Personal Injury

November 7, 2018

Federal Court in Tennessee Partially Dismisses Hernia Mesh Injury Case as Untimely but Denies Summary Judgment on Several Product Liability Claims

One of the most important considerations in a Tennessee personal injury lawsuit is, “When does the statute of limitations run?” While it is sometimes easy to determine this very important date, the issue can be very complicated in some cases.

If the plaintiff’s suit is found to be filed after the expiration of the applicable statute of limitations has expired, his or her claim will be dismissed by the court – even if he or she would have otherwise had a very strong case of liability against the defendant(s). Thus, it is extremely important that anyone has been hurt by the negligence, recklessness, or other wrongful conduct of others consult an experienced personal injury attorney as soon as possible so that the necessary paperwork can be filed in a timely fashion.

Facts of the Case

In a recent federal case, the plaintiff was a woman who alleged that she had suffered numerous personal injuries and complications following a mesh hernia repair surgery that took place in June 2008. In May 2018, She brought a product liability lawsuit against the defendants (the manufacturer of the mesh and the manufacturer’s subsidiary), asserting claims for negligence, strict product liability, negligent infliction of emotional distress, intentional infliction of emotional distress, breach of implied warranty, failure to warn, and fraud. The defendants filed a motion to dismiss the plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on grounds that the plaintiff’s claims were time-barred by the applicable statutes of limitation.

October 17, 2018

Federal Court Remands Car Accident to Tennessee State Court

by Mark Hartsoe

Most east Tennessee car accident lawsuits are filed in state court. There are several procedural and strategic reasons for this. However, when a federal question is involved in the case or when there is diversity of citizenship between the parties, the defendant(s) may remove the case to federal court.

“Making a federal case out of it” tends to result in more costly, complex, and time-consuming litigation, at least from the plaintiff’s point of view. Thus, if there is any possibility of having the case returned to state court after removal, the plaintiff may be wise to consider this option.

Facts of the Case

In a recent case, the plaintiffs were a husband and wife who, along with their minor child, were allegedly injured in an accident in Chattanooga. They filed suit in state court against the driver whose negligence they alleged caused the crash. They also named the driver’s employer as a defendant in suit, asserting a claim for vicarious liability. The employer removed the state court action to federal court, invoking diversity jurisdiction (the plaintiffs were not from Tennessee).

October 3, 2018

Negligence Case Brought by East Tennessee Ash Spill Cleanup Workers Proceeds Toward Trial on General Causation

by Mark Hartsoe

In an east Tennessee personal injury lawsuit based on a plaintiff’s allegations that a defendant acted negligently, there are four essential elements: duty, breach of duty, damages, and causation. “Causation” is a but-for cause-and-effect relationship between what the defendant did or did not do and what ultimately happened to the plaintiff.

Unless the plaintiff can prove all four of these elements, including causation, by a preponderance of the evidence at trial, his or her case will not be successful, even if his or her injuries were severe and even if the defendant admits that a legal duty towards the plaintiff was breached.

Facts of the Case

A recent case under consideration by the United States District Court for the Eastern District of Tennessee arose as a result of a cleanup, removal, and recovery project at a 2008 ash spill at a Roane County fossil fuel plant. There were several plaintiffs, including both individuals who worked on the project and some who had spouses who did so. The plaintiffs’ claims including negligence, negligence per se, recklessness, fraud, misrepresentation, and/or strict liability for an ultrahazardous or abnormally dangerous activity. According to the plaintiffs’ the defendant’s failings as construction manager of the project caused pulmonary problems, skin and sinus illnesses, and other personal serious injuries.

July 11, 2018

Trial Court Erred in Granting Summary Judgment in Premises Liability Case Involving Extension Cord, Says Tennessee Court of Appeals

by Mark Hartsoe

An east Tennessee premises liability case can arise from many different types of dangerous conditions – a slippery floor, a broken staircase, etc. In such cases, the plaintiff has the burden of proving liability.

This means that the plaintiff must provide evidence that shows that the defendant either knew of, or should have known of, the dangerous condition but did not take reasonable steps to remedy the situation.

Facts of the Case

In a recent premises liability case arising in Tipton County, the plaintiff was a construction worker who fell from scaffolding while working in a factory owned by the defendant. At the time of the accident, the plaintiff was working for a sub-contractor of a company that had been hired to renovate the defendant’s warehouse. The plaintiff was using an electric screw gun powered by a 100 foot extension cord. As the plaintiff was working with the screw gun, the defendant’s employees continued to move products around the warehouse using a forklift. The forklift driver apparently did not see the plaintiff or the extension cord and drove the forklift in such a manner that it became entangled with the cord. The plaintiff fell approximately 10 feet, causing him serious injuries. Continue reading

May 30, 2018

Summary Judgment for Homeowners in Caterer’s Slip and Fall Lawsuit Was Wrong, Says Tennessee Appeals Court

by Mark Hartsoe

When someone is hurt on another person’s property, the injured person may file a lawsuit seeking monetary compensation for lost wages, medical expenses, pain and suffering, and other damages. The burden of proof is always on the plaintiff in an east Tennessee slip and fall case, however, and being successful at trial can be a very challenging task.

A seasoned personal injury attorney can help the injured person navigate the difficulties and potential pitfalls of a premises liability case seeking compensation for injuries suffered in a fall or other accident on a landowner or business’ property.

Facts of the Case

April 4, 2018

East Tennessee Bicycle Accident Case Involving “Paceline” Riding Should Not Have Ended in Summary Judgment

by Mark Hartsoe

A common issue that arises in east Tennessee personal injury and wrongful death lawsuits is that of comparative negligence. This is because, under Tennessee’s “modified comparative fault” law, a plaintiff who is 50% or more at fault in an accident cannot recover compensation from the alleged wrongdoer.

Tennessee’s rule is harsher than that of some sister states that, instead, follow the rule of “pure comparative fault,” in which the plaintiff recovers at least some compensation as long as he or she is not 100% at fault (although the amount received is reduced in proportion to the percentage of fault assigned to the plaintiff).

Facts of the Case

March 28, 2018

Tennessee Court of Appeals Reverses Dismissal of Premises Liability Case with Unusually Complicated Procedural History

by Mark Hartsoe

Ideally, an east Tennessee personal injury lawsuit would proceed as follows: the plaintiff files the complaint, the defendant files an answer, the case is tried, a judgment is entered, and the case is over. Unfortunately, things do not always work out that way.

A case recently considered by the Tennessee Court of Appeals definitely did not proceed in the usual fashion. It involved two separation actions in general sessions court, two appeals to circuit court, and yet another appeal to the court of appeals. Perhaps not surprisingly, the case still isn’t over.

Facts of the Case

January 31, 2018

Tennessee Health Care Liability Act Requirements Held Not to Apply to Alleged Assault by Security Officer in Treatment Facility

by Mark Hartsoe

Under Tennessee law, a would-be Knoxville medical malpractice claimant must provide pre-suit notice and file a certificate of good faith along with his or her complaint. These requirements apply to any claims alleging health care liability.

However, it is not always clear whether a given claim is a “health care liability” claim.

Facts of the Case

January 12, 2018

Tennessee Court of Appeals Says County’s Third-Party Claim Against Medical Services Company Following Attack on Inmate Was Not a “Health Care Liability Claim”

by Mark Hartsoe

When someone is killed or suffers catastrophic injuries as a result of the negligence of a government official – including prison guards, police officers, and sheriffs’ deputies – that injured person (or the deceased person’s family) may be able to seek monetary compensation.

An experienced Tennessee personal injury attorney can help you determine whether liability may lie in a particular situation and, if so, help you get started on the process of holding the responsible party accountable for the consequences of their actions or inaction.

Facts of the Case

December 27, 2017

School Bus Driver’s Slip and Fall Lawsuit Against City/County Government Survives Summary Judgment, Per Tennessee Court of Appeals

by Mark Hartsoe

Serious injuries can result from a fall on another party’s property – broken bones, sprains, strains, disc herniations, and other, sometimes permanently disabling medical problems can all occur when premises are not maintained in a reasonably safe condition.

In an east Tennessee premises liability lawsuit, a person injured on another party’s property may seek compensation for medical expenses, lost earnings, and pain and suffering caused by the fall.

However, the burden of proof in a slip and fall case is always on the plaintiff – the injured person – to prove his or her case by a preponderance of the evidence. Often, such cases fail for lack of proof, not because the defendant was not negligent but because the plaintiff was unable to provide competent evidence of the defendant’s breach of the duty of due care.