News

Class Action Suit Filed against VW

Jonathan Manlove, a 60-year-old former employee at Volkswagen's Chattanooga plant, has filed a class-action lawsuit against Volkswagen. He alleges that the company is using a rebranding effort to discriminate against workers once they turn 50. According to the Tampa Bay Times, Manlove claims that Volkswagen is trying to rebrand itself into a "younger, sleeker company" after it was rocked by an emissions scandal in 2015.
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Witnesses, Circuits and Procrastination: TBJ Has It All

In this month's Tennessee Bar Journal, Knoxville lawyer Wade Davies writes about rules for non-sequestered witnesses. "I usually try to write this column about something to which I think I know the answer. I’m not sure about this one," he writes. "Is it still the law that if the prosecuting witness is not sequestered he or she has to testify first?" Read it and see. Chattanooga lawyer Russell Fowler looks at the history of the Circuit Court, starting with judges who rode their horses to make the rounds through the circuits. And we almost didn't get to this one ... bringing back the lost art of procrastination. Memphis lawyer Bill Haltom reminds us that the best counsel is not always the fastest answer. The July TBJ is here.

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Unsealed Documents Shed Light on State's Opioid Lawsuit

Documents regarding a lawsuit filed in Knox County Circuit Court, where Tennessee accuses Purdue Pharma of intentionally fueling the opioid epidemic, were unsealed last week shedding light on the state’s claim that the company intentionally and specifically targeted Tennessee’s most vulnerable medical providers and patients, including the elderly and veterans, reports the Knoxville News Sentinel. The lawsuit, filed by Tennessee Attorney General Herbert H. Slatery III, uses Purdue’s company records and its staffers’ own words to show the firm’s founders and executives pushed the prescription of highly addictive opioids, allegedly calling the pills “hope in a bottle.” You can view the complaint here.

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Ownership of State’s First Hemp Dispensary in Litigation

Just a month after Tennessee’s first hemp dispensary opened its doors, the business is in litigation over ownership, the Daily News Journal reports. Jason Chambers and Josh Henrick declared themselves the sole owners of the company in a statement yesterday. The litigation is against a “former associate that has falsely claimed to be the CEO and owner of our company.”
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Tennessee Woman Sues Dollywood Citing Injury

WJHL is reporting that Dollywood's parent company is being sued by a Tennessee woman claiming she suffered serious injuries at Splash Country. The lawsuit alleges when the raft reached the top of the ride's incline, she was reportedly propelled off the seat and back down into the raft causing her to suffer injuries to her spine. To learn more about this case click here.

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Dispute Over Tennessee's First Hemp Company Leads to Litigation

Tennessee's first hemp dispensary is in litigation over ownership issues. Jason Chambers and Josh Henrick have found themselves in court of a dispute of ownership of Tennessee Hemp Supply in Murfreesboro. The litigation is against "a former associate that has falsely claimed to be the CEO and owner of our company. The Daily News Journal takes a deeper look here.

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Schedule Time to Read Email

A Tip from the TBA Attorney Well-Being Committee

Rather than checking on every e-mail as it arrives, schedule time in your calendar for reading and managing e-mail (and leave e-mail notifications silent during the other times of the day). This will enable you to have focused time for given tasks without constant interruption and distraction.

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Judge Tosses Kansas' Proof-of-Citizenship Voter Law, Rules that Attorney Must Take Extra CLE

A federal judge on Monday decided that Kansas cannot require people to prove their U.S. citizenship before they can vote, ruling the state's election law is unconstitutional, reports NPR. Chief District Judge Julie A. Robinson blasted Kansas Secretary of State Kris Kobach — who led President Trump's voter fraud commission — over disclosure violations, stating the violations “document a pattern and practice by [Kobach] of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial.” Kobach was ordered by the judge to take continuing legal education classes on the rules of evidence or procedure in addition to any other CLE education required by his law license. Kobach is running for governor of Kansas, reportedly locked in a tight Republican primary race against the incumbent. You can read the full opinion here.

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ACLU of Tennessee Sues Mt. Juliet Over Civil Forfeiture

The ACLU of Tennessee on Tuesday filed a federal lawsuit against the city of Mt. Juliet, claiming that police there violated the U.S. Constitution when they seized a man's car during a criminal investigation of his son, The Tennessean reports. Officers took Lewis Cain's BMW after coming to his home with a warrant for his son. The ACLU-TN said the seizure was made without a search warrant or notice of a hearing, violating Cain’s Fourth Amendment rights. Police have defended seizing the car, saying they had spotted Cain's son selling drugs out of the BMW. You can read the complaint here.

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A Wellness Tip from the Attorney Well-Being Committee

Making an effort to notice the positive aspects of your life can have specific and beneficial results. Positive psychologists asked volunteers to each night write down three good things that happened that day and reflect for a few minutes on each one.  Benefits resulting from this exercise included increased happiness, increased moments of gratitude and other positive emotion, enhanced capacity for hope and optimism, improved physical health, and decreased depression.  Why not give this simple exercise a try? Think of three instances of something that went right during the past 24 hours, write them down, and spend a few minutes reflecting on them (i.e., cause of the good thing, my contribution to the good thing, similar good things can happen in the future if I do X, what this good thing means).  Do this for two weeks and see whether you notice a difference!

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Jury Leaves $4 to Family of Man Killed by Sheriff’s Deputy

A Florida jury last week awarded the estate of shooting death victim Gregory Vaughn Hill Jr. $4 in damages: $1 for funeral expenses and $1 for each of his three children’s loss, The New York Times reports. Hill was fatally shot by Christopher Newman, a sheriff’s deputy who had responded to a noise complaint about music Hill had been playing in his garage. The garage door was eventually closed and Newman fired four times through it, striking Hill once in the head and twice in the abdomen. Hill had a gun in his back pocket, which the deputies said he had been holding it during their confrontation, though that claim is in dispute. 
 
The wrongful-death lawsuit, filed in 2016, was asked to determine whether Hill’s constitutional rights had been violated and whether his estate should be awarded damages. Jurors determined that Newman had not used excessive force and concluded, but the St. Lucie County sheriff, Ken Mascara, had been ever so slightly negligent given Deputy Newman’s actions. A grand jury had previously determined not to bring criminal charges against Newman. The estate’s attorney, John M. Phillips, said that he is drafting a motion for a new trial and if the motion is denied, he will file an appeal.
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U.S. Department of Labor Cites Contractor, Staffing Agency Following Fatal Trench Collapse

OSHA has proposed penalties totaling $152,618 against a construction company and a staffing agency after a trench collapse killed a temporary employee installing sewer lines, according to a press release on the agency's website. Regulators issued willful and serious citations to All Power Construction Corp. for allowing employees to work in a trench without cave-in protection, failing to provide a safe means to enter and exit the trench, and not having a competent person inspect the trench to identify potential hazards. The temporary employer, Labor Finders of Tennessee, was cited for not ensuring that employees were trained on trenching and excavation hazards. The companies have 15 business days from receipt of their citations and proposed penalties to comply, request an informal conference with OSHA's area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

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Knoxville Based Boat Company Accused of Violating Patent Injunction

Cobalt Boats LLC filed a motion in federal court on May 11 accusing Brunswick Corporation's Knoxville based Sea Ray brand of violating an injunction order by continuing to infringe on Cobalt's patented flip-down "retractable swim step," according to a press release issued on Wednesday. Cobalt contends that the swim steps currently sold on Sea Ray boats are not significantly different from the Sea Ray swim steps found to be an infringement in a previous trial, in which Cobalt was awarded upward to $5.4 million.

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Share Your Thoughts on Proposed Amendments to Tennessee Supreme Court Rule 6

The Supreme Court recently requested comment on proposed amendments to TSC Rule 6 that would require new attorneys to complete a Tennessee Law Course within one year of admission to the Tennessee bar. The Tennessee Bar Association has a working group on this issue and will be drafting comments in response to the court's Order for Comment. To ensure this comment best reflects members’ views and positions, the groups is looking for your feedback. Share your thoughts about the proposed amendments through this form by June 8.
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    TSC Issues Notice of 2018 Rules Package

    The Tennessee Supreme Court issued notice today that the 2018 rules package will go into effect July 1. Included in the package were revisions to the Tennessee Rules of Appellate Procedure (Senate Resolution No. 165 adopted February 26; House Resolution No. 200 adopted March 5) Rules of Civil Procedure (Senate Resolution No.163 adopted February 26; House Resolution No. 202 adopted March 5) Rules of Criminal Procedure (Senate Resolution No.166 adopted March 1; House Resolution No. 207 adopted March 19) Rules of Evidence (Senate Resolution No. 164 adopted April 11; House Resolution No. 201 adopted March 5) and Rules of Juvenile Procedure (Senate Resolution No. 167 adopted February 26; House Resolution No. 208 adopted March 19), which have been ratified and approved by the General Assembly.
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    Estate of Former Fox News CEO Seeks to Block Sexual Harassment Litigation

    The estate of Roger Ailes, former Chairman and CEO of Fox News, doesn't want to get dragged into ongoing sexual harassment litigation, The New York Daily News reports. On Tuesday, lawyers for Ailes' wife filed paperwork in Manhattan Supreme Court to prevent former Fox News anchor Andrea Tantaros pursuit of claims against his estate. A judge had ordered in March 2017 that Tantaros' allegations against Ailes and Fox News be handled in arbitration rather than court. The latest filing includes a request to stay arbitration. Ailes, who died on May 18, 2017, was involved in a number of sexual harassment lawsuits at the time of his death.
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    Oregon Lawsuit Argues Animals Have the Right to Sue Their Abusers

    The Animal Legal Defense Fund, a legal advocacy organization for animals, has filed a negligence suit in Oregon on behalf of a horse named Justice according to a press release from the organization. Justice was allegedly denied adequate food and shelter for months, leaving him “debilitated and emaciated,” suffering from lice, a prolapsed penis from frostbite and a bacterial skin infection known as rain rot when he was rescued in March 2017.
     
    The complaint contends that Oregon Legislature has declared that animals “are sentient beings capable of experiencing pain, stress and fear,” and as such, are beneficiaries of Oregon welfare laws and are victims when the laws are violated. Justice’s abuser pled guilty to criminal animal neglect in 2017, agreeing to pay restitution only for the cost of Justice’s care prior to July 2017, however, the lawsuit seeks damages for Justice’s care since this date and going forward. Any funds awarded to Justice through the lawsuit would be placed in a legal trust established to pay for his care.
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    SURVEY: Proposed Amendment to Supreme Court Rule 31, Relative to Alternative Dispute Resolution

    As you may know, the Supreme Court issued a notice requesting comment on amendments to TSC Rule 31. The Tennessee Bar Association will be filing a comment in response to the proposed amendments and we need your help in drafting our response to ensure that it best reflects our members’ views and positions. Completing this brief survey will assist us in determining specific sections' positions on the proposed changes. After completion, the survey will be sent to your section's executive council, who will review the received responses, determine the section's position and relay the final comments to the TBA.
      
    The TBA has generally summarized the proposed changes, but please read the order and proposed amendments, which are provided below, for more detailed information. Please provide your responses by Monday, April 30. Thanks for your help in this endeavor.

    TAKE THE SURVEY

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    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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