News

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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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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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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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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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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ABA Opposes Class-action Reform Legislation

The American Bar Association sent a letter to Congress this week in opposition to the Fairness in Class Action Litigation Act of 2017, the ABA Journal reports. Governmental Affairs Office Director Thomas M. Susman said the bill would “make it more difficult for large numbers of injured parties to efficiently seek redress in court; and place added burdens on an already overloaded court system.”
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Tenn. Among 16 States With Anti-Protesting Bills

Tennessee is one of 16 states with bills seeking to regulate protestors and public demonstrations, the ABA Journal reports. Tennessee’s bill removes liability from drivers who hit protestors with their car if the demonstrator was blocking the road. The bills, HB0668/SB0944, are sponsored by Sen. Bill Ketron, R-Murfreesboro, and Rep. Matthew Hill, R-Jonesborough. Other states have legislation that allows lawsuits against protestors to cover the cost of police response, increases penalties for rioting, and makes committing a crime while wearing a hoodie an extra misdemeanor charge.
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Suit Accuses Firm of Preying on Woodmore Family

A lawsuit filed today accuses law firms of taking advantage of victims of the Woodmore school bus crash, the Times Free Press reports. The suit was filed against Durham School Services, the private company responsible for the school system’s bus staffing, and includes claims of a Georgia law firm that illegally visited the father of one of the victims in jail and made empty promises.
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TBA Mashup and Mini Legal Hackathon this Friday

In conjunction with the Law Tech UnConference CLE this Friday, the TBA is also offering a variety of free events and programs for lawyers we’re calling a Mashup. One program will teach you about Legal Hackathons and see one in action. A Legal Hackathon is a collaborative effort of experts in the legal profession collaborating with a computer programmer to find a technology assisted solution to a problem in the legal industry. Join the TBA Special Committee on the Evolving Legal Market for a mini legal hackathon that will demonstrate the power of collaborative minds at work. We will have tasty beverages and snacks to help you get your collaborative juices flowing.  
 
Other programs that will be a part of the Mashup include Pro Bono In Action which will show you various pro bono programs you can participate in to help your fellow Tennesseans and Member Benefit Programs that will provide you information on  Fastcase 7, health insurance options for small firms, ABA retirement funds and professional liability insurance.
 
Please sign up now to let us know you are coming.

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Company Claims No Federal Liability in Bus Crash Lawsuit

Durham School Services, the company contracted to provide busing services to Hamilton County Schools, said it should not be held liable in federal court for its role in the November bus crash that killed five students, the Times Free Press reports. The company responded to a federal class-action lawsuit filed against it in December, saying that the plaintiffs have “a proper and adequate remedy in a state court tort action.”
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Deck Failure not Foreseeable, per COA, Affirming Summary Judgment

PARRIS KEANE ET AL. V. JOHN P. CAMPBELL, III ET AL.
Court: TN Court of Appeals
Attorneys:
Renard A. Hirsch, Sr., Nashville, Tennessee, for the appellants, Parris Keane, Joseph P. Keane, and Brendie Keane.
William B. Jakes, III, Nashville, Tennessee, for the appellees, John P. Campbell and Lisa H. Campbell.
Judge: CLEMENT
The plaintiffs filed this negligence action seeking damages for injuries sustained from the collapse of a deck at the defendants’ home. The defendants filed a motion for summary judgment, which the trial court granted, finding that the injuries were not reasonably foreseeable. We affirm.

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Wildfire Claims Approach $1 Billion

Insurance claims resulting from the Sevier County wildfires have risen more than $100 million from previously reported figures, and now total nearly $1 billion, Knoxnews reports. The most recent report from the Tennessee Department of Commerce and Insurance shows total claims from residential and commercial property at upwards of $943 million, nearly double the losses initially estimated by Sevier County Mayor Larry Waters in December. Tennessee attorneys can still volunteer to help with relief effort by signing up via the TBA website.
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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.

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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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