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| Tuesday, April 19, 2011 |
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Tort reform bill moves
The Haslam administration's tort reform legislation --
HB 2008
by Rep. Gerald McCormick, R-Chattanooga, and Rep. Vance Dennis, R-Savannah -- was voted out of the House Judiciary Committee this morning. The committee added a provision lifting the cap when the behavior resulting in the injury is felonious, as well as several amendments characterized as technical.
The News Sentinel has more
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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.
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JUDY DAVIS, as Next Friend of ELOISE GWINN, an incapacitated person v. KINDRED HEALTHCARE OPERATING, INC., ET AL.
Court: TCA
Attorneys:
F. Laurens Brock, Donna L. Boyce, and J. Bennett Fox, Jr., Nashville, Tennessee, for the appellants, Kindred Healthcare Operating, Inc.; Kindred Healthcare, Inc.; Kindred Nursing
Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Nursing Centers Limited Partnership d/b/a Cordova Rehabilitation and Nursing Center; James W. Freeman, in his
capacity as Administrator of Cordova Rehabilitation and Nursing Center; Renee Tutor, in her capacity as Administrator of Cordova Rehabilitation and Nursing Center; Harland Bicking
in his capacity as Administrator of Cordova Rehabilitation and Nursing Center; and John E. Palmer; in his capacity as Administrator of Cordova Rehabilitation and Nursing Center.
Cameron C. Jehl, Deborah Truby Riordan, and Carey L. Acerra, Little Rock, Arkansas, for the appellee, Judy Davis, as Next Friend of Eloise Gwinn, an incapacitated person.
Judge: STAFFORD
This is a nursing home abuse case. The trial court denied Appellant nursing home's motion to compel arbitration based upon an alternative dispute resolution agreement that was
executed by Appellee, the niece of the patient being admitted to Appellants' nursing facility. The patient had executed a power of attorney in favor of her niece and her niece's husband, but only the niece had signed the admission papers on behalf of the patient. The trial court determined that the power of attorney created a joint agency, whereby the signatures of both the niece and her husband were required in order to bind the patient, as principal, to
arbitration. Affirmed and remanded.
http://www.tba2.org/tba_files/TCA/2011/davisj_041911.pdf
BENNIE JOE POTEET, II, individually and by and through Evelyn Poteet, as conservator of Bennie Joe Poteet, II v. NATIONAL HEALTHCARE OF CLEVELAND, INC., ET AL.
Court: TCA
Attorneys:
Michael A. Anderson, Chattanooga, Tennessee, for the appellants, Bennie Joe Poteet, II, individually and by and through Evelyn Poteet, as conservator of Bennie Joe Poteet, II.
David E. Harrison and Jim K. Petty, Chattanooga, Tennessee, for the appellee, Adam E. Fall, M.D.
Thomas A. Wiseman, III, Nashville, Tennessee, for the appellee, National Healthcare of Cleveland, Inc., f/d/b/a Cleveland Community Hospital.
Judge: MCCLARTY
This appeal involves a claim of medical malpractice. Bennie Joe Poteet, II, individually and by and through his mother, Evelyn Poteet, as his conservator (collectively "the Plaintiffs"),
sued Adam E. Fall, M.D. ("Dr. Fall") and National Healthcare of Cleveland, formerly doing business as Cleveland Community Hospital ("the Hospital") (collectively "the Defendants")
for medical malpractice after Mr. Poteet suffered a stroke while admitted at the Hospital which rendered him completely paralyzed from the nose down. Both parties moved for partial summary judgment on Mr. Poteet's later added claim of negligence per se based on a bonus incentive plan allegedly maintained by the Hospital that indirectly set forth the reduction of MRIs ordered by Dr. Fall as a factor in his annual bonus determination. The trial court granted the Hospital's dispositive motion on the issue, as well as the Hospital's motion to dismiss on the bonus issue. Prior to trial, the court also granted the Defendants' motions in limine to exclude any evidence of the bonus incentive plan offered to Dr. Fall, but denied the Defendants' motion to exclude all testimony of one of the Plaintiffs' neurology experts. At the close of the case, the trial court submitted a special verdict form to the jury which instructed that the question regarding the Hospital's negligence based on insufficient neurology coverage was to be disregarded if neither Dr. Fall nor the treating nurses were found to be negligent. The jury subsequently returned a verdict favorable to the nurses and
Dr. Fall, leaving the question on the adequacy of neurology coverage unaddressed. Judgment was entered on the jury's findings. The Hospital thereafter filed a motion for directed verdict on the neurology coverage issue while the Plaintiffs moved for a new trial on multiple grounds. The trial court denied the Plaintiffs' motion for new trial but granted the Hospital's motion for directed verdict as well as the Defendants' motions for discretionary costs. The Plaintiffs have appealed. We affirm.
http://www.tba2.org/tba_files/TCA/2011/poteetb_041911.pdf
STATE OF TENNESSEE v. PHYLLIS A. POLK
Court: TCCA
Attorneys:
Clifford Knott McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, District Public Defender, and Paul Edward Meyers, Assistant Public Defender (at trial and
of counsel on appeal), for the appellant, Phyllis A. Polk.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Anna Cash, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Phyllis A. Polk, was convicted by a jury in the Madison County Circuit Court of driving under the influence (DUI), a Class A misdemeanor, and was sentenced to eleven
months and twenty-nine days, with credit for time served and the remainder in community corrections. See T.C.A. section 55-10-401 (Supp. 2009) (amended 2010). On appeal, the
Defendant contends that the evidence was insufficient to support her conviction. We affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/polkp_041911.pdf
DONALD L. SEIBER v. STATE OF TENNESSEE
Court: TCCA
Attorneys:
Gerald Gulley, Knoxville, Tennessee, for the appellant, Donald L. Seiber.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Phillip Morton, Assistant
District Attorney General, for the appellee, State of Tennessee.
Judge: WITT
The petitioner, Donald L. Seiber, appeals the denial of his petition for post-conviction relief, arguing that the case should be remanded because the post-conviction court failed to make adequate factual findings and that the post-
conviction court erred by denying post-conviction relief. Because the record supports the denial of post-conviction relief, we affirm the judgment of the post-conviction court.
http://www.tba2.org/tba_files/TCCA/2011/seiberd_041911.pdf
STATE OF TENNESSEE v. MICHAEL DESHAWN SMITH
Court: TCCA
Attorneys:
Gary F. Antrican, District Public Defender, and Kari I. Weber, Assistant Public Defender, for the appellant, Michael Deshawn Smith.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; D. Michael Dunavant, District Attorney General; and Terry Dycus, Assistant District Attorney General, for the appellee, State of Tennessee.
Judge: TIPTON
The Defendant, Michael Deshawn Smith, pled guilty to second degree murder, a Class A felony. See T.C.A. section 39-13-210 (2010). He was sentenced as a Range I, standard offender
to twenty-three years' confinement. On appeal, he contends that the trial court imposed an excessive sentence. We affirm the judgment of the trial court.
http://www.tba2.org/tba_files/TCCA/2011/smithm_041911.pdf
Utility District Operating at a Loss
TN Attorney General Opinions
Date: 2011-04-19
Opinion Number: 11-35
http://www.tba2.org/tba_files/AG/2011/ag_11_35.pdf
IN RE: WILLIAM H. BURFORD, BPR 005840
Court: TSC-Disciplinary_Order
Judge: CLARK
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/burfordw_041911.pdf
IN RE: JAN HOLMES CROSBY, BPR 020038
Court: TSC-Disciplinary_Order
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/crosbyj_041911.pdf
IN RE: CHARLES RICHARD DORROH, BPR 004873
Court: TSC-Disciplinary_Order
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/dorrohc_041911.pdf
IN RE: DALEN L. P. FARMER, BPR 012629
Court: TSC-Disciplinary_Order
Judge: CLARK
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/farmerd_041911.pdf
IN RE: MARK WESLEY HENDERSON, BPR 011525
Court: TSC-Disciplinary_Order
Judge: CLARK
Suspension
http://www.tba2.org/tba_files/TSC/2011/hendersonm_041911.pdf
IN RE: THOMAS E. LOONEY, BPR 001577
Court: TSC-Disciplinary_Order
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/looneyt_041911.pdf
IN RE: JAMES D. MOGRIDGE, BPR 000205
Court: TSC-Disciplinary_Order
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/mogridgej_041911.pdf
IN RE: KEITH VON MOORE, BPR 008401
Court: TSC-Disciplinary_Order
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/moorek_041911.pdf
IN RE: KRISTEN E. MORRELL, BPR 022994
Court: TSC-Disciplinary_Order
Judge: CLARK
Suspended
http://www.tba2.org/tba_files/TSC/2011/morrellk_041911.pdf
IN RE: CYNTHIA MARIE NIENABER, BPR 016229
Court: TSC-Disciplinary_Order
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/nienaberc_041911.pdf
IN RE: BRIAN KEITH ROBERTS, BPR 027495
Court: TSC-Disciplinary_Order
Reinstatement
http://www.tba2.org/tba_files/TSC/2011/robertsb_041911.pdf
IN RE: MICHAEL S. SHIPWASH, BPR 019173
Court: TSC-Disciplinary_Order
Judge: CLARK
Suspension
http://www.tba2.org/tba_files/TSC/2011/shipwashm_041911.pdf
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| TODAY'S NEWS |
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General Assembly News
Legal News
Disciplinary Actions
Your Practice
TBA Member Services
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| General Assembly News |
| Opinion: Tort bill runs counter to conservatism |
| State Sen. Mike Faulk, R-Church Hill, points out in an opinion piece today that the proposed tort reform bill doesn't make sense when applying principles of conservatism such as "personal responsibility and limited government." He says "to reform our tort system by setting government-imposed limits on general damages in civil suits runs counter to each principle." |
Read it in the Tennessean
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| Constitutional amendment on abortion passes Senate |
| The state Senate approved a constitutional amendment that would allow more restrictions on abortion.
Senators voted 24-8 Monday night to place an amendment on the ballot that would state explicitly that abortion is not protected by the Tennessee constitution, overturning a 2000 ruling that abortion opponents say has kept the state from placing more regulations on abortion. |
Read more in the Tennessean
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| Legal News |
| 6th Circuit: Woman can sue CCA for filthy conditions |
| A Nashville woman can sue Corrections Corporation of America for allegedly leaving her mentally ill grandson in solitary confinement for months without showering him or cleaning his cell, the 6th Circuit Court of Appeals ruled Friday. The majority wrote that there was enough evidence to suggest CCA had a policy or custom that violated Frank Horton's civil rights, including that his cell was filthy with food trays on the floor and bacteria in the toilet, and that neither Horton nor his cell had been cleaned in nine months. |
The Tennessean has the story
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| Court interpreter accused of porn in the courtroom |
| The tables have turned on a
court interpreter suing Bradley County General Sessions Court for violating non-English speaking defendants' civil rights by making them pay for interpreters. According to documents acquired under the Open Records Act, complaints concerning allegations of misconduct by Mark Weissenberg were made by two family violence court advocates. The complaints were made regarding Weissenberg's alleged use of pornography on his laptop in the courtroom of General Sessions Judge Sheridan Randolph in March.
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The Cleveland Daily Banner reports
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| Disciplinary Actions |
| Wilson County lawyer suspended |
| Wilson County lawyer Mark Wesley Henderson was suspended by the Supreme Court for two years on April 15. The court also directed Henderson to pay $950 in restitution. The court noted that Henderson is serving a six-month suspension imposed on Jan. 12 and stipulated that the April suspension does not affect the validity of that prior disciplinary action. |
Download the court's order
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| Sullivan County lawyer suspended |
| Sullivan County lawyer Kristen E. Morrell was suspended for one year on April 15.
Payment of restitution to four clients is a condition precedent to reinstatement. Morrell already was suspended for noncompliance with continuing legal education and failure to pay
annual registration fees to the Board of Professional Responsibility. |
Download the court's order
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| Knox County lawyer suspended |
| Knox County lawyer Michael S. Shipwash was suspended from the practice of law April 15 for one year,
with all time probated pursuant to Supreme Court Rule 9, Section 8.5 subject to conditions. The conditions include taking 10 extra hours of CLE, hiring a practice monitor and making restitution to one client. |
Download the court's order
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| Lawyer reinstated after paying fee |
| Dalen L. P. Farmer was reinstated to the practice of law on April 18. He had been suspended in 1997 for nonpayment of fees. In addition to reinstating Farmer, the Tennessee Supreme Court assessed all costs related to the proceeding to him. |
Download the court's order
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| Lawyer on inactive status returns to practice |
| William H. Burford has been reinstated to practice law in Tennessee after voluntarily requesting inactive status in 2006. Burford filed a petition for reinstatement, which was granted on April 18. |
Download the court's order
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| 7 lawyers reinstated after paying BPR fees |
| Seven lawyers have been reinstated to the practice of law in Tennessee after being suspended for nonpayment of BPR fees. They are: Jan Holmes Crosby of Colorado Springs, Colo.; Charles Richard Dorroh of Memphis;
Thomas E. Looney of Crossville;
James D. Mogridge of Thaxton, Miss.;
Keith Von Moore of Germantown;
Cynthia Marie Nienaber of Henry; and
Brian Keith Roberts of Murfreesboro. |
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| Your Practice |
| Firm hires 'life-transition coach' for new parents |
| U.S. law firm O'Melveny & Myers officially launched an initiative last week for new parents. By hiring a free life-transitions coach, the firm hopes to help associates, partners and counsel
transition back to their legal work after a new baby.
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ABAJournal.com connects you
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| TBA Member Services |
| Avis benefits 'try harder' |
| TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.
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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 2011 Tennessee Bar Association
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