News

Nashville Lawyer Receives 2015 Paladin Award

Nashville attorney Kenny Byrd of Lieff Cabraser Heimann & Bernstein has been recognized with the Tennessee Association for Justice’s (TAJ) 2015 Paladin Award. The award is the group’s highest honor, given to an attorney who has demonstrated superior skills as a trial advocate, has achieved an outstanding result for clients and has worked to improve the civil justice system. Byrd was recognized for the role he played in successful litigation against cigarette manufacturers R.J. Reynolds Tobacco Company, Philip Morris USA Inc. and Lorillard Tobacco Company.

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Class Action Suit Filed Over Train Derailment

The first lawsuit against CSX has been filed in Maryville, WATE reports. The suit alleges that CSX was “negligent and caused a nuisance” when its train carrying toxic, flammable liquid derailed and caused thousands to be evacuated. Maryville attorney Kevin W. Shepherd said he filed the suit with the Tucson, Arizona, law firm of Bellovin and Karnas, because of that firm's experience with toxic chemical tort litigation.

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Date Set for Fungal Meningitis Criminal Trial

The 14 suspects accused of being involved in a criminal conspiracy that led to the fungal meningitis outbreak are scheduled to go to trial on April 4, 2016, the Tennessean reports. The U.S. Department of Justice has started sending notices of the trial to those victimized by the outbreak. Tennessee was one of the hardest hit states with 153 illnesses, including 16 deaths, according to the U.S. Centers for Disease Control and Prevention. The trial will take place in Boston.

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Court Determines Assignment of Insurance Proceeds Wasn’t Effective

The Tennessee Supreme Court has determined that a Nashville chiropractic clinic’s patient did not effectively assign his rights to insurance proceeds received from a third party’s insurance company. In an opinion written by Justice Jeffrey S. Bivins, the Court pointed out that the agreement’s language implies that the patient intended to assign proceeds from his own insurance policies, not proceeds from another person’s insurance. The AOC has the full opinion.

Supreme Court Orders New Trial on Damages in Railroad Negligence Case

The Tennessee Supreme Court has ruled that a widow whose husband died after a five-year battle with lung cancer will get a new trial to determine the amount of damages owed by her husband’s employer as a result of its negligence in contributing to her husband’s illness. The Supreme Court, which agreed with the Court of Appeals that a new trial should not have been granted and that the suit should not have been dismissed, now returns the case to the Knox County Circuit Court with directions for a new jury to determine the proper amount of damages. The Administrative Office of the Courts has more

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Court Reverses Dismissal of Health Care Liability Lawsuit

The Tennessee Supreme Court has reversed a trial court’s dismissal of a health care liability lawsuit against an East Tennessee doctor and hospital, concluding that delivery of pre-suit notice of a health care liability action via FedEx is a proper method of service under Tennessee law. In a unanimous opinion authored by Chief Justice Sharon G. Lee, the Supreme Court held that the delivery of pre-suit notice to health care defendants may be achieved by substantially complying with the statute and that use of FedEx as the carrier of the notice letters constitutes substantial compliance. The AOC has more.

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Appeals Court Rules that Vacancy Exclusion for Vandalism and Malicious Mischief, Theft or Attempted Theft Does not Encompass Arson

SOUTHERN TRUST INSURANCE COMPANY v. MATTHEW PHILLIPS
Court: TN Court of Appeals

Attorneys:

Terrill Lee Adkins and Amy Victoria Peters, Knoxville, Tennessee, for the appellant, Southern Trust Insurance Company.

James Brandon McWherter, Franklin, Tennessee, and Clinton H. Scott, Jackson, Tennessee, for the appellee, Matthew Phillips.

Judge: GIBSON

This appeal involves the interpretation of an insurance policy in order to determine whether the policy provided coverage for damage caused by arson. The insurer and the insured filed cross-motions for partial summary judgment on this issue. The trial court found the policy ambiguous and construed it in favor of coverage, holding that arson was covered under the policy. Accordingly, the trial court granted the motion for partial summary judgment filed by the insured and denied the motion for partial summary judgment filed by the insurer. The insurer appeals. We affirm.

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Court Rules on Passport Issue, Grants 3 Cases for Fall

The U.S. Supreme Court issued three opinions today, including one favoring the White House in a foreign-policy power struggle with Congress over whether Jerusalem-born Americans may list Israel as the place of birth on their U.S. passports. The court also agreed to hear three cases in the fall: when a three-judge panel must be convened to consider challenges to redistricting plans, how workers prove class action damages, and whether a defendant facing asset forfeiture can use funds not obtained from the crime to pay for legal representation. Finally, the court declined to hear four cases, including another challenge to the Affordable Care Act and a question of whether local governments may require handguns be disabled or locked up when they are not being carried. Read a wrap-up from SCOTUSblog.

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Supreme Court Reverses Prior Intermediate Decisions Concerning Disclosures of Good Faith

TIMOTHY DAVIS EX REL. KATHERINE MICHELLE DAVIS v. MICHAEL IBACH, MD, ET AL.
Court: TN Supreme Court

Attorneys:

Charles M. Agee, Jr., and W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellee, Timothy Davis, as surviving spouse and next of kin of Katherine Michelle Davis, deceased.

Timothy G. Wehner and Ashley D. Cleek, Jackson, Tennessee, for the appellant, Michael Ibach, MD.

Robert A. Talley and Jennifer S. Harrison, Memphis, Tennessee, and Hubert B. Jones, Dyersburg, Tennessee, for the appellant, Martinson Ansah, MD.

Judge: BIVINS

The Plaintiff filed a medical malpractice action against the Defendants. Following the Defendants? motions to dismiss the action, asserting that the certificate of good faith was noncompliant with the requirement in Tennessee Code Annotated section 29-26-122(d)(4) (Supp. 2008), the trial court granted the Plaintiff?s request to voluntarily dismiss the action. The Defendants appealed, and the Court of Appeals affirmed the order of the trial court. We granted review to determine whether the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith filed in a medical malpractice action disclose the number of prior violations of the statute by the executing party also requires disclosure of the absence of any prior violations of the statute. We hold that it does not. Accordingly, the judgment of the Court of Appeals is affirmed.

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Court to Hear 6 Cases This Week

The Tennessee Supreme Court has six cases set for oral argument this week. Among the issues involved are termination of a mother’s parental rights by default judgment, whether the Tennessee Department of Revenue can impose a variance on the formula used to compute taxes, whether the city of Nashville can sue the Board of Zoning Appeals over a decision to convert static billboards to digital billboards, whether retaliatory taxes violate the state constitution and whether state law eliminates the distinction between medical and ordinary negligence claims when a health care provider is sued. The sixth case is an appeal of a Board of Professional Responsibility recommendation for discipline against a Memphis lawyer.

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Dismissal of House Fire Case Fails on Issues of Duty and Statute of Repose

WILLIAM TIMOTHY HAYES, ET AL. V. COOPERTOWN’S MASTERSWEEP, INC.
Court: TN Court of Appeals

Attorneys:

Russell E. Reviere, Jonathan D. Stewart, and Brandon W. Reedy, Jackson, Tennessee, for the appellants, William Timothy Hayes and Stephanie Hayes.

Leland M. McNabb, Pam Warnock Blair, and Andrew J. Droke, Memphis, Tennessee, for the appellee, Coopertown?s Mastersweep, Inc.

Judge: ARMSTRONG

This is an appeal from the grant of two motions for directed verdict. Appellants contracted with Appellee chimneysweep company to redesign and reconstruct portions of their fireplace and chimney to address a problem with smoke escaping into the den, upper floors, and attic. More than a year after the construction was completed, Appellants? home was damaged by a fire, which started when wood flooring joists in close proximity to the firebox ignited. Appellants brought claims for negligence and breach of contract against Appellee. The case was tried before a jury. At the close of Appellants? proof, the trial court granted the Appellee?s motions for directed verdict on the ground that the Appellants had failed to establish that the Appellee owed them a duty of care to conduct a destructive investigation of the safety of the Appellants? fireplace and also on the ground that the suit was barred by the applicable statute of repose. We affirm and remand.

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Supreme Court Reverses Lower Courts' Decision to Disallow Testimony from Expert on Informed Consent

IKE J. WHITE III v. DAVID A. BEEKS, M.D.
Court: TN Supreme Court

Attorneys:

H. Franklin Chancey, Cleveland, Tennessee, for the appellant, Ike J. White III.

Richard A. Smith and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellee, David A. Beeks, M.D.

Judge: LEE

The issue in this health care informed consent case is whether the trial court erred by limiting the testimony of plaintiff patient’s expert witness regarding the risks that the defendant doctor was required to disclose to obtain the patient’s informed consent for surgery. The doctor performed a spinal fusion on the patient. His back pain initially improved, but subsequently worsened. The patient sued the doctor, claiming his back pain was caused by nerve compression due to ectopic bone growth at the site of the fusion. The patient alleged that the doctor failed to give him adequate information to enable him to give an informed consent to the surgery. In a pretrial deposition, the patient’s expert testified that to obtain informed consent, the doctor was required to advise the patient that he would use a bone-grafting protein and inform the patient about all the potential risks arising from its use, including risks that allegedly caused harm and risks that did not cause harm. The trial court granted the doctor’s motion to limit the patient’s expert witness testimony to only those risks that allegedly materialized and injured the patient. The jury returned a verdict in favor of the doctor. In a divided opinion, the Court of Appeals affirmed the trial court’s exclusion of the expert medical testimony. We hold that the trial court erred by excluding expert testimony regarding undisclosed medical risks that had not materialized. Because this error, more probably than not, influenced the jury’s verdict, the patient is awarded a new trial.

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Court Brings Arguments to Boys and Girls State

The Tennessee Supreme Court will hold oral arguments before hundreds of high school students next week. At Boys State, held May 27 at Tennessee Technological University in Cookeville, the court will consider cases involving unlawful search and seizure and whether an employer can refuse to hire someone who previously filed a workers’ compensation claim. At Girls State, held May 28 at Lipscomb University, the court will hear cases involving termination of parental rights and whether records related to the Vanderbilt rape case should be released to the public. The AOC has more on the cases.

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Fungal Meningitis Victims to Share $200 Million

A $200 million settlement has been reached to pay out claims in the 2012 nationwide outbreak of fungal meningitis that was first detected in Nashville and was traced to an injectable steroid made by Massachusetts-based New England Compounding Center (NECC). The outbreak sickened 778 people across the country, killing 76, according to an investigation by the U.S. Food and Drug Administration. Tennessee was one of the hardest hit states with a total of 153 people sickened and 16 deaths. Dozens of civil lawsuits from across the country were consolidated into the bankruptcy filing of NECC. About 3,770 people nationwide have filed claims against the company. The Tennessean has the story.

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4 Cancer Charities Sued for Alleged $187M Scam

Tennessee, along with the Federal Trade Commission and every other state in the country, has filed a joint federal lawsuit against four cancer charities with ties to East Tennessee, the Nashville Business Journal reports. The suit alleges that the charities – Cancer Fund of America, Children’s Cancer Fund of America, Cancer Support Services and The Breast Cancer Society – scammed donors throughout the country out of more than $187 million.

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Eastern Section Rejects Attempts to Impute Liability From Driver to Owner Via Family Purpose, Negligent Entrustment and/or Statutory Agency

DANA A. DANIELS v. NATALIE HUFFAKER ET AL.
Court: TN Court of Appeals

Attorneys:

William A. Hotz and Jeffrey H. Glaspie, Knoxville, Tennessee, for the appellant, Dana A. Daniels.

Beverly D. Nelms, Knoxville, Tennessee, for the appellee, Keith Norris.

Judge: FRIERSON

This case involves an automobile accident in which the plaintiff?s vehicle was struck by an oncoming pick-up truck when the truck?s driver attempted to turn left in front of the plaintiff?s vehicle. The plaintiff suffered injuries to her neck and back, as well as significant damage to her vehicle. The plaintiff brought this action, alleging negligence against the driver of the truck and negligent entrustment against the truck?s owner, who was the defendant driver?s brother-in-law. The plaintiff also alleged that the truck?s owner was vicariously liable for damages under the family purpose doctrine. The driver of the truck was never successfully served with process and is not a party to this appeal. The defendant owner of the truck filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the defendant owner. The plaintiff appeals. Discerning no reversible error, we affirm.

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A Divided Western Section Rejects Timeliness of Claims Commission Proceedings

BARBARA MCGINNIS v. STATE OF TENNESSEE
With dissenting opinion.
Court: TN Court of Appeals

Attorneys:

Michael Don Harrell, Memphis, Tennessee, for the appellant, Barbara McGinnis.

Herbert H. Slattery, III, Attorney General and Reporter, Andree S. Blumstein, Solicitor General, and Rebecca Lyford, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: ARMSTRONG

This is an interlocutory appeal of the Tennessee Claims Commission?s denial of Appellant State of Tennessee?s motion to dismiss the Appellees? appeal of the denial of her tort claim by the Division of Claims Administration. Appellee filed her notice of appeal with the Commission 91 days after notice of the denial of her claim. Although Tennessee Code Annotated Section 9-8-402(c) allows only 90 days for a party to appeal the denial of his or her claim, the Commission applied Tennessee Rule of Civil Procedure 6.05 to enlarge the time by three days and, thus, held that Appellees? notice of appeal was timely. We conclude that Tennessee Rule of Civil Procedure 6.05 is inapplicable to this case. Accordingly, we hold that Appellees? appeal was not timely filed so as to confer jurisdiction over her claim to the Commission. Because the Commission lacked jurisdiction, the State was entitled to dismissal of the appeal. Reversed and remanded with instructions.

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STAFFORD dissenting

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Western Section Breathes New Life Into Case Dismissed for Failure to File Return on Service Within 90 Days

HENRIETTE M. FISHER v. CHANDRANITA M. ANKTON
Court: TN Court of Appeals

Attorneys:

Rachael E. Putnam, Memphis, Tennessee, for the appellant, Henriette M. Fisher.

William M. Jeter, Memphis, Tennessee, for the appellee, Chandranita M. Ankton.

Judge: STAFFORD

Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident. Plaintiff procured issuance of multiple summonses, but did not return the final summons within ninety days after its issuance. Defendant filed a motion to dismiss asserting insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations. The trial court granted defendant?s motion and concluded that Tennessee Rules of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of proof of service within ninety days. Based on this finding, the trial court also concluded that plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.

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Western Section Breathes New Life Into Case Dismissed for Failure to File Return on Service Within 90 Days

HENRIETTE M. FISHER v. CHANDRANITA M. ANKTON
Court: TN Court of Appeals

Attorneys:

Rachael E. Putnam, Memphis, Tennessee, for the appellant, Henriette M. Fisher.

William M. Jeter, Memphis, Tennessee, for the appellee, Chandranita M. Ankton.

Judge: STAFFORD

Plaintiff filed suit against defendant alleging negligence resulting in an automobile accident. Plaintiff procured issuance of multiple summonses, but did not return the final summons within ninety days after its issuance. Defendant filed a motion to dismiss asserting insufficiency of process, insufficiency of service of process, and expiration of the statute of limitations. The trial court granted defendant?s motion and concluded that Tennessee Rules of Civil Procedure 3 and 4.03 required dismissal when a plaintiff failed to file a return of proof of service within ninety days. Based on this finding, the trial court also concluded that plaintiff had intentionally delayed service. We reverse in part, vacate in part, and remand.

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Columnists Hold High Standard for 'Journal' Writing

In this issue, columnist John Day shares some facts about Tennessee Tort Cases; Marlene Moses and Ben Russ explain orders of protection; and Bill Haltom writes why lawyers should “go out for lunch and home for dinner.” In the year-long commemoration of the Journal’s 50 years, this installment looks back over all the columns and the impact they have made on readers, including the 10 men and women who write in substantive areas today. Especially do not miss the granddaddy of them all, the column that started in 1965 with the pressing subject, "The Telephone: Friend of Foe."

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Nashville Lawyers Launch New Practice

Brian Cummings and Brian Manookian have launched a new law firm – Cummings Manookian PLC in Nashville. They will focus on plaintiffs’ cases, including high exposure litigation within the areas of medical malpractice and personal injury.

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Nashville Orthopedist Loses Challenge to Hospital Privilege Revocation

DAVID H. MCCORD v. HCA HEALTH SERVICES OF TENNESSEE, INC.
Court: TN Court of Appeals

Attorneys:

C. Bennett Harrison, Jr., Jennifer M. Lankford, and Dan Warlick, Nashville, Tennessee, for the appellant, David H. McCord, M. D.

C. J. Gideon, Jr., Nashville, Tennessee, for the appellee, HCA Health Services of Tennessee, Inc., d/b/a Centennial Medical Center.

Judge: DINKINS

A hospital instituted a review of an orthopaedic surgeon’s removal of spinal hardware from patients within one year of implantation; the review resulted in a peer review proceeding under the hospital’s bylaws and the eventual revocation of the doctor’s surgical privileges. The doctor filed suit for breach of contract, defamation, common law and statutory disparagement, and intentional interference with business relationships, arising out of the revocation of his surgical privileges. Upon the hospital’s motion to dismiss all claims for failure to state a claim for relief, the court dismissed the breach of contract claims. The hospital subsequently moved to dismiss the remaining claims for lack of subject matter jurisdiction or, in the alternative for summary judgment; the court granted the motion to dismiss and denied summary judgment. Doctor appeals the dismissal of his claims; hospital appeals the denial of its motion for summary judgment. We affirm the dismissal of the breach of contract claims and reverse the dismissal of the tort claims for lack of subject matter jurisdiction; we hold that the hospital is entitled to summary judgment on the remaining claims and dismiss the case.

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Western Section Approves Injunction and Nominal Damages for MD Against Disgruntled Patient More Active on Facebook Than in Response to Required Discovery

JAMES C. LODEN, M.D., P.C., d/b/a LODEN VISION CENTERS, and JAMES C. LODEN, M.D., Individually v. GERALD MICHAEL SCHMIDT
Court: TN Court of Appeals

Attorneys:

Gerald Michael Schmidt, Franklin, Tennessee, Pro se.

James Bryan Lewis, Nashville, Tennessee, for the appellee, James C. Loden, M.D., P.C., d/b/a Loden Vision Centers, and James C. Loden, M.D., Individually.

Judge: STAFFORD

Doctor filed this lawsuit against a former patient, alleging malicious prosecution, tortious interference, defamation, and intentional infliction of emotional distress. After the patient refused to respond to discovery, the trial court eventually entered an order striking the patient‘s answer and entering a default judgment against the patient. The trial court later awarded the doctor nominal damages and a permanent injunction. Affirmed.

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'Open and Obvious' Summary Judgement Reversed by Eastern Section

JENNIFER WALDEN v. CENTRAL PARKING SYSTEM OF TENNESSEE, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

David H. Dunaway and Rick A. Owens, LaFollette, Tennessee, for the appellant, Jennifer Walden.

R. Kim Burnette and Stacie D. Miller, Knoxville, Tennessee, for the appellees, Central Parking System of Tennessee, Inc. and Fort Sanders Regional Medical Center.

Judge: SWINEY

Jennifer Walden ("Plaintiff") sued Central Parking System of Tennessee, Inc. ("Central Parking") and Fort Sanders Regional Medical Center ("Fort Sanders") for negligence after she allegedly suffered injuries as a result of a fall in a parking garage located in Knoxville, Tennessee. Defendants filed a motion for summary judgment. The Circuit Court for Knox County ("the Trial Court") granted defendants summary judgment after finding and holding, inter alia, "that no alleged fault on the part of the defendants was the cause of plaintiff's accident and injuries, that the same occurred due to her own failure to observe the open and obvious condition of the premises that was there to be seen, and that reasonable minds could not differ on this issue." We find and hold that there is a genuine disputed issue of material fact regarding whether Plaintiff's fault was greater than defendants'. We, therefore, reverse the grant of summary judgment and remand this case for further proceedings.

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Western Section Agreed that Unduly Restrictive HIPPS Release is Fatal in Med Mal Case

WHITNEY LEIGH HARMON, ET AL. v. GREGG IAN SHORE, ET AL.
Court: TN Court of Appeals

Attorneys:

Walter Woods Bussart, Lewisburg, Tennessee, for the appellants, Whitney Leigh Harmon and Joshua David Harmon.

Michael F. Jameson, Nashville, Tennessee, for the appellee, Gregg Ian Shore.

Taylor Bradford Mayes, Nashville, Tennessee for the appellee, Maury Regional Hospital d/b/a Maury Regional Medical Center and d/b/a Maury Regional Surgical Center.

Judge: ARMSTRONG

This is a Health Care Liability case. Appellees are the treating physician and hospital. The trial court granted Appellees? Tennessee Rule of Civil Procedure 12.02 motions to dismiss Appellant?s lawsuit for failure to comply with the Tennessee Code Annotated Section 29-26-121(a)(2)(E) notice provision for health care liability claims. Specifically, the trial court determined that the required Health Insurance Portability and Accountability Act (HIPAA) medical authorization provided by Appellant was not substantially compliant with the statutory requirements in that the relevant medical records were released only to Appellant?s lawyer. Discerning no error, we affirm and remand.

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