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When is a Manufacturer of a Product Liable for an Injury Caused by the Product in Tennessee?

Posted on Apr 13 2014 7:34PM by Attorney, Jason A. Lee

Analysis:  Under Tennessee law a manufacturer of a product is not liable for injuries caused by the product unless it is found to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer.  As a result, it can often be very important to determine exactly when the alleged defect occurred.  T.C.A. § 29-28-105(a) specifically provides as follows:

 

(a) A manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.

 

The term “defective condition” is defined in this statute as, “a condition of a product that renders it unsafe for normal or anticipatable handling and consumption.”  T.C.A. § 29-28-102(2).  The term “unreasonably dangerous” is defined in T.C.A. § 29-28-102(8) as follows:

 

(8) “Unreasonably dangerous” means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.

 

In making the determination as to whether a product is defective or unreasonably dangerous, the knowledge available to the manufacturer or seller at the time the product was placed on market is what is important.  Later acquired knowledge is not necessarily held against the manufacturer.  Specifically, T.C.A. § 29-28-105(b) provides as follows:

 

(b) In making this determination, the state of scientific and technological knowledge available to the manufacturer or seller at the time the product was placed on the market, rather than at the time of injury, is applicable. Consideration is given a...

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TAGS: Products Liability Comments [0]
  
 

In Tennessee One Year Healthcare Liability Action Statute of Limitations is Not Extended by Pre-Suit Notice When Dealing with GTLA Lawsuit

Posted on Apr 6 2014 8:42PM by Attorney, Jason A. Lee

Analysis:  Last year the Tennessee Supreme Court decided another important case that interprets the Governmental Tort Liability Act (“GTLA”) in conjunction with other Tennessee statutes.  In this case the Tennessee Supreme Court found that the 120 day extension of time to file a healthcare liability action (formerly medical malpractice cause of action) when pre-suit notice is provided does not apply to GTLA lawsuits.  The Tennessee Supreme Court in Walton Cunningham v. Williamson County Hospital District et al, 405 S.W.3d 41 (Tenn. 2013) dealt with a medical malpractice claim that was filed 15 months after the claim accrued at the time of the death.  The plaintiffs relied upon T.C.A. § 29-26-121 that provides a 120 day extension of time beyond the one year statute of limitations to file suit after pre-suit notice is provided under the statute.  The pertinent part of T.C.A. § 29-26-121 provides as follows:

 

(c) When notice is given to a provider as provided in this section, the applicable statutes of limitations and repose shall be extended for a period of one hundred twenty (120) days from the date of expiration of the statute of limitations and statute of repose applicable to that provider...

 

The question in this case therefore was whether the extension found in T.C.A. § 29-26-121 applies to a GTLA healthcare liability claim (essentially a medical malpractice case against a governmental entity).  The statute of limitations for a GTLA claim is one year as explicitly provided in T.C.A. § 29-20-305(b) which provides as follows:

 

(b) The action must be commenced within twelve (12) months after the cause of action arises.

 

As a result, there is a conflict between the SOL of 12 months for a GTLA claim and 12 months + 120 days (with pre-suit notice) in the healthcare liability statute.  The GTLA is a specific statute where the government waives immunity in certain limited circumstances.  However, “because waiver of immunity is in derogation of the common law, any claim for damages brought under the GTLA must be in stri...

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TAGS: GTLA, Tennessee Medical Malpractice/Health Care Liability, Statute of Limitations, Statute of Repose Comments [0]
  
 

Tennessee Personal Injury Trials Have Dropped 55% Since 2000.

Posted on Mar 30 2014 9:50PM by Attorney, Jason A. Lee

Analysis:  This post is another in a continuing series of posts that analyze the Tennessee Judiciary Annual Report that was recently published providing court statistics for fiscal year 2012 - 2013 (July 1, 2012 to June 30, 2013).  Today I am going to discuss the very significant reduction in the number of personal injury/death cases that proceed to trial over the last 15 years. 

 

For fiscal year 2012 – 2013 there were a total of 10,137 personal injury/death cases that were disposed of in Tennessee in one way or another.  Out of these cases, 438 of them were disposed of by trial (4.3%).  Only 213 of these trials were jury trials (2.1%).  Davidson, Hamilton, Knox and Shelby Counties had a total of 216 cases that proceeded to trial which was 49.5% of the total personal injury cases that went to trial in Tennessee.

 

These statistics also show that there has been a great reduction in trials in Tennessee over the last 15 years.  In the 2000 - 2001 fiscal year (the first year Tennessee kept these statistics), there were a total of 967 personal injury or death cases that proceeded to trial.  In 2013 there were only 438.  This means that since 2000 we have had a 55% reduction in trials in personal injury/ death cases.  This has been due to many factors including tort reform and the encouragement of mediation in Tennessee.  It also shows why a lot of attorneys struggle to get good trial experience early in their career.   

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Defense Litigation blog.
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TAGS: Jury Issues, Tennessee Legal Statistics Comments [0]
  
 

Tennessee Statute of Repose Affirmative Defense is Waived if Not Timely Raised

Posted on Mar 23 2014 7:04PM by Attorney, Jason A. Lee

Analysis:  The Tennessee Supreme Court recently decided an important case about the statute of repose that shows the importance of raising this defense in a timely manner.  The Tennessee Supreme Court in Eddie C. Pratcher, Jr. v. Methodist Healthcare Memphis Hospitals, 407 S.W.3d 727 (Tenn. 2013) discussed whether the Tennessee healthcare liability statute of repose (T.C.A. § 29-26-116(a)(3)) is an affirmative defense under Tennessee Rules of Civil Procedure 8.03 and whether it is waived if not raised in a timely manner. 

 

In the Pratcher case, the patient died following child birth cesarean section complications on December 4, 1999.  On December 1, 2000 her husband filed a Tennessee healthcare liability action (formerly medical malpractice action) against various parties.  There were several amendments to the complaint and the case ultimately proceeded to trial in September of 2006.  At no time throughout the pendency of the case did the defendant assert a statute of repose defense until April 2009 which was two and a half years after the first trial in this case.  At that point the defendant filed a motion to dismiss under the statute of repose defense but still did not attempt to amend its answer to actually add the defense in the answer.  Finally in October of 2010, four years after the trial, this defendant filed a motion to amend the answer to assert the statute of repose defense.  As a result, the Tennessee Supreme Court in this case addressed whether the statute of repose was waived in this context.

 

The Tennessee Supreme Court at length discussed the interaction between the statute of repose (for a healthcare liability action) and Tennessee Rule of Civil Procedure 8.03.  Specifically, T.C.A. § 29-26-116(a)(1-3) provides as follows:

 

(a)(1) The statute of limitations in health care liability actions shall be one (1)...

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TAGS: Defenses, Tennessee Medical Malpractice/Health Care Liability, Civil Procedure, Statute of Repose Comments [0]
  
 

Can a Plaintiff Sue Tortfeasor Outside of Statute of Limitations (Under T.C.A. § 20-1-119) When Defendant Asserts Comparative Fault Against Previously Known Tortfeasor?

Posted on Mar 17 2014 9:56PM by Attorney, Jason A. Lee

Analysis:  On March 7, 2014, the Tennessee Supreme Court settled, once and for all, an important question about the comparative fault doctrine in Tennessee.  In sum, the fact a tortfeasor is known to the plaintiff at the time of the filing of the original complaint does not prevent them from bringing them in as a party at a later date (after the statute of limitations runs) when a defendant asserts comparative fault against them. 

 

The case at issue involved a Rule 23 certified question of law from the United States District Court for the Eastern District of Tennessee to the Tennessee Supreme Court.  In Michael S. Becker v. Ford Motor Co., No. M2013-02546-SC-R23-CV, 2014 WL 901510 (Tenn. 2014) the Tennessee Supreme Court made a clear ruling on an important comparative fault issue that has been in some dispute since McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992).  In the Becker case, the plaintiff sued Ford Motor Company for products liability and breach of warranty claims following an accident.  The plaintiff did not sue the driver of the vehicle in the original complaint (who happened to be the plaintiff’s own son).  Ford answered the complaint and asserted comparative fault against the driver of the vehicle (the plaintiff’s son).  The plaintiff then filed a motion to add the son as a party and Ford opposed the motion on the grounds that the plaintiff could not use T.C.A. § 20-1-119 to bring in the son as a party because the plaintiff knew the identity of their son as a tortfeasor prior to filing the complaint. 

 

As a result of this issue, the Federal court certified the following issue of law to the Tennessee Supreme Court:

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

More Tennessee Personal Injury Case Statistics for Fiscal Year 2012-2013

Posted on Mar 9 2014 9:36PM by Attorney, Jason A. Lee

Analysis:  The Tennessee Judiciary has published their new annual report covering fiscal year 2012 to 2013 (July 1, 2012 to June 30, 2013) on Tennessee Court statistics.  This report provides a significant amount of useful statistics and information about the Tennessee judicial system.  One important part of the report is the information about personal injury tort cases in Tennessee.    

 

Out of the 438 cases that went to trial in fiscal year 2012 to 2013 in Tennessee, a total of 180 received actual monetary awards (41.1% of the trials resulted in a damages award).  The total monetary awards provided in these 180 trials was $34,514,022.00.  This is an average award of $191,744.57 per successful trial.  This statistic is greatly skewed by one Davidson County jury award of $13,623,000.00 which was the largest award in Tennessee for this fiscal year, however this jury verdict was reversed on appeal in a February 2014 Tennessee Court of Appeals decision and this case has been remanded to the trial court to be re-tried.  When this one award is removed, the average monetary award in Tennessee was $116,061.23. 

 

Out of the 180 personal injury tort cases where the jury provided a damages award, 151 of them resulted in an award between $1.00 and $99,999.00.  22 of these cases resulted in an award of between $100,000.00 and $999,999.00.  Only 7 of these cases resulted in awards of greater than $1,000,000.00.  This shows how conservative Tennessee juries are in assessing damages in personal injury cases.  Obviously a lot of cases settle before getting to trial, but these statistics show how few large jury awards there are in Tennessee on an annual basis. 

 

I will likely have a few more posts regarding the statistics found in this report.  These statistics help us assess how liberal or conservative certain jurisdictions are within Tennessee

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TAGS: Jury Issues, Tennessee Legal Statistics Comments [0]
  
 

In Tennessee Can a Surviving Spouse Recover in a Wrongful Death Suit for Death of Spouse After Abandonment?

Posted on Mar 3 2014 11:23PM by Attorney, Jason A. Lee

Analysis:  The Tennessee wrongful death statute is found in T.C.A. § 20-5-106 and T.C.A. § 20-5-107.  A specific provision in this statute provides that the right to institute and collect any proceeds from a wrongful death action is prohibited for certain surviving spouses.  Specifically, if the children and next of kin establish the surviving spouse abandoned the deceased spouse or willfully withdrew for a period of two years, then the surviving spouse cannot recover under the Tennessee wrongful death statute.  Specifically, T.C.A. § 20-5-107(e)(1) and (2) provides as follows:

 

(e)(1) Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.

(2) If the period of two (2) years has passed since the time of abandonment or willful withdrawal then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.

 

So, what is the definition of “abandonment” of a spouse as described in this statute?  This definition is found in T.C.A. § 36-4-101(a)(13) which provides as follows:

 

(13) The husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so pro...

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TAGS: Defenses, Statute of Limitations, Wrongful Death Comments [0]
  
 

Damages Were Awarded in Tennessee Personal Injury or Death Trials Only 41% of the Time Over the Last Year.

Posted on Feb 24 2014 10:41AM by Attorney, Jason A. Lee

Analysis:  This post is part of a continuing series of posts on the Tennessee Judiciary Annual Report that was recently published providing court statistics for fiscal year 2012 - 2013 (July 1, 2012 to June 30, 2013).  Today I am going to discuss how often damages are awarded in damages and torts cases involving personal injury or death that proceed to trial in Tennessee over the last year. 

 

For fiscal year 2012 - 2013 there were a total of 438 personal injury or death cases that proceed to trial.  A total of 180 of those cases resulted in actual damages awards.  As a result, only 41.1% of these trials resulted in awarded damages.  This is a slight increase in number of cases resulting in damages over the prior year (2011 – 2012) when 38.5% of these types of cases resulted in damages awards (530 trials and 204 resulted in damages award).  Keep in mind that we do not know how many of these cases were situations where liability was admitted and the only trial issue was the amount of damages to be awarded. 

 

I think it is also beneficial to discuss the statistics for the four largest Tennessee jurisdictions.  Shelby County had a total of 76 personal injury or death tort trials and 44 of those cases resulted in awarded damages (57.9% of the time).  This is above the 54.1% average in Shelby County for 2005 – 2012.  Davidson County had a total of 66 personal injury or death tort trials and 43 of those cases resulted in awarded damages (65% of the time).  This is above the 62.9% average for Davidson County for 2005 – 2012.  Knox County had 38 personal injury or death tort trials and 18 of those cases resulted in awarded damages (47% of the time).  This is slightly above the 45% average for Knox County for 2005 – 2012.  Hamilton County had a total of 37 personal injury or death tort trials and 10 of those cases resulted in awarded damages (only 27% of the time).  This is well below the 36.1% average for...

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TAGS: Tennessee Legal Statistics Comments [0]
  
 

Tennessee Boundary Line Disputes – 20 Years of Property Tax Payments can Create Presumption of Legal Ownership of Land

Posted on Feb 16 2014 10:08PM by Attorney, Jason A. Lee

Analysis:  The recent Tennessee Court of Appeals decision, John R. Conder v. William Salyers, No. W2012-00963-COA-R3-CV (Tenn. Ct. App. 2013), discussed an important presumption that can be used in a boundary line dispute cases.  The Conder case involved a boundary line dispute where both sides submitted expert proof from surveyors that supported the respective positions of each party.  One of the important deciding factors in the case, however, was T.C.A. § 28-2-109 which provides a presumption of ownership when a person who has an interest in real estate pays the property taxes for greater than 20 years.  Specifically, T.C.A. § 28-2-109 provides as follows:

 

Any person holding any real estate or land of any kind, or any legal or equitable interest therein, who has paid, or who and those through whom such person claims have paid, the state and county taxes on the same for more then twenty (20) years continuously prior to the date when any question arises in any of the courts of this state concerning the same, and who has had or who and those through whom such person claims have had, such person's deed, conveyance, grant or other assurance of title recorded in the register's office of the county in which the land lies, for such period of more than twenty (20) years, shall be presumed prima facie to be the legal owner of such land.

 

In Conder, the Tennessee Court of Appeals noted that for a party to create a rebuttable presumption of ownership under T.C.A. § 28-2-109 the party must show that “(1) he or she has a legal or equitable interest in the property; and (2) that he or she has paid taxes on the disputed property to the exclusion of any other party for twenty years.”  This rebuttable presumption can...

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TAGS: Real Estate Comments [0]
  
 

Number of Cases Filed in Tennessee on Downward Trend According to Newly Released 2013 Tennessee Court Statistics

Posted on Feb 9 2014 10:44PM by Attorney, Jason A. Lee

Newly released statistics on the number of Tennessee cases filed each year confirm the longstanding downward trend for Circuit and Chancery Court cases filed.  The Tennessee Judiciary recently published their annual report providing statistics on case filings and other important Tennessee legal system information.  This new report covers fiscal year 2012-2013 (July 1, 2012 – June 30, 2013) and is the most recent report available.    

 

I previously discussed the downward trend for case filings that has continued at least since 2005.  This new report shows this downward trend may actually be accelerating.  This is especially true in Chancery Court filings. 

 

The total number of annual case filings in Tennessee Chancery courts from 2005 to 2013 is as follows:

 

            2005-2006                                                                     68,567

            2006-2007                                                                     66,994

            2007-2008            &nb...

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Tennessee Caps on Damages

Posted on Feb 3 2014 11:14PM by Attorney, Jason A. Lee

I am very busy this week traveling on several cases.  As a result, I decided to repurpose/repost an article that I did early in the life of this blog on a topic that I get asked about all of the time.  This topic is often discussed because people have heard that there are “new” caps on damages in Tennessee.  These caps were passed by the legislature in the 2011 Tennessee Tort Reform legislation.  These caps apply to "all liability actions for injuries, deaths, and losses covered by this act which accrue on or after…” October 1, 2011.  This law fundamentally changed many aspects of tort law in Tennessee however there are not a lot of cases interpreting this statute as of this time.  I expect over the next 10 years a large body of law will be developed, but at this time we have only scratched the surface.  Here is a summary of some of the key portions of the bill. 

 

One of the things this bill did was it created T.C.A. § 29-39-102.  This is a long statute which has many nuances, however, for now we will briefly discuss one of the key portions which are the caps that now apply to civil actions filed in Tennessee.  Section (a) provides as follows:

 

(a) In a civil action, each injured plaintiff may be awarded:

(1) Compensation for economic damages suffered by each injured plaintiff; and

(2) Compensation for any noneconomic damages suffered by each injured plaintiff not to exceed seven hundred fifty thousand dollars ($750,000) for all injuries and occurrences that were or could have been asserted, regardless of whether the action is based on a single act or omission or a series of acts or omissions that allegedly caused the injuries or death.

 

As a result, the damages that are recoverable include the "economic damages" suffered by each injured plaintiff.  "Economic damages" are defined in T.C.A. § 29-39-101.  The definition of "economic damages" is:

 

(1) “Economic damages” means damages, to the extent they are provided by applicable law, for: objectively verifiab...

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TAGS: Tennessee Tort Reform of 2011, Damages Comments [0]
  
 

In Tennessee if an Individual Passes Out While Driving a Vehicle, are they Responsible if they Cause an Accident?

Posted on Jan 28 2014 9:28AM by Attorney, Jason A. Lee

Analysis:  The Tennessee Court of Appeals recently dealt with the question of the responsibility of an individual who becomes unconscious, while driving, causing an automobile accident.  The Tennessee Court of Appeals in George Smith v. General Tire and Emily Alexander, No. M2012-01446-COA-R3-CV, 2013 WL 2395047 (Tenn. Ct. App. 2013) involved a case where a man was injured in a head-on collision.  This case was handled by my firm, Brewer, Krause, Brooks, Chastain & Burrow, PLLC.  The unconscious defendant in this case testified she did not remember anything on the day of the accident from the point she came to a red light on Gallatin Road until she woke up in an ambulance on the way to the hospital.  She had a long history of diabetes but she had never experienced a loss of consciousness prior to the accident in question.  Additionally, she had never been advised by her physician that she should not drive a vehicle.  Her treating physician testified her blood sugar level must have dropped too quickly for her to realize before she became unconscious. 

 

There was medical testimony submitted by both sides pertaining to the possibility of her becoming unconscious based on the medication and diagnosis of the defendant.  The Smith court found that the Tennessee Supreme Court has adopted a rule that embodies how to deal with evaluating the situation where a driver suddenly loses consciousness.  This rule is as follows:

 

A sudden loss of consciousness or physical capacity experienced while driving which is not reasonably foreseeabl...

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TAGS: Negligence, Automobile/Motorcycle Liability, Defenses Comments [0]
  
 
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