Fraudulent Concealment Exception to Medical Malpractice Statute of Limitations and Statute of Repose in Tennessee

 In Robinson v. Baptist Memorial Hospital, No. W2013-01198-COA-R3-CV (July 11, 2014), the court addressed the fraudulent concealment exception to the statute of limitations and statute of repose for medical negligence actions in Tennessee.  In this case, the defendant doctor erased the initial version of his consult note and changed his initial, incorrect, diagnosis of the decedent.  During discovery, the plaintiff learned of this change and was granted leave to amend the complaint to add the defendant doctor and his medical practice as defendants.  This amended complaint was filed around five years after the initial lawsuit was filed – outside of the one-year statute of limitations and three-year statute of repose for medical negligence claims in Tennessee.

Under Tennessee law, the doctrine of fraudulent concealment will toll the running of a statute of limitations.  It tolls the statute when a defendant has taken steps to prevent the plaintiff from discovering that he was injured.  There are four elements that must be met to prove fraudulent concealment:

(1) that the defendant affirmatively concealed the plaintiff’s injury or the identity of the wrongdoer or failed to disclose material facts regarding the injury or the wrongdoer despite a duty to do so;

(2) that the plaintiff could not have discovered the injury or the identity of the wrongdoer despite reasonable care and diligence;

(3) that the defendant knew that the plaintiff had been injured and the identity of the wrongdoer; and

(4) that the defendant concealed material information from the plaintiff by withholding information or making use of some device to mislead the plaintiff in order to exclude suspicion or prevent inquiry.

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 462-63 (Tenn. 2012).

When these conditions are met, “[t]he statute of limitations is tolled until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered the defendant’s fraudulent concealment or sufficient facts to put the plaintiff on actual or inquiry notice of his or her claim.”  Id. at 463.  The statute of limitations runs from the point at which the plaintiff discovers or should have discovered the claim and the plaintiff must file the claim within the statutory limitations period.  Id.

Usually the question of whether a plaintiff exercised reasonable care and diligence in discovering the injury or wrong is one of fact for the jury; however, where the undisputed facts show that no reasonable trier of fact could conclude a plaintiff did not know or should not have known about an injury or wrong, Tennessee law provides for dismissal of the lawsuit on the pleadings or through summary judgment. 

The court of appeals found that the trial court in Robinson based its grant of summary judgment on two grounds – the plaintiffs’ failure to aver facts sufficient to show that the doctor fraudulently concealed any material fact or to create a fact dispute as to fraudulent concealment, and that the plaintiffs were not diligent in discovering the alleged injury when they had discovery materials containing the information within the limitations period.

The court of appeals first analyzed the evidence presented by the plaintiffs to establish fraudulent concealment.  The court found that under the summary judgment standard, which requires the court to review the evidence in the light most favorable to the nonmoving party and to draw all reasonable inferences in favor of the nonmoving party, that an issue of fact exists with regard to whether the defendant doctor’s action in erasing the initial version of his consult note was a violation of the standard of care which would allow an inference of fraudulent concealment.  The court found that the inference is “somewhat tenuous, but it is not outside the realm of reasonableness” and concluded that the trial court erred in granting summary judgment on the ground of lack of evidence of fraudulent concealment.

However, the court went on to find that, giving the nonmoving party the most favorable reading of the facts and giving every inference in their favor, the plaintiffs had the information about the changed diagnosis in their possession on July 22, 2010, and therefore should have known of the wrong as of that date.  The court found this would extend the statute of limitations to July 22, 2011, but that due to the pre-suit notice requirement, that limitations period would be further extended for 120 days to November 19, 2011.  The plaintiffs did not file their complaint until February 1, 2012 and therefore, the court found that the suit was filed well outside of the adjusted statute of limitations and repose period.  Thus, the court of appeals affirmed the dismissal of the case.  

As it should have.  

Train Wreck. Divorce Trial. But I Repeat Myself

This is a decision about a divorce trial but we are reviewing it on Day on Torts because we always write about cases involving train wrecks.

Seriously, we will cover this case because it contains some useful reminders about (1) a party’s obligation when briefing issues on appeal; (2) the appropriateness of a court’s use of findings of fact and conclusions of law submitted by a party; and (3) discovery sanctions.   The opinion is 31 pages long and a large portion of those pages are related to the tortured procedural history in the trial court. Rather than recount the history, below is just enough to give you a flavor of what the trial court was confronted with:

1.       The parties had been married 32 years and had 3 grown children.

2.      Wife engaged in a lengthy extramarital affair and Husband filed for divorce.

3.      During the marriage, the parties had lived on substantial passive income from Husband’s interests in several family businesses.  Wife sought to characterize that income as marital property.

4.      During the divorce proceedings, Wife hired 7 different lawyers, requested five continuances of the trial and filed five motions to compel discovery, eight motions for civil contempt or sanctions, and one motion to reconsider for discovery non-compliance.

5.      Wife served four sets of interrogatories and five sets of production of documents. Other discovery was also served but it was ultimately quashed. The primary goal of all this discovery was to allow Wife’s consulting experts to value Husband’s business interests and to attempt to establish the business interests were marital property.

6.      In an effort to resolve the seemingly never-ending discovery war, the trial court ordered the parties experts to meet and confer and conduct two document reviews in Arkansas at one of the family businesses at issue.

7.      In response to Wife’s discovery, Husband produced over 20,000 pages of documents, signed releases for documents not in his possession and offered at least 4,000 other documents for review and copying.

8.      Shortly before trial, Wife switched consulting experts and ultimately failed to provide proper expert disclosures by the deadline in the trial court’s scheduling order.

9.      Although Wife tried to cure the problem by filing late disclosures, the trial court granted Husband’s motion to exclude her experts.

10.   At trial, the trial court awarded a divorce based on Wife’s adultery. The family business were classified as separate property and the marital estate was divided equally. Wife was awarded significant home furnishings and nearly $1.1 million dollars in cash. She was also awarded alimony in the amount of $8,000 per month for 10 years.

11.   Husband was awarded $100,000 as sanctions for wife’s abuse of the discovery process.

On appeal, Wife raised several issues. First, she argued the trial court abused its discretion by “plagiarizing” Husband’s proposed findings of fact and conclusions of law without regard to the factual and legal errors they contained. Because the trial judge was scheduled to leave the bench, Wife claimed he had hurriedly adopted the Husband’s submission and failed to conduct an independent review. As for the issue of the trial court using a party’s submission, the Court of Appeals noted it was a “long-standing practice in this state for a trial court to request the parties submit finding and fact and conclusions of law and orders following a hearing or trial on the merits.” The Supreme Court had previously approved of such a practice if the following conditions were met: (a) the trial court does not require the parties to prepare the order or proposed findings; (b) the trial court carefully reviews the submission to ensure it properly reflects the court’s opinion; (c) the order disposes of all relevant issues ; (d) and irrelevant matters are not included. The Court of Appeals found it significant that more than 3 months passed between the conclusion of the trial and the entry of the final judgment, Wife had failed to offer a single citiation to the record to support her allegations and the trial judge had modified the Husband’s proposed findings of fact and conclusions of law which indicated he had carefully reviewed the matter to ensure it reflected his opinion.

Wife’s next issues on appeal were as follows:

II. This court should rule on all aspects of this case based upon a de novo review.

II. This court should enter findings of fact pursuant to Tenn. Code. Ann. §27-1-113.

Not surprisingly, the Court of Appeals found these issues to be inadequate pursuant to the Tennessee Rules of Appellate Procedure and instead declared them to be an unacceptable invitation for the Court to hunt for error. The Court of Appeals reminded litigants that for an issue to be appropriately presented for review that it must specifically outlined in the brief and supported by citations to the record or legal authority. Despite Wife’s failure to properly develop reviewable issues, the Court of Appeals deduced some issues from the briefs. The only ones we will address relate to discovery sanctions; we are not reviewing those dealing with the division of marital property and alimony.

As for discovery sanctions, Wife contended it was error for the trial court to deny her motion for sanctions on the eve of trial and she also took issue with the trial court’s award of a $100,000 sanction against her for discovery abuse. In her motion for sanctions, Wife had asked for the “severest sanction” for Husband’s delay in producing documents, his perjury and unclean hands and for denying her right to a fair trial. As a sanction, Wife requested Husband’s business interests be classified as marital property. After reviewing Tennessee Rule of Civil Procedure 37.02 and case law interpreting it, the Court of Appeals affirmed the trial court’s decision finding Wife had failed to explain why the more than 20,000 documents produced by Husband were not sufficient, and Wife failed to explain what documents were still missing or delayed that would have helped her case. More importantly, Wife had repeatedly argued these documents were needed by her experts but yet her experts had been excluded for failing to comply with the trial court’s scheduling order and Wife had not appealed that ruling. Finally, Wife did not offer any proof in the record of the Husband’s alleged perjury or unclean hands.

Finally, we turn to the $100,000 discovery sanction against Wife. While this is a staggering amount of money to be assessed against an individual, the Court of Appeals found it was not an abuse of discretion for several reasons. First, even an “economically disadvantaged spouse is not insulated from monetary sanctions when he or she engages in culpable conduct such as abuse of the discovery process.” Second, Husband actually requested $185,685 in sanctions and submitted an affidavit detailing the more than $300,000 in attorney fees he had incurred during the five years of litigation.  After recounting Wife’s discovery antics, the Court of Appeals ultimately concluded that while reasonable minds could differ as to the amount the actual award was not an abuse of discretion given the trial court’s wide discretion over discovery sanctions pursuant to both Tenn. R. Civ. P. 37 and it inherent powers.    

Leo Berg v. Julie Ann Rutledge Berg, No. M2013-00211-COA-R3-CV (Tenn. Ct. App. June 25, 2014) .


Defendant's Lie Under Oath May Be A Sin, But It Is Not Admissible in MVA Trial

This appeal arises from a December 24, 2010 motor vehicle accident involving a vehicle driven by Johnny Miller and another vehicle driven by Mr. Moretz. The cause of the accident was hotly contested with both parties claiming the other to be at fault. As for damages, Mr. Miller and his wife, who was a passenger in the vehicle, claimed they sustained soft tissue injuries.  The jury returned a verdict finding Mr. Moretz to be 10% at fault and Mr. Miller 90% at fault. As to Mrs. Miller, the jury found zero damages. On appeal, the Millers took issue with a ruling regarding Mr. Moretz’s prescription drug use on the day of the accident and the trial court’s failure to grant an additur or a new trial on damages as to Mrs. Miller. 

Mr. Moretz’s Prescription Drug Use on the Day of the Accident.

During discovery, the Millers served interrogatories on Mr. Moretz. One interrogatory asked whether Mr. Moretz had consumed any alcohol or drugs in the twelve hours prior to the accident. Mr. Moretz denied doing so.  Under oath in his deposition and for a second time, Mr. Moretz denied drug use on the day of the accident.  Prior to trial, Mr. Moretz moved in limine to prohibit the plaintiffs from introducing any evidence he had taken oxycodone on the day of the accident. Mr. Moretz’s offered that his personal physician had told him he could drive while taking the medication and he provided a letter for his employer to that effect. In support of the motion in limine, Mr. Moretz argued that mere use was insufficient and impairment had to be demonstrated for the prescription drug use to be relevant.  

Mr. Moretz pointed out that there was no allegation in the original or re-filed complaint that he was impaired at the time of the accident. None of the witnesses who were at the scene or observed the accident testified Mr. Moretz appeared to be impaired.  And to the extent that evidence of his drug use was relevant, Mr. Moretz contended it was unduly prejudicial under Rule 403 of the Tennessee Rules of Evidence. Conversely, the Millers argued it was a prior inconsistent statement and could be used to impeach Mr. Moretz’s credibility. Using the jury instruction on the credibility of witnesses, the Millers wanted to argue to the jury that they could disregard Mr. Moretz’s account of the accident if they found him untruthful on the issue of drug use. Ultimately, the trial court agreed with Mr. Moretz and ruled that evidence of his drug use was inadmissible as unduly prejudicial.  

The Court of Appeals affirmed the exclusion of the drug use finding it significant that there was no evidence that Mr. Moretz was driving erratically or that the prescription drug use played any role in the accident and noting its highly prejudicial nature given the “general contempt for drug use”.   Moreover, the Court of Appeals concluded even if the trial court’s ruling was incorrect, the error would have been harmless as other witnesses testified consistent with Mr. Moretz’s version of events and the physical evidence supported his account of the accident. As such, its value as an inconsistent statement was minimal.

New Trial or Additur for Mrs. Miller’s Damages

At the time of the accident, Mrs. Miller was 73 years old and she regularly sought the services of a chiropractor. Following the accident, she claimed her pains increased in severity and so she continued to see her chiropractor for three more months. In terms of limitations, Mrs. Miller testified she was unable to do yard work, had difficulty running the vacuum and standing for long periods of time. She also reported a lack of energy and desire to do regular activities. On direct exam, Mrs. Miller’s chiropractor testified the car accident had caused Mrs. Miller’s back problems to worsen and she would need future medical treatment consisting of at least one visit per month. On cross-examination, the chiropractor testified Mrs. Miller had suffered a fall three months before the car accident and was restricted in standing, sitting and walking. In addition, when Mrs. Miller presented to him for her first visit following the accident, she did not mention the accident when completing the chiropractor’s intake form which asked for any new history or symptoms.

The Court of Appeals noted the amount of damages to be awarded is primarily left to the jury and appellate courts should not substitute their judgment. Since there was material evidence supporting the jury’s findings, the verdict was approved.

The Millers’ reaction to shout “Liar, Liar” from the rooftop, or at least from counsel table, is understandable. They had him. They had caught their adversary in a lie -- not once, but twice. To be denied the opportunity to exploit it seems wrong. But, in the end, we want verdicts to be based on relevant facts. And so sometimes, that means we have to swallow a jagged, bitter pill handed to us by the trial judge.

If you should happen to find yourself in a similar situation, might I suggest an end-of-the-day Old Fashioned to help wash it down.  And remember the good ole' "abuse of discretion" rule: win your evidence battles in the courtroom - you are not likely to win them at the Court of Appeals.

The case: Miller v. Moretz, No. E2013-01893-COA-R3 CV (Tenn Ct. App. July 7, 2014).


Health Care Liability Expert Need Not Know Community Statistics from Date of Alleged Injury to Testify in Tennessee Medical Malpractice Case

As far as I can remember, Evans v. Williams, No. W2013-02051-COA-R3-CV (Tenn. Ct. App. June 30, 2014),is the first and only case dealing with whether a health care liability expert must be familiar with demographic information about the defendant’s community from the time the alleged malpractice occurred. To be sure, the injury in this case occurred in 1991, twenty-two years before it was finally tried in 2013. Even with that much time, though, the Court of Appeals held that present day statistics are sufficient to establish an expert’s familiarity with a defendant’s community or a similar community.

At the trial of Evans, the trial judge granted Defendants’ motion to exclude one of Plaintiffs’ standard of care experts. The trial judge ruled that the expert was not familiar with the standard of care in Defendants’ county or a similar community when the treatment was rendered in the early 1990s. The trial judge denied Plaintiffs’ motion to exclude one of Defendants’ standard of care experts. The jury returned a verdict of no liability.

The Court of Appeals looked to Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011), for competency requirements under Tenn. Code Ann. sec. 29-26-115. 

Generally, an expert's testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has discussed with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the defendant practices, will be sufficient to establish the expert's testimony as relevant and probative to “substantially assist the trier of fact to understand the evidence or to determine a fact in issue” under Tennessee Rule of Evidence 702 in a medical malpractice case and to demonstrate that the facts on which the proffered expert relies are trustworthy pursuant to Tennessee Rule of Evidence 703.

Shipley, 350 S.W.3d at 552.

In this case, Plaintiffs’ excluded standard of care expert testified about the current population and hospital size in Defendants’ community, that the expert had been by the hospital in Defendants’ community, and described the medical services that were available for obstetrics in Defendants’ community in 1991. Defendants contended this was not sufficient, and that experts should be required to show similarity between the two communities in 1991, not at the time of trial. The trial court agreed and excluded the expert.

The Court of Appeals disagreed, stating Plaintiffs’ expert’s familiarity with “the medical services and practices available in the area at that time” was sufficient. However, because Plaintiffs were still able to present standard of care testimony from Plaintiffs’ other experts at trial, the Court of Appeals concluded that the trial court had committed harmless error.

Tennessee Law of Civil Trial Book

Tennessee Law of Civil Trial has been printed and is now available for purchase.  

The 500+ page book is largely a discussion of the law of trying civil cases in Tennessee - the law of scheduling orders, pretrial conferences, jury selection, opening statement and closing arguments, use of depositions at trial, and more.  

The book does touch on some aspects of the law of evidence, but candidly the book largely leaves that topic to other texts.   Instead, this book is designed to be a reference guide that judges and lawyers can turn to for a ready reference on the substantive law of trial.

Also included is a chanter of 75 of my tips on preparing cases for trial and related forms.

Here is the Table of Contents:

Chapter 1: Scheduling Orders
Chapter 2: Final Pretrial Conferences
Chapter 3: Motions in Limine
Chapter 4: Jury Selection
Chapter 5: The Rule
Chapter 6: Opening Statements and Closing Arguments
Chapter 7: Examination of Witnesses
Chapter 8: Use of Depositions at Trial
Chapter 9: Opinion and Expert Testimony
Chapter 10: Mistrials
Chapter 11: Motions for Directed Verdict
Chapter 12: Findings of Fact
Chapter 13: Jury Instructions
Chapter 14: Juror Questions
Chapter 15: Verdict Forms
Chapter 16: Discretionary Costs
Chapter 17: Motions for a New Trial and to Alter or Amend Judgment
Chapter 18: Remittitur
Chapter 19: Additur
Chapter 20: Motions for Judgment Notwithstanding the Verdict
Chapter 21: Preparing to Win

The book should be delivered next week and will be available for shipping shortly thereafter. To order your copy, click on the Tennessee Law of Civil Trial link.  Discounts available for bulk purchases.  Email me a for more information.

Case Dismissed Because Plaintiff Sent Notice by FedEx Instead of U.S. Postal Service

 In Arden v. Kozawa, M.D, No. E2013-01598-COA-R3-CV (Tenn. Ct. App. June 18, 2014), Plaintiff in a health care liability action appealed after his lawsuit brought on behalf of his deceased wife was dismissed at trial for failing to strictly comply with Tennessee’s pre-suit notice requirements.

Plaintiff’s wife was allegedly negligently treated by a doctor at a hospital for abdominal pain and she later died from pancreatitis and other complications. Prior to the statute of limitations, plaintiff sent pre-suit notice letters to the doctor and hospital, as required by TCA statute 29-26-121. However, there were four problems with the pre-suit notice letters: (1) plaintiff omitted his own address from the notice letters; (2) the doctor’s letter was sent to an address that was different from the listing on the Tennessee Department of Health website; (3) the provider’s list accompanying the letters did not include the hospital’s address; and (4) there was no certificate of mailing from the U.S. Postal Service because the letters were sent via Federal Express. The trial court dismissed plaintiff’s case at summary judgment based on plaintiff’s failure to strictly adhere to the requirements of the pre-suit notice statute, and plaintiff appealed.

The Tennessee Court of Appeals first observed that the trial court had wrongly applied the “strict compliance” standard to the pre-suite notice requirements, instead of the correct “substantial compliance” standard as previously held by Tennessee’s Supreme Court in Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, No. M2012-02270-SC-R11-CV, 2014 WL 1632183 at *6-7 (Tenn. Apr. 24, 2014).  Reviewing the content of plaintiff’s pre-suit notice letters in light of the correct “substantial compliance” standard, the appellate court ruled that defendant doctor and hospital were not prejudiced by plaintiff’s failure to include his own address and the hospital’s address on the providers list and, therefore, the content in plaintiff’s notice letters had substantially complied with the pre-suit notice requirements of 29-26-121.

However, even if plaintiff had substantially complied with the content requirements of his pre-suit notice letters, defendant doctor and hospital still argued that plaintiff failed to properly serve the pre-suit notice in the manner required by statute. If the notice is mailed, then 29-26-121 provides that compliance “shall be demonstrated by filing a certificate of mailing from the United States postal service stamped with the date of mailing and an affidavit of the party mailing the notice establishing that the specified notice was timely mailed by certified mail, return receipt requested.” The appellate court found that the statute was clear and unambiguous, and that it was apparent that the legislature deliberately intended that the U.S. Postal Service would be the only acceptable means of service of the notice other than personal delivery. The Arden court then cites to one of my prior published articles from 2009 wherein I noted that the legislative amendments provided for mailing only through the U.S. Postal Service, with a certificate of mailing from the post office to definitively show the date of the actual mailing.

So even though Plaintiff had filed a copy of the documentation from Federal Express tracking delivery of the notice letters, along with an affidavit from the person who sent the letters, and it was undisputed that defendant doctor and hospital had received actual notice, the Arden court still ruled that plaintiff’s service via Federal Express did not substantially comply with 29-26-121(a)(3) and (4).  Consequently, the court held that plaintiff’s service was improper and ineffective and plaintiff could not rely on the 120-day statute of limitation extension provided by the notice statute to file his lawsuit. Plaintiff’s lawsuit was dismissed as untimely for being filed after the one year statute of limitations.

The Arden court did not address the issue concerning the lack of service to the doctor’s address as listed on the Tennessee Department of Health website.

The asserted purpose of the pre-suit notice requirement was to give health care providers to opportunity to settle claims before suit was filed.  The statute requires plaintiffs to jump through many costly and time consuming hoops, with some hoops that are clear and others that are anything but. Unfortunately, clarity is only provided at the expense of people’s legal rights when their lawsuits are dismissed on technicalities rather than being tried on the merits.

It is true that the legislature provided that notice must be served by US Mail or by personal service.  That said, it is difficult to see why the doctrine of substantial compliance would not save the plaintiff's service of notice via Federal Express if the provider in fact received the notice.  Remember, the statute doesn't require proof that notice was received, it only requires proof that notice was sent in a certain matter.  It seems to me that if notice was actually received, whether accomplished via Federal Express, Pony Express, or carrier pigeon, that the statute has been substantially complied with because the defendant actually received notice of a potential claim and was able to investigate and settle the case if appropriate.  This is especially true when Fed Ex is used to deliver notice, given that one can readily identify the date the notice was sent from the receipt.

The Tennessee Supreme Court should accept a Rule 11 application in this case and reverse.

Just Give Him the Dang Forms!

Mr. Fleming needed medical forms completed for his workers’ compensation case.  He submitted the forms to the defendants but after “20 or more days” he had still not received the completed forms and his phone calls were not being returned.   Consequently, a frustrated Mr. Fleming filed a civil warrant in Shelby County General Sessions Court alleging “dereliction of duty, negligence and conspiracy”, which had caused him “financial and stressful harm.”   Seven months later, in January of 2012, the Defendants filed a motion to dismiss based on the Tennessee Medical Malpractice Act (TMMA). Defendants argued Mr. Fleming had failed to provide written notice of the claim and had failed to supply a good faith certificate. The case was dismissed by the General Sessions judge.

Undeterred, Mr. Fleming appealed to Shelby County Circuit Court.   In July of 2012, the Defendants again filed a motion to dismiss with the same arguments made in the General Sessions matter.   A month later, the Court held a hearing. At the beginning of the hearing, Mr. Fleming was finally given his completed forms which he had been pursuing for more than one year. Since he had finally received the paperwork, Mr. Fleming did not oppose the motion to dismiss. As such, the trial court entered an order granting the unopposed motion to dismiss and citing the failure to comply with the TMMA. 

But that was not the end of the matter because the trial court assessed costs against Mr. Fleming. In response to the assessment of costs, Mr. Fleming filed a “Motion for Judicial Review” In his motion, Mr. Fleming outlined his efforts to obtain the records which included 2 court appearances, 15 phone calls to the Defendants and an appointment with Dr. Sanai. Since he ultimately obtained the relief he sought (his medical forms) at the hearing on the motion to dismiss, Mr. Fleming argued he was the prevailing party and costs should not have been assessed against him. The Defendants opposed Mr. Fleming’s motion citing the trial court’s order granting the motion to dismiss based on the failure to comply with the TMMA. After a hearing, the trial court denied Mr. Fleming’s Motion for Judicial Review. 

On January 7, 2013, and before an order was entered on the Motion for Judicial Review, Mr. Fleming filed a “Motion to Alter or Amend Judgment” asking the court to reconsider the original ruling on the defendants’ motion to dismiss. However, Mr. Fleming’s Motion to Alter or Amend Judgment was filed roughly 5 months after the order of dismissal, so it was well outside the thirty days outlined in Tenn. R. Civ. P. 59.04. Therefore, on January 22, 2013, the trial court entered an order denying Mr. Fleming’s Motion for Judicial Review finding he was not the prevailing party and the trial court also refused to revisit its prior dismissal of Mr. Fleming’s complaint. In March of 2013, the Defendants filed their response to Mr. Fleming’s second post-judgment motion (Motion to Alter or Amend Judgment). Defendants argued the motion was untimely because it was not filed within thirty days of the August 31, 2012 judgment.   On May 24, 2013, the trial court held another hearing in which Mr. Fleming’s motion was denied with one exception: the trial court changed the dismissal to one with prejudice instead of without prejudice. 

On June 27, 2013, this mess that had started two years before, over the return of some completed medical forms, went to the Court of Appeals. Mr. Fleming’s Assignment of Error is a stream of consciousness paragraph that ranges from the trial court not drawing on life experiences to the importance of getting medical forms returned. Boiled down to its essence, Mr. Fleming’s was still upset at being required to pay court costs.   In response, the Defendants argued the appeal was untimely; Mr. Fleming consented to the dismissal and the trial court had not abused its discretion in denying the post-judgment motions.

The Court of Appeals analyzed the timing of all the motions and concluded Mr. Fleming’s assignment of error was appealing the ruling on his second post-judgment motion, which was not timely filed with the trial court as it was filed more than thirty days after the entry of final judgment. In addition, the second post-judgment motion was really just a motion to reconsider the first post-judgment motion (Motion for Judicial Review). So under all the circumstances, the Court of Appeals concluded the trial court did not abuse its discretion in denying the Motion to Alter or Amend Judgment. The trial court was affirmed and, to add insult to injury, costs were taxed again to Mr. Fleming. 

This case made me want to pull my hair out.  The procedural history is a hot mess, but that is not the maddening part.  No, what is jaw-dropping is that litigation over the return of the forms continued for more than 2 years and progressed through three courts. Instead of simply returning the forms, the defendants waited 7 months and then filed a motion to dismiss based on the TMMA no less. Notably, the Court of Appeals expressed its “surprise” that the defendants tried to couch Mr. Fleming’s case as a healthcare liability action subject to the notice and certificate of good faith requirements.  The Court of Appeals was equally “surprised “the trial court agreed with the defendants argument in the motion to dismiss and cautioned: “[t]rial courts should be vigilant to guard against misuse of the TMMA as a vehicle for a defendant to obtain dismissal of a lawsuit that is not primarily a health care liability action.”    

To be sure, pro se parties can be hard to deal with. Filing a lawsuit because you have been waiting for three weeks for your medical forms is a bit much. But this case is an excellent example of just how costly and time-consuming litigation can be when communications break down and/or the easy solution is given the middle finger.  While Mr. Fleming arguably should have accepted defeat much earlier in the game, it is interesting to me that the defendants or their insurance carrier thought it was wiser to pay defense lawyers in a leading law firm for two years of litigation than to simply eat a couple of hundred bucks in court costs. But, of course, you can’t complain about  the cost of so-called frivolous lawsuits if you do things the easy way and eliminate or  substantially reduce those costs.

Remember too that there is no over-riding legitimate principle at stake here in the fight over court costs.  This is a pro se litigant who was irritated that he could not get his medical information in timely fashion, not a fight over the integrity of a product or other interest worth spending lots of money to protect.  

In short, we would all would do well to remember that just because you can fight about an issue does not mean you should. 

The case is Fleming v. Tejinder Saini, M.D. and Healthquest Clinic, No. W2103-01540-COA-R3-CV (Tenn. Ct. App. June 10, 2014).

By the way, if the defendants or their lawyers want to comment on this post and tell us why it made sense to fight this matter so aggressively or why it took this man seven months to get the data he requested I will make sure the comment is posted.  Please be sure to include the total fees paid to the defense lawyers in the case so that each reader can weigh whether the juice was worth the squeeze.


John Day's New Book - Tennessee Law of Civil Trial

My newest book, Tennessee Law of Civil Trial, will be released on July 1, 2014 and may be ordered now for July 1 delivery.

The book consists of 500+ pages of the law of civil trial in Tennessee, covering the law of scheduling orders to the law of motions for a new trial or judgment notwithstanding the verdict.  Also included is a chapter called "Preparing to Win At Trial" which consists of over 75 tips that I have developed over the years and multiple forms and checklists. 

Click on the link to see the Table of Contents

The introduction gives you a feel how I can to write the book and why:

Like it or not, for better or worse, the number of civil jury trials continues to decline.  A discussion of the reasons for the lack of jury trials is better left to another forum, but one of the many consequences of this phenomenon is that lawyers have an increasing unfamiliarity with the law of trial.

The law of trial is a set of rules and procedures designed to ensure that a fair trial will be conducted before a proper jury and provide an adequate record for examination of claimed errors on appeal.  One may debate the merits of many of these rules and procedures, but one cannot debate their existence or the potential consequences for the failure to understand and apply them.

The idea for this book was formed when I was trying a medical malpractice case before the Honorable James T. Hamilton in Columbia, Tennessee in the winter of 2008.  While driving home on the first Friday night of what turned out to be a thirteen-day jury trial, I began to think about the numerous legal issues that arose in jury selection and during the first five trial days.  I then thought about how I came to know that these issues were in fact issues, and how I learned the law of these issues.  I quickly realized that my knowledge base was not from law school, but arose from two separate sources.
First, my knowledge came from actually trying cases. I had the advantage of working with one of Nashville’s finest trial lawyers, the late John T. Conners, Jr., who permitted me to have trial experience early in my career.  Mr. Conners had a high-quality plaintiff’s practice, and therefore he frequently drew high-quality defense counsel.  Thus, I had an opportunity to learn not only from Mr. Conners, but also very competent adverse counsel.
Second, my work founding and writing two monthly publications (the Tennessee Tort Law Letter and later the Tennessee Trial Law Report) meant that I was reading several hundred appellate court decisions each year.  In the early years, these court opinions frequently discussed the law of trial and thus my knowledge of the field expanded.
But, I asked that night driving home, how could today’s younger lawyers learn the law of trial?  Simply reading current and future case law will not do it because the decreasing number of trials results in a decreasing number of appeals on cases that have been tried.  Researching prior case law is possible only if you know the issues that require research, and doing so in the middle of trial is impractical.  And actually trying cases no longer provides a way to reach the requisite knowledge base because there are not enough trials for the vast majority of lawyers to learn the law.
So, in the middle of Howell v. Turner, on Saturday afternoon, March 1, 2008, I drafted the first table of contents for what has now become Tennessee Law of Civil Trial.  The goal was – and is – to provide a readable, concise summary of the law of civil trial in Tennessee.
The book is designed to be used in three different ways.  First, the inexperienced lawyer can pick up this book, read it cover-to-cover, and have an immediate, comprehensive understanding of the law of trial in Tennessee civil cases.  Simply reading this book will not make the reader an excellent trial lawyer, but it will give the reader a solid grasp of the law of civil trials in Tennessee and thus more confidence in the courtroom.
Second, experienced trial lawyers can use this book as a source to refresh their recollection on law that was once known but has slipped away with the passage of time.
Third, both inexperienced and experienced trial lawyers can use this book as a resource in the middle of trial, to give guidance on an issue that was not identified before trial.
All three intended uses of this book require it to be concise.  Lawyers do not have time to read a treatise on the law of opening statement or jury selection.  Particularly for questions that arise during trial, lawyers need to be able to find the law quickly.
Thus, this book does not include a multitude of string cites.  It also does not purport to give an answer to every possible question that may arise during trial.  While certain evidentiary issues are discussed, the book is not a treatise on the law of evidence, that subject being left to the fine work of Neil Cohen, Sarah Sheppard and the late, great Donald Paine.  Quite candidly, I cannot imagine trying cases in Tennessee without a current copy of Tennessee Law of Evidence within arm’s reach.
Finally, this book is not a trial advocacy guide.  For example, it does not purport to tell a lawyer how to conduct jury selection, how to conduct an opening statement, etc.  I could not help but to include a few practical suggestions and indeed have included a chapter with some practical suggestions on preparing for trial, but in an effort both to keep the book concise and to be true to its title, the book is largely a discussion of law.
I hope this book helps you better serve your clients.

I believe the book meets the intended goal:  a ready resource for all lawyers who try civil cases in Tennessee courts of record.  

As any one who as ever written a book knows, every book is a team effort.  If you choose to purchase the book, please review the Acknowledgements section where I recognize those who helped me in this project.

Memphis Premises Liability Case Fails

In the recent premises liability opinion of Wolfe v. Felts, Jr. No. W2013-01995-COA-R3-CV (Tenn. Ct. App. May 29, 2014), the court of appeals affirmed a trial court’s decision to grant directed verdict in favor of defendants in a case where plaintiff fell on ice that had formed in front of defendants’ building after the building’s sprinkler system had activated during freezing temperatures.

The plaintiff in Wolfe did not argue, as is customary in most premises cases, that defendants had actual or constructive knowledge of the dangerous condition (the sprinkler system operating in freezing temperatures). Instead, plaintiff argued that defendants had created the dangerous condition by negligently failing to properly manage the sprinkler system. Tennessee law holds that a plaintiff is not required to prove that a premises owner had prior notice of a dangerous condition if the premises owner created the condition that caused plaintiff’s injury.

However, according to the appellate court, plaintiff’s case failed because there was no evidence as to what constituted proper sprinkler management or maintenance so as to establish that improper sprinkler management or maintenance had caused the sprinkler to malfunction.

Defendants were the building owners and also the tenants occupying the property as a hair salon. Defendant building owner testified that he knew the sprinkler system needed “winterization” but he did not know what winterization entailed. Defendant tenant testified that he had never used the sprinkler system during his tenancy, that he was never notified that the sprinkler system required winterization, and that he did not know what was required to winterize the sprinkler system. Plaintiff did not submit any other proof about proper sprinkler management or maintenance. Therefore based on the lack of evidence from defendants about the requirements of winterization, the appellate court found that the jury would have been impermissibly forced to speculate as to what actions defendants should have taken to winterize the sprinkler system.

Furthermore, there was a dispute as to what actually caused the sprinkler to activate on the day of plaintiff’s injury. The undisputed proof showed that the sprinkler system’s control valve was in the “open” rather than “closed” position. Plaintiff argued, without affirmative evidence, that there was a malfunction in the sprinkler system that caused it to turn on. The appellate court found, however, that in light of defendant tenant’s testimony that he did not ever use the sprinkler system, it was just as possible that the sprinkler could have been turned on by an unknown third party on the day of the incident. As such, the jury would again be forced to impermissibly speculate to conclude that defendants somehow caused or created the dangerous condition.  

Thus, the Wolfe court affirmed the directed verdict in favor of defendants. In its conclusion the opinion states that under current Tennessee law a plaintiff must navigate a “stringent framework” to prevail in a premises liability action.

One last point.  The record sent to the Court of Appeals appears to have been very incomplete.  No transcript was sent.  No testimony from the Plaintiff went up. 

If a case is worthy of an appeal, on whether a directed verdict should have been granted,  it makes sense to spend the money on a transcript of the evidence.

Amended Medical Malpractice Complaint Not Subject to Certificate of Good Faith Requirement when Initial Action was Filed Before October 1, 2008

Tenn. Code Ann. Sec. 29-26-122 requires medical malpractice complaints to be supported by a certificate of good faith. This statute became effective October 1, 2008, yet because health care cases can linger for years in pre-trial stages, many cases filed before that date are still active. The Tennessee Court of Appeals recently considered how the certificate of good faith statute affects amended pleadings in cases originally filed before October 1, 2008.

In Rogers v. Jackson, No. M2013-02357-COA-R3-CV (Tenn. Ct. App. May 19, 2014), plaintiff filed a medical malpractice suit regarding the death of his wife. The original complaint was filed on February 1, 2008. Defendants filed an answer, then on October 2, 2008 moved to amend their answer to assert comparative fault against a second doctors group as well as the deceased patient. The motion to amend was granted. Based on this amended answer, plaintiff filed an amended complaint on December 29, 2008, adding this additional doctor and his group as defendants in the suit.

Arguing that the amended pleadings were filed after the implementation of the certificate of good faith requirement, the added defendants filed a motion to strike the allegations of fault in the amended answer and amended complaint based on the argument that no certificates of good faith were filed regarding the claims against them. The trial court denied the added defendants The Tennessee Court of Appeals, however, affirmed the trial courts decision to allow the case to proceed against the defendants named in both the original and the amended complaint.

The added defendants argued that the amended complaint started a new action against them, and was thus subject to the certificate of good faith requirement. The Court of Appeals explained, though, that the plaintiff had amended his complaint pursuant to Tenn. Code Ann. Sec. 20-1-119, which allows a plaintiff ninety days to amend his complaint or initiate a separate action against a party which was alleged by a defendant to have caused or contributed to the plaintiffs injury. This statute incorporates Tenn. R. Civ. P. 15, which provides that if the claim asserted in an amended pleading arose out of the same conduct or occurrence as the original pleading, then the amendment relates back to the date the original pleading was filed and is not considered a new action. Because the amended complaint arose out of the same medical treatment as the original complaint, the amended complaint related back to the February 1, 2008 filing date and no certificate of good faith was required.

Based on a proper reading of the certificate of good faith statute, the statute allowing amendments when a defendant alleges comparative fault against a non-party, and the Tennessee Rules of Civil Procedure, this appears to be the correct result. There is at least one other way the court could have reached this same result, but this is a straight-forward way to get there.

Look for an effort to appeal this to the Tennessee Supreme Court.  I predict a Rule 11 application not because an appeal would have merit, but because (a) this is a health care liability case and if a judge or jury finds against a doctor an appeal is mandated by God; and (b) the hope that the if Lt. Gov. Ramsey is successful in defeating three of our justices in the August election the new appointees to the court will be anti-plaintiff.