News

Western Section Rules that Exacerbation May Not Necessarily Mean Causal Relation of Medical Charges

NORMAN HILL v. DANNY TAPIA, JR., ET AL.
Court: TN Court of Appeals

Attorneys:

James B. Johnson and Lauren Paxton Roberts, Nashville, Tennessee, for the appellant, Norman Hill.
C. Benton Patton, Nashville, Tennessee, for the appellees, Danny Tapia, Jr., and Tabet Enterprises.

David S. Zinn and Raney B. Cronin, Brentwood, Tennessee, for the appellee, Estate of Norma Aguila.

Judge: STAFFORD

This is a personal injury case resulting from an automobile accident. After the accident, Plaintiff/Appellant learned that he suffered from a degenerative disc disease, which required surgery. Appellant sued the two drivers involved in the accident for damages, which included his medical expenses for the disc surgery . At trial, Appellant’s surgeon’s deposition testimony was read to the jury, in which the surgeon testified that while the accident “aggravated” Appellant’s existing condition, the treatment he received was not “causally related” to the accident. Appellant offered another expert’s testimony, however, that did relate the treatment to the accident. At the close of proof, Appellant moved for a directed verdict on the issue of causation for his medical expenses, arguing that because the surgeon’s testimony was contradictory, it was subject to the cancellation rule. The trial court denied the motion and sent the issue to the jury. The jury returned a verdict for Appellant, but in an amount that did not include the medical expenses he incurred to treat the degenerative disc disease. Appellant was also awarded discretionary costs. After a careful review of the record, we affirm. 

.PDF Version of Case

Comment on this Article

read more »

Broken Families Make for Complicated Wrongful Death Claims, per the Middle Section

LATONY BAUGH, ET AL. v. UNITED PARCEL SERVICE, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

James S. Higgins, Nashville, Tennessee, for the Appellants, James Denzmore.

Dana C. Holloway and David A. Chapman, Knoxville, Tennessee, for the Appellees, United Parcel Service, Inc. and Jason Sanders.

H. Anthony Duncan, Nashville, Tennessee, for the Appellee, Latony Baugh.

Judge: DINKINS

Shortly after the mother of four children was killed in an accident, her husband instituted an action to recover damages for her death; the father of the children moved to intervene in the action and for the court to hold a hearing on whether the husband had abandoned the mother, thereby waiving his right as surviving spouse to participate in the wrongful death action. The trial court did not hold a hearing; rather, it held that the husband was the proper party to pursue the action, allowed the Guardian of the children to represent the interest of the children in the action, and dismissed Father’s petition. The surviving spouse, Guardian and tortfeasor subsequently petitioned the court for approval of a settlement of the wrongful death claim; the court granted the petition. Father appeals, contending that the court erred in failing to hold a hearing on the issue of whether the husband was estranged from the mother, in approving the settlement, and in placing the settlement documents under seal. We remand the case for a hearing on whether the husband waived his right as surviving spouse to participate in the wrongful death action and reverse the court’s placement of the settlement documents under seal; in all other respects the judgment of the trial court is affirmed.

.PDF Version of Case

Comment on this Article

read more »

Middle Section Reversed Award of Sanction in Med Mal Case for Alleged Abuse of Certificate of Good Faith

THERESA A. KERBY v. MELINDA J. HAWS, MD, ET AL.
Court: TN Court of Appeals

Attorneys:

Al H. Thomas, Memphis, Tennessee, for the appellant, Theresa A. Kerby.

Dixie W. Cooper, Kim J. Gruetzmacher, Nashville, Tennessee, for the appellees, Melinda J. Haws, MD, and The Plastic Surgery Center of Nashville, PLLC.

Judge: COTTRELL

A woman who suffered a series of persistent infections after surgery filed a malpractice complaint against the defendant surgeon. Her complaint alleged that the infections were cause by a small metal object that the defendant had negligently left in her body during the surgery. The plaintiff attached to her complaint the statutorily required certificate of good faith, which certified that she had consulted with an expert, who provided a signed statement confirming that he believed, on the basis of the medical records, that there was a good faith basis to maintain the action. See Tenn. Code Ann. § 29-26-122. After the object was discovered to be a surgical clip of a type that was designed to be retained by the patient’s body, the defendant filed a motion for summary judgment, which the plaintiff did not oppose. The defendant surgeon subsequently filed a motion for sanctions against the plaintiff under Tenn. Code Ann. § 29-26-122 (d)(3), which gives the court the authority to punish violations related to the certificate of good faith. The trial court granted the motion, and awarded the defendant doctor over $22,000 in attorney fees. We reverse.

.PDF Version of Case

Comment on this Article

read more »

If Appeals Might be in Your Future, Watch for Waiver of Evidentiary Issues...

ROSE A. CHAPMAN, ET AL. v. WELLMONT HOLSTON VALLEY MEDICAL CENTER
Court: TN Court of Appeals

Attorneys:

Wendal D. Jackson, Bristol, Tennessee, for the appellants, Rose A. Chapman and Alfred C. Chapman.

Russell W. Adkins, Kingsport, Tennessee, for the appellee, Wellmont Holston Valley Medical Center, a member of Wellmont Health System.

Judge: SWINEY

Rose A. Chapman and Alfred C. Chapman (“Plaintiffs”) sued Wellmont Holston Valley Medical Center (“the Hospital”) regarding a fall Ms. Chapman suffered while a patient at the Hospital. The Trial Court entered judgment upon the jury’s verdict finding and holding that the Hospital was not at fault. Plaintiffs appeal raising one issue regarding whether the Trial Court erred in granting the Hospital’s motion in limine to exclude testimony about an apology and offer to pay bills allegedly made by one of the Hospital’s nurses. We find this issue has been waived, and we affirm.

.PDF Version of Case

Comment on this Article

read more »

Court Rejects Medicare Challenge, Considers Class Action Limits

The U.S. Supreme Court this week turned away a challenge from former House Majority Leader Dick Armey and other Social Security recipients who say they have the right to reject Medicare in favor of continuing health coverage from private insurers. The justices did not comment in letting the federal appeals court ruling stand, reports The Memphis Daily News. Also this week, the court considered what limitations could be placed on class-action lawsuits. The issue is whether plaintiff lawyers reduce estimates of the damages they seek or use procedural loopholes to keep cases in state court, where according to Justice Antonin Scalia, “generous juries” and “very favorable judges” can be common. The justices appeared receptive to the argument that lawyers artificially lower the amount of money at stake to keep suits in state courts, reports the Washington Post.

read more »

Comptroller Announces New Online Fraud Tool

Tennesseans can now report suspected cases of fraud, waste and abuse of public funds at www.comptroller.tn.gov. The new service from the Office of the Comptroller compliments a toll-free telephone hotline that has been in existence since 1983 and has logged 17,000 calls. The Chattanoogan reports that the online tool was created in response to a new requirement passed by the General Assembly.

read more »

Pharmacy Blames Cleaning Company for Meningitis Outbreak

The Boston Globe reports that the New England Compounding Center -- the pharmacy linked to the nationwide meningitis outbreak -- is attempting to get its cleaning contractor to take responsibility for problems in its factory. The firm, UniFirst, acknowledges that a subsidiary helped clean portions of the pharmacy’s cleanroom facility, but a spokesperson called the claims “unfounded and without merit.”

read more »

Lawyer Seeks to Sue Connecticut Over School Shooting

A Connecticut attorney is requesting permission to sue the state over the Sandy Hook school shooting, saying his six-year-old client was left with emotional and psychological trauma because authorities failed to make the school safe. The attorney, Irving Pinsky, is seeking $100 million in damages on behalf of his client, a survivor of the shooting identified only as Jill Doe. The girl was at the elementary school during the attack and heard everything including gunfire, screaming and conversations over the intercom, Pinsky said. WCYB Channel 5 Bristol has this CNN report.

read more »

Judge Dismisses Suit Against NFS

A federal judge dismissed an 18-month old class action lawsuit against Erwin-based Nuclear Fuel Services (NFS) and other defendants, the Johnson City Press reports. Filed in June 2011, the suit alleged injuries, property damage and emotional distress suffered by 19 plaintiffs caused by “repeated releases of hazardous and radioactive substances” by NFS.

read more »

Toyota Proposes $1.1 Billion Settlement

Toyota Motor Corp. has agreed to pay $1.1 billon to settle a class-action lawsuit over claims that millions of its vehicles from 1998 to 2010 accelerate unintentionally. The settlement will compensate Toyota customers for any financial losses related to possible safety defects in their vehicles. Toyota admitted no fault in the proposed settlement. The Nashville Business Journal has more.

read more »

So Who's the Dipstick Now? Eastern Section Affirms $120K Verdict for Employee in Retaliatory Discharge Case

KEVIN MICHAEL JORDAN v. A.C. ENTERPRISES, INC., A/K/A DIPSTICK, INC.
Court: TN Court of Appeals

Attorneys:

Bradley E. Griffith, Johnson City, Tennessee, for the appellant, A.C. Enterprises, Inc., a/k/a Dipstick, Inc.

Sandra Lee Stanbery-Foster, Greeneville, Tennessee, for the appellee, Kevin Michael Jordan.

Judge: FRANKS

Plaintiff's action for retaliatory discharge resulted in a jury verdict in favor of plaintiff and an award of $120,000.00. Defendant appealed. We affirm the Judgment of the Trial Court upholding the jury verdict.

.PDF Version of Case

Comment on this Article

read more »

Tolling Provisions of State of Limitations Do Not Apply in GTLA Cases, Eastern Section Rules

BETTY LOU LAWING v. GREENE COUNTY EMS, et al.
Court: TN Court of Appeals

Attorneys:

Jeffrey M. Ward, Greeneville, Tennessee, for the appellants, Greene County/Greeneville EMS and Greene County, Tennessee.

R. Wayne Culbertson, Kingsport, Tennessee, and Wayne Ritchie, Knoxville, Tennessee, for the appellee Betty Lou Lawing.

Arthur P. Brock and William J. Rieder, Chattanooga, Tennessee, for Chattanooga-Hamilton County Hospital Authority.

Judge: FRANKS

In this action the defendants filed a Motion for Summary Judgment on the grounds the statute of limitation had run on plaintiff's cause of action. The Trial Court overruled the Motion on the grounds that the tolling provisions in Tenn. Code Ann. § 29-20-201(c) was applicable to GTLA actions and granted permission to appeal pursuant to Tenn. R. App. P. 9. On appeal, we hold that the tolling provision does not apply because the statute did not expressly extend it to GTLA actions.

.PDF Version of Case  

Comment on this Article

read more »

Opinion: Tort Law Likely to Get Day in Court Soon

Knoxville lawyer Deborah Stevens, president and managing shareholder of Lewis, King, Krieg & Waldrop, writes in Knoxnews.com that the Tennessee Civil Justice Act of 2011 is likely headed for a courtroom soon as challenges to the law are winding their way through the system. She points to one specific case pending in the Middle District of Tennessee, which could expedite review of the law. In addition to asserting that the law is unconstitutional, the case asks the federal judge to “certify” the question to the Tennessee Supreme Court. If the judge were to do so, the case would be "fast-tracked" to the court.

read more »

Company Wants Meningitis Cases Moved to Federal Court

Lawyers for the New England Compounding Center -- blamed for a deadly nationwide outbreak of fungal meningitis -- are moving forward with a strategy to consolidate lawsuits in a Boston federal court. Records show that 37 cases originally filed in state and county courts already have been transferred to federal courts across the country at the request of company lawyers. That includes six suits filed in Nashville circuit court. Three Nashville legal experts talk about the process in this Tennessean story.

read more »

Collateral Source Rule Examined in New TBJ

In the December Tennessee Bar Journal, Nashville lawyer Bill Walton writes why he believes the Collateral Source Rule should probably be reexamined. President Jackie Dixon talks with some former lawyer-legislators and studies the sacrifice a person makes to run for office, but also the need for more lawyers to serve. There is a lot more in this issue, including civil jury trials, banking and estate planning. Read it online or look in the stack of your weekend mail for the printed copy.

read more »

No Bad Faith by TFMIC in Denying Bank's Fire Claim for Failure to Notify of Foreclosure

U.S. BANK, N.A., AS SERVICER FOR THE TENNESSEE HOUSING DEVELOPMENT AGENCY v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY

Court: TN Court of Appeals

Attorneys:

Charles L. Trotter, Jr., Huntingdon, Tennessee, for the appellant, Tennessee Farmers Mutual Insurance Company.

Michael F. Rafferty, Memphis, Tennessee, for the appellee, U.S. Bank, N.A., as Servicer for Tennessee Housing Development Agency.

Judge: FARMER

U.S. Bank, N.A. (“Bank”) had a mortgage on a residence which was insured against fire loss by Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”). When the owner of the residence failed to pay the mortgage, the Bank commenced foreclosure proceedings. Thereafter, the owner filed for bankruptcy which stayed the foreclosure proceedings. After the residence was destroyed in a fire, the Bank filed a claim to recover the insurance proceeds. Tennessee Farmers refused to pay the claim. As a result, the Bank filed suit against Tennessee Farmers alleging breach of contract, bad faith refusal to pay an insurance claim, and unfair or deceptive practices under the Tennessee Consumer Protection Act (“TCPA”). The trial court granted partial summary judgment to the Bank, concluding that the Bank's failure to give Tennessee Farmers notice of the foreclosure proceedings did not invalidate the insurance coverage. On appeal to this Court, we reversed, finding that the Bank’s commencement of foreclosure proceedings amounted to an increase in hazard under the policy and the Bank’s failure to provide notice precluded coverage. After granting the Bank’s application for permission to appeal, the Supreme Court reversed the judgment of this Court, and held that commencement of foreclosure proceedings did not constitute an increase in hazard under the terms of the insurance policy or the applicable statutory provisions, and therefore, the Bank was not required to give notice to Tennessee Farmers. U.S. Bank, N.A. v. Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381 (Tenn. 2009). Subsequently, on remand from the Supreme Court, the trial court entered a judgment in favor of the Bank for the amount due on the mortgage plus accrued interest. The trial court further awarded the Bank attorney’s fees and costs based on its finding that Tennessee Farmers’ interpretation of the policy, that the Bank was required to provide them with notice of the commencement of foreclosure proceedings, amounted to bad faith and an unfair act or practice under the TCPA. After thoroughly reviewing the record, we reverse and remand.

PDF Version of Case

Comment on this Article

read more »

Excessive Delay in Prisoner Release Subjects County to Liability for Jail Assault

KENNETH E. KING v. ANDERSON COUNTY, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Jonathan Swann Taylor, Knoxville, Tennessee, for the appellant, Anderson County, Tennessee.

Bruce D. Fox and John A. Willis, Clinton, Tennessee, and Ronald C. Koksal, Knoxville, Tennessee, for the appellee, Kenneth E. King.

Judge: SUSANO

Kenneth E. King was arrested for driving on a revoked license. He was put in a cell with several violent criminals. At his arraignment, the court ordered him released. The person charged with processing the release delayed his release by simply doing nothing. While awaiting his release, Mr. King was assaulted by one of his cellmates. He sustained serious injuries, including partial loss of vision in one eye. He filed this action against Anderson County (“the County”). After a bench trial, the court found the County 55% at fault and King 45% at fault for provoking the assault. It determined that the total damages were $170,000 reduced to $93,500 to account for King’s comparative fault. The County appeals. We affirm.

.PDF Version of Case

Comment on this Article

read more »

Western Section Clarifies that Settlement Conference Agreements are Binding

PNC MULTIFAMILY CAPITAL INSTITUTIONAL FUND XXVI LIMITED PARTNERSHIP, ET AL. v. CARL MABRY
Court: TN Court of Appeals

Attorneys:

Venita Marie Martin, Memphis, Tennessee, for the appellant, Carl Mabry.

Robert L. Crawford and Joseph B. Reafsnyder, Memphis, Tennessee, and Charles L. Perry, Dallas, Texas, for the appellees, PNC Multifamily Capital Institutional Fund XXVI, Limited Partnership; PNC Multifamily Capital Institutional Fund XXX, Limited Partnership; PNC Multifamily Capital Institutional Fund XXI, Limited Partnership; Columbia Housing SLP Corporation; Eagles Landing Apartments, L.P.; April Woods Apartments, L.P.; and Harmony Woods Apartments, L.P.

Judge: STAFFORD

Appellant takes exception to the trial court’s order, enforcing a settlement agreement. Following a judicial settlement conference, the parties signed a written agreement, which contemplated the execution of more formal settlement documents. When the formal documents were presented to Appellant, he refused to sign. Upon Appellees’ motion, the trial court enforced the settlement and Appellant appeals. Discerning no error, we affirm.

.PDF Version of Case

Comment on this Article

read more »

Summary Judgment is Reversed Due to Misapplication of Both TRE 702 and Locality Rule

SHIRLEEN NEVELS v. JOSEPH CONTARINO, M.D. ET AL.
Court: TN Court of Appeals

Attorneys:

Eileen M. Parrish, Nashville, Tennessee, for the appellant, Shirleen Nevels.

Robert M. Burns and C. Mark Harrod, Nashville, Tennessee, for the appellee, Joseph Contarino, M.D.

Brian Essary, Darrell Gene Townsend, and Alan Stuart Bean, Nashville, Tennessee, for the appellee, Hillside Hospital, LLC.

Judge: BENNETT

The trial court dismissed this medical malpractice claim on the defendants’ motion for summary judgment and motion to dismiss, after excluding the testimony of the plaintiff’s expert witness. Because the trial court erred in its application of the locality rule and Rule 702 of the Rules of Evidence, we reverse.

PDF Version of Case

Comment on Article

read more »

Reside There?? Not if That Means This Loss Would Be Excluded ...

COTTON STATES MUTUAL INSURANCE COMPANY v. JAMI McNAIR TUCK, ET AL.
Court: TN Court of Appeals

Attorneys:

David L. Franklin, Chattanooga, Tennessee, for the appellant, Cotton States Mutual Insurance Company

J. Allen Brinkley, Derek W. Simpson, Huntsville, Alabama, for the appellees, Jamie McNair Tuck, et al.

Judge: HIGHERS

An insurance company filed a declaratory judgment action seeking a declaration that mother and child were residents of the insured’s household, and therefore, that coverage for the death of the child was excluded by the relevant homeowner’s insurance policy. The chancery court found that mother and child were not residents of the insured’s household at the time of the child’s death, and we affirm.

.PDF Version of Case

Comment on this Article

read more »

Lawmakers Issue Subpoena for Meningitis-linked Pharmacy Director

Congressional lawmakers have issued a subpoena for the director of the Massachusetts pharmacy linked to the deadly meningitis outbreak, the Elizabethton Star reports. The subpoena came after a lawyer for Barry Cadden, co-founder of New England Compounding Center --  where the contaminated steroid shots were distributed from -- told lawmakers he would not voluntarily attend a congressional hearing.

read more »

Summary Judgment for Wal-Mart is Reversed Where Impaired Customer Hurts Another Parking Lot Patron

JOLYN CULLUM, ET. AL. v. JAN McCOOL, ET. AL.
Court: TN Court of Appeals

Attorneys:

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

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

Judge: MCCLARTY

This is a negligence case in which Jolyn Cullum and Andrew Cullum sued Jan McCool, William H. McCool, and Wal-Mart for injuries arising in a Wal-Mart parking lot. Wal-Mart filed a motion to dismiss, alleging that the Cullums had failed to state a claim upon which relief could be granted. The trial court dismissed the suit against Wal-Mart. The Cullums appeal. We reverse the decision of the trial court and remand the case.

.PDF Version of Case

Comment on this Article

read more »

Supreme Court Considers Limitations on Class-Action Suits

The Supreme Court appears divided on two cases limiting class-action lawsuits against biotech company Amgen Inc. and cable provider Comcast Corp. Class actions increase pressure on businesses to settle suits because of the cost of defending them and the potential for very large judgments. Amgen and Comcast are seeking requirements for plaintiffs to prove more of their case earlier in the process in order to reduce the number of class-action suits. The court should decide both cases by June. The Memphis Daily News has the story. 

read more »

UM Carrier's Right to Defend in its Own Name Affirmed by East Section--Along with Finding of no Physical Contact

SHERRY HUTSON v. SAFE STAR TRUCKING ET AL.

Court: TN Court of Appeals

Attorneys:

Thomas D. Dossett, Kingsport, Tennessee, for the appellant, Sherry Hutson.

S. Curtis Rose, Kingsport, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company.

Judge: SUSANO

In this case, Sherry Hutson filed a complaint in which she alleged her vehicle was struck by a tractor-trailer (“the tractor”) that left the scene of the accident. She seeks to recover under the uninsured motorist (“UM”) provisions of a policy providing coverage to the vehicle she was driving. The jury found that no “actual physical contact ha[d] occurred between” the plaintiff’s vehicle and the vehicle that left the scene. She appeals. We affirm.

PDF Version of Case

Comment on this Article

read more »

Rape by Private Probation Officer Not Foreseeable by County That Failed to Insure Proper Licensure, Per Easter Section

CANDACE YOUNG v. WASHINGTON COUNTY, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Tony Seaton and Robert Bales, Johnson City, Tennessee, for the appellant, Candace Young.

John Rambo, Jonesborough, Tennessee, for the appellee, Washington County, Tennessee.

read more »