News

Suit Against Client for Unpaid Legal Fees Produces Suit for Legal Malpractice, Western Section Affirms Dismissal of the Latter

TIMOTHY W. HUDSON v. DELILAH M. GRUNLOH
Court: TN Court of Appeals

Attorneys:

Delilah M. Grunloh, Johnson City, Tennessee, pro se

Timothy W. Hudson, Bristol, Tennessee, pro se

Judge: HIGHERS

This case involves a claim for contractual attorney fees and a counterclaim for legal malpractice. The trial court dismissed the legal malpractice claim at the summary judgment stage, it granted summary judgment on certain aspects of the attorney’s fee claim, and, following a trial, it awarded a judgment in favor of the attorney. We affirm.

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Summary Judgment for Parent Charity Reversed by Western Section in Child Abuse Case

MS. B., INDIVIDUALLY AND ON BEHALF OF MINOR CHILD, JOHN DOE, “N” v. BOYS AND GIRLS CLUB OF MIDDLE TENNESSEE, ET AL.
Court: TN Court of Appeals

Attorneys:

Luvell L. Glanton, Nashville, Tennessee, for the Appellant, Mother.

Gregory W. Callaway and Susan Scott VanDyke, Nashville, Tennessee, for the Appellee, Big Brothers Big Sisters of America.

Judge: FARMER

Plaintiff filed an action against Big Brothers Big Sisters of America, in addition to its Tennessee affiliate and others, seeking damages arising from alleged sexual and emotional abuse of a minor child by a Big Brothers Big Sisters of Middle Tennessee volunteer. The trial court determined that the national organization did not owe a duty to the minor child and entered summary judgment in favor of the organization. We reverse and remand for further proceedings.

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Supreme Court Clarifies Rule on Amending Complaints

In a unanimous opinion, Michael S. Becker et al v. Ford Motor Company, the Tennessee Supreme Court has held that state law allows a plaintiff to add a defendant whose involvement was raised by the original defendant, even when the plaintiff was aware of the new defendant before the statute of limitations expired. Learn more from the Administrative Office of the Courts.

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17:1 Ratio on Punitive to Compensatory Damages Cannot Stand--For Want of a Sufficiently High Ad Damnum.

RHEATTA F. WILSON, ET AL. v. AMERICARE SYSTEMS, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

Roger W. Dickson and Robert F. Parsley, Chattanooga, Tennessee; and David L. Johnson, Nashville, Tennessee for the appellant, Americare Systems, Inc.

C. J. Gideon, Jr. and Alan S. Bean, Nashville, Tennessee; and Raymond W. Fraley, Jr., Fayetteville, Tennessee, for the appellees, Rheaetta F. Wilson and Lauralyn F. Watson.

Judge: BENNETT

A defendant appeals the award of punitive damages arising from the death of a patient at an assisted living facility, which the defendant managed. We affirm the trial court’s review of the Hodges factors and the due process analysis relating to the punitive damage award. We also affirm the trial court’s directed verdict making the defendant liable for the actions of the assisted living facility’s employees. We must modify the amount of the punitive damage award by reducing it to comply with the amount the plaintiff requested in the ad damnum clause of their complaint.

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At the Crossroads of Three Statutes: TCA 20-119 Saves Action Against City

RICHARD MORENO v. CITY OF CLARKSVILLE
Court: TN Court of Appeals

Attorneys:

Bruce A. Kennedy and John T. Maher, Clarksville, Tennessee, for the appellant, Richard Moreno.

Lance A. Baker and Jeffrey T. Goodson, Clarksville, Tennessee, for the appellee, City of Clarksville.

Judge: BENNETT

Plaintiff filed a timely claim with the Division of Claims Administration, which did not resolve the claim within the statutory period. The claim was transferred to the Claims Commission, and Plaintiff filed a complaint pursuant to the Claims Commission Rules. Much later, the State amended its answer to allege fault by the City of Clarksville. Plaintiff filed suit against the City. The suit was dismissed because the trial court found that the “original complaint” under Tenn. Code Ann. § 20-1-119 was not filed within a year of the alleged injury. Plaintiff appealed. We reverse.

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Tort and Insurance Forum 2014

This year's Tort and Insurance Forum 2014 is just a week away and you do not want to miss this CLE! 

Topics include:

  • Technology,  The  Economy  &  Today’s  Practice 
  • Legislative  Update with Senator Doug Overbey
  • Ethics  Update  for  Tort  Lawyers

Have you registered for the CLE yet?  If not, click here to learn more about the CLE and to register today! 

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AG Urges Congressional Action on Data Breaches

U.S. Attorney General Eric Holder is urging Congress to require businesses to quickly alert consumers and law enforcement agencies of significant data breaches like those at Target and Neiman Marcus. In a video posted on the Justice Department's website, Holder said Congress should create a strong, national standard for notifying consumers whose information may have been compromised, empowering members of the public to protect themselves if they are at risk of identity theft. WSMV has more.

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Absence of Sale by Bar Frees it From Dramshop Liability, per Eastern Section

HEATHER WIDNER, ADMINISTRATRIX OF THE ESTATE OF GLENN EDWARD SMITH v. CHATTANOOGA ENTERTAINMENT, INC. d/b/a ELECTRIC COWBOY, ET AL.
Court: TN Court of Appeals

Attorneys:

Michael E. Large, Bristol, Tennessee, for the appellant, Heather Widner, Administratrix of the Estate of Glenn Edward Smith.

Terrill L. Adkins, Knoxville, Tennessee, for the appellee, Chattanooga Entertainment, Inc. d/b/a Electric Cowboy.

Judge: SWINEY

Heather Widner, Administratrix of the Estate of Glenn Edward Smith (“Plaintiff”) sued Chattanooga Entertainment, Inc. d/b/a Electric Cowboy (“Electric Cowboy”) and Ashley Langworthy with regard to the tragic death of Glenn Edward Smith (“Deceased”). Electric Cowboy filed a motion for summary judgment. After a hearing, the Trial Court granted Electric Cowboy summary judgment finding and holding, inter alia, that on the relevant night there had been no sale of alcoholic beverages pursuant to Tenn. Code Ann. § 57-10-102 by Electric Cowboy to Ashley Langworthy. Plaintiff appeals to this Court raising issues regarding whether the Trial Court erred in granting Electric Cowboy summary judgment and whether the Trial Court erred in refusing to allow Plaintiff additional time for discovery. We find and hold, as did the Trial Court, that no sale of alcoholic beverages by Electric Cowboy to Ashley Langworthy occurred on the relevant night, and that the Trial Court did not abuse its discretion in refusing to allow further discovery. We, therefore, affirm.

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'Belts and Suspenders' Saves Plaintiff's Med Mal Case from Dismissal Following Law Change

DORIS CANNON EX REL. JUANITA E. GOOD v. BHASKAR REDDY, M.D.
Court: TN Supreme Court

Attorneys:

Brent Albert Kinney, Edward A. Hadley, and Phillip Lester North, Nashville, Tennessee, for the appellant, Bhaskar Reddy.

Olen G. Haynes, Johnson City, Tennessee, and Raymond Wilford Fraley Jr., Fayetteville, Tennessee, for the appellee, Doris Cannon.

Judge: HOLDER

The plaintiff filed a health care liability action against the defendant. During the pendency of her action, the General Assembly enacted the pre-suit notice and certificate of good faith requirements of Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff voluntarily dismissed her original action. The plaintiff then filed two successive actions. First, the plaintiff filed a second action that did not comply with the pre-suit notice and certificate of good faith statutes. The plaintiff then filed a third action that complied with Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff moved to consolidate her second and third actions, and the defendant moved to dismiss. The defendant contended that the plaintiff’s second action should be dismissed for failure to comply with the pre-suit notice and certificate of good faith requirements and that her third action should be dismissed based on the doctrine of prior suit pending. The trial court consolidated the lawsuits and denied the defendant’s motions to dismiss. The defendant moved for permission to file an interlocutory appeal, which the trial court denied. We granted the defendant’s application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. During the pendency of the appeal, the plaintiff voluntarily dismissed her second action. As a result of the plaintiff’s voluntary dismissal and our recent holding in Rajvongs v. Wright, ___ S.W.3d ___, 2013 WL 6504425 (Tenn. Dec. 12, 2013), we hold that the plaintiff, who properly provided pre-suit notice of her claim prior to filing her third action, was entitled to a 120-day extension in which to refile her complaint pursuant to Tennessee Code Annotated section 29-26-121(c). The plaintiff’s third complaint was therefore timely filed. We affirm the judgment of the trial court and remand this case for further proceedings.

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If You Did It, Flaunt It With a TBJ Announcement

The Tennessee Bar Journal has a new opportunity for lawyers and firms to promote outstanding achievements, new associates, new partners, mergers, awards and any changes within the firm. Now, Professional Announcements are available at special, lower-rate pricing. You can tell more than 12,000 of your peers about your accomplishments by placing an announcement in the Journal. For information or to place an announcement, contact Debbie Taylor at 503-445-2231 or Debbie@llm.com. To have an announcement placed in the April issue, please contact her before Feb. 18.

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Nashville Meningitis Cases May Get First Trials

Nashville-area victims of the nationwide fungal meningitis outbreak would be the first to have their cases come to trial under a proposal being considered by a federal judge in Boston, the Tennessean reports. According to Boston attorney Kristen Johnson Parker, one or more cases brought by Tennessee victims could go to trial next year and serve as “bellwether” suits – a procedure used by the federal courts to speed the processing of multiple related lawsuits. It is not clear yet whether the trials would be held in Boston or in Tennessee, Parker said. Those involved in the cases say priority consideration for Tennessee victims is based on the large number of cases from the state.

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City's Lack of Notice of Pothole Affirmed in Memphis GTLA Case

CAREY P. MERRELL v. THE CITY OF MEMPHIS, TENNESSEE
Court: TN Court of Appeals

Attorneys:

David A. McLaughlin and William T. Hackett, Memphis, Tennessee, for the appellant, Carey P. Merrell.

Robert W. Ratton, III, and Roane Waring, III, Memphis, Tennessee, for the appellee, The City of Memphis, Tennessee.

Judge: STAFFORD

This is a Governmental Tort Liability action. Plaintiff/Appellant was injured when his motorcycle hit a pothole. Appellant sued the Appellee The City of Memphis for negligence. Following a bench trial, the trial court found that Appellant had failed to prove that the City had actual or constructive notice of the dangerous condition on its roadway so as to lift immunity under Tennessee Code Annotated §29-20-203(b). Accordingly, the court dismissed the lawsuit. We conclude that the evidence does not preponderate against the trial court’s finding that the City had no notice of this dangerous condition. Affirmed and remanded.

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State Files $10M Claim in Meningitis Case

Tennessee this week filed a $10 million claim in the New England Compounding Center’s bankruptcy case – a move aimed at recouping money it has spent on fines, penalties and administrative expenses related to the meningitis outbreak. However, officials acknowledge they probably will never see that much money, The Tennessean reports. Either way, some victims’ advocates were not happy with the decision saying the state’s claim would siphon funds away from injured patients.

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Columns Cover Statute of Repose, Reproductive Rights, Don Paine

In this issue, President Cindy Wyrick and columnist John Day each give different views of the Statute of Repose, and Marlene Eskind Moses's column this month covers a little-known area of reproductive rights, assisted reproductive technology. Don Paine, who died in November, is remembered by editor Suzanne Craig Robertson and columnist Bill Haltom, who also gives tribute to John Smartt. You can also read a "Paine on Procedure" column written by Paine before his death.

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Malicious Prosecution Suit May Not be Based on Dismissal via Settlement, Middle Section Rules

THOMAS R. MEEKS v. CARRIE GASAWAY, ET AL.
Court: TN Court of Appeals

Attorneys:

Joseph Napiltonia, Franklin, Tennessee, for the appellant, Thomas R. Meeks.

Dominic Joseph Leonardo, Nashville, Tennessee; Mitchell Todd Hingson, Clarksville, Tennessee, for the appellees, Carrie Gasaway, Edward Farmer, and Gasaway, Long, & Farmer, PLLC; Fletcher Long, Clarksville, Tennessee, Pro Se.

Judge: COTTRELL

A bail bondsman filed suit against an attorney over title to several pieces of land. The suit went to trial before a jury, but the parties settled before a verdict was announced. The attorney subsequently sued the bail bondsman’s attorneys for malicious prosecution and other torts. The defendant attorneys filed a Rule 12.02(6) motion to dismiss, arguing that the parties’ agreement to settle the underlying case negated one of the elements of a malicious prosecution claim, “a final and favorable termination” of the underlying suit in favor of the defendant. The motion also argued that the complaint did not sufficiently allege the elements of the other causes of action. The trial court granted the defendants’ motion to dismiss, finding that the plaintiff attorney had failed to state a claim for relief under any of the causes of action. We affirm the trial court.

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Middle Section Affirms Med Mal Dismissal

CYNTHIA BEARDEN v. GREGORY LANFORD, M. D. AND NEUROLOGICAL SURGEONS, P. C.
Court: TN Court of Appeals

Attorneys:

Joe Bednarz, Sr., Joe Bednarz, Jr., Nashville, Tennessee, and Steven R. Walker, Oakland, Tennessee, for the appellant, Cynthia Bearden.

C.J. Gideon, Jr., Heather Piper, Nashville, Tennessee, for the appellees, Gregory Lanford,M.D. and Neurological Surgeons, P.C.

Judge: CLEMENT

In this medical malpractice action, the plaintiff alleged that the defendant, a neurosurgeon, negligently penetrated her spinal cord with a surgical instrument while performing a cervical fusion at two levels of her neck leading to partial paralysis and other neurological problems. She was ultimately diagnosed with a condition called Brown Sequard Syndrome. The issues were tried before a jury; however, several of the claims were dismissed on directed verdict. The remaining claims went to the jury which rendered a verdict on behalf of the defendant-neurosurgeon. The plaintiff raises numerous issues on appeal, the substance of which may be divided into three categories. First, she contends error associated with the directed verdict, the verdict form, and the jury instructions. In this regard she contends, inter alia, that the trial court erred in directing a verdict as to res ipsa loquitur because she presented the testimony of three expert witnesses of the defendant’s specific acts of negligence. The plaintiff also contends the court erred by dismissing all but three of her claims upon a directed verdict. Second, the plaintiff argues she was denied a fair trial due to inappropriate argument and misconduct. Third, she argues a host of errors secondary to evidentiary rulings. Finding no reversible error, we affirm.

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Insurer Avoids Liability by Reliance on Court Order Appointing Child's Guardian, Supreme Court Reversing Court of Appeals

ERIK HOOD v. CASEY JENKINS ET AL.
Court: TN Supreme Court

Attorneys:

Michael S. Kelley (at trial and on appeal) and Briton S. Collins (at trial), Knoxville, Tennessee, for the appellant, The Old Line Life Insurance Company of America.

Bruce T. Hill, Sevierville, Tennessee, for the appellee, Erik Hood.

Judge: WADE

The minor beneficiary of a $100,000 life insurance policy filed suit against his financial guardian and the insurance company after the guardian misappropriated the insurance proceeds. The trial court entered judgments in favor of the minor against both the guardian and the insurance company. On appeal by the insurance company, the Court of Appeals affirmed, holding that the insurance company breached its contractual duties by entrusting the proceeds to the guardian. The insurance company then applied for permission to appeal to this Court, contending that it could not be held liable for the loss to the minor because it had relied upon the validity of a juvenile court order of guardianship. Because the insurance company acted in good faith when it relied upon a facially valid court order establishing a financial guardianship in making payment of the life insurance proceeds, it is not liable for breach of contract. The judgment of the Court of Appeals is, therefore, reversed, and the claim against the insurance company is dismissed.

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Snooze and Lose: Late Addition of Additional Tortfeasor Results in Dismissal of Suit Against Him

KRISTINA MORRIS v. JIMMY PHILLIPS, ET AL.
Court: TN Court of Appeals

Attorneys:

Daniel A. Gagliano, Nashville, Tennessee, for the appellant, Rachel Mitchell.

Allen Woods, Nashville, Tennessee, for the appellee, Kristina Morris.

Judge: COTTRELL

A multi-vehicle accident occurred in August 2010. The plaintiff initially named only one of the drivers involved in the accident along with the record owner of the driver’s vehicle. The record owner filed an answer identifying three other drivers/tortfeasors involved in the accident in December 2011, and the driver identified the same three individuals as tortfeasors in his answer that was filed seven months later, in July 2012. The plaintiff did not file an amended complaint adding the individuals identified as defendants until August 2012, which was more than 90 days after the first answer was filed. One of the individuals named as a defendant filed a motion to dismiss, arguing the plaintiff waited too late to add her as a defendant. The trial court denied the motion. The late-added defendant appealed, and we reverse the trial court’s judgment.

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A Divided Supreme Court Overturns Trial Court's TRCP 12 Dismissal of Suit of Injured Patron Against Store that Ousted Drunken Customer

JOLYN CULLUM ET AL. v. JAN MCCOOL ET AL.
With Concurring & Dissenting Opinion
Court: TN Supreme Court

Attorneys:

G. Andrew Rowlett and Behnaz Sulkowski, Nashville, Tennessee, for the appellant, Wal- Mart Stores East, LP.

Amelia C. Roberts, Chattanooga, Tennessee, for the appellees, Jolyn Cullum and Andrew Cullum.

Lynda Motes Hill, Nashville, Tennessee, for the Amicus Curiae, National Federation of Independent Business Small Business Legal Center.

Judge: LEE

The issue presented in this premises liability case is whether a store owes a duty to protect its customer from a visibly intoxicated customer who was ordered to leave the store by store employees. A store patron sued a store for negligence after she was struck and injured in the store’s parking lot by a vehicle driven by another store patron. Store employees had refused to fill the other patron’s medical prescriptions because they believed she was intoxicated; she became belligerent, and store employees ordered her to leave the store knowing that she was alone and would be driving her vehicle. In response to the lawsuit, the store filed a motion to dismiss, contending that it did not have a legal duty to control the intoxicated patron after she left the store. The trial judge granted the store’s motion to dismiss. The Court of Appeals reversed, finding that the store owed the injured patron a duty of care to protect her from the intoxicated patron. Taking the plaintiffs’ allegations as true and drawing all reasonable inferences in her favor, we hold that the foreseeability of harm and the gravity of harm to the injured patron outweighed the burden placed on the store to protect the patron against that harm. Therefore, the store patron’s complaint contains sufficient allegations which, taken as true, establish that the store owed a duty of care to the injured patron. The trial court erred by granting the motion to dismiss.

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HOLDER concurring & dissenting

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Public Duty Does Not Save GTLA Action Following MVA

BARBARA A. LYNCH, deceased, by her sister and next of kin, CELINE HAYES, ET AL. v. LOUDON COUNTY, TENNESSEE, ET AL.
Court: TN Court of Appeals

Attorneys:

Joseph R. Ford and Ashley Harrison Shudan, Loudon, Tennessee, for the appellants, Barbara A. Lynch, deceased, by her sister and next of kin, Celine Hayes.

Arthur F. Knight, III, and Jonathan Swann Taylor, Knoxville, Tennessee, for the appellee,Loudon County, Tennessee.

Judge: MCCLARTY

In this wrongful death action, the plaintiffs alleged that after the deceased was involved in a single car accident, the investigating officer improperly allowed her to continue driving, resulting in her death when she had another wreck shortly thereafter. In the initial lawsuit, the defendants moved for summary judgment. The trial court found that the public duty doctrine applied and granted the motion. After the plaintiffs appealed, we held that under the public duty doctrine, disputed material evidence existed as to whether the officer assumed a specific duty to protect the deceased but then discontinued his aid and protection to her, thereby leaving her in a worse position than she was in before he intervened. We therefore reversed the summary judgment and remanded the case for further proceedings. Lynch v. Loudon Cnty., No. E2010-02231-COA-R3-CV, 2011 WL 4952778 (Tenn. Ct. App. Oct. 14, 2011). Upon remand the trial court found that the special duty exception did not apply and the public duty doctrine was a complete bar to the plaintiffs’ action. The court additionally concluded that Restatement (2nd) of Torts section 324 was not applicable and even if fault was compared, the fault of the deceased exceeded that of the officer by more than fifty percent. Accordingly, the trial court found that the claims of the plaintiffs must be denied. The plaintiffs again appeal. We affirm.

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UT Medical Group to Appeal $33.5 Million Verdict

UT Medical Group Inc. says it plans to appeal a Memphis jury’s $33.5 million malpractice verdict against the organization that has its leadership considering bankruptcy protection. The Memphis Business Journal reports that case records from Shelby County Circuit Court show that after the verdict, UTMG called for a new trial and requested the $33.5 million verdict be reduced. Circuit Court Judge Robert Childers denied the motion for a new trial but agreed to reduce the award by $1 million.

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Insurers Agree to Settle Meningitis Cases

A major settlement reached with insurance companies will provide “a very significant amount” for victims in a nationwide fungal meningitis outbreak, says bankruptcy trustee Paul D. Moore, who has been handling the cases filed against the New England Compounding Center. Moore announced on Friday that an agreement had been reached with the company's primary insurer. He also said there was an agreement with the insurer for another defendant in a series of civil suits that have been merged before a federal judge in Boston. The settlement is still subject to court approval, though parties on both sides applauded the plan. Read more in The Tennessean.

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UT Medical Group Considering Bankruptcy in Wake of Verdict

UT Medical Group Inc. is considering bankruptcy after a Memphis jury found that delays in performing an urgently needed cesarean section resulted in a baby developing severe brain damage and cerebral palsy, and awarded a $33.5 million verdict against obstetrician Gary Lipscomb and UTMG. Through a statement delivered exclusively to the Memphis Business Journal, UTMG said the case remains subject to review by the appellate courts and settlement negotiations are ongoing. However, the verdict’s unusually high value has compelled the UTMG board to consider seeking protection through bankruptcy court.

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Badly Divided Eastern Section Affirms Med Mal Testimony Limitation

(Headline Corrected From Earlier Post)

IKE J. WHITE, III v. DAVID A. BEEKS, M.D.
With separate concurring opinion and dissenting opinion.
Court: TN Court of Appeals

Attorneys:

H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Ike J. White, III.

Richard A. Smith and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellee, David A. Beeks, M.D.

Judge: FRIERSON

This appeal involves the question of whether the trial court properly limited a medical expert’s testimony at trial regarding the standard of care in an informed consent health care liability action. In the case at bar, the defendant filed a motion in limine seeking to limit the testimony of the plaintiff’s expert at trial regarding risks that should have been disclosed to the plaintiff to only those risks that actually resulted in injury. The trial court granted the motion. A jury trial was held, and the jury found in favor of the defendant. Plaintiff appeals, asserting that the trial court committed reversible error when it restricted the ability of the plaintiff’s medical expert to testify about other known risks. Discerning no error, we affirm.

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SUSANO concurring

SWINEY dissenting

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Clinic Seeks Dismissal of Meningitis Claims

In a move that could affect dozens of other cases, lawyers for the Nashville clinic where patients were injected with tainted steroids have filed a motion to dismiss suits filed on behalf of 14 Kentucky residents, The Tennessean reports. The motions, filed Monday in U.S. District Court in Boston, charge that the suits filed on behalf of the Kentucky residents do not meet the pre-notice requirements of Tennessee’s health care liability law. The motion also seeks to dismiss product liability and civil conspiracy charges under the same argument.

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