TN Supreme Court Reviews the Jury Instructions in a Strict Products Liability Case Involving Asbestos

EVELYN NYE v. BAYER CROPSCIENCE, INC., ET AL. (Tenn. June 7, 2011)



In this products liability case, a widow sought compensation for the death of her husband from mesothelioma allegedly caused by exposure to asbestos at his workplace. She sued the company that sold products containing asbestos to her husband's employer. She based her claim on strict liability and alleged that the seller sold defective products and failed to warn her husband of the products' health risks.

The jury found that the seller was at fault, but that her husband's employer was the sole cause of his injury and awarded her nothing. The widow appealed. The Court of Appeals reversed and remanded for a new trial based on erroneous jury instructions that more probably than not affected the judgment of the jury.

On review, we hold that the seller was subject to suit in strict liability, pursuant to Tennessee Code Annotated section 29-28-106(b) (2000), because none of the products' manufacturers were subject to service of process. Further, we hold that the trial court erred by instructing the jury that the seller could not be held liable for failure to warn if the jury found that the consumer, identified as the employer, was already aware of any danger in connection with the use of the products or if the employer had been given adequate warnings.

This jury instruction was erroneous for two reasons. First, it applied the learned intermediary doctrine, which the courts of this state have limited to medical products and pharmaceuticals. Second, the jury instruction misidentified the consumer as the employer, when the consumer who was required to be warned was the employee, Mr. Nye. Because the error more probably than not affected the judgment of the jury, the judgment of the trial court is reversed and the cause is remanded for a new trial.


Opinion available at:

http://www.tba2.org/tba_files/TSC/2011/nye_correx_061511.pdf



HOLDER concurring in part and dissenting in part:

http://www.tba2.org/tba_files/TSC/2011/nyee_DIS_060711.pdf

Court reviews the denial of TennCare coverage for orthodontic braces

RACHEL LEE EX REL. REBECCA LEE v. MARK EMKES, COMMISSIONER OF THE TENNESSEE DEPARTMENT OF FINANCE AND ADMINISTRATION (Tenn. Ct. App. June 28, 2011)



Petitioner, when she was thirteen years old, was having difficulty eating because of the position of her teeth, which also irritated her lips and cheeks. An orthodontist recommended braces to remedy the problem; however, the Tennessee Department of Finance and Administration denied TennCare coverage for orthodontic braces.

Upon review by the Davidson County Chancery Court, the court found that the TennCare regulations impermissibly required both a Salzmann Index score of 28 and an abnormal dental development, i.e., a handicapping malocclusion, to qualify for orthodontic treatment, and that the Salzmann Index was an illegal utilization control because it nullified eligibility based upon an individualized review. The trial court also found that petitioner had not demonstrated a handicapping malocclusion, which is a valid utilization control under the regulations, therefore, she did not qualify for braces. Petitioner appealed.

We affirm the trial court's finding that the TennCare regulation in effect at the time impermissibly required a Salzmann Index score of at least 28 to qualify for orthodontic treatment. The record does, however, establish that an individualized assessment of Petitioner's condition to determine whether she had a handicapping malocclusion was conducted by a consulting dentist employed by the agency, which satisfies the federal requirements. Accordingly, we affirm the trial court's decision to affirm the agency's denial of orthodontic braces.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/leer_062811.pdf

Court Reviews Whether the Statute of Limitations Barred the Transfer of a GTLA Claim to the Proper Venue

JOHN HAYNES v. RUTHERFORD COUNTY ET AL. (Tenn. Ct. App. June 28, 2011)

The issue in this matter is whether Tenn. Code Ann. section 16-1-116 ("the Transfer Statute") tolls the running of the statue of limitations when a claim under the Government Tort Liability Act is filed in a court that lacks subject matter jurisdiction, and the court transfers the case to a court with jurisdiction.

Acting pro se, the plaintiff filed a GTLA claim in the general sessions court of Rutherford County; the civil warrant was filed prior to the running of the one-year statute of limitations for a GTLA claim. Because subject matter jurisdiction over GTLA claims is limited to the circuit court, the sessions court transferred the case. The circuit court held that, because the sessions court lacked jurisdiction, the transfer itself was invalid; therefore, the action was not effectively filed until it was transferred to the circuit court. However, the date of transfer was beyond the applicable one-year statute of limitations for GTLA claims; thus, the circuit court dismissed the case as time barred.

We have determined this case is not time barred because, under the Transfer Statute, the statute of limitations was tolled when the civil warrant was timely filed in sessions court and, because it was timely filed, the sessions court was authorized to transfer the case to the circuit court. Therefore, we reverse and remand with instructions to reinstate the case and for further proceedings consistent with this opinion.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/haynesj_062811.pdf

Court Reviews a Summary Judgment Motion in a Medical Malpractice Case Related to Treatment and Fraudulent Billing of a Patient

DEBORAH LYNN DAVIS v. JACK E. SCARIANO, JR., M.D. ET AL. (Tenn. Ct. App. June 28, 2011)

The plaintiff, Deborah Lynn Davis, appeals from a grant of summary judgment to the defendants, Dr. Jack E. Scariano, Jr., and his group, West Knoxville Neurological Associates. Except when the context requires otherwise, we will refer to the defendants collectively as "Dr. Scariano."

Davis sued Dr. Scariano alleging medical malpractice and fraud related to the doctor's treatment of her and to the billing of her account. Dr. Scariano moved for summary judgment. After granting Davis several continuances, the trial court heard the motion and granted it based on Dr. Scariano's filings and the plaintiff's failure to present evidence establishing a disputed issue of material fact. Davis appeals. We affirm.

Opinion available here:
http://www.tba2.org/tba_files/TCA/2011/davisd_062811.pdf

Supreme Court gives drug companies two thumbs up

Supreme Court Sides with Pharmaceutical Industry in Two Cases (L.A. Times)

The U.S. Supreme Court gave the pharmaceutical industry a pair of victories, shielding the makers of generic drugs from most lawsuits by injured patients and declaring that drug makers have a free-speech right to buy private prescription records to boost their sales pitches to doctors.

Read the full story at the Los Angeles Times' Website

TN Supreme Court Reviews Whether a Construction-Related Injury was Negligence Subject to the Governmental Tort Liability Act

DALTON REB HUGHES ET AL. v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE ET AL. (Tenn. May 24, 2011)

After being injured when he jumped out of the path of a front-end loader owned by a governmental entity and operated by its employee, the plaintiff filed suit, claiming that the employee either was negligent in his operation of the equipment or had acted intentionally and that the governmental entity was liable under the Governmental Tort Liability Act. The trial court entered judgment for the plaintiff against the governmental entity and the Court of Appeals affirmed.

The governmental entity sought permission to appeal, arguing first that the employee had acted outside the scope of his employment and, secondly, that he had committed an assault against the plaintiff, either of which would preclude liability under the Act. Although we hold that the employee's conduct fell within the scope of his employment, his operation of the equipment constituted the intentional tort of assault rather than negligence. The governmental entity cannot, therefore, be held liable under the Act absent proof of its negligent supervision. The judgment of the Court of Appeals is reversed as to the governmental entity, and the cause is remanded to the trial court for entry of judgment against the employee.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/hughesd_052411.pdf

Tennessee Civil Justice Act 2011 - A High Price for Hollow Promises

Last week Tennessee Governor Bill Haslam signed into law the Tennessee Civil Justice Act of 2011.   The Act limits jury awards for non-economic damages in cases of injury or death to no more than $750,000 and limits punitive damages, intended to punish intentional or reckless behavior, to a maximum of $500,000. According to Governor Haslam, the Act will bring predictability and certainty to businesses calculating potential litigation costs thereby attracting new businesses and creating jobs.

The governors of Texas, Mississippi, Alabama and other states passed similar legislation by promising the same new businesses and new jobs.  They failed.  Time and truthful statistics will also prove Governor Haslam’s promises hollow.  In the interim, Tennessee citizens have paid a very high price to make businesses and insurers feel more comfortable in projecting income and profits.  That price includes having legislators they will never meet put a dollar value on their lives; losing the ability to punish and deter companies who act recklessly; and surrendering part of their 7^th Amendment right to a civil jury trial.  A recent tragedy to our north helps put the high cost of this Act in perspective. 

On the morning of August 27, 2006, Delta’s Comair flight 191 prepared to depart from Bluegrass Airport in Lexington, Kentucky.  The air traffic controller on duty cleared the Comair captain for take off on Runway 22.  Instead the flight’s first officer mistakenly taxied the plane onto Runway 26 and hit the throttle.  Seconds later the plane plowed into an embankment, rifled through a perimeter fence, and exploded killing 49 of the 50 passengers onboard. 

To get comfortably airborne, Comair 191 needed nearly all 7,000 feet of Runway 22.  Runway 26 was only 3,500 feet long.  The sole FAA air traffic controller in the tower did not see the Comair pilot’s error as he taxied onto the fatally short runway.  A second controller might have warned the pilot in time to avoid disaster.  But, in violation of FAA rules, no other controller was on duty.    

An NTSB investigation concluded that Comair and the FAA were negligent in causing the crash.  It primarily determined that the Comair pilots completely disregarded their training in identifying the approved runway as they taxied onto Runway 26.  As a result, the families of the passengers filed civil suits against Comair and the FAA for the wrongful death of their loved ones.  The suits asked for punitive damages against Comair for what the presiding judge called reprehensible behavior by its pilots. 

Faced with a jury trial and punitive damages, Comair settled nearly every case.  It preferred not to have a jury carefully learn of and value all the lives of the passengers including a newly wed couple who never arrived at their honeymoon destination.  In order to avoid future crashes and punitive damages, Comair then made significant changes in pilot and controller training and operational policies.  In short, the civil justice system, with only the prospect of a jury verdict, worked in compensating the survivors and better protecting future airline passengers.  

Now consider the Comair case if the victims families were subject to the new Tennessee Civil Justice Act.  The value of each passenger’s life, irrespective of age, would be his or her lost earnings plus up to $750,000.  If Comair was punished by the Act’s maximum $500,000 in punitive damages for every life lost, it would pay less than $25 million dollars.  That would likely be no deterrent at all for a company which reported pre-tax profits of $1.8 billion in 2007.  Comair would have no real financial motivation to make operational changes aimed at avoiding a similar crash and loss of life.  The survivors would not be made whole and future passengers would remain at risk of the same fate. 

The difference between the proper outcome in the Comair case and the outcome under the new Act is quite simply the jury’s unfettered judgment.  In his 1789 speech to the first U.S. Congress, James Madison, the architect of the U.S. Constitution and champion of civil suits, said “trial by jury . . . is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”  Madison and the other Founders, wanted to protect their lives, livelihoods and property.  They feared arbitrary and capricious judgment, like that once imposed by the English monarchy, with regard to their affairs. Madison firmly believed the only acceptable method of justice involved a jury of peers. 

Based on these convictions and Madison’s proposal, Congress adopted and the states ratified the 7^th Amendment which guarantees that “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

By limiting the value of human life and the deterrent value of punitive damages, Tennessee legislators substituted their uninformed, arbitrary judgment for that of a jury. 

In doing so, they subjected Tennesseans to Madison’s greatest fear – arbitrary judgments concerning life and property.  It was a high price indeed for a hollow promise. 

Consumer Protection Laws Help Tennesseans Recover

Americans pursuing dreams and goals through education, work, or the growth of small and large businesses want to compete on a level playing field.  They want to be treated honestly and fairly by competitors, insurers, state and local governments, vendors, and customers.  Of course history informs us that not all individuals or companies play by the rules.  Eventually every business faces the breach of an important contract, a bad debt, a denied insurance claim or some other legal matter.

Due to challenging economic times, many individuals and businesses are facing a more insidious threat than broken contracts.  They are increasingly being damaged by unfair, deceptive and outright fraudulent practices by those with whom they do business.  Fortunately, Tennessee law provides the legal weapons needed to combat reprehensible behavior by those who knowingly take advantage of consumers in the marketplace. 

These weapons include the Tennessee Consumer Protection Act (TCPA) and bad faith insurance laws.  The TCPA is often misunderstood because it is entitled a “consumer” act.  It is important to understand that the TCPA considers both individuals and businesses to be consumers.  In fact, a large portion of all TCPA claims involve businesses suing businesses for unfair or deceptive practices.  The Act is important because when a consumer has been damaged by the unfair, deceptive or fraudulent actions of another, a court may invoke it to award actual damages, punitive damages and attorneys fees.  In the hands of a skilled attorney, the TCPA can be used to fully compensate a consumer and deter a bad actor from engaging in further deceptive behavior. 

A recent case handled by my firm is an excellent example of how the TCPA might apply to you or your business.  Our client was a young, aspiring country music singer.  She paid a Nashville record producer for song production and further promotion of her career.  He represented himself as an accomplished producer with good connections at the major records labels.  The producer breached the contract by failing to produce the promised songs and results.  However, we argued that the producer’s repeated and threatening requests for funds and his early and utter refusal to perform the contract suggested an intention to defraud our client from the outset.  The court agreed and rendered a six figure verdict including punitive damages and attorney fees under the TCPA.  A simple claim for breach would not have made the young woman whole or deterred the producer from such future conduct.

While aspiring artists cannot buy insurance against unscrupulous producers, many consumers buy insurance to protect themselves from life-altering events such as natural disasters, theft and fraud.  The premiums are expensive, but consumers are willing to pay them for the promise of being covered for unexpected and potentially catastrophic losses. 

Unfortunately, insurers sometimes place their economic interests ahead of their policyholders’ interests and wrongfully refuse to pay valid claims.  When an insurer unjustifiably refuses to pay a valid claim it may be found to have breached the insurance policy or to have acted in bad faith

Another recent case handled by my firm is a good example of how you or your company could be affected by an insurer’s breach or bad faith.  Our clients, the Fagans, were wrongfully accused by Allstate of burning down their own home. 

In July 2005, Peter and Tracy Fagan awoke to smoke and flames in their Sevierville, Tennessee home.  They lost everything they owned including their children's pets; clothing and toys; family photos; personal and business records; and an uninsured Corvette Stingray which was parked in the basement.  The Fagans always contended that the fire was caused when Mrs. Fagan fell asleep while smoking on the first floor of the home.

After the fire, Mrs. Fagan, who was not just a policyholder but an Allstate insurance agent, filed a claim under her Allstate homeowner's policy for the insured contents of the home.  Instead of paying the claim, Allstate immediately hired a fire origin expert and a private investigator.  Allstate denied the claim alleging that the Fagans intentionally set the fire for financial gain due alleged financial and marital problems.

In reality, at the time of the fire, the Fagans owned approximately $1 million worth of real property and had near perfect credit.  All their mortgages were current and they had recently been approved for purchase of another rental property.

When the Fagans sued Allstate for payment of their claim, Allstate counter-sued them for bringing the claim and requested that the Fagans be ordered to reimburse Allstate for the company's $40,000 in expert and litigation costs plus its attorney's fees.

After a 3 day trial in U.S. District Court for the Eastern District of Tennessee, a jury returned a verdict in favor of the Fagans.  The jury found that the Fagans did not set fire to their home and awarded them the full amount due under their homeowner's policy.  The jury denied Allstate's counter suit against the Fagans. 

The facts of Fagan v. Allstate are informative as to just how far an insurer may go in trying to avoid a valid claim.  Hopefully you will never fall victim to such unscrupulous behavior.  But always remember that Tennessee’s civil justice system exists to help you prosecute those who would harm you and your business.  If the case is pursued competently and aggressively, you may be able to recover not only your actual losses, but you may recover your litigation costs and have penalties imposed which deter a defendant from harming others. 

Tennesseans Allege Scam by Big World Vacations

The Tennessean reports that many consumers in Tennessee and other states believe they may have been misled or outright scammed by Nashville-based vacation company Big World Vacations.  The Adams Law Firm is investigationg such claims for Tennessee consumers.  If you purchased a vacation package from Big World Vacations, now doing business as Big World/BTM, and need legal advice, call a consumer protection attorney with The Adams Law Firm at 865-531-6440 or 615-585-5415. Our attorneys are experienced in consumer protection law and can answer any questions you might have with regard to your Big World Vacations contract or purchase. 

Court Reviews a Finding of No Fault in a Case Involving a Motor Vehicle Accident

BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a AT&T (TN) v. SHUNDRA Y. YOUNG and MAUREEN F. KINSELLA (Tenn. Ct. App. June 21, 2011)

Plaintiff sued Defendants for damages arising from a motor vehicle accident. The trial court struck, from Defendants' answers, allegations regarding the comparative fault of an unidentified nonparty. However, the trial court allowed references to such nonparty at trial, and the jury assigned no fault to Defendants. Finding no error in the trial court's allowance, we affirm the judgment of the trial court.

Opinion available here:
http://www.tba2.org/tba_files/TCA/2011/bellsouth_062111.pdf

TWCA Reviews Whether a Hydrotherapy Tub Falls Within the "Future Medical Treatment" Provision of a Workers' Compensation Settlement

JERRY LINDSEY v. TIM REEVES D/B/A TIM'S TREE SERVICE (TWCA June 16, 2011)



The employee suffered a compensable spinal cord injury. He settled his workers' compensation claim with his employer in 2007. The settlement provided for future medical treatment in accordance with Tennessee Code Annotated section 50-6-204(a) (2008). In 2009, the employee sought authorization and payment for a hydrotherapy tub. His employer declined to authorize installation of the tub. The employee filed a motion for authorization of medical care in February 2010 and supported the motion by attaching a note from his authorized treating physician that he would "benefit" from use of the tub. The trial court granted the motion. On appeal, we reverse.


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/lindseyj_061611.pdf

Court Reviews a Motion to Dismiss for Failure to State a Claim in a Case Involving a Hospital

MCCALL BRISTER v. HCA HEALTH SERVICES OF TENNESSEE, ET AL. (Tenn. Ct. App. June 9, 2011)



This is an appeal from the trial court's grant of a hospital's motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff's claim sounded in medical malpractice and dismissed plaintiff's claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff's complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/bristerm_060911.pdf

TWCA reviews the percentage of permanent partial disability allocated by the trial court

DANIEL CLAY LEWIS v. DANA HOLDING CORPORATION (TWCA June 8, 2011)


An employee sustained an injury to his shoulder at work. After a surgical repair, he briefly returned to work but was laid off prior to reaching maximum medical improvement. He filed a complaint in chancery court seeking workers' compensation benefits from his employer. His treating physician assigned no impairment rating and placed no restrictions on his activities. An evaluating physician assigned 6% impairment to the body as a whole and recommended that Mr. Lewis avoid certain activities.

The trial court awarded 36% permanent partial disability to the body as a whole. The employer has appealed, contending that the award is excessive. We modify the judgment to award 24% permanent partial disability to the employee. We also conclude that local Rule 17A of the Chancery Court of the 28th Judicial District of Tennessee conflicts with Tennessee Rule of Civil Procedure 58. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/lewisd_060811.pdf

TWCA reviews whether an employee was injured during the usual course of his employment

VICTOR POWELL ET AL. v. BRETT MARTER, INDIVIDUALLY and D/B/A QUALITY FLOOR COVERING (TWCA June 7, 2011)



This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee filed a workers' compensation action contending his injury while cutting trees at his employer's home was in the usual course of his employment at his employer's floor covering business. The trial court held that employee's work was casual employment not in the usual course of his employer's business as defined by TCA section 50-6-106(2) and not covered by the workers' compensation statute. We affirm the judgment. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/powellv_060711.pdf

TWCA reviews a motion to dismiss for failure to prosecute in a workers' compensation case

MASON FISCHER v. SVERDRUP TECHNOLOGY, INC. (TWCA June 7, 2011)



This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

The employee filed a Worker's Compensation action on August 22, 2003 alleging a compensable injury in the course of his employment with his employer in December 1998. The employer filed a motion to dismiss for failure to prosecute under Tenn. R. Civ. P. 41.02.

The trial court entered an order in September 2008, stating that the employer was withdrawing the motion to dismiss for failure to prosecute based upon the employee's commitment to take a medical deposition within sixty days. A second motion to dismiss for failure to prosecute was filed and heard on March 15, 2010 because the medical deposition had not been taken. The trial court granted the motion with prejudice. The employee has appealed. We affirm the judgment. 


Opinion available at:

http://www.tba2.org/tba_files/TSC_WCP/2011/fischerm_060711.pdf

Court reviews whether Plainiff's expert was qualified to testify in a case involving medical malpractice

BRANDE KIRK, ET AL. v. MICHAEL A. CHAVIN, M.D. (Tenn. Ct. App. June 3, 2011)


Brande Kirk and Amanda Jordan, as children of Barbara Jordan, ("Plaintiffs") sued Michael A. Chavin, M.D. alleging medical malpractice in his treatment of Barbara Jordan. Dr. Chavin filed a motion for summary judgment. After a hearing, the Trial Court entered its order on August 30, 2010 finding and holding that Plaintiffs' expert was not qualified to testify in accordance with Tenn. Code Ann. section 29-26-115, and granting Defendant's motion for summary judgment. Plaintiffs appeal to this Court. We affirm. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/kirkb_060311.pdf