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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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