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Wrongful Death Priorities May Have Exceptions, per Court of Appeals

BRITTANY NOEL NELSON, ET AL. v. CHARLES W. MYRES, ET AL.
Court: TN Court of Appeals

Attorneys:

Thomas F. Mink, Charles M. Duke, and William M. Leech, Nashville, Tennessee, for the appellant, Brittany Noel Nelson.

Russell E. Edwards, Hendersonville, Tennessee, for the appellee, Charles W. Myres.

James R. Tomkins, Nashville, Tennessee, for the appellee, Adenus Solutions Group, LLC; Adenus Group, LLC, Adenus Utilities Group, LLC, and Adenus Operations, LLC.

Jon M. Cope, Knoxville, Tennessee, for the appellee, Westfield Insurance.

Judge: DINKINS

A woman died in a multi-vehicle accident. Two wrongful death actions were filed, one by the woman's daughter, the other by the woman's husband. The daughter's suit named the husband and others as defendants. The husband's suit named one of the other drivers as the only defendant. The trial court dismissed the daughter's complaint, holding that Tennessee's wrongful death statute creates only one cause of action and that the husband, as the surviving spouse, was granted priority to prosecute the action under the statute. The daughter appeals the dismissal of her complaint. Because the husband is unable to name himself as a defendant in the suit he has filed, he is not able to prosecute the wrongful death action in a manner consistent with the right of the decedent to sue all wrongdoers whose actions are alleged to have led to her death; accordingly, we reverse the judgment of the trial court dismissing the daughter's complaint, reinstate the complaint, and remand the case for further proceedings.

.PDF Version of Case

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Price Fixing Milk Suit Means Cash for Tennesseans

If you bought milk in Tennessee or one of 15 other states in the past 13 years, you might be eligible for part of a settlement from a class-action suit alleging dairy co-ops conspired to reduce the size of their herds to raise the price of milk. A $52 million pool will be divided among lawyers and consumers who sign up at www.boughtmilk.com. The deadline to register is Jan. 31, WJHL reports.

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Takata Workers Indicted Over Air Bag Defects

A federal grand jury in Detroit has indicted three former employees of Takata Corp., charging them with concealing deadly defects in the Japanese company’s automotive air bag inflators, the Associated Press reports. The indictments on six counts of conspiracy and wire fraud were unsealed Friday, just hours ahead of a Justice Department news conference to announce a corporate penalty against the company. The FBI has been investigating allegations that the company deceived federal regulators and tried to cover up the air bag problems.

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VW Reaches $4.3 Billion Deal to Settle Civil, Criminal Charges

Volkswagen has agreed to a $4.3 billion settlement to resolve civil and criminal investigations into the German automaker's diesel emissions cheating, Reuters reports this afternoon. U.S. prosecutors also charged six Volkswagen executives and employees for their roles in the nearly 10-year conspiracy to mislead regulators and customers about diesel emissions from VW cars. Volkswagen had previously agreed to spend up to $17.5 billion in the United States to resolve claims by U.S. regulators, owners and dealers and offered to buy back nearly 500,000 polluting vehicles.

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1st Criminal Meningitis Trial Starts Today

After a lengthy federal probe and two years of legal battles, the first criminal trial associated with the fungal meningitis outbreak caused by tainted steroid injections starts this week, USA Today reports. Victims are watching as Barry J. Cadden, director of the New England Compounding Center, which made the injections, is charged with 25 counts of second-degree murder. Opening statements were scheduled to begin today. About 750 people nationwide were sickened by the injections and 76 died. Federal officials have alleged that the pharmacy did not follow regulations and procedures when preparing more than 10,000 tainted doses of methylprednisolone acetate. Tennessee was the second-hardest hit state, with 153 illnesses and 16 deaths, according to the Tennessean.

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Alabama Personal Injury Lawyer Expanding to Nashville

Alexander Shunnarah, an Alabama personal injury attorney known for his billboards and TV commercials, opened an office in Nashville this week, the Nashville Business Journal reports. “Nashville's just been a natural fit,” Shunnarah told the journal. “We've already represented people in Tennessee for seven to eight years.” He has hired one local attorney, Robyn Owens, but envisions growing the office. The move gives Shunnarah offices in five states and 15 southeastern cities, primarily in Alabama. 

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Groups Target Medical Malpractice System

Several medical groups want Tennessee lawmakers to replace the state’s malpractice system with one similar to that being used to settle workers’ compensation claims, Nashville Public Radio reports. One of these groups, the North Carolina-based organization Medical Justice, says it would like to make Tennessee the first state to do away with its medical malpractice system. On the other side of the issue, Andy Spears with Tennessee Citizen Action says the current system works fine and the threat of lawsuits forces doctors to take extra precautions.

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Have You Heard About the TBA Mashup?

Interested in observing a legal hackathon or getting a hands-on demonstration of the new Fastcase 7 platform? Both will be part of the first TBA Mashup, a full-day of activities and free programming set for Feb. 17 at the Tennessee Bar Center in conjunction with the annual TBA Law Tech UnConference CLE program.

In addition to the hackathon and Fastcase 7 demo, the TBA Mashup will feature sessions on: 

  • Current State of Health Insurance for the Small Firms
  • Professional Liability Insurance - What to look for in YOUR Policy
  • A Demo of Fastcase TopForm, a powerful bankruptcy filing software
  • Retirement Planning Guidance from the ABA Retirement Funds
  • Pro Bono in Action: How to help with pro bono events and how to take part in online options

At the annual TBA Law Tech UnConference CLE program, you can take as many or as few hours as you need. Registration will be open all day. Payment will be determined at checkout based on the hours you need. Topics will include: 

  • Bill & Phil Tech Show
  • Ethical Considerations for Cyber Security in Law
  • Evolution of the Legal Marketplace
  • Making e-Discovery Affordable 
  • Drone Law
  • Encryption for Lawyers

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Workers' Comp Court Adopts New Rules, Revises Others

The Tennessee Court of Workers' Compensation Claims has adopted several new rules and revised others, according to a blog post by the judges. Among the changes is a new rule regarding promptness for court. Under Rule 1.03, those running late for a scheduled court appearance should alert both the staff and opposing counsel. Failure to do so may lead the court to proceed without the attorney. A second new rule, Rule 2.03, requires notice to the court clerk and the judge’s legal assistant or staff attorney when a case settles prior to the hearing date. Finally, the court has revised procedures in Rule 4.03 for seeking a disqualification or recusal of a judge and in Rule 8.04 for inquiring about a status conference. The court also reports that there will not be settlement approvals on Jan. 5 and 6 due to a judicial conference.

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AG to Chattanooga Families: Beware of Predatory Firms

Attorney General Herbert H. Slatery III is asking Chattanooga residents to be aware of predatory law firms seeking to profit from the Woodmore Elementary school bus tragedy. While communities and families deal with the heartache and stress associated with tragedy, out-of-state law firms have been known to solicit business and coerce families into signing legal agreements that are difficult to understand, Slatery says. Often, these firms use misleading or inaccurate information, offer incentives such as paying funeral costs in exchange for using their services, and promise millions in civil lawsuit awards. In some cases, salesmen hired by the law firm will portray themselves as licensed attorneys when they are not. In a warning released today, Slatery outlines four signs of a suspicious solicitation, and pledges to prosecute anyone taking advantage of the situation.

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Court Adopts 2017 Rules Package

The Tennessee Supreme Court today published the 2017 amendments to its 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 other changes to the rules of appellate procedure, civil procedure, criminal procedure and juvenile procedure, as well as the rules of evidence. Six TBA sections – Appellate Practice, Litigation, Tort and Insurance Law, Criminal Justice, Family Law, and Juvenile and Children’s Law reviewed the rules when proposed and either found no objections or supported the changes. The proposals now go to the legislature for ratification before becoming effective on July 1.

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Workers’ Comp Judge to Retire

The Tennessee Court of Workers’ Compensation Claims has announced that Judge Jim Umsted, who serves on the bench in Memphis, will retire soon. However, he will continue to assist on a part-time basis with the review and approval of settlements. The court and the Bureau of Workers’ Compensation expressed gratitude to Umsted for his years of service. Applicants to fill the post can get information from the state Department of Labor and Workforce Development.

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School Bus Crash Case Goes to Grand Jury

Hamilton County General Sessions Judge Lila Statom found probable cause for formal charges to be brought against Johnthony Walker, the 24-year-old driver in a school bus crash that killed six children in Chattanooga. She sent the case to a grand jury yesterday. Prosecutors have changed Walker with five counts of vehicular homicide, reckless driving and reckless endangerment. A sixth vehicular homicide charge will soon be added for a child who died several days after the crash. Chattanoogan.com looks at recent developments in the case.

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Suit Accuses Nashville VA Hospital of Negligence

The parents of a U.S. Army veteran who served three tours of duty in the Middle East are suing the veterans' hospital in Nashville, saying staff negligence led to the death of their 26-year-old son. The suit, filed in federal court, alleges Aaron M. Merritt did not receive appropriate care for the treatment of ulcerative colitis, the Tennessean reports. The suit comes at a time when the veteran’s healthcare system is experiencing trouble nationwide. In Tennessee, the veterans’ hospitals in Nashville and Murfreesboro recently were ranked among the worst in the country for quality of care according to the Veterans’ Affairs Department itself.

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Court Rejects Challenges to NFL Concussion Settlement

The U.S. Supreme Court yesterday rejected the final two challenges to an estimated $1 billion settlement between the NFL and more than 20,000 former players who have been diagnosed with brain injuries linked to repeated concussions. Players who already have been diagnosed with Lou Gehrig’s disease, Parkinson’s, Alzheimer’s or dementia now could begin receiving payments in 90 to 120 days, CBS News reports. The remaining lawsuits had accused the league of hiding what it knew about concussion risks but the NFL denied those claims. WREG TV has the story.

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Winton to Lead BlueCross Government Relations

Dakasha Winton has been promoted by BlueCross BlueShield of Tennessee to the newly created position of chief government relations officer, Chattanoogan.com reports. In this position, Winton will be responsible for leading all government relations efforts in Nashville and Washington, D.C. Prior to the promotion, Winton served as director of state government relations and associate general counsel. 

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CBA: Lawyers Should Not Contact Bus Families for 30 Days

The Chattanooga Bar Association (CBA) is calling on lawyers not to contact families of the Woodmore Elementary School bus tragedy for 30 days from the date of the crash. CBA Executive Director Lynda Minks Hood tells Chattanoogan.com that the Rules of Professional Conduct “explicitly prohibit direct unsolicited contact from a lawyer or an intermediary within 30 days” of an event like the school bus crash. Exceptions are made when a lawyer has a family, close personal, or prior professional relationship with the victim and the victim’s family, she says. The paper reports that five lawsuits related to the crash already have been filed in Circuit Court.

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Workers’ Comp Court Adopts New Rules

The Tennessee Court of Workers’ Compensation recently issued new rules governing deadlines for filing wage statements, medical records and interrogatories as well as responding to requests for expedited hearings; filing of documents previously filed with a mediator; obligations on the party opposing a request for expedited hearing; use of e-signatures; and use of causation letters.

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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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