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Columnists Hold High Standard for 'Journal' Writing

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

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Nashville Lawyers Launch New Practice

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

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Nashville Orthopedist Loses Challenge to Hospital Privilege Revocation

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

Attorneys:

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

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

Judge: DINKINS

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

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

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

Attorneys:

Gerald Michael Schmidt, Franklin, Tennessee, Pro se.

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

Judge: STAFFORD

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

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'Open and Obvious' Summary Judgement Reversed by Eastern Section

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

Attorneys:

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

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

Judge: SWINEY

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

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

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

Attorneys:

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

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

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

Judge: ARMSTRONG

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

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Light Impact Photos Properly Admitted into Evidence, per Western Section in Affirming a Verdict Under Claimed Medical Charges

GREGORY D. ALLEN v. DEBBIE D. ALBEA
Court: TN Court of Appeals

Attorneys:

David A. Siegel, Memphis, Tennessee, for the appellant, Gregory D. Allen.

Jay G. Bush, Jackson, Tennessee, for the appellee, Debbie D. Albea.

Judge: GOLDIN

This appeal arises from a jury verdict in favor of Plaintiff in the amount of $11,513.78. On appeal, Plaintiff raises several evidentiary issues, contends that juror misconduct requires a new trial, and asserts that the verdict is not supported by the evidence. We affirm.

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Mold Spores at Old Courthouse Source of Suit

Knox County and its Public Building Authority have asked a judge to toss a lawsuit filed by Knox County Clerk Foster Arnett Jr., WBIR reports. The suit alleges that “toxic mold spores” in the downtown Old Courthouse are causing Arnett's health to deteriorate and substantially interfering with his staff’s ability to work. Lawyers for the county argue that Arnett lacks standing to sue. WBIR has the news.

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Western Section Reverses Rule 12 Dismissal Under GTLA Following Suicide of Unstable Inmate

ANTHONY HOLDER, ET AL. V. SHELBY COUNTY, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Robert L. J. Spence, Jr., and Bryan M. Meredith, Memphis, Tennessee, for the appellant, Anthony Holder, Individually and as next of kin of Decardis Holder, deceased.

Jean E. Markowitz and David E. McKinney, Memphis, Tennessee, for the appellee, Shelby County, Tennessee.

Judge: STAFFORD

Appellant father filed a complaint for damages against the defendant county, alleging that the negligence of a county employee caused the death of his son. The county filed a motion to dismiss the complaint based upon sovereign immunity. The trial court granted the motion to dismiss, concluding that the county employee‘s actions constituted intentional torts for which immunity was not removed, and that the employee‘s actions were outside the scope of his employment. We reverse and remand.

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Fairy Berry Very Merry After Western Section Affirms High GTLA Judgment

FAIRY BERRY v. CITY OF MEMPHIS
Court: TN Court of Appeals

Attorneys:

Roane Waring, III, Memphis, Tennessee, for the appellant, City of Memphis.

James M. Gulley and Daniel F.B. Peel, Memphis, Tennessee, for the appellee, Fairy Berry.

Judge: STAFFORD

This appeal arises from the trial court’s award of damages stemming from an automobile accident. In 2003, plaintiff was injured when her vehicle was struck by a Memphis Police Department officer’s car in an intersection. After a non-jury trial, the trial court awarded plaintiff damages for pain and suffering and loss of enjoyment of life. The City of Memphis appeals these damages, arguing (1) plaintiff’s expert non-treating physician was not qualified to opine as to emergency room treatment or costs; (2) plaintiff should not recover for her failure to mitigate her damages by exacerbating her injury; and (3) plaintiff’s testimony wherein she explains her ongoing pain did not warrant the amount of damages she was awarded. Discerning no error, we affirm.

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Court Extends Filing Period for Negligence Claims

The U.S. Supreme Court today made it easier for people to sue the federal government for negligence, the Daily Times reports. The justices, voting 5-4, ruled in two cases that the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline. The paper suggests that the new authority could affect military veterans with claims of medical malpractice.

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Nashville Lawyers Form New Firm

Four Nashville lawyers have joined together to form the law firm of Surber, Asher, Surber & Moushon. The firm will focus on personal injury, business and construction law, professional liability and insurance defense, and probate and conservatorship law. Joel Surber, Garrett Asher and Matt Moushon were formerly partners at Parker, Lawrence, Cantrell & Smith. Jennifer Surber formerly served as counsel to the Davidson County Probate Court and as Special Probate Master for the Seventh Circuit Court.

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TALS Seeks Presenters for Equal Justice Conference

The Tennessee Alliance for Legal Services (TALS) is seeking presenters to speak at this year’s Equal Justice University set for Sept. 2-4 at the Embassy Suites Hotel in Murfreesboro. The conference, cosponsored by the TBA, is the annual gathering for Tennessee’s Access to Justice community. Speakers are sought to provide substantive law courses, ethics and professionalism training, and technology and communications skills. Send proposals by May 15 to TALS’ Policy & Training Director Anne Fox.

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Western Section Rejects Discovery Rule in Finding Homeowner's Claim to be Untimely

JAY DANIEL, ET AL. v. ALLSTATE INSURANCE COMPANY
Court: TN Court of Appeals

Attorneys:

Kevin A. Snider, Germantown, Tennessee, for the appellants, Jay Daniel and Elaine Daniel.

Keely Nicole Wilson and Brandon Wayne Reedy, Jackson, Tennessee, for the appellee, Allstate Insuranc Company.

Judge: GIBSON

This is an appeal from the trial court’s grant of summary judgment in an action on a homeowner’s insurance policy that contained a one-year contractual limitations period on actions arising under the policy. The home of the insured parties was damaged by a fire on December 15, 2011. The insured parties submitted a claim with the insurer pursuant to their homeowner’s insurance policy. The insurer submitted an estimate and tendered a settlement check to the insured parties on April 2, 2012. Over a year later, on October 3, 2013, the insured parties filed suit alleging they were owed an additional $75,000 for personal use and construction improvements on a new home. The trial court granted summary judgment in favor of the insurer, finding that the insured parties’ claims were barred by the one-year contractual limitations period. After reviewing the record, we find no error in the trial court’s decision and affirm its grant of summary judgment.

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Western Section Applies Percentages of Fault Before Damage Cap and Other Failed Defense Attempts to Avoid Sizable Verdict for Memphis Auto Suit

ROOKS MONYPENY, ET AL. V. CHAMROEUN KHEIV
Court: TN Court of Appeals

Attorneys:

Robert L. Moore, Memphis, Tennessee, for the appellant, State Farm Mutual Insurance Company.

Thomas R. Greer and R. Sadler Bailey, Memphis, Tennessee, for the appellees, Brooks Monypeny and David Monypeny; Donald Capparella and Tyler Chance Yarbro, Nashville, Tennessee, for the appellees, Robert Edwin Sadowski and John Russell Sadowski.

Judge: ARMSTRONG

This is an appeal from a judgment entered on a jury verdict. The case arises from a motor vehicle accident. Appellant State Farm defended the case as the original plaintiffs’ uninsured motorist carrier. The original plaintiffs subsequently died, one as a direct result of injuries sustained in the accident, the other some two years after the accident. The plaintiffs’ children were substituted as plaintiffs/appellees. State Farm appeals the judgment on the jury verdict on numerous grounds, including: (1) denial of its motion for directed verdict; (2) scope of cross-examination; (3) denial of its motion for mistrial based upon inappropriate closing argument; (4) exclusion of notations on medical records; (5) various acts of alleged wrongdoing on the part of Appellees’ attorneys; (6) jury instructions; (7) admission of medical bills for original plaintiff’s long term assisted living expenses; (8) excessive verdict; (9) incorrect application of statutory cap on non-economic damages; (10) denial of credit for medical and death payments made by State Farm under the insurance policy; and (11) award of discretionary costs. Because there is material evidence to support the jury’s verdict, and because the trial court did not abuse its discretion, we affirm and remand.

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Middle Section Rules that 'Willful Withdrawal' is Required for Abandoning Spouse to Lose Rights in Wrongful Death Action

LATONY BAUGH, ET AL. V. UNITED PARCEL SERVICE, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

James S. Higgins and Richard D. Piliponis, Nashville, Tennessee, for the appellants, Jermeka D., et al.

Blair Durham, Nashville, Tennessee, for the appellee, Latony Baugh.

C. Christopher Brown and David A. Chapman, Nashville, Tennessee, for the appellees, United Parcel Service, Inc. and Jason Sanders.

Judge: BENNETT

In this wrongful death appeal, the main issue is whether, under Tenn. Code Ann. § 20-5- 106(c)(1), a surviving spouse must have abandoned the decedent for a period of two years to have waived his or her right to institute an action or collect proceeds under that section. We have concluded that the two-year period in Tenn. Code Ann. § 20-5-106(c)(1) applies only to “willful withdrawal.”

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Insurance Defense Firm Expands to Nashville

McAngus Goudelock & Courie, a regional insurance defense firm, has expanded into Nashville, making it the firm’s 12th office in the Southeast. MGC welcomes four new attorneys to the firm’s newest office: Paul Brewer, Joey Johnsen, Chuck Mangelsdorf and Stephen Morton.

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Opt-Out Workers Comp Bill On Hold

A crusade to allow Tennessee employers to opt out of mandatory workers’ compensation insurance seems a first-year flop, but will likely be back next year, Knoxnews reports. Sponsored by Rep. Jeremy Durham, R-Franklin, SB0721/HB0997 sets minimum payout provisions — $300,000 in most circumstances for medical coverage — and sets a limit on lawsuit payouts. The Tennessee Bar Association and a number of insurance companies oppose the proposal.

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Western Section Rules That Claims Against the Additional Parties Were Time Barred Because the Amended Complaint Adding These Parties Was Not Filed Within Ninety Days of the Original Answer Asserting Comparative Fault Against Non-Parties

CLIFFORD SWEARENGEN v. DMC-MEMPHIS, INC., ET AL.
Court: TN Court of Appeals

Attorneys:

Ronald Krelstein, Germantown, Tennessee, and Steven Markowitz, Memphis, Tennessee, for the appellant, Clifford Swearengen.

Jonathan Martin and Joshua Hillis, Memphis, Tennessee, for the appellee, DMC-Memphis, Inc. d/b/a Delta Medical Center.

Joseph M. Clark and Samantha E. Bennett, Memphis, Tennessee, for the appellees, Prism Medical Group, PLC, Michael Johnson, M.D., and Jeffrey Stricklin, NP.

Judge: ARMSTRONG

This is an appeal from the trial court?s grant of a motion to dismiss Appellant?s medical malpractice action1 against defendants named in Appellant?s amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant?s claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand.

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Middle Section Affirms Dismissal of Lost Consortium Claim Due to Pre-Suit Notice Deficiencies in Med Mal Case

JOSEPH IGOU, ET AL. V. VANDERBILT UNIVERSITY
Court: TN Court of Appeals

Attorneys:

Amy J. Farrar, Murfreesboro, Tennessee, and Matthew C. Hardin, Nashville, Tennessee, for the appellant, Ginger Igou.

Steven E. Anderson, Sara F. Reynolds, and Sean C. Wlodarczyk, Nashville, Tennessee, for the appellee, Vanderbilt University.

Judge: MCBRAYER

This appeal asks whether a wife‘s loss of consortium claim, brought pursuant to her husband‘s underlying health care liability action, is itself a health care liability action subject to the pre-suit notice provision of the Tennessee Health Care Liability Act. The trial court granted the hospital‘s motion to dismiss, finding that the wife‘s claim was a health care liability action under the Act and that she had failed to comply with the pre-suit notice provision. As an alternative ground for dismissal, the court also found that the wife had failed to file suit within the statute of limitation. We vacate the trial court‘s order of dismissal with prejudice and remand.

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Middle Section Affirms GTLA Fault Apportionment After Fall at County Fair

SARAH KEE, ET AL. V. CITY OF JACKSON, TENNESSEE
Court: TN Court of Appeals

Attorneys:

John Dean Burleson and Matthew Robert Courtner, Jackson, Tennessee, for the appellant, City of Jackson, Tennessee.

David Wayne Camp, Jackson, Tennessee, for the appellees, Sarah Kee and Larry Kee.

Judge: DINKINS

Action under the Tennessee Governmental Tort Liability Act against the City of Jackson to recover for injuries sustained in a fall suffered by one plaintiff while she and her husband were walking across a bridge from a parking lot to the fairgrounds operated by the City. Following a bench trial, the court held that the bridge was in a defective and dangerous condition and that the City was not immune from suit; the court determined that the City was 60% negligent and the plaintiff 40% negligent. The court assessed damages at $62,817.35 for plaintiff wife and $8,400.00 for plaintiff husband; applying the comparative fault percentage, the court awarded plaintiff wife $37,690.41 and plaintiff husband $5,040.00. We modify the award of damages to plaintiffs; in all other respects we affirm the judgment of the trial court.

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Middle Section Enforces Mid-Trial Settlement of Property Damage Suit

NANCY HART DIEHL HARVEY, EXECUTRIX OF THE ESTATE OF W. JOSEPH DIEHL, JR., ET AL. V. PHILLIPS TURNER, JR.
Court: TN Court of Appeals

Attorneys:

Darrell G. Townsend, Nashville, Tennessee, for the appellant, Phillips Turner, Jr.

T. Michael O’Mara, Cookeville, Tennessee and Robb S. Harvey, Nashville, Tennessee, for the appellees, Nancy Hart Diehl Harvey, Executrix of the Estate of W. Joseph Diehl, Jr., and Patricia Simpson.

Judge: BENNETT

This is a lawsuit brought for damage to property. After partial summary judgment was denied to the defendant, and after the trial court ruled that the defendant’s request for a jury trial was waived, the parties proceeded to a bench trial. During a hiatus after three days of trial, the parties settled the case and announced the essential terms of the settlement to the court in open court. The parties failed to agree to a written settlement document, and the plaintiffs asked the trial court to enforce the settlement. The trial court found that the settlement was enforceable. The defendant appealed. We affirm.

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Western Section Enforces Reduced Attorneys Fees Contracted During Mediation of Tort Suit

JANICE BUNCH v. TIFFANY JONES
Court: TN Court of Appeals

Attorneys:

William R. Bruce, Memphis, Tennessee, for the appellant, Janice Bunch.

Jeremy G. Alpert, Memphis, Tennessee, for the appellees, Oscar C. Carr, III and Glankler Brown, PLLC.

Judge: ARMSTRONG

This is an appeal from an award of attorney?s fees following settlement of the underlying lawsuit. Appellees, law firm and attorney, represented Appellant in a lawsuit arising from an automobile accident. After protracted mediation, Appellee orally agreed to lower its contingency fee from 33 1/3% to 10% in consideration of Appellant?s agreement to settle her case against the tort defendants for $52,000. Appellant agreed to accept this offer and signed the settlement agreement at the conclusion of the mediation. Thereafter, Appellant allegedly refused to sign the releases drafted by the tort defendants. The trial court, upon the tort defendants? motion, enforced the settlement agreement reached by the parties at mediation. Appellees assert that Appellant?s refusal to sign the releases drafted by the tort defendants constitutes a breach of the modified fee agreement and now seek to enforce an attorney?s fee lien for the full one-third of the recovery. The trial court granted Appellees? motion to enforce its lien for the full amount, and Appellant appeals. We conclude that the terms of the modified fee agreement between Appellees and Appellant only required Appellant to settle her case with the tort defendants for $52,000, which she did. Accordingly, the trial court erred in not enforcing the modified fee agreement. Reversed in part, affirmed in part, and remanded.

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State Law Limiting Workers’ Comp to Undocumented Ruled Unconstitutional

Davidson County Chancellor Russell Perkins has ruled that a state law limiting the amount of workers’ compensation benefits that undocumented workers can receive is unconstitutional, the Associated Press reports. The decision stems from the case of a Guatemalan man whose left arm was severely injured when he fell and was run over by a lawnmower. Perkins found that the U.S. Constitution gives the federal government, not the state, the authority to set immigration policy, The Memphis Daily News reports.

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Healthcare Liability, Workers' Comp Bills See Action

The Senate sponsor of legislation to establish an administrative system for addressing healthcare liability and errors announced today that the bill (SB507 by Sen. Jack Johnson and HB546 by Rep. Glen Casada) will not receive any further consideration this year, but will be the subject of an ad hoc committee study this summer. Also today, the Senate version of a bill to create a system for allowing employers to create a private workers' compensation plan bypassing the state system (SB721 by Sen. Mark Green and HB 997 by Rep. Jeremy Durham), cleared its first hurdle in the Senate Commerce and Labor Committee by a 6-0-2 vote, with one member absent.

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