News

Judge Lifts Blackout on Gatlinburg Wildfire Records

Government records on the handling of the Gatlinburg wildfire can now be released to the public by order of Judge Jeff Rader, the Knoxville News Sentinel reports. Records were kept under wraps for weeks, even after the ruling, which was prompted by the state attorney general’s request for clarification on what records the Tennessee Emergency Management Agency could release about the deadly blaze. The only details the judge barred from release are the names of the two teenage boys accused of starting the fire.
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AG Slatery Announces Investigation into Opioid Crisis

After a lawsuit was filed in Sullivan County against drug makers earlier this week, Tennessee Attorney General Herbert Slatery announced he is leading a coalition of Attorneys General from across the country in comprehensive investigations into the roots of the opioid epidemic, the Nashville Post reports. The announcement did not name any specific drug makers or targets, but the group will examine the role “parties involved in the manufacture and distribution of opioids may have played in creating or prolonging this problem.”
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Lawsuit Against Opioid Drugmakers Includes Challenge to Tort Reform

The Nashville law firm Branstetter, Stranch and Jennings, which filed a lawsuit on behalf of three Tennessee prosecutors Tuesday seeking to hold three drugmakers financially accountable for the state's opioid epidemic, is using the litigation to challenge the constitutionality of tort reform state lawmakers passed in 2011. That legislation caps the amount of "non-economic" damages such as pain and suffering and punitive damages to a total of $1.25 million in civil lawsuits against businesses, manufacturers, doctors, medical providers and the like. Knoxnews.com reports.

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Shelby County May Sue Pharma Companies for Opioid Crisis

Shelby County attorneys are exploring a suit against big pharmaceutical companies to recover costs from fighting the county’s opioid epidemic, The Commercial Appeal reports. The attorneys could have a recommendation sometime this month. The states of Ohio and Mississippi have already filed similar lawsuits, and Tennessee House Speaker Beth Harwell, R-Nashville, recently asked state Attorney General Herbert Slatery to join them
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Harwell Asks State AG to Join Suit Against Drug Companies

Tennessee House Speaker Beth Harwell, R-Nashville, has asked Attorney General Herbert Slatery to join a lawsuit filed by the Ohio attorney general against drug companies over the opioid crisis, the Nashville Post reports. Ohio Attorney General Mike DeWine sued five drug makers Wednesday, accusing them of intentionally misleading patients about the dangers of painkillers. The companies sued were Purdue Pharma, Endo Health Solutions, Teva Pharmaceutical Industries and its subsidiary Cephalon, Johnson and Johnson and its subsidiary Janssen Pharmaceuticals, and Allergan. Mississippi is currently the only other state that has joined the suit. 
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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at http://www.tba.org/submit-an-article, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at http://www.cletn.com/.

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Sentenced to Debt: When You Can't Pay Your Fines

In the current issue of the Journal, Nashville lawyer Vidhi S. Joshi looks into what happens within the criminal justice system in Tennessee when a person cannot pay their fines. Read the feature “Sentenced to Debt.” Columns this month include "Redefining Relocation," by Marlene Moses and Benjamin Russ; John Day writing about "Mothers, Minors and Medical Bills"; and Bill Haltom following the saga of where the bodies of President and Mrs. James K. Polk will land for eternity.

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Woodmore Bus Driver’s Verdict to Come from Out of Town Jurors

Prosecutors agreed today that a panel of out-of-town jurors will hear the case of the bus driver charged with vehicular homicide in the Woodmore bus crash, the Times Free Press reports. Defense attorney Amanda Dunn said that it would be very difficult for a Hamilton County jury to try 24-year-old Johnthony Walker fairly, and noted that the defense would prefer jurors from a metropolitan area similar to Chattanooga.
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TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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Call For Submissions — Law Practice Pointers

One of the benefits of being a TBA Section Member is having access to information from experienced practitioners to assist in your day-to-day practice. The sharing of this information amongst colleagues is one of the best traits of the profession. It is also a way of helping each other to maneuver the evolving legal market and strengthen your legal practice.

How can you help your fellow Section Members?  If you have some Law Practice Pointers you would like to share with your fellow section members, write an article between 300-500 words and submit it to the Section Coordinator for review and approval. These Law Practice Pointers can be related to a court opinion, piece of legislation, or current event or industry trend that affects the practice of law as it relates to the specific Section. The main requirement is to make sure the article gives lawyers practical tips, based on experience, to include in their day-to-day practice.

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Law Practice Pointers - The Case of Zink v. Rural/Metro of Tennessee L.P.

On Tuesday, May 2, the Court of Appeals at Knoxville released an opinion in the case of Jonathan Fitzrandolph Zink v. Rural/Metro of Tennessee, L.P. et al. In the original action that involved an injury allegedly caused by an emergency medical technician in the course of rendering medical aid, the trial court determined that the plaintiff’s claims were subject to the Tennessee Health Care Liability Act (“THCLA”) and dismissed the claims with prejudice based on the plaintiff’s failure to file a certificate of good faith pursuant to Tennessee Code Annotated § 29-26-122.

The Zink court concluded that the trial court improperly interpreted the facts as asserted in the Complaint in a manner most favorable to the moving party (as opposed to the non-moving party). Specifically, the trial court found that the defendant EMT struck the Plaintiff in order to restrain him while providing medical treatment which would necessarily require expert testimony. The appellate court found that a secondary and just as plausible inference in favor of the non-– moving Plaintiff could also have been reached – namely, that the Plaintiff was properly restrained and that the EMT was using excessive force/assaulting the Plaintiff in what could loosely be described as intentional behavior that would meet the "common knowledge" exception.

This opinion also provided a good overview of the common knowledge exception case law in Tennessee. It is important for the reader to note that in the context of a health care liability action, TCA 29-26-115 requires expert proof not only as to legal duty/standard of care, but also as to medical causation and damages. In other words, the prudent plaintiff's lawyer must make sure that when asserting the "common knowledge exception" on the issue of legal duty/standard of care, there still may be a somewhat less obvious need for expert proof on medical causation which may also independently require a Certificate of Good Faith as it is a separate legal issue.

In short, in the context of a health care liability claim, if a Plaintiff elects to file the lawsuit without attaching a Certificate of Good Faith, then the Plaintiff may arguably be wedded for the entirety of the lawsuit to the concept of an expert-less trial on any issue pertaining to duty, breach, and medical causation per T.C.A 29-26-115.

  • Practice Pointer 1: Tread carefully when claiming "it’s obvious" in order to avoid the purview of T.C.A. 29-26-115 as this tact invites a Motion to Dismiss from the Defense.
  • Practice Pointer 2: Alternatively, if indeed the method of the injury is clearly obvious, it should not be very difficult to find a willing expert thereby avoiding a Motion to Dismiss and potential appellate issues.
  • Practice Pointer 3: Remember that the common knowledge exception may apply to duty/standard of care, but you still may need an expert on medical causation which would still require submission of a Certificate of Good Faith per T.C.A. 29-26-115.
  • Practice Pointer 4: On any claim involving any person or any entity that renders health care of any sort, make sure and re-read the definition of "health care provider" and "health care service" found at T.C.A. 29-26-101(a)(2) and (b) as these two definitions were broadly expanded in the 2012 legislation.

Parke Morris currently serves as Vice Chair of the TBA Tort and Insurance Section.

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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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