aside, and the Court of Appeals affirmed.

February 11, 2019

Tennessee Supreme Court Defines Factors For Enforcing Exculpatory Agreements

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

Where a medical transportation company had a patient sign an exculpatory agreement (commonly called “waiver forms”), the Supreme Court held that the agreement was not enforceable because of the “unequal bargaining power of the parties, the overly broad and unclear language of the agreement, and the important public interest implicated by the agreement.”

In Copeland v. HealthSouth/Methodist Rehabilitation Hospital, LP, No. W2016-02499-SC-R11-CV (Dec. 20, 2018), plaintiff was a patient at an in-patient rehabilitation hospital after a knee replacement, and the hospital arranged transportation for plaintiff to get to his follow up doctor’s appointment through defendant medical transportation company. When defendant’s driver arrived, he pushed plaintiff in a wheelchair from his room to the van, and plaintiff entered the van using a walker. Once in the van, plaintiff was presented with a two-sided form, with one side containing a “run report” and the other side containing a “Wheelchair Van Transportation Agreement.” The agreement “consisted of nine single-spaced paragraphs, including three paragraphs of exculpatory language” which purported to release defendant “from any and all claims arising from or in any way associated with any transportation services provided by [defendant].” Once plaintiff signed the form, the driver took him to his doctor’s appointment. While entering the van after the appointment, plaintiff “lost his footing on the running board, fell, and was injured.”

February 7, 2019

Summary Judgment on Negligence Claim Overturned

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

Where a reasonable juror could have found that defendant allowed sewage to flow into a malfunctioning septic tank under plaintiff’s property for at least a short period of time after the issue was discovered, defendant was not entitled to summary judgment on plaintiff’s negligence claim.

In Heatley v. Gaither, No. M2018-00461-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2018), plaintiff and defendant owned neighboring property that had been owned as one large parcel many years ago. Part of plaintiff’s property was “always damp and muddy,” and during an attempt to re-grade the area, plaintiff discovered that a malfunctioning septic tank with pipes leading to defendant’s building was located on his property. Before this discovery, neither plaintiff nor defendant had been aware of this septic tank.

Defendant’s employee “arranged to have the newly discovered tank emptied on November 4,” and he later stated in an affidavit that shortly after that date, the facilities that were connected to the tank were identified and not used anymore. The septic line between the two properties was permanently severed the following February.