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Reversal Follows Rare Appellate Consideration of Leading Questions on Medical Proof

AMANDA SMITH v. WILLIAM R. WALKER ET AL.
Court: TN Court of Appeals

Attorneys:

Floyd Don Davis and Norris Arthur Kessler, III, Winchester, Tennessee, for the appellant, Amanda Smith.

S. Todd Bobo, Shelbyville, Tennessee, for the appellee, William R. Walker.

Gerald L. Ewell, Jr., Tullahoma, Tennessee, for the appellee, Jimmy F. Maloy.

Judge: BENNETT

In this negligence action, the jury awarded the plaintiff a verdict against one of the two defendants. We find no error in the judgment regarding liability, but we must vacate and remand as to damages because the trial court erred in excluding testimony and evidence regarding the plaintiff’s medical expenses.
 

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Low PI Verdict with Additur Affirmed by Middle Section in Memorandum Opinion

TRACI JONES v. BERNICE JONES ET AL.
Court: TN Court of Appeals

Attorneys:

Mark Mizell, Nashville, Tennessee, for the appellant, Traci Jones.

Bruce Timothy Pirtle, McMinnville, Tennessee, for the appellees, Bernice Jones, Cynthia Gribble, and Jimmie Gribble.

Judge: BENNETT

This matter arose from a car accident between Traci Jones and Bernice Jones. At trial, the jury found Bernice Jones 100% at fault and awarded Traci Jones a portion of her requested relief. On appeal, Traci Jones argues that the trial court erred by reversing its pre-trial ruling on a motion in limine, denying her motion for mistrial, and denying her motion for directed verdict. We affirm the trial court’s decision.

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Judgment holding school liable for damages caused by student is affirmed

MISTY PHILLIPS, ON BEHALF OF HER MINOR SON JACOB GENTRY v. ROBERTSON COUNTY BOARD OF EDUCATION
Court: TN Court of Appeals

Attorneys:

Michael P. Mills, Brentwood, Tennessee, for the appellant, Robertson County Board of Education.

Jonathan A. Street, Nashville, Tennessee, for the appellee, Misty Phillips on behalf of her minor son, Jacob Gentry.

Judge: BENNETT

County appeals the trial court’s decision finding the County liable for injuries sustained by a student with Asperger’s syndrome in an altercation with another student. Finding that the evidence does not preponderate against the trial court’s determination, we affirm.

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Jury Finds for Motorcyclist in Texting Case

Jurors in Hamilton County returned a $3.5 million verdict for a motorcycle driver who sustained a severe head injury in a rear end collision that attorneys said was caused by a driver who was texting, the Chattanoogan.com website reports.

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Western Section Affirms Comparative Fault Dismissal after Fall

JUDY KYLE v. CITY OF JACKSON, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Spencer R. Barnes, Jackson, Tennessee, for the appellant, Judy Kyle.

Robert O. Binkley, Jr. and James V. Thompson, Jackson, Tennessee, for the appellee, City of Jackson, Tennessee.

Judge: STAFFORD

This is a Governmental Tort Liability Case. The trial court determined that Appellant was at least 50% at fault for the injuries she sustained when she fell from an elevated stage at an event held at a building, which is owned and operated by Appellee City of Jackson. Discerning no error, we affirm.

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Middle Section Allows Lost Profits for Tractor Trailer Total Loss

DKB TRUCKING COMPANY, LLC v. JNJ EXPRESS, INC.
Court: TN Court of Appeals

Attorneys:

Timothy A. Housholder, Knoxville, Tennessee, for the appellant, DKB Trucking, LLC.

Trevor L. Sharpe and Raymond G. Lewallen, Jr., Knoxville, Tennessee, for the appellee, JNJ Express, Inc.

Judge: BENNETT

Plaintiff sued for damages for the destruction of a tractor and trailer and for the loss of its use. Defendants moved for a directed verdict, arguing that loss of use and/or loss of profits cannot be recovered because the property was destroyed and it was not unique. The jury found liability for the destruction of the property and for loss of use and/or loss of profits. The trial court then granted a directed verdict on the loss of use/loss of profits, stating that such damages cannot be recovered for destroyed property. Plaintiff appeals. We reverse.

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A Divided Middle Section Modifies Med Mal Summary Judgment

DORIS HINKLE, ET AL. v. KINDRED HOSPITAL, ET AL.
With a concurring in part and dissenting in part opinion

Court: TN Court of Appeals

Attorneys:

Bede O. M. Anyanwu, Jackson, Tennessee, for the appellant, Doris Hinkle, Executrix of the estate of Muriel Jesse Hinkle deceased, and Doris Hinkle.

Heidi Anne Barcus, Hillary Browning Jones, Daniel T. Swanson, Knoxville, Tennessee, for the appellee, Dr. Tuan Quoc Nguyen; Harry Peoples Ogden, Kenny L. Saffles, Carrie C. McCutcheon, Knoxville, Tennessee, for the appellee, Kindred Hospital.

Judge: COTTRELL

The widow of a man who suffered a devastating injury while undergoing a medical procedure in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure, claiming medical malpractice, failure to obtain informed consent, and battery. The defendant hospital filed a motion for summary judgment, and the defendant doctor filed a motion to dismiss, both arguing that the plaintiff’s malpractice claims had to be dismissed because she failed to strictly comply with requirements of the Medical Malpractice Act, specifically Tenn. Code Ann. § 29-26-121 (a)(1) (60-day notice) and §29-26-122(a) (certificate of good faith). The trial court granted both motions in part and denied them in part. We reverse the trial court’s dismissal of the medical malpractice claims against both defendants as well as the related claims. We also reverse the trial court’s dismissal of the claim against the defendant doctor for failure to obtain the patient’s informed consent, but we affirm its dismissal of the medical battery claim against the defendant doctor.

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12 Year Old Med Mal Case Gets Continued Life

JEFFERY SMITH and BRENDA K. SMITH v. METHODIST HOSPITALS OF MEMPHIS, ET AL.

Court: TN Court of Appeals

Attorneys:

Lenal Anderson, Jr., Memphis, Tennessee, for the appellants, Jeffery Smith and Brenda K. Smith

Jill Steinberg, John R. Branson, Mason W. Wilson, Ormonde B. DeAllaume, Memphis, Tennessee, for the appellee, Methodist Healthcare - Memphis Hospitals

Judge: HIGHERS

This lawsuit originated as a medical malpractice action that was filed against the Hospital and other defendants in 2000. The trial court granted summary judgment in favor of the Hospital on the medical malpractice claim in 2003 because Plaintiffs had failed to come forward with competent testimony from a medical doctor regarding causation. Thereafter, Plaintiffs filed a supplemental complaint to allege that the Hospital had tortiously interfered with the Plaintiffs’ contract with a nurse expert witness. The trial court granted summary judgment in favor of the Hospital on this claim in 2010. Plaintiffs appealed. We affirm the trial court’s order granting summary judgment on the issue of tortious interference with contract, but we reverse the trial court’s order granting summary judgment on the medical malpractice claim and remand for further proceedings

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Dismissal of Case Against Nursing Home is Reversed

ANNA PARKER, ADMINISTRATOR OF ESTATE OF WANDA FAYE DOBBS, DECEASED ET AL. v. PORTLAND NURSING & NURSING REHAB ET AL.

Court: TN Court of Appeals

Attorneys:

Deborah Truby Riordan, Little Rock, Arkansas; Cameron C. Jehl and Carey L. Acerra, Memphis, Tennessee, for the appellant, Anna Parker, Administrator of the Estate of Wanda Faye Dobbs, deceased, and on behalf of the wrongful death beneficiaries of Wanda Faye Dobbs.

Heidi A. Barcus, Jennifer Pearson Taylor, and Ian P. Hennessey, Knoxville, Tennessee, for the appellees, Portland Nursing and Rehab Center, Inc. D/b/a Highland Manor Nursing & Rehab Center, Sunbelt Health Care Centers, Inc. A/k/a Adventist Care Centers, Adventist Health System Sunbelt Healthcare Corporation, and Adventist Health System/Sunbelt, Inc.

Judge: CLEMENT

In this action, the plaintiff has attempted to assert claims for ordinary negligence and medical malpractice against nursing home defendants by filing two separate actions and then seeking to consolidate the cases or to amend the complaint to assert both types of claims in one case. The first complaint filed only asserted claims for ordinary negligence against the nursing home defendants. Sixty days after having given the statutory notice to the healthcare providers of her intent to file medical malpractice claims, the plaintiff commenced a separate action against the same nursing home defendants and an additional defendant, a physician who treated the nursing home patient, by filing a complaint for medical malpractice. Upon motions of the nursing home defendants, the trial court refused to consolidate the cases, dismissed the medical malpractice claims against the nursing home defendants upon the ground of a prior suit pending, and denied the plaintiff’s motion to amend the complaint in the first case to add claims for medical malpractice against the nursing home defendants. Having determined that the plaintiff complied with Tennessee Code Annotated § 29-26- 121(a) by giving the requisite 60 days notice to the medical providers and that the statute of limitations had not run, we have concluded that the trial court erred in denying the plaintiff’s Tennessee Rule of Civil Procedure 15.01 motion to amend the complaint. Accordingly, we reverse and remand with instructions to grant the plaintiff’s motion to amend the complaint for ordinary negligence against the nursing home defendants thus allowing the plaintiff to assert medical malpractice claims against the nursing home defendants and for further proceedings consistent with this opinion

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New TBJ Covers Arbitration, Divorce, Wrongful Death Proceeds

Don't miss the September Tennessee Bar Journal, featuring two articles on arbitration. One, by Adam Eckstein, explores when Rule 31 and the Tennessee Uniform Arbitration Act meet; the second, by Shelby R. Grubbs and Glenn P. Hendrix, unveils a new international concept for arbitration services. Columnists Marlene Eskind Moses and Beth A. Townsend give you ideas for finding hidden assest in divorces, and John A. Day discusses distribution of net proceeds in wrongful death cases. Humor columnist Bill Haltom pays tribute to a queen and a princess -- Pat Summitt and the influence she has had on his daughter and many other girls. President Jackie Dixon speaks out about merit selection. You probably already have it in hand, but you can also read it online here

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'Possible' Future Medical Care Costs are not Admissible, Per the Western Section

SAPINDER SINGH v. LARRY FOWLER TRUCKING, INC.
Court: TN Court of Appeals

Attorneys:

Charles H. Barnett, III and Sarah E. Barnett, Jackson, Tennessee, for the appellant, Sapinder Singh.

Nicholas E. Bragorgos and Pam Warnock Blair, Memphis, Tennessee, for the appellee, Larry Fowler Trucking, Inc.

Judge: STAFFORD

This case arises from an accident involving two semi-trucks. The truck owned by Appellee trucking company rear-ended the truck driven by Appellant, causing injury to Appellant’s back. Litigation ensued and the Appellee filed a motion in limine to exclude portions of Appellant’s medical expert’s testimony concerning Appellant’s possible future need for surgery and the costs thereof. The trial court granted the motion, and Appellant appeals. Discerning no error, we affirm.

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No MSJ Where Fault is Compared, Rules Eastern Section

TERESA HOLT, ET AL. v. THE DOLLYWOOD COMPANY
Court: TN Court of Appeals

Attorneys:

John D. Agee and Bradley D. Williams, Clinton, Tennessee, for the appellants, Teresa Holt and Archie J. Holt.

Daniel M. Gass, Knoxville, Tennessee, for the appellee, The Dollywood Company, a joint venture between Dolly Parton Productions, Inc. and Herschend Family Entertainment Corp.

Judge: SWINEY

Teresa Holt and Archie J. Holt (“Plaintiffs”) sued The Dollywood Company, a joint venture between Dolly Parton Productions, Inc. and Herschend Family Entertainment Corp. (“Defendant”) with regard to injuries Ms. Holt received as a result of her fall on a Dollywood tram. Defendant filed a motion for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment finding and holding, inter alia, that Ms. Holt’s own negligence was the primary cause of her fall and that Ms. Holt was at least 50% at fault. Plaintiffs appeal to this Court. We find and hold that a reasonable jury could find that Ms. Holt was less than 50% at fault. We, therefore, reverse the Trial Court’s judgment and remand for further proceedings.

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Supreme Court Rules that Nonsuit is Not a Basis for Malicious Prosecution Suit.

ELLIOT H. HIMMELFARB, M.D., ET AL. v. TRACY R. ALLAIN
Court: TN Supreme Court

Attorneys:

Christopher Kim Thompson, Nashville, Tennessee, for the appellant, Tracy R. Allain

M. Todd Sandahl, Franklin, Tennessee, for the appellees, Elliot H. Himmelfarb, M.D., Elliot H. Himmelfarb, M.D., P.A., and Douglas C. York, M.D.

Judge: HOLDER

A patient discovered that a guide wire had been left in her vein during a prior medical procedure. She filed a medical malpractice action against the doctors who performed the procedure and the hospital where the procedure was performed. The patient voluntarily dismissed the medical malpractice suit pursuant to Tennessee Rule of Civil Procedure 41 when she was informed that another party was responsible for the presence of the guide wire. The doctors named in the original suit filed a malicious prosecution action against the patient. The patient filed a motion for summary judgment alleging that the doctors could not prove that the prior suit had been terminated in their favor. The trial court denied the motion for summary judgment, and the Court of Appeals affirmed the trial court’s denial. We hold that a voluntary nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a favorable termination on the merits for purposes of a malicious prosecution claim. We reverse the Court of Appeals and remand to the trial court for entry of summary judgment in favor of the patient and for further proceedings consistent with this opinion.
 

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Whaddaya Mean it's Not My Car — My Name is on the Title …

A good treatment of the cancellation rule and equitable ownership of personal property:
 
 
JAMES LYNCH, SR. v. CLEON PORTIS
Court: TN Court of Appeals

Attorneys:

Ricky E. Wilkins and Sharon Harless Loy, Memphis, Tennessee, for the appellant, James Lynch, Sr.

C. Michael Becker, Germantown, Tennessee, for the appellee, Cleon Portis.

Judge: FARMER

The trial court awarded summary judgment to Defendant on Plaintiff’s claim for property damages arising from a motor vehicle collision, finding that Plaintiff did not own the vehicle allegedly damaged. On appeal, Plaintiff asserts the trial court erred by awarding summary judgment to Defendant where ownership of the vehicle is a genuine issue of material fact. We reverse the award of summary judgment and remand for further proceedings.

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Legal Clinic Partnership Set in Chattanooga

Legal Aid of East Tennessee has partnered with BlueCross BlueShield of Tennessee and the law firm Miller & Martin to offer a free legal advice clinic on Sept.13, at 2 p.m., at the downtown office of BlueCross Blueshield, 1 Cameron Hill Circle, Chattanooga 37402. Individuals interested in meeting with a lawyer for free legal advice at this clinic should call Legal Aid of East Tennessee at 423 756-4013.

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Court Hands Down 2 ‘Bodily Injury’ Rulings

The Tennessee Supreme Court today clarified that motor vehicle insurance policies need not cover mental injuries when the insured has suffered no physical injuries. Parents of an 18-year old who was struck by a car sued for wrongful death and negligent infliction of emotional distress. They sought to recover money damages for their alleged mental injuries under the uninsured motorist provision of their insurance policy. The high court unanimously rejected that claim. Read more or download the court’s opinion. In a second opinion, the court ruled that when considering whether a victim has suffered a serious bodily injury, a jury should consider the injury that occurred rather than the injury that could have occurred or the manner in which it occurred. Read more or download the opinion and a separate concurring opinion in the case.

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Survivor of Colorado Shooting to Sue Theater, Studio, Doctors

A lawyer told reporters Tuesday he will bring suit against multiple parties on behalf of a survivor of Friday's mass shooting at an Aurora, Colo., premiere of The Dark Knight Rises. Beverly Hills-based attorney Donald Karpel told TMZ he will file on behalf of Torrence Brown Jr., who attended the midnight showing where the massacre took place. He plans to sue the Century Aurora 16 movie theater, Warner Bros. Entertainment and the doctors for alleged Colorado gunman James Eagan Holmes. WMC has the story

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Greer Elected West Tenn. TAJ VP

Memphis lawyer Thomas Greer, a partner in Bailey & Greer PLLC, has been elected vice president of the West Tennessee division of the Tennessee Association for Justice (TAJ). Greer practices in the areas of medical malpractice, personal injury, wrongful death, premises liability and police brutality. In an interview with the Memphis Daily News, Greer reflects on shifting trends in the legal profession and how TAJ is responding. “There’s a declining trend for the number of cases that go to trial," he says. "One of the missions of our association is to keep the courthouse open and level the playing field for the ordinary Tennessean. To try to make sure that future generations have the same constitutional rights that we grew up with and that we’ve had.”

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Court Clarifies When Plaintiffs May Add Back to a Suit

The Tennessee Supreme Court today, in Davey Mann et al v. Alpha Tau Omega Fraternity et al, clarified when plaintiffs may add back to a lawsuit involving comparative fault defendants previously named, but dismissed by a non-final order after the statute of limitations has run. In a unanimous opinion, the court held that a defendant dismissed by a non-final order is “not a party to the suit” for purposes of section 20-1-119 and may be added back to the lawsuit pursuant to section 20-1-119 if a timely-sued defendant files an answer alleging fault against the dismissed defendant. The Supreme Court remanded to the trial court for further proceedings. Learn more from the Administrative Office of the Courts

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General Sessions Candidates Give Views in Public Forum

Six of the seven candidates for Hamilton County General Sessions Court judge answered questions at a Wednesday public forum co-sponsored by the Times Free Press and Chattanooga Bar Association. The seat was left vacant after Judge Bob Moon's death. Joe DeGaetano, Valerie Epstein, Yolanda Mitchell, Ron Powers, Gary Starnes and Patricia Best Vital took part in the forum. Interim Sessions Judge David Norton, who is also a candidate, did not attend due to illness. With minor variations each of the candidates said they approved of recording proceedings and would closely scrutinize requests for a court-appointed attorney. All also said they would be accessible after hours to attorneys within the court rules for discussing cases. Read the details and see a picture

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'Loser Pays' Passes Senate

State senators yesterday approved legislation creating a "loser pays" system that allows judges to assess fees of up to $10,000 on plaintiffs who bring suits determined to have "no basis in fact or law." The vote was 17 to 12, with two Republican members who are also lawyers joining Democrats in opposition. The measure now heads back to the state House to approve minor Senate changes. The House originally passed the bill on Tuesday. WPLN.org has more

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House Passes 'Loser Pays' Bill

After more than two hours of debate, the Tennessee House voted 58-38 yesterday for a "loser pays" system that allows judges to assess fees of up to $10,000 on plaintiffs who bring suits determined to have "no basis in fact or law." Opponents contend the bill, HB 3124, will intimidate average citizens from going to court against big corporations. Several amendments were offered and defeated, including one that would have required defendants to pay plaintiff’s costs if their motions to dismiss are denied. The measure now goes to the Senate, where it was expected to be considered today. The News Sentinel has more

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Litigation Attorney Sought in Nashville

A statewide insurance and corporate defense firm is hiring an associate attorney for its Nashville office to handle personal injury and professional negligence claims. The ideal candidate would have two to three years experience managing and litigating cases in state and federal court. Responsibilities include conducting initial claims investigations, responding to lawsuits, handling motions, conducting discovery and going to trial. Learn more on Joblink

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House GOP Pushing Med Mal as Budget Fix

Republican leaders in the U.S. House of Representatives have revived a medical malpractice bill that caps non-economic damages at $250,000 and limits contingency fees as a way to reduce the federal budget and avoid cuts in defense spending. The House passed the bill in March, even though President Barack Obama said he would veto it and House Democrats say it will be dead on arrival in the Senate. But the bill was revisited during budget discussions this week after the Congressional Budget Office estimated it would reduce federal health care costs. The Blog of Legal Times reports

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Evans Petree Lawyers Found in Contempt

Davidson County Chancellor Ellen Hobbs Lyle held three Memphis attorneys in contempt of court and ordered them to repay nearly $670,000 to consumers who thought they were buying legitimate insurance products. The Tennessean reports that Lyle found that William L. Hendricks, Russell T. "Rusty" Hensley and Theodore T. Kitai – all with the Memphis firm Evans Petree PC – were founders and officers of a firm set up to continue to sell insurance and collect premiums after the state shut down two Springfield companies operated by a client of the attorneys. The companies were closed in March 2010 when investigators found they were operating without an insurance license and were not offering legitimate insurance policies.

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