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:
http://www.tba2.org/tba_files/TSC_WCP/2010/bainl_041510.pdf
Tennessee Personal Injury Law Blog - published by Bryan L. Capps and Stephen A. Burroughs. The Law Office of Stephen A. Burroughs – proudly serving clients throughout East Tennessee.
Thursday, April 15, 2010
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:
http://www.tba2.org/tba_files/TCA/2010/wilburnl_040910.pdf
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:
http://www.tba2.org/tba_files/TCA/2010/wilburnl_040910.pdf
Thursday, April 8, 2010
Court reviews whether defendant properly showed that it met the standard of care in medical malpractice case
ALVIN FLATT v. CLAIBORNE COUNTY HOSPITAL AND NURSING HOME (Tenn. Ct. App. April 8, 2010)
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:
http://www.tba2.org/tba_files/TCA/2010/flatta_040810.pdf
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:
http://www.tba2.org/tba_files/TCA/2010/flatta_040810.pdf
Wednesday, March 31, 2010
Court reviews denial of summary judgment and tolling of the statute of limitations in a medical malpractice case
HARRISON KERR TIGRETT v. JOHN E. LINN, M. D, ET AL. (Tenn. Ct. App. March 31, 2010)
This is a Tenn. R. App. P. 9 appeal of the denial of a motion for summary judgment in a medical malpractice case. The trial court denied Appellants/Defendants' motions for summary judgment, finding that the statute of repose, Tenn. Code Ann.section 29-26-116(a)(3), was tolled as a result of fraudulent concealment on the part of Appellants/Defendants. Finding that there are material issues of fact in dispute, we affirm the trial court's denial of Appellants' motions for summary judgment. We, however, vacate any decision that the statute of limitations was tolled as a result of fraudulent concealment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/tigretth_033110.pdf
This is a Tenn. R. App. P. 9 appeal of the denial of a motion for summary judgment in a medical malpractice case. The trial court denied Appellants/Defendants' motions for summary judgment, finding that the statute of repose, Tenn. Code Ann.section 29-26-116(a)(3), was tolled as a result of fraudulent concealment on the part of Appellants/Defendants. Finding that there are material issues of fact in dispute, we affirm the trial court's denial of Appellants' motions for summary judgment. We, however, vacate any decision that the statute of limitations was tolled as a result of fraudulent concealment.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/tigretth_033110.pdf
TWCA reviews whether the trial court properly awarded permanent partial disability benefits where employee's employer was sold to another entity
REGINA DAY v. ZURICH AMERICAN INSURANCE (TWCA March 31, 2010)
In this workers' compensation action, the employee, Regina Day, sustained compensable injuries to both of her shoulders. She returned to her pre-injury job, but the holding company which owned her employer had been sold to another entity. The employer, which had been a corporation, became a limited liability company (LLC). The trial court, applying existing case law, held that she had not returned to work for her pre-injury employer and awarded permanent partial disability benefits in excess of the statutory cap contained in Tennessee Code Annotated section 50-6-241(d)(1)(A). Her employer has appealed, contending that the trial court erred by failing to apply the cap or, in the alternative, that the award is excessive. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/dayr_033110.pdf
In this workers' compensation action, the employee, Regina Day, sustained compensable injuries to both of her shoulders. She returned to her pre-injury job, but the holding company which owned her employer had been sold to another entity. The employer, which had been a corporation, became a limited liability company (LLC). The trial court, applying existing case law, held that she had not returned to work for her pre-injury employer and awarded permanent partial disability benefits in excess of the statutory cap contained in Tennessee Code Annotated section 50-6-241(d)(1)(A). Her employer has appealed, contending that the trial court erred by failing to apply the cap or, in the alternative, that the award is excessive. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/dayr_033110.pdf
Tuesday, March 30, 2010
Court reviews summary judgment ruling based on the Equine Activities Act
LOWELL SMITH ET AL. v. STEPHEN DOUGLAS PHILLIPS, ET AL. (Tenn. Ct. App. March 30, 2010)
A man was bitten by a horse while on a trail ride with friends. He sued the owner of the horse that bit him, claiming that the owner had failed to properly restrain or control his animal. The trial court granted summary judgment to the owner, ruling that he was entitled to immunity under the Equine Activities Act, Tenn. Code Ann. section 44-20-101 et seq. The Act must be strictly construed, since it is in derogation of common law. We hold that under a strict construction of the act, the defendant is not entitled to immunity, and we accordingly reverse the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/smithl_033010.pdf
A man was bitten by a horse while on a trail ride with friends. He sued the owner of the horse that bit him, claiming that the owner had failed to properly restrain or control his animal. The trial court granted summary judgment to the owner, ruling that he was entitled to immunity under the Equine Activities Act, Tenn. Code Ann. section 44-20-101 et seq. The Act must be strictly construed, since it is in derogation of common law. We hold that under a strict construction of the act, the defendant is not entitled to immunity, and we accordingly reverse the trial court.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/smithl_033010.pdf
Friday, March 26, 2010
Memphis Daily News: Tenn. Doctors Continue Pursuit of Malpractice Caps
Tenn. doctors shift focus on malpractice caps (March 26, 2010)
Tennessee doctors pushed for Congress to cap malpractice awards in the new national health care law, but the final bill included no such limits. The Memphis Daily News reports they now are turning their attention to the next General Assembly. The incoming president of the Tennessee Medical Association says the group will poll state legislative candidates about their position on malpractice caps and post responses on its web site. While the association argues that Tennessee is losing talented doctors to states that have malpractice caps, a number of those states are dealing with court challenges to the laws, making the legal landscape uncertain for lawyers and physicians alike.
Tennessee doctors pushed for Congress to cap malpractice awards in the new national health care law, but the final bill included no such limits. The Memphis Daily News reports they now are turning their attention to the next General Assembly. The incoming president of the Tennessee Medical Association says the group will poll state legislative candidates about their position on malpractice caps and post responses on its web site. While the association argues that Tennessee is losing talented doctors to states that have malpractice caps, a number of those states are dealing with court challenges to the laws, making the legal landscape uncertain for lawyers and physicians alike.
Thursday, March 25, 2010
Court reviews an employer's petition to intervene in employee's tort case.
EDUARDO SANTANDER, Plaintiff-Appellee, AMERICAN HOME ASSURANCE CO., Intervenor-Appellant, v. OSCAR R. LOPEZ, Defendant (Tenn. Ct. App. March 25, 2010)
Plaintiff was involved in a motor vehicle accident during the course and scope of his employment. Plaintiff brought a tort action against the driver of the other vehicle, and subsequently entered into a settlement with his employer and the workers' compensation carrier. Plaintiff then reached a settlement in the tort case, but before Judgment was entered his employer filed a Petition to Intervene in that case, asserting a subrogation lien on the tort recovery. The Trial Judge refused to allow intervention on the grounds that the Petition to Intervene was not timely filed. On appeal, we reverse and remand.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/santandere_032510.pdf
Plaintiff was involved in a motor vehicle accident during the course and scope of his employment. Plaintiff brought a tort action against the driver of the other vehicle, and subsequently entered into a settlement with his employer and the workers' compensation carrier. Plaintiff then reached a settlement in the tort case, but before Judgment was entered his employer filed a Petition to Intervene in that case, asserting a subrogation lien on the tort recovery. The Trial Judge refused to allow intervention on the grounds that the Petition to Intervene was not timely filed. On appeal, we reverse and remand.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/santandere_032510.pdf
Monday, March 15, 2010
Knoxville News Sentinel: Physicians, lawyers watching for law to impact premiums
Medical malpractice law has mixed results (March 15, 2010)
Changes in Tennessee's medical malpractice laws has produced a dramatic drop in the number of lawsuits filed according to data released by the Tennessee Administrative Office of the Courts. Anecdotal reports by doctors, however, indicate little relief in malpractice insurance premiums. Under legislation passed in 2008, patients must give a 60-day notice before filing a malpractice lawsuit and get documentation that the claim has merit. Data shows a 59 percent drop in suits since the law went into effect. By contrast, physicians report they have not seen a dramatic decrease in insurance premiums; but have not had dramatic increases either.
Changes in Tennessee's medical malpractice laws has produced a dramatic drop in the number of lawsuits filed according to data released by the Tennessee Administrative Office of the Courts. Anecdotal reports by doctors, however, indicate little relief in malpractice insurance premiums. Under legislation passed in 2008, patients must give a 60-day notice before filing a malpractice lawsuit and get documentation that the claim has merit. Data shows a 59 percent drop in suits since the law went into effect. By contrast, physicians report they have not seen a dramatic decrease in insurance premiums; but have not had dramatic increases either.
Court reviews trial court's rulings on the sufficiency of an amended complaint and its dismissal of wrongful death and loss of consortium claims in a medical malpractice case.
TINA TAYLOR, ET AL. v. LAKESIDE BEHAVIORAL HEALTH SYSTEM (Tenn. Ct. App. March 15, 2010)
This is a medical malpractice case. Appellant filed suit against Appellee Hospital after Appellant's decedent suffered several falls and a broken hip while a patient at Appellee Hospital.
The trial court granted Appellee Hospital's Tenn. R. Civ. P. 12.02(6) motion, thereby dismissing Appellant's amended complaint. Specifically, the trial court held: (1) that the amended complaint was ineffective to give notice to Appellee Hospital because it did not reference the date(s) of decedent's falls, (2) that the medical malpractice claim and hedonic damages of the widow arising therefrom were dismissed by previous orders of the court, and (3) that the proof did not support the averments made in the amended complaint.
After review, we conclude: (1) that the amended complaint is sufficiently specific to satisfy Tenn. R. Civ. P. 8, and to state a claim for medical malpractice against the Appellee Hospital, (2) that the previous orders of the trial court only dismissed the wrongful death claims and widow's loss of consortium claims arising therefrom, and not the medical malpractice claims, and (3) that the trial court reviewed matters outside the pleadings so as to trigger summary judgment analysis under Tenn. R. Civ. P. 12.03, and (4) that there are disputes of material fact in this case so as to necessitate a full evidentiary hearing on the medical malpractice claim. Reversed and remanded for an evidentiary hearing on the medical malpractice claim against Appellee Hospital and on the widow's loss of consortium claims arising from the alleged medical malpractice.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/taylort_031510.pdf
This is a medical malpractice case. Appellant filed suit against Appellee Hospital after Appellant's decedent suffered several falls and a broken hip while a patient at Appellee Hospital.
The trial court granted Appellee Hospital's Tenn. R. Civ. P. 12.02(6) motion, thereby dismissing Appellant's amended complaint. Specifically, the trial court held: (1) that the amended complaint was ineffective to give notice to Appellee Hospital because it did not reference the date(s) of decedent's falls, (2) that the medical malpractice claim and hedonic damages of the widow arising therefrom were dismissed by previous orders of the court, and (3) that the proof did not support the averments made in the amended complaint.
After review, we conclude: (1) that the amended complaint is sufficiently specific to satisfy Tenn. R. Civ. P. 8, and to state a claim for medical malpractice against the Appellee Hospital, (2) that the previous orders of the trial court only dismissed the wrongful death claims and widow's loss of consortium claims arising therefrom, and not the medical malpractice claims, and (3) that the trial court reviewed matters outside the pleadings so as to trigger summary judgment analysis under Tenn. R. Civ. P. 12.03, and (4) that there are disputes of material fact in this case so as to necessitate a full evidentiary hearing on the medical malpractice claim. Reversed and remanded for an evidentiary hearing on the medical malpractice claim against Appellee Hospital and on the widow's loss of consortium claims arising from the alleged medical malpractice.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/taylort_031510.pdf
Court reviews products liability and negligence claims in a case about a bus accident
CLIFTON LAKE, ET AL. v. THE MEMPHIS LANDSMEN, L.L.C., ET AL. (Tenn. Ct. App March 15, 2010)
This is an appeal from a jury verdict in a negligence and products liability case. Appellant-Husband was injured when the bus, on which he was a passenger, collided with a concrete truck. Appellant-Husband and Appellant-Wife filed suit against Appellees- the bus manufacturer, the bus owner, and the franchisor.
Following trial, the jury found that the Appellants had suffered $8,543,630.00 in damages, but found that none of the Appellees were at fault and apportioned one hundred percent of the fault to a non-party. Appellants appeal.
We find that Appellants' claims based on the use of tempered glass in the side windows of the bus, and the lack of passenger seatbelts in the bus are preempted by the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. section 30101 et seq. Further, we find that the Appellants failed to present evidence that the use of perimeter seating in the bus caused the injuries. Consequently, we find that the trial court erred in not granting Appellees' motions for directed verdict on the Appellants' claims based on the use of perimeter seating. Reversed and remanded.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lakec_031510.pdf
This is an appeal from a jury verdict in a negligence and products liability case. Appellant-Husband was injured when the bus, on which he was a passenger, collided with a concrete truck. Appellant-Husband and Appellant-Wife filed suit against Appellees- the bus manufacturer, the bus owner, and the franchisor.
Following trial, the jury found that the Appellants had suffered $8,543,630.00 in damages, but found that none of the Appellees were at fault and apportioned one hundred percent of the fault to a non-party. Appellants appeal.
We find that Appellants' claims based on the use of tempered glass in the side windows of the bus, and the lack of passenger seatbelts in the bus are preempted by the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. section 30101 et seq. Further, we find that the Appellants failed to present evidence that the use of perimeter seating in the bus caused the injuries. Consequently, we find that the trial court erred in not granting Appellees' motions for directed verdict on the Appellants' claims based on the use of perimeter seating. Reversed and remanded.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lakec_031510.pdf
Friday, March 12, 2010
Standards for Nursing Services in Residential Hospices
Standards for Nursing Services in Residential Hospices (TN Attorney General Opinions March 12, 2010)
In this opinion, the Attorney General examines whether a federal interpretive guideline contained in the recent interim final Hospice Program Interpretive Guidance preempts or modifies the applicable Tennessee Department of Health rule
regarding nursing services in residential hospices. He determined that the federal guideline does not modify the Tennessee rule because the federal guideline requires that hospice staff comply with both state and federal laws and that in the case of a difference in licensing requirements between the state law and federal law, the regulation requires the hospice to meet the more stringent of the two requirements.
The full opinion may be found at:
http://www.tba2.org/tba_files/AG/2010/ag_10_32.pdf
In this opinion, the Attorney General examines whether a federal interpretive guideline contained in the recent interim final Hospice Program Interpretive Guidance preempts or modifies the applicable Tennessee Department of Health rule
regarding nursing services in residential hospices. He determined that the federal guideline does not modify the Tennessee rule because the federal guideline requires that hospice staff comply with both state and federal laws and that in the case of a difference in licensing requirements between the state law and federal law, the regulation requires the hospice to meet the more stringent of the two requirements.
The full opinion may be found at:
http://www.tba2.org/tba_files/AG/2010/ag_10_32.pdf
TWCA reviews award of benefits for hearing loss in worker's compensation case
ARETIES McKAMEY v. LOCKHEED MARTIN ENERGY SYSTEMS, INC., ET AL. (TWCA March 12, 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) for a hearing and a report of findings of fact and conclusions of law. The trial court found that the employee had sustained a hearing loss as a result of exposure to noise during her work from 1944 to 1989 as a telephone operator for her employer, and awarded 50% permanent partial disability ("PPD") of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court's finding on the issue of causation. Alternatively, it argues that the award is excessive. We reverse the judgment and dismiss the complaint.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mckameya_031210.pdf
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 found that the employee had sustained a hearing loss as a result of exposure to noise during her work from 1944 to 1989 as a telephone operator for her employer, and awarded 50% permanent partial disability ("PPD") of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court's finding on the issue of causation. Alternatively, it argues that the award is excessive. We reverse the judgment and dismiss the complaint.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mckameya_031210.pdf
TCA affirms Summary Judgment finding Plaintiff's expert witness did not meet statutory requirements
GEORGE H. BADGETT, ET AL. v. ADVENTIST HEALTH SYSTEMS SUNBELT, INC. d/b/a TENNESSEE CHRISTIAN MEDICAL CENTER (Tenn. Ct. App. July 31, 2009)
In this action concerning alleged malpractice by hospital staff, the trial court found plaintiff's expert affidavit failed to meet the locality test of Tenn. Code Ann. section 29-26-115 where the only similarities proven between the medical communities were population, existence of feeder hospitals and existence of medical school. Finding the trial court did not abuse its discretion, we affirm.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/badgettg_080309.pdf
In this action concerning alleged malpractice by hospital staff, the trial court found plaintiff's expert affidavit failed to meet the locality test of Tenn. Code Ann. section 29-26-115 where the only similarities proven between the medical communities were population, existence of feeder hospitals and existence of medical school. Finding the trial court did not abuse its discretion, we affirm.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/badgettg_080309.pdf
Court holds that amended medical expert afffidavit met Tenn. Code requirements
NANCY L. LANE v. JODI D. MCCARTNEY, M.D., ET AL. (Tenn. Ct. App. July 31, 2009)
Nancy L. Lane ("Plaintiff") sued Karen K. Lauer-Silva, M.D. and Medical Education Assistance Corporation d/b/a ETSU Physicians & Associates ("Defendants") alleging medical malpractice. Defendants filed a motion for summary judgment. After a hearing on Defendants' motion, the Trial Court entered an order finding and holding, inter alia, that Plaintiff's expert witness did not meet the requirements of Tenn. Code Ann. section 29-26-115, and granting Defendants summary judgment. Plaintiff filed a motion to alter or amend along with a Second Supplemental Affidavit from Plaintiff's expert. The Trial Court considered the Second Supplemental Affidavit and found that Plaintiff's expert still did not satisfy the requirements of Tenn. Code Ann. section 29-26-115, and again granted Defendants summary judgment. Plaintiff appeals to this Court. We reverse.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lanen_073109.pdf
Nancy L. Lane ("Plaintiff") sued Karen K. Lauer-Silva, M.D. and Medical Education Assistance Corporation d/b/a ETSU Physicians & Associates ("Defendants") alleging medical malpractice. Defendants filed a motion for summary judgment. After a hearing on Defendants' motion, the Trial Court entered an order finding and holding, inter alia, that Plaintiff's expert witness did not meet the requirements of Tenn. Code Ann. section 29-26-115, and granting Defendants summary judgment. Plaintiff filed a motion to alter or amend along with a Second Supplemental Affidavit from Plaintiff's expert. The Trial Court considered the Second Supplemental Affidavit and found that Plaintiff's expert still did not satisfy the requirements of Tenn. Code Ann. section 29-26-115, and again granted Defendants summary judgment. Plaintiff appeals to this Court. We reverse.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lanen_073109.pdf
Michigan hospital reduces lawsuits by admitting mistakes
University of Michigan Hospital has reduced lawsuits by admitting mistakes.
Admitting mistakes reduces suits at Michigan hospital At the University of Michigan Health System, doctors and lawyers say admitting mistakes up front and offering compensation before being sued have brought about remarkable savings in money, time and feelings. "What we are doing is common decency," said Richard Boothman, a veteran malpractice defense lawyer and chief risk officer for a health system with 18,000 employees and a $1.5 billion annual budget.
The right of injured patients to sue health care providers and force them to open up their internal records is a crucial part of reducing medical mistakes and improving care, said Matthew Gaier, co-chairman of the New York State Trial Lawyers Association’s medical malpractice committee.
For “saying sorry” to work, doctors need protection from having their own honesty used against them in court, said Jim Copland, director of the Manhattan Institute’s Center for Legal Policy and an advocate of curbs on damage suits. Protection could take the form of a shield law that would exclude an apology from admission as evidence in a malpractice suit. A number of states have or are considering such laws.
“If you go out and say, ‘Oh, we messed up, are you going to lose the lawsuit? You need to give them some protection,” Copland said.
The full text of this article may be found by following the link below:
http://www.nwtntoday.com/news.php?viewStory=29312
Admitting mistakes reduces suits at Michigan hospital At the University of Michigan Health System, doctors and lawyers say admitting mistakes up front and offering compensation before being sued have brought about remarkable savings in money, time and feelings. "What we are doing is common decency," said Richard Boothman, a veteran malpractice defense lawyer and chief risk officer for a health system with 18,000 employees and a $1.5 billion annual budget.
The right of injured patients to sue health care providers and force them to open up their internal records is a crucial part of reducing medical mistakes and improving care, said Matthew Gaier, co-chairman of the New York State Trial Lawyers Association’s medical malpractice committee.
For “saying sorry” to work, doctors need protection from having their own honesty used against them in court, said Jim Copland, director of the Manhattan Institute’s Center for Legal Policy and an advocate of curbs on damage suits. Protection could take the form of a shield law that would exclude an apology from admission as evidence in a malpractice suit. A number of states have or are considering such laws.
“If you go out and say, ‘Oh, we messed up, are you going to lose the lawsuit? You need to give them some protection,” Copland said.
The full text of this article may be found by following the link below:
http://www.nwtntoday.com/news.php?viewStory=29312
Thursday, March 11, 2010
Court reviews summary judgment finding in alcohol-related wrongful death case
EDWARD P. LANDRY, et al., v. SOUTH CUMBERLAND AMOCO, et al. (Tenn. Ct. App. March 11, 2010)
Plaintiffs brought this wrongful death action against defendants for the wrongful death of Brandi Coyle, who died as a result of a motor vehicle accident allegedly caused by an underage intoxicated driver who had purchased intoxicating beverages from South Cumberland Amoco. Defendants moved for summary judgment on the grounds that plaintiffs would be unable to prove essential elements of their claim. The Trial Court held that the alleged underage driver had stated initially that he was over the age of 21, but later, in another statement, represented that he was a minor at the time of the accident. The Trial Judge held that his statements cancelled each other and there was no evidence to establish that he was a minor at the time of the accident. The Court also held that plaintiffs could not prove that the South Cumberland Amoco cashier had "knowingly sold intoxicating beverages to a minor". On appeal, we vacate the summary judgment and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/landrye_031110.pdf
Plaintiffs brought this wrongful death action against defendants for the wrongful death of Brandi Coyle, who died as a result of a motor vehicle accident allegedly caused by an underage intoxicated driver who had purchased intoxicating beverages from South Cumberland Amoco. Defendants moved for summary judgment on the grounds that plaintiffs would be unable to prove essential elements of their claim. The Trial Court held that the alleged underage driver had stated initially that he was over the age of 21, but later, in another statement, represented that he was a minor at the time of the accident. The Trial Judge held that his statements cancelled each other and there was no evidence to establish that he was a minor at the time of the accident. The Court also held that plaintiffs could not prove that the South Cumberland Amoco cashier had "knowingly sold intoxicating beverages to a minor". On appeal, we vacate the summary judgment and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/landrye_031110.pdf
Court reviews summary judgment ruling in invasion of privacy and defamation case.
TERESA GARD v. DENNIS HARRIS, M.D., ET AL. (Tenn. Ct. App March 11, 2010)
Plaintiff filed a complaint alleging false light invasion of privacy and defamation after her physician sent a letter she considered defamatory. After finding that plaintiff consented to the disclosure by signing a consent form, the trial court granted summary judgment in favor of the defendants. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gardt_031110.pdf
Plaintiff filed a complaint alleging false light invasion of privacy and defamation after her physician sent a letter she considered defamatory. After finding that plaintiff consented to the disclosure by signing a consent form, the trial court granted summary judgment in favor of the defendants. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gardt_031110.pdf
TWCA reviews finding of work-related cause of employee's hearing loss in worker's compensation case
GEORGE CECIL RESH v. BUILDING MATERIALS CORPORATION d/b/a GAF FIBERGLASS CORPORATION (TWCA March 11, 2010)
In this workers' compensation case, the employee, George Cecil Resh, alleged that he sustained hearing loss due to exposure to a harmful level of noise in his workplace. The employer, Building Materials Corporation, denied that the employee's hearing loss was work-related. The trial court found in favor of the employee and awarded 50% permanent partial disability of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court's finding. Because we find that the expert medical evidence failed to establish that Mr. Resh's hearing loss was work-related, we agree and reverse the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/reshg_031110.pdf
In this workers' compensation case, the employee, George Cecil Resh, alleged that he sustained hearing loss due to exposure to a harmful level of noise in his workplace. The employer, Building Materials Corporation, denied that the employee's hearing loss was work-related. The trial court found in favor of the employee and awarded 50% permanent partial disability of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court's finding. Because we find that the expert medical evidence failed to establish that Mr. Resh's hearing loss was work-related, we agree and reverse the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/reshg_031110.pdf
Wednesday, March 10, 2010
TCA examines insurer liability for uninsured motorist after automobile crash.
ANDREA S. MARTIN v. PATRICIA L. WILLIAMS, ET AL. (Tenn. Ct. App. July 30, 2009)
The central issue in this case is which of two insurance companies is required to provide uninsured motorist coverage to the Plaintiff, who was injured in an automobile accident. The trial court granted summary judgment to the company through which Plaintiff had automobile insurance, finding that the company insuring the automobile in which Plaintiff was a passenger held the primary policy. We reverse and remand.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/martina_073009.pdf
The central issue in this case is which of two insurance companies is required to provide uninsured motorist coverage to the Plaintiff, who was injured in an automobile accident. The trial court granted summary judgment to the company through which Plaintiff had automobile insurance, finding that the company insuring the automobile in which Plaintiff was a passenger held the primary policy. We reverse and remand.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/martina_073009.pdf
Court reviews whether an expert witness cured a deficiency in order to satisfy the locality rule
SAMANTHA NABORS v. WILLIAM M. ADAMS, M.D., ET AL. (Tenn. Ct. App. July 23, 2009)
This appeal involves a medical malpractice action. In a motion for summary judgment, defendant physician asserted that plaintiff's expert witness failed to satisfy the requirements of the locality rule. The trial court granted the motion finding that plaintiff's expert failed to demonstrate a familiarity with the standard of care in defendant's community or a similar community. In a motion to alter or amend the judgment, plaintiff attached a supplemental affidavit of the same expert in order to cure the deficiency. The trial court considered the expert's supplemental affidavit and denied the motion because the new affidavit still failed to satisfy the locality rule. Plaintiff appeals. Reviewing the record, we find that the expert's supplemental affidavit cured the initial deficiency by relating facts which showed the similarity of the two communities. Accordingly, we reverse the judgment of the trial court.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/naborss_072309.pdf
This appeal involves a medical malpractice action. In a motion for summary judgment, defendant physician asserted that plaintiff's expert witness failed to satisfy the requirements of the locality rule. The trial court granted the motion finding that plaintiff's expert failed to demonstrate a familiarity with the standard of care in defendant's community or a similar community. In a motion to alter or amend the judgment, plaintiff attached a supplemental affidavit of the same expert in order to cure the deficiency. The trial court considered the expert's supplemental affidavit and denied the motion because the new affidavit still failed to satisfy the locality rule. Plaintiff appeals. Reviewing the record, we find that the expert's supplemental affidavit cured the initial deficiency by relating facts which showed the similarity of the two communities. Accordingly, we reverse the judgment of the trial court.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/naborss_072309.pdf
Court upholds lower court verdict and judgment award
ROBERT NICELY v. BERKLINE, LLC. (Tenn. Ct. App. July 7, 2009)
Robert Nicely ("Plaintiff") was employed as a truck driver for Evinco Professional Services, Inc. ("Evinco"). Evinco contracted with Blue Mountain Trucking Corporation for the delivery of various goods. In March 2004, Plaintiff was injured while unloading furniture that had been loaded onto his truck by employees of Berkline, LLC. Plaintiff sued Berkline, LLC, ("Defendant") for personal injuries. Defendant filed a motion for summary judgment claiming that an employment agreement signed by Plaintiff barred this lawsuit. The Trial Court disagreed and allowed the case to go to the jury. The jury returned a verdict for Plaintiff in the amount of $500,000. Because the jury found Plaintiff 20 percent at fault for his own injuries, the judgment was reduced to $400,000. Defendant thereafter filed a motion for a new trial or for a remittitur, both of which the Trial Court denied. Defendant appeals. Finding no error, we affirm the judgment of the Trial Court.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/nicelyr_070709.pdf
Robert Nicely ("Plaintiff") was employed as a truck driver for Evinco Professional Services, Inc. ("Evinco"). Evinco contracted with Blue Mountain Trucking Corporation for the delivery of various goods. In March 2004, Plaintiff was injured while unloading furniture that had been loaded onto his truck by employees of Berkline, LLC. Plaintiff sued Berkline, LLC, ("Defendant") for personal injuries. Defendant filed a motion for summary judgment claiming that an employment agreement signed by Plaintiff barred this lawsuit. The Trial Court disagreed and allowed the case to go to the jury. The jury returned a verdict for Plaintiff in the amount of $500,000. Because the jury found Plaintiff 20 percent at fault for his own injuries, the judgment was reduced to $400,000. Defendant thereafter filed a motion for a new trial or for a remittitur, both of which the Trial Court denied. Defendant appeals. Finding no error, we affirm the judgment of the Trial Court.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/nicelyr_070709.pdf
TCA reverses Trial Court in wrongful death action
KAMARJAH GORDON, DECEASED, BY AND THROUGH HER NEXT OF KIN, TOSHA GORDON AND TOSHA GORDON, INDIVIDUALLY v. JEFFREY D. DRAUGHN, M.D.; TENNESSEE WOMAN'S CARE, P.C.; AND HCA HEALTH SERVICES OF TENNESSEE D/B/A CENTENNIAL MEDICAL CENTER (Tenn. Ct. App. June 9, 2009)
The parents of a deceased child and the mother's trustee in bankruptcy appeal rulings of the trial court in this medical malpractice and wrongful death action which (1) found that the mother was judicially estopped from pursuing the action; (2) denied the father's motion to substitute as plaintiff; and (3) limited the bankruptcy trustee's recoverable damages to the amount of debts listed on the mother's bankruptcy petition. Finding that the mother was not judicially estopped from pursuing her claims and that the trustee in bankruptcy succeeded to her claims, we reverse the trial court's dismissal of her medical malpractice claim and the limitation of recoverable damages on the wrongful death claim. Further, we reverse the trial court's holding that father's action is barred by the statute of limitations, vacate the denial of the father's motion to substitute and remand the case to allow the father to file a motion to intervene and intervening complaint.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/gordonk_061709.pdf
The parents of a deceased child and the mother's trustee in bankruptcy appeal rulings of the trial court in this medical malpractice and wrongful death action which (1) found that the mother was judicially estopped from pursuing the action; (2) denied the father's motion to substitute as plaintiff; and (3) limited the bankruptcy trustee's recoverable damages to the amount of debts listed on the mother's bankruptcy petition. Finding that the mother was not judicially estopped from pursuing her claims and that the trustee in bankruptcy succeeded to her claims, we reverse the trial court's dismissal of her medical malpractice claim and the limitation of recoverable damages on the wrongful death claim. Further, we reverse the trial court's holding that father's action is barred by the statute of limitations, vacate the denial of the father's motion to substitute and remand the case to allow the father to file a motion to intervene and intervening complaint.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/gordonk_061709.pdf
TCA examines issues regarding the Govenrmental Tort Liability Act
RONALD TIMMONS v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE (Tenn. Ct. App. June 15, 2009)
Plaintiff filed this Governmental Tort Liability Act action against the Metropolitan Government of Nashville and Davidson County for injuries sustained during his arrest for driving under the influence following a vehicular accident. Plaintiff contends the police officers who arrested him were negligent in failing to recognize that he was not intoxicated but in diabetic shock, in failing to recognize that he could be restrained and handcuffed while standing, instead of in the prone position, and that he sustained a spiral, comminuted fracture of the humerus while an officer was pulling his right arm behind his back in an effort to cuff his hands.
Following a bench trial, the trial court found the officers were negligent in the manner in which they assessed the threat posed by Plaintiff and were negligent in the decision to handcuff him in the prone position, which caused his injuries. The trial court, therefore, held the Metropolitan Government liable for the officers negligence, assessed 100% of the fault to the officers, and awarded Plaintiff $140,000 in damages. On appeal, the Metropolitan Government insists it is immune from liability because the officers' actions were not the result of negligence but, it contends, the officers consciously and volitionally used an excessive amount of force that constituted the intentional tort of battery. Alternatively, the Government contends, if it is liable under a negligence theory, the trial court erred by apportioning no fault to Plaintiff.
We have determined the evidence does not preponderate against the trial court's findings that Plaintiff's injuries resulted from the officers' negligent acts and omissions, that the Metropolitan Government is liable for the officers' negligence, that Plaintiff was not contributorily negligent, and that Plaintiff is entitled to recover damages in the amount of $140,000. Accordingly, we affirm the trial court in all respects.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/timmonsr_061609.pdf
Plaintiff filed this Governmental Tort Liability Act action against the Metropolitan Government of Nashville and Davidson County for injuries sustained during his arrest for driving under the influence following a vehicular accident. Plaintiff contends the police officers who arrested him were negligent in failing to recognize that he was not intoxicated but in diabetic shock, in failing to recognize that he could be restrained and handcuffed while standing, instead of in the prone position, and that he sustained a spiral, comminuted fracture of the humerus while an officer was pulling his right arm behind his back in an effort to cuff his hands.
Following a bench trial, the trial court found the officers were negligent in the manner in which they assessed the threat posed by Plaintiff and were negligent in the decision to handcuff him in the prone position, which caused his injuries. The trial court, therefore, held the Metropolitan Government liable for the officers negligence, assessed 100% of the fault to the officers, and awarded Plaintiff $140,000 in damages. On appeal, the Metropolitan Government insists it is immune from liability because the officers' actions were not the result of negligence but, it contends, the officers consciously and volitionally used an excessive amount of force that constituted the intentional tort of battery. Alternatively, the Government contends, if it is liable under a negligence theory, the trial court erred by apportioning no fault to Plaintiff.
We have determined the evidence does not preponderate against the trial court's findings that Plaintiff's injuries resulted from the officers' negligent acts and omissions, that the Metropolitan Government is liable for the officers' negligence, that Plaintiff was not contributorily negligent, and that Plaintiff is entitled to recover damages in the amount of $140,000. Accordingly, we affirm the trial court in all respects.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/timmonsr_061609.pdf
Court looks at insurance policy exclusions for liability
TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. MICHAEL NEILL (Tenn. Ct. App. June 2, 2009)
Insurance company filed suit for a declaration that the policy exclusion for intentional acts applied to an injury arising from a paintball game. The trial court ruled for the insured. We affirm.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/neillm_060309.pdf
Insurance company filed suit for a declaration that the policy exclusion for intentional acts applied to an injury arising from a paintball game. The trial court ruled for the insured. We affirm.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/neillm_060309.pdf
TWCA affirms lower court ruling that employee did not sustain his burden of proof
WALTER WIGGINS, JR. v. DAL-TILE CORPORATION (Tenn. SWCAP, May 28, 2009)
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) for a hearing and a report of findings of fact and conclusions of law. Employee sought benefits for a right shoulder injury, which occurred after he had ceased working for Employer. He contended that his employment had caused a weakening of the structures of his shoulder, which contributed to his eventual injury. The trial court ruled that he did not sustain his burden of proof and entered judgment for Employer. On appeal, Employee asserts that the trial court erred in its ruling. We affirm the judgment.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC_WCP/2009/wigginsw_052809.pdf
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) for a hearing and a report of findings of fact and conclusions of law. Employee sought benefits for a right shoulder injury, which occurred after he had ceased working for Employer. He contended that his employment had caused a weakening of the structures of his shoulder, which contributed to his eventual injury. The trial court ruled that he did not sustain his burden of proof and entered judgment for Employer. On appeal, Employee asserts that the trial court erred in its ruling. We affirm the judgment.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC_WCP/2009/wigginsw_052809.pdf
Tuesday, March 9, 2010
TCA looks at issues determining permanent total disability
CHARLIE D. EVANS, JR. v. CHEROKEE INSURANCE COMPANY ET AL. (Tenn. Ct. App. May 28, 2009)
In 2005, the employee, a truck driver, sustained a compensable injury to his right leg that also aggravated a pre-existing low back condition. As a result of childhood polio, the employee's left leg and foot were substantially smaller and weaker than his right leg and foot. The employee reported this pre-existing condition to the employer when hired in 2003. Medical proof established the employee's combined anatomical impairment at 14% to the body as a whole. The trial court found that the employee was permanently and totally disabled. The trial court assigned 84% of the award to the employer's workers' compensation insurance carrier, Cherokee Insurance Company, and 16% to the Second Injury Fund. The employer appealed, arguing that the trial court erred by finding the employee to be permanently and totally disabled. The Second Injury Fund appealed, arguing that it is without liability because the employee performed his truck-driving duties without restrictions or accommodations, thus, the employer did not have "actual knowledge" of the employee's prior disability. Alternatively, the Second Injury Fund contends that the trial court's award of permanent and total disability is not supported by the evidence. After review, the judgment of the trial court is affirmed.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC_WCP/2009/evansc_052809.pdf
In 2005, the employee, a truck driver, sustained a compensable injury to his right leg that also aggravated a pre-existing low back condition. As a result of childhood polio, the employee's left leg and foot were substantially smaller and weaker than his right leg and foot. The employee reported this pre-existing condition to the employer when hired in 2003. Medical proof established the employee's combined anatomical impairment at 14% to the body as a whole. The trial court found that the employee was permanently and totally disabled. The trial court assigned 84% of the award to the employer's workers' compensation insurance carrier, Cherokee Insurance Company, and 16% to the Second Injury Fund. The employer appealed, arguing that the trial court erred by finding the employee to be permanently and totally disabled. The Second Injury Fund appealed, arguing that it is without liability because the employee performed his truck-driving duties without restrictions or accommodations, thus, the employer did not have "actual knowledge" of the employee's prior disability. Alternatively, the Second Injury Fund contends that the trial court's award of permanent and total disability is not supported by the evidence. After review, the judgment of the trial court is affirmed.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC_WCP/2009/evansc_052809.pdf
Friday, March 5, 2010
TWCA reviews award of benefits for mental injuries in worker's compensation case
JOE TURNER v. BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE, LLC, ET AL. (TWCA March 5, 2010)
Employee sustained a compensable injury to his lower back. He alleged that he also sustained a mental injury as a result of chronic pain. His employer contended that the chronic pain and any mental conditions arising from it were the result of several previous injuries and surgeries. The trial court awarded benefits for the mental injury. The employer contends that the trial court erred by doing so. We disagree and affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/turnerj_030510.pdf
Employee sustained a compensable injury to his lower back. He alleged that he also sustained a mental injury as a result of chronic pain. His employer contended that the chronic pain and any mental conditions arising from it were the result of several previous injuries and surgeries. The trial court awarded benefits for the mental injury. The employer contends that the trial court erred by doing so. We disagree and affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/turnerj_030510.pdf
TWCA reviews findings of causation and compliance with the notice statute in worker's compensation case
KATHY MELISSA CANTRELL v. NISSAN NORTH AMERICA, INC., ET AL. (TWCA March 5, 2010)
Pursuant to Tennessee Supreme Court Rule 51, 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 trial court awarded workers' compensation benefits for gradual injuries to the employee's hands, arms, shoulders and left knee. On appeal, her employer asserts that the trial court erred by finding that she had complied with the notice statute, Tenn. Code Ann. section 50-6-201(b), and also by finding that she had sustained her burden of proof on the issue of causation.
We conclude that sufficient notice was given. In addition, we conclude that the evidence preponderates against the trial court's finding of a causal relationship between the employee's work and her left knee injury. We affirm the findings of causation concerning her other injuries.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/cantrellk_030510.pdf
Pursuant to Tennessee Supreme Court Rule 51, 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 trial court awarded workers' compensation benefits for gradual injuries to the employee's hands, arms, shoulders and left knee. On appeal, her employer asserts that the trial court erred by finding that she had complied with the notice statute, Tenn. Code Ann. section 50-6-201(b), and also by finding that she had sustained her burden of proof on the issue of causation.
We conclude that sufficient notice was given. In addition, we conclude that the evidence preponderates against the trial court's finding of a causal relationship between the employee's work and her left knee injury. We affirm the findings of causation concerning her other injuries.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/cantrellk_030510.pdf
Thursday, March 4, 2010
Appeal denied as frivolous based on TN Rules of Civil Procedure 41.01, Voluntary Dismissals
RICK PETERS, ET AL. v. RAY LAMB, M.D., ET AL. (Tenn. Ct. App. May 27, 2009)
This is a medical malpractice action by Rick Peters and Rob Watts ("Plaintiffs"), the surviving spouse and child respectively of Elizabeth Peters, deceased, filed against Dr. Ray Lamb and his practice group, McLeod Cancer and Blood Center of East Tennessee (collectively "Defendants"). Mrs. Peters unexpectedly died shortly after Defendants began treating her for her recently-diagnosed anal cancer. Pre-trial, Plaintiffs lodged a proposed motion and order of nonsuit by placing it in the trial judge's "in-box." By the time the judge discovered the document, a motion for summary judgment had been filed by Defendants and was pending. The trial court did not sign the order of nonsuit. Following a summary judgment hearing seven months later, the trial court entered an order denying the motion for nonsuit and granting Defendants summary judgment. Plaintiffs appeal. The sole question Plaintiffs raise is whether the trial court erred in ruling that the lodging of the motion and order for nonsuit was ineffectual to dismiss their action without prejudice. Defendants claim this appeal is frivolous and seek an award of damages pursuant to the provisions of Tenn. Code Ann. section 27-1-122 (2000).
We conclude that the appeal is frivolous because the issue Plaintiffs raised had no reasonable chance of success. We affirm the judgment of the trial court and remand for a determination as to the damages due Defendants.
The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/petersr_052709.pdf
This is a medical malpractice action by Rick Peters and Rob Watts ("Plaintiffs"), the surviving spouse and child respectively of Elizabeth Peters, deceased, filed against Dr. Ray Lamb and his practice group, McLeod Cancer and Blood Center of East Tennessee (collectively "Defendants"). Mrs. Peters unexpectedly died shortly after Defendants began treating her for her recently-diagnosed anal cancer. Pre-trial, Plaintiffs lodged a proposed motion and order of nonsuit by placing it in the trial judge's "in-box." By the time the judge discovered the document, a motion for summary judgment had been filed by Defendants and was pending. The trial court did not sign the order of nonsuit. Following a summary judgment hearing seven months later, the trial court entered an order denying the motion for nonsuit and granting Defendants summary judgment. Plaintiffs appeal. The sole question Plaintiffs raise is whether the trial court erred in ruling that the lodging of the motion and order for nonsuit was ineffectual to dismiss their action without prejudice. Defendants claim this appeal is frivolous and seek an award of damages pursuant to the provisions of Tenn. Code Ann. section 27-1-122 (2000).
We conclude that the appeal is frivolous because the issue Plaintiffs raised had no reasonable chance of success. We affirm the judgment of the trial court and remand for a determination as to the damages due Defendants.
The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/petersr_052709.pdf
Case remanded to determine if employer is entitled to subrogation when beneficiary settles with third party for identical expenses
GARY HARRIS v. ALCOA, INC., ET AL. (Tenn. Ct. App. May 27, 2009).
The plaintiff, Gary Harris, was injured in a work-related accident. As a result of the accident, his right arm was amputated below the elbow. His employer, the defendant Alcoa, Inc., paid workers' compensation benefits to and for the plaintiff, including a payment of $33,776.83 to the co-defendant, Hanger Prosthetics & Orthotics, Inc., for a prosthetic arm known as a "myoelectric arm." Following a jury trial in federal court, the plaintiff entered into a confidential settlement of his claim against a third party which arose out of the accident. Thereafter, he filed a complaint, as amended, against the two defendants, averring that, out of the settlement proceeds, he had escrowed with his attorney the sum of $33,776.83. He claims that he did not receive the prosthetic arm for which Alcoa paid. He seeks a declaratory judgment that the escrowed funds rightfully belong to him and not his employer. Alcoa filed a motion for judgment on the pleadings. The trial court granted the motion. The plaintiff appeals. We vacate the trial court's judgment and remand for further proceedings.
Full text of this opinion is available at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/harrisg_052709.pdf
The plaintiff, Gary Harris, was injured in a work-related accident. As a result of the accident, his right arm was amputated below the elbow. His employer, the defendant Alcoa, Inc., paid workers' compensation benefits to and for the plaintiff, including a payment of $33,776.83 to the co-defendant, Hanger Prosthetics & Orthotics, Inc., for a prosthetic arm known as a "myoelectric arm." Following a jury trial in federal court, the plaintiff entered into a confidential settlement of his claim against a third party which arose out of the accident. Thereafter, he filed a complaint, as amended, against the two defendants, averring that, out of the settlement proceeds, he had escrowed with his attorney the sum of $33,776.83. He claims that he did not receive the prosthetic arm for which Alcoa paid. He seeks a declaratory judgment that the escrowed funds rightfully belong to him and not his employer. Alcoa filed a motion for judgment on the pleadings. The trial court granted the motion. The plaintiff appeals. We vacate the trial court's judgment and remand for further proceedings.
Full text of this opinion is available at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/harrisg_052709.pdf
Court reviews summary judgment ruling in medical malpractice and ordinary negligence case
SANDRA YEVETTE TURNER v. STERILTEK, INC. ET AL. (Tenn. Ct. App. March 4, 2010)
Mother of deceased patient brought suit for ordinary negligence and medical malpractice against hospital and company that sterilized its surgical instruments and equipment. In this second appeal, the issue is whether the trial court erred in granting summary judgment in favor of both defendants. We conclude that the trial court properly granted summary judgment as to the sterilization company, but we reverse the grant of summary judgment as to the hospital because the hospital failed to negate an element of the plaintiff's negligence claim.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/turners_030410.pdf
Mother of deceased patient brought suit for ordinary negligence and medical malpractice against hospital and company that sterilized its surgical instruments and equipment. In this second appeal, the issue is whether the trial court erred in granting summary judgment in favor of both defendants. We conclude that the trial court properly granted summary judgment as to the sterilization company, but we reverse the grant of summary judgment as to the hospital because the hospital failed to negate an element of the plaintiff's negligence claim.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/turners_030410.pdf
Wednesday, March 3, 2010
Court reviews jury verdict in case based on the Federal Employer's Liability Act
LAURA JAN MELTON v. BNSF RAILWAY COMPANY (Tenn. Ct. App. March 3, 2010)
This is an appeal from a jury verdict in favor of the Appellee in a case based on the Federal Employer's Liability Act, 45 U.S.C. section 51 et seq. Appellee filed this case as the widow and personal representative of her husband, who died as a result of injuries he sustained while working for the Appellant. Appellant appeals, arguing that the trial court erred in not granting it a directed verdict, in not granting its motion for new trial, in making several evidentiary rulings during the trial, and in not granting its motions for mistrial.
We affirm the trial court's denial of the Appellant's motions for directed verdict, finding that the Appellee presented sufficient proof to create a question for the jury. However, finding that the trial court erred in allowing the Appellant's expert to be questioned on a non-testifying expert's deposition, and that the jury was more likely than not guided by prejudice, passion, and bias, we reverse the trial court's decision denying Appellant's motion for new trial. Further, finding material facts in dispute, we reverse in part and affirm in part the trial court's decision on Appellant's motion for summary judgment. Reversed in part, affirmed in part and remanded.
Full opinion is available at:
http://www.tba2.org/tba_files/TCA/2010/meltonl_CORR_030310.pdf
This is an appeal from a jury verdict in favor of the Appellee in a case based on the Federal Employer's Liability Act, 45 U.S.C. section 51 et seq. Appellee filed this case as the widow and personal representative of her husband, who died as a result of injuries he sustained while working for the Appellant. Appellant appeals, arguing that the trial court erred in not granting it a directed verdict, in not granting its motion for new trial, in making several evidentiary rulings during the trial, and in not granting its motions for mistrial.
We affirm the trial court's denial of the Appellant's motions for directed verdict, finding that the Appellee presented sufficient proof to create a question for the jury. However, finding that the trial court erred in allowing the Appellant's expert to be questioned on a non-testifying expert's deposition, and that the jury was more likely than not guided by prejudice, passion, and bias, we reverse the trial court's decision denying Appellant's motion for new trial. Further, finding material facts in dispute, we reverse in part and affirm in part the trial court's decision on Appellant's motion for summary judgment. Reversed in part, affirmed in part and remanded.
Full opinion is available at:
http://www.tba2.org/tba_files/TCA/2010/meltonl_CORR_030310.pdf
Tuesday, March 2, 2010
TSC reviews Tenn. Code Ann. 24-5-113(a) plaintiff's presumption of necessary and reasonable medical bills in complaint
HELEN M. BORNER ET AL. v. DANNY R. AUTRY (Tenn. May 26, 2009)
This case involves the interpretation and application of Tennessee Code Annotated section 24-5-113(a), which provides a rebuttable presumption that medical bills itemized in and attached to the complaint are necessary and reasonable if the "total amount of such bills" does not exceed $4,000. We hold that a plaintiff may rely on section 24-5-113(a) if the total amount of the medical bills that are itemized and attached does not exceed $4,000, regardless of the total amount of medical expenses that may have been incurred. A plaintiff is not entitled to the presumption, however, if the plaintiff relies on medical bills that have been redacted to reflect a total of $4,000 or less. The judgment of the Court of Appeals therefore is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings consistent with this opinion.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/bornerh_052609.pdf
This case involves the interpretation and application of Tennessee Code Annotated section 24-5-113(a), which provides a rebuttable presumption that medical bills itemized in and attached to the complaint are necessary and reasonable if the "total amount of such bills" does not exceed $4,000. We hold that a plaintiff may rely on section 24-5-113(a) if the total amount of the medical bills that are itemized and attached does not exceed $4,000, regardless of the total amount of medical expenses that may have been incurred. A plaintiff is not entitled to the presumption, however, if the plaintiff relies on medical bills that have been redacted to reflect a total of $4,000 or less. The judgment of the Court of Appeals therefore is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings consistent with this opinion.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/bornerh_052609.pdf
Court reviews the standards for allowing a party to amend a claim or answer
ROBERT DANIELS and PEGGY DANIELS, v. MICHAEL D. WRAY (Tenn. Ct. App. May 21, 2009)
Plaintiff filed this action for damages for injuries sustained in an automobile accident. Defendant answered, denying liability, and subsequently filed a Tenn. R. Civ. P. 15 to amend and make claim for personal injuries and property damage as a result of the accident. The Trial Court allowed the amendment as to property damages, but refused to allow defendant to assert the claim for personal injuries on the grounds inter alia that the statute of limitations had run on the personal injury claim prior to the filing of the Motion to Amend. The property damage claim was settled, but the refusal to allow the amendment has been appealed to this Court. We hold that the Trial Court abused its discretion in refusing to allow the amendment.
The Full text of this appeal may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/danielsr_05209.pdf
The court here reviewed the standards for reversing a trial court for abuse of discretion for disallowing a party to amend its answer and make a counterclaim. the factors to be considered when deciding whether to allow a party to amend its claim include, "undue delay in filing, lack of notice to the opposing party, bad faith of the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Id. (citations omitted). The court here found that the factors the trial court relied on--undue delay and prejudice to the opposing parties--were not supported by the record. Therefore the trial court had abused its discretion and the case was remanded for further proceedings.
Plaintiff filed this action for damages for injuries sustained in an automobile accident. Defendant answered, denying liability, and subsequently filed a Tenn. R. Civ. P. 15 to amend and make claim for personal injuries and property damage as a result of the accident. The Trial Court allowed the amendment as to property damages, but refused to allow defendant to assert the claim for personal injuries on the grounds inter alia that the statute of limitations had run on the personal injury claim prior to the filing of the Motion to Amend. The property damage claim was settled, but the refusal to allow the amendment has been appealed to this Court. We hold that the Trial Court abused its discretion in refusing to allow the amendment.
The Full text of this appeal may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/danielsr_05209.pdf
The court here reviewed the standards for reversing a trial court for abuse of discretion for disallowing a party to amend its answer and make a counterclaim. the factors to be considered when deciding whether to allow a party to amend its claim include, "undue delay in filing, lack of notice to the opposing party, bad faith of the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Id. (citations omitted). The court here found that the factors the trial court relied on--undue delay and prejudice to the opposing parties--were not supported by the record. Therefore the trial court had abused its discretion and the case was remanded for further proceedings.
TCA examines insufficiency of medical expert's affidavit
REBECCA METTES v. J. THOMAS JOHN, JR., M.D. (Tenn. Ct. App. May 20, 2009)
In this medical malpractice action, patient appeals the trial court's grant of summary judgment in favor of physician based on the insufficiency of the affidavit of the patient's expert. We affirm.
"Pursuant to Tenn. Code Ann. 29-26-115(a)expert testimony must establish the recognized standard of medical practice, the defendant's breach of that standard, and causation. This was necessary in this case to rebut the Defendant's self-serving affidavit and motion for summary judgment which the trial court held was sufficient to shift the burden to the plaintiff." Id.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mettesr_052109.pdf
In this medical malpractice action, patient appeals the trial court's grant of summary judgment in favor of physician based on the insufficiency of the affidavit of the patient's expert. We affirm.
"Pursuant to Tenn. Code Ann. 29-26-115(a)expert testimony must establish the recognized standard of medical practice, the defendant's breach of that standard, and causation. This was necessary in this case to rebut the Defendant's self-serving affidavit and motion for summary judgment which the trial court held was sufficient to shift the burden to the plaintiff." Id.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mettesr_052109.pdf
TCA examines the issue of superceding cause in wrongful death action
DORIS G. HOWELL, as Next of Kin and as Guardian of JESSIE J. WILLIAMS, a minor child of GINGER WILLIAMS, deceased, ET AL. v. DAVID M. TURNER, M.D., ET AL. (Tenn. Ct. App. May 21, 2009)
This appeal arises out of the death of Ginger Williams after she sought medical treatment from the various Defendants. After the jury returned a verdict in favor of Plaintiff, Defendant Doctor moved for a judgment notwithstanding the verdict, asserting that the doctrine of an independent, intervening cause precluded his liability. We affirm the trial court's decision to deny Defendant's motion.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/howelld_052109.pdf
This appeal arises out of the death of Ginger Williams after she sought medical treatment from the various Defendants. After the jury returned a verdict in favor of Plaintiff, Defendant Doctor moved for a judgment notwithstanding the verdict, asserting that the doctrine of an independent, intervening cause precluded his liability. We affirm the trial court's decision to deny Defendant's motion.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/howelld_052109.pdf
TCA affirms dismissal because there was no offer of proof
HOPE DENTON v. JAMES G. HAGGARD (Tenn. Ct. App. May 20, 2009)
Evidence of defendant's prior traffic violations was excluded by the trial court in an automobile accident case. Plaintiff appealed. We affirm due to plaintiff's failure to make an offer of proof.
At trial the jury found both parties equally at fault and the case was dismissed. The Plaintiff moved for a new trial which was denied. Plaintiff appealed based on disallowed evidence of defendant's driving record. TCA finds that no offer of proof was made, thus the issue of excluded evidence is waived.
The full text of this appeal may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dentonh_052109.pdf
Evidence of defendant's prior traffic violations was excluded by the trial court in an automobile accident case. Plaintiff appealed. We affirm due to plaintiff's failure to make an offer of proof.
At trial the jury found both parties equally at fault and the case was dismissed. The Plaintiff moved for a new trial which was denied. Plaintiff appealed based on disallowed evidence of defendant's driving record. TCA finds that no offer of proof was made, thus the issue of excluded evidence is waived.
The full text of this appeal may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dentonh_052109.pdf
Court reverses summary judgment in negligence/medical malpractice case
ROSE JOHNSEY, Widow of Frederick Johnsey v. NORTHBROOKE (Tenn. Ct. App. May 14, 2009)
The plaintiff filed suit against a nursing home after her husband allegedly suffered a broken hip while he was a resident there. The nursing home filed a motion for summary judgment, asserting that the plaintiff could not prove the elements of her claim. The trial court concluded that the plaintiff''s claims were for medical malpractice rather than ordinary negligence, but the court found that under either theory summary judgment was appropriate. We agree with the court's conclusion that the plaintiff's claims sound in medical malpractice, but we find that the trial court erred in granting summary judgment. Therefore, we reverse and remand this case for further proceedings.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/johnseyr_051409.pdf
The plaintiff filed suit against a nursing home after her husband allegedly suffered a broken hip while he was a resident there. The nursing home filed a motion for summary judgment, asserting that the plaintiff could not prove the elements of her claim. The trial court concluded that the plaintiff''s claims were for medical malpractice rather than ordinary negligence, but the court found that under either theory summary judgment was appropriate. We agree with the court's conclusion that the plaintiff's claims sound in medical malpractice, but we find that the trial court erred in granting summary judgment. Therefore, we reverse and remand this case for further proceedings.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/johnseyr_051409.pdf
Court finds defendant did not have constructive notice of dangerous condition
LEITHA C. PERKINS and ROBERT L. PERKINS v. BIG LOTS STORES, INC.(Tenn. Ct. App. May 20, 2009)
This is a slip-and-fall case. The plaintiff tripped on a floor mat and fell as she was entering the defendant's store. A store security video showed that the corner of the floor mat was overturned by another customer twenty-one seconds before the plaintiff fell. At the time that the corner of the mat became furled, the assistant store manager was at the service desk several feet from the entrance. He denied seeing the overturned mat.
The plaintiff sued the store, alleging negligence in allowing a dangerous condition to persist and in failing to warn the plaintiff of it. After the trial, the jury found that the defendant store was eighty percent at fault and that the plaintiff was twenty percent at fault. The defendant store filed a motion for a new trial, alleging juror misconduct based on comments by jurors to the attorneys. The store also contended that the evidence showed that it did not have actual or constructive notice that the corner of the mat had become folded over. Finally, the store maintained that no reasonable jury could find that the plaintiff was less than fifty percent at fault for her own injuries. The trial court denied the motion and the defendant appeals. We reverse, finding no material evidence to support the jury's verdict, and dismiss the case.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/perkinsl_052009.pdf
This is a slip-and-fall case. The plaintiff tripped on a floor mat and fell as she was entering the defendant's store. A store security video showed that the corner of the floor mat was overturned by another customer twenty-one seconds before the plaintiff fell. At the time that the corner of the mat became furled, the assistant store manager was at the service desk several feet from the entrance. He denied seeing the overturned mat.
The plaintiff sued the store, alleging negligence in allowing a dangerous condition to persist and in failing to warn the plaintiff of it. After the trial, the jury found that the defendant store was eighty percent at fault and that the plaintiff was twenty percent at fault. The defendant store filed a motion for a new trial, alleging juror misconduct based on comments by jurors to the attorneys. The store also contended that the evidence showed that it did not have actual or constructive notice that the corner of the mat had become folded over. Finally, the store maintained that no reasonable jury could find that the plaintiff was less than fifty percent at fault for her own injuries. The trial court denied the motion and the defendant appeals. We reverse, finding no material evidence to support the jury's verdict, and dismiss the case.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/perkinsl_052009.pdf
Friday, February 26, 2010
Court holds Defendant had no duty of care in wrongful death action
JOHNNY R. OWNBY ET AL. v. TENNESSEE FARMERS COOPERATIVE CORPORATION, U.S.A. (Tenn. Ct. App. May 18, 2009)
This wrongful death action arises out of an accident at an agricultural facility: a worker fell through a skylight on the roof while employed by a company hired by the agricultural facility owner to do work on the roof. The trial court denied the owner's motion for a directed verdict on the question of whether the owner owed a duty of care to the injured worker. We reverse the decision of the trial court because we have concluded that this case falls within an exception to the general duty of a landowner to provide a reasonably safe workplace.
The full text of this opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/ownbyj_051909.pdf
This wrongful death action arises out of an accident at an agricultural facility: a worker fell through a skylight on the roof while employed by a company hired by the agricultural facility owner to do work on the roof. The trial court denied the owner's motion for a directed verdict on the question of whether the owner owed a duty of care to the injured worker. We reverse the decision of the trial court because we have concluded that this case falls within an exception to the general duty of a landowner to provide a reasonably safe workplace.
The full text of this opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/ownbyj_051909.pdf
Court dismisses case based on Plaintiff's incapacity to sue
SAM McCORMICK v. ILLINOIS CENTRAL RAILROAD COMPANY (Tenn. Ct. App. May 19, 2009)
In this interlocutory appeal, we are asked to determine whether the trial court erred in allowing the executor of the plaintiff's estate to be substituted as the party plaintiff where the party plaintiff died before suit was filed in his individual capacity. We are also asked to determine whether the defendant waived the issue of plaintiff's capacity by first raising the issue in a post-answer motion to dismiss. We find that a suit brought in the name of a deceased person amounts to a nullity, and thus, is not amenable to substitution. We further find that an objection based on the fact that the plaintiff was deceased when the complaint was filed can be made at any time during the proceedings, in any appropriate manner, and such objection stops the cause at whatever stage it may be, whenever made known to the court.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mccormicks_051909.pdf
In this interlocutory appeal, we are asked to determine whether the trial court erred in allowing the executor of the plaintiff's estate to be substituted as the party plaintiff where the party plaintiff died before suit was filed in his individual capacity. We are also asked to determine whether the defendant waived the issue of plaintiff's capacity by first raising the issue in a post-answer motion to dismiss. We find that a suit brought in the name of a deceased person amounts to a nullity, and thus, is not amenable to substitution. We further find that an objection based on the fact that the plaintiff was deceased when the complaint was filed can be made at any time during the proceedings, in any appropriate manner, and such objection stops the cause at whatever stage it may be, whenever made known to the court.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mccormicks_051909.pdf
Court reviews physician's testimony and trial court's summary judgment finding in wrongful death case.
WANDA F. DYKES, INDIVIDUALLY AND AS THE EXECUTRIX OF THE ESTATE OF RONALD DYKES v. THE CITY OF ONEIDA ET AL. (Tenn. Ct. App. February 26, 2010)
In this action, Wanda F. Dykes ("the plaintiff") filed suit against the City of Oneida ("the defendant") for the alleged wrongful death of her husband, Ronald Dykes. Her claim is based upon her allegation that police officers employed by the defendant were negligent in not calling for medical help when they responded to a call and found Ronald Dykes asleep and unresponsive in his home. They left him as they found him without calling for medical assistance. Mr. Dykes was found the next morning dead of a heart attack in the same recliner where the officers found him.
The thrust of the complaint is that, had the officers summoned medical help, Mr. Dykes' heart attack and resulting death could have been prevented. The defendant moved for summary judgment asserting, among other things, that the plaintiff cannot prove her theory of causation. While the motion was pending, the trial court, on four separate occasions, continued the hearing with respect to it, in order to give the plaintiff an opportunity to find and produce an expert to make out her case. When the motion was finally heard, the record contained the affidavit of a medical doctor stating that the failure of the officers to seek medical treatment for Mr. Dykes "may have allowed his condition to worsen and cause his death." The record also contained the same doctor's deposition testimony wherein he testified that he could not say Mr. Dykes would have survived if he had received prompt medical attention. The trial court granted the defendant summary judgment. The plaintiff appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/dykesw_022610.pdf
In this action, Wanda F. Dykes ("the plaintiff") filed suit against the City of Oneida ("the defendant") for the alleged wrongful death of her husband, Ronald Dykes. Her claim is based upon her allegation that police officers employed by the defendant were negligent in not calling for medical help when they responded to a call and found Ronald Dykes asleep and unresponsive in his home. They left him as they found him without calling for medical assistance. Mr. Dykes was found the next morning dead of a heart attack in the same recliner where the officers found him.
The thrust of the complaint is that, had the officers summoned medical help, Mr. Dykes' heart attack and resulting death could have been prevented. The defendant moved for summary judgment asserting, among other things, that the plaintiff cannot prove her theory of causation. While the motion was pending, the trial court, on four separate occasions, continued the hearing with respect to it, in order to give the plaintiff an opportunity to find and produce an expert to make out her case. When the motion was finally heard, the record contained the affidavit of a medical doctor stating that the failure of the officers to seek medical treatment for Mr. Dykes "may have allowed his condition to worsen and cause his death." The record also contained the same doctor's deposition testimony wherein he testified that he could not say Mr. Dykes would have survived if he had received prompt medical attention. The trial court granted the defendant summary judgment. The plaintiff appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/dykesw_022610.pdf
Court affirms city's immunity was not waived under Governmental Tort Liability Act
GARY L. WATTS AND JANET WATTS, Parents And Next Friends of CLINTON D. WATTS, Deceased v. EARNESTINE J. MORRIS, ET AL. (Tenn. Ct. App. May 19, 2009)
This case arises from the death of a graduate student near the University of Memphis. while crossing the street, decedent was struck by a vehicle. Decedent's parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis' immunity from suit or that the City of Memphis was negligent. In addition, the court found that both the decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault for the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City's immunity was waived.
"In its answer to the suit filed by Plaintiffs, the City asserted several affirmative defenses, including that it was immune from suit pursuant to the Governmental Tort Liability Act (GTLA) and the comparative fault of the driver. City failed to assert that the decedent or the University of Memphis were comparatively negligent. The parties stipulated that pursuant to Tennessee Code Annotated section 29-20-37 the City of Memphis is not subject to trial by jury for actions brought under the GTLA. The City moved to amend its original answer to plead the comparative fault of the University of Memphis which the trial court denied. the City also filed a post-trial motion to amend its original answer seeking to include the comparative fault of the decedent. Because it was found that the fault of the decedent was at issue during pre-trial discovery and was tried by the parties without objection, the trial court granted this motion to amend pusuant to Tennessee Rule of Civil Procedure 15.02" Id.
"Subsequently the trial court entered its findings of facts and conclusions of law. First, it held that the GTLA did not waive the City's governmental immunity. In addition, the trial court determined that the Plaintiffs failed to prove that the City was negligent because there was insufficient evidence 1) that the City breached it's duty of care, 2) that "but for" the City's action or inaction the decedent's injuries would not have occurred, and 3) that the City's action or inaction was the legal cause of the decedent's injuries. The trial court also opined that the City had shown by a preponderance of the evidence that both the driver of the vehicle and the decedent were negligent and found that each were 50% at fault for the accident." Id.
"Under Tennessee Code Annotated section 29-20-201, government entities are immune from liability unless a plaintiff demonstrates that his claim is one of the specific causes of action for which the legislature removes immunity. Here Plaintiffs specifically allege that the City is liable pursuant to GTLA Section 203, which removes governmental immunity for "any injury caused by a defective, unsafe, or dangerous condition of any sgtreet, alley, sidewalk, of highway." TCA section 29-20-203(a) (2000). The trial court held and the Court of Appeals affirmed that the section of roadway at issue was not in a defective, unsafe, or dangerous condition on the date of the accident, therefore the City had not breached it's duty of care." Id.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf
A concurring opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf
This case arises from the death of a graduate student near the University of Memphis. while crossing the street, decedent was struck by a vehicle. Decedent's parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis' immunity from suit or that the City of Memphis was negligent. In addition, the court found that both the decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault for the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City's immunity was waived.
"In its answer to the suit filed by Plaintiffs, the City asserted several affirmative defenses, including that it was immune from suit pursuant to the Governmental Tort Liability Act (GTLA) and the comparative fault of the driver. City failed to assert that the decedent or the University of Memphis were comparatively negligent. The parties stipulated that pursuant to Tennessee Code Annotated section 29-20-37 the City of Memphis is not subject to trial by jury for actions brought under the GTLA. The City moved to amend its original answer to plead the comparative fault of the University of Memphis which the trial court denied. the City also filed a post-trial motion to amend its original answer seeking to include the comparative fault of the decedent. Because it was found that the fault of the decedent was at issue during pre-trial discovery and was tried by the parties without objection, the trial court granted this motion to amend pusuant to Tennessee Rule of Civil Procedure 15.02" Id.
"Subsequently the trial court entered its findings of facts and conclusions of law. First, it held that the GTLA did not waive the City's governmental immunity. In addition, the trial court determined that the Plaintiffs failed to prove that the City was negligent because there was insufficient evidence 1) that the City breached it's duty of care, 2) that "but for" the City's action or inaction the decedent's injuries would not have occurred, and 3) that the City's action or inaction was the legal cause of the decedent's injuries. The trial court also opined that the City had shown by a preponderance of the evidence that both the driver of the vehicle and the decedent were negligent and found that each were 50% at fault for the accident." Id.
"Under Tennessee Code Annotated section 29-20-201, government entities are immune from liability unless a plaintiff demonstrates that his claim is one of the specific causes of action for which the legislature removes immunity. Here Plaintiffs specifically allege that the City is liable pursuant to GTLA Section 203, which removes governmental immunity for "any injury caused by a defective, unsafe, or dangerous condition of any sgtreet, alley, sidewalk, of highway." TCA section 29-20-203(a) (2000). The trial court held and the Court of Appeals affirmed that the section of roadway at issue was not in a defective, unsafe, or dangerous condition on the date of the accident, therefore the City had not breached it's duty of care." Id.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf
A concurring opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf
Tuesday, February 23, 2010
Court reviews finding of comparative fault in premises liability case.
WILLIAM W. REED v. BILL MCDANIEL and AHMAD ELSEBAE (Tenn. Ct. App. February 23, 2010)
This is a premises liability case. Plaintiff/Appellant sustained injuries after a fall through the second-story floor of a water-damaged building. The trial court granted summary judgment in favor of the Defendants/Appellees, finding that the danger was open and obvious, that Defendants/Appellees had warned of the danger, and that Plaintiff/Appellant was at least 50% at fault for his own injuries, thus negating his negligence claim under McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/reedw_022310.pdf
This is a premises liability case. Plaintiff/Appellant sustained injuries after a fall through the second-story floor of a water-damaged building. The trial court granted summary judgment in favor of the Defendants/Appellees, finding that the danger was open and obvious, that Defendants/Appellees had warned of the danger, and that Plaintiff/Appellant was at least 50% at fault for his own injuries, thus negating his negligence claim under McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/reedw_022310.pdf
Monday, February 22, 2010
TWCA reviews the impairment rating and application of a multiplier in worker's compensation case
PAUL HAGY v. RANDSTAD STAFFING SERVICES, L.P. ET AL. (TWCA February 22, 2010)
The employee filed a workers' compensation claim for neck and lower back injuries sustained while setting up a conference room during a temporary job assignment. The trial court found that both injuries were work-related, assigned a six percent impairment to the neck and a five percent impairment to the back, and applied a multiplier of 2.5. Both the employee and the employer filed appeals, which have 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). The judgment of the trial court is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hagyp_022210.pdf
The employee filed a workers' compensation claim for neck and lower back injuries sustained while setting up a conference room during a temporary job assignment. The trial court found that both injuries were work-related, assigned a six percent impairment to the neck and a five percent impairment to the back, and applied a multiplier of 2.5. Both the employee and the employer filed appeals, which have 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). The judgment of the trial court is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hagyp_022210.pdf
Friday, February 19, 2010
TWCA reviews whether employee gave sufficient notice in accordance with workers' compensation laws
ALLEN RAY WOLFE v. MAYES MORTUARY (TWCA February 19, 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) for a hearing and a report of findings of fact and conclusions of law. Employee alleged that he injured his back in the course of his employment. Employer denied liability, asserting that Employee had not complied with the notice requirements of the workers' compensation law. Tenn. Code Ann. section 50-6-201. The trial court found that Employee gave sufficient notice, and awarded one hundred fifty-six weeks of permanent partial disability benefits. Employer has appealed, arguing that the trial court erred by finding that Employee provided notice of his injury, and also that the award is excessive. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/wolfea_021910.pdf
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. Employee alleged that he injured his back in the course of his employment. Employer denied liability, asserting that Employee had not complied with the notice requirements of the workers' compensation law. Tenn. Code Ann. section 50-6-201. The trial court found that Employee gave sufficient notice, and awarded one hundred fifty-six weeks of permanent partial disability benefits. Employer has appealed, arguing that the trial court erred by finding that Employee provided notice of his injury, and also that the award is excessive. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/wolfea_021910.pdf
Thursday, February 18, 2010
Court reviews the applicability of the Family Purpose Doctrine
ARLENE R. STARR v. PAUL B. HILL, SR., and PAUL B. HILL, JR. (Tenn. Ct. App. February 18, 2010)
After Plaintiff was injured in a car accident, she filed suit against the minor who was driving the other vehicle and against the minor's father, alleging that he was vicariously liable for the acts of his son pursuant to the family purpose doctrine. Father moved for summary judgment, claiming that the undisputed facts showed that the family purpose doctrine was inapplicable as a matter of law. Plaintiff moved for partial summary judgment, claiming that the family purpose doctrine was applicable as a matter of law. The trial court denied Plaintiff's motion for partial summary judgment and granted summary judgment to Father. Plaintiff appeals. We reverse and remand for entry of an order granting Plaintiff's motion, as we find the family purpose doctrine applicable to this case.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/starra_021810.pdf
After Plaintiff was injured in a car accident, she filed suit against the minor who was driving the other vehicle and against the minor's father, alleging that he was vicariously liable for the acts of his son pursuant to the family purpose doctrine. Father moved for summary judgment, claiming that the undisputed facts showed that the family purpose doctrine was inapplicable as a matter of law. Plaintiff moved for partial summary judgment, claiming that the family purpose doctrine was applicable as a matter of law. The trial court denied Plaintiff's motion for partial summary judgment and granted summary judgment to Father. Plaintiff appeals. We reverse and remand for entry of an order granting Plaintiff's motion, as we find the family purpose doctrine applicable to this case.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/starra_021810.pdf
Tuesday, February 16, 2010
Court reviews summary judgment ruling in automobile accident case
SHEREE MACLEOD v. LORETTA McKENZIE (Tenn. Ct. App. February 16, 2010)
Plaintiff was injured in an accident while in an automobile operated by defendant. Plaintiff's action charges defendant with negligent operation of the motor vehicle, causing the accident and her resulting injuries. Defendant was operating her vehicle on a wet roadway. She skidded, which she claims was the sole cause of the accident. The Trial Court granted defendant summary judgment. On appeal, we hold that there are disputed issues of material fact as to whether defendant was negligent in the operation of her motor vehicle, independent of the vehicle's skidding, and remand the case for trial.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/macleods_021610.pdf
Plaintiff was injured in an accident while in an automobile operated by defendant. Plaintiff's action charges defendant with negligent operation of the motor vehicle, causing the accident and her resulting injuries. Defendant was operating her vehicle on a wet roadway. She skidded, which she claims was the sole cause of the accident. The Trial Court granted defendant summary judgment. On appeal, we hold that there are disputed issues of material fact as to whether defendant was negligent in the operation of her motor vehicle, independent of the vehicle's skidding, and remand the case for trial.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/macleods_021610.pdf
Court reviews whether Defendants met the standard of care in a medical malpractice suit
SHERRI J. HAGER, et al., v. RAMSEY G. LARSON, M.D., et al. (Tenn. Ct. App. February 16, 2010)
In this medical malpractice action, defendants filed affidavits along with a summary judgment motion, setting forth that they had met the standard of care in their treatment of plaintiff, Sherri J. Hager. The hearing on the summary judgment was continued and plaintiffs were directed to furnish the Court with an affidavit to support their claims. Plaintiffs filed the affidavit of a physician who specialized in internal medicine, who opined that defendants failed to meet the standard of care in treating plaintiff, but stated repeatedly in the deposition that he could not offer an opinion on causation of any injury that would merit an award of damages, since he was an internal medicine specialist. The Trial Court granted defendants summary judgment and, on appeal, we affirm.
Full opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hagers_021610.pdf
In this medical malpractice action, defendants filed affidavits along with a summary judgment motion, setting forth that they had met the standard of care in their treatment of plaintiff, Sherri J. Hager. The hearing on the summary judgment was continued and plaintiffs were directed to furnish the Court with an affidavit to support their claims. Plaintiffs filed the affidavit of a physician who specialized in internal medicine, who opined that defendants failed to meet the standard of care in treating plaintiff, but stated repeatedly in the deposition that he could not offer an opinion on causation of any injury that would merit an award of damages, since he was an internal medicine specialist. The Trial Court granted defendants summary judgment and, on appeal, we affirm.
Full opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hagers_021610.pdf
Thursday, February 11, 2010
Court reviews whether evidence is sufficient to prove causation
SAMUEL S. HAINES v. HENRY COUNTY BOARD OF EDUCATION (Tenn. Ct. App. February 11, 2010)
This appeal arises out of an auto accident. The trial court entered judgment in favor of the plaintiff. The defendant appeals, arguing that the plaintiff's evidence was insufficient to prove causation. We reverse the judgment of the trial court and enter judgment in favor of the defendant.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hainess_021110.pdf
This appeal arises out of an auto accident. The trial court entered judgment in favor of the plaintiff. The defendant appeals, arguing that the plaintiff's evidence was insufficient to prove causation. We reverse the judgment of the trial court and enter judgment in favor of the defendant.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hainess_021110.pdf
Wednesday, February 10, 2010
TWCA reviews whether the trial court properly interpreted TRCP 41
KEITH BROOKS v. PACCAR, INC. d/b/a PETERBILT MOTORS COMPANY (TWCA February 10, 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) for a hearing and a report of findings of fact and conclusions of law. The employee filed an action in Chancery Court. He later filed a notice of voluntary nonsuit and immediately refiled his action in Circuit Court. An order dismissing the Chancery Court action was filed several days later. The employer moved to dismiss the Circuit Court action, noting that the Chancery Court action was still pending at the time the Circuit Court action was filed. The Circuit Court granted the motion. Employee has appealed, contending that the trial court erred in its interpretation of Tenn. R. Civ. P. 41. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/brooksk_021010.pdf
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 employee filed an action in Chancery Court. He later filed a notice of voluntary nonsuit and immediately refiled his action in Circuit Court. An order dismissing the Chancery Court action was filed several days later. The employer moved to dismiss the Circuit Court action, noting that the Chancery Court action was still pending at the time the Circuit Court action was filed. The Circuit Court granted the motion. Employee has appealed, contending that the trial court erred in its interpretation of Tenn. R. Civ. P. 41. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/brooksk_021010.pdf
TWCA reviews whether plaintiff was an employee or an independent contractor for the purposes of a workers' compensation suit
GLORIA KAZELESKI v. DIXIE MOTORS, INC. (TWCA February 10, 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) for a hearing and a report of findings of fact and conclusions of law. The plaintiff, Gloria Kazeleski, was involved in an automobile accident, and sought workers' compensation benefits from defendant Dixie Motors, Inc. Dixie Motors contended that she was not its employee, but an independent contractor. The trial court ruled that she was an employee, and awarded benefits, including 100% permanent disability of the left arm. The defendant has appealed, arguing that the trial court erred by finding that plaintiff was its employee. We conclude that she was an independent contractor, and reverse the judgment.
Full opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/kazeleskig_021010.pdf
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 plaintiff, Gloria Kazeleski, was involved in an automobile accident, and sought workers' compensation benefits from defendant Dixie Motors, Inc. Dixie Motors contended that she was not its employee, but an independent contractor. The trial court ruled that she was an employee, and awarded benefits, including 100% permanent disability of the left arm. The defendant has appealed, arguing that the trial court erred by finding that plaintiff was its employee. We conclude that she was an independent contractor, and reverse the judgment.
Full opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/kazeleskig_021010.pdf
Friday, February 5, 2010
Court assesses whether an employee's actions fall within the scope of his employment for the purposes of governmental immunity
DALTON REB HUGHES and wife, SANDRA HINES HUGHES v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE (Tenn. Ct. App. February 5, 2010)
A Metro public works employee was injured when a front end loader operated by a Metro fire department employee made a loud noise, causing the public works employee, fearing for his life, to fall while attempting to jump over a guardrail. The injured plaintiff filed suit against Metro and the defendant front end loader operator. Metro filed a cross-claim against the defendant as well as a counter-claim against the plaintiff seeking a subrogation of lost wages and medical payments recovered from the defendant. The trial court found that the defendant acted negligently and within the scope of his employment, and thus, it found that Metro's immunity was removed pursuant to the Governmental Tort Liability Act. Accordingly, the trial court entered a judgment for the plaintiff against Metro, and it dismissed the claims against the defendant. On appeal, Metro argues that the defendant acted intentionally, rather than negligently, and that his conduct was outside the scope of his employment, such that Metro retains its immunity. We affirm.
The opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hughesd_020510.pdf
A Metro public works employee was injured when a front end loader operated by a Metro fire department employee made a loud noise, causing the public works employee, fearing for his life, to fall while attempting to jump over a guardrail. The injured plaintiff filed suit against Metro and the defendant front end loader operator. Metro filed a cross-claim against the defendant as well as a counter-claim against the plaintiff seeking a subrogation of lost wages and medical payments recovered from the defendant. The trial court found that the defendant acted negligently and within the scope of his employment, and thus, it found that Metro's immunity was removed pursuant to the Governmental Tort Liability Act. Accordingly, the trial court entered a judgment for the plaintiff against Metro, and it dismissed the claims against the defendant. On appeal, Metro argues that the defendant acted intentionally, rather than negligently, and that his conduct was outside the scope of his employment, such that Metro retains its immunity. We affirm.
The opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hughesd_020510.pdf
Wednesday, February 3, 2010
TWCA reviews trial court's apportionment of an award for permanent partial disability benefits
THOMAS E. HALL v. TRW AUTOMOTIVE, U.S., LLC, ET AL. (TWCA February 3, 2010)
In this workers' compensation action, the employee, Thomas Hall, alleged that he sustained hearing loss due to exposure to noise in the workplace. The employer, TRW Automotive U.S., LLC, contended that most of the hearing loss occurred after Mr. Hall began wearing hearing protection, and was therefore not caused by his employment. The trial court awarded 75% permanent partial disability of the hearing of both ears. TRW has appealed, arguing that the trial court erred in that it failed to apportion the award to the body as a whole, selected an incorrect injury date, declined to view a video recording of an evidentiary deposition, and made an excessive award of benefits. We conclude that the award should have been assigned to the body as a whole, and that the trial court selected an incorrect injury date. The judgment is modified accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hallt_020310.pdf
In this workers' compensation action, the employee, Thomas Hall, alleged that he sustained hearing loss due to exposure to noise in the workplace. The employer, TRW Automotive U.S., LLC, contended that most of the hearing loss occurred after Mr. Hall began wearing hearing protection, and was therefore not caused by his employment. The trial court awarded 75% permanent partial disability of the hearing of both ears. TRW has appealed, arguing that the trial court erred in that it failed to apportion the award to the body as a whole, selected an incorrect injury date, declined to view a video recording of an evidentiary deposition, and made an excessive award of benefits. We conclude that the award should have been assigned to the body as a whole, and that the trial court selected an incorrect injury date. The judgment is modified accordingly.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hallt_020310.pdf
Tuesday, February 2, 2010
Court reverses lower court refusal to allow defendant’s amendment after statute of limitations had run
ROBERT DANIELS and PEGGY DANIELS, v. MICHAEL D. WRAY (Tenn. Ct. App. May 21, 2009)
Plaintiff filed this action for damages for injuries sustained in an automobile accident. Defendant answered, denying liability, and subsequently filed a Tenn. R. Civ. P. 15 to amend and make claim for personal injuries and property damage as a result of the accident. The Trial Court allowed theamendment as to property damages, but refused to allow defendant to assert the claim for personal injuries on the grounds inter alia that the statute of limitations had run on the personal injury claim prior to the filing of the Motion to Amend. The property damage claim was settled, but the refusal to allow the amendment has been appealed to this Court. We hold that the Trial Court abused its discretion in refusing to allow the amendment.
"Under the abuse of discretion standard, a trial court's ruling “will be upheld so long as reasonable minds can disagree as to propriety of the decision made.” A trial court abuses its discretion only when it “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining.” The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court." Id.
"Although permission to amend should be liberally granted, the decision 'will not be reversed unless abuse of discretion has been shown.' Factors the Trial Court should consider when deciding whether to allow amendments include '[u]ndue delay in filing; lack of notice to the opposing party; bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.'” Id.
"The record does not demonstrate that plaintiffs were prejudiced in a “wasted” discovery or preparations for depositions, or that they would have prepared differently if the counterclaim had been filed." Id.
"There was also no showing that plaintiffs were prejudiced by the delay of defendant’s sought amendment, as discovery was still going on, and the case had not yet been set for trial." Id. (Case citations omitted)
The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/danielsr_05209.pdf
Plaintiff filed this action for damages for injuries sustained in an automobile accident. Defendant answered, denying liability, and subsequently filed a Tenn. R. Civ. P. 15 to amend and make claim for personal injuries and property damage as a result of the accident. The Trial Court allowed theamendment as to property damages, but refused to allow defendant to assert the claim for personal injuries on the grounds inter alia that the statute of limitations had run on the personal injury claim prior to the filing of the Motion to Amend. The property damage claim was settled, but the refusal to allow the amendment has been appealed to this Court. We hold that the Trial Court abused its discretion in refusing to allow the amendment.
"Under the abuse of discretion standard, a trial court's ruling “will be upheld so long as reasonable minds can disagree as to propriety of the decision made.” A trial court abuses its discretion only when it “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining.” The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court." Id.
"Although permission to amend should be liberally granted, the decision 'will not be reversed unless abuse of discretion has been shown.' Factors the Trial Court should consider when deciding whether to allow amendments include '[u]ndue delay in filing; lack of notice to the opposing party; bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.'” Id.
"The record does not demonstrate that plaintiffs were prejudiced in a “wasted” discovery or preparations for depositions, or that they would have prepared differently if the counterclaim had been filed." Id.
"There was also no showing that plaintiffs were prejudiced by the delay of defendant’s sought amendment, as discovery was still going on, and the case had not yet been set for trial." Id. (Case citations omitted)
The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/danielsr_05209.pdf
Court affirms based on insufficiency of expert witness affadavit
REBECCA METTES v. J. THOMAS JOHN, JR., M.D. (Tenn. Ct. App. May 21, 2009)
In this medical malpractice action, patient appeals the trial court's grant of summary judgment in favor of physician based on the insufficiency of the affidavit of the patient's expert. We affirm.
"Under Tennessee law, except in circumstances in which the alleged malpractice is within the common knowledge of laymen, the plaintiff in a medical malpractice action is required to prove by expert testimony the applicable standard of care, the defendant’s breach of that standard, and proximate cause. Tenn. Code Ann. § 29-26-115(a)." Id.
"Our Supreme Court has held: '[I]n those malpractice actions wherein expert testimony is required to establish negligence and proximate cause, affidavits by medical doctors which clearly and completely refute plaintiff’s contention afford a proper basis for dismissal of the action on summary judgment, in the absence of proper responsive proof by affidavit or otherwise.'" Id.
"To effectively refute a claim of malpractice, the defendants 'must present facts rebutting the allegations of [the] complaint as to at least one of the three statutory elements for medical malpractice actions.' To refute one of the statutory elements, a defendant 'must simply file an expert affidavit stating that all of his care and treatment of the plaintiff met the recognized standard of acceptable professional practice or that his treatment was not the cause of any injury to the plaintiff that plaintiff would not otherwise have suffered.' Id. at 191. A defendant may shift the burden by submitting his or her 'own selfserving affidavit stating that their conduct neither violated the applicable standard of care nor caused injury to their patient that would not otherwise have occurred.'" Id. (Case citations omitted.)
The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mettesr_052109.pdf
In this medical malpractice action, patient appeals the trial court's grant of summary judgment in favor of physician based on the insufficiency of the affidavit of the patient's expert. We affirm.
"Under Tennessee law, except in circumstances in which the alleged malpractice is within the common knowledge of laymen, the plaintiff in a medical malpractice action is required to prove by expert testimony the applicable standard of care, the defendant’s breach of that standard, and proximate cause. Tenn. Code Ann. § 29-26-115(a)." Id.
"Our Supreme Court has held: '[I]n those malpractice actions wherein expert testimony is required to establish negligence and proximate cause, affidavits by medical doctors which clearly and completely refute plaintiff’s contention afford a proper basis for dismissal of the action on summary judgment, in the absence of proper responsive proof by affidavit or otherwise.'" Id.
"To effectively refute a claim of malpractice, the defendants 'must present facts rebutting the allegations of [the] complaint as to at least one of the three statutory elements for medical malpractice actions.' To refute one of the statutory elements, a defendant 'must simply file an expert affidavit stating that all of his care and treatment of the plaintiff met the recognized standard of acceptable professional practice or that his treatment was not the cause of any injury to the plaintiff that plaintiff would not otherwise have suffered.' Id. at 191. A defendant may shift the burden by submitting his or her 'own selfserving affidavit stating that their conduct neither violated the applicable standard of care nor caused injury to their patient that would not otherwise have occurred.'" Id. (Case citations omitted.)
The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mettesr_052109.pdf
Court affirms that expert witness not qualified
TOMMY McDANIEL, ET AL. v. AMAL RUSTOM, M.D., ET AL. (Tenn. Ct. App. May 5, 2009)
The plaintiffs filed a complaint alleging medical malpractice against emergency room physicians who treated their daughter. The defendants filed motions for summary judgment, claiming that the plaintiffs' only expert was not qualified to testify as to the recognized standard of acceptable professional practice in the defendants' profession and specialty in their community or in a similar community. The trial court granted summary judgment to the defendants, finding that the plaintiffs' expert did not meet the qualifications of Tennessee Code Annotated section 29-26-115. The plaintiffs appeal. We affirm.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcdanielt_050509.pdf
The plaintiffs filed a complaint alleging medical malpractice against emergency room physicians who treated their daughter. The defendants filed motions for summary judgment, claiming that the plaintiffs' only expert was not qualified to testify as to the recognized standard of acceptable professional practice in the defendants' profession and specialty in their community or in a similar community. The trial court granted summary judgment to the defendants, finding that the plaintiffs' expert did not meet the qualifications of Tennessee Code Annotated section 29-26-115. The plaintiffs appeal. We affirm.
The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcdanielt_050509.pdf
TCA affirms wrongful death, medical malpractice judgement; finding that even blatant malpractice may be a foreseeable harm
DORIS G. HOWELL, as Next of Kin and as Guardian of JESSIE J. WILLIAMS, a minor child of GINGER WILLIAMS, deceased, ET AL. v. DAVID M. TURNER, M.D., ET AL. (Tenn. Ct. App. May 21, 2009)
This appeal arises out of the death of Ginger Williams ("Ms. Williams" or "Decedent") after she sought medical treatment from the various Defendants. After the jury returned a verdict in favor of Plaintiff, Defendant Doctor moved for a judgment notwithstanding the verdict, asserting that the doctrine of an independent, intervening cause precluded his liability. We affirm the trial court's decision to deny Defendant's motion.
The full text of this opinion may be seen at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/howelld_052109.pdf
This appeal arises out of the death of Ginger Williams ("Ms. Williams" or "Decedent") after she sought medical treatment from the various Defendants. After the jury returned a verdict in favor of Plaintiff, Defendant Doctor moved for a judgment notwithstanding the verdict, asserting that the doctrine of an independent, intervening cause precluded his liability. We affirm the trial court's decision to deny Defendant's motion.
The full text of this opinion may be seen at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/howelld_052109.pdf
Appeal lost due to failure to make an offer of proof
HOPE DENTON v. JAMES G. HAGGARD (Tenn. Ct. App May 21, 2009)
Evidence of defendant's prior traffic violations was excluded by the trial court in an automobile accident case. Plaintiff appealed. We affirm due to plaintiff's failure to make an offer of proof.
Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2009/dentonh_052109.pdf
Evidence of defendant's prior traffic violations was excluded by the trial court in an automobile accident case. Plaintiff appealed. We affirm due to plaintiff's failure to make an offer of proof.
Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2009/dentonh_052109.pdf
Monday, February 1, 2010
Court reviews dismissal of case without prejudice due to noncompliance of Plaintiff with court orders
MIN GONG v. IDA L. POYNTER (Tenn. Ct. App. February 1, 2010)
Min Gong ("the plaintiff") filed this action against Ida L. Poynter ("the defendant") for injuries she sustained when, as a pedestrian on the sidewalk, she was struck by an automobile driven by the defendant, all as alleged in her filing. The "complaint" was filed pro se in the form of a long letter with approximately 200 pages of accompanying documents.
The defendant served written discovery on the plaintiff consisting of six interrogatories and one document request. The plaintiff submitted an unsworn response in which she objected to answering the defendant's discovery on the grounds that "individuals" are not subject to written discovery and that the information requested was protected by the attorney-client privilege or the work product doctrine. The defendant filed a motion to compel which the trial court granted after a hearing held on January 29, 2009. The order, filed January 29, 2009, compelled "the Plaintiff [to] submit written responses to Defendant's discovery within thirty (30) days from the date of this Order or Plaintiff's suit will be dismissed."
The plaintiff did not appear at the January 29, 2009, hearing, but did file several "motions" of her own. In addition, she sent written notification that she had scheduled the matter for a four-hour trial on April 2, 2009. As to the motion to compel, the plaintiff asserted that the defendant had misinterpreted "Rule 33 of the Tennessee Rules of Civil Procedure" and that it is not applicable to individuals. Counsel for the defendant filed an affidavit on March 11, 2009, stating that the plaintiff had not complied with the order and that the plaintiff, as late as March 9, 2009, continued to resist discovery on the grounds previously stated by her. On March 25, 2009, the trial court entered an order dismissing the case "without prejudice." The plaintiff appeals. We affirm.
Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2010/poynterl_020110.pdf
Min Gong ("the plaintiff") filed this action against Ida L. Poynter ("the defendant") for injuries she sustained when, as a pedestrian on the sidewalk, she was struck by an automobile driven by the defendant, all as alleged in her filing. The "complaint" was filed pro se in the form of a long letter with approximately 200 pages of accompanying documents.
The defendant served written discovery on the plaintiff consisting of six interrogatories and one document request. The plaintiff submitted an unsworn response in which she objected to answering the defendant's discovery on the grounds that "individuals" are not subject to written discovery and that the information requested was protected by the attorney-client privilege or the work product doctrine. The defendant filed a motion to compel which the trial court granted after a hearing held on January 29, 2009. The order, filed January 29, 2009, compelled "the Plaintiff [to] submit written responses to Defendant's discovery within thirty (30) days from the date of this Order or Plaintiff's suit will be dismissed."
The plaintiff did not appear at the January 29, 2009, hearing, but did file several "motions" of her own. In addition, she sent written notification that she had scheduled the matter for a four-hour trial on April 2, 2009. As to the motion to compel, the plaintiff asserted that the defendant had misinterpreted "Rule 33 of the Tennessee Rules of Civil Procedure" and that it is not applicable to individuals. Counsel for the defendant filed an affidavit on March 11, 2009, stating that the plaintiff had not complied with the order and that the plaintiff, as late as March 9, 2009, continued to resist discovery on the grounds previously stated by her. On March 25, 2009, the trial court entered an order dismissing the case "without prejudice." The plaintiff appeals. We affirm.
Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2010/poynterl_020110.pdf
Thursday, January 28, 2010
Medical malpractice suit remanded, reversing summary judgement
ROSE JOHNSEY, Widow of Frederick Johnsey v. NORTHBROOKE (Tenn. Ct. App. May 14, 2009).
The plaintiff filed suit against a nursing home after her husband allegedly suffered a broken hip while he was a resident there. The nursing home filed a motion for summary judgment, asserting that the plaintiff could not prove the elements of her claim. The trial court concluded that the plaintiff''s claims were for medical malpractice rather than ordinary negligence, but the court found that under either theory summary judgment was appropriate. We agree with the court's conclusion that the plaintiff's claims sound in medical malpractice, but we find that the trial court erred in granting summary judgment. Therefore, we reverse and remand this case for further proceedings.
"In distinguishing between medical malpractice and ordinary negligence claims, courts have also looked to “whether the decision, act, or omission complained of required the assessment of a patient’s medical condition and whether the decision, act, or omission required a decision based upon medical science, specialized training or skill.” Id.
The full text of this opinion may be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/johnseyr_051409.pdf
The plaintiff filed suit against a nursing home after her husband allegedly suffered a broken hip while he was a resident there. The nursing home filed a motion for summary judgment, asserting that the plaintiff could not prove the elements of her claim. The trial court concluded that the plaintiff''s claims were for medical malpractice rather than ordinary negligence, but the court found that under either theory summary judgment was appropriate. We agree with the court's conclusion that the plaintiff's claims sound in medical malpractice, but we find that the trial court erred in granting summary judgment. Therefore, we reverse and remand this case for further proceedings.
"In distinguishing between medical malpractice and ordinary negligence claims, courts have also looked to “whether the decision, act, or omission complained of required the assessment of a patient’s medical condition and whether the decision, act, or omission required a decision based upon medical science, specialized training or skill.” Id.
The full text of this opinion may be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/johnseyr_051409.pdf
TCA reverses lower court and dismisses slip and fall suit
LEITHA C. PERKINS and ROBERT L. PERKINS v. BIG LOTS STORES, INC. (Tenn. Ct. App September 16, 2008).
This is a slip-and-fall case. The plaintiff tripped on a floor mat and fell as she was entering the defendant's store. A store security video showed that the corner of the floor mat was overturned by another customer twenty-one seconds before the plaintiff fell. At the time that the corner of the mat became furled, the assistant store manager was at the service desk several feet from the entrance. He denied seeing the overturned mat. The plaintiff sued the store, alleging negligence in allowing a dangerous condition to persist and in failing to warn the plaintiff of it. After the trial, the jury found that the defendant store was eighty percent at fault and that the plaintiff was twenty percent at fault. The defendant store filed a motion for a new trial, alleging juror misconduct based on comments by jurors to the attorneys. The store also contended that the evidence showed that it did not have actual or constructive notice that the corner of the mat had become folded over. Finally, the store maintained that no reasonable jury could find that the plaintiff was less than fifty percent at fault for her own injuries. The trial court denied the motion and the defendant appeals. We reverse, finding no material evidence to support the jury's verdict, and dismiss the case.
The full text of this opinion may be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/perkinsl_052009.pdf
This is a slip-and-fall case. The plaintiff tripped on a floor mat and fell as she was entering the defendant's store. A store security video showed that the corner of the floor mat was overturned by another customer twenty-one seconds before the plaintiff fell. At the time that the corner of the mat became furled, the assistant store manager was at the service desk several feet from the entrance. He denied seeing the overturned mat. The plaintiff sued the store, alleging negligence in allowing a dangerous condition to persist and in failing to warn the plaintiff of it. After the trial, the jury found that the defendant store was eighty percent at fault and that the plaintiff was twenty percent at fault. The defendant store filed a motion for a new trial, alleging juror misconduct based on comments by jurors to the attorneys. The store also contended that the evidence showed that it did not have actual or constructive notice that the corner of the mat had become folded over. Finally, the store maintained that no reasonable jury could find that the plaintiff was less than fifty percent at fault for her own injuries. The trial court denied the motion and the defendant appeals. We reverse, finding no material evidence to support the jury's verdict, and dismiss the case.
The full text of this opinion may be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/perkinsl_052009.pdf
TCA Considers Owner Liability for Construction Contractor Employee’s Death
JOHNNY R. OWNBY ET AL. v. TENNESSEE FARMERS COOPERATIVE CORPORATION, U.S.A. (Tenn. Ct. App. May 19, 2009).
This wrongful death action arises out of an accident at an agricultural facility: a worker fell through a skylight on the roof while employed by a company hired by the agricultural facility owner to do work on the roof. The trial court denied the owner's motion for a directed verdict on the question of whether the owner owed a duty of care to the injured worker. We reverse the decision of the trial court because we have concluded that this case falls within an exception to the general duty of a landowner to provide a reasonably safe workplace.
The full text of this opinion can be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/ownbyj_051909.pdf
This wrongful death action arises out of an accident at an agricultural facility: a worker fell through a skylight on the roof while employed by a company hired by the agricultural facility owner to do work on the roof. The trial court denied the owner's motion for a directed verdict on the question of whether the owner owed a duty of care to the injured worker. We reverse the decision of the trial court because we have concluded that this case falls within an exception to the general duty of a landowner to provide a reasonably safe workplace.
The full text of this opinion can be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/ownbyj_051909.pdf
Decedents do not have capacity for suits and motion for dismissal based on capacity can be made at any stage of proceedings
SAM McCORMICK v. ILLINOIS CENTRAL RAILROAD COMPANY (Tenn. Ct. App May 19, 2009).
In this interlocutory appeal, we are asked to determine whether the trial court erred in allowing the executor of the plaintiff's estate to be substituted as the party plaintiff where the party plaintiff died before suit was filed in his individual capacity. We are also asked to determine whether the defendant waived the issue of plaintiff's capacity by first raising the issue in a post-answer motion to dismiss. We find that a suit brought in the name of a deceased person amounts to a nullity, and thus, is not amenable to substitution. We further find that an objection based on the fact that the plaintiff was deceased when the complaint was filed can be made at any time during the proceedings, in any appropriate manner, and such objection stops the cause at whatever stage it may be, whenever made known to the court.
The full text of this opinion can be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/mccormicks_051909.pdf
In this interlocutory appeal, we are asked to determine whether the trial court erred in allowing the executor of the plaintiff's estate to be substituted as the party plaintiff where the party plaintiff died before suit was filed in his individual capacity. We are also asked to determine whether the defendant waived the issue of plaintiff's capacity by first raising the issue in a post-answer motion to dismiss. We find that a suit brought in the name of a deceased person amounts to a nullity, and thus, is not amenable to substitution. We further find that an objection based on the fact that the plaintiff was deceased when the complaint was filed can be made at any time during the proceedings, in any appropriate manner, and such objection stops the cause at whatever stage it may be, whenever made known to the court.
The full text of this opinion can be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/mccormicks_051909.pdf
TCA affirms City of Memphis Immunity in Pedestrian – Vehicle Crosswalk Incident
GARY L. WATTS AND JANET WATTS, Parents And Next Friends of CLINTON D. WATTS, Deceased v. EARNESTINE J. MORRIS, ET AL. (Tenn. Ct. App. May 6, 2009).
This case arises from the death of a graduate student near the University of Memphis. While crossing the street, decedent was struck by a vehicle. Decedent's parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis' immunity from suit or that the City of Memphis was negligent. In addition, the court found that both decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault of the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City's immunity was waived.
The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf
KIRBY Concurring
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf
This case arises from the death of a graduate student near the University of Memphis. While crossing the street, decedent was struck by a vehicle. Decedent's parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis' immunity from suit or that the City of Memphis was negligent. In addition, the court found that both decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault of the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City's immunity was waived.
The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf
KIRBY Concurring
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf
Tuesday, January 26, 2010
TCA Rules That Expert Not Statutorily Qualified
TOMMY McDANIEL, ET AL. v. AMAL RUSTOM, M.D., ET AL. Court: Tenn. Ct. App. (May 5, 2009)
The plaintiffs filed a complaint alleging medical malpractice against emergency room physicians who treated their daughter. The defendants filed motions for summary judgment, claiming that the plaintiffs' only expert was not qualified to testify as to the recognized standard of acceptable professional practice in the defendants' profession and specialty in their community or in a similar community. The trial court granted summary judgment to the defendants, finding that the plaintiffs' expert did not meet the qualifications of Tennessee Code Annotated section 29-26-115. The plaintiffs appeal. We affirm.
This opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcdanielt_050509.pdf
The plaintiffs filed a complaint alleging medical malpractice against emergency room physicians who treated their daughter. The defendants filed motions for summary judgment, claiming that the plaintiffs' only expert was not qualified to testify as to the recognized standard of acceptable professional practice in the defendants' profession and specialty in their community or in a similar community. The trial court granted summary judgment to the defendants, finding that the plaintiffs' expert did not meet the qualifications of Tennessee Code Annotated section 29-26-115. The plaintiffs appeal. We affirm.
This opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcdanielt_050509.pdf
Friday, January 22, 2010
TWCA reviews whether trial court erred in accepting evidence of treating physician instead of evaluating physician
JUDITH ANN LESKO v. TENNESSEE SCHOOL BOARD, ET AL. (Tenn. SWCAP January 22, 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) for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she had sustained a permanent disability as a result of a work-related injury to her lower back. The trial court ruled that she had no permanent disability. She has appealed, contending that the trial court erred in accepting the testimony of the treating physician over that of the evaluating physician. We find no error, and affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/leskoj_012210.pdf
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 employee alleged that she had sustained a permanent disability as a result of a work-related injury to her lower back. The trial court ruled that she had no permanent disability. She has appealed, contending that the trial court erred in accepting the testimony of the treating physician over that of the evaluating physician. We find no error, and affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/leskoj_012210.pdf
Court reviews admissibility of a physician's evaluation when physician is unavailable for deposition by the opposing party
ANDREW CARTER v. QUALITY OUTDOOR PRODUCTS, INC. ET AL. (Tenn. January 22, 2010)
The employee filed suit seeking workers' compensation benefits and provided notice to the employer of his intent to rely at trial on a physician's report generated pursuant to Tennessee Code Annotated section 50-6-235. The employer objected to the introduction of the medical report and notified the employee of its intent to depose the physician pursuant to the same section. The employer moved to exclude the medical report when it was unable to depose the physician. The trial court denied the employer's motion to exclude the physician's report but granted the employer permission to seek an interlocutory appeal. We hold that the physician's unavailability to provide the deposition requested by the employer pursuant to section 50-6-235 renders the physician's written report inadmissible. We further hold that the physician's report is not admissible pursuant to Tennessee Rule of Evidence 804 as an exception to the hearsay rule. Accordingly, we reverse the trial court's ruling and remand for further proceedings consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_012210.pdf
Note: On page one (1) of the opinion, the last name of counsel for appellee was incorrectly listed as Joshua Davis "Barker" and has been corrected to Joshua Davis "Baker", Assistant Attorney General. The corrected opinion can be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_CORR_012510.pdf
The employee filed suit seeking workers' compensation benefits and provided notice to the employer of his intent to rely at trial on a physician's report generated pursuant to Tennessee Code Annotated section 50-6-235. The employer objected to the introduction of the medical report and notified the employee of its intent to depose the physician pursuant to the same section. The employer moved to exclude the medical report when it was unable to depose the physician. The trial court denied the employer's motion to exclude the physician's report but granted the employer permission to seek an interlocutory appeal. We hold that the physician's unavailability to provide the deposition requested by the employer pursuant to section 50-6-235 renders the physician's written report inadmissible. We further hold that the physician's report is not admissible pursuant to Tennessee Rule of Evidence 804 as an exception to the hearsay rule. Accordingly, we reverse the trial court's ruling and remand for further proceedings consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_012210.pdf
Note: On page one (1) of the opinion, the last name of counsel for appellee was incorrectly listed as Joshua Davis "Barker" and has been corrected to Joshua Davis "Baker", Assistant Attorney General. The corrected opinion can be found at:
http://www.tba2.org/tba_files/TSC/2010/cartera_CORR_012510.pdf
Court reviews whether an independent medical evaluation was improperly admitted into workers' compensation case
ALISIA ARIAS v. DURO STANDARD PRODUCTS COMPANY ET AL. (Tenn. January 22, 2010)
The employee sought workers' compensation benefits, contending that she had developed occupational asthma as a result of exposure to dust in the workplace. The employee offered into evidence the written report of a physician who performed an independent medical evaluation of the employee at the request of the employee's attorney. The employer objected to the introduction of the report, contending that Tennessee Code Annotated section 50-6-235 is the exclusive method of introducing medical proof in workers' compensation cases and that this statute permits the employer to depose the expert whose report is offered into evidence. Overruling the objection, the trial court admitted the report into evidence pursuant to Tennessee Rule of Evidence 803(6) and awarded workers' compensation benefits to the employee based on the physician's report. The employer appealed. We conclude that the trial court erred by admitting the evaluating physician's report into evidence and that the remaining admissible evidence is insufficient to establish either causation or permanency. Accordingly, the judgment of the trial court awarding workers' compensation benefits is vacated, and the complaint is dismissed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/ariasa_012210.pdf
The employee sought workers' compensation benefits, contending that she had developed occupational asthma as a result of exposure to dust in the workplace. The employee offered into evidence the written report of a physician who performed an independent medical evaluation of the employee at the request of the employee's attorney. The employer objected to the introduction of the report, contending that Tennessee Code Annotated section 50-6-235 is the exclusive method of introducing medical proof in workers' compensation cases and that this statute permits the employer to depose the expert whose report is offered into evidence. Overruling the objection, the trial court admitted the report into evidence pursuant to Tennessee Rule of Evidence 803(6) and awarded workers' compensation benefits to the employee based on the physician's report. The employer appealed. We conclude that the trial court erred by admitting the evaluating physician's report into evidence and that the remaining admissible evidence is insufficient to establish either causation or permanency. Accordingly, the judgment of the trial court awarding workers' compensation benefits is vacated, and the complaint is dismissed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/ariasa_012210.pdf
Thursday, January 21, 2010
TCA affirms findings of Occupational Safety and Health Review Commission and TOSHA findings in Death of Powerline Repairman
DILLARD SMITH CONSTRUCTION COMPANY v. COMMISSIONER OF LABOR AND WORKFORCE DEVELOPMENT (Tenn. Ct. App. July 7, 2009)
This appeal arises from a petition seeking judicial review of an administrative order. The Tennessee Department of Labor, Division of Occupational Safety and Health (TOSHA) cited Dillard Smith Construction Company for violating six safety regulations that related to the fatality of a Dillard Smith apprentice-lineman. The TOSHA Review Commission affirmed all six violations. The Chancery Court subsequently affirmed the Review Commission's findings as to five of the six violations but reversed one, concluding that the record did not support the finding that Dillard Smith failed to conduct a job briefing. Both parties appealed the Chancellor's rulings. The Commissioner contends that the Chancellor erred in reversing the finding that Dillard Smith failed to conduct the required job briefing. Dillard Smith contends that the Chancellor erred in affirming the other five violations -- that it failed to check conditions related to safety, its employee came into contact with an energized part, the cut-off switch was not opened, the line was not tested, and the line was not grounded.
We have concluded that the record contains substantial and material evidence to support the Review Commission's finding that Dillard Smith violated the TOSHA regulation that required a job briefing before beginning the first job of the day; therefore, we reverse the Chancellor's ruling that it did not. We have also concluded that the record contains substantial and material evidence to support the Review Commission's findings that Dillard Smith was also in violation of the other five TOSHA regulations for which it was cited. Therefore, we reverse in part and affirm in part.
This opinion can be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/smithconstruction_121609.pdf
This appeal arises from a petition seeking judicial review of an administrative order. The Tennessee Department of Labor, Division of Occupational Safety and Health (TOSHA) cited Dillard Smith Construction Company for violating six safety regulations that related to the fatality of a Dillard Smith apprentice-lineman. The TOSHA Review Commission affirmed all six violations. The Chancery Court subsequently affirmed the Review Commission's findings as to five of the six violations but reversed one, concluding that the record did not support the finding that Dillard Smith failed to conduct a job briefing. Both parties appealed the Chancellor's rulings. The Commissioner contends that the Chancellor erred in reversing the finding that Dillard Smith failed to conduct the required job briefing. Dillard Smith contends that the Chancellor erred in affirming the other five violations -- that it failed to check conditions related to safety, its employee came into contact with an energized part, the cut-off switch was not opened, the line was not tested, and the line was not grounded.
We have concluded that the record contains substantial and material evidence to support the Review Commission's finding that Dillard Smith violated the TOSHA regulation that required a job briefing before beginning the first job of the day; therefore, we reverse the Chancellor's ruling that it did not. We have also concluded that the record contains substantial and material evidence to support the Review Commission's findings that Dillard Smith was also in violation of the other five TOSHA regulations for which it was cited. Therefore, we reverse in part and affirm in part.
This opinion can be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/smithconstruction_121609.pdf
Court reviews whether Tennessee's Rules of Evidence allow juror testimony that falls outside the scope of Rule 606(b)
LINDA KAY GAINES, ET UX. v. LESLIE MCCARTER TENNEY, ET AL. (Tenn. Ct. App. January 21, 2010)
In a negligence action arising from an automobile accident, the original trial resulted in a jury verdict in the amount of $10,000 for the plaintiff. The plaintiff then moved for a new trial, alleging juror misconduct. After reviewing a juror's deposition testimony, the trial court ordered a new trial. A second jury trial and verdict resulted in a $30,000 judgment for the plaintiff. Following the second judgment, the defendants timely appealed the trial court's order for a new trial. We hold that Tenn. R. Evid. 606(b) prohibits introduction of juror testimony concerning the deliberation process that does not fall under one of the three exceptions enumerated in the rule. The order for a new trial is reversed and the lawsuit remanded for enforcement of the original judgment.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gainesl_012110.pdf
In a negligence action arising from an automobile accident, the original trial resulted in a jury verdict in the amount of $10,000 for the plaintiff. The plaintiff then moved for a new trial, alleging juror misconduct. After reviewing a juror's deposition testimony, the trial court ordered a new trial. A second jury trial and verdict resulted in a $30,000 judgment for the plaintiff. Following the second judgment, the defendants timely appealed the trial court's order for a new trial. We hold that Tenn. R. Evid. 606(b) prohibits introduction of juror testimony concerning the deliberation process that does not fall under one of the three exceptions enumerated in the rule. The order for a new trial is reversed and the lawsuit remanded for enforcement of the original judgment.
Full opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/gainesl_012110.pdf
Wednesday, January 20, 2010
TWCA reviews whether the trial court properly awarded permanent and total disability benefits
RAINES BROTHERS, INC., ET AL. v. BARRY WADE JOHNSON (Tenn. Work Comp. App. January 20, 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) for a hearing and report of findings of fact and conclusions of law. The employee, Barry Wayne Johnson, sought benefits for injuries he sustained in the course and scope of his employment with Raines Brothers, Inc. The employee fell fifteen to twenty feet into an air conditioning vent shaft at a construction site, shattering the left side of his pelvis and acetabulum. Following a course of treatment, the employee returned to work and was terminated after he informed his employer that he could not perform the light-duty work assigned to him due to residual and chronic pain. The trial court awarded permanent and total disability benefits. On appeal, the employer argues that the trial court erred in awarding permanent and total disability benefits. After careful review, the judgment of the trial court is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/rainesbrothers_012010.pdf
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 report of findings of fact and conclusions of law. The employee, Barry Wayne Johnson, sought benefits for injuries he sustained in the course and scope of his employment with Raines Brothers, Inc. The employee fell fifteen to twenty feet into an air conditioning vent shaft at a construction site, shattering the left side of his pelvis and acetabulum. Following a course of treatment, the employee returned to work and was terminated after he informed his employer that he could not perform the light-duty work assigned to him due to residual and chronic pain. The trial court awarded permanent and total disability benefits. On appeal, the employer argues that the trial court erred in awarding permanent and total disability benefits. After careful review, the judgment of the trial court is affirmed.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/rainesbrothers_012010.pdf
Friday, January 15, 2010
Court analyses merits of blank claim
NIELSEN BAINBRIDGE, LLC v. THOMAS SHINN (Tenn. Work Comp. App. January 15, 2010).
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. Employee suffered a hernia as a result of his work. The trial court awarded 28.5% permanent partial disability to the body as a whole. On appeal, Employer contends that the trial court erred in basing its award upon the testimony of Employee's evaluating physician. We agree, and consequently modify the judgment to 4.5% permanent partial disability to the body as a whole.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/shinnt_011510.pdf
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. Employee suffered a hernia as a result of his work. The trial court awarded 28.5% permanent partial disability to the body as a whole. On appeal, Employer contends that the trial court erred in basing its award upon the testimony of Employee's evaluating physician. We agree, and consequently modify the judgment to 4.5% permanent partial disability to the body as a whole.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/shinnt_011510.pdf
Wednesday, January 13, 2010
Court reviews the common-law principle that imputes liability to an original tortfeasor for additional physical harm caused by the efforts of third persons to render aid
ALICE J. BANKS v. ELKS CLUB PRIDE OF TENNESSEE 1102 ET AL. (Tenn. January 23, 2010)
This appeal involves the continuing viability in Tennessee of the common-law principle that imputes liability to an original tortfeasor for enhanced physical harm caused by the normal efforts of third persons to render aid which an injured party reasonably requires.
A guest at a private club was injured on the club's premises. The injuries to the guest's back were compounded first by the conduct of her surgeon and second by the actions or inactions of a nursing home where the guest was a patient following her surgery. The guest filed separate lawsuits against the private club and her surgeon in the Circuit Court for Davidson County.
After the cases were consolidated, the club and the surgeon moved to amend their answers to assert comparative fault claims against the nursing home. The trial court denied their motions but granted them permission to pursue an interlocutory appeal. After the Court of Appeals declined to consider the interlocutory appeal, the club and the surgeon sought this Court's permission for an interlocutory appeal. We granted their application. We now hold that an original tortfeasor is not jointly and severally liable for the further aggravation of an original injury caused by a subsequent tortfeasor's medically negligent treatment of the injury caused by the original tortfeasor's negligence. Therefore, we have determined that the trial court erred by denying the motions of the club and the surgeon to amend their complaints to assert comparative fault claims against the nursing home.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/banksa_011310.pdf
This appeal involves the continuing viability in Tennessee of the common-law principle that imputes liability to an original tortfeasor for enhanced physical harm caused by the normal efforts of third persons to render aid which an injured party reasonably requires.
A guest at a private club was injured on the club's premises. The injuries to the guest's back were compounded first by the conduct of her surgeon and second by the actions or inactions of a nursing home where the guest was a patient following her surgery. The guest filed separate lawsuits against the private club and her surgeon in the Circuit Court for Davidson County.
After the cases were consolidated, the club and the surgeon moved to amend their answers to assert comparative fault claims against the nursing home. The trial court denied their motions but granted them permission to pursue an interlocutory appeal. After the Court of Appeals declined to consider the interlocutory appeal, the club and the surgeon sought this Court's permission for an interlocutory appeal. We granted their application. We now hold that an original tortfeasor is not jointly and severally liable for the further aggravation of an original injury caused by a subsequent tortfeasor's medically negligent treatment of the injury caused by the original tortfeasor's negligence. Therefore, we have determined that the trial court erred by denying the motions of the club and the surgeon to amend their complaints to assert comparative fault claims against the nursing home.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/banksa_011310.pdf
Tuesday, January 12, 2010
Court reviews whether security agency was negligent at a Nashville night club
COREY GREENE, ET AL. v. YASEEN TITI D/B/A CRUSH NIGHT CLUB, ET AL. (Tenn. Ct. App. January 12, 2010)
This negligence action arose from a gunshot injury suffered by the plaintiff, Mr. Greene, when he was a customer at the co-defendant's night club in Nashville. The shooter was never identified. Mr. Greene filed suit against the night club and the agency providing security at the club, claiming that the security agency was negligent in allowing an individual into the club with a weapon. The defendant security agency moved for summary judgment. After a hearing, the trial court granted summary judgment in favor of the defendant security agency, holding that the agency affirmatively negated an element of Mr. Greene's claim by refuting his allegation that a security guard accepted a bribe and by showing that the agency did not breach any duty to Mr. Greene. The plaintiffs timely appealed. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/greenec_011210.pdf
SWINEY Concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TCA/2010/greenec_CON_011210.pdf
This negligence action arose from a gunshot injury suffered by the plaintiff, Mr. Greene, when he was a customer at the co-defendant's night club in Nashville. The shooter was never identified. Mr. Greene filed suit against the night club and the agency providing security at the club, claiming that the security agency was negligent in allowing an individual into the club with a weapon. The defendant security agency moved for summary judgment. After a hearing, the trial court granted summary judgment in favor of the defendant security agency, holding that the agency affirmatively negated an element of Mr. Greene's claim by refuting his allegation that a security guard accepted a bribe and by showing that the agency did not breach any duty to Mr. Greene. The plaintiffs timely appealed. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/greenec_011210.pdf
SWINEY Concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TCA/2010/greenec_CON_011210.pdf
Monday, January 11, 2010
Court reviews whether physician's testimony is proper for the issue of causation of an injury
EXCEL POLYMERS, LLC v. RICHARD BROYLES (Tenn. January 11, 2010)
In this workers' compensation case, the issues presented are whether the trial court erred in admitting the opinion testimony of the employee's treating physician on the issue of causation, whether the evidence preponderates against the trial court's ruling that the employee met his burden of proof that he suffered a compensable occupational disease as defined by Tennessee Code Annotated section 50-6-301, and whether the trial court erred in its disposition of the motion and suggestion of death filed by the employee's widow after the trial. We affirm the judgment of the Special Workers' Compensation Appeals Panel and of the trial court and remand to the trial court for a determination of the employee's legal dependents and the amount of death benefits, if any, due to them under the applicable workers' compensation law.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/broylesr_011110.pdf
In this workers' compensation case, the issues presented are whether the trial court erred in admitting the opinion testimony of the employee's treating physician on the issue of causation, whether the evidence preponderates against the trial court's ruling that the employee met his burden of proof that he suffered a compensable occupational disease as defined by Tennessee Code Annotated section 50-6-301, and whether the trial court erred in its disposition of the motion and suggestion of death filed by the employee's widow after the trial. We affirm the judgment of the Special Workers' Compensation Appeals Panel and of the trial court and remand to the trial court for a determination of the employee's legal dependents and the amount of death benefits, if any, due to them under the applicable workers' compensation law.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/broylesr_011110.pdf
Tuesday, January 5, 2010
Court reviews whether motorist insurance covers an injury obtained during a party
COLIN MARTIN v. MARY KATRINA DOUGHTIE AND GRANGE MUTUAL CASUALTY INSURANCE COMPANY (Tenn. Ct. App. January 5, 2010)
Guest who was injured during a party at residence where alcohol was consumed brought negligence action against the host. The guest also sued his uninsured/underinsured motorist carrier seeking payment under the policy. The trial court granted the insurance carrier's motion for summary judgment finding that the policy did not extend coverage under the circumstances. The trial court subsequently granted the host's motion for summary judgment finding that she owed no duty of care to the guest at the time of the injury. The guest appeals the trial court's action with respect to both defendants. Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/martinc_010510.pdf
Guest who was injured during a party at residence where alcohol was consumed brought negligence action against the host. The guest also sued his uninsured/underinsured motorist carrier seeking payment under the policy. The trial court granted the insurance carrier's motion for summary judgment finding that the policy did not extend coverage under the circumstances. The trial court subsequently granted the host's motion for summary judgment finding that she owed no duty of care to the guest at the time of the injury. The guest appeals the trial court's action with respect to both defendants. Finding no error, we affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/martinc_010510.pdf
Subscribe to:
Posts (Atom)