News

Widower of Meningitis Victim Sues St. Thomas

Widower Wayne Reed filed a lawsuit against the Saint Thomas Outpatient Neurosurgery Center and its owners after his wife died in last year’s meningitis outbreak from tainted injections she received at the clinic. The Nashville Ledger reports that the lawsuit also challenges caps on medical malpractice awards in a new state law, and seeks $12.5 million in compulsory damages. Reed is disabled and the suit claims his wife was his primary caregiver.

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GTLA Judgment Against City of Memphis Affirmed When Mower Threw Debris into Plaintiff's Eye

SANDRA BELLANTI, ET AL. v. CITY OF MEMPHIS, TENNESSEE, A MUNICIPAL CORPORATION, ET AL.
Court: TN Court of Appeals

Attorneys:

Michael Fletcher, Memphis, Tennessee, for the appellant, City of Memphis, Tennessee.

Thomas E. Hansom and Leigh Hansom Thomas, Memphis, Tennessee, for the appellees, Sandra Bellanti and Albert Bellanti.

Judge: FARMER

Plaintiff motorist was seriously injured when a padlock was hurled from beneath a lawn mower operated by a City of Memphis Parks Services employee and through the window of her vehicle, striking her in the head and resulting in the loss of her left eye. The motorist and her husband filed an action for damages against the City, which was adjudicated pursuant to the Governmental Tort Liability Act. The trial court entered judgment in favor of Plaintiffs, and the City appeals. We affirm.

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Eastern Section Allows GTLA Judgment Against EMS Crew to Stand

FRED V. WILSON, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANNA R. WILSON, DECEASED v. MONROE COUNTY, TENNESSEE ET AL.
Court: TN Court of Appeals

Attorneys:

Jonathan Swann Taylor, Knoxville, Tennessee, for the appellant, Monroe County, Tennessee.

Jimmy W. Bilbo and Brent J. McIntosh, Cleveland, Tennessee, for the appellee, Fred V. Wilson, individually and as personal representative of the Estate of Anna R. Wilson, deceased.

Judge: SUSANO

Fred V. Wilson and his wife, Anna R. Wilson, were the initial plaintiffs. They filed suit against Monroe County and the City of Sweetwater alleging that the amputation of Mrs. Wilson’s left leg was proximately caused by the negligence of those responding to an emergency call to her home. Mrs. Wilson died before trial and the case proceeded with her husband as the sole plaintiff, individually and in a representative capacity. At a bench trial, the court found that the injury to Mrs. Wilson’s left foot occurred during the ambulance ride from the Wilsons’ home to the hospital emergency room. It further found that the injury, which did not heal, necessitated the amputation of her leg. The court entered judgment against Monroe County. The claims against Sweetwater were dismissed. Monroe County appeals. The plaintiff, by way of a separate issue, challenges the sufficiency of the court’s award of damages. We affirm.

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Allowing a Patient to Fall from a Table is Medical Malpractice Rather Than Ordinary Negligence

SUZANNE RENEE WILLIAMS-ALI AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RUBY LEE COFER WILLIAMS v. MOUNTAIN STATES HEALTH ALLIANCE
Court: TN Court of Appeals

Attorneys:

Robert Payne Cave, Jr., Kingsport, Tennessee, for the appellant, Suzanne Renee Williams- Ali.

Frank H. Anderson, Jr., Johnson City, Tennessee, for the appellee, Mountain States Health Alliance.

Judge: MCCLARTY

This is a case alleging negligence by defendant, Mountain States Health Alliance, which resulted in injury to a patient, Ruby Williams. Ms. Williams fell off a table while she was undergoing myocardial perfusion imaging, also known as a nuclear stress test. Mountain States Health Alliance asserted that Ms. Williams’s complaint sounded in medical malpractice instead of ordinary negligence, and asked for summary judgment because Ms. Williams had not complied with the filing requirements of the medical malpractice statute. The trial court granted summary judgment, finding that the case involved a medical malpractice claim rather than an ordinary negligence claim. Ms. Williams’s Estate appeals. We affirm the trial court’s ruling.

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Waiver Defeats Claims Against "Motorcycle Safety" School

RUTH M. MAXWELL v. MOTORCYCLE SAFETY FOUNDATION, INC. ET AL.
Court: TN Court of Appeals

Attorneys:

R. Steven Waldron, Murfreesboro, Tennessee, for the appellant, Ruth M. Maxwell.

Joel P. Surber, Frank M. Gallina, Nashville, Tennessee, for the appellees, Mid Tenn Motorcycle Education Center, and Michael Upchurch.

Judge: CLEMENT

Plaintiff filed this action against the instructor of a motorcycle safety course and his employer for injuries she sustained when she drove off of the designated course site and collided with a parked pickup truck. The trial court found that the plaintiff’s negligence claims were barred because she signed a valid written waiver/release from liability document prior to starting the course. The trial court also dismissed the plaintiff’s gross negligence claims, finding there was nothing in the record which would allow a reasonable juror to conclude the defendant exercised a conscious neglect of duty or a callous indifference to consequences. We affirm.

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Haslam to Unveil Sweeping Workers’ Comp Changes

A new, independent state agency would oversee all aspects of Tennessee’s workers’ compensation system, including appeals now heard by the courts, under proposed legislation being drafted by Gov. Bill Haslam’s administration. A Haslam spokesman declined to discuss specifics and said details would be released after a final bill is filed, possibly this week. But a 67-page working draft obtained by The Tennessean indicates Haslam is considering major changes to the 94-year-old system. The proposals appear similar to those recommended by a Virginia consultant who was hired to review the state’s system last year.

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Judge Freezes NECC Assets, Appoints Trustee

U.S. Judge Henry Boroff has given the go-ahead to creditors of the New England Compounding Center to seek a freeze on the assets of company owners up to $21 million. Boroff also approved a request to have an independent trustee oversee the liquidation of the firm. NECC, based in Framingham, Mass., has been blamed by state and federal regulators for a fungal meningitis outbreak that has killed 44 people, 14 of them treated in Tennessee. The Tennessean has the story.

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Split Western Section Affirms Dismissal of "Dirty Campaign" Defamation Case v. Congressional Candidate

AEGIS SCIENCES CORPORATION v. LOU ANN ZELENIK, ET AL.
With dissenting opinion
Court: TN Court of Appeals

Attorneys:

Joel T. Galanter and Tricia T. Olson, Nashville, Tennessee, for the appellant, Aegis Sciences Corporation.

Richard E. Spicer and Brent S. Usery, Nashville, Tennessee, and Robert E. Lee Davies, Franklin, Tennessee, for the appellees, Lou Ann Zelenik, Lou Ann for Congress and Jay Heine.

Judge: FARMER

The trial court awarded summary judgment to Defendants in this action for defamation, civil conspiracy, and violation of the Tennessee Consumer Protection Act. Plaintiff appeals the award of summary judgment on its claims for defamation and civil conspiracy. We affirm.

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Stafford Dissenting Opinion

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No Work Comp Subrogation for Future Meds, Rules a 4-1 Supreme Court Majority

JOSHUA COOPER ET AL. v. LOGISTICS INSIGHT CORP. ET AL.
With dissenting opinion
Court: TN Supreme Court

Attorneys:

Scott Carey and Mark Baugh, Nashville, Tennessee, for the appellants, ProLogistics, Inc., Logistics Insight Corp., and Joe Murray.

Daniel C. Todd, Nashville, Tennessee, for the appellees, MasterStaff, Inc. and Discover RE.

Judge: HOLDER

An employee was injured at work as a result of the actions of a third-party tortfeasor. The employee suffered permanent injuries that required future medical care. The injured employee filed a claim for workers’ compensation benefits and filed a lawsuit against the third-party tortfeasor. The employer intervened in the lawsuit pursuant to Tennessee Code Annotated section 50-6-112 (2008) to protect its subrogation lien against any recovery from the third-party tortfeasor. The employee settled the lawsuit with the third-party tortfeasor and voluntarily dismissed the case. The employer requested that the case be set for trial, claiming that it was entitled to a lien against the settlement proceeds for the cost of future medical benefits that may be paid on behalf of the injured employee. We hold that the employer’s subrogation lien provided by Tennessee Code Annotated section 50-6-112 does not include the cost of future medical benefits that may be provided to an injured employee.

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Koch Dissenting Opinion

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Alltel Saves IIED Case from Dismissal by Western Section in Store Surveillance Case

SARAH WHITE v. TARGET CORPORATION
Court: TN Court of Appeals

Attorneys:

Gregory D. Cotton, Collierville, Tennessee, for the Plaintiff/Appellant Sarah White

Betty Ann Milligan, Memphis, Tennessee, for the Defendant/Appellee Target Corporation

Judge: KIRBY

This appeal involves claims for intentional infliction of emotional distress, invasion of privacy, and misappropriation of image. The plaintiff, a customer of the defendant store, brought clothing into the store’s dressing room to try it on. While in a state of undress in the dressing room, the customer noticed in the reflection of her dressing-room mirror a globe on the store ceiling that appeared to contain a surveillance camera. Store employees initially told the customer that the globe contained a camera, but a store manager later told the customer that the ceiling globe did not contain a camera. Eventually, the plaintiff customer filed this lawsuit against the defendant store, seeking damages for, inter alia, intentional infliction of emotional distress, invasion of privacy, and misappropriation of image. The trial court granted summary judgment in favor of the defendant store. The plaintiff now appeals. We reverse, finding that the standard for summary judgment under Hannan v. Alltel Publishing has not been met in this case.

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Out of Court's Declarant's Statement at MVA Scene Expressing Opinion on Fault Allowed as Excited Utterance by Eastern Section

EDNA H. IRWIN, v. CHRISTOPHER MARTIN ANDERSON
Court: TN Court of Appeals

Attorneys:

Dail R. Cantrell, Clinton, Tennessee, for the appellant, Edna H. Irwin.

George H. Buxton, Oak Ridge, Tennessee, for the appellee, Christopher Martin Anderson.

Judge: FRANKS

Plaintiff received serious injuries in an automobile accident, when she turned left in front of the oncoming vehicle operated by defendant. The suit resulted in a jury trial wherein the jury returned a verdict for defendant, which was approved by the Trial Judge. On appeal, we affirm the Trial Judge's Judgment.

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Western Section Rules that Exacerbation May Not Necessarily Mean Causal Relation of Medical Charges

NORMAN HILL v. DANNY TAPIA, JR., ET AL.
Court: TN Court of Appeals

Attorneys:

James B. Johnson and Lauren Paxton Roberts, Nashville, Tennessee, for the appellant, Norman Hill.

C. Benton Patton, Nashville, Tennessee, for the appellees, Danny Tapia, Jr., and Tabet Enterprises.

David S. Zinn and Raney B. Cronin, Brentwood, Tennessee, for the appellee, Estate of Norma Aguila.

Judge: STAFFORD

This is a personal injury case resulting from an automobile accident. After the accident, Plaintiff/Appellant learned that he suffered from a degenerative disc disease, which required surgery. Appellant sued the two drivers involved in the accident for damages, which included his medical expenses for the disc surgery . At trial, Appellant’s surgeon’s deposition testimony was read to the jury, in which the surgeon testified that while the accident “aggravated” Appellant’s existing condition, the treatment he received was not “causally related” to the accident. Appellant offered another expert’s testimony, however, that did relate the treatment to the accident. At the close of proof, Appellant moved for a directed verdict on the issue of causation for his medical expenses, arguing that because the surgeon’s testimony was contradictory, it was subject to the cancellation rule. The trial court denied the motion and sent the issue to the jury. The jury returned a verdict for Appellant, but in an amount that did not include the medical expenses he incurred to treat the degenerative disc disease. Appellant was also awarded discretionary costs. After a careful review of the record, we affirm. 

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Broken Families Make for Complicated Wrongful Death Claims, per the Middle Section

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

Attorneys:

James S. Higgins, Nashville, Tennessee, for the Appellants, James Denzmore.

Dana C. Holloway and David A. Chapman, Knoxville, Tennessee, for the Appellees, United Parcel Service, Inc. and Jason Sanders.

H. Anthony Duncan, Nashville, Tennessee, for the Appellee, Latony Baugh.

Judge: DINKINS

Shortly after the mother of four children was killed in an accident, her husband instituted an action to recover damages for her death; the father of the children moved to intervene in the action and for the court to hold a hearing on whether the husband had abandoned the mother, thereby waiving his right as surviving spouse to participate in the wrongful death action. The trial court did not hold a hearing; rather, it held that the husband was the proper party to pursue the action, allowed the Guardian of the children to represent the interest of the children in the action, and dismissed Father’s petition. The surviving spouse, Guardian and tortfeasor subsequently petitioned the court for approval of a settlement of the wrongful death claim; the court granted the petition. Father appeals, contending that the court erred in failing to hold a hearing on the issue of whether the husband was estranged from the mother, in approving the settlement, and in placing the settlement documents under seal. We remand the case for a hearing on whether the husband waived his right as surviving spouse to participate in the wrongful death action and reverse the court’s placement of the settlement documents under seal; in all other respects the judgment of the trial court is affirmed.

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Middle Section Reversed Award of Sanction in Med Mal Case for Alleged Abuse of Certificate of Good Faith

THERESA A. KERBY v. MELINDA J. HAWS, MD, ET AL.
Court: TN Court of Appeals

Attorneys:

Al H. Thomas, Memphis, Tennessee, for the appellant, Theresa A. Kerby.

Dixie W. Cooper, Kim J. Gruetzmacher, Nashville, Tennessee, for the appellees, Melinda J. Haws, MD, and The Plastic Surgery Center of Nashville, PLLC.

Judge: COTTRELL

A woman who suffered a series of persistent infections after surgery filed a malpractice complaint against the defendant surgeon. Her complaint alleged that the infections were cause by a small metal object that the defendant had negligently left in her body during the surgery. The plaintiff attached to her complaint the statutorily required certificate of good faith, which certified that she had consulted with an expert, who provided a signed statement confirming that he believed, on the basis of the medical records, that there was a good faith basis to maintain the action. See Tenn. Code Ann. § 29-26-122. After the object was discovered to be a surgical clip of a type that was designed to be retained by the patient’s body, the defendant filed a motion for summary judgment, which the plaintiff did not oppose. The defendant surgeon subsequently filed a motion for sanctions against the plaintiff under Tenn. Code Ann. § 29-26-122 (d)(3), which gives the court the authority to punish violations related to the certificate of good faith. The trial court granted the motion, and awarded the defendant doctor over $22,000 in attorney fees. We reverse.

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If Appeals Might be in Your Future, Watch for Waiver of Evidentiary Issues...

ROSE A. CHAPMAN, ET AL. v. WELLMONT HOLSTON VALLEY MEDICAL CENTER
Court: TN Court of Appeals

Attorneys:

Wendal D. Jackson, Bristol, Tennessee, for the appellants, Rose A. Chapman and Alfred C. Chapman.

Russell W. Adkins, Kingsport, Tennessee, for the appellee, Wellmont Holston Valley Medical Center, a member of Wellmont Health System.

Judge: SWINEY

Rose A. Chapman and Alfred C. Chapman (“Plaintiffs”) sued Wellmont Holston Valley Medical Center (“the Hospital”) regarding a fall Ms. Chapman suffered while a patient at the Hospital. The Trial Court entered judgment upon the jury’s verdict finding and holding that the Hospital was not at fault. Plaintiffs appeal raising one issue regarding whether the Trial Court erred in granting the Hospital’s motion in limine to exclude testimony about an apology and offer to pay bills allegedly made by one of the Hospital’s nurses. We find this issue has been waived, and we affirm.

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Court Rejects Medicare Challenge, Considers Class Action Limits

The U.S. Supreme Court this week turned away a challenge from former House Majority Leader Dick Armey and other Social Security recipients who say they have the right to reject Medicare in favor of continuing health coverage from private insurers. The justices did not comment in letting the federal appeals court ruling stand, reports The Memphis Daily News. Also this week, the court considered what limitations could be placed on class-action lawsuits. The issue is whether plaintiff lawyers reduce estimates of the damages they seek or use procedural loopholes to keep cases in state court, where according to Justice Antonin Scalia, “generous juries” and “very favorable judges” can be common. The justices appeared receptive to the argument that lawyers artificially lower the amount of money at stake to keep suits in state courts, reports the Washington Post.

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Comptroller Announces New Online Fraud Tool

Tennesseans can now report suspected cases of fraud, waste and abuse of public funds at www.comptroller.tn.gov. The new service from the Office of the Comptroller compliments a toll-free telephone hotline that has been in existence since 1983 and has logged 17,000 calls. The Chattanoogan reports that the online tool was created in response to a new requirement passed by the General Assembly.

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Pharmacy Blames Cleaning Company for Meningitis Outbreak

The Boston Globe reports that the New England Compounding Center -- the pharmacy linked to the nationwide meningitis outbreak -- is attempting to get its cleaning contractor to take responsibility for problems in its factory. The firm, UniFirst, acknowledges that a subsidiary helped clean portions of the pharmacy’s cleanroom facility, but a spokesperson called the claims “unfounded and without merit.”

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Lawyer Seeks to Sue Connecticut Over School Shooting

A Connecticut attorney is requesting permission to sue the state over the Sandy Hook school shooting, saying his six-year-old client was left with emotional and psychological trauma because authorities failed to make the school safe. The attorney, Irving Pinsky, is seeking $100 million in damages on behalf of his client, a survivor of the shooting identified only as Jill Doe. The girl was at the elementary school during the attack and heard everything including gunfire, screaming and conversations over the intercom, Pinsky said. WCYB Channel 5 Bristol has this CNN report.

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Judge Dismisses Suit Against NFS

A federal judge dismissed an 18-month old class action lawsuit against Erwin-based Nuclear Fuel Services (NFS) and other defendants, the Johnson City Press reports. Filed in June 2011, the suit alleged injuries, property damage and emotional distress suffered by 19 plaintiffs caused by “repeated releases of hazardous and radioactive substances” by NFS.

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Toyota Proposes $1.1 Billion Settlement

Toyota Motor Corp. has agreed to pay $1.1 billon to settle a class-action lawsuit over claims that millions of its vehicles from 1998 to 2010 accelerate unintentionally. The settlement will compensate Toyota customers for any financial losses related to possible safety defects in their vehicles. Toyota admitted no fault in the proposed settlement. The Nashville Business Journal has more.

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So Who's the Dipstick Now? Eastern Section Affirms $120K Verdict for Employee in Retaliatory Discharge Case

KEVIN MICHAEL JORDAN v. A.C. ENTERPRISES, INC., A/K/A DIPSTICK, INC.
Court: TN Court of Appeals

Attorneys:

Bradley E. Griffith, Johnson City, Tennessee, for the appellant, A.C. Enterprises, Inc., a/k/a Dipstick, Inc.

Sandra Lee Stanbery-Foster, Greeneville, Tennessee, for the appellee, Kevin Michael Jordan.

Judge: FRANKS

Plaintiff's action for retaliatory discharge resulted in a jury verdict in favor of plaintiff and an award of $120,000.00. Defendant appealed. We affirm the Judgment of the Trial Court upholding the jury verdict.

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Tolling Provisions of State of Limitations Do Not Apply in GTLA Cases, Eastern Section Rules

BETTY LOU LAWING v. GREENE COUNTY EMS, et al.
Court: TN Court of Appeals

Attorneys:

Jeffrey M. Ward, Greeneville, Tennessee, for the appellants, Greene County/Greeneville EMS and Greene County, Tennessee.

R. Wayne Culbertson, Kingsport, Tennessee, and Wayne Ritchie, Knoxville, Tennessee, for the appellee Betty Lou Lawing.

Arthur P. Brock and William J. Rieder, Chattanooga, Tennessee, for Chattanooga-Hamilton County Hospital Authority.

Judge: FRANKS

In this action the defendants filed a Motion for Summary Judgment on the grounds the statute of limitation had run on plaintiff's cause of action. The Trial Court overruled the Motion on the grounds that the tolling provisions in Tenn. Code Ann. § 29-20-201(c) was applicable to GTLA actions and granted permission to appeal pursuant to Tenn. R. App. P. 9. On appeal, we hold that the tolling provision does not apply because the statute did not expressly extend it to GTLA actions.

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Opinion: Tort Law Likely to Get Day in Court Soon

Knoxville lawyer Deborah Stevens, president and managing shareholder of Lewis, King, Krieg & Waldrop, writes in Knoxnews.com that the Tennessee Civil Justice Act of 2011 is likely headed for a courtroom soon as challenges to the law are winding their way through the system. She points to one specific case pending in the Middle District of Tennessee, which could expedite review of the law. In addition to asserting that the law is unconstitutional, the case asks the federal judge to “certify” the question to the Tennessee Supreme Court. If the judge were to do so, the case would be "fast-tracked" to the court.

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Company Wants Meningitis Cases Moved to Federal Court

Lawyers for the New England Compounding Center -- blamed for a deadly nationwide outbreak of fungal meningitis -- are moving forward with a strategy to consolidate lawsuits in a Boston federal court. Records show that 37 cases originally filed in state and county courts already have been transferred to federal courts across the country at the request of company lawyers. That includes six suits filed in Nashville circuit court. Three Nashville legal experts talk about the process in this Tennessean story.

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