News

State Seeking Workers’ Comp. Judge

The State of Tennessee Bureau of Workers’ Compensation is seeking a workers’ compensation judge in West Tennessee. The successful candidate will be appointed to an initial term that will run through June 30, 2019, and then be eligible to serve an additional three full terms. Applicants must have a valid, active Tennessee law license, be at least 30 years old and have at least five years of experience in Tennessee workers’ compensation matters. Send the required application and attachments to Janie.L.Dorris@tn.gov by Jan. 6. For more information about the position contact Bureau of Workers’ Compensation Administrator Abbie Hudgens.

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Legislation Would End All Medical Malpractice Suits

The Georgia-based nonprofit advocacy group Patients for Fair Compensation again this year plans to seek legislation that would ban all malpractice suits in the state, the Nashville Post reports. The group’s proposal will be introduced by Sen. Jack Johnson and Rep. Glen Casada, both Republicans from Franklin. The proposed plan would create a patients’ compensation system funded by annual fees charged to doctors. Instead of filing a lawsuit, an aggrieved patient would apply for compensation to an administrative law judge who would assess the claim. The bill, which surfaced last year for the first time, is opposed by a number of legislators and the Tennessee Medical Association.

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Jury: TennCare Provider Violated Dental Company’s Rights

A Nashville jury has unanimously found that DentaQuest, the insurance company administering TennCare’s dental program, violated the First Amendment rights of Snodgrass-King Pediatric Dental Associates when it excluded the company from the state Medicaid network. Lawyers for Snodgrass-King argued that the company was discriminated against based on a speech delivered by one of its dentists, who had been critical of DentaQuest’s administration of the program. The jury awarded Snodgrass-King $7.4 million in compensatory damages and $14.8 million in punitive damages. DentaQuest said it would seek further legal review of the jury’s decision. The Nashville Post has more on the case.

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$3M Awarded in Rolling Stone Defamation Suit

Federal jurors on Monday awarded $3 million in damages to a former University of Virginia administrator who claimed she was defamed by a Rolling Stone gang rape article that was later retracted. The jurors found reporter Sabrina Rubin Erdely liable for $2 million and the magazine liable for $1 million, according to the ABA Journal. Former UVA administrator Nicole Eramo claimed the article wrongly portrayed her as unresponsive to the campus rape claim. She had sought $7.5 million in damages.

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Judge Blocks Nursing Home Arbitration Rule

A federal district court judge yesterday blocked implementation of a new rule prohibiting federal funds from going to nursing homes that require residents to sign binding arbitration agreements. Judge Michael P. Mills found that the Centers for Medicare & Medicaid Services, which issued the rule in September, did not have authority to enact the mandate without statutory authority. The challenge to the rule was brought by various nursing home groups, including the American Health Care Association. The ABA Journal has more on the story and the opinion.

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Lawmaker to Try Again on ‘MaKayla’s Law’

State Sen. Sara Kyle, D-Memphis, says lawmakers should reexamine gun safety in the wake of deaths like MaKayla Dyer, a Jefferson County girl killed last year by her 11-year-old neighbor, reportedly because she refused to show him a puppy. Kyle says she will again attempt to get penalties in place for adults who do not secure their guns and a child gains access to the weapon and shoots someone. These cases are “often 100 percent preventable had the guns been stored safely. Safe storage does save lives,” Kyle said. In Dyer’s case, the young shooter was able to get his father’s shotgun from a closet, Nashville Public Radio reports.

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Court to Hear 5 Cases in Jackson This Week

The Tennessee Supreme Court will hear oral arguments in five cases when it meets this week in Jackson. The Nov. 2 docket involves (1) a death penalty appeal that looks at whether statements to police and witnesses should have been excluded; (2) a case testing whether a trial court has jurisdiction to hear a motion for the return of property after a judgment has finalized; (3) a case testing whether a repairman’s lien may be enforced in any way other than by attachment of the lien to the subject property; (4) a disciplinary matter that looks at whether a trial court’s affirmation of a BPR recommendation imposing a suspension, fine and community service was appropriate; and (5) a workers’ compensation case involving the death of an employee who overdosed on oxycodone he was prescribed for his workplace injury. Read more about these cases and get details on the court's schedule.

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Workers’ Compensation Court Holding Listening Sessions

The Tennessee Court of Workers’ Compensation Claims will hold a series of listening sessions across the state for members of the bar and public to weigh in on the new court system and to suggest areas for improvement. Chief Judge Kenneth M. Switzer and Brian Holmes, director of Mediation and Ombudsmen Services of Tennessee, will host sessions in Murfreesboro on Nov. 15, Jackson on Nov. 29, Memphis on Nov. 30, Nashville on Dec. 1, Chattanooga on Dec. 7, Cookeville on Dec. 9, Kingsport on Dec. 13 and Knoxville on Dec. 14. Those unable to attend in person may submit written comments. The March issue of the Tennessee Bar Journal looked at the new court.

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ABA Group to Publish Trump Libel Article

The ABA Forum on Communications Law will publish an article calling Republican presidential nominee Donald Trump a “libel bully” after all, despite reservations about partisan language from ABA officials, the ABA Journal reports. On Friday, the ABA reiterated what it has said since the incident, that it did not refuse to publish article and was not afraid of being sued. It did acknowledge that it suggested edits that “were in keeping with the ABA’s commitment to non-partisanship,” but said it was the author, First Amendment lawyer Susan Seager, who decided to withdraw the article. Seager now has resubmitted the article and it has been accepted for publication.

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Some VW Owners Slam Emissions Deal

Several angry Volkswagen owners told a federal judge yesterday that a proposed $10 billion settlement does not adequately compensate them for the automaker’s emissions cheating scandal. One owner, for example, demanded the full purchase price of his car as well as part of his registration fee, the Associated Press reports. The settlement calls for the car maker to spend up to $10 billion to buy back or repair about 475,000 Volkswagens and Audi vehicles with 2-liter diesel engines and pay owners an additional $5,100 to $10,000 each. The deal also requires the company to pay $4.7 billion for environmental mitigation and to promote zero-emissions vehicles. The Memphis Daily News has the story.

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Case Studies in Captive Insurance

Did you miss the TBA CLE course on captive insurance earlier this month? If so, you can watch a webcast of the session for up to a year. Watch as Andrew Rhea and Benjamin Whitehouse provide a brief overview of the field of captive insurance and use real life examples to illustrate how businesses conduct feasibility studies to determine how to structure a captive.

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Learn More about New FAA Drone Rules

Did you miss the Oct. 6 TBA CLE webcast with James Mackler talking about new drone laws set by the FAA? Good news! The video is available for one year on the TBA website. The session covers the use of drones in business, government and by hobbyists, as well as the unique regulatory environment related to each. The course also looks at state laws, privacy and trespass issues, liability and insurance issues and current litigation.

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TDLA Names 2016 Award Recipients

The Tennessee Defense Lawyers Association (TDLA) recognized 2016 award recipients at its recent 50th Anniversary Celebration & Annual Meeting. The group named Michael L. Haynie as its inaugural Defense Lawyer of the Year. Haynie is a principal with Manier & Herod practicing workers’ compensation law. He has drafted legislation for the association, including a bill this year to modify the Drug-Free Workplace Program. In addition, the group presented Nancy Steer with Leitner, Williams, Dooley & Napolitan with its “Rising Star Award.” She is an associate in the firm’s Nashville office focusing on general civil litigation.

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Memphis Lawyer Kim Schuerman Smith Dies

Memphis lawyer Kimberly Schuerman Smith died today (Oct. 4). She was 52. A 1990 graduate of the Cecil C. Humphreys School of Law, Smith practiced law with Schuerman Smith & Associates PLLC. "She was a trailblazer,” former law partner Kreis White recalled. “She was a first chair female insurance defense lawyer long before many women tried many jury cases." Visitation will be Thursday at Collierville Funeral Home from 5 to 8 p.m. The funeral service will be at Collierville First Baptist Church at 2 p.m. Friday. In lieu of flowers the family suggests donations be made to St. Jude Children's Research Hospital.

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Government Reaches Settlement in Suits Against Life Care, Preston

The Chattanoogan reports that the federal government has reached a settlement in the False Claims Act case against Cleveland Tenn.-based Life Care Centers, as well as in a separate suit against company chairman Forrest Preston. Claims in the case, in which the private nursing home company was accused of overbilling the government, amount to $1.8 billion. The separate suit against Preston alleges that he “unjustly enriched” himself through unfounded claims for government reimbursement. Life Care owns facilites in 28 states, including 20 locations in Tennessee.
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HHS Prohibits Forced Arbitration by Nursing Homes

The federal Department of Health and Human Services today issued a new rule that will prohibit long-term care facilities that accept Medicare or Medicaid from forcing residents into arbitration. Nursing homes and patients can still enter into arbitration if they choose, but contracts may not be written to automatically compel both parties into arbitration. The rule is part of a major revamp of consumer protections at long-term care facilities, Consumerist reports. The rule will go into effect Nov. 28 and have no effect on the “enforceability of existing pre-dispute arbitration agreements” according to the Centers for Medicare & Medicaid Services.

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Muslim Officer Wins $100K for Wrongful Firing

De’Ossie Dingus, a Tennessee Highway Patrol trooper who was fired after being labeled a potential jihadist, has won a $100,000 damage award from the state. U.S. District Judge Tena Campbell ordered the state to pay Dingus after he was treated as a threat, subjected to humiliating circumstances and wrongfully terminated because of his faith. The Sixth Circuit U.S. Court of Appeals ruled earlier this year that the case was so egregious it did not require a traditional proof of psychological harm to have damages awarded. That ruling led to this week’s award, Knoxnews reports.

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Gas Shortage Leads to Hundreds of Complaints

An ongoing gas shortage has prompted hundreds of price gouging complaints statewide, the Tennessean reports. The Tennessee Department of Commerce and Insurance reports nearly 600 consumer complaints came in over the weekend related to gas issues and prices. Most of the complaints came from Nashville drivers and involved gas prices that were under $3 a gallon, but some consumers said retailers were charging $9.99 a gallon. In response, Gov. Bill Haslam issued an executive order that would allow longer hours for fuel truck drivers so they can bring oil from refineries further away. 

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Read About Estates, Torts, Family Law … and Dodge Ball?

Murfreesboro lawyer Josh McCreary examines last wills and testaments, writing that "in the wake of the 2015 Court of Appeals opinion in In Re: Estate of Morris, the Tennessee legislature has stepped in and amended Tenn. Code Ann. §32-1-104 to lessen the formalities of Wills executed before July 1, 2016." Read in the September Tennessee Bar Journal what this will mean for estate practice. Columnist John Day writes about the two times in the past five years that the statute of limitations applicable to personal injury claims filed on behalf of persons with mental impairments has been changed. Columnists Marlene Eskind Moses and Manuel Benjamin Russ look into finding and defining income available for child support and alimony, and humor columnist Bill Haltom writes about his dubious experiences with junior high sports, particularly Dodge Ball.

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State Dems Want Hearing on Insurance Rates

Tennessee Democratic lawmakers are calling for a public hearing on the state’s decision to approve increases for some health insurance plans by as much as 62 percent. They say Insurance Commissioner Julie Mix McPeak has not done enough to show the increases are needed to keep the health insurance market afloat, Nashville Public Radio reports. McPeak blamed flaws in the Affordable Care Act for the increase. But Democrat Sen. Jeff Yarbro questioned why Tennessee is doing so much worse than everyone else. “Why are our rates going up higher and faster than every country — every other state in the country?” Some say it is because the state has not expanded its Medicaid program to include the sickest residents, leaving them in the general insurance pool.

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Court Solicits Comments on 2017 Rules Package

The Tennessee Supreme Court today published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals include changing the place for filing a notice of appeal to the appellate clerk’s office, requiring payment of fees and taxes to the appellate court clerk at the time of initiation of an appeal, and changes to the Juvenile, Criminal and Evidence rules. Six TBA sections – Appellate Practice, Litigation, Tort and Insurance Law, Criminal Justice, Family Law and Juvenile and Children’s Law – will be asked to review the recommendations and propose comments on behalf of the association. Comments on the proposals are due Nov. 23.

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Insurance Commissioner: Health Exchange ‘Very Near Collapse’

Tennessee Insurance Commissioner Julie Mix McPeak proclaimed the state’s health exchange “very near collapse” yesterday after signing off on significant premium hikes in a bid to keep the platform viable. The rate approvals were necessary to ensure healthcare options in every part of Tennessee, McPeak said. Tennessee is seeing a steady decrease in the number of insurance companies selling plans on the federally run exchange, the Tennessean reports. In 2017, 57 of the state’s 95 counties will have only one insurance company serving their area.

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Nashville Attorney to Chair ABA Section

Sam H. Poteet Jr., a principal with Manier & Herod in Nashville, has been elected to a one-year term as chair of the American Bar Association Tort Trial and Insurance Practice Section (TIPS). He will begin serving his 2016-17 term at the conclusion of the ABA annual meeting in San Francisco, which starts today and runs through Aug. 9. TIPS unites plaintiff, defense, insurance and corporate counsel to advance the civil justice system. It has about 20,000 members and 31 general committees that focus on substantive and procedural matters in areas across the broad spectrum of civil law and practice.

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VW Settlement Gets Preliminary Court Approval

A federal judge gave preliminary approval today to a sweeping settlement between Volkswagen, U.S. regulators and owners of VW diesels who will receive thousands of dollars in compensation, the Tennessean reports. Judge Charles Breyer with the U.S. District Court for the Northern District of California, set the settlement in motion, allowing the automaker to begin collecting information from 475,000 consumers who bought cars that were rigged to cheat emissions standards. Final approval of the settlement could come at a hearing set for Oct. 18. .

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Computer Forensics for Lawyers

On Aug. 2, Lars Daniel with Guardian Digital Forensics in Raleigh will present a special CLE webcast on computer forensics. He will use real life examples to show how forensic artifacts recovered from computers are used in legal cases. Other topics will include best practices in data collection, understanding deleted data, challenging digital evidence and expert testimony. If you cannot join the webcast live, the program will be available on the website for up to one year. Learn more or register here.

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