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Slatery Addresses Amendment 2, Upcoming Term

Newly appointed state Attorney General Herbert Slatery was in Knoxville yesterday with former Gov. Phil Bredesen campaigning for Amendment 2 to the state constitution. When asked by reporters how he would differ from his predecessor, Slatery said, “I think I will do it differently, which is not to say better. I am a people person. I like to build relationships.” Slatery also said he will spend time talking to legislators. “I want to see all of the sides of an issue,” he explained. Finally, he pledged the office would continue fighting Medicare fraud and protecting consumers. Knoxnews has more.

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Medical-Legal Partnerships, Copyright and More in New TBJ

TBA President Jonathan Steen explains medical-legal partnerships in his September Tennessee Bar Journal column and his hopes for fostering more MLPs in the state. Technology versus the Copyright Act is covered by Nashville lawyer Tim Warnock, while columnists Marlene Eskind Moses and Benjamin Russ write about forced marriage.

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DA Seeking Potential Victims in Alleged Cemetery Scam

The Third Judicial District Attorney General’s office in Rogersville would like to interview anyone who purchased a grave plot or mausoleum vault at the Hawkins County Memorial Gardens (HCMG) — particularly those sold by former owner/operator Vickie Ringley, who is accused of taking money for work that was not performed. The request is part of an ongoing fraud investigation at the cemetery. An investigator with the attorney general’s office will be in Rogersville this week to speak with potential victims. The Times News has more on the story.

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MD Escapes Liability for PA's Conduct

MARCHELLE BUMAN, EXECUTOR OF THE ESTATE OF KENNETH JENKINS v. ALYCIA D. GIBSON, P.A., THOMAS PAUL EVANS, M.D., ANDREW H. LUNDBERG, M.D., AND PARIS SURGICAL SPECIALISTS, PLLC
Court: TN Court of Appeals

Attorneys:

Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee for Plaintiff/Appellant Marchelle Renee Buman, Executor of the Estate of Kenneth Jenkins.

William H. Haltom, Jr., Memphis, Tennessee for the Defendant/Appellee Thomas Paul Evans, M.D.

Judge: SUMMERS

This is a health care liability action involving a physician’s duties when supervising a physician’s assistant. The plaintiff alleged the supervising physician negligently supervised a physician’s assistant which resulted in the eventual amputation of the plaintiff’s leg. The physician moved for summary judgment, contending that he complied with all statutory duties. The plaintiff responded to this motion and simultaneously moved to amend her complaint to allege that the physician was vicariously liable for the negligent actions of the physician’s assistant. The trial court denied the plaintiff’s request to amend her complaint and granted the physician’s motion for summary judgment. Discerning no error, we affirm.

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Western Section Affirms That Notice of Nonsuit Precludes Subsequently Filed Summary Judgment Even Without Entry of Order of Dismissal

DESHON EWAN, ET AL. V. THE HARDISON LAW FIRM, ET AL.
Court: TN Court of Criminal Appeals

Attorneys:

Richard Glassman, Edwin E. Wallis, III, and William Terrell, Memphis, Tennessee, for the appellant, Jonathan T. Martin.

Robert M. Fargarson, Daniel F.B. Peel, Ted S. Angelakis, and Daniel A. Seward, Memphis, Tennessee, for the appellees, DeShon Ewan and Patrick Ewan.

Judge: STAFFORD

Defendant appeals the trial court’s order of voluntary dismissal of Plaintiffs’ complaint. Defendant argues that Plaintiffs were not entitled to a voluntary dismissal because a motion for summary judgment was filed prior to the entry of the order on the nonsuit. We hold that a motion for summary judgment filed after a written notice of nonsuit has been filed does not preclude the plaintiff’s right to take a voluntary dismissal pursuant to Rule 41 of the Tennessee Rules of Civil Procedure. We also conclude that the Defendant is not entitled to sanctions pursuant to Rule 11 of the Tennessee Rules of Civil Procedure. Affirmed and Remanded.

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Mary Carter, Mary Carter — Is That You? Western Section Treats Mary Carter Issue and Remittur in Lengthy Divided Opinion Following Trucking Case

DONRIEL A. BORNE v. CELADON TRUCKING SERVICES, INC.
With Dissenting Opinion
Court: TN Court of Appeals

Attorneys:

Dwight E. Tarwater, Ryan M. Connor, Knoxville, Tennessee; Jim Summers, Kevin W. Washburn, Memphis, Tennessee, for the appellant, Celadon Trucking Services, Inc.

R. Sadler Bailey, Thomas R. Greer, Memphis, Tennessee, for the appellee, Donriel A. Borne

Judge: HIGHERS

Plaintiff was injured in an accident involving three tractor-trailer trucks. Plaintiff, who was driving a tractor-trailer, sued the other truck drivers and the trucking company owners of the vehicles. However, prior to trial, Plaintiff entered into an agreement with one of the trucking companies whereby Plaintiff and the agreeing defendant agreed to cooperate regarding the litigation and to work together to expose the defenses asserted by the non-agreeing defendant. The jury returned an itemized verdict of $3,705,000 for the Plaintiff against the non-agreeing defendant. The trial court denied the non-agreeing defendant’s motion for a new trial, but it suggested a remittitur of $1,605,000, for a total award of $2,100,000. Plaintiff accepted the remittitur under protest and the non-agreeing defendant appealed to this Court. For the following reasons, we affirm in part and we reverse in part. Specifically, we affirm the physical pain and mental anguish and permanent injury awards as reduced by the trial court; we reverse the trial court’s suggested remittitur of the loss of earning capacity award and we instead reinstate the jury verdict of $1,455,000; and we further reduce the loss of enjoyment of life award to $50,000. Thus, we approve a total award to Plaintiff of $2,105,000.

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Why Some Business Owners Want New Justices

Among the legal community there is concern that the campaign to remove three of Tennessee's Supreme Court justices poses a threat to the independence of the judiciary and the predictability businesses expect from the high court, but some in the business community argue the opposite, suggesting that appointees from a Republican governor would create greater certainty, the Nashville Business Journal reports. “For business owners, predictability of legislation that’s been passed is critical. Tort reform is a prime example,” said Bill Lee, CEO of Franklin-based Lee Company, a provider of heating, air-conditioning and other facility services. “It’s business-friendly and Tennessee-citizen friendly legislation. The only danger to that continuity is the [state] Supreme Court overturning it, which may well happen with the existing judges in place.”

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Services Pending for Nashville Attorney

Nashville lawyer Peter Halverstadt, a member of the TBA’s Government Affairs Committee, has died. A graduate of the University of Tennessee College of Law, Halverstadt worked for both the Davidson County district attorney and public defender while in school. Following graduation, he opened a solo civil and criminal defense practice, which he maintained from 1994 to 1998. He later joined the Workers’ Compensation Division of the state Department of Labor and Workforce Development, and most recently was serving as assistant administrator of the division and legislative representative for the office. Halverstadt is a past president of the Guardianship and Trusts Corporation, a non-profit organization that provides financial management services for those unable to make informed decisions on their own behalf. Funeral information is not yet available.

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Who Can Talk With Who in a Med Mal Case? The West Section Clarifies

CHERYL HALL, SURVIVING SPOUSE AND NEXT OF KIN OF MARK LAMAR HALL, JR., DECEASED v. JAMES H. CRENSHAW, M.D., THE JACKSON CLINIC PROFESSIONAL ASSOCIATION, KEITH ADKINS, M.D., S. PATRICK WHALEN, VANDERBILT HEART AND VASCULAR INSTITUTE, et al.
Court: TN Court of Appeals

Attorneys:

Marty R. Phillips and Ashley D. Cleek, Jackson, Tennessee, for Defendant/Appellants James H. Crenshaw, M.D. and The Jackson Clinic Professional Association

Lee J. Chase, Memphis, Tennessee, for Plaintiff/Appellee Cheryl Hall, surviving spouse of Mark Emmett Lamar Hall, Jr.

Judge: KIRBY

This interlocutory appeal involves ex parte communications between defense counsel for a defendant medical entity and non-party physicians who treated the plaintiff’s decedent and are employed by the defendant medical entity. The plaintiff filed this healthcare liability action against the defendant medical entity arising out of treatment of the plaintiff’s decedent. The trial court held that the attorneys for the defendant medical entity are barred under Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006), from conferring ex parte with treating physicians employed by the defendant medical entity who are not named as defendants in the lawsuit. The defendant medical entity was granted permission for this interlocutory appeal. We hold that the defendant medical entity has an independent right to communicate privately with its employees, and this right is not abrogated by the filing of the plaintiff’s healthcare liability lawsuit. Therefore, Alsip does not bar the medical entity’s attorneys from communicating ex parte with physicians employed by the medical entity about the physician employee’s medical treatment of the plaintiff’s decedent. Accordingly, we reverse.

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Eastern Section Affirms DJA of no Coverage for ATV use off Insured Premises

TENNESSEE FARMERS MUTUAL INSURANCE COMPANY v. JUDY PAULINE SIMMONS ET AL.
Court: TN Court of Appeals

Attorneys:

Clifton Corker, Johnson City, Tennessee, for the appellant, Charles Casey.

David R. Shults, Erwin, Tennessee, for the appellee, Tennessee Farmers Mutual Insurance Company.

Judge: FRIERSON

This case presents an issue regarding the proper interpretation of a policy of insurance. The insurance company filed a declaratory judgment action against the defendants, seeking a determination from the trial court regarding whether the insurance policy afforded coverage for an accident involving a four-wheeler vehicle owned by one of the defendants. The accident resulted in the death of a minor, Ryan Casey. The child’s father intervened in the declaratory judgment action. Following a hearing, the trial court concluded that the policy did not provide coverage. The intervenor has appealed. Discerning no error, we affirm.

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Supreme Court Reminds Trial Judges that there is a Duty to Articulate Dispositive Facts when Granting MSJ

MARY C. SMITH v. UHS OF LAKESIDE, INC. ET AL.
Court: TN Supreme Court

Attorneys:

Ashley D. Cleek and Marty R. Phillips, Jackson, Tennessee, for the appellant, UHS of Lakeside, Inc.

Mimi Phillips, Memphis, Tennessee, for the appellee, Mary C. Smith.

Judge: KOCH

This appeal involves the manner in which a trial court granted motions for summary judgment in a proceeding involving the death of a patient whose treatment for viral encephalitis was delayed because he was also being assessed for involuntary commitment to a psychiatric hospital. The widow of the deceased patient filed suit against three health care providers in the Circuit Court for Shelby County. In her original complaint and four subsequent amended complaints, the widow asserted eight causes of action against one or more of the providers. The trial court eventually granted a series of summary judgments dismissing all the claims against one of the providers without explaining the grounds for its decisions and requested counsel for the provider to prepare appropriate orders “establish[ing] the rationale for the [c]ourt’s ruling in quite specific detail.” The provider’s counsel prepared detailed orders adopting all the arguments the provider had made in favor of its summary judgment motions, and the trial court signed these orders over the widow’s objections. The widow appealed, arguing that the trial court had failed to provide reasons for its decisions and that the orders did not accurately reflect what had occurred at the summary judgment hearings. The Court of Appeals vacated the disputed orders because the trial court had failed to state the legal grounds for its decisions as required by Tenn. R. Civ. P. 56.04 and remanded the case to the trial court. Smith v. UHS of Lakeside, Inc., No. W2011-02405- COA-R3-CV, 2013 WL 210250, at *12-13 (Tenn. Ct. App. Jan. 18, 2013). We granted the provider’s application for permission to appeal. We have determined that the record establishes that the contested orders were not the product of the trial court’s independent judgment, and therefore, we hold that the trial court failed to comply with Tenn. R. Civ. P. 56.04.

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Former Grad Student Files $20M Suit Against Vanderbilt

Allegations of sexual harassment, abuse and discrimination have surfaced in a $20 million lawsuit brought by a former graduate student against Vanderbilt University, News Channel 5 reports. The suit comes at a time when Vanderbilt is already being scrutinized for how it handles harassment complaints. The U.S. Department of Education is investigating the university based on six allegations in 2013 that the school mishandled complaints of sexual assault and harassment. Vanderbilt officials declined to comment for the story saying they had not had time to review the lawsuit.

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Plaintiff's Attempt to Extend SOL Via Fraudulent Concealment Fails to Persuade Western Section in Med Mal Case

MYRTLE ROBINSON ET AL. V. BAPTIST MEMORIAL HOSPITAL ET AL.
Court: TN Court of Appeals

Attorneys:

Al H. Thomas and Aaron L. Thomas, Memphis, Tennessee, for the appellants, Myrtle Robinson and Willette Jeffries, as the personal representatives of Fannie Oliver Zinn.

Jennifer S. Harrison and Lauren Dunavin Callins, Memphis, Tennessee, for the appellee, Kenneth A. Okpor, M.D. and Memphis Lung Physicians, P.C.

Judge: STAFFORD

This is a medical negligence/wrongful death case. Following their mother’s death, Appellants’ filed the instant lawsuit against several doctors who provided treatment to their mother. During discovery, Appellants allegedly learned that the Appellee physician had amended his original consultation report to correct a mis-diagnosis of the Decedent’s condition. Appellants were granted leave to amend their complaint to add the Appellee and his medical practice as defendants to the lawsuit. The amended complaint naming the Appellees was filed some five years after the filing of the original lawsuit. Appellees moved for summary judgment on the ground that the statutes of limitations and repose barred Appellants’ case. The trial court granted summary judgment, finding that the Appellants had not shown facts sufficient to establish fraudulent concealment on the part of the Appellee physician so as to toll the applicable one-year statute of limitations and three-year statute of repose under Tennessee Code Annotated Section 29-26-116. The trial court also found that Appellants had failed to exercise due diligence in discovering the alleged fraudulent concealment. Appellants appeal. For the reasons stated herein, we affirm and remand.

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Judge Allows Meningitis Case to Proceed

U.S. District Judge Rya Zobel dismissed a request by Saint Thomas Hospital for summary judgment in a court case focused on the hospital’s role in the deadly meningitis outbreak in 2012. If approved, the request would have ended the case without a trial. Zobel’s decision now means that plaintiffs’ lawyers can investigate defendants’ documents and ask the defendants questions under oath. The Tennessean has more.

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West Section Agrees with Med Mal Plaintiff that Locality Rule was Misapplied--Then Finds Harmless Error

BRITTANY EVANS, By and Through Her Attorney-in-Fact, MARY EVANS, Her Natural Mother v. JENNIFER WILLIAMS, ET AL.

Court: TN Court of Appeals

Attorneys:
Euel W. Kinsey, Detroit, Michigan, for the appellant, Mary Evans.
Dixie W. Cooper and Chris Tardio, Nashville, Tennessee, for the appellees, Jennifer Williams and James L. Williams, II

Judge: FARMER

This is a health care liability action appeal.1 The case was tried before a jury, resulting in a judgment for the defendant physicians. The trial court excluded the testimony of one of the plaintiff’s expert witnesses on the applicable standard of care after finding that he was not qualified under the locality rule. The plaintiff appealed to this Court arguing, among other things, that the trial court erred in its application of the locality rule. We hold that it was error for the trial court to exclude the witness, but find that any error was harmless under the facts of this case. We therefore affirm.

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Mixed Ruling in Suit Against State Farm and Agent Failing to Increase Coverage Over Time

TEVEN BARRICK and JANICE BARRICK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and THOMAS HARRY JONES

Court: TN Court of Appeals

Attorneys:
William D. Leader, Jr., and Paul J. Krog, Nashville, Tennessee, for the appellants, Steven and Janice Barrick.
Brigid M. Carpenter, Nashville, Tennessee, for the appellees, State Farm Mutual Automobile Insurance Company and Thomas Harry Jones.

Judge: ASH

This appeal arises from a trial court’s judgment granting State Farm Mutual Automobile Insurance Company (“State Farm”) and Agent Thomas Harry Jones’ motion for summary judgment and dismissing the Barricks’ action for negligence and violation of the Tennessee Consumer Protection Act. The Barricks held automobile insurance coverage through State Farm, with Thomas Jones as their agent, from 1985 until 2009, and their coverage limits remained the same throughout this period. The Barricks sued, claiming State Farm and Jones had a duty of care to advise the Barricks of their need for increased coverage. The Barricks now appeal, arguing the trial court erred in dismissing their claims. We affirm the trial court’s decision to grant summary judgment regarding the negligence claim. We reverse the trial court’s judgment based on the assumption of duty, which the trial court did not directly address, and the Tennessee Consumer Protection Act claims, since State Farm and Mr. Jones cannot meet their burden under Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008), in these claims. We also reverse the trial court’s summary judgment in favor of State Farm for vicarious liability and failure to supervise in regard to the alleged assumption of duty by the agent.

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New Law Leads Lawsuit Loan Company to Leave State

A new Tennessee law targeting loans to finance the costs of lawsuits is leading an Illinois company to leave the state, WDEF reports. Oasis Legal Finance, one of the country’s largest consumer legal funding services, issues loans to consumers while they wait for settlements in their case. The company announced it is leaving the Tennessee market as the law goes into effect this week.

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Mystery Fall Outside Memphis Airport Results in Approval of Summary Judgment by Western Section

WILLIE CAMPBELL & ULYSSES CAMPBELL, SR. v. MEMPHISSHELBY COUNTY AIRPORT AUTHORITY
Court: TN Court of Appeals

Attorneys:

Gerald S. Green, Memphis, Tennessee, for the appellants, Willie Campbell and Ulysses Campbell, Jr.

James Creswell, Jr., David I. Feigelson, Memphis, Tennessee, for the appellee, Memphis- Shelby County Airport Authority

Judge: HIGHERS

This case involves a plaintiff who fell outside the Memphis International Airport and sued the Airport Authority for negligence. The trial court granted summary judgment to the defendant Airport Authority, finding, based on the undisputed facts, that the plaintiffs and their witnesses are unable to identify what caused the fall. Plaintiffs appeal. We affirm and remand for further proceedings.

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Eastern Section Tackles Odd Property Loss Case Following Property Condemnation

GEORGE HUTSELL v. JEFF KENLEY D/B/A TRADEMARK INVESTMENTS
Court: TN Court of Appeals

Attorneys:

Joshua M. Ball and Kristi M. Davis, Knoxville, Tennessee, for the appellant, Jeff Kenley d/b/a Trademark Investments.

William M. Leibrock, Newport, Tennessee, for the appellee, George Hutsell.

Judge: FRIERSON

This case presents issues regarding the propriety of the trial court’s rulings on evidentiary issues as well as a motion for directed verdict. The plaintiff sustained damages when his personalty, which was stored in a warehouse owned by the defendant, was subjected to water damage after the roof of the warehouse collapsed. The plaintiff filed the instant action seeking compensatory damages for the value of his damaged property. Prior to trial, the trial court ruled that the plaintiff could present evidence that the defendant also filed a claim with respect to his own damaged property stored in the warehouse. The trial court ruled, however, that the defendant would not be allowed to present evidence regarding the profitability of the plaintiff’s business. During the three-day trial, the defendant made a motion for directed verdict that was denied by the trial court. Following deliberations, the jury returned a verdict, finding the defendant to be 100% liable for the plaintiff’s loss and awarding damages to the plaintiff of $325,000. The defendant filed a renewed motion for directed verdict, a motion for new trial, and a motion for remittitur. All of the post-trial motions were denied by the trial court. The defendant appeals. Having determined that the trial court committed reversible error by allowing the plaintiff to present prejudicial evidence regarding the defendant’s own claim for damages, we vacate the jury’s award and remand for a new trial.

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Batting .500 is not Good for Med Mal Plaintiff-Eastern Section Rejects Strict Complaisance with Pre-Suit Notice but Affirms Dismissal Based on Statute of Limitations

CLAYTON ARDEN, SURVIVING SPOUSE OF DEBORAH ARDEN, DECEASED v. KENYA I. KOZAWA, M.D. ET AL.
Court: TN Court of Appeals

Attorneys:

Donna Keene Holt and G. Turner Howard, III, Knoxville, Tennessee, for the appellant, Clayton Arden.

Heidi A. Barcus, Knoxville, Tennessee, for the appellees, Kenya I. Kozawa, M.D., and Ken Kozawa, M.D., P.C.

Gary G. Spangler and Carrie S. O’Rear, Knoxville, Tennessee, for the appellee, Sweetwater Hospital Association.

Judge: FRIERSON

The plaintiff, as surviving spouse, appeals the trial court’s dismissal of his health care liability action against the defendant doctor who treated the plaintiff’s wife prior to her death and the hospital wherein the treatment occurred. The trial court granted the defendants’ motions for summary judgment based upon the plaintiff’s failure to strictly comply with the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121 (Supp. 2013). We reverse the trial court’s ruling that the plaintiff had to strictly comply with the provisions of the notice requirement and conclude that the plaintiff substantially complied with said requirement. We affirm, however, the trial court’s ruling that the plaintiff could not rely upon the statutory 120-day extension of the statute of limitations due to his failure to properly serve the notice. We therefore affirm the trial court’s dismissal of the plaintiff’s claims as barred by the statute of limitations.

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Plaintiff is Not "Upon" Car for UM Purposes, Per Western Section

JERRY BEECH v. JOHN DOE
Court: TN Court of Appeals

Attorneys:

L. “Rocky” McElhaney, L. Russell Belk, Jr.,, Nashville, Tennessee, for the appellant, Jerry Beech

Alan M. Sowell, Nashville, Tennessee, for the appellee, Great West Casualty Company

Judge: HIGHERS

The plaintiff in this case brought suit to recover uninsured motorist benefits. The insurance company moved for summary judgment contending that the plaintiff was not entitled to coverage because he was not “upon” the insured vehicle so as to “occupy” it. The trial court granted summary judgment in favor of the insurance company and we affirm.

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Eastern Section Affirms Yet Another Bradley County Verdict Against Insurer Under TCPA

CLEVELAND CUSTOM STONE, ET. AL. v. ACUITY MUTUAL INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

Stuart F. James, Chattanooga, Tennessee, for the appellant, Acuity Mutual Insurance Company.

Robert G. Norred, Jr. and Matthew G. Coleman, Cleveland, Tennessee, for the appellees, Cleveland Custom Stone, Inc. and Steve’s Stone Works.

Judge: MCCLARTY

This case concerns Acuity’s refusal to pay insurance proceeds to Plaintiffs, who filed suit, alleging negligence, breach of contract, bad faith refusal to pay, and violations of the Tennessee Consumer Protection Act, codified at Tennessee Code Annotated section 47-18- 101, et. seq. The case proceeded to jury trial. The jury awarded Plaintiff compensatory damages and found that Acuity’s failure to pay was in violation of the Tennessee Consumer Protection Act. The jury declined to award punitive damages. Likewise, the trial court affirmed the verdict but did not treble the damages. Acuity appeals. We affirm.

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Sealed Container Doctrine Proves Fatal in Cause of Action Against Tainted Oyster Middlemen

AARON BISSINGER, ET AL. v. NEW COUNTRY BUFFET, ET AL.
Court: TN Court of Appeals

Attorneys:
Kathryn Elaine Barnett, Christopher Eric Coleman, Jonathan Lewis Williams, Kenneth Sherman Byrd, Nashville, Tennessee, for the appellant, Aaron Bissinger, Executor of the Estate of Randall Bissinger, Deceased.
Warren Maxey Smith, Harold Richard Donnelly, Jack Paul Brewer, Judith Elizabeth Lojek, Nashville, Tennessee; David Jackson Sneed, Franklin, Tennessee for the appellees, New Country Buffet, Shao Chai Chen, individually and d/b/a New Country Buffet, Gulf Pride Seafood of Franklin, LLC, Leavins Seafood, Inc., Bon Secour Fisheries, Inc.
Judge: COTTRELL

A man who suffered a blood infection after eating raw summer oysters at a Nashville restaurant filed suit against the restaurant, claiming that the oysters were contaminated because they were kept at an improper temperature. The restaurant owner answered, and among other things he named three companies in the supply chain that furnished the oysters to the defendant restaurant as possibly liable under the doctrine of comparative fault. The plaintiff subsequently died, and his executor was substituted as plaintiff. The executor filed an amended complaint that added the suppliers as defendants, and included claims against all the defendants of negligence, negligence per se, product liability, and breach of warranty. All the parties filed motions for summary judgment. The trial court denied the defendant restaurant’s motion for summary judgment, but it granted summary judgment to the defendant suppliers on all issues except failure to warn. After studying the voluminous record in this case, we affirm all the trial court’s rulings on the summary motions against the restaurant. We affirm the trial court’s grant of summary judgment to the suppliers, and reverse the denial of summary judgment to them for failure to warn.

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But What of Benson v Herbst? Western Section Reject's Hospital's Attempt to Confess GS Judgment

SHONTEL S. ROSS, Individually and on behalf of Terry Wilson, III (a minor) v. DEIDRA L. GRANDBERRY, M.D., ET AL.
Court: TN Court of Appeals

Attorneys:

W. Bryan Smith, Memphis, Tennessee, for the appellant, Shontel S. Ross

Buckner Wellford, Shannon L. Wiley, Memphis, Tennessee, for the appellee, Methodist Healthcare-Memphis Hospitals, Inc.

Judge: HIGHERS

Plaintiff filed a healthcare liability action in the general sessions court. At a docket call, defendant Methodist appeared and tendered a confession for the full $25,000 jurisdictional limit of the general sessions court. Plaintiff immediately sought to non-suit her claims against Methodist. The general sessions court denied Methodist’s tendered confession and it entered an order non-suiting Methodist. Plaintiff then refiled her suit against Methodist in the circuit court and Methodist moved for summary judgment based upon its tendered confession of judgment in the general sessions court. The circuit court granted summary judgment in favor of Methodist. We reverse the circuit court’s grant of summary judgment and we remand for further proceedings.

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Summary Judgment Reversed by Eastern Section: "Whole lot of spoliatin' goin' on!"

GRIFFITH SERVICES DRILLING, LLC, ET AL. v. ARROW GAS & OIL, INC.
Court: TN Court of Appeals

Attorneys:

Christopher P. Capps, Morrestown, Tennessee, and Max D. Picklesimer, Nicholasville, Kentucky for the appellants, Griffith Services Drilling, LLC and Lexington Insurance Company.

W. Bryan Brooks and Alisha M. Toll, Nashville, Tennessee, for the appellee, Arrow Gas & Oil, Inc.

Judge: SWINEY

Griffith Services Drilling, LLC (“Griffith”) and Lexington Insurance Company, Griffith’s insurance company, sued Arrow Gas & Oil, Inc. (“Arrow”) for property damage caused by a fire that occurred while Arrow was refueling a drilling rig operated by Griffith in Anderson County, Tennessee (“the Drilling Site”). Arrow answered the complaint and counterclaimed for breach of contract based upon Griffith’s refusal to pay for the fuel delivered by Arrow on the day of the fire. Arrow also filed a motion to dismiss for spoliation, which the Circuit Court for Anderson County (“the Trial Court”) granted dismissing Griffith’s claims against Arrow. Arrow then filed a motion for summary judgment on its counterclaim, which the Trial Court granted in part. Griffith appeals to this Court raising issues regarding the dismissal of their claims and the grant of summary judgment to Arrow. We find and hold that both Griffith and Arrow were guilty of spoliation, and, therefore, that dismissal of Griffith’s claims was not an appropriate sanction. We vacate the dismissal of Griffith’s claims against Arrow and reinstate them. Because the Trial Court granted Arrow summary judgment based upon its decision on the issue of spoliation, and we have vacated the Trial Court’s decision on the issue of spoliation, we also vacate the grant of summary judgment to Arrow.

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