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TAM-BYTES

August 18, 2014


Vol. 17, No. 33
2014 TAM CLE CALENDAR
Webinars
Retaliatory Discharge in Tennessee: 2014 Law and Other New
Developments, 60-minute webinar presented by David L. Johnson &
Valeria Gomez, Nashville attorneys, on Tuesday, September 16, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Tech Advice for the Non-Techy Attorney: Keeping Pace with E-
Discovery and Other Tech Issues, 60-minute webinar presented by Alex
Khoury, Atlanta, attorney, on Wednesday, September 17, at 2 p.m. (Central),
3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Police Liability in Tennessee: Top 20 Ways to Win and Lose a Section
1983 Lawsuit, 60-minute webinar presented by Steve Elliott, Nashville
attorney, on Thursday, September 25, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Custody Issues in Tennessee: Changing the Primary Residential Parent,
Modifying Parenting Time, and More, 60-minute audio conference
presented by Kevin Shepherd, Maryville attorney, on Tuesday, September
30, at 2 p.m. (Central), 3 p.m. (Eastern).

On-Site Events
Personal I njury Law Conference for Tennessee Attorneys
Friday, September 26 Nashville School of Law
TOPICS: Get up to date on the hottest issues in Tennessee personal injury
practice, including the latest products liability developments, trial tips from a
trial judge, handling medical records and private information, limitations on
the use of HIPAA protected documents in litigation, Affordable Care Act
concerns, auto insurance policies, negotiating with insurance adjusters, caps
on damages, Medicare set-asides, and maintaining client confidentiality.

FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs
and defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair,
Steven Fuller, Bryan Moseley, David Randolph Smith, and Mathew Zenner.
*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit

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Probate & Estate Planning Conference for Tennessee Attorneys
Thursday & Friday, October 23-24
Nashville School of Law

TOPI CS: Spend 2 days with some of the states top estate planning and probate
practitioners offering tips on advanced estate planning strategies, drafting
QTIPs, GRATs, and QPRTs, will drafting in 2014, the intersection of family
law and estate planning issues, use of Medicaid-compliant annuities, hot topics
in probate litigation, practicing in probate court, and updates on issues related to
trusts, estate planning, and probate. Also, hear about ethical issues arising when
crafting a healthcare power of attorney, a living will, or an advance care plan
and ethical issues arising in estate administration, such as client confidentiality,
billing inquiries, and other difficult-to-resolve dilemmas.

FACULTY: Elaine Beeler, Williamson County Clerk & Master; Will Bell,
Rainey, Kizer, Reviere & Bell; Rebecca Blair, The Blair Law Firm; David
Callahan, Goodman Callahan & Blackstone; Peter T. Dirksen, U.S. Trust,
Bank of America Private Wealth Management; Harlan Dodson, Dodson,
Parker, Behm & Capparella; Donald Farinato, Holbrook Peterson Smith;
Carla Lovell, Sherrard & Roe; Barbara Boone McGinnis, Elder Law Practice
of Timothy L. Takacs; Hunter R. Mobley, Howard Mobley Hayes &
Gontarek; Jeff Mobley, Howard, Mobley Hayes & Gontarek; Al Secor,
CapitalMark Bank & Trust; Tim Takacs, CELA, Elder Law Practice of
Timothy L. Takacs; and Pam Wright, CELA, West Tennessee Legal Services.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

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Law Conference for Tennessee Practitioners
Thursday & Friday, November 13-14
Marriott Franklin/Cool Springs

TOPI CS: Overview of the changes to the workers compensation law for
injuries occurring on or after July 1, 2014, as well as how claims will be
decided by the claims courts; compliance issues for attorneys subject to
HIPAA; latest developments in medical malpractice, including how the
appellate courts have ruled on compliance with the pre-suit notice and
certificate of good faith requirements; how to embrace your inner digital
lawyer and get up to date on issues such as mobile computing, file
management, and the risks of going mobile; what every litigator needs to
know about business entity laws in Tennessee; latest developments in the
family law area; checklist for provisions to be included in a will today; recent
changes to the rules on computer calls; how to use a little-known VA benefit
to aid your clients; overview of the administrative process in Tennessee from
an experienced chancellor; ins and outs of standards of review and the scope
of the appellate practice from an appellate court judge; tips from a chancellor
on pretrial motion practice; an insiders perspective from the Chief
Disciplinary Counsel on the Boards recent developments; how to avoid e-
discovery ethical pitfalls and how to handle social media, e-mail, video, and
other electronically stored information; and insight from a former trial judge
and now special judge on displaying professionalism in the practice of law.

FACULTY: Judge John McClarty, Court of Appeals, Eastern Section;
Judge Don R. Ash, Senior Judge, Tennessee Senior Judge Program;
Chancellor Ellen Hobbs Lyle, Chancery Court, Davidson County;
Chancellor Carol McCoy, Chancery Court, Davidson County; Fred Baker,
Wimberly Lawson Wright Daves & Jones PLLC; Harlan Dodson, Dodson
Parker Behm and Capparella PC; Sandy Garrett, Chief Disciplinary Counsel,
Board of Professional Responsibility; Randy L. Kinnard, Kinnard, Clayton
& Beveridge; Kevin Levine, DeSalvo & Levine PLLC; Helen S. Rogers,
Rogers, Kamm & Shea; Lucas R. Smith, Bass, Berry & Sims PLC; Richard
Spore, Bass, Berry & Sims PLC; Elizabeth Warren, Bass, Berry & Sims
PLC; and John Watts, Watts & Herring, LLC
*Earn up to 15 hours of CLE credit, including 3 hours of DUAL credit.

IN THIS WEEKS TAM-Bytes

Supreme Court affirms trial courts finding that employee who accepted
employers buyout following his shoulder injury before he reached
maximum medical improvement did not have meaningful return to
work, meaning his award was not capped at 1.5 times his medical
impairment rating;
Court of Appeals, in case in which healthcare provider failed to produce
requested documents to defendant, holds trial court was not authorized
by either TCA 29-9-103 or TRCP 37.02 to discharge healthcare
providers fees for medical services charged to plaintiff;
Court of Criminal Appeals reverses conviction for rape of child when
trial court improperly allowed state to present evidence of other sexual
acts that allegedly occurred between defendant and victim, trial court
improperly allowed state to introduce into evidence drawings made by
victim before trial, and prosecutors gave improper closing arguments by
using personal examples as way to vouch for victims credibility;
Court of Criminal Appeals, in DUI case, rules trial judge did not err in
allowing TBI agent to testify as expert about effects of bath salts on
individual when, although alpha-PVP, marketed as bath salts was
relatively new substance, agent demonstrated knowledge about effects
of bath salts that average juror would not know, and agent only listed
side effects of bath salts and was not asked whether bath salts were
responsible for defendants behavior at time of his arrest;
Court of Criminal Appeals says that trial courts error in instructing jury
about defendants prior convictions instead of defendants prior
violations was not harmless as to jurys determination that defendant
had committed third prior DUI violation; and
Roane County Circuit Court holds Tennessees laws concerning same-
sex marriage, i.e., Anti-Recognition Laws, do not violate Equal
Protection Clause or Full Faith and Credit Clause of U.S. Constitution.

SUPREME COURT

WORKERS COMPENSATION: Employee did not have meaningful return
to work, and hence, his permanent partial disability award was not capped at
1.5 times his medical impairment rating, when trial court accredited
employees testimony that he had accepted buyout from employer because his
recovery wasnt progressing, he did not know if his medical condition
would improve, and he believed he couldnt go back to work after his
shoulder surgeries; nothing in TCA 50-6-241 requires that question of whether
employee has had meaningful return to work with pre-injury employer be
evaluated only after employee has completed treatment and has reached
maximum medical improvement. Yang v. Nissan North America, 8/11/14,
Nashville, Wade, 4-0, 10 pages.
http://www.tncourts.gov/sites/default/files/yangcha.opn_.pdf


WORKERS COMP PANEL

WORKERS COMPENSATION: In case in which employee sustained
work-related injury to her back while working as nursing assistant, she
received medical care, returned to work but experienced pain in performing
her job, and she resigned two years later, citing back pain related to her work,
evidence did not preponderate against trial courts finding that employee did
not have meaningful return to employment, and hence, her award for
permanent partial disability was not limited to 1.5 times her medical
impairment rating, when employees work caused her persistent back pain on
daily basis, she advised her supervisor and her physician of those problems,
and employer did not offer or was not capable of offering modified-duty
position. Kyle v. Volunteer Home Care of West Tennessee I nc., 8/7/14,
Jackson, Daniel, 7 pages.
http://www.tncourts.gov/sites/default/files/kyleropn.pdf

WORKERS COMPENSATION: Evidence did not preponderate against
trial courts finding that employee was not terminated for misconduct, and
was therefore eligible for reconsideration of his prior workers compensation
settlement, when employee was terminated for workers compensation fraud
after he was seen driving in violation of driving limitation imposed by doctor,
employee could not drive from his home to work within 10 to 20 minutes per
hour driving restriction imposed by doctor, and employer knew that employee
lived 30 to 40 minutes from his place of employment, leaving employee no
realistic choice but to violate his restriction if he wanted to keep his job; fact
that employee had no medical restrictions from his shoulder injury, fact that
he had not sought or received medical treatment for shoulder injury for several
years, and fact that he was college graduate with extensive experience in sales
work were factors to consider but not so persuasive that award of 18%
permanent disability was unsupported by evidence as whole. Clay v. AT&T
Mobility Services LLC, 8/8/14, Nashville, Harris, 10 pages.
https://www.tba.org/sites/default/files/clayj_080814.pdf


COURT OF APPEALS

TORTS: In healthcare liability action in which plaintiff alleged that
supervising physician (defendant) negligently supervised physicians
assistant, which resulted in eventual amputation of plaintiffs leg, trial court
properly granted defendant summary judgment; by presenting evidence
demonstrating his compliance with specific regulations referenced in second
sentence of TCA 63-19-106(a)(1), defendant sufficiently proved that he
maintained active and continuous overview of physician assistants
activities sufficient for grant of summary judgment; there was no basis under
which defendant could be liable for common law negligence as non-
supervising physician, as there was no doctor-patient relationship between
defendant and patient when defendant never saw, communicated with, or
directly cared for patient; although supervising physician could be held
vicariously liable for negligent supervision of physicians assistant if proven,
plaintiffs original amended complaint adding defendant did not initially
allege this cause of action; trial court did not abuse discretion in denying
plaintiffs motion to amend complaint to specifically add vicarious liability as
cause of action when motion presented new cause of action after all
depositions of key witnesses had been taken, motion was filed after trial date
had been set, and motion was filed while defendants summary judgment
motion was pending. Buman v. Gibson, 8/11/14, WS, Summers, 18 pages.
http://www.tncourts.gov/sites/default/files/bumanmopn.pdf

CIVIL PROCEDURE: In case in which plaintiff sought damages for injuries
she sustained in car accident, defendant driver requested documents from
plaintiffs healthcare provider, healthcare provider failed to produce all of
requested documents and was held in civil contempt, and trial court, as
sanctions, discharged healthcare providers fees for medical services charged
to plaintiff and held provider in violation of certain chiropractic regulations,
sanctions imposed by trial court were not authorized by either TCA 29-9-103
or TRCP 37.02; trial court strayed beyond framework of applicable legal
standards by discharging fees for medical services rendered by health care
provider and in finding violation of Board of Chiropractic Examiners. Rule
0260-02-.20(6). Ramirez v. Schwartz, 8/12/14, MS, Bennett, 6 pages.
http://www.tncourts.gov/sites/default/files/ramirezg.opn_.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of one count of
rape of child in connection with offense committed against his granddaughter,
because trial court improperly allowed state to present evidence of other
sexual acts that allegedly occurred between defendant and victim, because
trial court improperly allowed state to introduce into evidence drawings made
by victim before trial, and because prosecutors gave improper closing
arguments by using personal examples as way to vouch for victims
credibility, defendants rape of child conviction is reversed, and case is
remanded to trial court for new trial. State v. Smith, 8/13/14, Knoxville, Ogle,
25 pages.
http://www.tncourts.gov/sites/default/files/smithdannyrayopn.pdf

CRIMINAL PROCEDURE: In aggravated assault case, defendant did not
intelligently and knowingly waive his right to counsel when trial court did not
conduct penetrating and comprehensive examination of all circumstances
under which defendant asserted his right of self-representation, and defendant
represented himself at trial without knowing all facts essential to broad
understanding of whole matter there was no written waiver of right to
counsel in record, defendant was not charged by information until day of his
trial, and immediately after trial court read information to defendant, trial
commenced, without defendant having opportunity to file any motions, to
review elements of offense, to determine any lesser included offenses, or to
learn range of punishment he was facing; waiver of right to counsel at general
sessions court level does not satisfy obligations of criminal court under
TRCrP 44 to determine whether defendant has waived his or her right to
counsel; defendants aggravated assault conviction is vacated, and case is
remanded to trial court for further proceedings. State v. Fletcher, 8/11/14,
Knoxville, McMullen, 16 pages.
http://www.tncourts.gov/sites/default/files/fletchercharlesopnfinal.pdf

EVIDENCE: In DUI case, trial judge did not err in allowing TBI agent to
testify as expert about effects of bath salts on individual when, although
alpha-PVP, marketed as bath salts was relatively new substance, agent
demonstrated knowledge about effects of bath salts that average juror would
not know, and agent only listed side effects of bath salts for jury, she was not
asked for, nor did she offer, opinion as to whether bath salts were responsible
for defendants behavior at time of his DUI arrest; trial court did not err by
allowing state to refer to alpha-PVP as bath salts instead of its chemical
name. State v. Wilson, 8/4/14, Knoxville, Ogle, 22 pages.
http://www.tncourts.gov/sites/default/files/wilsontravisopn.pdf

CRIMINAL LAW: In DUI case, indictment did not mislead defendant when
it referred to prior convictions instead of prior violations prior conviction
necessarily implies prior violation and defendant himself knew dates of
violations that resulted in referenced convictions; defendant was able to
discern for himself whether prior convictions referenced in indictment
represented prior violations that were within statutory reach-back periods and
therefore available for imposition of enhanced sentence; defendant convicted
of DUI can be punished as multiple DUI offender only if his or her most
recent prior DUI was committed within 10 years of date on which current
offense was committed, and statute defining multiple DUI offender focuses on
dates of offenders previous violations, not dates on which offender was
convicted for those violations; trial courts error in instructing jury about
defendants prior convictions instead of defendants prior violations was
not harmless as to jurys determination that defendant had committed third
prior DUI violation, and hence, defendants conviction for DUI, fourth
offense, is modified to one for DUI, third offense; trial judge did not commit
reversible error in failing to charge jury about 10-year reach-back period,
which operates, in effect, as statute of limitation when proof of relevant
dates is uncontroverted, trial court may determine as matter of law whether
violations occurred during relevant reach-back periods. State v. Loudermilk,
8/6/14, Jackson, Bivins, 13 pages.
http://www.tncourts.gov/sites/default/files/loudermilkjopn.pdf

EVIDENCE: In DUI case, trial judge properly denied defendants motion to
suppress results of blood alcohol test when results of blood alcohol analysis
were admissible under exigency exception to warrant requirement,
irrespective of validity of defendants consent under implied consent statute;
because there was no proof that defendant refused to provide blood sample,
his implied consent remained valid, and his contention that his consent was
involuntary is without merit, and as such, results of blood alcohol test were
alternatively admissible under implied consent statute. State v. Walker,
8/8/14, Knoxville, Bivins, 11 pages.
http://www.tncourts.gov/sites/default/files/walkerdopn.pdf


PUBLIC CHAPTER

CRIMINAL PROCEDURE: Circumstances under which government entity
may obtain location information of electronic device without search warrant.
2014 PC 991, effective 5/22/14, 3 pages.
http://www.tn.gov/sos/acts/108/pub/pc0991.pdf


SIXTH CIRCUIT COURT OF APPEALS

TORTS: In suit by plaintiff who tripped on quarter of inch lip on sidewalk in
front of defendants store and injured her hand, in which jury found in favor of
defendant, district court did not abuse discretion in allowing defendants expert
witness to testify when witness was non-scientific witness whose expertise came
primarily from personal knowledge and experience and when witness had
professional experience with specific building codes at issue as well as
experience designing asphalt-to-sidewalk transition areas during his 40 years as
architect of commercial buildings; with respect to witnesss testimony
interpreting building codes, admission of testimony did not create reversible
error absent showing that district court considered witnesss testimony in
refusing to offer per se negligence instruction; district court did not abuse
discretion in admitting evidence as to lack of prior accidents at transitional area
at issue. Wood v. Wal-Mart Stores East L.P., 8/4/14, Merritt, 7 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0592n-06.pdf

TORTS: When plaintiff began taking diabetes drug named Byetta in 2006,
six years later, he began suffering abdominal problems, and he filed suit
against drugs manufacturers and suppliers, claiming that Byetta caused his
abdominal problems, district court did not err in dismissing plaintiffs claims
pursuant to FRCP 12(b)(6); when plaintiffs principal allegation is that, [b]y
process of elimination, he discovered that [Byetta] was the cause [of his
injuries] in mid 2012, but he nowhere in complaint explains what his
process of elimination was and conceded that no physician told him that
there was connection between use of Byetta and his physical condition, these
allegations fall short of supporting plausible inference that Byetta caused
plaintiffs injuries; complaint provides no grounds to infer and indeed
affirmative grounds not to infer that plaintiffs sustained-exposure
explanation for his injuries is correct explanation. McElroy v. Amylin
Pharmaceuticals I nc., 8/5/14, Kethledge, 4 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0596n-06.pdf


TRIAL COURT

FAMILY LAW: In case in which two males, both Tennessee residents, were
married in Iowa, whose law allows two individuals of same-sex to marry, and
one of parties now wishes to divorce other party, but Iowa law requires
minimum residency requirement before divorce proceedings can be initiated,
because parties marriage is void and unenforceable in Tennessee, no divorce
proceedings may be initiated in Tennessee; Tennessees Anti-Recognition
Laws do not violate Equal Protection Clause or Full Faith and Credit Clause
of U.S. Constitution. Borman v. Pyles-Borman, 8/7/14, Roane Circuit,
Simmons, 7 pages.
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/08/new-copy-Tennessee-marriage-ruling-8-5-14.pdf





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may also view and download the full text of any state appellate court
decision by accessing the states web site by clicking here:
http://www.tncourts.gov

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