Monthly Archives: December 2015

Tennessee Supreme Court gives trial courts more latitude in determining proper sanctions for spoliation of evidence.

Civil Procedure, ,

By Daniel Horwitz:

On March 3rd, 2008, Lee Ann Tatham purchased two new Bridgestone tires in Murfreesboro, Tennessee.  Unfortunately, however, less than three months later, one of the two tires failed while she was driving on the interstate, causing her to spin out.  Thereafter, Ms. Tatham’s car careened across the highway, struck a guardrail, flipped, and landed in a ditch.  Ms. Tatham survived the accident, but she suffered a broken back as a result of it.

Because her car was completely totaled in the accident, Ms. Tatham’s insurance company advised her to transfer the title of her vehicle to the wrecker service that had towed it away.  The wrecker service subsequently destroyed her vehicle – including the defective tire – as part of its routine practice.  Ms. Tatham did not seek to have the tire destroyed by the wrecker service, and she did not know that it would be.  Additionally, because she had not yet hired an attorney, Ms. Tatham was not aware that she was supposed to have the defective tire preserved as evidence.

Eventually, Ms. Tatham brought a products liability lawsuit against Bridgestone seeking compensation for her injuries.  Thereafter, Bridgestone filed a motion to dismiss Ms. Tatham’s lawsuit on the basis that the tire at issue had improperly been destroyed.  The trial court denied Bridgestone’s motion, and it permitted Ms. Tatham’s case to go forward.  This appeal followed.

Spoliation of Evidence

As a general matter, people are not allowed to destroy evidence that will be relevant to a future legal proceeding.  Failing to preserve evidence – or, in legal parlance, “spoliation of evidence” – exposes a litigant to being sanctioned once the legal proceeding begins.[1]  In Tennessee, the range of potential remedies that a trial court can use to punish a party for destroying evidence is extensive.  Possible sanctions include “dismissal of the action, rendering a judgment by default, limiting the introduction of certain claims or evidence, entering an order designating that certain facts shall be taken as established, and striking out pleadings or parts of pleadings.”[2]

Broadly speaking, trial sanctions for spoliation of evidence are intended to serve two purposes.  First, they “attempt[] to place the non-spoliator in a position similar to where it would have been prior to the destruction of evidence.”[3]  Second, Continue reading Tennessee Supreme Court gives trial courts more latitude in determining proper sanctions for spoliation of evidence. →

In its most consequential ruling of the year, Tennessee Supreme Court modifies Tennessee’s summary judgment standard, adopts federal “put up or shut up” rule.

Civil Procedure, Tennessee Constitutional Law, ,

By Daniel Horwitz:

Concluding in Rye v. Women’s Care Ctr. of Memphis that the seven-year-old summary judgment standard established by the Tennessee Supreme Court in Hannan v. Alltel Publ’g Co. had proven to be “unworkable” and “functioned in practice to frustrate the purposes for which summary judgment was intended,” the Court has officially overruled Hannan effective immediately.[1]  In its place, the Court “fully embrace[d]” the summary judgment standard that has been used in federal cases since 1986.[2]

The federal summary judgment standard empowers litigants to force their opponents to “put up [evidence] or shut up” before trial.[3]  If, in response to a properly supported motion for summary judgment, the responding (“nonmoving”) party is unable to muster sufficient evidence to demonstrate that there is a genuine dispute of a material fact that requires a trial, then summary judgment must be granted in favor of the moving party.  In contrast, under the prior Hannan standard, several courts had concluded that “it is not enough to rely on the nonmoving party’s lack of proof even . . . after the deadline for discovery ha[s] passed.  Under Hannan, we are required to assume that the nonmoving party may still, by the time of trial, somehow come up with evidence to support [a] claim.”[4]  After determining that this standard was “unworkable and inconsistent with the history and text of Tennessee Rule [of Civil Procedure] 56,”[5] a majority of the Court concluded that Hannan should be overruled.

In all likelihood,[6] the immediate effect of the Court’s decision in Rye will be to increase the number of cases that are decided at the summary judgment stage.  Thus, fewer cases will end up going to trial and being decided by a jury, and litigants are less likely to settle claims.  Helpfully, the Tennessee Supreme Court’s “full[] embrace” of the federal summary judgment standard also harmonizes state and federal civil procedure, and it finally settles an area of law that had created a substantial degree of confusion among both lower courts and the Justices of the Tennessee Supreme Court themselves.[7] Continue reading In its most consequential ruling of the year, Tennessee Supreme Court modifies Tennessee’s summary judgment standard, adopts federal “put up or shut up” rule. →

Tennessee Supreme Court voids judgment for lack of personal jurisdiction; establishes standard for determining when void judgments are still binding.

Family Law, Judgments, ,

By Daniel Horwitz:

After a short marriage, Kevin Turner and Stephanie Turner divorced on October 19, 2000.  Full custody of their two children was awarded to Mr. Turner, and Mrs. Turner was directed to pay Mr. Turner child support.  However, the couple’s divorce decree also provided that Mrs. Turner was entitled to visitation “during such periods of visitation as may be awarded.”

By July 2001, Mrs. Turner had left Tennessee and had lost all contact with Mr. Turner and their children.  Mrs. Turner also failed to pay Mr. Turner any child support, and she stopped seeking visitation.  Consequently, Mr. Turner filed a petition to terminate Mrs. Turner’s parental rights over their children.  Because Mrs. Turner had moved, however, the summons that was issued to alert her of Mr. Turner’s petition was returned undelivered.

Having been unable to provide Mrs. Turner with personal service of his petition to terminate her parental rights, Mr. Turner attempted to give Mrs. Turner “constructive” notice of his petition by publication.  Under Tenn. Code Ann. § 21–1–203(a)(5), personal service is not required “[w]hen the residence of the defendant is unknown and cannot be ascertained upon diligent inquiry.”  However, to be excused from the personal service requirement, a litigant must describe his diligent efforts to provide personal service under oath or in a separate affidavit.[1]  Additionally, a separate statute that applies specifically to parental termination proceedings provides that any request to authorize constructive notice through publication “shall be accompanied by an affidavit of the petitioners or their legal counsel attesting, in detail, to all efforts to determine the identity and whereabouts of the part[y] against whom substituted service is sought.”[2] Continue reading Tennessee Supreme Court voids judgment for lack of personal jurisdiction; establishes standard for determining when void judgments are still binding. →

All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court.

Health Care Liability Act, Tort Law,

By Daniel Horwitz:

In February of 2012, the Juvenile Court of Sumner County awarded temporary custody of “M.L.” – a minor child – to her great aunt and uncle.  However, the Court’s custody order also provided that M.L.’s biological parents – Adam and Ashley Ellithorpe – were permitted to participate in any counseling that she received.  After the Ellithorpes discovered that M.L. had received counseling for approximately two years without their knowledge, however, they sued M.L.’s counselor – Ms. Janet Weismark – for negligence.  According to M.L.’s parents, Ms. Weismark – a licensed clinical social worker – acted recklessly and caused their daughter substantial harm by providing her counseling services without first obtaining their consent to do so.

After receiving the Ellithorpes’ complaint, Ms. Weismark asked the court to dismiss it on the basis that the Ellithorpes had failed to comply with the pre-suit notice requirements of the Tennessee Health Care Liability Act (the “HCLA”).  In Tennessee, people who want to file lawsuits involving the provision of health care services are first required to comply with a variety of procedural requirements that are unique to health care claims.[1]  Given that the HCLA’s pre-suit notice requirements serve as a minefield to unwary litigants and frequently result in otherwise-valid claims being dismissed on technical procedural grounds, the author has previously characterized these requirements as “red tape with fangs.”  See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015) (feature article), available at http://issuu.com/nbanikki/docs/nbjjune15/17.

Chief among the HCLA’s pre-suit notice requirements is a rule that “[i]n any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.”[2]  This rule requires a plaintiff to certify that before filing the lawsuit, the plaintiff consulted at least one medical expert who concluded that there was a good faith basis to pursue the claim.[3]  Tennessee law also provides that a plaintiff’s failure to comply with this requirement results in his or her complaint being dismissed with prejudice,[4] which means that the lawsuit is over and it can never be brought again.

Continue reading All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court. →