Friday, April 30, 2010

Court reviews summary judgment in wrongful death case regarding scope of employment

MICHAEL CLAWSON, ET AL. v. MICHAEL L. BURROW, ET AL. (Tenn. Ct. App. April 30, 2010)

Rachel M. Clawson ("the Decedent") was an employee of Summers-Taylor, Inc. ("the Employer") when she was killed in a tragic automobile-pedestrian accident. A vehicle driven by Michael Burrow veered off Highway 91 in Carter County and struck her. She had concluded her job duties for the day and was at the rear of her personally-owned truck visiting with co-workers and talking on a cell phone. The Decedent's truck was parked on the side of Highway 91 in an area approved by the Employer for employee parking.

Michael Clawson and Sherry Clawson, the Decedent's parents ("the Parents"), filed this wrongful death action against Burrow and the Employer. The Employer filed a motion for summary judgment, arguing that on the undisputed facts the Decedent's death arose out of and occurred in the course and scope of her employment. The trial court agreed and entered an order granting the Employer summary judgment. The Parents appeal. We affirm.

Opinion may be found at:

Thursday, April 29, 2010

Summary judgement remanded on attorney showing of detailed mail records, overcoming addressed-stamped-deposited mail presumption


Medical malpractice action was dismissed on summary judgment following plaintiffs' failure to oppose defendant's motion. Plaintiffs filed a motion to set aside the judgment of the trial court based on mistake where plaintiffs did not receive service of defendant's summary judgment motion. The trial court denied plaintiffs' motion; plaintiffs appeal. Finding that, under the facts of this case, the judgment should have been set aside, we reverse and remand.

The opinion may be found at:

Rear end collision plaintiff awarded zero, discretionary costs remanded for reconsideration

BERNARD HUGHES v. DEMAR HUDGINS (Tenn. Ct. App. August 17, 2009)

The plaintiff claimed that he suffered neck and back injuries after the automobile in which he was riding was rear-ended by the defendant's automobile. The defendant admitted breach of the standard of care, but the jury found that the plaintiff had suffered no damages as the result of the accident, and he was not awarded any recovery. The trial court awarded the defendant $645.95 in discretionary costs to cover the court reporter fees he incurred for depositions. The plaintiff argues on appeal that there was no material evidence to support the jury's verdict. For his part, the defendant argues that the trial court erred in declining to award him all of the discretionary costs he requested. We affirm the jury verdict, but we remand the issue of the award of discretionary costs.

The opinion may be found at:

CLEMENT concurring in part and dissenting in part:

"The basis for the trial court’s decision to award Mr. Hudgins some, but not all, of his discretionary costs is unclear from the record. Because of the discretion given to the trial court and its authority to apportion costs “as the equities demand,” we must remand this matter to the trial court for consideration of the award of discretionary costs." Id.

Summary Judgement Reversed Upon Disqualification of Medical Experts

DONNA FAYE SHIPLEY, ET AL. v. ROBIN WILLIAMS, M.D. (Tenn. Ct. App. August 14, 2009)

In reliance on plaintiff's experts, the trial court granted defendant doctor's motion for partial summary judgment on the medical malpractice claim pertaining to defendant's failure to admit plaintiff into the hospital. The trial court later granted the defendant doctor summary judgment on the remaining malpractice claims finding that the plaintiff's medical expert proof previously relied upon by defendant failed to comply with Tenn. Code Ann. section 29-26-115. We reverse the grant of partial summary judgment on the failure to admit claim since the defendant doctor relied solely on plaintiff's experts, whose testimony was later found inadmissible. We also reverse the summary judgment of the remaining malpractice claims since the defendant doctor never presented proof to negate an element of those claims. Consequently, the plaintiff had no duty to create issues of fact at the summary judgment phase.

The full text of this opinion is available at the TBA website:

Wednesday, April 28, 2010

Plaintiff successfully defends multiple challenges to experts, jurors, jury instructions and amount of damages awarded.


This is an appeal from a judgment entered on a jury verdict in the amount of $2,780,000 in a medical malpractice action based upon a failure to detect and report an abnormality on a mammogram. Robin Farley ("the Patient") and her husband, Dennis Farley ("the Husband"), are the plaintiffs in this action; they are referred to collectively in this opinion as "the Plaintiffs." Dr. James Rouse and his employer, Oak Ridge Medical Imaging, P.C., dba Oak Ridge Breast Center, P.C. ("the Breast Center"), are the defendants, referenced collectively as "the Defendants." The Patient reported to the Breast Center on November 15, 2001, for a mammogram. Dr. Rouse read the mammogram and reported his findings as normal. In 2004, the Patient noticed an indentation in her right breast. Follow-up care revealed stage IV incurable breast cancer.

According to the Plaintiffs, the cancer was present in 2001, and was treatable and curable had it been properly detected and reported. The Defendants conceded very little and alleged, as an affirmative defense, that the Patient knew that repeat mammograms were needed but failed to come back until it was too late. The case was tried to a jury over four consecutive days. The jury began deliberations on a Friday and resumed and announced its verdict on the following Monday. It found the Defendants negligent, but apportioned 20% of the fault to the Plaintiffs, apparently based upon the Patient's failure to have a timely follow-up mammogram. The Defendants appeal, raising a host of issues. We affirm.

The full text of this opinion is available at the TBA website:

"The points of contention in this case – which are initially less than clear – are, (1) whether, and if so, the extent to which the medical expert’s knowledge of the matters set out in subdivision (a) (1) must be “personal” knowledge , (2) whether an expert licensed in a contiguous state in the relevant time frame must also know the standard of care in a comparable community in order to qualify as a causation expert, and (3) the extent to which the contiguous state requirement can be established to the trial judge’s satisfaction through material not admitted or admissible into evidence." Id.

"We do not believe Eckler went so far as to hold that the bridge of similarity from the community where the expert practices to the community where the defendant doctor practices, must all be built on personal, firsthand knowledge." Id.

"We agree completely with the approach taken in Russell. The quoted language from Payne concerning the “entwined” nature of causation and standard of care testimony is true enough, but should not be read to impose requirements not imposed by the language of the statute. This is especially true given that Payne based its holding on the “clarity” of the statute. We hold that a causation expert who does not testify on the standard of care is not required to establish familiarity with the standard of care." Id. (Case citations omitted)

"To conclude the point, we agree with the trial court that for Dr. Mitchell to take the stand and testify that he reviewed the 2001 mammogram and read it as normal, with no indicators of cancer, was to indirectly comment on the standard of care. Accordingly, we hold that the trial court did not abuse its discretion in so limiting the scope of Dr. Mitchell’s testimony." Id.

Drug testing evidence allowed in motor vehicle accident to show causation and credibility, no relief for invited error

JOHN C. BLAIR v. ROBERT SULLIVAN, JR., ET AL. (Tenn. Ct. App. April 22, 2009)

This appeal involves the plaintiff's negligence claim which arose from a motor vehicle accident with the defendant. Plaintiff first asserts that the trial court erred in allowing plaintiff's positive drug test to be admitted as evidence. Plaintiff also asserts that the trial court's jury instructions were improper and that the jury's verdict is not supported by the evidence. Reviewing plaintiff's first assertion, we find that the trial court did not abuse its discretion in admitting the drug test as evidence. Likewise, we find that the jury instructions were proper and that there is material evidence supporting the jury's verdict. Accordingly, we affirm the judgment of the trial court.

The full text of this opinion is available at the TBA website:

“Here, Plaintiff does not explain how the introduction of the drug test result into evidence would result in unfair prejudice. Plaintiff’s sole complaint is that defendant’s attorney discussed the drug test’s effect on damages during closing argument. As mentioned above, plaintiff failed to object to these statements in the trial court. Because plaintiff does not point to any other prejudice, we find that the trial court did not abuse its discretion in ruling that the drug test result was not excluded under Tenn. R. Evid. 403.” Id.

“Plaintiff first contends that the trial court erred by failing to explain the context of the statute and by failing to omit certain irrelevant provisions of the statute in its instruction. Parties, however, are not entitled to relief on appeal from invited error. Tenn. R. App. P. 36(a). Plaintiff asked the trial court to read the entire statute as a jury instruction. Consequently, he is not entitled to relief on appeal on this issue.” Id.

GTLA statutory cap on damages upheld in absence of express waiver from City of Memphis

FAYE BLACK v. CITY OF MEMPHIS (Tenn. Ct. App. April 22, 2009)

This is a wrongful death case against a municipality. In 1987, the plaintiff's teenage son was shot and killed by a police officer. The plaintiff sued the officer and the municipality, asserting claims under both federal and state law. Years of proceedings and delay ensued. By 2005, the only remaining claims were state law claims against the municipality. The parties filed crossmotions for summary judgment. The trial court granted summary judgment in favor of the plaintiff. The plaintiff then filed a motion for entry of judgment in the amount of $130,000, the maximum damage award under the Tennessee Governmental Tort Liability Act. The plaintiff filed separate motions for interest and costs. The municipality stipulated that if the court entered a judgment it should be in the amount of $130,000, but argued that the plaintiff was prohibited from recovering interest or costs in addition to the $130,000 judgment because such an award would exceed the statutory damage cap. The plaintiff argued that the municipality's misconduct prolonged the case and drove up costs, and that the court had authority to award costs in order to sanction the municipality for this misconduct.

The trial court entered a judgment for the plaintiff in the amount of $130,000, but denied the plaintiff's motions for interest and costs, finding that the Governmental Tort Liability Act precluded an award of discretionary costs in excess of the statutory cap on damages, and did not award sanctions. The plaintiff appeals, arguing that the court has authority to award sanctions in excess of the statutory damage cap. We affirm, finding that the trial court’s order does not indicate a finding that sanctions against the municipality were warranted.

The full text of this opinion is available at the TBA website:

“The statute specifically requires an express waiver before a governmental entity can be held liable for damages in excess of the statutory cap. Ms. Black cites no authority to support her argument that a governmental entity can be deemed to have constructively waived its protection under the GTLA damage cap. This argument is without merit.” Id.

Arbitration Agreement within 11 page contract found enforcible due, in large part to signature

CORINE BROADNAX, Individually and as heir and on behalf of the Estate of Mary Alice Johnson v. QUINCE NURSING AND REHABILITATION CENTER, LLC, ET AL. (Tenn. Ct. App. April 22, 2009)

The parties to a nursing home Admission Agreement dispute the enforceability of its arbitration provision. The trial court refused to enforce the arbitration provision. The nursing home appealed. For the following reasons, we reverse the decision of the circuit court and remand for entry of an order compelling arbitration.

The entire text of this opinion can be found at the TBA website:

“Although we agree that mutual assent is essential to the formation of a contract, mutual assent is gathered from the language of the contract rather than the unexpressed or undisclosed intentions of the parties. 'The law conclusively presumes that the parties to a contract understood its obligations, and evidence is not admissible to show that their understanding was in fact otherwise.’” Id. (Case Citations Omitted)

“Based on the cases cited above, we find it inappropriate to relieve Ms. Broadnax from the operation of the Arbitration Agreement, due to her failure to read the document before signing it. In so ruling, we note that Ms. Broadnax had the ability to ask questions concerning the documents, was free to seek independent legal advice, and was given ample time to review the documents.” Id.

“Moreover, the Arbitration Agreement expressly stated that by signing such, Ms. Broadnax was 'giving up and waiving [her] constitutional right to have any claim decided in a court of law before a judge and a jury,' that execution was not a precondition to admission or the furnishing of services, and that it could be rescinded within thirty days. We further note that although the Arbitration Agreement was attached to a somewhat lengthy document, the Admission Agreement contained a table of contents, which should have drawn Ms. Broadnax’s attention to the inclusion of the Arbitration Agreement, which was a separate exhibit. Because Ms. Broadnax has failed to prove that Nursing Home either misrepresented the terms of the Arbitration Agreement or acted fraudulently in inducing her to sign such, we find that Ms. Broadnax’s signature evidences her assent to be bound by the Arbitration Agreement’s terms.” Id.

Intentional delay in advancing claim based on defendant health and misunderstanding of state intention to delay not sufficient to overcome statute of limitations.

HARRY SKIPPER, et ux v. STATE OF TENNESSEE (Tenn. Ct. App. July 31, 2009.)

Mr. Skipper filed a claim with the Tennessee Claims Commission, alleging that Tennessee Department of Transportation snow plow operator Dennis Burns crossed the center line, striking him. Mr. Burns became ill with cancer, and his deposition was scheduled three times before it was successfully taken. Following Mr. Burns' deposition, Mr. Skipper failed to advance his claim for a period of one year, and the Claims Commission dismissed his claim pursuant to Tennessee Code Annotated section 9-8-402(b). Mr. Skipper sought relief from the dismissal pursuant to Tennessee Rules of Civil Procedure 6.02, 59, and 60.02. Mr. Skipper's counsel claimed that he failed to act in order to allow Mr. Burns time to recover, so that he could testify live at trial. He further stated that it was his understanding that the State would contact him once such recovery was made. The Claims Commission denied Mr. Skipper relief from the order of dismissal, and Mr. Skipper appealed to this Court. We affirm.

Full text of this opinion is available at the TBA website:

Monday, April 26, 2010

Court reviews summary judgment ruling in a collision between an automobile and a pedestrian

DANNY J. PHILLIPS v. WILLIAM T. MULLINS (Tenn. Ct. App. April 26, 2010)

Danny J. Phillips ("Plaintiff") sued William T. Mullins ("Defendant") after a truck driven by Defendant struck and injured Plaintiff who was riding a bicycle. Defendant moved for summary judgment. After a hearing, the Trial Court entered an order granting Defendant summary judgment. Plaintiff appeals to this Court. We reverse the grant of summary judgment finding that there are disputed issues of material fact which preclude summary judgment.

Opinion may be found at:

Thursday, April 22, 2010

Court reviews denial of motion for a new trial based on evidence that was not admitted during trial


This is a premises liability case. The plaintiff worker allegedly injured his knee while in the defendants' home. The plaintiff visited a doctor the next day, and ultimately had surgery on the knee the next month. Subsequently, the plaintiff sued the defendants, alleging premises liability. A jury trial was held. After the testimony concluded, the trial court declined to include a jury instruction requested by the plaintiff.

During closing arguments, the plaintiff's attorney started to read from a deposition that had not been entered into evidence; the trial court sustained a timely objection. Also during closing argument, the closing remarks of the defendant's attorney alerted the plaintiff's attorney to the fact that a particular medical record was not a part of the evidence submitted to the jury. While the jury was deliberating, the plaintiff sought to reopen proof to admit into evidence the omitted medical record; the trial court declined to reopen the proof. The jury returned a verdict for the defendants. The plaintiff filed a motion for a new trial, which was denied. The plaintiff now appeals. We affirm.

Opinion may be found at:

Court reviews sufficiency of service of process in a medical malpractice case


This appeal involves delay of service of process. The plaintiffs filed a complaint against the defendants, alleging medical malpractice by the defendants almost a year earlier. The plaintiffs delayed service on the defendants until they had an expert witness review their claim. Summonses were issued to the defendants over eleven months after the complaint was filed. The defendants filed a motion to dismiss or for summary judgment, alleging insufficiency of service of process, and asserting that the plaintiffs' claims were barred by the one-year statute of limitations. The trial court denied the defendants' motion. The defendants appeal. We reverse and remand for entry of an order dismissing the complaint, finding that the delay of prompt service of process rendered the filing of the complaint ineffective to commence the action and stop the running of the statute of limitations.

Opinion may be found at:

Wednesday, April 21, 2010

Court reviews breach of contract claim between insurance company and customer


This appeal involves the alleged breach of an insurance policy. The plaintiff insured had an automobile insurance policy with the defendant insurance company. The insured paid his insurance premium by check. He subsequently was involved in an automobile accident and notified the insurance company of the accident. The check was later returned for insufficient funds. The insurance company notified the insured that if he did not bring the premium current by a date certain, his insurance policy would be cancelled. The insured gave the insurance company a valid check for the premium, which was negotiated. The insurance company later cancelled the policy, retroactive to a date prior to the insured's automobile accident. The insured sued the insurance company for breach of contract. After a bench trial, the trial court held in favor of the plaintiff insured. The insurance company appeals. We affirm.

Opinion may be found at:

Tuesday, April 20, 2010

Court reviews jury verdict for hunting accident case involving claims of emotional distress

BOBBY GERALD RILEY ET. AL v. JAMES ORR (Tenn. Ct. App. April 20, 2010)

This is an appeal of a jury verdict. The plaintiff was hunting with his son. The defendant was also hunting in the general area, and accidentally shot the plaintiff. The plaintiff filed a lawsuit against the defendant for negligence, and included a claim for negligent infliction of emotional distress on behalf of his son. The parties stipulated as to the defendant's liability, and a jury trial was held on the issue of damages.

The jury instructions included instructions on the plaintiff father's mental pain and suffering and the son's emotional injury, but did not separately address the plaintiff father's emotional injury. After deliberating, the jury returned a verdict awarding damages to the plaintiff father as well as an award for the son's emotional injury. The trial court denied the defendant's motion for a new trial and approved the verdict. The defendant now appeals. On appeal, the defendant challenges the sufficiency of the evidence supporting the verdict on several elements of damages, and argues that the inconsistency in the jury instructions on emotional injury necessitates a new trial. We affirm in part, vacate in part, suggest remittitur as to the award for future medical expenses, and remand for further proceedings.

Opinion may be found at:

Monday, April 19, 2010

Court reviews trial court's determination that plaintiff's injury was the result of an automobile accident


This is a personal injury case. The defendant's employee negligently backed the defendant's vehicle into the vehicle in which the plaintiff was a passenger. Prior to the accident, the plaintiff had reported discomfort in her shoulders to her physician. At some point after the accident, the plaintiff reported to her physician that she had pain in her right shoulder. Ultimately, the plaintiff required shoulder replacement surgery. The plaintiff sued the defendant for negligence. The parties stipulated to the defendant's liability, and a bench trial was held on causation and damages. Based in part on deposition testimony of physicians, the trial court found that the accident caused the plaintiff's injury and the ensuing surgery and entered judgment for the plaintiff. The defendant appeals. We affirm.

Opinion may be found at:

Thursday, April 15, 2010

Court reviews use of Family Purpose Doctrine in automobile accident case.

ROBERT STRINE, ET AL. v. JOSHUA WALTON, ET AL. (Tenn. Ct. App. April 15, 2010)

On July 7, 2005, Ashley Strine (Plaintiff) was injured while riding in a vehicle being driven by Joshua Walton (Walton). The vehicle was owned by James Rice (Father), who had given the vehicle to his son, Kevin Rice (Son), for Son's personal use. On the day of the accident, Son had given Walton permission to use his vehicle to pick up Plaintiff. Walton and Plaintiff were planning on attending a birthday party later that day.

Plaintiff originally sued only Walton and Father. As to Father, Plaintiff asserted liability based on the family purpose doctrine and negligent entrustment. Over two years later, Son was added as a defendant. An order of compromise and dismissal was entered as to Walton. Thereafter, Father and Son filed a joint motion for summary judgment. The Trial Court granted Father summary judgment on Plaintiff's claims pursuant to the family purpose doctrine and negligent entrustment. With regard to Son, the Trial Court concluded that all claims against him were barred by the one-year statute of limitations. Plaintiff appeals. We affirm the judgment of the Trial Court.

Opinion may be found at:

TWCA reviews use of a physician's impairment rating in workers' compensation case.


This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. The employee developed a latex allergy as a result of her employment at a hospital, and the hospital made certain accommodations that enabled the employee to continue working. However, the employee's sensitivity to latex increased over the years, and she eventually left her job.

The employee filed a petition seeking workers' compensation benefits in the Chancery Court of Davidson County. Following a bench trial, the trial court awarded the employee 60% permanent partial disability to the body as a whole. On this appeal, the employer contends that the treating physician's impairment rating should not have been admitted into evidence because it was not in accordance with the AMA Guides. The employer also argues that a lower impairment should have been used by the trial court and that the award should have been capped. We affirm the judgment.

Opinion may be found at:

TWCA reviews petition to set aside settlement of a worker's compensation claim


This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court approved a settlement of this workers' compensation claim. The settlement was presented to the court by means of an affidavit executed by the employee and a telephone conference between the court and the employee. Approximately six weeks later, the employee petitioned to set aside the settlement under Tenn. Code Ann. section 50-6-206(a) and alternatively, Tenn. R. Civ. P. 60.02. The trial court dismissed the petition for relief from Judgment. The employee has appealed. We affirm the order dismissing the petition to set the settlement aside.

Opinion may be found at:

TWCA reviews whether a permanent partial disability award was excessive

LARRY BAIN v. TRW, INC. ET AL. (TWCA April 15, 2010)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. An employee sustained a work-related repetitive exposure hearing loss injury. After he retired for reasons unrelated to the injury, he filed suit in the Criminal Court for Wilson County seeking workers' compensation benefits. Following a bench trial, the trial court awarded 65% permanent partial disability to the hearing of both ears and set the date of injury as the date that the employee first learned of his hearing loss. The employer appealed arguing that the award was excessive and that the trial court erred in setting the date of injury. We find that the award was excessive and modify it to 15% permanent partial disability to the hearing of both ears. We have also determined that the trial court erred with regard to its determination of the date of the injury.

Opinion may be found at:

Friday, April 9, 2010

Court reviews wrongful death award in automobile accident case

LAURA WILBURN, as the Personal Representative of SON JONES, Deceased v. CITY OF MEMPHIS (Tenn. Ct. App. April 9, 2010)

Decedent was struck and killed by an on-duty City of Memphis police officer while attempting to cross the street. The trial court awarded $7,500.00 in a wrongful death award. Decedent's personal representative appeals, seeking an increased award. We affirm.

Opinion may be found at:

Thursday, April 8, 2010

Court reviews whether defendant properly showed that it met the standard of care in medical malpractice case


In this medical malpractice action, the plaintiff offered evidence of the standard of care required of defendant by an expert witness, and defendant offered evidence that it complied with the standard of care by an expert witness, who was accepted as an expert by the Trial Court. The Trial Judge ruled in favor of defendant, essentially accepting the defendant's evidence that it had met the standard of care for the deceased. Plaintiff appealed, insisting that the Trial Court did not "correctly weigh the conflicting expert testimony" in its ruling for the defendant. On appeal, we affirm the Judgment of the Trial Court.

Opinion may be found at: