Tennessee Supreme Court Modifies Spoliation of Evidence Doctrine By Removing Intentional Misconduct Requirement

Tennessee has long had a doctrine of spoliation of evidence which allows the trial court to draw negative inferences or even provide dismissal against a party who destroys evidence.  Historically, Tennessee courts have required the presence of actual intentional misconduct to invoke the doctrine of spoliation of evidence particularly when providing the remedy of a negative inference or dismissal.  The Tennessee Supreme Court in Lea Ann Tatham v. Bridgestone Americas Holding, Inc., No. W2013-02604-SC-R11-CV, 2015 WL 6688035 (Tenn. 2015) dealt with an apparent conflict between the case law and Rule 34A.02 of the Tennessee Rules of Civil Procedure that was adopted on July 1, 2006.  The full text of Rule 34A.02 provides as follows:

Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.

The question before the Tennessee Supreme Court in Lea Ann Tatham was whether Tennessee Courts should continue to require an intentional misconduct prerequisite for a trial court to impose sanctions for spoliation of evidence.  The Tennessee Supreme Court decided this issue and expressed the desire to provide a uniform standard on this issue.  The Court found that “intentional misconduct is not a prerequisite for a trial court to impose sanctions for the spoliation of evidence, including that of a negative inference.”  Id. at 8.  The Court adopted a specific analysis required by Tennessee trial courts to determine whether sanctions are appropriate in a spoliation of evidence situation.  The new test is a “totality of the circumstances” test, however, intentional misconduct is clearly no longer an absolute perquisite.  Intentional misconduct is simply one of the factors to be considered by the trial court. 

The Tennessee Supreme Court detailed certain factors that are relevant to a trial court’s consideration of whether sanctions are appropriate in the context of spoliation for evidence.  These include the following factors:

(1) the culpability of the spoliating party in causing...

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

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...

What is the Statute of Limitations and Statute of Repose for a Products Liability Cause of Action in Tennessee?

Analysis:  Under Tennessee law, as a general rule, the statute of limitations for a product liability cause of action is the same as what applies to a personal injury or injury to property cause of action. (See T.C.A. § 29-28-103).  As a result, injuries to the person are subject to a one year statute of limitation for a products liability injury. (See T.C.A. § 28-3-104).  Injuries to personal or real property are governed by the three year statute of limitations found in T.C.A. § 28-3-105.  Regardless, all claims must be brought within 6 years of the date of injury as stated explicitly in T.C.A. § 29-28-103. 

There is also a statute of repose found in T.C.A. § 29-28-103.  This statute states the following (see the highlighted portion of the statute for the statute of repose language):

(a) Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions, it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption, or within one (1) year after the expiration of the anticipated life of the product, whichever is the shorter, except in the case of injury to minors whose action must be brought within a period of one (1) year after attaining the age of majority, whichever occurs sooner.

As a result, the outer limit for a products liability cause of action (the statute of repose) is ten years after the product was first purchased or within one year of the expiration of the anticipated life of the product – whichever is shorter.  There is one exception to the statute...

Is a Manufacturer or Seller’s Compliance with Statutes and Administrative Regulations a Defense in a Tennessee Product Liability Cause of Action?

Analysis:  A manufacturer or seller’s compliance with federal or state statutes and regulations can have a significant impact on a product liability cause of action.  Compliance with statutes and regulations pertaining to the product can provide a rebuttable presumption that the product is not in an unreasonably dangerous condition for the matter specifically covered in the statute or regulation.  This is limited to situations where the statute or regulation pertains to the “design, inspection, testing, manufacture, labeling, warning or instructions for use of a product.”  T.C.A. § 29-28-104(a) provides as follows:

(a) Compliance by a manufacturer or seller with any federal or state statute or administrative regulation existing at the time a product was manufactured and prescribing standards for design, inspection, testing, manufacture, labeling, warning or instructions for use of a product, shall raise a rebuttable presumption that the product is not in an unreasonably dangerous condition in regard to matters covered by these standards.

An amendment to this statute that took effect October 1, 2011 provided additional protections to manufacturers or sellers that comply with product specific statutes and regulations.  A manufacturer or seller (other than the manufacturer of a drug or device) is not liable for exemplary or punitive damages if:

(1) The product alleged to have caused the harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency; or

(2) The product was in compliance with a statute of the state or the United States, or a standard, rule, regulation, order, or other action of a government agency pursuant to statutory authority, when such statute or agency action is relevant to the event or risk allegedly causing the harm and the product was in compliance at the time the product left the control of the manufacturer or seller.

(See T.C.A. § 29-28-104(b)).  This exemption from exemplary or punitive damages...

Products Liability – Joint and several liability in product liability cases is significantly changed by new 2013 Tennessee Statute, T.C.A. § 29-11-107.

Brief Summary:  Joint and several liability between a manufacturer and seller of a product is abolished in Tennessee.  Joint and several liability in product liability actions now only apply between manufacturers under the legal theories of strict liability and breach of warranty.

Analysis:  One area of Tennessee law that retained a portion of the doctrine of joint and several liability since McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992) is in products liability actions.  The Tennessee Supreme Court in Owens v. Truckstops of America, 915 S.W.2d 420, 433 (Tenn. 1996) found that “the adoption of comparative fault did not alter that product liability law under which the liability of defendants in the chain of distribution of a product, who are liable under a theory of strict liability, is joint and several.”  In other areas of the law the Tennessee Supreme Court has issued several other decisions over the years that moved away from a general abolishment of joint and several liability.  Therefore, the Tennessee legislature addressed this issue in the 2013 Tennessee legislative session.  It passed Public Chapter No. 317 which was signed into law by Governor Bill Haslam on April 29, 2013.  This Public Chapter created a new statute, T.C.A. § 29-11-107, which provides as follows:

(a)  If multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages.

Joint and Several Liability – New Tennessee Statute, T.C.A. § 29-11-107 abolishes joint and several liability in most circumstances in Tennessee.

Since Tennessee adopted the doctrine of comparative fault in McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), the Tennessee Supreme Court has issued several opinions moving away from the general abolishment of joint and several liability.  The Tennessee Supreme Court has created several exceptions to the general rule that joint and several liability does not apply under Tennessee’s comparative fault scheme.  As a result of these exceptions created by the Court, the Tennessee legislature addressed this issue in the 2013 Tennessee legislative session.  The Tennessee Legislature recently passed Public Chapter No. 317 which was signed into law by Governor Bill Haslam on April 29, 2013.  It created T.C.A. § 29-11-107 which is in effect for all causes of action that accrue on or after July 1, 2013.  The key language in this bill is subsection (a) which provides:

(a)  If multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages.

As a result of this new bill, the Tennessee Legislature has codified the abolishment of joint and several liability in almost all circumstances in Tennessee.  There are only two exceptions that remain.  These exceptions are found in subsection (b) which provides:

Economic Loss Doctrine - Does the economic loss doctrine apply in Tennessee?

Products Liability - Fungal meningitis outbreak in Tennessee raises numerous legal liability questions

The United States Center for Disease Control and Prevention reported on October 12, 2012 that 170 people have contracted fungal meningitis due to the recent outbreak resulting in 14 deaths so far.  See CDC outbreak information.  ABC News and other media outlets have reported that the fungal meningitis outbreak may have been caused by spinal injections of methylprednisolone acetate for back pain.  See ABC News article.  Tennessee, more than any other state, has been most affected by the outbreak where there are 49 cases of fungal meningitis that have been reported including six that have been fatal.  See ABC News article.  According to ABC News "meningitis affects the membranous lining of the brain and spinal cord. Early symptoms of fungal meningitis, such as headache, fever, dizziness, nausea, sensitivity to light, stiff neck, weakness or numbness, slurred speech and pain, redness or swelling at the injection site can take more than a month to appear." See ABC News article.

As a result of the outbreak that is growing by the day, significant questions must be addressed pertaining to potential liability for manufacturers, sellers, distributors, medical providers and physicians for this outbreak in Tennessee.  The main cause of action in any litigation under Tennessee law would most likely be a products liability action under T.C.A. § 29-28-101 - 29-28-108.  The "Tennessee Products Liability Act of 1978" is codified at T.C.A. § 29-28-102.

Under T.C.A. § 29-28-102 a Tennessee "Product Liability Action" is defined as follows:

“Product liability action” for purposes of this chapter includes all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. “Product liability action” includes, but is not limited to, all actions based upon the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent, or innocent; misrepresentation, concealment, or nondisclosure, whether negligent, or innocent; or under any other substantive legal theory in tort or contract whatsoever;

Tennessee Product Liability Actions – The 2011 Tennessee tort reform bill changed product liability actions against sellers in Tennessee.

Brief Summary:  The new statutory language adopted in Tennessee for product liability actions found in the Tennessee tort reform bill of 2011 changed the circumstances where a seller can be found liable for selling a defective product.  This statute made it more difficult for a plaintiff to recover damages against a seller of a defective product in a product liability action.

Analysis:  The Tennessee tort reform bill of 2011 completely replaced the old T.C.A. § 29-28-106 with new statutory language that is more favorable to sellers in product liability actions.  This statute governs when a product liability action can be maintained against a seller, other than the manufacturer, in Tennessee.  The new T.C.A. § 29-28-106 provides as follows:

No product liability action, as defined in § 29-28-102, shall be commenced or maintained against any seller, other than the manufacturer, unless:

(1) The seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the alleged harm for which recovery of damages is sought;

(2) Altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought;

(3) The seller gave an express warranty as defined by title 47, chapter 2;

(4) The manufacturer or distributor of the product or part in question is not subject to service of process in this state and the long-arm statutes of Tennessee do not serve as the basis for obtaining service of process; or

(5) The manufacturer has been judicially declared insolvent.

It went into effect in Tennessee with the adoption of Public Chapter No. 510 and it applies to all actions that accrue on or after October 1, 2011.  This statute changed the circumstances when a seller...

Tennessee Statutes of Limitation – Statutes of Limitation for Common Tennessee Causes of Action

This post will address the statutes of limitation for several common Tennessee causes of action.  I will also provide the Tennessee statute that is the source for the statutes of limitation for each cause of action.  

It must be noted that fact specific inquiries need to be completed for each and every case.  Each case could have specific facts that could impact whether the statute of limitations bars a particular claim.  The “discovery rule” is one doctrine that has been applied to some Tennessee causes of action.  The Tennessee Supreme Court has found the discovery rule “provides that the statute of limitations begins to run when the injury is discovered, or in the exercise of reasonable care and diligence, the injury should have been discovered. The rule responds to the unfairness of requiring that he [a plaintiff] sue to vindicate a non-existent wrong, at a time when injury is unknown and unknowable.”  Quality Auto Parts v. Bluff City Buick, 876 S.W.2d. 818, 820 (Tenn. 1994).  There are other potential exceptions to Tennessee statutes of limitation including exceptions for minors or those deemed incompetent under certain circumstances.  See T.C.A. § 28-1-106.

The causes of action and the Tennessee statute of limitation for each are as follows:

1.          Slander - "within six (6) months after the words are uttered."  (See T.C.A. § 28-3-103)

2.          Civil actions for compensatory or punitive damages brought under the Federal Civil Rights statutes - 1 year statute of limitation (See T.C.A. § 28-3-104(a)(3))

3.          False Imprisonment - 1 year statute of limitation (See T.C.A. § 28-3-104(a)(1))