News

Med Mal Case Gets to Jury — But Defense Verdict Affirmed by COA

ELIZABETH A. POPICK v. VANDERBILT UNIVERSITY

Court: TN Court of Appeals

Attorneys:
Jon E. Jones and Patrick Shea Callahan, Cookeville, Tennessee, for the appellant, Elizabeth A. Popick.
Steven E. Anderson and Sara F. Reynolds, Nashville, Tennessee, for the appellee, Vanderbilt University.

Judge: MCBRAYER

The plaintiff filed this health care liability action against the defendant hospital after the death of her husband, alleging that his death was the result of negligent medical treatment. The jury returned a verdict in favor of the defendant. On appeal, the plaintiff argues that the trial court committed reversible error in: (1) excluding certain email messages as hearsay; (2) overruling her objections to defense counsel's cross-examination of a witness; (3) failing to instruct the jury to ignore statements made by defense counsel in closing argument; (4) refusing a request for a special jury instruction; and (5) declining to change the special verdict form. Discerning no reversible error, we affirm the decision of the trial court.

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Claims Commissioner's Dismissal of Suit for Pavement Irregularities is Upheld by COA

DENISE ELLIOTT V. STATE OF TENNESSEE

Court: TN Court of Appeals

Attorneys:
Henry S. Queener, Nashville, Tennessee, for the appellant, Denise L. Elliott.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Dawn Jordan, Senior Deputy Attorney General, for the appellee, State of Tennessee.

Judge: CLEMENT

This appeal arises from a claim against the State by the driver of a motor vehicle who seeks damages resulting from a single-car accident. Claimant contends the accident was the proximate result of the State’s negligence in the design, construction, and maintenance of the roadway where the accident occurred for which the State is liable pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(I). Following a trial, the Claims Commissioner found that Claimant failed to prove the State was negligent in the design, construction, or maintenance of the roadway; therefore, Claimant failed to prove a claim for negligence under Tenn. Code Ann. § 9-8-307(a)(1)(I). Finding the evidence does not preponderate against the Claims Commission’s findings, we affirm.

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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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TOA Affirms Dismissal of Suit After Assault by IHOP Employee Off Premises

HENRY FLETCHER v. CFRA, LLC
Court: TN Court of Appeals

Attorneys:

David J. Weissman and Benjamin K. Raybin, Nashville, Tennessee, for the appellant, Henry Fletcher.

Mark S. LeVan and Christopher M. Jones, Nashville, Tennessee, and Charles T. Hvass, Minneapolis, Minnesota, for the appellee, CFRA, LLC.

Judge: SWINEY

Henry Fletcher (“Plaintiff”) sued CFRA, LLC (“CFRA”), which owns and operates an International House of Pancakes (“IHOP”) restaurant in Antioch, Tennessee, alleging that CFRA was liable for the actions of its IHOP employee, Kenneth W. Hale, Jr. (“Hale”), in connection with an assault upon Plaintiff committed by Hale. The Circuit Court for Davidson County (“the Trial Court”) granted summary judgment to CFRA. Plaintiff appeals the grant of summary judgment. We find and hold that CFRA made a properly supported motion for summary judgment, that Plaintiff failed to show that there are genuine disputed issues of material fact that would preclude summary judgment, and that CFRA was entitled to summary judgment as a matter of law. We, therefore, affirm the grant of summary judgment to CFRA.

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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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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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Life Insurance Is a Contract Issue, Not Probate Issue

ESTATE OF CHARLES ALLEN LANE ET AL. v. AMANDA DAVENPORT COURTEAUX
Court: TN Court of Appeals

Attorneys:

Wm. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Amanda Davenport Courteaux.

Jay B. Jackson, Murfreesboro, Tennessee, for the appellees, Estate of Charles Allen Lane, David Kevin Sharp, Charles Ezra Lane, and William Conner Lane.

Judge: BENNETT

Decedent had a life insurance policy in which she named her husband and sister as beneficiaries. Upon her death, Decedent’s husband filed suit to recover the proceeds Decedent left to her sister and place them in trust for the benefit of Decedent’s son, who was a minor at the time. The trial court concluded the son was entitled to the proceeds based on the theory of promissory estoppel. The sister appealed, and we reverse the trial court’s judgment. An insurance policy is a contract between the insured and the insurance company, and Decedent was entitled to designate whoever she desired as a beneficiary of her policy. Evidence of Decedent’s intent with respect to the proceeds does not deprive the named beneficiary of her right to the funds.

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Trucking Company's Sneaky Release Attempt is Thwarted by COA

GARY VOIGT v. MICHAEL A. PLATE ET AL.
Court: TN Court of Appeals

Attorneys:

Danny R. Ellis, Chattanooga, Tennessee, for the appellant, Gary Voigt.

K. Stephen Powers and Travis B. Holly, Chattanooga, Tennessee, for the appellee, J.B. Hunt Transport, Inc.

Judge: FRIERSON

In this personal injury and contract reformation case, the plaintiff filed a complaint, seeking damages resulting from a motor vehicle collision and reformation of a release of all claims signed by the plaintiff. As grounds for reformation, the plaintiff claimed that an agent of the defendant company fraudulently induced the plaintiff to sign the release. The defendant filed a motion for summary judgment, asserting that the plaintiff could not establish an essential element of his action because the plaintiff did not act promptly in seeking reformation of the release. The trial court granted summary judgment in favor of the defendant upon finding, as a matter of law, that the plaintiff’s action was not prompt after discovery of the alleged fraud and that the plaintiff therefore was not entitled to reformation of the release. The plaintiff timely appealed. Having determined that the question of whether the plaintiff’s actions were sufficiently prompt in seeking the equitable relief of reformation presents a genuine issue of material fact, we reverse the trial court’s grant of summary judgment in favor of the defendant.

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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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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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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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COA Rules Suit for Negligent Deprivation of Statutory Rights Fails for Want of a Right to a Private Cause of Action

DANNY HALE V. STATE OF TENNESSEE
Court: TN Court of Appeals

Attorneys:

Michael E. Richardson, Chattanooga, Tennessee, for the appellant, Danny Hale.

Herbert H. Slatery, III, Attorney General and Reporter; Andree S. Blumstein, Solicitor General; and Eric A. Fuller, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

Judge: MCCLARTY

This appeal involves a suit filed in the Tennessee Claims Commission against the State of Tennessee for the wrongful death of Tammy Hale. The claimant, Ms. Hale’s father, titled his cause of action as one for “negligent care, custody, and control of persons” pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E). The claimant alleged that the State was responsible for the actions of an inmate whose release was not conditioned upon participation in community supervision for life as required by section 39-13-524. The State sought dismissal, alleging that the claim was really one for “negligent deprivation of statutory rights” based upon the failure to adhere to section 39-13-524, which does not confer a private right of action. Following a hearing, the Claims Commission, William O. Shults, Commissioner, agreed and dismissed the claim. The claimant appeals. We affirm.

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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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Have Comments About the Business Court Docket Project? We Want to Hear Them

Dear TBA Tort & Insurance Law Section Member,

The Tennessee Bar Association has recently been asked by the AOC to weigh in on the effectiveness and/or success of the Business Court Docket Pilot Project currently operating in Davidson County Chancery Court, Part III. For those of you not familiar with the project, here's a detailed overview that appeared in the Tennessee Bar Journal by Supreme Court Justice Sharon Lee and Chancery Court staff attorney Justin Seamon.

In order to properly evaluate the project, we would very much appreciate hearing your thoughts and opinions concerning the Business Court. Your feedback will be used as part of the Tennessee Bar Association’s overall review of the Business Court’s success and perception among members.

If you are interested in sharing comments, please submit them by Jan. 10 to TBA Section Coordinator Christy Gibson, with "Business Court" in the subject line.

I personally thank you in advance for your assistance in this endeavor.

Sincerely,

Kreis White
TBA Tort & Insurance Law Section Chair

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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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