News

Reception for Litigation and Appellate Attorneys

The TBA Appellate and Litigation sections will hold a cocktail reception immediately following their collaborative forum on Thursday. Section members and practitioners are invited to attend (attendance to the CLE is not required but recommended). The reception will begin at 4:15 p.m. at Tennessee Bar Center's 5th Floor Terrace Room.
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Mastering the Art of Intermediate and Advanced Discovery 2018

You can't win a trial at the discovery phase, but you certainly can lose one. This CLE, scheduled for April 20 at the UT Conference Center in Knoxville, is designed to help you avoid that outcome by addressing intermediate and advanced discovery techniques and topics including matters of e-discovery. Attendees will hear from experienced litigators who will discuss key components of the discovery process in the context of family law, general civil, and criminal matters and its effective use at trial.

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Nashville Orthodontics Startup Sues Reporter for Negative Story

SmileDirectClub, a Nashville-based orthodontics startup, is suing Gizmodo Media Group and author Nick Douglas over a story that criticized their company, the Nashville Post reports. The company claims that the story is “filled with unsubstantiated false statements and innuendo.” The article described criticisms from the American Association of Orthodontists about the company’s product. Gizmodo Media Group is made up of the remnants of Gawker Media, which was successfully sued by Hulk Hogan until it folded in 2016.
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Teacher Fired for Out-of-Wedlock Pregnancy Files Lawsuit

A Knox County private school teacher is suing the school that fired her when administrators discovered she was pregnant but unmarried, Knoxnews reports. The school’s attorney says that Concord Christian School had the right to fire Tabatha Hutson under a 2012 U.S. Supreme Court ruling that recognized a “ministerial exception” to employment discrimination laws. Hutson’s attorney claims that since Hutson, a Catholic, was hired at a Baptist school for her expertise in the curriculum and not because of a ministerial calling, the exception does not apply. 
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Ask the Judge’s Panel

In preparation for this year's Litigation and Appellate Law Forum on April 19, we want to get some input for our Judges’ Panel. This year’s panel will include United States Magistrate Judge Barbara Holmes and Judge Randal Mashburn of the U.S. Bankruptcy Court for the Middle District of Tennessee. Please email questions or topic suggestions to Brenna Scheving for the panel discussion.

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Judge Clement Speaks at Litigation CLE

The Hon. Frank Clement with the Tennessee Court of Appeals joins an all-star CLE cast for the 2018 Litigation and Appellate Forum on April 19 in Nashville. Other speakers include the Hon. Barbara Holmes, the Hon. Randal Mashburn, the Hon. Brandon Gibson and Tennessee Supreme Court Clerk Jim Hivner. Topics include oral argument preparation, effective depositions and Tennessee’s new e-filing process.

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Jury Awards Smoker’s Family $13.5 Million in Case Against Cigarette Company

A Florida state jury awarded $13.5 million the family of a man who died after smoking cigarettes for decades, Law360 reports. $5 million in compensatory damages and $8.5 million in punitive damages were awarded to the family of Arthur Brown, who was found 35 percent at fault for his death from chronic obstructive pulmonary disease in 2003. Brown smoked Viceroy cigarettes, a subsidiary of R.J. Reynolds, since 1955, a period in which tobacco companies were still colluding to hide evidence pertaining to the health risks of cigarettes. The Brown family was represented by Nashville attorneys Kathryn Barnett and Jason Gichner, and Jacksonville attorneys Katy Massa and Tony Luciano, all of Morgan and Morgan.
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Earl 'Peanutt' Montgomery sues George Jones' Widow, Record Label for $5 Million

A frequent George Jones collaborator is suing the late country icon's widow, Concord Music Group and Cracker Barrel for releasing a long-shelved album without permission, reports The Tennessean. Earl "Peanutt" Montgomery co-wrote 73 songs cut by Jones, nearly 40 of which were released as singles by the late entertainer. Montgomery also played in Jones’ band and produced music for the late entertainer.

Montgomery claims that in the late 1970s, Jones contacted him about an idea to collaborate with Roy Acuff's Smoky Mountain Boys on an album. Jones wanted Montgomery "to produce and own (the album) as his retirement package for all his years of service and friendship to Mr. Jones," according to the lawsuit. The album was eventually shelved as Jones entered into several different recording contracts delaying its release.

As the producer, Montgomery maintained possession of the original mixed version of the album, but the master tapes were kept in the vault at Doc's Place Recording Studios in Nashville. Despite several attempts to work out a deal with CBS and then Sony Records, the long-lost album "George Jones & the Smoky Mountain Boys" was not released.

Subsequent to his death, Jones’s widow Nancy Jones entered into an agreement to sell his intellectual property and other assets to Concord, which owns Rounder Records, for a reported $30 million. In 2017, Concord entered into an agreement to release "George Jones & the Smoky Mountain Boys" through Cracker Barrel. The album is also on streaming services, including Spotify. "The release further misrepresents the album as lost recordings which were discovered, when in fact recordings were converted by defendant Nancy Jones and ultimately the Concord defendants with full knowledge of (Montgomery's) ownership," the lawsuit states.

Even though Montgomery produced the original recordings, he was allegedly not paid for his work or listed in the album's liner notes. Instead, two other executives, who added other musical elements to the version that was ultimately released, were credited as executive producer and project supervisor. The complaint, filed in federal court in Nashville, can be viewed here

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Appellate and Litigation Forum Reception

The TBA Appellate and Litigation sections will hold a cocktail reception immediately following their collaborative forum on April 19. Join friends and colleagues to relax and unwind after the program.
This event provides a great opportunity to meet leadership of the organization while networking with attorneys and professionals with a similar focus. Forum attendance is not required to attend the reception.
 
Here’s the key info:
  • When: April 19, 4:30 p.m., CDT 
  • Where: Tennessee Bar Center, 5th Floor Terrace Room, 221 4th Ave N., Nashville, TN 37219
  • Contact: Wil Hammond with any questions.
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This Thursday: Litigation and Appellate Forum 2018

TBA's Litigation and Appellate Sections have joined together this year to produce a combined CLE forum, which promises to provide a full day of essential and useful material for litigators, including appellate practitioners. The forum will feature first-rate programming from speakers and panelists such as:

 

  • Richard McCall, Owings, Wilson & Coleman, Knoxville
  • Hon. Frank Clement Jr, Tennessee Court of Appeals, Nashville
  • Hon. Brandon Gibson, Tennessee Court of Appeals (Western Section), Jackson
  • James Hivner, Supreme Court of Tennessee, Nashville
  • Hon. Barbara Holmes, United States Magistrate Judge, Middle District of Tennessee, Nashville
  • Hon. Randal Mashburn, U.S. Bankruptcy Court, Middle District of Tennessee, Nashville
  • Caitlin Moon, Legal Alignment, LLC, Franklin
  • Marty Phillips, Rainey, Kizer, Reviere & Bell, PLC, Jackson
  • Leslie Price, Tennessee Atty General's Office, Nashville
  • David Raybin, Raybin & Weissman PC, Nashville
  • David Veile, Schell & Oglesby, LLC, Franklin

Topics include:

  • Best Practices in deposition taking
  • Perspectives from the Bench
  • Evolving practices of Law
  • Preparing appeals for Tennessee Appellate courts

Section members receive a discount for the program. Here’s the key info:

  • When: Thursday, April 19, registration begins at 8 a.m. CDT
  • Where: Tennessee Bar Center, 221 Fourth Avenue North, Nashville

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Annual Tort and Appellate Forum Features Judicial Panel and New E-Filing

Clerk of the Appellate Courts Jim Hivner will review the court’s new e-filing process at the upcoming Tort and Appellate Forum on March 29 in Nashville. Other speakers include Dean Bill Koch of Nashville School of Law, the Hon. Neil Thomas, the Hon. Kyle Hendrick and former Chief Justice Janice Holder. Sessions will feature updates in tort law, the process of claim evaluations and best practices for insurance coverage and bad faith.
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Upcoming Webcast on Protecting Private Information in Litigation after Shane Group

In this CLE webcast, attorney Jeffrey Sheehan addresses the substance of the Shane Group line of cases and practical steps litigators and other attorneys can take to minimize the risk of unnecessarily exposing private documents in public litigation after Shane Group. 
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Remington Declines to Say if Bankruptcy Will Put Existing Settlement at Risk

Remington, America's oldest gun manufacturer, filed Chapter 11 bankruptcy on Monday, sparking questions on how this will affect an agreement to repair millions of allegedly defective guns that resulted in a lawsuit. The suit began in 2010 when CNBC investigated allegations that for decades Remington covered up a deadly design defect that allows the guns to fire without the trigger being pulled. To this day, Remington denies the allegations and maintains the guns are safe.
 
The company said it was settling the case to avoid protracted litigation. An attorney for Remington refused to say whether the plan by America's oldest gun manufacturer to file for Chapter 11 bankruptcy protection will affect an agreement to repair millions of allegedly defective guns. "It is the company's position not to comment," said John Sherk, attorney for Remington.
 
An attorney representing plaintiffs in the case, J. Robert Ates, says the bankruptcy filing should be of no moment in terms of the class action case, particularly because the suit also named as a defendant E.I. du Pont de Nemours and Company, which owned Remington when the original trigger mechanism was developed. The company, which merged with Dow Chemical last year to form DowDuPont, recorded $24 billion in revenues 2016.
 
Under the proposed settlement - which Remington and plaintiffs have claimed could be worth upwards of $500 million - DuPont would fund only a tiny amount, covering product vouchers being offered to owners of some of the oldest Remington models. DuPont has also continuously maintained that the guns are safe.
 
Neither Remington nor its attorneys have indicated whether the company intends to abide by the agreement considering the bankruptcy filing. While the settlement includes a guarantee that the company will meet its financial obligations under the agreement, it does not address the possibility of a bankruptcy. The settlement is currently under appeal in the Eighth U.S. Circuit Court of Appeals.
 
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White Nationalist Claims He Can't Get a Lawyer, Wants Charlottesville Suit Tossed

Richard Spencer— white nationalist and president of the National Policy Institute, an "alt-right" think tank and lobbying group— has filed a pro se motion to dismiss a lawsuit filed against him as a result of the recent Charlottesville, VA protests over removal of controversial statues honoring Confederate generals which left one dead and dozens injured. The suit, filed in federal district court of Virginia in Oct. 2017, alleges the plaintiffs were injured, harassed, intimidated and assaulted by the white supremacist groups in the city.
 
In the motion, Spencer claims that the blame for violence falls on the anti-fascists, or Antifa, who showed up to protest he and his cohorts' ideas and on the police, who he says did too little to discourage the violence. "Harsh and bold words, as well as scuffles, are simply a reality of political protests, which are, by their very nature, contentious and controversial," Spencer wrote. "Free societies, not only in the United States but around the world, accept this as a cost of free assembly and maintaining a vibrant political culture."
 
According to the document, Spencer maintains that he is unable to find an attorney due to the controversial nature of the case despite "the supposed but apparently illusory ethical obligation lawyers have to represent unpopular clients and to assure at least a semblance of a fair trial." "The plaintiffs, in this case, have enormous resources at their disposal. Several major law firms, likely working pro bono, with probably dozens of attorneys and deep pockets for depositions and other discovery expenses are lined up to represent them." said Spencer.
 
The motion in its entirety can be read here.
 
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TBA Gears Up for 2018 Mock Trial Tournament

The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

To volunteer for this event, click here.

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Shelby Family Loses Suit Against Durham School Services

The family of a Shelby County boy who was injured on the way to school will receive no compensation from Durham School Services after a jury determined the company was not enough at fault in the accident, The Commercial Appeal reports. Timothy and Teresa Kocher sued Durham for $14 million, accusing the company of leaving their son at a bus stop. The child, who arrived early to the stop to find the bus leaving without him, was unsuccessful in flagging down the driver. He went home and grabbed his bike to ride to school, and was hit by a truck on the way. The jury agreed that the company shared some of the blame, but it determined that the plaintiffs were more at fault and awarded no damages.
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Don't Forget: Winter CLE Blast Tomorrow!

Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 

Highlights

  • Flexible to your schedule
  • Up to 11 Hours of CLE
  • Ethics Credits
  • Compliance CLE
  • Live Credit Hours

When: Feb. 21, registration begins at 7 a.m., CST

Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219

 

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Michigan Judge Tells Convicted Killer 'I Hope You Die in Prison'

A Michigan judge became incensed during a sentencing hearing and told the defendant "I hope you die in prison." Judge John McBain was ruling in the case of 31-year-old Camia Gamet, when the defendant appeared to mock the victim's grieving family by rolling her eyes, causing the judge to lose his temper.
 
Gamet was convicted in March of fatally stabbing her boyfriend, Marcel Hill. According to WNEM in Lansing, McBain called it one of the worst cases he has ever seen. He told Gamet that she "gutted [Hill] like a fish.' 'If this was a death penalty state, you'd be getting the chair," said the judge.
 
McBain also threatened to tape Gamet's mouth shut, saying, "You're going to shut your mouth or I'm going to have some duct tape put on it." Gamet was sentenced to life in prison without the possibility of parole.
 
This is not the first time the acrimonious adjudicator has made news for his candid outbursts. McBain once tackled and subdued a man who resisted being taken into custody and has been repeatedly accused of partiality and hostility in his courtroom.
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Knoxville Motel Sued for Crime that Took Place on Property

A Knoxville motel with a troubled history has been hit with a lawsuit over a gospel singer who was kidnapped, beaten and robbed while staying there, Knoxnews reports. Smyrna-based singer Dennis Humphries was staying at the West Knoxville Motel 6 on June 5 when he was attacked, chased into his room, tied him up in the bathroom and robbed. The lawsuit alleges that hotel security saw the attack and did nothing, and a clerk only called 911 at another guest’s urging but did not go to the room to investigate. The complaint seeks $1 million in damages.
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Join Us for the 2018 International Law Annual Forum

Make plans to join us for the 2018 International Law Annual Forum. This seminar will be held at the Tennessee Bar Center in Nashville on Feb. 15.

The forum will be produced by Terrence Olsen of Olsen Law Firm, the program will also feature presentations from James Forde of Foreign and Commonwealth Office (FCO), British Consulate General Atlanta Nadia Theodore of Consulate General of Canada, Todd Gardenhire of Tennessee Senate, Marty Ross of Volkswagen of America Inc., Billy Hoover of Southern Champion Tray, Steve Brandon of Oriental Weavers Hospitality Carpet, Dave Pomeroy of Nashville Musician Association, Allen McKendree Palmer of Palmer Global Ink, Daniel Frazier of Touring Manager and Ellie Westman Chin of Williamson County Convention & Visitors Bureau.

For more information or to reserve your spot today, click here.

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Age Bias Lawsuit With Rep. Duncan Settled Using ‘Hush Fund’

U.S. Rep. John J. Duncan Jr. was found to have settled an age bias lawsuit, first filed in 2009, using a fund that settles lawsuits on behalf of members of Congress and shields disclosure of settlements from the public, Knoxnews reports. The law that allows the fund’s existence, the Congressional Accountability Act, is under scrutiny by leaders in Washington, including U.S. Reps. Diane Black and Marsha Blackburn, given recent public outcry on behalf of sexual harassment victims.
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Johnson City Men Plead Guilty to Federal Conspiracy, Mail Fraud

Two Johnson City men have pleaded guilty to running a million dollar scam centered around the Mountain Empire Surgery Center, the Times News reports. Donald Kevin Collins and Charles Turner were charged in August with conspiracy to commit mail fraud and 15 counts of mail fraud for the scam, in which they created a fake company and tricked the surgical center into paying them nearly $1.4 million over six years. Turner is scheduled for sentencing on Feb. 7, while Collins has a change of plea hearing set for Jan. 18.
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Dedmon Decision Reached

Shortly before Thanksgiving, Tennessee’s high court issued its long-anticipated opinion in the case of Dedmon v. Steelman, No. W2015-01462, 2017 Tenn. LEXIS 720 (Tenn. Nov. 17, 2017) concerning the collateral source rule[1] and the proper measure of damages in personal injury claims.  In its unanimous decision, the Tennessee Supreme Court affirmed that its decision in the hospital lien case of West v. Shelby County Health Care Corp., 459 S.W.3d 33 (Tenn. 2014) does not apply to the measure of damages in personal injury cases, and that the collateral source rule continues to bar evidence of discounted medical charges in personal injury claims.  After thoroughly reviewing the long history of the rule in Tennessee and throughout our country, the Court found that it remains viable for several important policy reasons, and that alternatives to it have proven less than preferable. 

In its 45-page opinion, the Tennessee Supreme Court noted that the rule could be found at common law in England as early as nearly two centuries ago in 1823, and that the United States Supreme Court adopted it thirty-one years later in The Propeller Monticello v. Mollison, 58 U.S. (17 How.) 152 (1854).[2]  It further noted that Tennessee expressly adopted the rule in 1896,[3] and that all other 49 states (“except perhaps Alabama”) eventually adopted it as well. 

The court found that the rule in Tennessee is “succinctly articulated in the widely-cited Section 920A of the Restatement (Second) of Torts” as both a substantive rule of law and as evidentiary rule.  It noted that, without the rule, “the jury may well reduce the damages based on” payments from collateral sources. (Quoting Kenney v. Liston, 760 S.E.2d 434, 441 (W. Va. 2014); citing Jurgensen v. Smith, 611 N.W.2d 439, 442 (S.D. 2000)).  The court also noted that “tort deterrence has been an inherit, inseparable, aspect of the collateral source rule since its inception over 100 years ago.”  (Quoting Bozeman v. State, 879 So. 2d 692, 699 (La. 2004)).  After conceding that its “overly broad language” in West had caused some confusion, the Dedmon court found that West “was not intended to apply in personal injury cases.”

Despite the length of time which the collateral source rule has been “entrenched” in Tennessee law, the court still agreed to re-consider its continuing viability.  When doing so, it specifically noted that at least two states’ high courts have held that state statutes abrogating the rule are unconstitutional because they violate the separation of powers doctrine. (CitingJohnson v. Rockwell Automation, 308 S.W.3d 135, 142 (Ark. 2009); O’Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky. 1995)).[4]

The Tennessee Supreme Court found that the state statutes modifying or abrogating the collateral source rule “lack any uniformity whatsoever.”  The court then grouped three approaches to the rule by courts in other jurisdictions as follows: 1. actual amount paid; 2. benefit of the bargain; and 3. reasonable value.  Writing for the court, Justice Kirby noted that the first approach (“actual amount paid”) was followed only by “few” courts (led by California), and has been subject to criticism.  Citing the Supreme Court of Virginia, she noted that reducing an insured plaintiff’s recovery “overlooks the fundamental purpose of the [collateral source] rule, … to prevent a tortfeasor from deriving any benefit from compensation or indemnity that an injured party has received from a collateral source.” (QuotingAcuar v. Letourneau, 531 S.E.2d 316, 322 (Va. 2000)).

The second approach (“benefit-of-the bargain”) allows recovery of undiscounted bills only where the plaintiff has somehow paid for the benefits, as by the payment of insurance premiums.  Our Supreme court explained that the negotiated rate differential is the “benefit” for which the plaintiff paid consideration. (Citing id.;Stayton v. Del. Health Corp., 117 A.3d 521, 531 (Del. 2015)).  This approach has been criticized as undermining the collateral source rule by using the plaintiff’s relationship with third parties to measure the defendant’s liability.  (Citing, inter alia, Wills v. Foster, 892 N.E.2d 1018, 1027 (Ill. 2008)).

Under the last approach (“reasonable value”), most courts hold the reasonable value of the expenses to be the full, undiscounted bills.  See, e.g., Montgomery Ward & Co. v. Anderson, 976 S.W.2d 382, 385 (Ark. 1998); Brethren Mut. Ins. v. Suchoza, 66 A.3d 1073, 1081-82 (Md. 2013).  Dedmon noted that Tennessee has generally adhered to this approach.

In the end, the Tennessee Supreme Court decided it would continue to follow the approach of “most state courts … that the negotiated rate differential is a collateral source benefit [allowing] injured plaintiffs to recover the full amount of reasonable medical expenses billed….” (Quoting Lori A. Roberts, Rhetoric, Reality, and the Wrongful Abrogation of the Collateral Source Rule in Person Injury Cases, 31 Rev. Litig. 99, 117 (Winter 2012)).  It noted that the “negotiated rate differential would not exist but for an insurer who ‘negotiated’ the ‘rate differential.’” (Quoting Acuar, supra, 531 S.E.2d at 322). Quoting McConnell v. Wal-mart Stores, 995 F. Supp. 2d 1164, 1170-71 (D. Nev. 2014), the court reasoned that the “actual amount paid” approach would abrogate the rule.  It found “specious” the California Supreme Court’s “fiction” that said approach did not contravene the rule.  It also quoted another Virginia Supreme Court opinion, Radvany v. Davis, 551 S.E.2d 347, 348 (Va. 2001), that negotiated amounts “do not reflect the ‘prevailing cost’ of those [medical] services….” (Emphasis added).

The court further reasoned that its holding was bolstered by Tenn. Code Ann. § 24-5-113 (2017).  Since that statute allows undiscounted bills to be presumed reasonable when properly presented, holding that undiscounted bills are unreasonable (as urged by Appellants/Defendants) would conflict with existing law.

The court also rejected the intermediate appellate court’s “hybrid” method of proving “reasonable value,” which would have permitted defendants to present discounted charges alongside the undiscounted charges. See Dedmon v. Steelman, No. W2015-01462, 2016 WL 3219070, at *11 (Tenn. App. June 2, 2016).  The court found that, like the “actual amount paid” approach, the hybrid method “has not been met with favor,” having been specifically rejected by twenty-two other courts, citing, inter alia, Covington v. George, 597 S.E.2d 142 (S.C. 2004) and Aumand v. Dartmouth Hitchcock Med. Ctr., 611 F. Supp. 2d 78 (D.N.H. 2009).

Finally, the court rejected the potential overcompensation of plaintiffs as a reason to abandon the rule.  It noted that the “law contains no rigid rule against overcompensation.  Several doctrines, such as the collateral [source] rule, recognize that making tortfeasors pay for the damage they cause can be more important than preventing overcompensation.”  (Quoting McDermott, Inc. v. AmClyde, 511 U.S. 202, 219) (1994) (unanimous opinion). 

Having dispatched with all of Appellants’ arguments,[5] as well as the court of appeals’ hybrid solution, the Tennessee Supreme Court held that West does not apply in injury cases outside the interpretation of the hospital lien statute, and that the collateral source rule remains unaltered in Tennessee personal injury cases, as it still is in “the majority of courts.”


[1] The court noted that the rule’s name is derived from Harding v. Town of Townshend, 43 Vt. 536 (1871).

[2] Dedmon further noted that the Court had found the rule to be “well-settled” by 1876 in The Atlas, 93 U.S. 302, 310 (1876).

[3] Anderson v. Miller, 33 S.W. 615, 617 (Tenn. 1896).

[4] It also noted that another state’s supreme court found such statutes unconstitutional under the equal protection clauses of state and federal constitutions in Wentling v. Med. Anesthesia Servs., 701 P.2d 939, 951 (Kan. 1985).

[5] In addition to briefing by the parties and amici curiae on both sides, the court heard oral argument on April 5, 2017.

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Nashville Cleared to Move Forward with Opioid Lawsuit

Nashville Mayor Megan Barry’s administration has been cleared to utilize an outside law firm to explore a potential lawsuit against opioid manufacturers and distributors, The Tennessean reports. The Nashville Metro Council voted yesterday to defeat a motion to reconsider contracting with Lieff Cabraser Heimann & Bernstein LLP for the effort. The road block in the process came from Councilwoman Erica Gilmore, who was concerned that minority-led law firms were not considered for the contract. Lieff Cabraser has now partnered with Manson, Johnson and Conner, a firm whose five partners are all African-American.
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