TDLA News

TDLA is currently working on several Amicus Briefs. Below is an outline of those Amicus Briefs for our membership.

1. TDLA’s Professional Negligence and Healthcare Committee Co-Chair, Chris Vrettos: On April 7, 2021, the Supreme Court granted Defendants’ application for permission to appeal in Cooper v. Mandy, et al. Cooper involved claims of a negligently performed breast reduction surgery in which the patient maintained she never would have undergone the procedure but for the physician and his practice group’s alleged misrepresentation regarding his credentials. After Plaintiffs’ counsel failed to comply with pre-suit notice requirements on both filing and re-filing of the lawsuit, the Trial Court denied Defendants’ Motion to Dismiss on the grounds that all of Plaintiffs’ claims—including one for medical battery—flowed from the alleged initial misrepresentation. Consequently, Tennessee’s Health Care Liability Act did not apply. The Court of Appeals affirmed in November 2020. Brie Stewart of Spears, Moore, Rebman & Williams in Chattanooga will prepare an amicus brief on behalf of the Tennessee Defense Lawyers Association.
   
   
2. TDLA’s Tort Committee Co-Chair, Sean Martin: Younger v. Okbahhanes is an action for personal injury arising out of a motor vehicle accident. Plaintiff filed a lawsuit against Defendant more than 1 year after the accident. Defendant filed a motion for summary judgment arguing that Plaintiff’s action was untimely. Plaintiff argued in response that T.C.A. § 28-3-104(a)(2) operated to extend the statute of limitations to two years because Defendant was issued a traffic citation for failure to exercise due care in violation of § 55-8-136. T.C.A. § 28-3-104(a)(2) extends the statute of limitations to two years if “(A) Criminal charges are brought against any person alleged to have caused or contributed to the injury; (B) The conduct, transaction, or occurrence that gives rise to the cause of action for civil damages is the subject of a criminal prosecution commenced within one (1) year by: (i) A law enforcement officer; (ii) A district attorney general; or (iii) A grand jury; and (C) The cause of action is brought by the person injured by the criminal conduct against the party prosecuted for such conduct.” The trial court found that T.C.A. § 28-3-104(a)(2) extended the statute of limitations to two years because Defendant was charged with a criminal offense and a criminal prosecution had been commenced against him. Addressing this as a matter of first impression, the Tennessee Court of Appeals affirmed, holding that “the traffic citation issued to Defendant for failure to exercise due care, which had been prepared, accepted, and the original citation filed with the court, [wa]s a criminal charge and a criminal prosecution by a law enforcement officer, such that [T.C.A. § 28-3-104(a)(2)] was applicable to extend the statute of limitations to two years.” Therefore, the Court of Appeals upheld the trial court’s denial of summary judgment to Defendant. Defendant filed a Rule 11 Application for Permission to Appeal with the Tennessee Supreme Court at the end of March 2021. Plaintiff filed a timely response in opposition in April 2021. We are currently waiting for the Tennessee Supreme Court to decide whether to grant permission to appeal. Hannah Lowe of Trammell Adkins & Ward in Knoxville is working on an amicus brief that will be ready to be filed on behalf of TDLA should the Tennessee Supreme Court accept the application and grant permission for the appeal.
   
   
3. Todd Presnell with Bradley’s Nashville office is drafting an Amicus Brief on behalf of TDLA. This brief will be in support of Nashville Ready Mix’s Rule 11 Application in Story v. Meadows, Court of Appeals No. M2019-01011-COA-R3-CV. This submission is also being considered in partnership with DRI's national Amicus Committee. 

On January 28, 2021, the Court of Appeals for the Eastern Section, in a case of first impression, interpreted Tennessee Code Annotated §28-3-104(a)(2) to extend the statute of limitations to two years when a traffic citation for failure to exercise due care was issued at the scene of the accident.  See Younger vs. Okbahhanes, 2011 Tenn. App. Lexis 33 (January 28, 2021). 

            TDLA member Sean Martin with Carr Allison in Chattanooga is the attorney for the appellant. To aid in his application to the Tennessee Supreme Court, he would like to know whether you have had or currently have a case involving Tennessee Code Annotated section 28-3-104 (a)(2).  He is also interested in learning if you have received a new lawsuit since January 28, 2021 that attempts to revive a case thought to have been barred by the one year statute of limitations but now has a two year statute based on this holding.

            Please forward any information or comments to swmartin@carrallison.com.

TDLA Board for 2020-2021 was recently announced at our Annual Meeting on September 3, 2020. The TDLA Board for 2020-2021 is:

President - Heather Douglas - Manier & Herod, Nashville
President Elect - Dawn Davis Carson - Hickman, Goza & Spragins, Memphis
Secretary/ Treasurer - Hannah Lowe - Trammell, Adkins & Ward, Knoxville
Immediate Past President - Rocky King - Egerton, McAfee, Armistead & Davis, Knoxville

Vice-Presidents:
Nathan Shelby - Rainey, Kizer, Reviere & Bell, Nashville
Sean Martin - Carr Allison, Chattanooga
Chris Frulla - Rainey, Kizer, Reviere & Bell, Jackson

Directors:
Michael Haynie - Manier & Herod, Nashville
Hank Spragins - Hickman, Goza & Spragins, Memphis
Rob Carden - Spears, Moore, Rebman & Williams, Chattanooga

Tennessee Defense Lawyers Association (“TDLA”) is proud to announce the annual award winners for TDLA Defense Lawyer of the Year, Rising Star and Outstanding Service awards that were presented at the recent TDLA Annual Meeting.

Katherine “Kay” Anderson with Baker, Donelson law firm in Memphis, Tennessee was the 2020 recipient of the TDLA Defense Lawyer of the Year award. This award honors a TDLA member who has made significant contributions to TDLA, to the defense bar, and/or to the practice of law in Tennessee this year. Nominated by fellow TDLA member Bradley Gilmer, he noted in his nomination that “Kay is a zealous advocate for every doctor, nurse and layperson she represents and her work ethic is legendary.  Even through the many challenging times she suffered personally this year, it never slowed her drive.”

Devin Lyon with Arnett, Draper and Hagood in Knoxville, Tennessee was the 2020 recipient of the TDLA Rising Star award. This award honors a TDLA member who has been practicing law 10 years or less and who has made significant contributions to TDLA, to the defense bar, and/or who has promoted the interests of young lawyers in Tennessee this year. Devin has actively participated in TDLA Young Lawyers programs including co-chairing the 2019 Boot Camp, procuring excellent speakers and judges. He is also one of three Bench / Bar Committee members serving a three-year term on behalf of TDLA.

Cate Dugan with Peterson White in Nashville, Tennessee was the recipient of the TDLA Outstanding Service Award. This award is to honor a TDLA member who has exhibited exemplary service to the TDLA. A member who goes above and beyond to further the ideals and efforts of this organization. One that works tirelessly to better this organization while also contributing the Defense Bar as a whole. Cate is a past President of TDLA. She has diligently served on the Board for over 10 years. She was most recently the DRI State Representative for TDLA representing Tennessee on a national organization level. She played an integral part in DRI awarding TDLA the state defense organization of the year for the first time in the organization’s history. Cate has devoted time and energy over the last decade to help make the TDLA the premier defense organization of the state.

Congratulations to all of our 2020 award recipients!

Tennessee Defense Lawyers Association (“TDLA”) is proud to announce the Tennessee recipients of the international Defense Research Institute (“DRI”) Annual Professional Achievement and Service Awards. These awards identify peers who deserve recognition either for their professional contributions to, and achievements on behalf of, the defense bar and the civil justice system or their involvement in community and public service activities that have a positive impact on society at large.

E. Todd Presnell, a partner with Bradley, Arant, Boult and Cummings LLP in Nashville, received the “Tom Segalla Excellence in Education” award. This award recognizes a DRI member whose contributions through legal scholarship exemplify the highest educational standards of DRI and its mission to improve the skills of defense practitioners.

Mary W. Gadd, Executive Director of TDLA in Lookout Mountain, received the “DRI SLDO Executive Director” award. This award recognizes a DRI state and local defense organization (“SLDO”) executive director who best fosters a relationship between his or her SLDO and DRI, and who otherwise demonstrated exceptional service to the cause of the defense bar and their state organization. She has served as the executive director with TDLA since 2015.

DRI, the voice of the defense bar, is the international membership organization of all lawyers involved in the defense of civil litigation. DRI has served the defense bar for more than 50 years and boasts a membership of over 20,000 members. TDLA is also the 2017 recipient of the DRI Rudolph A. Janata award recognizing an exemplary state and legal organization.

The award winners will be recognized at DRI's Virtual Annual Meeting in October and in person at the DRI Summit in Spring 2021.

The Tennessee Defense Lawyers Association wishes to recognize the talent and achievements of our members by presenting the following two annual awards at the TDLA Annual Meeting virtual event on Thursday September 3, 2020. Nominations are now being accepted.

The deadline for nominations is Monday August 17, 2020. To be eligible for the awards, nominees must be members in good standing of TDLA.

DEFENSE LAWYER OF THE YEAR
To honor a TDLA member who has made significant contributions to TDLA, to the defense bar, and/or to the practice of law in Tennessee this year.

RISING STAR AWARD
To honor a TDLA member who has been practicing law 10 years or less and who has made significant contributions to TDLA, to the defense bar, and/or who has promoted the interests of young lawyers in Tennessee this year.

For a Nomination Form: Click Here

On June 22, 2020, DRI and TDLA members Kenneth W. Ward and Hannah S. Lowe (Trammell, Adkins & Ward, P.C., Knoxville, Tennessee) received a favorable ruling from the Tennessee Court of Appeals, which overturned a jury verdict in a slip and fall case brought against their clients, Beaver Hollow L.P. (BHLP), the owner of an apartment complex in Johnson City, Tennessee, and Olympia Management, Inc. (Olympia), the management company with which BHLP had contracted to manage the day-to-day operation of the apartments. 

The plaintiff, a resident of the apartments, was injured in February 2015 after slipping on ice and snow in the parking lot.  The plaintiff sued BHLP and Olympia in the Circuit Court for Washington County alleging negligence against both defendants and seeking compensatory damages.  She was later permitted by the trial court to amend to seek punitive damages as well.  The case was tried over several days in November 2018.  At the end of the first phase of trial, the jury allocated fault 49% to the plaintiff, 50% to Olympia, and 1% to BHLP.  Compensatory damages were found to be $1,251,396.41, which was reduced to $638,212.17 after allocation of plaintiff’s 49% share of fault.  The matter proceeded to a second phase of trial to determine the amount of punitive damages against Olympia (the jury having determined that the plaintiff had established in the first phase entitlement to an award of punitive damages against Olympia only), and the jury ultimately awarded $1,400,000.00 in punitive damages against Olympia. 

The defendants filed multiple post-trial motions, which were all denied.  On appeal, the Tennessee Court of Appeals found one issue to be dispositive and require that the verdict be vacated and remanded for a new trial: the trial court’s denial of the defendants’ motion for a directed verdict with respect to BHLP, the property owner.  Finding that there was absolutely no material evidence whatsoever in the record to support the jury’s allocation of fault to BHLP, as BHLP could not simply be held liable when the proof showed it was merely a passive owner of the apartments who had delegated complete actual control of the apartments to Olympia, the Court of Appeals held that the trial court erred in denying the defendants’ motion for a directed verdict as to BHLP.  The failure to grant a directed verdict to BHLP meant that fault must be reallocated, which was particularly significant in this case where the plaintiff had been found to be 49% at fault, as had the jury allocated the 1% to the plaintiff instead of to BHLP, the defendants would have prevailed under Tennessee’s modified comparative fault system as the plaintiff would have been found to be 50% at fault. 

Having found that the trial court erred in failing to grant a directed verdict to BHLP, and as fault could not be reallocated on appeal, the Court of Appeals vacated the trial court’s judgment and remanded for the trial court to enter a directed verdict as to BHLP and for a new trial with Olympia as the sole remaining defendant.  Because the Court of Appeals found this one issue to be dispositive and mandate a new trial in this matter, all other issues on appeal were pretermitted. 

You can read more about the case, Geneva Jessica Day v. Beaver Hollow, L.P., et. al., Appeal. No. E2019-01266-COA-R3-CV by following this link to the full text of the opinion.    

TN Supreme Court Order Extends Judicial Emergency and Eases Court Restrictions

May 27, 2020

The Tennessee Supreme Court today issued an Order that extends the judicial state of emergency and eases restrictions imposed by previous court orders. These changes include allowing jury trials to begin after July 3 with strict protocols; allows eviction cases to be heard beginning June 1; ends deadline extensions; and allows local judicial districts to continue operating under their approved plans for expanded in-person proceedings. The Order continues to encourage remote proceedings via video or audio conference whenever possible.  

Today’s Order allows jury trials to begin after July 3, 2020, if strict social distancing and capacity protocols can be met and CDC guidelines are followed. The Order also provides for six-person juries in civil cases unless a twelve-person jury is specifically requested by a party.  

Deadlines in court rules, statutes, and administrative rules that were previously extended until May 31 are extended only until June 5. After this date, the Supreme Court does not anticipate any further extension of deadlines. “The point of extending deadlines was to give judges, attorneys, and litigants time to adjust to this new normal and weather this storm a bit,” Chief Justice Bivins said. “But, extensions cannot go on indefinitely. Judges, of course, can extend deadlines on an individual basis when permissible.”

The Order also lifts the broad restrictions on evictions. As of June 1, eviction cases may be heard if the landlord states under penalty of perjury that the action is not subject to the federal Coronavirus Aid, Relief, and Economic Security Act (CARES) Act.

The Supreme Court issued an order on April 24 that allowed judicial districts to expand in-person proceedings if the Supreme Court approved a plan submitted by the district addressing such issues as social distancing, limiting access to the courtroom, and other strategies designed to limit the spread of Covid-19 as much as possible. The majority of judicial districts are now operating under those approved plans, which are available on the TNCourts.gov website. Judicial districts that did not submit a plan are continuing to operate under the parameters set forth in the March 25 Order. 

“For now, each court will continue to operate under their approved plan or the March 25 Order,” Chief Justice Jeff Bivins said. “Our top priority throughout the pandemic has been ensuring courts remain open and accessible for Tennesseans. We have worked diligently with local officials to ensure that emergency orders of protection, bond hearings, custody hearings, and other critical matters can be heard promptly. We have had to balance access to the courts with the health and safety of all participants and workers in the judicial system.

Over the past ten weeks, courts across Tennessee have continued to utilize technology to keep courts open and accessible. Dozens of courts have held their first remote proceedings via video conference, and proceedings have been live-streamed to YouTube for the first time. For example, the Tennessee Supreme Court held oral arguments via video conference twice, including a live-stream, the Court of Appeals held oral arguments via video conference, and the 20^th Judicial District Chancery Court conducted hearings in a school voucher case via video conference over multiple days. In total, over 700 video proceedings have taken place on Zoom licenses managed by the Administrative Office of the Courts since the middle of April. Some counties and individual judges have also purchased their own video conferencing tools that are not managed by the AOC.

“While there certainly are some challenges, many judges are finding a lot of efficiencies and advantages to deploying remote proceedings in certain circumstances,” Chief Justice Bivins said. “Sometimes great innovation comes out of crisis and that is what is happening across the Tennessee judiciary.”

As with the previous Orders related to Covid-19, today’s Order applies to all state and local courts across Tennessee, including state circuit and chancery courts, general sessions courts, juvenile courts, and municipal courts.

The Order is available here. 

Thank you to the TDLA Professional Negligence & Healthcare section chair Chris Vrettos with Gideon, Cooper, and Essary PLC for the TDLA Amicus Brief on this case culminating in a favorable result. Please see summary and opinions below.

The Supreme Court just released its opinion in Martin v. Rolling Hills Hospital, a pre-suit notice case involving deficiencies in the HIPAA authorization.  The Supreme Court’s decision resulted in a reinstatement of the dismissal originally granted to the Defendants by the trial court.

Just as importantly, the Supreme Court addressed some questions—particular to HIPAA authorization deficiency cases—that up until now had been answered inconsistently by various Courts.  In summary:

• Defendants wishing to challenge a Plaintiff’s compliance with the pre-suit notice statute should show how Plaintiff’s noncompliance frustrated the purpose of the statute, or denied the defendants a benefit conferred by the statute.
• One way to do this is to show that the HIPAA authorization accompanying the notice lacked one or more of the 6 core elements required by federal regulations.
• While Defendants must still explain how they were prejudiced by Plaintiff’s noncompliance, they need not attempt to “test” a deficient HIPAA authorization.
• Once Defendants have met the burden described above, the burden shifts back to Plaintiffs to show substantial compliance with, or extraordinary cause for failure to comply with, pre-suit notice requirements.
• Notably, prejudice is relevant to the question of substantial compliance, but it is not its own analytical element in ruling upon a Rule 12.06 motion regarding Plaintiff’s failure to comply with pre-suit notice requirements.

Majority Opinion: click here

Separate Opinion: click here

TDLA members Ashley Cleek and Brandon Stout with Rainey, Kizer, Reviere & Bell in Jackson, TN were attorneys for the appellants, Rolling Hills Hospital, LLC, and Universal Health Services, Inc.

TDLA Members: If you would like to submit a request for TDLA Amicus Brief consideration, please email office@tdla.net

Please see Tennessee Order regarding modification of In-Person Court Proceedings and Extension of Tennessee Deadlines. Click Here