White and 'Citizens United' lawyer discuss judicial elections

National Public Radio's OnPoint explores the relationship of "big money" to justice in this look at judicial selection and election, in light of a study that says spending on state Supreme Court elections has more than doubled in the last 10 years. Is money threatening to undermine the rule of law? One of Host Tom Ashbrook's guests is former Tennessee Supreme Court Justice and current University of Tennessee College of Law Professor Penny White. Also on the show is James Bopp Jr., attorney with the James Madison Center for Free Speech, and known as the legal mind behind the Citizens United case.

Listen to the show from NPR

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

00 - TN Supreme Court
03 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

WAYNE MORAN v. FULTON BELLOWS & COMPONENTS, INC.

Court: TWCA

Attorneys:

T. Scott Jones and Chris W. Beavers, Knoxville, Tennessee, for the appellant, Wayne Moran.

Ricky L. Apperson, Knoxville, Tennessee, for the appellee, Fulton Bellows & Components, Inc.

Judge: KURTZ

Employee alleged that he sustained hearing loss as a result of his work for employer. He filed a civil action 94 days after an impasse was reached at a benefit review conference. The trial court granted employer's motion to dismiss on the basis of the 90-day statute of limitations, Tenn. Code Ann. section 50-6-203(g)(1) (2008). On appeal, employee contends that the report of the benefit review conference was never "filed with the commissioner" of Labor and Workforce Development as required by the statute and that the 90-day limitation period therefore never began to run. We affirm the judgment.

http://www.tba2.org/tba_files/TSC_WCP/2010/moranw_0801710.pdf


CAROLYNE PARK-PEGRAM ET AL., v. FINDLEY & PEGRAM COMPANY, INC.

Court: TWCA

Attorneys:

Sean Antone Hunt, Memphis, Tennessee, for the appellant, Findley & Pegram Company, Inc.

Bruce D. Brooke, Memphis, Tennessee, for the appellee, Carolyne Park-Pegram.

W. Ray Jamieson, Bartlett, Tennessee, for the appellee, The Regional Medical Center at Memphis.

Judge: BUTLER

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Emory Pegram ("Decedent") was the President of Findley & Pegram Company, Inc. ("Employer"). He died as a result of a motorcycle accident. Approximately ten minutes before the accident, he had made a bank deposit for the business. He thereafter drove past his office and home. Employer had no active projects in the direction Decedent was traveling at the time of the accident. There was, however, a potential future project in that direction. Decedent had not informed any co-workers or employees where he was going or for what purpose. He was carrying business documents, a business cell phone, and a tool. The trial court concluded that he was a traveling employee at the time of the accident, and awarded workers' compensation death benefits to his widow. The trial court also awarded post-judgment interest for the five-month period between the announcement of the court's decision and entry of the judgment. Employer has appealed. We conclude that Decedent was not a traveling employee, but was acting in the course of his employment at the time of the accident. We further conclude that the workers' compensation statute does not authorize an award of interest prior to entry of the judgment. The judgment is modified to remove the award of post-judgment interest. It is otherwise affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2010/park-pegramc_081710.pdf


OTIS PATRICK v. SAFELITE GLASS CORPORATION, ET AL.

Court: TWCA

Attorneys:

Stephen F. Libby, Memphis, Tennessee, for the appellant, Otis Patrick.

Lori D. Parrish and Jason R. Hollingsworth, Memphis, Tennessee, for the appellees, Safelite Glass Corporation and Zurich North America.

Judge: WILLIAMS

The employee alleged that he had sustained a compensable injury to his back. His employer denied the claim due to discrepancies between his account of the event that caused the injury and certain medical records. The trial court found that the employee had failed to sustain his burden of proof, and dismissed the complaint. The employee appealed, contending that the evidence preponderates against that finding. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2010/patricko_081710.pdf


LORRAINE DEUEL, Individually and as Administratrix of the ESTATE OF CLYDE DEUEL, deceased v. THE SURGICAL CLINIC, PLLC and RICHARD J. GEER, M.D.

Court: TCA

Attorneys:

H. Anthony Duncan, Nashville, Tennessee, for the appellant, Lorraine Deuel

C. J. Gideon, Jr. and Kimberly G. Silvus, Nashville, Tennessee, for the appellees, The Surgical Clinic, PLLC and Richard J. Geer, M.D.

Judge: KIRBY

This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff's husband. Sponges were used in the patient's abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff's husband subsequently died of causes unrelated to the retained sponge. The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability. The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses' sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim. The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff's motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician's expert testimony that he was not negligent by relying on the nurses' sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician's negligence remains for trial.

http://www.tba2.org/tba_files/TCA/2010/deuell_081710.pdf


STATE OF TENNESSEE v. DAVID LYNN HARRISON

Court: TCCA

Attorneys:

Donna Robinson Miller (on appeal); Mark E. Stephens, District Public Defender, and Robert C. Edwards and Greg Burlison, Assistant Public Defenders (at trial), for the appellant, David Lynn Harrison.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Phillip H. Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, David Lynn Harrison, appeals from his conviction by a jury in the Knox County Criminal Court for theft of property valued at $1,000 or more, a Class D felony, for which he was sentenced as a Range I, standard offender to three years in the Department of Correction. The Defendant contends (1) that the evidence is insufficient to support his conviction, (2) that the trial court erred when it failed to instruct the jury on the lesser included offenses of unauthorized use of a vehicle and attempted theft, and (3) that the trial court committed plain error when it failed to instruct the jury on the defenses of duress and necessity. Because the trial court erred in failing to instruct the jury on the lesser included offense of unauthorized use of a vehicle, we reverse the judgment of the trial court and remand the case for a new trial.

http://www.tba2.org/tba_files/TCCA/2010/harrisond_081710.pdf


TODAY'S NEWS

Legal News
Election 2010
Upcoming
TBA Member Services

Legal News
Judge's comments may be ethcial violation
Hamilton County Judge Barry Steelman has called into question General Sessions Judge David Bales' comments in a murder case, saying Bales may have committed a violation of the canon of ethics. Bales, in the March 16 bond hearing for Montez Davis and again in early August when Steelman lowered Davis' bond, intimated the suspect was a gang member and said gangs "need to be stomped out like cockroaches."
The Times-News has the story
Judge Witcher honored
Macon County General Sessions and Juvenile Court Judge Ken Witcher was presented the McCain-Abernathy Memorial Award during the 27th Annual Joint Conference on Juvenile Justice earlier this month in Chattanooga. The award is presented annually by the Tennessee Council of Juvenile and Family Court Judges to a Tennessee judge with juvenile court jurisdiction who has demonstrated outstanding service dedicated to the improvement of juvenile justice in Tennessee for the benefit of the children and families served by the state's juvenile courts.
The Macon County Times has more
'Prince of Peace' memoir recalls civil rights-era South
Memphis lawyer Prince Chambliss Jr. recalls his youth surrounded by social and civil rights turmoil in his memoir, Prince of Peace: A Memoir of an African American Attorney Who Came of Age in Birmingham During the Civil Rights Movement. Showing the reader glimpses of the segregated South, Chambliss recounts his early childhood in Birmingham during the civil rights movement. "In the book, I remind people of how little time has passed and yet how many changes have occurred," Chambliss said in an interview.
The book is reviewed by the Memphis Daily News
Lawyer is first Miss Haiti in 22 years
The first Miss Haiti in 22 years is not the typical contestant you'd find in a beauty pageant. Sarodj Bertin is a young lawyer who speaks four languages. She will compete in the Miss Universe pageant, Aug. 23, in Las Vegas. Bertin's mother, lawyer and opposition leader Mireille Durocher Bertin, was gunned down when her daughter was 9 after announcing the creation of a political party that would compete with that of President Jean-Bertrand Aristide in the upcoming elections. Sarodf has said she considered her mother her idol, studied law and worked for the International Alliance for Haiti's Recovery.
Metromix Nashville carried this AP story
Sheriff's office trains to reduce arrests of mentally ill
The Hamilton County Sheriff's Office has hired a manager for a training program aimed at reducing arrests among the mentally ill. Monica Middlebrooks will coordinate Crisis Intervention Training for officers, which gives them tips on how to help "talk down" a mentally ill person and reduce high tensions in situations that can turn violent quickly.
The Times Free Press reports
Ban on funeral protests ruled unconstitutional
A federal judge Monday ruled that Missouri laws restricting protests near funerals are unconstitutional. Missouri legislators passed two laws in 2006 in response to protests at service members' funerals by members of Westboro Baptist Church of Topeka, Kan.
WATE.com carried this AP story
Election 2010
Yarbro files formal request for recount
In a letter to supporters, state Senate candidate Jeff Yarbro said he filed a formal request today for a complete recount of all ballots cast in the August 5 primary. Noting that "we've been up by 18, down by 2, tied, down by 13, and now down by 11," he says a recount is "a matter of common sense." The Election Commission "does not have the authority to examine the ballots again unless ordered to do so by the Tennessee Democratic Party's Executive Committee," he writes. Sen. Douglas Henry, at last count, was ahead by 11 votes.
The City Paper has more
Mediator named for Shelby Co. Democrats' vote challenge
Appointing Chancery Court Clerk and Master Dewun Settle as mediator of the inspection process, Chancellor Walter Evans has laid out written ground rules for Shelby County Democrats' inspection of voting equipment and records. The Democrats pressed on with a legal challenge in the aftermath of what they saw as vote irregularities and how the Republican-controlled Election Commission handled the Aug. 5 vote.
Read more from the Commercial Appeal
Upcoming
Equal Justice University coming in September
For attorneys interested in to access to justice issues, the upcoming Equal Justice University (EJU) promises outstanding educational opportunities, substantive law task force meetings, a skills track for newer attorneys, and networking events for all attendees. Sponsored jointly by the Tennessee Bar Association and the Tennessee Alliance for Legal Services, the EJU will be held Sept. 27-29 at Paris Landing State Park. The annual event was formerly known as the Equal Justice Conference, but it has been renamed to reflect its broader impact for legal aid professionals, pro bono attorneys and community advocates across Tennessee. Other sponsors include AmeriChoice and the Tennessee Commission on Aging and Disability.
Register for the program or learn more now
Workshop to help with law school application process
Potential law school applicants are invited to attend the Law School Admission Workshop and Recruitment Fair on Sept. 8, at the University of Tennessee, Knoxville. "This is a wonderful opportunity to learn about applying to law school," says Karen R. Britton, director of admissions, financial aid and the Bettye B. Lewis Career Center at UT's College of Law. "Anyone who is considering law as a career and is specifically interested in the law school admissions process should attend this event."
Learn more from the Crossville Chronicle
TBA Member Services
Your customers expect you to deliver -- the new FedEx Tracking makes it easy
Lets face it. Information about your in-transit shipments is critical to your business. Now when you track a package on fedex.com, you have even greater visibility into the status of your shipments. You can customize your tracking results page, organize your shipments by status, easily send and receive proactive e-mail notifications on shipments, and save time with the updated and streamlined Signature Proof of Delivery request process.
Take advantage of your member discounts on select FedEx shipping services and FedEx Office business services

 
 
Discontinue your TBA Today subscription? ... Surely not!
But if you must, visit the TBALink web site at:
http://www.tba2.org/tbatoday/unsub_tbatoday.php

Questions, comments: Email us at TBAToday@tnbar.org

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

© Copyright 2010 Tennessee Bar Association