Whether employee had meaningful return to work, admissibility of TBI agent’s testimony in DUI case on effects of “bath salts,” constitutionality of Tennessee’s laws concerning same-sex marriage, and more from Tennessee courts.
Whether employee had meaningful return to work, admissibility of TBI agent’s testimony in DUI case on effects of “bath salts,” constitutionality of Tennessee’s laws concerning same-sex marriage, and more from Tennessee courts.
Whether employee had meaningful return to work, admissibility of TBI agent’s testimony in DUI case on effects of “bath salts,” constitutionality of Tennessee’s laws concerning same-sex marriage, and more from Tennessee courts.
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
*************************************************************** 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.
**************************************************************** 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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