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Comparative Fault – T.C.A. § 20-1-119 ninety day savings statute after a comparative fault allegation (after the statute of limitations has passed)

Posted on Nov 28 2012 3:19PM by Attorney, Jason A. Lee

Brief Summary:  T.C.A. § 20-1-119 provides a ninety day window for a plaintiff to add a new party into a lawsuit beyond the statute of limitations after a defendant (named in original or amended complaint that was filed within the statute of limitations) asserts comparative fault against that non-party.

 

Analysis:  A recent Tennessee Court of Appeals decision discussed T.C.A. § 20-1-119 and the timeframe within which a party must be brought into a case after comparative fault is asserted (when the statute of limitations date has already passed).  The Tennessee Court of Appeals decision of John Brockman v. Wesley Wolfe, No. W2011-02204-COA-R3-CV, 2012 WL 5364696 (Tenn. Ct. App. November 1, 2012) analyzed a plaintiff’s attempt to bring a party into a case greater then 90 days after a defendant asserted comparative fault against that non-party.  In this case, the plaintiff filed suit alleging a date of injury of August 1, 2005.  Brockman at 9.  On September 9, 2008, a defendant asserted comparative fault against Wolfe Company, LLC (“Wolfe”).  Brockman at 9.  However, the plaintiff did not add Wolfe as a defendant until March 23, 2010.  Brockman at 9.  

 

As a result, Wolfe was not sued within the three year statute of limitations that applied to the cause of action.  Brockman at 9.  Additionally, Wolfe was not added as a defendant within ninety days from the date the defendant asserted comparative fault against Wolfe which occurred on September 9, 2008.  T.C.A. § 20-1-119 provides a ninety day window for a plaintiff to bring suit against a party after comparative fault has been assessed against that party even if the statute of limitations has passed.  The text of T.C.A. § 20-1-119 that is pertinent to this issue is as follows: 

 

(a) In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the orig...

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TAGS: Tennessee Comparative Fault, Statute of Limitations, Civil Procedure Comments [0]
  
 

Evidence of Truthfulness - Can MRI testing of the brain be admitted into evidence to show an individual is telling the truth about issues in the case?

Posted on Nov 20 2012 2:39PM by Attorney, Jason A. Lee

Brief Summary:  According to the United States Court of Appeals for the Sixth Circuit MRI testing of the brain to show an individual’s truthfulness is not admissible in court.  The scientific evidence has not effectively established that this information is reliable enough to be admitted as evidence under the Federal Rules of Evidence.

 

Analysis:  The United States Court of Appeals for the Sixth Circuit decided a very interesting case concerning whether results from a functional magnetic resonance imaging (MRI) test can be admitted to prove the truthfulness of testimony.  The decision of United States of America v. Lorne Allan Semrau, 693 F.3d 510 (6th Cir. 2012) considered the appeal of Dr. Lorne Semrau who was convicted of three criminal counts of healthcare fraud.  At trial, Dr. Semrau’s counsel attempted to introduce evidence showing that results from MRI testing performed on Dr. Semrau indicated he was telling the truth about pertinent issues in the case.  The trial court excluded this evidence.  On appeal he asserted this testing should have been admitted into evidence by the trial court.  Semrau at 516.  The Sixth Circuit noted this was a matter of first impression in any jurisdiction.  Semrau at 516. 

 

Dr. Steven J. Laken, Ph.D., is the President and CEO of Cephos Corporation and he performed the MRI testing of Dr. Semrau.  Semrau at 516 - 518.  Dr. Laken testified that studies show accuracy rates of "between eighty-six percent and ninety-seven percent” for this type of testing.  Semrau at 517.  However, during cross-examination Dr. Laken “conceded that his 2009 ‘Mock Sabotage Crime’ study produced an ‘unexpected’ accuracy decrease to a rate of seventy-one percent.”  Semrau at 517.  Dr. Laken also testified that this MRI lie detection method has “a huge false positive problem in which people who are telling the truth are deemed to be lying around sixty to seventy percent of the time.” Semrau at 517, 518.

 

In 2009, Dr. Semrau's attorney contacted Dr. Laken to perform testing on Dr. Semrau about his alleged healthcare fraud.  Semrau at 518....

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TAGS: Evidence, Sixth Circuit, Civil Procedure Comments [0]
  
 

Tennessee Real Estate - When can a real estate agent be responsible for failing to disclose alleged defects with a property?

Posted on Nov 15 2012 10:22AM by Attorney, Jason A. Lee

Brief Summary:  Both the Tennessee Residential Property Disclosure Act and the Tennessee Real Estate Broker License Act require a real estate agent to disclose adverse facts of which the agent has actual knowledge or notice.

 

Analysis:  The recent Tennessee Court of Appeals decision of Jamie Paul Ledbetter v. Donald L. Schacht, No. W2011-01857-COA-R3-CV, 2012 WL 3775969 (Tenn. Ct. App. 2012) discussed a real estate agent’s responsibility under the Tennessee Residential Property Disclosure Act and the Tennessee Real Estate Broker License Act to disclose alleged defects in a property.  In this case the plaintiffs asserted the seller’s real estate agent failed to disclose the existence of certain "foundation and structural defects in the home and repair attempts that took place prior to the sale."  Ledbetter at 1.  The real estate agent defendant filed a motion for summary judgment with an affidavit stating she "had no knowledge of any defects in the property or of any adverse information concerning the structural integrity of the property." Ledbetter at 1.  The motion for summary judgment was granted.  As a result, the question on appeal was whether the evidence before the court was sufficient to grant summary judgment to the real estate agent on this issue.

 

The Tennessee Residential Property Disclosure Act requires "the owner of residential property to furnish a residential property disclosure statement to a purchaser regarding the condition of the property, including any material defects known to the owner."  Ledbetter at 3 (citing, T.C.A. § 66-5-202(1)).  The representations in the notice are the representations of the owner, not the real estate representative.  Ledbetter at 4.  How...

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TAGS: Real Estate, Miscellaneous Comments [2]
  
 

Intentional Infliction Of Emotional Distress – The Tennessee Supreme Court further clarifies the tort of intentional infliction of emotional distress

Posted on Nov 12 2012 1:00PM by Attorney, Jason A. Lee

Analysis:  In Rondal Akers v. Prime Succession of Tennessee, Inc., No. E2009-02203-SC-R11-CV, 2012 WL 4320591 (Tenn. 2012) the Tennessee Supreme Court discussed the tort of intentional infliction of emotional distress.  The Court dealt with a claim filed by parents against a crematorium for allegedly mishandling their deceased son’s body that was sent to the crematorium for cremation.  Akers at 1.  The crematorium allegedly buried the body on the property (authorities discovered body parts for over 230 people on the property) instead of cremating it as requested.  The ashes provided to the parents were tested and consisted of a mixture of soil and cement. Akers at 2.  The facts surrounding this crematorium (Tri-State Crematory in Noble, Georgia) received national attention and there have been numerous lawsuits filed.

 

The legal argument raised on appeal in this case was whether the trial court should have granted a motion for “judgment notwithstanding the verdict (“JNOV”) or for a new trial” on an infliction of emotional distress claim.  Akers at 4.  The defendant argued that in Tennessee there are two separate causes of action for infliction of emotional distress, one for “intentional infliction” and another for “reckless infliction”.  Akers at 4 (the defendant cited the Tennessee Supreme Court decision of Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22 (Tenn. 2005) for this proposition). 

 

The defendant argued that because the plaintiff did not specifically allege a claim for a “reckless infliction of emotional distress” in the complaint (the plaintiff only alleged a claim for “intentional infliction” of emotional distress), then the claim should be barred. Akers at 4.  They further argued the jury’s reliance upon proof involving reckless infliction of emotional distress should not be sufficient because the plaintiffs did not actually alleged a claim for reckless infliction of emotional distress.  The argument was essentially that because “reckless infliction” is a separate claim from “intentional infliction” then the failure to plead a claim for “reckless infliction” bars recovery for that claim. 

 

The Tennessee Supreme Court disagreed with the defendant’s position.  The Court found the elements for inte...

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TAGS: Torts, Civil Procedure Comments [0]
  
 

Tortious Interference with Contract – What are the elements for a tortious interference with contract claim in Tennessee?

Posted on Nov 8 2012 9:33AM by Attorney, Jason A. Lee

Analysis:  The recent Tennessee Court of Appeals decision of Jeffrey Smith and Brenda K. Smith v. Methodist Hospitals of Memphis, et al, No. W2011-00054-COA-R3-CV, 2012 WL 3777139 (Tenn. Ct. App. 2012) discussed the elements for a tortious interference with contract claim in Tennessee.  In this case the Tennessee Court of Appeals dealt with a situation where a plaintiff filed a medical malpractice claim against a hospital.  During the litigation, the hospital allegedly contacted the employer of plaintiff’s expert nurse witness to try to put pressure on the nurse to not serve as an expert witness in the case.  This nurse had previously submitted an affidavit on behalf of the plaintiff in the medical malpractice cause of action.  A dispute therefore arose concerning whether the contact by the hospital of the expert nurse’s employer caused a breach of the contract between the expert nurse and the plaintiff when the nurse withdrew as an expert. 

 

The Tennessee Court of Appeals discussed the requirements for a tortious interference with a contract claim in Tennessee.  The Court stated that “in order to establish a cause of action for unlawful inducement of a breach of contract, a plaintiff must prove that there was a legal contract, of which the wrongdoer was aware, that the wrongdoer maliciously intended to induce a breach, and that as a proximate result of the wrongdoer's actions, a breach occurred that resulted in damages to the plaintiff.”  Smith at Footnote 8 (citing the Tennessee Supreme Court decision of Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., 876 S.W.2d 818, 822–23 (Tenn.1994)).  The hospital submitted undisputed evidence that the nurse was not influenced by the hospital’s call and instead the nurse voluntarily withdrew from the case as an expert.  As a result the appellate court found that “we conclude that the evidence and the inferences reasonably drawn from the evidence permit but one conclusion, that Nurse Hudspeth voluntarily withdrew from serving as an expert in March 2003, and not as a result of any action on the part of the Hospital.” Smith at 9. 

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TAGS: Torts, Breach of Contract, Employment Law, Contracts Comments [0]
  
 

Fifth Amendment – Can negative inferences be drawn from a party’s invocation of Fifth Amendment rights in a civil case?

Posted on Nov 5 2012 10:08AM by Attorney, Jason A. Lee

Brief Summary:  The Tennessee Supreme Court recently held that negative inferences can be made from a party’s invocation of the Fifth Amendment in a civil case “only when there is independent evidence of the fact to which a party refuses to answer”.

 

Analysis:  The recent Tennessee Supreme Court decision of Rondal Akers v. Prime Succession of Tennessee, Inc., No. E2009-02203-SC-R11-CV, 2012 WL 4320591 (Tenn. 2012) determined whether it is appropriate to provide a jury with instructions that negative inferences can be made when a party invokes the Fifth Amendment privilege in a civil case.  The Fifth Amendment privilege is found in the Fifth Amendment to the United State Constitution.  This amendment provides that no person shall “be compelled in any criminal case to be a witness against himself.”  Akers at 8 (citing U.S. Const. amend. V).  Federal Courts have held that the Fifth Amendment protection also applies to civil proceedings and civil trials but only “under those circumstances in which the person invoking the privilege reasonably believes that his disclosures could be used in a criminal prosecution, or could lead to other evidence that could be used in that manner or where the disclosures would not be directly incriminating, but could provide an indirect link to incriminating evidence.”  Akers at 8 (citing Doe v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000)).

 

Therefore, the next question is, can a negative inference be drawn from that party’s, invocation of the Fifth Amendment right in a civil case?  The United States Supreme Court has ruled that the trier of fact can draw negative inferences from the party’s invocation of the Fifth Amendment under certain circumstances.  Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).  (See also Tennessee Court of Appeals decision in Levine v. March, 266 S.W.3d 426, 442 (Tenn. Ct. App. 2007) which stated “the majority of jurisdictions, including Tennessee, permit fact finders to draw adverse inferences against parties who invoke their Fifth Amendment rights in a civil case.”)  However, since that decision other courts have found that the Baxter rule is not a blanket rule.  The Ninth Circuit Court of Appeals Doe case discussed the circumstances under which negative inferences can be made as follows: 

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TAGS: Jury Issues, Miscellaneous Comments [0]
  
 

Medical Malpractice/Health Care Liability Action - Ex parte communication with health care providers

Posted on Nov 1 2012 8:19AM by Attorney, Jason A. Lee

Analysis:  The Tennessee legislature adopted Public Chapter No. 926 which was signed into law by Governor Bill Haslam on May 10, 2012.  This bill amended T.C.A. § 29-26-121 by adding subsection (f) to the statute.  This statute now provides a method for defendants and their counsel to obtain protected health information outside the presence of the claimant or claimant’s counsel. 

 

T.C.A. § 29-26-121(f) provides as follows: 

 

(f)(1) Upon the filing of any “healthcare liability action,” as defined in § 29-26-101(a)(1), the named defendant(s) may petition the court for a qualified protective order allowing the defendant(s) 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 “health care providers,” as defined by § 29-26-101(a)(2). Such petition shall be granted under the following conditions:

(A) The petition must identify the treating healthcare provider(s) for whom the defendant(s) seek a qualified protective order to conduct an interview;

(B) The claimant may file an objection seeking to limit or prohibit the defendant(s) or the defendant(s)' counsel from conducting the interviews, which may be granted only upon good cause shown that a treating healthcare provider does not possess relevant information as defined by the Tennessee Rules of Civil Procedure; and

(C) The qualified protective order shall expressly limit the dissemination of any protected health information to the litigation pending before the court.

(2) Any disclosure of protected health information by a healthcare provider in response to a court order under this section shall be deemed a permissible disclosure under Tennessee law, any Tennessee statute or rule of common law notwithstanding.

(3) Nothing in this part shall be construed as restricting in any way, the right of a defendant or defendant's counsel from conducting interviews outside the presence of claimant or claimant's counsel with the defendant's own present or former employees, partners, or owners concerning a healthcare liability action.

 

As a result, defendants may petition the court for the ability to conduct ex parte communication with the patient’s treating “health care provider” as defined in T.C.A. § 29-26-101(a)(2).  This statute defines “health care providers” as follows: 

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TAGS: Tennessee Medical Malpractice/Health Care Liability, 2012 Tennessee Legislation Comments [0]
  
 
Author

Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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Tennessee Defense Litigation Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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Nashville, TN 37203
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E-mail: jlee@burrowlee.com

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