Tennessee Supreme Court Eases One Pre-suit Procedural Requirement for Bringing Medical Malpractice Claims.

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Although the plaintiff ultimately lost the appeal, the Tennessee Supreme Court has granted some small relief from the onerous pre-suit procedural requirements of Tennessee’s 2011 healthcare liability law holding that only substantial compliance with the provision directing a plaintiff to furnish potential defendants with a medical authorization will be required, Stevens v. Hickman Community Health Care Services, Inc. No. M2012-00582-SC-S09-CV (11/25/13).  However the plaintiff, a widow in a wrongful death action, gave proper pre-suit notice, but failed to provide any authorization other than her own for release of the records, and therefore failed to even substantially comply.


“Tenn. Code Ann. § 29-26-121(a) establishes six separate requirements that serve related yet ultimately distinct goals. First, Tenn. Code Ann. § 29-26-122(a)(1) contains an express notice requirement that requires plaintiffs to give defendants written notice that a potential healthcare liability claim may be forthcoming. In contrast, Tenn. Code Ann. §§ 29-26-122(a)(2)(A)-(C) facilitate early resolution of healthcare liability claims by requiring plaintiffs to advise defendants who the plaintiff is, how to reach him or her, and how to contact his or her attorney. Lastly, the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(D) and Tenn. Code Ann. § 29-26-121(a)(2)(E) serve an investigatory function, equipping defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.”


“A plaintiff’s less-than-perfect compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), however, should not derail a healthcare liability claim. Non-substantive errors and omissions will not always prejudice defendants by preventing them from obtaining a plaintiff’s relevant medical records. Thus, we hold that a plaintiff must substantially comply, rather than strictly comply, with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E).”


ERISA Plan Ordered to Pay Penalties for Not Providing Documents to Plaintiff

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In Hartman v. Dana Holding Corp., (N.D. IN, 10/21/13) 1:12-CV-445, the court assessed penalties of $4,470 against an ERISA plan for refusing to provide historical documents requested by the plaintiff. The applicable documents related to the deceased’s “survivor annuity” and were in effect 1979. The ERISA plan refused to comply with plaintiff’s request on the basis that part of the language of 29 U.S.C. 1024(b)(4) encompasses “latest updated summary, summary plan description, and the latest annual report.” But, the court rejected that argument stating,

But § 1024(b)(4) also requires that a plan administrator furnish “other instruments under which the plan was established or operated.”

And also stating,

Here, the 1979 Plan document and SPD are critical to Mrs. Hartman’s understanding of her rights and eligibility. These documents control not only whether the Plan required spousal consent to elect against a survivor annuity in 1979, but also what fiduciary duties the Plan owed to Mr. Hartman before he made his election.

ERISA plans are often difficult to deal with, so it is important to put them on the defensive by requesting plan documents when the plan asserts a subrogaton or reimbursement claim in a personal injury case by requesting all documents within the scope of 29 U.S.C. 1024(b)(4), which provides:

“The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies.”

In Trucking Cases, Can a Claim for Negligent Entrustment,Hiring or Retention Survive Summary Judgment if the Carrier Admits Responsibility for Its Driver’s Acts and Omissions?

By | Trucking | No Comments

In Kelley v. Blue Line Carriers, 300 Ga. App. 577, 580-581 (2009), the Georgia Court of Appeals held:

“”. . . when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention. The rationale for this is that, since the employer would be liable for the employee’s negligence under respondeat superior, allowing claims for negligent entrustment, hiring, and retention would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer. An exception exists for this general rule, however, where a plaintiff has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee or entrusting a vehicle to such employee. In such case, it cannot be said that the negligence claims against the employer are merely duplicative of the respondeat superior claim. Underthese circumstances, the employer is not entitled to summary judgment on the negligent entrustment, hiring, and retention claims”.

In order to support a claim for punitive damages against an employer based on its independent negligence, however, the plaintiff must present “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.””

So, in Georgia the answer appears to be No, unless punitive damages are alleged and can survive a motion for summary judgment.



Removal of trucking case to Federal Court allowed more than one year after filing where Plaintiff was found to have acted in bad faith.

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In an interesting trucking case, Cameron v. Teeberry Logistics, 920 F. Supp. 2d 1309 (2013 N.D. Ga.) the district court permitted removal of a case filed in Troup State Court over a year after it was filed alleging that the amount in controversy was less than $50,000.  Through discovery it was revealed that the plaintiff was claiming medical expenses of $62,432.45, and that her doctor was recommending back surgery.  Subsequently the medical total expense increased to $91,413.75.  The case was set for mediation, and prior to mediation plaintiff’s counsel demanded $575,000 to settle.  The demand for $575,000 was made one year and four days after the lawsuit was filed.  Mediation failed and the defendants removed the case to federal court, more than one year after it was commenced.  Plaintiff moved to remand, arguing that the removal came too late under 28 U.S.C. § 1446(b)(3).  Under that statute, the defendant must file notice of removal within 30 days of when he first ascertains that the action is removable.  To remove a case that was not initially removable but later becomes removal, the defendant has to file the notice no “more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c).

The District Court found that the plaintiff acted in bad faith and allowed the removal to stand:

“First, Cameron specifically pled that this case was not removable, knowing that her pleading is “entitled to deference” by a district court and has “important legal consequences” regarding federal removal jurisdiction. Burns, 31 F.3d at 1095. Second, she failed to amend her complaint, or otherwise notify Defendants that she considered the amount in controversy to be over $75,000, therefore allowing Defendants to continue to rely upon her representation that she was seeking no more than $50,000 in damages. Third, she sent the time-limited demand letter exactly one year and four days after commencement of this suit, thus ensuring that the one-year limitation of § 1446(c) would be a potential hurdle to Defendants’ removal. Taken together, these actions show bad faith in preventing Defendants from removing this case.  Cf. Bolton v. U.S. Nursing Corp., No. C 12-4466LB, 2012 U.S. Dist. LEXIS 152387, 2012 WL 5269738, at *5 (N.D. Cal. Oct. 23, 2012) (“[A] plaintiff’s refusal to stipulate to damages less than the amount in controversy is not evidence of bad faith and forum shopping.”). Thus, despite the one-year time limitation of § 1446(c), Defendants’ removal is proper.”

Nice try by plaintiff’s counsel, but it goest to show that you can’t have your cake and eat it too!

Tennessee Supreme Court Addresses Damages

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We entrust the responsibility of resolving questions of disputed fact, including the assessment of damages, to the jury. An award of damages, which is intended to make a plaintiff whole, compensates the plaintiff for damage or injury caused by a defendant’s wrongful conduct.  A plaintiff may be compensated for any economic or pecuniary losses that naturally result from the defendant’s wrongful conduct.  Economic damages include out-of-pocket medical expenses, future medical expenses, lost wages, and lost earning potential. The plaintiff bears the burden of proving damages to such a degree that, while perhaps not mathematically precise, will allow the jury to make a reasoned assessment of the plaintiff’s injury and loss.

A plaintiff is also entitled to recover compensatory damages for non-economic loss or injury. “Non-economic damages include pain and suffering, permanent impairment and/or disfigurement, and loss of enjoyment of life.” Damages for pain and suffering are awarded for the physical and mental suffering that accompany an injury. Damages awarded for loss of enjoyment of life are intended to compensate a plaintiff for the impairment of the ability to enjoy the normal pleasures of living. Assigning a compensable, monetary value to non-economic damages can be difficult. The assessment of non-economic damages is not an exact science, nor is there a precise mathematical formula to apply in determining the amount of damages an injured party has incurred.  Thus, a plaintiff is generally not required to prove the monetary value of non-economic damages.

Meals v. Ford Motor Company, 2013 Tenn. Lexis 702 (Tenn. Aug. 30, 2013)(Citations omitted throughout)

Does O.C.G.A. § 51-12-33 allow apportionment of fault to an unidentified contractor?

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The Georgia Supreme Court has held that O.C.G.A. § 51-12-33 does allow apportionment of fault to an unidentified criminal assailant, Couch v. Red Roof Inns, Inc., 291 Ga. 359, 361 (2012).  But the Defendant must produce competent evidence of negligence and causation on the part of the nonparty before the jury can consider apportioning fault to a nonparty.  See Union Carbide Corp. v. Fields, 315 Ga. App. 554 (2012), where the Court of Appeals held that:

“ . . . the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact ‘contributed to the alleged injury or damages’” (Emphasis supplied)

315 Ga. App. at 559.

In a premises liability case, the owner of the property will often blame the contractor who built the defective stairs, ramp, etc.  However, in a Georgia case, where the Defendant cannot identify the contractor, or cannot prove what the contractor undertook to do, or cannot produce a contract defining the scope of the work, it is difficult to see how a Defendant can present competent evidence of nonparty fault.   

New Procedure for Settlement Demands to Insurance Companies Now in Effect in Georgia

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For Georgia motor vehicle wreck cases arising after July 1, 2013, a new procedure is now in effect which was designed to give insurance companies adequate but not unreasonable time to respond to a pre-suit settlement demand by an injured party without being subjected to a subsequent bad faith claim for failing to settle the case within policy limits.  

The new Code Section, O.C.G.A. § 9-11-67.1, provides a minimum of 30 days for a defendant (or his liability insurance company) to respond to a settlement offer made before suit is filed, in case arising from the use of a motor vehicle.  The new law allow the insurance adjuster “to seek clarification regarding terms, liens, subrogation claims, standing to release claims, medical bills, medical records, and other relevant facts,” without that being deemed a counteroffer.  The demand must be sent by “certified mail or statutory overnight delivery, return receipt requested” and shall specifically reference the new Code section.  This new procedure applies only in personal injury or death cases arising from the use of a motor vehicle.  Lawyers should exercise caution in making settlement demands under the new procedure, to ensure compliance, and to preserve a possible bad faith claim against the liability insurer if it refuses to pay the claim in the amount demanded.

Click here to review the complete text of the new law.

Retaliation under Title VII

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In Vance v. Ball State University, (June 24, 2013), the U.S. Supreme Court held that to prove a retaliation claim under Title VII, a plaintiff must show that the adverse action would not have occurred “but for” the employer’s improper retaliatory motive. The Court further held that to be considered a supervisor for purposes of workplace employer liability, the individual must have the power to hire, fire, fail to promote, reassign, or cause a significant change in benefits to the individual.

Recreational Use Statute

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In Wilson v. Dossett, 2013 Tenn.App. Lexis 389 (Tenn.Ct.App. June 13, 2013), the court addressed the applicability of TCA 70-7-102 to a case where the plaintiff suffered severe injuries in an accident while operating a motorcycle on a trail located on the defendant’s property.  The reviewing court held that TCA 70-7-102 protected the defendant from liability because the plaintiff was engaged in recreational activities on the defendant’s property.

TCA 70-7-102 provides:

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant’s own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant’s own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

In Wilson, the plaintiff unsuccessfully argued that the statute did not apply where the landowner created or maintained the propertywhich in this instance, consisted of launch ramps on the premises used by riders to jump their motorcycles.  The plaintiff’s injuries occurred while jumping a series of ramps, possibly constructed or built by the defendant.

The Plaintiff also argued that the statute only applied to the State of Tennessee.  The Court rejected said argument.

The Court held that the activity of riding a motorcycle “constituted recreational activity under the statute.”

The Court concluded as follows:

The facts of this case are troubling in that a young man received a severe injury while engaged in a recreational activity. However, our General Assembly made the policy decision with respect to liability, as it has the authority to do, by enacting Tenn. Code Ann. § 70-7-101 et seq. to provide a defense for landowners in circumstances such as  these. Wilson availed himself of Dossett’s property for the recreational purpose of riding a motorcycle. This activity falls squarely within the parameters of the statute’s protection for landowners. Additionally, there was no gross negligence in this case that would serve to negate the affirmative defense available to Dossett. When viewing the facts in the light most favorable to Wilson, we conclude, as did the Trial Court, that summary judgment is appropriate in this case. We affirm the judgment of the Trial Court.

Trial Procedure in Tennessee

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An interesting case was decided by the Court of Appeals last week. Unfortunately, in Tennessee, there are not very many cases dealing with trial procedure and conduct.  When a case is decided that addresses such issues, trial lawyers take note.

In Ardry v. Home Depot USA, Inc., No. M2012-02667 (Tenn.Ct.App. July 10, 2013), the plaintiff was operating a bucket truck at a Home Depot.  An employee for Home Depot driving a heavy duty truck collided head on with the Plaintiff.  The jury returned a verdict in the amount of $809,241.24.  On appeal, the defendant made three arguments.  First, the defendant argued that the trial court failed to act as the 13th juror.  Second, the defendant argued that the plaintiffs’ attorney made improper comments and arguments to the jury.  And finally, the defendant argued that the jury award for loss of earning capacity was not supported by the evidence.

Addressing the first issue, the reviewing court noted that the trial court has a duty to “independently weight the evidence” and “decide whether the jury’s verdict is supported by the evidence.”  The Court cited a number of cases where the trial court failed to fulfill its role as thirteenth jury.  Basically, if the trial court simply defers to the jury, such action is improper.  For example, if the trial court indicates, “I’m not inclined to interfere with the verdict of the jury”, the court will not have fulfilled the duty of acting as the thirteenth juror.  In this case, the reviewing court held that the trial court acted properly.

With regard to the comments made by plaintiff’s counsel, a summary is as follows:

  1. Earning Capacity:  The plaintiffs’ attorney told the jury during closing argument to award between $643,000 and $698,000 for future earning capacity, stating that if the jury returned a verdict outside of that range, it might “cause problems in the future with your verdict, and I don’t want it to be destroyed.”  The reviewing court held that such comments were not inappropriate and did not affect the outcome of the trial.
  2. Personal Opinion:  When describing an expert witness, the plaintiffs’ attorney stated: “He seemed believable to me.”  Home Depot argued that said comment, and another comment concerning the plaintiffs, “vouched for the credibility” of the witnesses.  Home Depot, however, did not object to these comments during the trial.  Thus, the Court considered the “issue waived.”
  3. Attacks on the Defendant: When Home Depot Answered the Complaint at the beginning of the case, they denied liability.  Right before trial, they admitted liability.  During his closing argument, the plaintiffs’ attorney referenced the fact that Home Depot had changed its position.  The reviewing court dismissed Home Depot’s arguments because there was no objection at trial.
  4. Facts not in Evidence:  During his closing argument, plaintiffs’ counsel made comments about degenerative disk disease, and also gave an example of advice he had given a friend of his that was in a car wreck.  The reviewing court rejected Home Depot’s arguments because “there was medical expert testimony consistent with counsel’s statements concerning degenerative disc disease; and the anecdote concerning counsel’s friend was offered as an analogy, not as fact testimony.  In any event, Home Depot did not object to these comments during the trial, and we consider them to be waived.”

In conclusion, the reviewing court determined that the evidence was sufficient to support the verdict.


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