John B. Bennett, Judge
Reports of Cases Reviewed by Appellate Courts – Beginning Jan. 1, 2022
Text is the appellate court’s summary of the opinion.
Scroll down for important information.
Snipes v. Skin Cancer & Cosmetic Dermatology Clinic, P.C., No. E2023-00386-COA-R3-CV (Tenn. Ct. App. Sept 27, 2023) (memorandum opinion). This is an appeal from a final order entered on February 10, 2023. The Notice of Appeal was not filed with the Appellate Court Clerk until March 14, 2023, more than thirty days from the date of entry of the order from which the appellant is seeking to appeal. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.
Brittany Borngne ex rel. Miyona Hyter v. Chattanooga-Hamilton Cty. Hosp. Auth., No. E2020-00158-SC-R11-CV (Tenn. May 23, 2023). Majority Opinion Concurring Opinion by Campbell Concurring Opinion by Lee Concurring Opinion by Kirby
Majority Opinion
This appeal primarily concerns the compulsion of a physician’s deposition testimony in a health care liability action. In 2014, a child was born via cesarean section and suffered permanent brain damage and severely debilitating injuries. By and through her next friend and mother Brittany Borngne (“Plaintiff”), the child sued the doctor who delivered her and the certified nurse midwife who was initially in charge of the birthing process, among other defendants. The trial court dismissed all claims of direct negligence against the defendant physician but allowed the plaintiff to proceed against the physician on a vicarious liability theory as the midwife’s supervising physician. However, during his deposition prior to trial, the physician refused to opine on the midwife’s performance outside of his presence. The trial court declined to require the physician to do so, and after a trial, the jury found in favor of the defendants. The Court of Appeals, in a divided opinion, partially reversed the judgment. The intermediate court concluded, among other things, that the trial court committed reversible error in declining to order the physician to answer the questions at issue in his deposition and remanded for a new trial. After review, we hold that a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard. We therefore conclude that the trial court here properly declined to compel the defendant physician’s testimony. Accordingly, we reverse the decision of the Court of Appeals and affirm the trial court’s judgment.
Concurring Opinion by Lee
I concur fully in the majority opinion. I write separately to highlight the flawed and impractical analysis in the concurring in judgment opinion, authored by Justice Campbell and joined by Justice Kirby.
Concurring Opinion by Campbell
I agree with the Court’s decision to reverse the judgment of the Court of Appeals. But my agreement with the majority ends there. I would not adopt a new evidentiary privilege for expert witnesses because that privilege is not grounded in the Constitution, Tennessee’s statutes, the common law, or this Court’s Rules—the only permissible sources of a privilege under Tennessee Rule of Evidence 501. Although the trial court erred by excluding the expert opinions at issue in this case, that error was harmless and did not warrant reversal of the judgment below or a new trial. For that reason, I join in the Court’s judgment.
Concurring Opinion by Kirby
I am pleased to concur in Justice Campbell’s separate concurring opinion, concurring in the result of the majority opinion but not the reasoning. I write separately on particular problems with the majority’s reasoning, as well as far-reaching unintended consequences of this ill-defined new common-law privilege.
First Bank f/d/b/a Northwest Georgia Bank v. Mountain Apartments, LLC, No. E2021-01433-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2022). The plaintiff bank appeals the trial court’s summary dismissal of its breach of contract action against the defendants pursuant to the law in Georgia. We affirm.
Taylor v. Taylor, No. E2021-01281-COA-R10-CV (Tenn. Ct. App. Oct. 27, 2022). George Green Taylor, III (“Father”) filed a petition to modify his permanent parenting plan in the Circuit Court for Hamilton County (the “trial court”). Father’s ex-wife, Jenny Sue Taylor (“Mother”), responded to the petition contending, inter alia, that Father’s proposed plan was not in the children’s best interests. Following a bench trial, the trial court determined that a slight change in the parties’ children’s summer schedule was warranted and ordered an upward deviation in Father’s child support for extraordinary educational expenses. Father appeals. The trial court’s ruling on Father’s child support is modified to reflect that Father’s base child support obligation is $731.00 per month, and we affirm as modified. We also affirm the trial court’s finding that an upward deviation in Father’s child support is warranted and in the children’s best interests, but we remand for entry of an order and child support worksheet reflecting the monthly amount owed for said upward deviation. Finally, we affirm the trial court’s ruling that Mother is entitled to her attorney’s fees incurred in the trial court pursuant to Tennessee Code Annotated § 36-5-103(c).
Bibbs v. Durham School Services, L.P., No. E2020-00688-COA-R10-CV, (Tenn. Ct. App. Apr. 7, 2022).This extraordinary appeal arises from a school bus crash in November 2016, which resulted in the tragic death of six children attending Woodmore Elementary School in Chattanooga. Woodmore’s school secretary sued the employer of the bus driver for, inter alia, reckless infliction of emotional distress (“RIED”). The school secretary alleged that the employer’s failure to address the bus driver’s dangerous driving despite receiving numerous warnings disregarded the children’s safety, constituted reckless and outrageous conduct, and caused her serious mental injuries. The trial court denied the employer’s motion to dismiss the claim, finding that the school secretary had sufficiently alleged outrageous conduct on the part of the employer and that she had met all other pleading requirements to sustain her RIED claim. Employer appeals. Although we agree with the trial court that the school secretary sufficiently alleged conduct so outrageous by the employer that it cannot be tolerated by civilized society, we hold that the secretary is not a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the employer and, therefore, cannot recover under a reckless infliction of emotional distress claim. Consequently, we reverse the trial court’s finding on this latter issue and remand the case for dismissal of the action against employer. [Footnote omitted.]
Muhammed v. Durham School Services, L.P., No. E2020-00755-COA-R10-CV (Tenn. Ct. App. Apr. 7, 2022). This extraordinary appeal arises from a school bus crash in November 2016, which resulted in the tragic death of six children attending Woodmore Elementary School in Chattanooga. Plaintiff, a computer teacher at Woodmore, sued the employer of the bus driver for, inter alia, reckless infliction of emotional distress (“RIED”). The teacher alleged that the employer’s failure to address the bus driver’s dangerous dress and outrageous conduct, and caused her serious mental injuries. The trial court denied the employer’s motion to dismiss the claim, finding that the teacher had sufficiently alleged outrageous conduct on the part of thiving despite receiving numerous warnings disregarded the children’s safety, constituted reckle employer and that she had met all other pleading requirements to sustain her RIED claim. Employer appeals. Although we agree with the trial court that the teacher sufficiently alleged conduct so outrageous by the employer that it cannot be tolerated by civilized society, we hold that the teacher is not a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the employer and, therefore, cannot recover under a reckless infliction of emotional distress claim. Consequently, we reverse the trial court’s finding on this latter issue and remand the case for dismissal of the action against employer. [Footnote omitted.]
Franklin v. Durham School Services, L.P., No. E2020-00715-COA-R10-CV (Tenn. Ct. App. Apr. 7, 2022). This extraordinary appeal arises from a school bus crash in November 2016, which resulted in the tragic death of six children attending Woodmore Elementary School in Chattanooga. Plaintiff, an educational assistant at Woodmore, sued the employer of the bus driver for, inter alia, reckless infliction of emotional distress (“RIED”). The educational assistant alleged that the employer’s failure to address the bus driver’s dangerous driving despite receiving numerous warnings disregarded the children’s safety, constituted reckless and outrageous conduct, and caused him serious mental injuries. The trial court denied the employer’s motion to dismiss the claim, finding that the educational assistant had sufficiently alleged outrageous conduct on the part of the employer and that he had met all other pleading requirements to sustain his RIED claim. Employer appeals. Although we agree with the trial court that the educational assistant sufficiently alleged conduct so outrageous by the employer that it cannot be tolerated by civilized society, we hold that the educational assistant is not a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the employer and, therefore, cannot recover under a reckless infliction of emotional distress claim. Consequently, we reverse the trial court’s finding on this latter issue and remand the case for dismissal of the action against employer. [Footnote omitted.]
Cothern v. Durham School Services, L.P., No. E2020-00796-COA-R10-CV (Tenn. Ct. App. Apr. 7, 2022). This extraordinary appeal arises from a school bus crash in November 2016, which resulted in the tragic death of six children attending Woodmore Elementary School in Chattanooga. Plaintiff, the school principal at Woodmore, sued the employer of the bus driver for, inter alia, negligent infliction of emotional distress (“NIED”) and reckless infliction of emotional distress (“RIED”). With respect to her NIED claim, the principal alleged that by breaching its duty to keep the students safe, the employer foreseeably caused her severe emotional distress. As to her RIED claim, she averred that the employer’s failure to address the bus driver’s dangerous driving, despite receiving numerous warnings, disregarded the children’s safety, constituted reckless and outrageous conduct, and caused her serious mental injuries. The trial court denied the employer’s motion to dismiss as to both claims, finding that the principal’s allegations satisfied the pleading requirements to sustain the claims. Employer appeals. We conclude that the principal did not allege the type of relationship to the injured or deceased party required for a plaintiff who did not witness the injury-producing event to recover under a NIED claim. The principal’s allegations also failed to show conduct so outrageous by the employer that it cannot be tolerated by civilized society. Consequently, we reverse the trial court’s judgment as to both issues and remand the case for dismissal of the action against the employer. [Footnote omitted.]
Schrick v. Durham School Services, L.P., No. E2020-00744-COA-R10-CV (Tenn. Ct. App. Apr. 6, 2022). This extraordinary appeal arises from a school bus crash in November 2016, which resulted in the tragic death of six children attending Woodmore Elementary School in Chattanooga. Plaintiff, a fourth grade math and science teacher at Woodmore, sued the employer of the bus driver for, inter alia, reckless infliction of emotional distress (“RIED”). The teacher alleged that the employer’s failure to address the bus driver’s dangerous driving despite receiving numerous warnings disregarded the children’s safety, constituted reckless and outrageous conduct, and caused her serious mental injuries. The trial court denied the employer’s motion to dismiss the claim, finding that the teacher had sufficiently alleged outrageous conduct on the part of the employer and that she had met all other pleading requirements to sustain her RIED claim. Employer appeals. Although we agree with the trial court that the teacher sufficiently alleged conduct so outrageous by the employer that it cannot be tolerated by civilized society, we hold that the teacher is not a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the employer and, therefore, cannot recover under a reckless infliction of emotional distress claim. Consequently, we reverse the trial court’s finding on this latter issue and remand the case for dismissal of the action against employer. [Footnote omitted.]
Kelly R. Russell v. Chattanooga Property Management, LLC, No. E2020-01661-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2022). This appeal involves a United Postal Service (“UPS”) worker who was injured when her foot went through the porch of a residence at which she was delivering a package. The UPS worker sued the property management company who leased the property, alleging it was liable for her injuries. The trial court dismissed the case on summary judgment, finding the property management company had no duty to the UPS worker. Because the record on appeal does not contain the lease agreement the trial court relied upon in granting the property management company’s motion for summary judgment, we vacate the trial court’s order and remand the case to the trial court.
Understanding the Limitations and Use of the Information Found in This Book
Tennessee’s trial judges resolve hundreds of thousands of legal and factual issues in tens of thousands of cases every single year. No appeal is filed in the vast percentage of those cases, indicating that while the “losing” party may not like a ruling on a particular issue, that party understands there was an appropriate reason for the judge’s decision or, at a minimum, the judge was acting within his or her discretion.
Of course, a small number of decisions of trial judges do result in an appeal. Experienced trial lawyers know that the number of cases appealed out of a particular trial judge’s court does not, in and of itself, reveal much about the trial judge. For example, some judges hear more complex cases than others, and those cases are more likely to be appealed. Convictions in child sex abuse cases are frequently appealed, as are many criminal cases resulting in long sentences. There are a large number of parental rights termination cases that find their way to the appellate courts. Judges who routinely try those types of cases will, other things being equal, see more of their cases reviewed by appellate courts than judges who do not see such cases.
Second, certain litigants (and certain lawyers) are more likely to appeal a case than others. Thus, judges who have those litigants or lawyers regularly appear in their courtrooms will find more cases reviewed by the appellate courts.
For these and other reasons, the reader is cautioned not to read too much into the number of cases appealed from a court. Stated differently, there is no reason to believe that a judge who has ten cases reviewed by an appellate court in a single year is a “worse” judge than one who has one case appealed, or that a judge who has three cases appealed is a “better” judge than one who has nine cases appealed.
Next, the number of times a judge’s ruling is reversed by an appellate court is not necessarily indicative of the quality of his or her work. For example, experienced lawyers know that there are “holes in the law,” i.e., cases where there is no law directly on point and the judge is forced to predict what an appellate court would rule on the issue. The fact that a judge decided an open legal issue one way and an appellate court decided it another way does not mean that the trial judge was “wrong” or does not understand the law. It simply means that the trial judge had a different view of what the law should be than the appellate court that decided the issue. A trial judge is not blessed with a crystal ball that can with 100 percent accuracy forecast how an appellate court will rule on an undecided legal issue.
In addition, the trial court is sometimes not provided with the same in-depth legal arguments and law that is supplied to the appellate court by the parties, or which is provided by law clerks at the appellate level (many trial courts do not have law clerks). The trial judge may have reached the same conclusion as the appellate court if he or she had been supplied with additional law or argument.
Finally, the law changes constantly, and the trial judge may rule on a case based on today’s law, which may evolve between the time of that ruling and the issuance of an opinion of the appellate court. In such cases, the reversal of the case by the appellate court is a question of timing of the original court decision as compared to changes in the law, not one of error by the trial court.
So, what is the value of this book? How can the trial lawyer use it to help his or her clients given the limitations expressed above? Permit me to digress slightly.
You have seen the coffee cups or t-shirts that proclaim, “A good lawyer knows the law, but a great lawyer knows the judge.”
Some read this phrase as suggesting that the “great lawyer” is one who has an improper relationship with the judge – that he or she can use a personal relationship to improperly influence the judge. But most lawyers know better. Most lawyers understand that “knowing the judge” means knowing the judge’s background, preferences concerning the presentation of evidence (including exhibits), arguments of motions, drafting of proposed orders, and given that experience, how he or she is likely to rule on a particular issue. “Knowing the judge” also means knowing the local rules, local forms, local customs, and what things irritate the judge (and every judge is irritated by at least one thing that lawyers or litigants may do).
Many lawyers, particularly those in more rural areas of the state or who limit their practice to one area of law, understand the personality and preferences of the judges they see on a regular basis. Many of these lawyers may have a fair advantage appearing before that judge. (The advantage is “fair” because it results from experience and knowledge.) That advantage – knowing how the judge thinks and his or her preferences – is not outcome-determinative, but it still may be an advantage, similar to a sports team playing on their home field.
Why did I say it “may” be an advantage, given what I said earlier about the benefits of “knowing the judge?” Because simply knowing the judge’s thought processes and preferences is not enough. You still need to have the law and the facts on your client’s side. And you need to be prepared to be able to give the judge what he or she needs to know to make a ruling.
So, the purpose of “The Book” is to give Tennessee lawyers case-related information to help them understand the trial judge who will rule on their client’s case or preside over a jury trial. By looking at past appellate court rulings arising from cases decided by the trial judge, anyone unfamiliar with a judge can get a “feel” for the judge. The case data contained herein does not compare with daily or weekly appearances in front of the judge on issues like a given case, but it is readily available information that give you an idea of how the judge has ruled in the past on a variety of matters.
The cases included are those originally decided by the trial judge that were in appellate court opinions released on or after January 1, 2022. Note that there are a substantial number of judges who first took office in 2022 and thus it is reasonable to assume that there will be no appellate decisions for such judges until late 2023 or 2024.
