Recent Tennessee Judiciary Report (Fiscal Year 2015 – 2016) Shows Tennessee Case Filings Continue to Decline

Each year the Tennessee Administrative Office of the Courts issues a report on the Tennessee judiciary that provides many different useful statistics for case filings and results Tennessee.  The most recent report is the one for fiscal year 2015 – 2016 (covering July 1, 2015 to June 30, 2016).  For some reason, there is a delay in receiving the report for the 2016 – 2017 fiscal year (as of the sate of this posting, it has been almost 7 months since the end of the fiscal year). This report once again confirms the longstanding trends in the law in Tennessee.  There is now a longstanding trend downward in the case filings in both Circuit and Chancery courts since at least 2005 (although Chancery Court stabilized some this year, Circuit court even had a more drastic drop in filings.    

The statistics show a continued decrease in the filing of Tennessee Circuit Court cases.  This decrease has accelerated in recent years.  The total number of case filings for Tennessee Circuit Courts from 2005 to 2016 are as follows:

            2005 – 2006                                                                  67,090

            2006 – 2007                                                                  64,837

            2007 – 2008                                                                  62,204

Tennessee Tort of “Intentional Infliction of Emotional Distress”

Tennessee has the tort of Intentional Infliction of Emotional Distress which is an important cause of action that allows a plaintiff to recover damages when the conduct of the defendant is outrageous.  There are very specific requirements for a plaintiff to be able to prove this cause of action in court.  In order to support a claim for Intentional Infliction of Emotional Distress, the Tennessee Supreme Court has held that the following elements are required:

The elements of an intentional infliction of emotional distress claim are that the defendant's conduct was (1) intentional or reckless, (2) so outrageous that it is not tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff. Regarding the first element, the law is clear in Tennessee and elsewhere that either intentional or reckless conduct on the part of the defendant will suffice to establish intentional infliction of emotional distress.

Rogers v. Louisville Land Company et al, 367 S.W.3d 196, 205 (Tenn. 2012).  The Rogers case is a very important Tennessee Supreme Court case that definitively outlined the requirements for this cause of action.  In this case the court made it very clear that there is no difference between a claim for Intentional Infliction of Emotional Distress and the claim for Reckless Infliction of Emotional Distress. Both are considered part of the same cause of action (either intentional or reckless conduct is sufficient to meet the threshold required for this cause of action).

Further, the familiar standard of “outrageous” conduct that has long been required for an Intentional Infliction of Emotional Distress claim still stands. Specifically, that the conduct must be “so outrageous that it is not tolerated by civilized society”.  Obviously, this is generally a jury issue however courts have long stepped in to evaluate whether the facts of a case meet this threshold before sending the case to the jury.  This standard is a standard that can change over time because it is based on what is tolerated by “civilized society”.  For example, it is my view that certain types of sexual harassment and sexually hostile work environment situations are currently experiencing a shift in what is tolerated by “civilized” society. Importantly, our country is making significant progress on what it considers to be outrageous conduct by individuals who sexually harass women.  It is my position, therefore, that this standard has changed over time and what may not have been considered outrageous conduct in the 1980s certainly is outrageous conduct today.

Tennessee Supreme Court Overturns COA Dedmon case - Key Decision for Personal Injury cases on Medical Bill Evidence

The Tennessee Supreme Court issued a very important decision today on the appeal in the Dedmon case.  Many people have been waiting on this decision from the plaintiff’s side and the defendant’s side.  The Dedmon case was the case where the Tennessee Court of Appeals ruled that defendants, in personal injury cases, could introduce evidence of the discounted amounts accepted by health providers or paid by insurance companies.  I previously blogged on this prior ruling here.  

The Tennessee Supreme Court reversed the key part of the prior Tennessee Court of Appeals decision today.  The key part in the new case (and a good summary of the current status of the law on this issue) is the following:

In sum, we hold that the definition of “reasonable charges” under the Hospital Lien Act set forth in West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014), does not apply directly to determinations of “reasonable medical expenses” in personal injury cases; the West definition of “reasonable charges” is limited in application to interpretation of the Hospital Lien Act. We also decline to alter existing law in Tennessee regarding the collateral source rule. Consequently, the Plaintiffs may submit evidence of Mrs. Dedmon’s full, undiscounted medical bills as proof of her “reasonable medical expenses,” and the Defendants are precluded from submitting evidence of discounted rates for medical services accepted by medical providers as a result of Mrs.  Dedmon’s insurance. The Defendants remain free to submit any other competent evidence to rebut the Plaintiffs’ proof on the reasonableness of Mrs. Dedmon’s medical expenses, so long as the Defendants’ proof does not contravene the collateral source rule.  Thus, we affirm the Court of Appeals’ decision to reverse the trial court’s grant of the Defendants’ motion in limine, but we reverse the Court of Appeals to the extent that it held that the Defendants could introduce evidence of lesser amounts accepted by Mrs. Dedmon’s medical providers in order to rebut the Plaintiffs’ proof on reasonableness.

As a result, this basically returns the status of the law on this issue in Tennessee to the prior status quo.  Usually, the only evidence that a jury will now hear about the medical bills in a case is the amount of the medical bills charged by the medical care provider.  This effectively greatly inflates (in many situations) the amount of “medical bills” for an injury.  However, this is the law in Tennessee.  I expect this will not be the end of this issue and the Tennessee Legislature will take a look at trying to find a solution in the coming years.

2016 Tennessee Statute Provides for Attorney’s Fees to Be Awarded to State When State Employee is Individually Sued Unsuccessfully Under § 1983

Sometimes state government employees are sued on an individual basis for actions that they took as a government employee.  Often these cases are § 1983 claims asserting the state employee acted inappropriately under the “color of law.”  However, this new statute is not limited to claims under § 1983.  In response, the Tennessee legislature felt it was necessary to provide protection to the State when the individual governmental employee is successful in defending such a claim.  As a result, the 2016 Tennessee added a provision in the law that provides that attorney’s fees and costs should be awarded to the state or the state employee when the state employee is not found to be not responsible when they are sued in their individual.  In fact, the employee is not even required to be successful on the merits, but instead, even if the case is voluntarily dismissed greater than 45 days after an Answer is filed making specific assertions, then the employee is still awarded attorney’s fees and costs.   

Public Chapter No. 848, which was signed into law on April 19, 2016 by Governor Bill Haslam, has been amended and now provides as follows:

(a) Notwithstanding § 20-12-119(c)(5)(A), if a claim is filed with a Tennessee or federal court, the Tennessee claims commission, board of claims, or any other judicial body established by the state or by a governmental entity of the state, against an employee of the state or of a governmental entity of the state in the person's individual capacity, and the claim arises from actions or omissions of the employee acting in an official capacity or under color of law, and that employee prevails in the proceeding as provided in this section, then the court or other judicial body on motion shall award reasonable attorneys' fees and costs incurred by the employee in defending the claim filed against the employee.

“Reasonable” Medical Expenses in Tennessee (Amount Billed or Amount Paid?) – The Law After West and Dedmon for Personal Injury Litigation

A very important Tennessee Court of Appeals opinion was issued on June 2, 2016.  In this case, Jean Dedmon v. Debbie Steelman, No. W2015-01462-COA-R9-CV (Tenn. Ct. App. June 2, 2016), the Court discussed whether the amount an insurance company actually pays for medical services in a personal injury action, is, as a matter of law, the “reasonable” amount of medical expenses.  In order to recover medical expenses under Tennessee law, in a personal injury action, the plaintiff must prove the medical expenses were reasonable and necessary.  The reason the Dedmon decision is so important is because of the West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014) decision.  In the West case, the Tennessee Supreme Court, when interpreting the Tennessee Hospital Lien Act, essentially found that a hospital’s non-discounted charges reflected in their lien, were not reasonable because they do not reflect what is actually being paid in the marketplace.  The Court found that, under the Tennessee Hospital Lien Act, the amount actually paid for the hospital charges were the reasonable charges for the services provided, not the amounts billed which were, as a matter of law, unreasonable.

Since the time of the West decision, several trial courts and some Federal district courts have decided that the West case reasoning also applies to personal injury actions.  They have found that essentially, in a personal injury action in the State of Tennessee, evidence of the actual amount actually paid for medical bills is the only amount that can be introduced into evidence, not the amount billed or charged by the provider.  The reason is, due to insurance industry dynamics, there is almost always a significant difference in the amount billed or charged by the provider and the amount actually paid by insurance, Medicare or otherwise.  For instance, in the Dedmon case, the total amount of “incurred” medical expenses were $52,482.87 (the amount charged by the providers).  However, the plaintiff’s health insurance carrier only paid $18,255.42.  As a result, there is a significant disparity between the amount billed and the amount actually paid.

Tennessee Supreme Court Clarifies Which Cases Are Subject to Tennessee Health Care Liability Act Requirements

The Tennessee Supreme Court recently handed down a very important medical malpractice decision in Adam Ellithorpe v. Janet Weismark, 2015 WL 5853873 (Tenn. 2015).  In this new decision, the Tennessee Supreme Court considered whether its prior opinion of Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011) was overruled by legislation found in the Tennessee Civil Justice Act in 2011.  In the Estate of French decision, the Tennessee Supreme Court previously ruled that claims could be characterized as ordinary negligence as opposed to medical malpractice when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional.  Following that decision, the Tennessee Legislature passed the Tennessee Civil Justice Act of 2011 which amended the definition of a “healthcare liability action” to the following:

(1) “Health care liability action” means any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based;

T.C.A. § 29-26-101(a)(1). 

As a result, the question in the Ellithorpe case was whether the new definition of a “Health care liability action” overruled the Estate of French decision when determining if a case came within the Health Care Liability Act.  In Ellithorpe the Tennessee Supreme Court found that the Tennessee legislator overruled the Estate of French decision.  The Court held that “section 29-26-101 establishes a clear legislative intent that all civil actions alleging that a covered health care provider or providers have caused an injury related to the provision of, or failure to provide healthcare services be subject to the pre-suit notice and certificate of good faith requirements, regardless of any other claims, cause of action or theories of liability alleged in the complaint.”  Ellithorpe at ­­­7.

As a result, it is now very clear in Tennessee, based on the current status of the law, that if a cause of action has any relationship to a health care liabili...

Tennessee Legislature Clarifies that Franchisee Employees Are Not To Be Deemed Employees of the Franchisor

The Tennessee legislature in Public Chapter No. 114 clarified Tennessee law on who is considered the employer of franchisee employees.  This was signed into law by Governor Bill Haslam on April 10, 2015 and took effect immediately.  Specifically, employees of franchisees as well as franchisees themselves will not be “deemed to be an employee of the franchisor for any purpose.”  This obviously is important in several different areas of the law.  It can certainly be important for numerous employment law issues including Tennessee employee discrimination or fair labor standard cases.  Additionally, if employees are deemed to be employed by a franchisor, this could lead to an increased level of litigation against franchisors for claims based in premises liability or automobile liability (when a franchisee is involved in an incident or claim).

The Tennessee legislature felt it was important to clarify this issue mainly because of concerns for litigation as well as recent changes in the law on this issue at the national level.  The NLRB recently found that McDonald’s corporation is a joint employer of franchisee employees and is therefore responsible for the actions of the franchisee on labor related issues.  This has caused great concern among franchisor’s for their possible joint liability in certain circumstances.

This new law in Tennessee is an attempt to clarify that under Tennessee law, franchisors will not be considered employers of franchisee employees.  This does not mean that the Federal NLRB findings are nullified.  However, it is a step in the right direction within the context of Tennessee law to protect the important legal separate relationship between franchisors and franchisees.  The entire statute will be found in TCA Title 50, Chapter 1, Part 2 (it has not yet been assigned a formal statute number at this time).  The new statute in its entirety provides as follows:

(a) Notwithstanding any voluntary agreement entered into between the United States department of labor and a franchisee, neither a franchisee nor a franchisee's employee shall be deemed to...

Tennessee Caps on Damages

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...

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...

Tennessee continues downward trend for Circuit and Chancery court case filings in the most recent reported fiscal year.

Each year the Tennessee Judiciary publishes an annual report discussing the Tennessee judiciary.  This report provides helpful statistics on case filings and other important legal system information for Tennessee.  The fiscal year, 2011-2012 report is the most recent report that has been released to date (the 2012-2013 report should be out soon). 

One thing that stands out in the report is the continued decline in the number of cases filed in Tennessee Circuit and Chancery Courts.  The trend line is pretty clear for both courts from 2005 to present (the data from the prior years was pulled from prior annual statistical reports).  This downward trend exists despite the fact that Tennessee has had good population growth since 2005 of approximately (approximately 9% from 2005 to present going from around 5.97 million to 6.51 million people).

The total number of case filings for Tennessee Chancery courts from 2005 to 2012 is as follows:

            2005-2006                                                                     68,567

            2006-2007                                                                     66,994

            2007-2008                         ...