JEFFEREY D. KEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF RANDALL EUGENE KEY ET AL.v. BLOUNT MEMORIAL HOSPITAL, INC. ET AL. (Tenn. Ct. App. May 31, 2011)
This is an appeal from a grant of summary judgment to the defendant hospital in a medical malpractice wrongful death case. The trial court struck as untimely the materials filed by the plaintiff in opposition to the defendant's motion for summary judgment. The responsive materials were filed less than five days before the date originally scheduled for a hearing on the defendant's motion; however the hearing was continued for several months. Having struck the plaintiff's filings, the court held that the motion negated violation of the standard of care and causation and granted the motion as unopposed.
The plaintiff contends on appeal that the defendant did not negate either violation of the standard of care or causation; that the materials responsive to the motion should not have been stricken; and that, if the materials filed in opposition to the motion are considered, the plaintiff presented issues of material fact for trial. We vacate the trial court's grant of summary judgment and remand for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/keyj_053111.pdf
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Tuesday, May 31, 2011
Wednesday, May 25, 2011
TWCA Reviews a Finding of an Employee's Meaningful Return to Work
JOHN ERNEST HAYES v. AMERICAN ZURICH INSURANCE COMPANY ET AL. (TWCA May 25, 2011)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The trial court found that the employee had sustained a compensable injury. In addition, it found that the employee had a meaningful return to work, and his award of permanent partial disability ("PPD") benefits was limited to one and one-half times his anatomical impairment pursuant to Tennessee Code Annotated section 50-6-241(d)(1).
On appeal, the employee contends the trial court erred by finding that he had a meaningful return to work. The employer contends the trial court erred by admitting a discovery deposition of an expert into evidence over its objection based upon Tennessee Rule of Civil Procedure 32.01(3), and finding that the injury at issue was not concurrent with injuries which were the subject of a separate lawsuit. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/hayesj_052511.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The trial court found that the employee had sustained a compensable injury. In addition, it found that the employee had a meaningful return to work, and his award of permanent partial disability ("PPD") benefits was limited to one and one-half times his anatomical impairment pursuant to Tennessee Code Annotated section 50-6-241(d)(1).
On appeal, the employee contends the trial court erred by finding that he had a meaningful return to work. The employer contends the trial court erred by admitting a discovery deposition of an expert into evidence over its objection based upon Tennessee Rule of Civil Procedure 32.01(3), and finding that the injury at issue was not concurrent with injuries which were the subject of a separate lawsuit. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/hayesj_052511.pdf
Friday, May 20, 2011
General Assembly passes major legislation, including the Civil Justice Act, and looks toward adjournment
The Tennessee General Assembly worked in marathon floor and committee sessions this week towards the conclusion of the 2011 legislative session. Among major legislation approved by the State Senate is a civil justice law sponsors say will establish a climate to help create jobs in Tennessee, several measures cracking down on child sex offenders and those who engage in human trafficking, and state's rights legislation.
According to its sponsors, the Tennessee Civil Justice Act of 2011 is designed to provide certainty and predictability for businesses, while ensuring that injured plaintiffs receive all of the economic, quantifiable damages they suffer. The bill's sponsors say the state's current civil justice system puts the state at a competitive disadvantage when it comes to attracting new businesses and jobs. Opponents of the bill say it is harmful to injured plaintiffs by limiting the amount they can recover and that Tennessee has not seen runaway jury verdicts as in other states.
Key provisions of Senate Bill 1522 include:
- The bill limits the maximum appeal bond amount from $75 million to $25 million or 125 percent of the judgment amount.
- It defines two components of compensatory damages: economic and non-economic damages.
- The measure places a cap on non-economic damages, which are subjective damages like pain and suffering, at $750,000 per injured plaintiff for both healthcare liability action and other personal injury actions. However, if the harm suffered is intentional, the caps would not apply.
- As amended, the bill raises the cap to $1.0 million if the plaintiff becomes a paraplegic or quadriplegic because of spinal cord injury, sustains third degree burns over 40 percent or more of his or her body or face, has an amputation of a hand or foot, or wrongfully dies leaving one or more minor children.
- There is no cap, under the measure, on economic damages and any damages that can be objectively quantified may be recovered.
- Caps punitive damages, which must be proved by clear and convincing evidence, at two times compensatory damage or $500,000, whichever is greater, unless the defendant intended to injure the plaintiff, was under the influence of drugs or alcohol, or intentionally falsified records to avoid liability.
- Prevents punitive damages in products liability actions, unless the seller had substantial control over the design or manufacturing of the product or had actual knowledge of the defect in the product at the time it was sold.
The bill now goes back to the House of Representatives for approval of an amendment before it is sent to the governor for his signature. It will take effect October 1, 2011, and apply to all liability actions for injuries accruing after that date.
According to its sponsors, the Tennessee Civil Justice Act of 2011 is designed to provide certainty and predictability for businesses, while ensuring that injured plaintiffs receive all of the economic, quantifiable damages they suffer. The bill's sponsors say the state's current civil justice system puts the state at a competitive disadvantage when it comes to attracting new businesses and jobs. Opponents of the bill say it is harmful to injured plaintiffs by limiting the amount they can recover and that Tennessee has not seen runaway jury verdicts as in other states.
Key provisions of Senate Bill 1522 include:
- The bill limits the maximum appeal bond amount from $75 million to $25 million or 125 percent of the judgment amount.
- It defines two components of compensatory damages: economic and non-economic damages.
- The measure places a cap on non-economic damages, which are subjective damages like pain and suffering, at $750,000 per injured plaintiff for both healthcare liability action and other personal injury actions. However, if the harm suffered is intentional, the caps would not apply.
- As amended, the bill raises the cap to $1.0 million if the plaintiff becomes a paraplegic or quadriplegic because of spinal cord injury, sustains third degree burns over 40 percent or more of his or her body or face, has an amputation of a hand or foot, or wrongfully dies leaving one or more minor children.
- There is no cap, under the measure, on economic damages and any damages that can be objectively quantified may be recovered.
- Caps punitive damages, which must be proved by clear and convincing evidence, at two times compensatory damage or $500,000, whichever is greater, unless the defendant intended to injure the plaintiff, was under the influence of drugs or alcohol, or intentionally falsified records to avoid liability.
- Prevents punitive damages in products liability actions, unless the seller had substantial control over the design or manufacturing of the product or had actual knowledge of the defect in the product at the time it was sold.
The bill now goes back to the House of Representatives for approval of an amendment before it is sent to the governor for his signature. It will take effect October 1, 2011, and apply to all liability actions for injuries accruing after that date.
Thursday, May 19, 2011
Court Reviews A Jury Verdict in a Medical Malpractice and Wrongful Death Action
PATTI ZAKOUR, DECEASED, BY NEXT OF KIN, INDIVIDUALLY AND AS NATURAL CHILDREN, NEXT FRIEND AND ON BEHALF OF ANY AND ALL WRONGFUL DEATH BENEFICIARIES OF PATTI ZAKOUR, DECEASED v. UT MEDICAL GROUP, INC. (Tenn. Ct. App. May 19, 2011)
The trial court granted Defendant's motion to set aside the judgment arising from a jury verdict in favor of Plaintiffs in this medical malpractice/wrongful death action. It also conditionally granted Defendant's alternative motion for a new trial. In light of Abshure v. Methodist Healthcare, we vacate the judgment and remand for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/zakourp_051911.pdf
The trial court granted Defendant's motion to set aside the judgment arising from a jury verdict in favor of Plaintiffs in this medical malpractice/wrongful death action. It also conditionally granted Defendant's alternative motion for a new trial. In light of Abshure v. Methodist Healthcare, we vacate the judgment and remand for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/zakourp_051911.pdf
Tuesday, May 10, 2011
TWCA Reviews Whether Employee's Injury was Compensable
STEVE MCBROOM v. NISSAN NORTH AMERICA, INC. ET AL. (TWCA May 10, 2011)
The employee alleged that he sustained a lower back injury as a result of his job. His employer denied the claim based upon findings by its work site medical staff. An evaluating physician opined that the employee's job had caused an aggravation of a pre-existing degenerative disc disease.
The trial court found that the employee had sustained a compensable injury and awarded benefits. The employer appealed, contending that the evidence preponderates against the trial court's finding. We affirm the judgment, but we decline the employee's request to find the appeal to be frivolous.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/mcbrooms_051011.pdf
The employee alleged that he sustained a lower back injury as a result of his job. His employer denied the claim based upon findings by its work site medical staff. An evaluating physician opined that the employee's job had caused an aggravation of a pre-existing degenerative disc disease.
The trial court found that the employee had sustained a compensable injury and awarded benefits. The employer appealed, contending that the evidence preponderates against the trial court's finding. We affirm the judgment, but we decline the employee's request to find the appeal to be frivolous.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/mcbrooms_051011.pdf
Thursday, May 5, 2011
Court Reviews a Summary Judgment Ruling in a Slip and Fall Case
DAVID MACKLIN v. DOLLAR GENERAL CORPORATION, d/b/a DOLLAR GENERAL STORE #2311 (Tenn. Ct. App. May 4, 2011)
This is a premises liability case. The plaintiff slipped and fell on a clear liquid at the defendant's store. The defendant moved for summary judgment arguing it did not have a reasonable opportunity to clean the floor, warn the customer of the clear liquid, or take adequate precautionary measures upon receiving notice of the dangerous condition.
The trial court granted the motion and the plaintiff appealed. Having determined the defendant effectively moved for and received only partial summary judgment, we dismiss this appeal for lack of subject matter jurisdiction.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/macklind_050411.pdf
This is a premises liability case. The plaintiff slipped and fell on a clear liquid at the defendant's store. The defendant moved for summary judgment arguing it did not have a reasonable opportunity to clean the floor, warn the customer of the clear liquid, or take adequate precautionary measures upon receiving notice of the dangerous condition.
The trial court granted the motion and the plaintiff appealed. Having determined the defendant effectively moved for and received only partial summary judgment, we dismiss this appeal for lack of subject matter jurisdiction.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/macklind_050411.pdf
Monday, May 2, 2011
TWCA Reviews Whether Employee Sustained any Permanent Impairment or Disability
BRENDA COLE v. GOODYEAR TIRE & RUBBER COMPANY ET AL. (TWCA May 2, 2011)
An employee was struck in the back of the leg by a wooden pallet while at work. She alleged that she sustained permanent injuries to her neck, back, and foot as a result of that incident and filed a complaint against her employer in chancery court for workers' compensation benefits. Her employer denied that she had sustained any permanent impairment or disability. The chancery court held that the employee sustained a compensable injury and awarded 20% permanent partial disability benefits. The employer has appealed. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2011/coleb_050211.pdf
An employee was struck in the back of the leg by a wooden pallet while at work. She alleged that she sustained permanent injuries to her neck, back, and foot as a result of that incident and filed a complaint against her employer in chancery court for workers' compensation benefits. Her employer denied that she had sustained any permanent impairment or disability. The chancery court held that the employee sustained a compensable injury and awarded 20% permanent partial disability benefits. The employer has appealed. We affirm the judgment.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2011/coleb_050211.pdf
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