News

Tort and Insurance Online Series

Topics in this 1-Click series include the Claims Commission Act and the Tennessee Governmental Tort Liability Act. Learn about millennial jurors and gain perspective from both sides on the West and Dedmon cases.

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Gatlinburg Wildfire Insurance Claims at $909 Million

The Tennessee Department of Commerce and Insurance (TDCI) has released the latest details on insurance claims related to the Gatlinburg wildfires, showing incurred losses of $909,801,523, the Knoxville News Sentinel reports. The total is down from its highest listing in February, which was $943 million. Of that number, $474 million are from residential property and $384 million are from commercial ones.
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Coaches Cleared of Abuse Sue Parent Who Accused Them

Two coaches cleared of abuse complaints have filed a $6 million defamation lawsuit against the parent who accused them, the Knoxville News Sentinel reports. Hardin Valley High School head coach Joe Michalski and assistant Zach Luther filed suit against Sheri Super, who they claim lied about injuries to a player and an “emotionally and physically abusive” practice drill in a letter she sent to school administrators.
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Vanderbilt Reaches Settlement Over Medicare Fraud Allegations

Vanderbilt University Medical Center will pay $6.5 million to settle Medicare fraud allegations, the Tennessean reports. The deal comes after claims from three former VUMC physicians that surgery scheduling practices from 2003 to 2011 violated Medicare billing regulations. A portion of the settlement money will go to state agencies and the whistleblowers, but under the False Claims Act, the majority of the settlement will go to Medicare. 

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HRC Medical Must Pay $18 Million for Consumer Protection Violations

A judge has ordered that HRC Medical Centers and the company’s principles must pay consumers who purchased HRC’s bio-identical hormone replacement therapy (BHRT), according to Tennessee Attorney General Herbert Slatery’s office. Judge Don Ash granted the state’s motion for partial summary judgement in its suit against the company, which must now pay $18,141,750 for violations of the Tennessee Consumer Protection Act. Additionally, the Court issued a permanent injunction barring the Defendants from engaging in conduct the Court has found unlawful.
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Dozens of Sick, Dying Coal Ash Cleanup Workers Sue Company That Handled Spill

More than 50 sickened workers and the survivors of deceased workers are suing Jacobs Engineering, the California company that handled the cleanup of the 2008 Kingston Coal Ash Spill on behalf of the Tennessee Valley Authority. The Knoxville News Sentinel reports that the complainants allege workers weren’t told to wear protective clothing or masks despite the highly toxic conditions they were working in and warnings from the Environmental Protection Agency. At least 17 workers from the site have died since 2008. The case is set for trial in 2018.
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Accident Investigation CLE

Get a working knowledge of the types and causes of accidents during this July 26 CLE webcast. Discussion includes the proper process of documenting vehicle accidents, construction accidents, environmental accidents and others. Find out more and register here.

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D.C. Pastors Sue Coca-Cola Over Health Concerns

Two Washington, D.C.-based pastors have filed suit against Coca-Cola and the American Beverage Association (ABA), claiming soda makers knowingly deceived customers about the health risks of their products, The Washington Post reports. The complaint, which was filed last week, alleges that Coke and the ABA ran an intentional campaign to confuse consumers about the causes of obesity. “We’re losing more people to sweets than to the streets,” said Pastor Delman Coates, one of the complainants.
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Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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Disability Rights TN Conducting Survey on Needs and Resources

Disability Rights Tennessee is conducting a survey to gather information from people with disabilities, family members, service providers and professionals to help shape the work of the organization. Attorneys working in the disability rights field are asked to contribute their thoughts. Others are asked to share the survey with friends and colleagues in the disability rights field, so an accurate picture of the needs of those with disabilities can be compiled. The deadline to respond is July 15. For more information contact DRT at (800) 342-1660 or gethelp@disabilityrightstn.org.

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Middle Tennessee U.S. Attorney Secures $2.7 Million False Claims Settlement

The acting U.S. attorney for the Middle District of Tennessee reached a settlement with Innovative Therapies and its parent company, Cardinal Health, in a $2.7 million False Claims Act case, the Nashville Post reports. The company was accused by a whistleblower of marketing and billing a product as “durable medical equipment,” even though the product did not meet standards for a durable device. The whistleblower in the case will receive $488,700 under the terms of the False Claims Act.
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Crash Victims’ Families File Suits Against Guardrail Companies

The families of three Tennesseans killed in a crash last year filed lawsuits today alleging negligence by guardrail companies, the Knoxville News Sentinel reports. Two of the wrongful death suits were filed in Cumberland County Circuit Court and a third was filed in Hamilton County against Valmont Industries, Lindsay Corporation and their subsidiaries. They are accused of failing to design a safe product and failure to disclose “known problems and defects.” The suits also allege improper installation by Cumberland Guardrail.
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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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