Evidence - In Tennessee when does the "cancellation rule" apply to exclude testimony of a witness who provided inconsistent testimony?

Brief Summary:  The “cancellation rule” is a narrow rule and only applies to bar inconsistent testimony of a witness in limited circumstances.  The rule can exclude the testimony of a witness when the testimony is clearly contradictory (is not open to different interpretations or explanation) and there is no corroborating evidence for either version of the testimony.

Analysis:  The recent Tennessee Court of Appeals decision of Norman Hill v. Danny Tapia, Jr., No. M2012-00221-COA-R3-CV, 2012 WL 6697308 (Tenn. Ct. App. December 21, 2012) discussed when the "cancellation rule" applies to bar testimony from a physician who provided inconsistent testimony.  This issue came up because one party contended that the entirety of a physician's testimony should be "stricken from consideration because it is vague, contradictory, and unclear."  Hill at 5.  The court noted that "Dr. Hampf's testimony first tends to establish causation, then tends to weaken that conclusion."  Hill at 4. 

The court noted that Tennessee has adopted the "cancellation rule".  The Tennessee Court of Appeals stated "Tennessee follows the rule that contradictory statements by the same witness regarding a single fact cancel each other out.   If determined by the trial court to be contradictory, the statements by the witness are considered to be ‘no evidence’ of the fact sought to be proved.”  Hill at 5.  The court went on to state:

The question here is not one of the credibility of a witness or of the weight of evidence; but it is whether there is any evidence at all to prove the fact. If two witnesses contradict each other there is proof on both sides, and it is for the jury to say where the truth lies; but if the proof of a fact lies wholly with one witness, and he both affirms and denies it, and there is no explanation, it cannot stand otherwise than unproven. For his testimony to prove it is no stronger than his testimony to disprove it, and it would be mere caprice in a jury upon such evidence to decide it either way.

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Immunity - Can a person bring a cause of action in tort against their spouse under Tennessee law?

Brief Summary:  The spousal immunity doctrine preventing causes of action in tort against a spouse no longer applies in Tennessee.  It was abolished by the Tennessee Supreme Court in 1983 in Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983).

Analysis:  I received a question about whether Tennessee law allows a person to bring a tort cause of action against their spouse.  I thought this was a good topic for a blog post.  Historically, Tennessee applied the doctrine of "interspousal immunity" as a bar for an individual's cause of action against their spouse.  The Tennessee Supreme Court abolished this rule in 1983 with the decision of Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983). 

The Tennessee Supreme Court in Davis discussed, in detail, the historical reasons and arguments for the "interspousal immunity" doctrine in Tennessee and in other states. Davis at 754 – 759.  (This is a very interesting discussion about the reasons and historical underpinnings for this doctrine if you are interested in this type of thing).  In 1983, when this decision was issued, states were turning away from this doctrine.

The Tennessee Supreme Court found that it was appropriate to abolish the "interspousal immunity" doctrine because the original reasons for the doctrine had been largely abandoned.  The court stated that "no plausible reasons for retaining it, and cognizant of the high cost exacted by the rule because of the absolute bar it places in the path of potentially meritorious claims, we hold that interspousal tort immunity is totally abolished in this State."  Davis at 759.

Statute of Limitations - When does the doctrine of fraudulent concealment extend the statute of limitations under Tennessee law?

Analysis:  The recent Tennessee Court of Appeals decision of Alisa Leigh Eldrige v. Lee Savage, No. M2012-00973-COA-R3-CV, 2012 WL 6757941 (Tenn. Ct. App. December 28, 2012) discussed when fraudulent concealment can extend the statute of limitations for a cause of action.  This case concerned an allegation that the seller of a home fraudulently concealed fire damage in the sale of the home to the plaintiff purchaser. Eldrige at 1, 2.  The plaintiff alleged the defendant negligently or intentionally misrepresented the fire damage by making false statements of fact about the extent of the damage and subsequent repairs made to the home. Eldrige at 2.  The original sale transaction of the home occurred in 1994 and the lawsuit was not brought until 2010. Eldrige at 1.  The plaintiff asserted she did not discover the extensive fire damage until 2010. Eldrige at 1.

One of the questions in this case was whether the doctrine of “fraudulent concealment” applied to toll the statute of limitations. Eldrige at 2.  Generally, the doctrine of fraudulent concealment applies "to circumstances in which the defendant purposefully engages in conduct intended to conceal the plaintiff's injury from the plaintiff."  Eldrige at 4.  The Tennessee Court of Appeals found that a plaintiff who invokes the doctrine of fraudulent concealment must allege and prove four specific elements as follows:

(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.

Eldrige at 4

Immunity - Can a child sue their parent in a tort suit in Tennessee?

Brief Summary:  The parental immunity doctrine does apply in Tennessee but was limited by the Tennessee Supreme Court in 1994.  The doctrine is limited to “conduct that constitutes the exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody.”

Analysis:  I recently received a question about whether a child can sue their parent for negligence in tort.  Historically, the doctrine of “parental immunity” barred such a cause of action.  This doctrine was first adopted by Tennessee Supreme Court in McKelvey v. McKelvey, 77 S.W. 664 (Tenn. 1903).  It was also reaffirmed as recently as 1985 by the Tennessee Supreme Court in Barranco v. Jackson, 690 S.W.2d 221 (Tenn. 1985).  However, this doctrine was modified by the Tennessee Supreme Court in 1994 in the case of Broadwell by Broadwell v. Holmes, 871 S.W.2d 471 (Tenn. 1994).

In Broadwell, the Tennessee Supreme Court noted the trend at that time across America was to modify and limit the absolute parental immunity doctrine.  As a result, the Court analyzed various modifications other states had enacted to the parental immunity doctrine (this is an interesting analysis if you are interested in this topic but it will not be restated here). Broadwell at 473 – 475.  The Court also noted the reasons and justification for this doctrine as follow: 

The parental right to govern the rearing of a child has been afforded protection under both the federal and state constitutions. This Court has stated, “Tennessee's historically strong protection of parental rights and the reasoning of federal constitutional cases convince us that parental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee Constitution.”  The integrity of the family unit has found protection against arbitrary state interference in the Due Process Clause of the Fourteenth Amendment.

Medical Testimony - Is a doctor's speculation about future surgeries and costs of those surgeries admissible at trial?

Brief Summary:  The short answer is that a doctor can not speculate about the need for future surgeries or the costs associated with such surgeries.  Testimony from a doctor that amounts to speculation will be excluded by the trial court.

Analysis:  In the recent Tennessee Court of Appeals decision of Sapinder Singh v. Larry Fowler Trucking, Inc., No. W2011-01986-COA-R3-CV, 2012 WL 3731562 (Tenn. Ct. App. 2012) the Court addressed whether the trial court’s exclusion of a doctor's speculative testimony about a future potential surgery and the cost for such surgery was proper. Singh at 1.  Dr. Michael Jaffin was asked in his deposition whether the plaintiff would need additional surgery in the future. Singh at 2.  The Appellate Court discussed the speculative nature of the testimony as follows:

In those portions of his testimony that were excluded from evidence, Dr. Jaffin testified that he would not “pretend to tell you what kind of surgery” Mr. Singh would require in the future, and that he could not “tell for sure” what these surgeries would cost. In fact, Dr. Jaffin testified that Mr. Singh would need further surgical evaluation, which he “would leave [ ] to a spine surgeon.” By his own admission, Dr. Jaffin is not at all certain as to what, if any, future surgeries will be medically necessary. Consequently, he is not qualified to testify as to what, if any, spinal surgeries Mr. Singh will need. As he testifies: “I can't tell you because I'm not a spine surgeon.” As such, Dr. Jaffin's testimony does not demonstrate a reasonable medical certainty concerning the need for future surgeries.

Concerning the costs of future surgeries, Dr. Jaffin testified that the costs would “be at least $300,000.” Later in his testimony, he opines that the costs would be “well over $200,000.” This testimony is also speculative. As noted above, Dr. Jaffin, by his own testimony, is not qualified to opine as to the specific surgeries that may be necessary and, because he is not qualified concerning the surgeries, he is likewise not qualified to testify as to the costs of the surgeries.

Singh at 7.  In order to assess whether this testimony is admissible one must look at Tennessee Rules of Evidence 702 and 703 which requires a trial court to determine: "(1) whether expert testimony will substantially assist the trier of...

Contract Interpretation - Can the terms of a written contract be modified by the subsequent course of conduct of the parties?

Brief Summary:  The terms of a contract can be modified by the subsequent actions of the parties to that contract.  Further, evidence about these actions is not barred by the parol evidence rule.

Analysis:  In the recent decision of The University Corporation v. Bruce Wring, No. W2011-01126-COA-R3-CV, 2012 WL 4078517 (Tenn. Ct. App. September 18, 2012) the Tennessee Court of Appeals discussed whether a written contract could be modified by the actions of the parties.  This case involved a dispute over a contract pertaining to the repair, renovation and sale of foreclosed properties. The University Corporation at 1.  A dispute arose between the parties as to appropriate compensation.  The University Corporation at 1.

One of the parties argued that the course of conduct between the two parties modified the terms of the written contract.  Specifically, the parties never required the production of documentation showing expenses despite the fact it was explicitly required in the contract. The University Corporation at 1.  In response, the other party contended the merger clause in the contract and the parol evidence rule prevented any modification of the written agreement and therefore the requirement for documentation on expenses was required.  Under Tennessee law "parol evidence is inadmissible to contradict or vary the terms of a written agreement."  The University Corporation at 6.  However, the Tennessee Court of Appeals found this fact does not necessarily end the inquiry.  The court stated as follows:

But it is well settled that this rule does not prohibit the establishment by parol evidence of an agreement made subsequent to the execution of the writing, although such subsequent agreement may have the effect of adding to, changing, modifying or even altogether abrogating the contract of the parties as evidenced by the writing; for the parol evidence does not in any way deny that the original agreement of the parties was that which the writing purports to express, but merely goes to show that the parties have exercised their right to change or abrogate the same, or to make a new and independent contract.

Real Estate Law - What is required to establish a slander of title claim under Tennessee Law?

Analysis:  The Tennessee Court of Appeals in David Paczko v. SunTrust Mortgages, Inc., No. M2011-02528-COA-R3-CV, 2012 WL 4450896 (Tenn. Ct. App. September 25, 2012) discussed the requirements for a slander of title claim as well as the related claim to quiet title.  This case involved a dispute over the plaintiff’s property that was foreclosed against by the defendants.  The plaintiff sought to enjoin the bank from going forward with the foreclosure proceeding and to clear the title. Paczko at 1. 

The court found that in order to be successful with a claim for slander of title, the plaintiff must establish the following:

(1) that the [plaintiff] has an interest in the property, (2) that the defendant published false statements about the title to the property, (3) that the defendant was acting maliciously, and (4) that the false statements proximately caused the plaintiff a pecuniary loss.

Paczko at 3.  (citing Brooks v. Lambert, 15 S.W.3d 482, 484 (Tenn. Ct. App. 1999)).  The court further noted that in order to bring an action to quiet title, the plaintiff must “have an interest in the property at issue."  Once the interest in the property ceases, the plaintiff no longer has a justiciable claim for an action to quiet title. Paczko at 3.

In this case the court found that because the plaintiffs acknowledged the property was foreclosed upon and sold during the pendency of the lawsuit and they were not seeking to recover the property, they no longer had an interest in the property. Paczko at 3.  The fact the case was justiciable and able to be decide...