News

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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Prosecutors Unveil Evidence in Woodmore Bus Crash

The driver of a school bus charged with killing six children was on the phone at the time of the crash, the Times Free Press reports. Hamilton County District Attorney General Neal Pinkston said that driver Johnthony Walker received a call at 3:17 p.m., and the first calls about the Woodmore Elementary bus crash came in at 3:20 p.m. The prosecution also alleges that Walker was speeding. A draft of National Transportation Safety Board report on the wreck is now in the review process and could be released in late spring. Judge Don Poole also announced during today's hearing that jurors for the trial will be brought in from Montgomery County to hear the case.
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TSC Upholds Standards for Statute of Limitations in Legal Malpractice Cases

In John Howard Story, et al. v. Nicholas D. Bunstine, et al., the Tennessee Supreme Court reaffirmed its commitment to following the “discovery” rule for determining when the statute of limitations begins to run in legal malpractice cases. At the urging of the plaintiffs, the Court analyzed other possible methods for determining when a legal malpractice action accrues, including the continuous-representation rule, appeal-tolling doctrine and final judgment rule, but concluded none was preferable to Tennessee’s current “discovery” standard. Justice Roger A. Page wrote the court’s opinion.
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Scottie Nell Hughes Speaks Out on Rape, Harassment Claims from Tenure at Fox News

Tennessee conservative political pundit Scottie Nell Hughes gave an in-depth interview to the Nashville Scene this week, detailing her lawsuit against Fox News and its anchor, Charles Payne, whom Hughes accuses of harassment and rape. Fox claims it found no evidence of wrongdoing on Payne’s part. Fox and other defendants have yet to file a response to the lawsuit, but are required to do so by next week. A pre-trial conference is scheduled for Dec. 18.

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Court Clarifies Law on Proof of Medical Expenses in Personal Injury Cases

In Jean Dedmon v. Debbie Steelman et al., the Tennessee Supreme Court declined to change a state law that outlines what evidence can be used to prove medical expenses in cases involving personal injury. The court held that Tennessee law continues to allow plaintiffs to use full, undiscounted medical bills to prove their medical expenses instead of the discounted amounts paid by insurance companies. Justice Holly Kirby authored the unanimous opinion in the case that was originally filed in Crockett County.
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Woodmore Employees File Suit Over Emotional Trauma Suffered After Bus Crash

Two lawsuits were filed today by Woodmore Elementary School employees who claim they suffered “acute emotional trauma” following last year’s deadly bus crash, which took the lives of many students, the Times Free Press reports. The employees named the private bus company, Durham School Services, as well as driver Johnthony Walker in their lawsuits. Faculty and staff say they were not prepared to go to school following the tragedy and deal with the trauma that followed.
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Tennessee to Join Settlement Against Veterans Charity

Tennessee will join 24 other states in a settlement that will shut down a veterans charity that scammed $15 million from donors, The Tennessean reports. VietNow National Headquarters Inc., also known as Veterans Now, will be forced to close down after reportedly only spending 20 percent of its collected donations on charitable organizations. As a condition of the settlement, remaining funds from the organization will be donated to Fisher House and Operation Homefront.
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Chattanooga Agrees to Redact Personal Information in Crash Reports

In an effort to curb unethical solicitation of crash victims, the city of Chattanooga has agreed to redact personal information of crash victims in reports, the Times Free Press reports. Additionally, those requesting records must promise not to use the information to wrongfully solicit a victim, lest they face a Class A misdemeanor. The change is in response to a federal lawsuit filed in Chattanooga’s U.S. District Court, in which a personal injury attorney claimed a medical company called a crash victim on behalf of an out-of-town lawyer. U.S. District Court Judge Thomas Varlan ordered the city to make the changes.
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Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond

 
The International Law Section of the Tennessee Bar Association is sponsoring a free seminar “Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond” to be held on Thursday, Nov. 2 from 6:00 p.m. – 7:30 p.m. at Nashville School of Law, Appellate Courtroom, 4013 Armory Oaks Drive, Nashville, Tenn. 
 
The speakers on the panel include:
  • Terry Olsen, Chair of the TBA International Law Section, as Moderator
  • Clay Banks, Regional Director of Tennessee Department of Economic & Community Development
  • James Forde, Prosperity and Economics Officer of British Consulate General, Atlanta
  • Ms. Joanne Chu, Director of Hong Kong Economic and Trade Office (New York)
  • Mr. Michael Kwan, Deputy Director of Hong Kong Economic and Trade Office (New York)
The seminar will provide an overview of the global & U.S. trade & investment landscape as it concerns Tennessee for 2018 & beyond, and both policy & legal views of the ever-changing global standard of Tennessee in the international investment environment.
 
Attendees will also have the opportunity to have direct interactive discussions with the speakers at the end of the seminar.
 
The panel discussion will last from 6pm thru 7pm, and then followed with a FAQ session for attendees, along with a light reception of beverage & desserts. 
 
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Lawsuits Filed Over Las Vegas Shooting Face Legal Obstacles

Lawsuits filed in the wake of the Las Vegas mass shooting face many obstacles, the least of which includes a 2005 law that protects gun makers from civil claims brought by gunshot victims, the ABA Journal reports. At least two lawsuits have been brought against the manufacturers of “bump stock” devices, which allow accelerated gunfire from a semi automatic weapon and were used by the killer in the Vegas incident. It is unclear whether a bump stock is a gun component covered by the law’s liability shield.
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Las Vegas Shooting Witnesses File Lawsuit Against Makers of ‘Bump Stocks’

Three people who witnessed the mass shooting at a concert in Las Vegas this month have filed a would-be class action lawsuit against the makers of “bump stocks,” the device used by the gunman to accelerate gunfire from his semi-automatic weapon, the ABA Journal reports. The suit was filed in a Nevada court on behalf of individuals who suffered emotional distress during the shooting. The defendant is Slide Fire Solutions, which claims the product was intended for use by people with limited hand mobility. The lawsuit claims that the company did not limit its marketing to those consumers alone.
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Shelby County Man Wins $140 Million Lawsuit Against Testosterone Drug Maker

Jeffrey Konrad of Collierville has been awarded more than $140 million in a lawsuit against the makers of AndroGel, a testosterone drug he claims gave him a heart attack, The Commercial Appeal reports. Konrad’s attorneys argued in federal court that drug maker AbbVie Inc., misrepresented the risks associated with the drug. Konrad had been prescribed AndroGel by his doctor for conditions attributed to low testosterone levels.
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Sessions Says Title VII Does Not Protect Trans Individuals from Discrimination

A new memo from Attorney General Jeff Sessions says that Title VII of the Civil Rights Act does not protect transgender individuals from workplace discrimination, the ABA Journal reports. The memo retracts a previous interpretation from the Obama administration. American Bar Association President Hilarie Bass released a statement expressing disappointment with the decision. “For decades, the ABA has vigorously opposed such discrimination and, more recently, has urged the enactment of legislation to strengthen protections for LGBT workers to further the ABA’s belief that all Americans – regardless of sexual orientation or gender identity – should be protected from discrimination in the workplace,” Bass said.
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East Tennessee Prosecutors Sue Big Pharma Over Opioids

The top prosecutors for five judicial districts encompassing 15 East Tennessee counties are joining their counterparts in three Upper East Tennessee districts in trying to use the legal system to hold the makers of opiate-based prescription drugs financially responsible for the state’s opioid addiction problem. The News Sentinel reports that prosecutors Charme Allen, Dave Clark, Jared Effler, Russell Johnson and Stephen Crump are suing opioid drugmakers Purdue Pharma, Mallinckrodt and Endo Pharmaceuticals.

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Court Issues Proposed Rules Amendments, Asks for Comment

The Tennessee Supreme Court has published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence, the 2018 Proposed Rules Amendments. Several TBA sections are reviewing the recommendations for possible comment. Comments are due to the court no later than Nov. 22.

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