News

Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at http://www.tba.org/submit-an-article, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at http://www.cletn.com/.

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Sentenced to Debt: When You Can't Pay Your Fines

In the current issue of the Journal, Nashville lawyer Vidhi S. Joshi looks into what happens within the criminal justice system in Tennessee when a person cannot pay their fines. Read the feature “Sentenced to Debt.” Columns this month include "Redefining Relocation," by Marlene Moses and Benjamin Russ; John Day writing about "Mothers, Minors and Medical Bills"; and Bill Haltom following the saga of where the bodies of President and Mrs. James K. Polk will land for eternity.

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Woodmore Bus Driver’s Verdict to Come from Out of Town Jurors

Prosecutors agreed today that a panel of out-of-town jurors will hear the case of the bus driver charged with vehicular homicide in the Woodmore bus crash, the Times Free Press reports. Defense attorney Amanda Dunn said that it would be very difficult for a Hamilton County jury to try 24-year-old Johnthony Walker fairly, and noted that the defense would prefer jurors from a metropolitan area similar to Chattanooga.
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Woodmore Bus Driver’s Verdict to Come from Out of Town Jurors

Prosecutors agreed today that a panel of out-of-town jurors will hear the case of the bus driver charged with vehicular homicide in the Woodmore bus crash, the Times Free Press reports. Defense attorney Amanda Dunn said that it would be very difficult for a Hamilton County jury to try 24-year-old Johnthony Walker fairly, and noted that the defense would prefer jurors from a metropolitan area similar to Chattanooga.
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TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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Call For Submissions — Law Practice Pointers

One of the benefits of being a TBA Section Member is having access to information from experienced practitioners to assist in your day-to-day practice. The sharing of this information amongst colleagues is one of the best traits of the profession. It is also a way of helping each other to maneuver the evolving legal market and strengthen your legal practice.

How can you help your fellow Section Members?  If you have some Law Practice Pointers you would like to share with your fellow section members, write an article between 300-500 words and submit it to the Section Coordinator for review and approval. These Law Practice Pointers can be related to a court opinion, piece of legislation, or current event or industry trend that affects the practice of law as it relates to the specific Section. The main requirement is to make sure the article gives lawyers practical tips, based on experience, to include in their day-to-day practice.

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Law Practice Pointers - The Case of Zink v. Rural/Metro of Tennessee L.P.

On Tuesday, May 2, the Court of Appeals at Knoxville released an opinion in the case of Jonathan Fitzrandolph Zink v. Rural/Metro of Tennessee, L.P. et al. In the original action that involved an injury allegedly caused by an emergency medical technician in the course of rendering medical aid, the trial court determined that the plaintiff’s claims were subject to the Tennessee Health Care Liability Act (“THCLA”) and dismissed the claims with prejudice based on the plaintiff’s failure to file a certificate of good faith pursuant to Tennessee Code Annotated § 29-26-122.

The Zink court concluded that the trial court improperly interpreted the facts as asserted in the Complaint in a manner most favorable to the moving party (as opposed to the non-moving party). Specifically, the trial court found that the defendant EMT struck the Plaintiff in order to restrain him while providing medical treatment which would necessarily require expert testimony. The appellate court found that a secondary and just as plausible inference in favor of the non-– moving Plaintiff could also have been reached – namely, that the Plaintiff was properly restrained and that the EMT was using excessive force/assaulting the Plaintiff in what could loosely be described as intentional behavior that would meet the "common knowledge" exception.

This opinion also provided a good overview of the common knowledge exception case law in Tennessee. It is important for the reader to note that in the context of a health care liability action, TCA 29-26-115 requires expert proof not only as to legal duty/standard of care, but also as to medical causation and damages. In other words, the prudent plaintiff's lawyer must make sure that when asserting the "common knowledge exception" on the issue of legal duty/standard of care, there still may be a somewhat less obvious need for expert proof on medical causation which may also independently require a Certificate of Good Faith as it is a separate legal issue.

In short, in the context of a health care liability claim, if a Plaintiff elects to file the lawsuit without attaching a Certificate of Good Faith, then the Plaintiff may arguably be wedded for the entirety of the lawsuit to the concept of an expert-less trial on any issue pertaining to duty, breach, and medical causation per T.C.A 29-26-115.

  • Practice Pointer 1: Tread carefully when claiming "it’s obvious" in order to avoid the purview of T.C.A. 29-26-115 as this tact invites a Motion to Dismiss from the Defense.
  • Practice Pointer 2: Alternatively, if indeed the method of the injury is clearly obvious, it should not be very difficult to find a willing expert thereby avoiding a Motion to Dismiss and potential appellate issues.
  • Practice Pointer 3: Remember that the common knowledge exception may apply to duty/standard of care, but you still may need an expert on medical causation which would still require submission of a Certificate of Good Faith per T.C.A. 29-26-115.
  • Practice Pointer 4: On any claim involving any person or any entity that renders health care of any sort, make sure and re-read the definition of "health care provider" and "health care service" found at T.C.A. 29-26-101(a)(2) and (b) as these two definitions were broadly expanded in the 2012 legislation.

Parke Morris currently serves as Vice Chair of the TBA Tort and Insurance Section.

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Be Careful What You Seek: COA Increases Homeowners Fire Award

BRANDI BURGE, ET AL. v. FARMERS MUTUAL OF TENNESSEE
Court: TN Court of Appeals

Attorneys:

Christopher Dunn Heagerty, Knoxville, Tennessee, for the appellant, Farmers Mutual of Tennessee.

Russell Anne Swafford, Dunlap, Tennessee, for the appellees, Brandi Burge, Daniel Layne, and Sharon Layne.

Judge: GIBSON

This appeal involves an insurer’s refusal to pay a claim for a fire loss. The trial court granted summary judgment in favor of the plaintiffs on the issue of liability and held a bench trial on the issue of damages only. The trial court ultimately awarded the plaintiffs $127,500 for their covered losses, prejudgment interest, and a statutory penalty because the insurer’s refusal to pay the claim was not in good faith. On appeal, the insurer argues that the plaintiffs are not entitled to any recovery because they failed to sufficiently prove their damages. The insurer also contends that it did not act in bad faith because it had substantial legal grounds for denying the claim. The plaintiffs argue that the trial court should have awarded additional damages. We conclude that the trial court should have awarded $4,000 in additional damages for the loss of the residence but otherwise affirm the trial court’s judgment as modified.

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AG: Submit Claims for Pharmaceutical Settlement

Tennesseans who paid for the brand-name drug Provigil or its generic Modafinil from June 2006 to March 2012 are being encouraged by Attorney General Herbert Slatery to submit claims, after a court decision last year found the drug’s creator to be a part of an anticompetitive scheme. Originally, the deadline for consumers to file claims was April 13, 2017, but it has recently been extended to June 25, 2017.
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AG: Submit Claims for Pharmaceutical Settlement

Tennesseans who paid for the brand-name drug Provigil or its generic Modafinil from June 2006 to March 2012 are being encouraged by Attorney General Herbert Slatery to submit claims, after a court decision last year found the drug’s creator to be a part of an anticompetitive scheme. Originally, the deadline for consumers to file claims was April 13, 2017, but it has recently been extended to June 25, 2017.
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Drug and Alcohol Death Not Extension of Work Injury, per Supreme Court

JUDY KILBURN v. GRANITE STATE INSURANCE COMPANY, ET AL.
Court: TN Supreme Court

Attorneys:

Thomas J. Dement, II, and Jordan T. Puryear, Nashville, Tennessee, for the appellants, Ryan T. Brown and Granite State Insurance Company.

Brian Dunigan, Goodlettsville, Tennessee, for the appellee, Judy Dianne Kilburn.

Judge: PAGE

In this workers' compensation case, Charles Kilburn sustained several injuries from a motor vehicle accident. He underwent cervical spine surgery to resolve his neck injury complaints. His authorized physician also recommended lumbar spine surgery to combat his back pain, but that request was denied through the utilization review process. Mr. Kilburn took oxycodone to alleviate his back pain, and his treating physician referred him to a pain management clinic. Six months after the cervical spine surgery, Mr. Kilburn died due to an overdose of oxycodone combined with alcohol. After a bench trial, the chancery court found that the death was compensable. Mr. Kilburn's employer appealed. The appeal was initially referred to a Special Workers' Compensation Appeals Panel, but we later transferred the case to the Supreme Court for review. After examining the record, the parties' arguments, and the applicable law, we reverse the judgment of the chancery court.

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Court Holds Death Not Compensable in Workers' Comp Case

The Tennessee Supreme Court has held that based on the testimony regarding Charles Kilburn’s death, his death is not compensable as a direct and natural consequence of his original compensable injury from a motor vehicle accident. Kilburn died from oxycodone toxicity a little over a year after an on-the-job accident. His surviving spouse sought workers’ compensation death benefits, and the trial court concluded that the death was compensable. The Supreme Court unanimously opined, however, that a subsequent injury is not compensable if it is the result of an independent intervening cause, such as the employee’s own conduct.
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Supreme Court Rules Res Ipsa Not Applicable After Fire

EWIN B. JENKINS ET AL. v. BIG CITY REMODELING ET AL.
Court: TN Supreme Court

Attorneys:

Clinton J. Woodfin and Douglas R. Bergeron, Knoxville, Tennessee, for the appellants, Henson & Associates Flooring, Inc. and Julian Luu, doing business as Quality Hardwood Floors.

Ellis A. Sharp and Jon M. Cope, Knoxville, Tennessee, for the appellee, Big City Remodeling.

Arthur G. Seymour, Jr. and Matthew A. Grossman, Knoxville, Tennessee, for the appellees, Ewin B. Jenkins and Janet B. Jenkins.

Judge: LEE

At issue in this appeal is the liability of a general contractor and two flooring subcontractors for damages sustained by the plaintiffs when a fire destroyed their partially completed house. The plaintiffs alleged that the negligence of the general contractor and the subcontractors caused the fire and that the general contractor had breached the construction contract. The trial court granted summary judgment to the general contractor, holding that the plaintiffs could not rely on res ipsa loquitur to establish an inference of negligence; granted summary judgment to the subcontractors based on the plaintiffs' failure to prove that any negligence of the subcontractors caused the fire; and granted summary judgment to the general contractor based on evidence that the plaintiffs were the first party to materially breach the construction contract. The Court of Appeals, in a divided opinion, affirmed summary judgment to the general contractor based on the inapplicability of res ipsa loquitur; and reversed summary judgment to the subcontractors on the negligence claim and to the general contractor on the breach of contract claim, finding genuine issues of disputed material fact. We hold that the plaintiffs cannot rely on res ipsa loquitur because they did not produce sufficient evidence that the general contractor was in exclusive control of the specific cause or all reasonably probable causes of the fire. We further hold that the plaintiffs did not produce sufficient evidence to establish that any negligence of the subcontractors was the cause in fact of the fire. For these reasons, the general contractor and flooring subcontractors are entitled to summary judgment on plaintiffs' claims based on negligence and breach of contract. We affirm the trial court's grant of summary judgment.

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Supreme Court: Contractors Not Liable to Homeowners After Fire

A general contractor and two subcontractors are not liable to the homeowners after a fire destroyed their partially completed home, the Tennessee Supreme Court ruled. The court agreed with the trial court’s dismissal of the case based on insufficient evidence as to the cause of the fire. The cause of the 2012 blaze was unknown but was found to have started on the back deck of the house, making it accessible to the public and vulnerable to a number of potential fire starters such as arson, improperly discarded cigarette butts, electrical issues and more.
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CLE Outlines How to Change Your Practice to Meet Market Demands

The fourth and final CLE in the “Modern Law Practice Series” will explore emerging trends in the delivery of legal services and how focusing on consumer behavior could benefit your law firm. This session will examine the ways in which consumer-facing companies like Avvo and LegalZoom have capitalized on tailoring services to the needs of the modern legal client and how you can adjust your practice to meet those same demands. The program will be held April 13, and will be available in person and on-demand.

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Memphis Lawmaker Goes After Drug Lobbyists

In a state House committee this week, Memphis Rep. Joe Towns (D-Memphis) railed against drug lobbyists when a bill designed to make oral chemotherapy medication more affordable got held up over a financial reporting amendment, the Memphis Daily News reports. The outburst occurred when Rep. Bill Beck (D-Nashville) proposed a reporting transparency amendment to the bill, which reportedly received blowback from drug lobbyists who threatened to kill the bill. “What chapped me is these damn lobbyists, these pharmaceutical people and the people that think they run this building – and nobody’s voted for them,” Towns said.
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No Cause of Action for NIED Arising from Property Damage

RICHARD LANE, ET AL. v. ESTATE OF GARY K. LEGGETT
Court: TN Court of Appeals

Attorneys:

Benjamin K. Dean, Springfield, Tennessee, for the appellant, Richard Lane.

Louis Andrew McElroy, Knoxville, Tennessee, for the appellee, Joe R. Johnson, Estate of Gary Leggett.

Judge: DINKINS

This appeal arises from an action to recover for emotional injuries allegedly sustained when the decedent/defendant’s automobile drove into Plaintiff’s business, struck a gas meter, and started a fire, which destroyed the business. The Plaintiff filed suit alleging causes of action for negligence and negligence per se and sought damages for emotional distress. The Defendant moved for summary judgment on the ground that Tennessee law does not recognize a cause of action for emotional injuries arising out of damage to or loss of property. The trial court granted summary judgment to Defendant on the negligent infliction of emotional distress claims, finding that Plaintiff did not establish that the injury was the proximate and foreseeable result of the Defendant’s negligence. The court dismissed the remaining claim on the basis of the prior suit pending doctrine due to a pending interpleader action filed by Defendant’s liability insurer. Plaintiff appeals; we affirm the judgment of the trial court.

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Tort and Insurance Forum Location Changed

More people than expected have signed up for the Tort and Insurance Forum CLE in Nashville, so the event has been moved to the AT&T Building, a block away from the Tennessee Bar Center at 333 Commerce Street. At the forum, three morning sessions will address the effects of the recent West and Dedmon cases from the perspectives of both plaintiff and defense. 
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Don't Miss this Year's Tort and Insurance Forum

This Friday's full-day Tort and Insurance Forum offers essential and practical materials for tort and insurance attorneys and those interested in tort and insurance law. Three morning sessions will address the effects of recent West and Dedmon cases from the perspectives of both plaintiff and defense. Further sessions will cover the Claims Commission Act and the Tennessee Governmental Tort Liability Act. The program will also offer a special session on how millennial jurors make decisions. A final session will provide new information about the technology-driven changes taking place in today’s legal landscape and the modern law practice.

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COA Affirms Settlement that Misses the 56-7-1206 Mark

JAMES R. GOAN ET AL. V. BILLY B. MILLS
Court: TN Court of Appeals

Attorneys:

Thomas C. Jessee, Johnson City, Tennessee, for appellants, James R. Goan and Judy Goan.

Thomas L. Kilday, Greeneville, Tennessee, for appellee, Billy Bruce Mills.

Judge: SUSANO

Plaintiff James R. Goan’s mail delivery vehicle was rear-ended by a vehicle driven by Billy B. Mills as Plaintiff was delivering mail. The Plaintiff and his wife, Judy Goan, sued Mills. During settlement negotiations, Plaintiffs offered to settle for $100,000, the limits of Defendant’s insurance policy. Defendant accepted the offer on December 4, 2013. Over a year later, Defendant filed a motion to enforce the settlement agreement. The Plaintiffs opposed the motion, arguing that there had been no meeting of the minds and no enforceable agreement. The trial court enforced the settlement agreement. The Plaintiffs appeal. We affirm.

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Symposium Looks at Aftereffects of Wildfires

Experts in risk management, environmental impacts and the law gathered at a wildfire symposium Thursday at Lincoln Memorial University's Duncan School of Law in downtown Knoxville. WBIR reported that much of the discussion focused on November's deadly Sevier County wildfires, which left 14 people dead and damaged or destroyed some 2,500 structures.

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Med Mal Case Gets to Jury — But Defense Verdict Affirmed by COA

ELIZABETH A. POPICK v. VANDERBILT UNIVERSITY

Court: TN Court of Appeals

Attorneys:
Jon E. Jones and Patrick Shea Callahan, Cookeville, Tennessee, for the appellant, Elizabeth A. Popick.
Steven E. Anderson and Sara F. Reynolds, Nashville, Tennessee, for the appellee, Vanderbilt University.

Judge: MCBRAYER

The plaintiff filed this health care liability action against the defendant hospital after the death of her husband, alleging that his death was the result of negligent medical treatment. The jury returned a verdict in favor of the defendant. On appeal, the plaintiff argues that the trial court committed reversible error in: (1) excluding certain email messages as hearsay; (2) overruling her objections to defense counsel's cross-examination of a witness; (3) failing to instruct the jury to ignore statements made by defense counsel in closing argument; (4) refusing a request for a special jury instruction; and (5) declining to change the special verdict form. Discerning no reversible error, we affirm the decision of the trial court.

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Claims Commissioner's Dismissal of Suit for Pavement Irregularities is Upheld by COA

DENISE ELLIOTT V. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:
Henry S. Queener, Nashville, Tennessee, for the appellant, Denise L. Elliott.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Dawn Jordan, Senior Deputy Attorney General, for the appellee, State of Tennessee.

Judge: CLEMENT

This appeal arises from a claim against the State by the driver of a motor vehicle who seeks damages resulting from a single-car accident. Claimant contends the accident was the proximate result of the State’s negligence in the design, construction, and maintenance of the roadway where the accident occurred for which the State is liable pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(I). Following a trial, the Claims Commissioner found that Claimant failed to prove the State was negligent in the design, construction, or maintenance of the roadway; therefore, Claimant failed to prove a claim for negligence under Tenn. Code Ann. § 9-8-307(a)(1)(I). Finding the evidence does not preponderate against the Claims Commission’s findings, we affirm.

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Class Action Litigation Bill Passes Despite ABA Opposition

Despite the American Bar Association’s opposition, the U.S. House yesterday passed the Fairness in Class Action Litigation Act of 2017, the ABA Journal reports. The bill requires federal courts to deny class-action certification unless every one of the proposed class members affirmatively demonstrated they have “suffered the same type and scope of injury” as the named plaintiffs. This morning the House also passed the Lawsuit Abuse Reduction Act of 2017, which amends Rule 11 of the Federal Rules of Civil Procedure to require judges to sanction attorneys who file lawsuits deemed to have no merit. 
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TOA Affirms Dismissal of Suit After Assault by IHOP Employee Off Premises

HENRY FLETCHER v. CFRA, LLC
Court: TN Court of Appeals

Attorneys:

David J. Weissman and Benjamin K. Raybin, Nashville, Tennessee, for the appellant, Henry Fletcher.

Mark S. LeVan and Christopher M. Jones, Nashville, Tennessee, and Charles T. Hvass, Minneapolis, Minnesota, for the appellee, CFRA, LLC.

Judge: SWINEY

Henry Fletcher (“Plaintiff”) sued CFRA, LLC (“CFRA”), which owns and operates an International House of Pancakes (“IHOP”) restaurant in Antioch, Tennessee, alleging that CFRA was liable for the actions of its IHOP employee, Kenneth W. Hale, Jr. (“Hale”), in connection with an assault upon Plaintiff committed by Hale. The Circuit Court for Davidson County (“the Trial Court”) granted summary judgment to CFRA. Plaintiff appeals the grant of summary judgment. We find and hold that CFRA made a properly supported motion for summary judgment, that Plaintiff failed to show that there are genuine disputed issues of material fact that would preclude summary judgment, and that CFRA was entitled to summary judgment as a matter of law. We, therefore, affirm the grant of summary judgment to CFRA.

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