Martin L. Ellis, Attorney

Martindale-Hubbell AV Peer Review Rated

Senior Partner born in Columbus, MS. Martin Ellis attended the University of the South, Sewanee, TN (B.S. 1973) where he was elected as President of the Order of Gownsmen, the University's highest elected student position. Before attending the University of Tennessee College of Law, Martin Ellis spent ten months on Kibbutz Sdot Yam, Israel , where he taught English to recent Russian immigrants. He received his law degree from the University of Tennessee College of Law in 1978. He is the proud father of one son and two daughters. He is an active volunteer with such community organizations as St. Joseph Catholic Church, Habitat for Humanity, Interfaith Hospitality Network, Knoxville Area Rescue Ministries and Big Brothers Big Sisters where he is currently serving on the Board of Directors.  Mr. Ellis has been invited to be a member of the Trucking Industry Defense Association (TIDA). TIDA and its members are devoted to sharing knowledge and resources in defense of the trucking industry. Founded in 1993, TIDA has become the organization of choice for over 1,200 motor carriers, trucking insurers, defense lawyers and claims servicing companies. TIDA is committed to reducing the costs of claims and lawsuits against the trucking industry.

His experience abilities as a trial lawyer were recognized by his election to the International Society of Barristers (Fellow). The International Society of Barristers is an honor society of outstanding trial lawyers chosen by their peers on the basis of excellence and integrity in advocacy. Created in 1965, the Society arose out of a desire to bring together the best of the trial bar in a setting devoid of partisan interests. With limited membership, the Society has Fellows from every state, the District of Columbia, Puerto Rico, the Virgin Islands, Australia, Canada, England, Scotland and Mexico .

Mr. Ellis was named a 2008 - 2009 Mid-South Super Lawyer. Being named a Super Lawyer is a great honor as only 5% of attorneys in Arkansas, Mississippi and Tennessee are chosen. The selection process, which is merit based, involves peer nominations with ballots mailed to 23,000 Arkansas, Mississippi and Tennessee lawyers, a blue-ribbon panel review and independent research on candidates. (www.superlawyers.com).

DAMAGES--SIGNIFICANT NEW TENNESSEE SUPREME COURT OPINION

            Banks v. Elk Club Pride of Tennessee

            Tennessee Supreme Court

            January 13, 2010

A recent Tennessee Supreme Court case has changed a long-standing principle of Tennessee law involving the allocation of responsibility in a case in which negligence of a second defendant results in further harm to a plaintiff.  Prior to the recent case of Banks v. Elk Club Pride of Tennessee, the law was that the original defendant was liable, for example for any subsequent malpractice negligently inflicted on the plaintiff by a treating physician or hospital.  The plaintiff did not have to be concerned about suing the negligent health care provider.  The Banks case has changed that rule.

The plaintiff in Banks was a guest at a private club and injured her back when her chair collapsed.  Her treating surgeon then mistakenly operated on the wrong vertebrae resulting in the need for a second surgery.  Then, while recovering in a nursing home, the plaintiff was allegedly negligently exposed to a serious bacterial infection which required additional surgeries and extensive care and treatment. 

The plaintiff filed a lawsuit against the private club where she was injured and a separate lawsuit against her surgeon for medical malpractice.  The cases were eventually consolidated and the initial defendants, the club and the surgeon, moved to amend their answers to assert comparative fault claims against the nursing home.  The trial court denied the motions, but the Tennessee Supreme Court ended up accepting an interlocutory appeal on the matter.

In its decision the Supreme Court noted that the case of McIntyre v. Balentine, which adopted the theory of comparative fault in Tennessee several years ago, left open a number of issues involving application of the doctrine.  The Supreme Court's goal since McIntyre has been to assure that Tennessee 's comparative fault concept strikes the proper balance between the plaintiff's interest in being made whole and the defendant's interest in paying only those damages for which the defendant is responsible.  The Court has embraced an approach under which the first-named defendant may seek to reduce its proportional share of the damages by successfully asserting, as an affirmative defense, that a portion of the fault should be allocated to another defendant. 

The Supreme Court in Banks recognized that under long-standing Tennessee law, there are circumstances under which a defendant may be held liable not only for the injury caused by that defendant's own conduct, but also for later injuries caused by the conduct of another.  Liability in these circumstances arises when the subsequent negligent conduct is a foreseeable or natural consequence of the original defendant's negligence.  Tennessee courts have recognized and applied this principle for over one hundred years.  Negligence in subsequent medical treatment is the most common invocation of this principle. 

The Court in Banks, however, ruled that principles of comparative fault require the apportionment of liability when negligence of a subsequent defendant further subjects a plaintiff to harm.  The Court proceeded to rule that an original defendant may now allege malpractice on the part of a subsequent medical provider who negligently worsened the plaintiff's condition. 

For example, the original defendant such as a restaurant owner in a food borne illness case, a store owner in a slip-and-fall case, or a defending driver in a case involving a motor vehicle accident, would allege that malpractice on the part of a treating physician exacerbated the plaintiff's injuries.  According to the Banks decision, the plaintiff then has two choices.  The plaintiff can decide not to name the health care provider as a defendant and run the risk of a diminished recovery if the jury finds blame on the part of the health care provider, or the plaintiff can name the second allegedly negligent actor as a defendant. 

The more likely scenario is that the plaintiff would name the health care provider as a defendant.  In that instance, when there is sufficient factual evidence on the issue of malpractice, the jury will decide the matter.  If the jury refuses to find malpractice on the part of the health care provider but does find the original defendant liable, the plaintiff may still obtain a complete recovery from the original defendant for all harm suffered.  The plaintiff's recovery would be based on the jury's finding that while the original defendant was negligent, the health care provider acted appropriately.  The jury's finding would establish that the original defendant should bear the entire cost of the plaintiff's condition.

On the other hand, if the original defendant is successful in placing fault on the part of the health care provider, then the health care provider is responsible to the plaintiff for the health care provider's percentage of fault.  The original defendant would not bear that responsibility.

This new Supreme Court decision brings to mind a complicated case the author defended involving a plaintiff alleging the food borne contraction of the hepatitis A virus.  Following contraction of the virus, the plaintiff underwent malpractice at the hands of a treating physician which caused or contributed to his death.  Prior to the Banks decision, the original defendant was liable to the plaintiff for the physician's malpractice. It was up to the original defendant to attempt any recovery from the physician.  The plaintiff was not required to take any steps to seek recovery against the physician.  That is no longer the case.  The Banks decision places the burden of naming a subsequently negligent health care provider on the plaintiff.

The Supreme Court makes clear, however, that the original defendant cannot place on the plaintiff the whole burden of proving fault on the part of the subsequently added defendant.  A defendant who wishes to place fault on the part of a health care provider will shoulder the burden of proving malpractice.  In many instances, that presents a formidable task.

Defendants should not take lightly the option of alleging fault on the part of a health care provider.  One concern is that a health care defendant who is absolved from liability might proceed with a lawsuit for malicious prosecution against a party who alleged fault without probable cause to do so.  Therefore, it seems that defendants should proceed cautiously in this area by obtaining, for example, expert opinion and complying with any requirements put into effect by the Tennessee statutes governing actions brought against health care providers.

Results:

Martin L. Ellis has tried and successfully defended asbestos personal injury cases in 7 states.  Those cases have included asbestosis, lung cancer and mesothelioma claims.  The plaintiffs' attorneys in each of the cases involved were asking for over five million dollars in damages for each case.

Mr. Ellis successfully defended Teledyne Economic Development Company in a wrongful death claim.  Plaintiff claimed a student was brutally murdered by three other students.  Plaintiff's complaint alleged that Teledyne's recruiter negligently misrepresented the conditions of the local facility.  Defendant's Motion for Summary Judgment was filed.  Trial court found "that the plaintiff has failed to come forward with sufficient evidence to create a genuine issue of material fact as to the existence of a duty on the part of Teledyne, a breach of that duty even if one existed, or that anything that Teledyne did or did not do was the proximate cause of the murder.  Therefore, the court finds that defendant Teledyne's motion for summary judgment will be granted and the complaint against Teledyen will be dismissed.  The court commends the parties for the excellent briefs they presented to the court on this motion for summary judgment."  Leon Jordan, United States District Judge.

Mr. Ellis successfully defended a product liability case wherein a railroad tanker car had split in half and allegedly caused exposure to carbon disulfide.  After a three day bench trial, the Court ruled in favor of our client, Akzo Nobel.

Mr. Ellis successfully mediated a wrongful death case on behalf of a tractor trailer company.  The defendant fully expected the case to settle for approximately $3.5 million.  Through the meticulous efforts of Martin L. Ellis, the case was successfully settled for $1.8 million.

Mr. Ellis successfully argued a motion for summary judgment in a wrongful termination case.  The plaintiff appealed to the Court of Appeals.  The Court of Appeals opinion affirmed the trial court's granting of the motion for summary judgment filed on behalf of the defendant.  The client indicated that in his opinion case did not necessitate a trial but that in his experience "the ability to consistently achieve efficient, positive results, whether through motion practice, settlement or is a sure sign that the attorney is a true trial lawyer and a genuine professional".

Mr. Ellis had the opportunity to represent three Irish students who were involved in a motor vehicle accident in Sevier County, Tennessee .  After depositions were taken in Ireland , the case was successfully mediated.

Verdicts or settlements discussed herein are not intended to create an unjustified expectation about results the lawyer or law firm can achieve or imply that the firm can achieve similar results in future litigation.

Representative Trials include:

• Advery v. Celotex, USDC, Knoxville, TN - 10 day trial;
• Akzo v. GATX, USDC, Knoxville, TN - 5 day trial;
• Amos V. Celotex, USDC, Greensboro, NC - 10 day trial;
• Anderson v. Celotex, USDC, Columbia, SC - 8 day trial;
• Arnold v. Celotex, USDC, Knoxville, TN > - 5 day trial;
• Berlin v. Celotex, USDC, Nashville, TN - 9 day trial;
• Boiter v. Celotex, USDC, Columbia, SC - 9 day trial;
• Burns v. Schuller International, Inc., Knox Circuit, Knoxville, TN - 2 day trial;
• Ellis/Mitchell v. American Water Heater, Loudon Circuit, Loudon, TN - 10 day trial;
• Hudson v. MS Carriers, USDC, Greeneville, TN - 7 day trial;
• McCloud v. Celotex, USDC, Columbia, SC - 12 day trial;
• McCurry v. Container Corp. of America, Knox Circuit, Knoxville, TN - 2 day trial;
• McFall v. Eagle Distributing Co., Knox Circuit, Knoxville, TN - 3 day trial;
• Sharp v. Anderson County, Anderson Circuit, Clinton, TN - 2 day trial;
• Shealey v. Celotex, USDC, Columbia, SC - 9 day trial;
• Stricklin v. Waterbury Companies, Inc., Hardin Circuit, Savannah, TN - 9 day trial.

Other Associations and Memberships:

Board of Directors, Big Brothers Big Sisters of East Tennessee

Member of the Parish Council, St. Joseph Catholic Church, Norris, TN

Hobbies:

• Tennis
• Wake boarding
• Horseback riding
• Skeet shooting
• Long distance swimming

• American Association for Justice
  American Bar Association

• Super Lawyer
• AV Peer Review Rating of 5.0

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• Justia