When Does Bad Conduct Rise to the Level of Outrageous Conduct?

         A recent Tennessee Court of Appeals case serves as a reminder that the bar for proving outrageous conduct is high for plaintiffs attempting to make a case for intentional infliction of emotional distress (“IIED”). In Kindred v. Nat’l College of Bus. and Tech., Inc., No. W2014-00413-COA-R3-CV (Tenn. Ct. App. March 19, 2015), plaintiff sued her former college for, among other things, IIED related to the cancellation of her classes for one term. Plaintiff had her GED, and at the time of her initial enrollment the school did not require students to have an official copy of their equivalency certificate in their file. That policy later changed. Two weeks prior to the start of term 107, plaintiff went to the college to get a copy of that term’s schedule and was informed that her file did not have an official copy of her GED and that she was thus not in compliance with the school’s requirements. Plaintiff alleged that she presented the school with her GED equivalency card, but she did not dispute that she took no steps to get an official copy of her GED into her file.

            Plaintiff started attending classes at the beginning of term 107, but after one week the director of the campus cancelled plaintiff’s schedule because her file did not comply with the official copy requirement. The director told plaintiff that she would not be charged tuition for that term and that she could return to classes the next term as long as she had provided an official copy of her GED. Plaintiff provided the school with her GED on the same day she was informed about her schedule cancellation, but the director refused to reinstate her for that term. Two months later, plaintiff enrolled in another term (term 111) at the same college. She was not allowed to enroll until she paid an outstanding balance for textbooks from term 107 (the cancelled term), which she paid after protest. Plaintiff attended two additional terms at the school, but at the end of term 113 she received a failing grade, which she unsuccessfully challenged. After that, plaintiff alleged that “she could no longer suppress her pain and distress that began with [defendant’s] degrading termination of her enrollment eight months earlier. Plaintiff further allege[d] that this forced her to cease her attendance at [the school] and abandon her educational/professional goals.”

            Defendant filed a motion to dismiss plaintiff’s IIED claim, which the trial court granted and the appellate court affirmed. One of the elements of an IIED claim is that “the conduct must be so outrageous that it is not tolerated by a civilized society[.]” Here, the Court of Appeals found that the conduct alleged did not rise to this level. The Court noted that the Tennessee Supreme Court has adopted the Restatement (Second) of Torts standard for IIED with states that “[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Citing Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997). While many situations may cause some distress, “outrageous conduct does not include ‘mere insults, indignities, threats, annoyances, petty oppression or other trivialities.’” Citing Levy v. Franks, 159 S.W.3d 66 (Tenn. Ct. App. 2004) (additional citations omitted).

            The Court conceded that plaintiff in the instant case was “understandably unhappy that her enrollment in term 107 was cancelled, and, thus, briefly delayed her goal of completing her degree at National College. However, [the director’s cancellation of her schedule] does not rise to the sufficiently outrageous standard required for recovery under IIED[.]”

            As this case illustrates, most common annoyances, no matter how upsetting, will not support a claim for IIED. The outrageous conduct standard required to support this tort is exacting, and a plaintiff filing a complaint should be mindful of the case law regarding IIED as he or she is drafting a complaint.  

No Proof on Notice of Hazard Results in Dismissal of Case

In a recent premises liability case, the Tennessee Court of Appeals overturned a trial court decision for plaintiff on the basis of lack of actual or constructive notice of a dangerous condition, a key element in any premises liability case. In Barkley v. Shelby Co. Board of Educ., No. W2014-00417-COA-R3-CV (Tenn. Ct. App. March 18, 2015), plaintiff, a grandmother, visited an elementary school attended by two of her grandchildren. While there, she slipped and fell near a hand washing station in the hallway. Plaintiff alleged that there was water on the floor, and that such water was the cause of her fall.

Because the school was operated by the Shelby County Board of Education, this action fell under the Governmental Tort Liability Act (“GTLA”). The trial court found defendant liable, though it did reduce plaintiff’s award pursuant to comparative fault findings. On appeal, one issue raised by defendant was whether the trial court erred by not finding defendant immune from suit under the GTLA. The Court of Appeals, however, did not get that far, instead focusing solely on the issue of lack of notice.

Under the GTLA, a plaintiff making a premises liability claim must prove that “(1) the governmental entity owns and controls the location or instrumentality alleged to have caused the injury; (2) a dangerous, defective, or, in the case of sidewalks, unsafe condition caused the injury; (3) the governmental entity had actual or constructive notice of the dangerous condition; and (4) the governmental entity breached either its duty to eliminate the condition or its duty to warn of the condition.” Here, the Court stated that there was conflicting evidence regarding whether there was water on the floor causing the fall or whether plaintiff’s shoes caused her to fall and drop a cup of water she was holding, which accounted for the water on the floor. Either way, the Court summarily determined that, regarding actual notice, there was “no evidence in support of a determination that the Board had notice of water on the floor at or near the location of [plaintiff’s] fall, sufficient either to remove its immunity or to otherwise establish liability.”

The Court then moved forward to examine the evidence supporting potential constructive notice of the water. Examining four witnesses’ testimony, the Court noted evidence that no other falls had occurred in this area, that no one saw water on the floor before the fall, that the water present after the fall was by the cup, and that if any water were ever in that area it would be a “dot or spot.” Based on these facts, the Court concluded that “Plaintiffs presented no proof as to the length of time the water or other substance upon which [plaintiff] apparently fell had been present or any other fact upon which to conclude that the Board had constructive notice of the specific condition. General knowledge that such a condition may exist does not constitute constructive knowledge of a specific condition.” Finding no actual or constructive notice of the allegedly dangerous condition, the Court thus overturned the trial court and dismissed the case.

This case is a great reminder that in a premises liability case, whether the claim is asserted against a governmental entity or private party, proving notice is absolutely essential unless you can prove that the defendant created the dangerous condition.. Without evidence to support actual or constructive notice, a plaintiff’s claim will fail. Here, the Court of Appeals only cited evidence that supported defendant’s theory of the case, and it is unclear whether plaintiff simply failed to introduce evidence regarding notice or whether the Court found such evidence less credible. Either way, notice is a major hurdle that every premises liability plaintif must cross unless he or she has evidence the defendant created the hazard. .

Sandy Hook Parents Sue Mother of Murderer

The parents of the Sandy Hook Elementary School shooting have sued the shooter's mother.

The complaint alleges that the late Nancy Lanza, mother of Adam Lanza, negligently allowed her son access to the Bushmaster A-15 used in the shootings when she knew or should have known made her son a danger to others.

The shootings resulted in the deaths of twenty children and six adults.

If press reports from the months following the shooting are correct, the case stands on solid legal footing.  No sane person would deny the fact that the AR-15 is a very dangerous weapon.  And, if the press reports are true there will be little doubt that Adam was quite mentally ill.

The fight will be over whether the mother knew or should have known about the risk of violence. The defense will try to argue that no one, including Nancy Lanza, would or should have foreseen the 112 pound Adam would murder almost two dozen children.  The families will argue that (a) the exact nature of the crime need not be foreseen; and (b) the mother should have foreseen that Adam's mental state was such that he was a risk of harming others and thus (c) should have denied him access to guns and ammunition.

There would ordinarily also be a fight over the relative degree of fault apportioned to the tortfeasors - Adam and his mother.  Whether this happens in this case depends on the law of Connecticut - is fault apportioned between negligent and intentional tortfeasors, given his mental state is Adam an intentional tortfeasor, is liability several or joint and several, etc. 

Recall that Adam also killed his mother and thus this claim is against her estate - an estate with a value of $64,000.  There is also a homeowner's insurance policy at play but it only has $1,000,000 in coverage. My guess is that this lawsuit has little to do with money but instead is designed to send a message to parents with severe mental illness that those children do not need access to guns or ammunition.

For those with a deep interest in this subject, click on the link to read the PDF of the report issued by the Office of the Child Advocate of the State of Connecticut.   Note that the authors conclude that " only [Adam] was responsible for his murderous actions at Sandy Hook"  and the report goes out of its way to eliminate any responsibility for what occurred on any other person or institution.  

Pardon me for being a little cynical, but I cannot help but wonder if this report was written in an effort to shield the State and others from liability for this event.  


Sponge Case Falls Under HCLA Not Ordinary Negligence

            In Smith v. Testerman, No. E2014-00956-COA-R9-CV (Tenn. Ct. App. March 10, 2015), the Court of Appeals recently took up the issue of whether a case sounds in ordinary negligence or health care liability. After a hernia repair, plaintiff developed an infection requiring additional surgery to place a wound vacuum and a sponge. One defendant was allegedly tasked with changing the sponge as necessary, and another of the defendants was charged with removing the sponge at the appropriate time. When the wound vacuum was removed the sponge was not, eventually leading the wound to burst.  Plaintiff sued defendants alleging that they “were negligent by failing to either remove the sponge or communicate with the other physicians to ensure that the sponge had been removed.”

            Defendant filed a motion to dismiss asserting that the claims fell under the Health Care Liability Act (“HCLA”) and that plaintiff’s failure to comply with the pre-suit notice and certificate of good faith requirements thus necessitated dismissal of the case. Plaintiff responded that he was claiming only ordinary negligence and was therefore not required to comply with the HCLA. Plaintiff asserted that “the fact that the alleged malpractice lies within the common knowledge of laypersons” and therefore did not require expert testimony was proof that the claim sounded in ordinary negligence.

            The trial court denied the motion to dismiss, and the Court of Appeals granted interlocutory appeal to address “[w]hether an action seeking compensatory damages for injuries sustained as a result of a foreign object having been left in the patient’s body following surgery is a ‘health care liability action’ as defined by the [HCLA], such that the mandatory presuit provisions set forth in Tennessee Code Annotated sections 29-26-121 and 29-26-122 apply.”

            In its analysis, the Court noted that “cases involving health or medical entities do not automatically fall within the health care liability statute.” (Quoting Draper v. Westerfield, 181 S.W.3d 283 (Tenn. 2005). To determine whether a case falls within the parameters of the HCLA, the Court pointed to and quoted extensively from the 2011 amendments to the definitions contained in Tenn. Code Ann. § 29-26-101(a), which includes fairly detailed definitions for health care liability action, health care provider, and health care services.

           The Court found that in this particular case, “[e]ach defendant in this case meets the definition of a health care provider.” Further, “the complaint asserts that Defendants were negligent in their care of Plaintiff by failing to remove a sponge that had been placed to aid in Plaintiff’s recovery. Accordingly, Plaintiff’s action should be classified as a health care liability action, unless the context suggests otherwise…[.]”

            Plaintiff’s primary argument was that expert testimony would not be required here, so the claim was simply for ordinary negligence. The Court pointed out that Tennessee case law establishes that “[a] health care liability claimant must establish the statutory elements through the testimony of an expert who meets the qualifications set forth in [the Act],” but that “expert testimony is not required if the negligence is obvious and readily understandable by an average layperson.” (Internal citations omitted). Thus, the Court rejected the argument that the lack of a need for expert testimony automatically excluded a claim from the requirements of the HCLA. Because the need for expert testimony is not dispositive on the issue of whether a claim falls under the HCLA, and because plaintiff’s claims otherwise met the applicable HCLA definitions, the Court held that this was an HCLA case and that the pre-suit notice provisions of § 29-26-121 applied.

            After finding that this was an HCLA claim, the Court determined that this case would require expert testimony, as “[t]he care at issue here goes beyond the type of ‘basic’ or ‘routine’ care that the Supreme Court referred to in [Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011)] as not requiring expert testimony to establish the standard of care.” The Court determined that this “was not the type of case where a sponge was simply left in the body during surgery,” but that a specific surgery to place the sponge and continued care was needed. The certificate of good faith requirement found in § 29-26-122 was thus applicable, and because plaintiff failed to comply with such requirement his case was dismissed with prejudice.

            This case is a great reminder that when a case involves doctors and medical treatment, it is safest to assume it will under the HCLA and comply with pre-suit notice and certificate of good faith requirements. While it may seem like common sense that a certain action failed to meet the standard of care, if the courts disagree this mistake will likely be fatal to your client’s case.

Trial Court Cannot Impose Additional Limitations on Ex Parte Interviews in Healthcare Liability Cases.

         Tenn. Code Ann. § 29-26-121(f) allows defendants in a Tennessee medical malpractice (now called healthcare liability) case to petition the court for a “qualified protective order allowing the defendant…and their attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the relevant patient’s treating ‘healthcare providers[.]’” The section goes on to specifically list four conditions placed on these interviews: (1) that the petition identify healthcare providers the defendant seeks to interview; (2) that plaintiff may object and seek to limit or prohibit the interview, which “may be granted upon good cause shown that a treating healthcare provider does not possess relevant information[;]” (3) that the protective order should limit the use/dissemination of the information and provide for its return or destruction after the litigation; and (4) that the protective order expressly states that a healthcare provider’s participation in such interview is voluntary.[1] In two almost identical recent cases, the Court of Appeals took up the issue of whether a trial court may place additional conditions or restraints on these interviews.

            In both Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV (Tenn. Ct. App. Jan. 20, 2015) and S.W. v. Baptist Memorial Hosp., No. W2014-00621-COA-R10-CV (Tenn. Ct. App. Feb. 27, 2015), plaintiffs filed health care liability claims against defendants for alleged professional negligence. At issue in these appeals were the ex parte interviews defendants wanted to conduct with plaintiffs’ treating physicians without plaintiffs or their counsel present. Both sets of defendants moved for qualified protective orders to conduct these interviews, pursuant to § 29-26-121(f), which plaintiffs opposed. The trial courts granted the qualified protective order for the interviews but ultimately placed eight conditions on the interviews in both cases:

(1) That participation by healthcare providers in the interviews was voluntary;

(2) That defendants “should not attempt to elicit or discuss Protected Health Information which is not relevant to the issues in this lawsuit;

(3) That protected health information obtained in the interviews only be used in conjunction with the lawsuit;

(4) That protected health information obtained be destroyed at the end of the litigation;

(5) That defendants could not begin the interviews until a certain date;

(6) That a court reporter had to be present and “record all questions and answers during the interview;”

(7) That the “answers during the interview must be given under oath;”

(8) And that the transcript be filed under seal with plaintiff able to gain access to the record to determine whether there was a HIPAA violation upon showing good cause.

Defendants filed for Rule 10 extraordinary appeals to contest some of these restrictions, and the Court of Appeals granted limited review. Specifically, the Court took up the issue of whether limitations 6-8 (regarding the court reporter, oath, and filing of the transcript) and limitation 2 (regarding limiting the scope of the interviews to protected health information relevant to the issues of the lawsuit) were permissible under the statute.

            In addressing this issue in Dean-Hayslett, the Court reviewed the history of ex parte interviews, noting that the legislature adopted the statutory provision specifically allowing these interviews after they were prohibited by case law. Under the statute, however, ex parte interviews are not unlimited. By its terms, the statute limits the interviews to healthcare information that is relevant to the litigation and it sets parameters for the use and return or destruction of the material.  The defendants in the instant case argued that, pursuant to the statute, the trial court could not impose any additional restrictions on the qualified protective order. The plaintiff, on the other hand, asserted that this protective order was like a pretrial discovery order and the court therefore had the authority to place limitations on the interviews. Disagreeing with plaintiff, the Court determined that the interviews in question did not fall under “discovery.”        

            With this historical and analytical framework established, the Court of Appeals in Dean-Hayslett first addressed the limitations requiring a court reporter, oath, and the filing of the transcript. The Court found that these limitations were not allowable as they would “transform the investigatory interviews authorized by the section into quasi-depositions in contravention of the substantive purpose of the [statute].” Because the section was adopted specifically to allow less formal interviews, the Court held that the trial court did not have the authority to include these provisions in the qualified protective order.

            Regarding the limitation that defendants elicit protected health information only if it was relevant to the litigation, the Dean-Hayslett Court upheld the trial court’s ability to impose this restriction. Although defendants argued that they should be able to inquire into standard of care, causation and other matters, the Court disagreed. The Court found that the statute was “designed to enable defendants to ascertain identifying information and relevant healthcare information more expeditiously than otherwise allowed by the formal discovery process in order ‘to evaluate the substantive merits of a plaintiff’s claim.’” The Court stated that these informal interviews did not extend to opinions regarding causation and standard of care, and it held that this specific limitation could be imposed by the trial court because it did no more than “reflect the parameters of the statute[.]”

            In the S.W. case, the Court of Appeals adopted its reasoning from Dean-Hayslett and quoted lengthily therefrom, coming to the same result. The Court held that the requirements regarding the court reporter, oath and filing of the transcript “transform[ed] the ex parte interviews authorized by the section into quasi-depositions in contravention of the legislative purpose of the statute,” thus striking down those limitations. The Court upheld the restriction related to relevant protected health information “[b]ecause this provision in the trial court’s order does no more than reiterate the parameters set-forth in the statute[.]”

            Because these are the first Court of Appeals cases to address whether the trial court can limited a qualified protective order granted under § 29-26-121(f), they are important to note. Pursuant to these cases, it appears that a plaintiff can only seek limitations on these ex parte interviews based on a healthcare provider not having relevant information. Restrictions that go beyond the statutory limitations will not be allowed. On the other hand, though, defendants will be somewhat limited in the scope of these interviews. Defendants cannot use these interviews to inquire into healthcare topics beyond health information relevant to the litigation.

            Interestingly, Judge Stafford wrote a separate concurring opinion in Dean-Hayslett, which he relied upon and adopted in a concurrence on S.W., expressing concern with the implications of Tenn. Code Ann. 29-26-121(f):

From my reading, Tennessee Code Annotated Section 29-26-121(f)(1)(B) only allows a court to    limit or prohibit an ex parte interview with a treating physician based upon a finding that the physician can offer no evidence relevant to the litigation. It provides no discretion to the trial court to place limits on ex parte interviews where there is high risk that irrelevant and prejudicial information could be inadvertently or intentionally disseminated, nor upon any other showing that such limitation or prohibition may be warranted based upon the facts of that particular case. By limiting the court’s power to place additional restrictions on the grant of qualified protective orders, as may be necessary depending on the circumstances of each individual case, I am disquieted by the fact that Tennessee Code Annotated Section 29-26-121(f)(1) deprives the court of one of its greatest strengths—the ability to evaluate cases on an individual basis, rather than by pandemic approval or prohibition.

Under these circumstances, while I discern no legal basis to dissent from the majority’s holding, given the current state of the law, I write separately to express my belief that this decision may constitute a step backward in patient privacy jurisprudence.

As the courts continue to interpret the HCLA and the legislature continues to mold and amend the statute, it will be interesting to see if this concern is heeded.

[1] Note that the fourth condition, found in § 29-26-121(f)(1)(C), was added to the Code in 2013. Because the Dean-Hayslett case was filed in 2012, it was decided under a previous version of the statute which did not include the voluntariness condition, but this did not affect the outcome of this case.

Upcoming Civil Case Arguments at the Tennessee Supreme Court

The Tennessee Supreme Court will hear two health care liability disputes among four cases scheduled for oral arguments March 4, 2015 in Jackson, Tennessee, one of which will address an interesting civil procedure question.

The first case concerns the procedures required when filing a health care liability lawsuit. At the time the suit was filed, state law required a plaintiff to file a certificate within 90 days of the initiation of a lawsuit, confirming that the plaintiff has consulted with medical experts before filing the suit and stating whether the plaintiff's lawyer has ever been in violation of the law requiring the certificate. In this case from Dyer County, the attorney, who had never violated the statute, filed the required certificate but did not state that he had zero prior violations of the statute. The defendants sought dismissal of the case based on that omission. The plaintiffs sought to dismiss the case with the option to refile it.

The trial court allowed the dismissal and the defendants appealed. The Supreme Court will consider whether the failure to indicate zero prior violations of the law constitutes a failure to comply with the law requiring the good faith certificate.  The case is Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D. 

In the second health care liability case, the Supreme Court will consider whether to change the standard for granting and denying motions for summary judgment. Summary judgment is a decision by a trial court before the case is heard, based on a determination that there is no material dispute about the case’s facts.

In this case, a couple sued a Memphis health care center for failing to provide treatment during the mother’s pregnancy that, while not injuring the mother or harming her unborn child, could lead to complications in future pregnancies. The Court will determine whether the trial court properly granted the defendant’s summary judgment on some of the issues in the case. Michelle Rye  v. Women’s Care Center of Memphis, MPLLC.  

Court of Appeals Rules that 120-Day Extension Applies to HCLA Cases Filed under Saving Statute.

         The interplay between the saving statute and the 120-day extension provided by the HCLA in Tenn. Code Ann. § 29-26-121(c) continues to be a hotly litigated topic, with the Tennessee Court of Appeals adding another opinion to the mix this week. In 2013, the Supreme Court held that transitional plaintiffs (those whose initial suits were filed before the pre-suit notice requirement was enacted but who nonsuited and re-filed after the pre-suit notice requirement went into effect), who were required to give pre-suit notice before re-filing their lawsuit, were entitled to the 120-day extension even though they were filing their second suit pursuant to the saving statute instead of the traditional statute of limitation. Rajvongs v. Wright, 432 S.W.3d 808 (Tenn. 2013). Then just a month ago, the Supreme Court held that the HCLA “requires that plaintiffs provide pre-suit notice to prospective health care defendants each time a complaint is filed,” meaning that a plaintiff who gives proper notice, nonsuits, then re-files must give a second notice before the re-filing of the claims, even if the claims are identical. Foster v. Chiles, 2015 WL 343872 (Tenn. Jan. 27, 2015). Now, in Tinnel v. East Tenn. Ear, Nose, and Throat Specialists, P.C., No. E2014-00906-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2015), the Court of Appeals has interpreted these prior cases to find that a plaintiff who nonsuits an HCLA case and then gives proper notice and re-files is entitled to the 120-day extension on the re-filed complaint.

            In Tinnel, plaintiff suffered an injury during an outpatient procedure resulting in blindness in one eye. The procedure was performed on February 3, 2009. Plaintiff gave proper pre-suit notice on May 19, 2009, then filed suit on February 3, 2010. On December 14, 2010, plaintiff voluntarily dismissed the first lawsuit. Subsequently, on October 18, 2011 and within one year of the nonsuit, plaintiff provided a second set of pre-suit notices to defendants. Plaintiff filed her second suit on April 3, 2012, which was more than a year from the date of her previous nonsuit but within the time that would be included if the 120-day extension were applied. Defendant moved for summary judgment on the basis that the second suit was not timely.

            Plaintiff argued that the reasoning the Supreme Court used in Rajvongs should not be confined to transitional plaintiffs and should apply to provide her with the 120-day extension. Moreover, she asserted that since her first suit was filed within the traditional one-year statute of limitation, she had not yet utilized the 120-day extension. Defendants asserted that the Rajvongs holding should be limited only to transitional plaintiffs and that plaintiff automatically received the 120-day extension on her first suit, whether she used it or not, and was therefore not entitled to another extension. The trial court dismissed the case, and plaintiff appealed.

            In its analysis, the Court quoted lengthily from both Rajvongs and Foster, emphasizing that in Foster the Supreme Court made it clear that plaintiffs who utilize a nonsuit must give a second notice before re-filing the same complaint and that in Rajvongs the same court stated that they were “unable to conclude that the General Assembly would require transitional plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive such plaintiffs of the 120-day extension.” Rajvongs, 432 S.W.3d at 814. The Court of Appeals thus held:

             Like the Supreme Court in Rajvongs, we are unable to conclude that the General Assembly would require plaintiffs to provide pre-suit notice before refiling under the saving statute and yet deprive them of the 120-day extension. …We hold that Plaintiff was entitled to the 120-day extension provided for in section 29-26-121(c) because she provided Defendants with pre-suit notice that she intended to recommence her action. In so holding, we reject Defendants’ argument that Plaintiff was only entitled to the use of one extension. Plaintiff’s re-filed complaint was a new and independent action.

              Accordingly, the Court removed the “transitional plaintiff” limitation from the Rajvongs ruling and held that the 120-day extension applies to all HCLA plaintiffs re-filing under the saving statute, whether they have previously used such an extension or not, so long as pre-suit notice is provided.

            The Court of Appeals reached the sensible result in this case. If plaintiffs are required to give pre-suit notice before re-filing a complaint identical to one that was previously nonsuited, then they should also be given the benefits that come along with such notice. Otherwise, the defendant receives the procedural benefit of notice (and the corresponding challenges that often come regarding the sufficiency of such notice), yet the plaintiff loses the benefit statutorily tied to this additional requirement. Since current case law requires a pre-suit notice for each filing, an extension should also accompany each pre-suit notice.

            Should defendant decide to appeal, it will be interesting to see whether the Supreme Court decides to take this case. The tone of this opinion seems a bit reactive—a panel of the Court of Appeals held in the recently decided Foster case that an original notice was sufficient for any subsequently filed complaints, but then the Supreme Court reversed that holding. The Court of Appeals in the present matter specifically points out this disagreement and then uses language pulled from Foster to find that if a pre-suit notice is required, then plaintiffs should at least gain the benefit of the 120-day extension. This is definitely an area of HCLA interpretation that is important for practitioners to watch, as it is unclear what the Supreme Court would hold regarding this issue.

Juror Interview in Vanderbilt Rape Trial Offers Good Practice Reminders

The Tennessean has a fascinating video interview of Todd Easter, one of the jurors in the Corey Batey and Brandon Vandenburg rape trial.    Juror feedback in any case gives trial lawyers helpful information about how to present information to a jury.  Mr. Easter’s interview yielded the following reminders:  

1.     Under Promise and Over Deliver --  In the Vanderbilt rape trial, one of the areas in which the lawyers over promised was the expected length of the trial.  The initial projection by the lawyers was 9 days.  Instead, the trial took 3 weeks.   Mr. Easter mentions this twice in his interview.  Since it sounds like both sides underestimated the time needed, the jurors were probably not mad at either side. But, if one side unilaterally makes a commitment on time (or evidence) and does not deliver, it could get ugly.  So,  Mr. Easter’s interview reminds us to be respectful of jurors time and under promise and over deliver.

2.     Digital Evidence is Hard to Overcome – If you are unfamiliar with the Vanderbilt rape case, the rape of the unconscious woman was videotaped and then shared with friends.  In addition, cameras in the dorms captured the defendants carrying the unconscious victim into the dorm and then later depositing her naked in the hallway.   Not surprisingly, the jurors found this evidence to be compelling and “impossible to refute”, which takes us to the next point.

3.     Develop Your Strategy Early and Be Consistent – At trial, the defendants claimed they were too drunk to know what they were doing.  According to Mr. Easter, the intoxication defense was introduced late into the trial.  And as such, most jurors found it especially hard to credit it.

4.     Your Client’s Presence Matters – In a criminal trial, the technical client of the prosecution is the State.  But, in reality, the client is often seen as the victim of the alleged crime.  In the Vanderbilt rape case, Mr. Easter noted the importance of the victim being at trial from “start to finish”.  And while she did not have to testify, the jurors were all struck by her bravery and her commitment to justice because she did. This same message carries over to a civil trial.  Jurors tend to believe and want to help people they like and who are committed to their case.   Help your client put their best foot forward by explaining the process, the issues, proper courtroom decorum, etc.

5.     Trying to Guess the Verdict Based on the Length of Deliberations Is Like Trying To Catch Smoke – If you have tried enough cases, you know this to be true.  We have all had cases where we thought deliberations would be short because we had killed the fly with a sledgehammer only to have the jurors take seemingly forever with their deliberations because of some technical point, etc.  In the Vanderbilt rape case, many expressed surprise over how quickly the jurors reached a verdict.   Mr. Easter explained the jurors had been hearing evidence for three weeks and that both sides had done a thorough job.  So by the time the jurors were released to deliberate, most of them were already pretty sure how they intended to vote.

Juror feedback can help a trial attorney better hone their skills.  Unfortunately, there are judges who prohibit contact with jurors, and those rules must be respected.  But, if you have try a case, and the judge allows you to contact jurors, I encourage you or someone on your behalf to do a short interview so that you can understand what you can do better, what you want to keep doing, and what you need to avoid in the future.


Punitive Damages Affirmed in Tennessee Fraud Case

            In Overton v. Westgate Resorts, LTD., L.P., No. E2014-00303-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2015), the Court of Appeals recently affirmed a punitive damage award in a fraud and misrepresentation case. Plaintiffs had traveled to Gatlinburg to look for and purchase a timeshare. Their primary concern was being able to accommodate their extended family for a trip the same week each December. While in downtown, they saw a Westgate booth and made arrangements to attend a presentation. According to plaintiffs, the presentation was “high pressure” and salespeople spent almost eight hours with plaintiffs on the relevant day. Plaintiffs found a unit that would fit their needs and decided to purchase the timeshare from Westgate.

            Plaintiffs asserted that their decision to purchase was based on assurances from the Westgate salespeople. Specifically, the Westgate representatives stated that plaintiffs would be able to retain the unit they looked at for the same week in December each year; that they would be able to book unlimited additional nights at any Westgate resort at a promotional price; that the two salespeople they worked with would refund part of their commission; and that the salespeople would purchase a foosball table to be kept at the resort for plaintiffs to use during their stays. The agreements regarding the commission and foosball table were put in writing, but the other two were not. Plaintiffs closed on the timeshare at 11:00 pm that night and were given copies of their closing documents and three CD-ROMs. The purchase price was just under $40,000.

            After closing, plaintiffs tried to confirm their December reservation, and after some unsuccessful attempts were informed that the booking would not be guaranteed for the unit they had looked at and that units were not assigned until a few days before arrival. After speaking to several customer service individuals, they also found out that they did not have the ability to book unlimited nights at other resorts as described during the presentation. Plaintiffs retained counsel, who realized that plaintiffs had not been given a current copy of the Westgate’s public offering statement, as required by the Tennessee Consumer Protection Act. Instead, plaintiffs had received an old version on CD-ROM which was extremely difficult to access and navigate. Plaintiffs sought to rescind the contract based on the TCPA, but Westgate refused. Plaintiffs then brought this action. 

            The trial court determined that Westgate had committed fraud, misrepresentation, and violations of the TCPA and Tennessee Time-share Act. The trial court awarded plaintiffs $600,000 in punitive damages, “finding the most significant factors to be Westgate’s financial position and the reprehensibility of its conduct.” Westgate appealed, and the Court of Appeals focused largely on the appropriateness of the punitive damage award in its opinion.

            The Court rather quickly affirmed that punitive damages were available in this case, as Westgate had engaged in intentional, fraudulent conduct and had willfully violated the TCPA. The Court moved on, then, to address Westgate’s argument that the punitive damages awarded were excessive. Westgate argued that because it was “approximately sixteen times the amount of the compensatory damage award,” the punitive damages were unconstitutionally disproportionate. The Court of Appeals, however, looked to the Hodges factors and BMW factors to affirm the appropriateness of the punitive award. Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). The Court noted that the trial court properly considered all Hodges factors, finding the first two factors regarding Westgate’s financial position and the reprehensibility of its conduct most important. The trial court found that it would take a large financial award to make Westgate “feel it,” and that Westgate’s actions had been “exceedingly reprehensible, due to the fact that Westgate made intentional misrepresentations to [plaintiffs], willfully violated the Tennessee Time-share Act, and refused to rescind the contract despite statutory provisions supporting such rescission.” The Court also pointed out that the trial court had considered the three factors outlined in BMW, one of which is the ratio between punitive damages and actual harm, which Westgate asserted was improper here. The Court of Appeals, however, determined that they did not find “the ratio of punitive damages to compensatory damages in this case to run afoul of due process concerns.” Accordingly, the Court held that “the punitive damages award of $600,000 was reasonable, based on applicable factors, and supported by a ratio within a constitutionally acceptable range.”

            After affirming the appropriateness of the award, however, the Court determined that punitives here were subject to the $500,000 cap in Tenn. Code Ann. § 29-39-104. This cap took effect on October 1, 2011, and though the timeshare purchase occurred before that date, the Court ruled that plaintiffs were not injured until Westgate refused to rescind the contract, which occurred in November 2011. Accordingly, the punitive damages here were reduced to $500,000.

            In what appeared to be a final effort to avoid this large penalty, defendants also tried to assert that a forum selection clause in the contract should have been enforced, forcing the litigation to occur in Florida. The Court summarily dismissed this argument, noting that “fraud in the underlying transaction renders a contract clause, such as the forum selection clause at issue here, unenforceable.”

            The Court of Appeals correctly affirmed the punitive damage award.   If punitive damages are constantly limited by strict numerical ratios, their usefulness and purpose will be undermined. Large companies with huge profits, such as the defendant here, would be extremely difficult to “punish,” as compensatory damages may be quite low in many cases. Where the conduct is highly reprehensible and the financial position of the defendant is great, trial courts need the ability to impose punitive damages that will actually have an affect on wrongdoers.

              This is the first case that has applied the punitive damages cap that became a part of our law in 2011.  The law about when a cause of action accrues in a fraud case, established to actually help protect a plaintiff's rights, harmed the plaintiff here because it triggered application of the cap.  I don't know enough about the underlying facts to know if I agree with this part of the Court of Appeals holding.

               That said, however, I am not sure why the appropriateness of the amount of the punitive damage award was analyzed under the common law factors given the decision that the tort reform act limited the punitive damages in the case.  True, the Court of Appeals cited that portion of the tort reform statute that says when punitive damages can be awarded and what factors may be considered but it then went on to analyze the statute looking at the common law factors articulated in Hodges.  To be sure, this a "no harm, no foul" result - the factors in the statute track the Hodges factors, but if the Court of Appeals was going to apply the tort reform statute to analyze a portion of the punitive damage award (whether the cap should apply) it seems that it would also be appropriate to analyze the entire award under the same statute.

                  Finally, one brief comment about the decision not to give Plaintiffs an award of attorney's fees on appeal.  The issue wasn't really discussed - the Court said that it was not addressing the issue given the size of the punitive damage award.  With all due respect to the Court of Appeals, I don't understand this point of view.  The Plaintiffs' lawyer, who probably had this case on a contingent fee, does not get paid additional money for writing a brief and arguing the case even though the appeal was largely successful?  If I had to guess, it took $30,000 - $50,000 in attorney time to handle this appeal.  The Plaintiffs' lawyer has to eat this time because he or she got a great result in the trial court affirmed on appeal?  That makes no sense to me.

                  Now, it is true that the fee agreement with the Plaintiffs may have called for an increased fee in the event of an appeal.  If so, the Plaintiffs' lawyer got paid the bargained-for amount of the work done of appeal, but it cost the Plaintiffs additional money - the cost of which should have been shifted to the defendants under the TCPA.  

                  All of which goes back to my ongoing rant about how our courts view issues about attorneys' fees.  The cost of running a law office is huge.  The cost of preparing and arguing an appeal - if one truly does what he or she is supposed to do - is significant.  These economic realities need to be taken into account when analyzing requests for fee awards under fee-shifiting statutes. 

Suing Vaccine Cynic Parents and Day Care Centers When a Child Contracts Measles

In case you have been living under a rock and have not heard, there are at least 121 confirmed cases of the measles traced from an outbreak at Disneyland in California in December.  The outbreak is significant for a number of reasons:

1.     Last year, the U.S. had a record number of measles cases since the virus was officially declared eliminated in 2000.

2.     Health officials including the Centers for Disease Control and Prevention are linking the current outbreak to non-vaccinated individuals;

3.     Parents who do not vaccinate their children typically do not do so for fear of side effects.

4.     Unvaccinated children pose a threat to others especially those who cannot be vaccinated because either they are not old enough (must be at least 1 year of age) or because their immune system is compromised due to serious illness such as cancer.

5.     Measles is highly contagious and can be fatal especially for children under 5 years of age.

Given these facts,  let’s set up a hypothetical.  You are a parent of an 8 month old baby who, because of its age, is unable to be inoculated against measles.  Your 8 month old goes to the same daycare as a 5 year old child who has not been vaccinated.   No medical issue prevents the 5 year old from being vaccinated.  Rather, the parents of the 5 year old choose not to inoculate their child out of a fear of possible side effects.  The 5 year old returns from a trip to Disneyland with his parents and unknowingly unleashes measles into the daycare.  (Symptoms of measles typically do not appear for 10 to 14 days after exposure to the virus).  Under these facts, can you and your child recover damages from the parents of the 5 year old if your 8 month old contracts measles?  Can you and your child recover damages from the daycare?

The answer is: it depends.  Certainly, there is precedent for holding an individual responsible for negligently spreading an infectious disease.  One of the most common situations involves herpes.  Typically, the herpes cases involve the infected individual failing to advise a new lover that they have herpes and then transmitting the disease to the new lover.  In the herpes cases, because the infected individual has knowledge of their condition, courts have found they have a duty to warn sexual partners in advance so that the partner can either consent to the risk or avoid or protect against the risk of transmission.

Something in the deep recesses of my mind tells me that there is also some case law from other states that address the communicable disease issue in the context of negligently transmitting tuberculosis. 

Back to our measles hypothetical.  Unlike the herpes cases in which the infected individual is aware that they have herpes because of prior open lesions, measles has an incubation period of 10 to 14 days after exposure.    And according to the Mayo Clinic, the communicable period is 4 days before any rash appears and ends when the rash has been present for four days.  So the 5 year old child could be symptom-free when her parents first return to her to daycare only to develop symptoms afterwards, which means the child could be spreading the disease before the parents would be on actual notice of a measles infection.

Courts would have declare that  that even without knowledge that your child has been infected with the measles, parents who choose not to vaccinate their children can be held liable if their unvaccinated child contracts the measles and passes the virus on to another child.  Or, in essence, that parents have a duty to vaccinate and, if they choose not to do so, they are responsible for any damages flowing from the decision.  A physician’s recent article summed up the  argument that would be made by the plaintiff's lawyer in arguing that a duty should be imposed:

Getting vaccinated involves an element of social responsibility.  The strength of our public health is reliant on a web of mutuality.  When we drive sober and at the speed limit, or when we ban smoking in public places, we are doing the basic but important work of keeping each other safe and healthy.  Vaccinations are an integral part of that process, and no one should have to suffer from preventable diseases.  As much as anti-vaxxers may think they are exercising their right to choose, they do not have the right to put others at risk.  (The full article can be read here.) 

Of course, if the parents sent the 5 year old to school knowing the child was infected with the measles, the duty issue because easier to resolve (although the parents would argue that not withstanding the foreseeability of harming others there was a legitimate public policy reason not to vaccinate their child and therefore a duty should not be imposed).

This brings us to causation.  It will be necessary to establish not only duty and breach of duty but also  cause in fact, i.e. the 5 year old in daycare with your 8 month old was the source of the infection.  (There is also the legal cause issue, but my guess is that issue will be resolved in the same way as the duty issue).  If there are no other reported cases in the State of Tennessee and you have not been traveling with your infant, then causation will be relatively easy to establish.  On the other hand, if there are multiple outbreaks in the State of Tennessee or if your child has been traveling with potential exposure from other sources, then causation is going to be trickier and more like the herpes victim who has had multiple sexual partners.

As for the daycare itself, state law requires child care facilities and schools through 12th grade to obtain proof of immunization, as specified by law, prior to enrollment.  Of course, the regulations provide for exemptions if a qualified medical provider finds that the vaccine is contraindicated for a child based on their medical condition or if the parent or guardian provides a sworn statement that the vaccination conflicts with their “religious tenets and practices”.   If the daycare or school admits a student who has been exempted, should the daycare be required to notify the parents of all other students that there is a child in the school who has not been properly vaccinated so that parents can assess the risk and take whatever action they feel is necessary to protect their child?   Or, even in the absence of that duty, the duty to warn other parents in the event that it learns that the non-immunized child has traveled to a location with an outbreak of measles?

Lastly, there is the issue of the ability to collect damages.  As for the daycare, presumably it has insurance coverage to cover the damages arising from improperly enrolling an unvaccinated child who later triggers a measles infection or failure to warn.  In addition, the parents of the 5 year old may have homeowner insurance which provides indemnity for this type of action that results in harm.  If there is no insurance coverage, it will, of course, be necessary to determine if the parents have any assets which might be used to pay for the damages caused by their acts and omissions.  

While it would be personally satisfying to sue for any and all measles infections caused by 'the decision of  irresponsible parents who choose not to vaccinate their child without an appropriate medical reason, the cases are just too complex for that to make sense in cases where the affected child is quickly cured. That said,  if the injuries are serious  or if death results, then a strong argument can be made fault should be squarely placed on the vaccine-cynic parents who unnecessarily endangered the health and welfare of others, especially young children.  Likewise, day care centers that refuse to follow state law or fail to warn other parents that an at-risk child is placing all children in the facility at risk should also be held responsible for their decision.  Know, however, that getting involved in such a fight, especially against the anti-vaccine parents, will likely involve the need to make new law on the duty issue.