TAM-BYTES

December 21, 2015

Vol. 18, No. 51
TAM Webinars
Tennessee Family Law Cases that Could Impact Your Practice, 90minute webinar presented by Brent Lankford, Nashville attorney, on
Tuesday, February 23, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
Using Mental Health Records in Tennessee Custody Cases: The
Culbertson Case, 60-minute webinar presented by Amy Amundsen,
Memphis attorney, on Thursday, February 25, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit

On-Site Event

Medical Malpractice Conference for Tennessee Attorneys

*Now in its 9th year!*
WHEN: Friday, May 13
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and
1 hour of DUAL credit
FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon
Bass, Law Offices of John Day, Brentwood; Philip N. Elbert, Neal &
Harwell, Nashville; Ben Harrison, Jr., Cornelius & Collins, Nashville;
Marty Phillips, Rainey, Kizer, Reviere & Bell, Jackson; Chris Tardio,
Gideon, Cooper & Essary, Nashville; and Mathew Zenner, McCune,
Zenner and Happell, Brentwood
HIGHLIGHTS: Recent developments in pre-suit notice and certificate of
good faith requirements; new summary judgment procedure; how to turn
the tables on a plaintiffs expert; defenses, such as patient negligence, that
may be raised to defeat a plaintiffs healthcare liability claim; trial tips and
tactics from both a plaintiffs and defense perspective; deposition strategies
to help you win at trial; using technology to excel as an advocate in a

healthcare liability case; review of recent healthcare liability appellate court

decisions; a panel discussion of hot topics in healthcare liability actions;
and ethical issues that arise when dealing with evidence and experts.
For more information or to register for any of our CLE events, call us at
(800) 274-6774 or visit www.mleesmith.com.
IN THIS WEEKS TAM-Bytes
Supreme Court establishes analytical framework to determine
whether plaintiff is entitled to jurisdictional discovery;
Court of Appeals affirms grant of summary judgment in favor of city
on Tennessee Public Protection Act claim by three police officers
who, after they were interviewed by TBI, were fired for not
reporting, over one year, illegal conduct of fellow officer;
Court of Appeals holds there is no bailment duty in Tennessee between
spouses in divorce action with regard to spouses personal property;
Court of Appeals modifies trial courts decision to impose upon
husband 99% of parties marital liabilities when trial courts
allocation of marital debt was hugely favorable to wife and served to
change 55% to 45% division of marital estate to something more akin
to 60% to 40% in wifes favor;
Court of Criminal Appeals invites Tennessee Pattern Jury Instruction
Committee to visit issue of whether revision to self-defense
instructions is warranted to include, as element of each offense
charged and each lesser included offense, requirement that state
negate self-defense in order to better convey to jury states burden of
proof regarding negating of non-affirmative defenses beyond
reasonable doubt;
Court of Criminal Appeals reverses four of defendants aggravated
kidnapping convictions because trial judge erred in failing to instruct
jury as provided by White;
Court of Criminal Appeals, in DUI case, rules trial court erred in
finding that defendants consent to blood draw was not voluntary
under totality of circumstances;
Court of Workers Compensation Claims says that employer cannot
avoid paying temporary disability benefits when employee is
terminated for cause but employer cannot accommodate employees
light-duty restrictions; and
Board of Professional Responsibility gives guidance on lawyers
responsibility with regard to client files.

SUPREME COURT
CIVIL PROCEDURE: In suit against multiple defendants for fraud,
constructive fraud, negligent misrepresentation, civil conspiracy, unjust
enrichment, and violation of Tennessee Securities Act in which three nonresident defendants sought to dismiss case based on lack of personal
jurisdiction, trial court did not err in finding that plaintiff, banking and
financial services company that purchased investment products, failed to
establish personal jurisdiction over ratings agencies, global agencies, under
theory of general jurisdiction or specific jurisdiction; while plaintiff failed
to establish prima facie case of conspiracy jurisdiction at this point, in light
of new factors delineated to determine whether to allow jurisdictional
discovery, case is remanded to trial court for reconsideration on theory of
conspiracy jurisdiction; if trial court, in its discretion, determines that
plaintiff is not entitled to conduct limited discovery, trial court should
dismiss action in its entirety as to ratings agencies; if trial court allows
limited discovery, it then should hold evidentiary hearing and determine
whether plaintiff can establish conspiracy jurisdiction by preponderance of
evidence. First Community Bank N.A. v. First Tennessee Bank N.A.,
12/14/15, Knoxville, Bivins, unanimous, 41 pages.
http://www.tncourts.gov/sites/default/files/firstcommunitybankopn.pdf

WORKERS COMP APPEALS PANEL

WORKERS COMPENSATION: Evidence did not preponderate against
trial courts finding that employee, nurse, sustained compensable injury to
her hip when treating physician provided C-32 that affirmatively stated that
employees hip condition was related to her work injury and when
evaluating physician testified that work injury caused worsening preexisting labral damage; evidence did not preponderate against trial courts
finding that employees nerve dysfunction was related to surgery and
subsequent nerve blocks; although there were several factors that would
have permitted trial court to make smaller award, evidence did not
preponderate against trial courts award of 45% permanent disability when
hip specialists notes documented continuing pain at end ranges of
motion, residual dysfunction, inflammation, and irritability of hip
joint, when evaluating physician stated that employees activities would be
somewhat limited by pain and that employee was at increased risk of
arthritis in joint, and when trial court stated that employee was nurse now
employed at higher paying nursing position that is more sedentary than
floor nurse but that her limitations make it difficult to work full time as
floor nurse; trial court erred by ordering employer to hold employee

harmless for medical expenses associated with treatment from unauthorized

physicians when employee did not make any effort to communicate her
dissatisfaction with panel doctor or request additional neurological
evaluation before going to her gynecologist who referred her to another
doctor. Alford v. HCA Health Services of Tennessee Inc., 12/15/15,
Nashville, Cantrell, 13 pages.
http://www.tncourts.gov/sites/default/files/alford-hca.opnjo_.pdf

COURT OF APPEALS
TORTS: When plaintiff filed healthcare liability action against doctor in
2000, voluntarily nonsuited case in 2008, and refiled action in 2009,
defendant moved to exclude plaintiffs standard-of-care expert for his
failure to produce certain financial documents, and trial court granted
motion and excluded expert five days before scheduled trial date, trial court
did not abuse discretion in failing to allow plaintiff to emergently arrange
for another expert in five days preceding scheduled date. Weatherspoon v.
Minard, 12/14/15, WS, Stafford, 11 pages.
http://www.tncourts.gov/sites/default/files/weatherspoondopn.pdf

DAMAGES: When inmate was injured in fall out of pickup truck that was
being operated by state employee, inmate filed complaint with Claims
Commission alleging states negligence and seeking damages for, among
other things, medical expenses that were incurred as result of fall, state
argued that it should receive credit against any award of damages for
medical expenses inmate incurred during his incarceration because it paid
those expenses through its contracts with two private medical vendors, and
Claims Commission held that evidence of payments made by medical
vendors for inmates treatment was barred by collateral source rule and
awarded $125,000 in damages, which included damages for medical
expenses that inmate allegedly incurred, because state was required by law
to pay for all medical expenses inmate incurred during his incarceration,
Claims Commission erred in considering cost of medical services provided
to inmate in calculating his damages; because Claims Commissions order
does not specify dollar amount assigned to each measure of damages and, in
particular, what portion of total award is attributable to medical expenses
inmate incurred during incarceration, entire award is vacated and matter is
remanded for new trial on damages; on remand, Claims Commission is not
to award inmate damages for medical expenses incurred during his
incarceration. Holliday v. State, 12/16/15, WS, Goldin, 10 pages.
http://www.tncourts.gov/sites/default/files/hollidayterryopn.pdf

EMPLOYMENT: In suit by three former police officers (plaintiffs) under

Tennessee Public Protection Act (TPPA) claiming they were terminated by
Union City Police Department, after they were interviewed by TBI about
another officers (Hoggs) conduct, for refusing to remain silent about
illegal actions, trial court properly granted Union City (City) summary
judgment when City submitted evidence that plaintiffs were discharged for
at least one legitimate, non-pretextual reason they possessed and withheld
information pertaining to another officers criminal activity and thereby
affirmatively negated final element of plaintiffs TPPA claim, i.e., sole
causation; plaintiffs argued that Citys written reporting policy has chilling
effect on reporting illegal activities, but Citys written policy requires
officers having knowledge of other members violating laws to report such
violations in writing to chief of police through official channels, and policy
does not discourage employee from reporting illegal conduct but, rather,
encourages and even mandates reporting. Jones v. City of Union City,
12/17/15, WS, Gibson, 22 pages.
http://www.tncourts.gov/sites/default/files/jonesdavidopn_0.pdf

COMMERCIAL LAW: In case in which decedent executed durable

power of attorney naming her son as her attorney-in-fact in 2001, decedent
suffered stroke in 8/07, which rendered her incompetent, after decedents
stroke, son utilized power of attorney to conduct numerous transactions
involving decedents money directly benefiting himself and his corporation,
decedent died in 12/09, and administrator of decedents estate filed suit
against son and his corporation (defendants) alleging that son had breached
his fiduciary duty to decedent and committed conversion of decedents
property, evidence did not preponderate against trial courts findings that
son improperly converted decedents funds for his own benefit and benefit
of his corporation and that defendants failed to prove that money at issue
represented gifts under power of attorney pursuant to TCA 34-6-110.
Conkin v. Mettetal, 12/17/15, ES, Swiney, 26 pages.
http://www.tncourts.gov/sites/default/files/conkinjaadministratoropn.pdf

PROPERTY: Because Memphis Light, Gas, and Water Division (MLGW)

does not meet definition of utility under Pole Attachment Act (Act), 47
USC 224, provisions of Act are not mandatory on MLGW; MLGW has
right to condemn property for public purpose of providing utilities in area.
City of Memphis v. Tandy J. Gilliland Family LLC, 12/16/15, WS,
Armstrong, 11 pages.
http://www.tncourts.gov/sites/default/files/gillilandtandyopn.pdf

FAMILY LAW: In divorce case, trial judge properly denied husbands

request to testify by telephone over objection of wife husband, who is
employed out of country, was allowed to be present by telephone for

purpose of listening to proceedings and assisting counsel, but he was not

permitted to testify without consent of wife; trial court properly denied
husbands motion for invocation of witness sequestration rule as to wifes
father (Bower) when Bower did not testify at any time during proceeding,
and even if Bowers action in whispering Reserved to wife during hearing
could be considering coaching wife, trial court immediately ruled in
husbands favor on reserved issue wife raised regarding possible
punishment associated with courts previous finding of contempt, and
husbands case was not prejudiced by wifes prompting court to rule on this
reserved issue; there is no bailment duty in Tennessee between spouses in
divorce action with regard to spouses personal property. Yocum v. Yocum,
12/15/15, ES, Frierson, 46 pages.
http://www.tncourts.gov/sites/default/files/yocum_opinion_final.pdf

FAMILY LAW: In case in which parties were divorced after almost 29

years of marriage, evidence did not preponderate against trial courts
division of parties assets 55% (or around $700,000) to wife and 45% to
husband when wife was awarded martial residence and husband was
awarded parties jointly-owned business; evidence preponderated against
trial courts decision to impose upon husband some 99% of parties marital
liabilities when trial courts allocation of marital debt was hugely favorable
to wife and served to change 55% to 45% division of marital estate to
something more akin to 60% to 40% in wifes favor; allocation of marital
debt is modified to assign 55% of marital debt to husband and 45% to wife;
trial court abused discretion in requiring husband to pay wife $4,500 in
attorney fees when wife will leave marriage with greater assets than
husband, and trial courts attorneys fee award appears to have been
intended to punish or sanction husband. Neas v. Neas, 12/15/15, ES,
Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/neasklopn.pdf

FAMILY LAW: Trial court did not abuse discretion in awarding husband
$500,000 in alimony in solido to be paid in equal installments of $4,167 per
month when wife was awarded significant portion of marital estate and
enjoys much higher earning potential as result of division, and husband is
entitled to award of alimony in solido to equalize division and account for
his lesser earning potential. Hardin v. Hensley-Hardin, 12/18/15, ES,
McClarty, 23 pages.
http://www.tncourts.gov/sites/default/files/hardinopn_4.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In murder case, trial court properly
instructed jury on self-defense when instructions were taken verbatim from
pattern jury instructions; Tennessee Pattern Jury Instruction Committee is
invited to visit issue of whether revision to instructions is warranted to
include, as element of each offense charged and each lesser included
offense, requirement that state negate self-defense in order to better convey
to jury states burden of proof regarding negating of non-affirmative
defenses beyond reasonable doubt. State v. Slimick, 12/17/15, Nashville,
Williams, 40 pages.
http://www.tncourts.gov/sites/default/files/slimick_final_form.pdf

CRIMINAL LAW: In case in which defendant was convicted of 11

counts of aggravated kidnapping, because trial judge erred in failing to
instruct jury in four of counts as provided by State v. White, 362 SW3d 559
(Tenn. 2012), four of defendants aggravated kidnapping convictions,
involving two victims, are reversed when question of whether defendants
confinement of two individuals was essentially incidental to accompanying
aggravated robbery was subject to different interpretations by jury and was
not harmless beyond reasonable doubt. State v. Pryor, 12/18/15, Knoxville,
Ogle, partial dissent by Williams, 17 pages.
http://www.tncourts.gov/sites/default/files/in_the_court_of_criminal_appeals_of_tennesseeat_knoxvilleseptembe.pdf

http://www.tncourts.gov/sites/default/files/pryor_dissent_remand.pdf

EVIDENCE: In case in which defendant was convicted of two counts of

aggravated child abuse and one count of aggravated assault as lesser
included offense of aggravated child neglect, although trial judge erred by
allowing jury to hear portion of defendants statement in which he admitted
to prior bad acts, error was harmless when only past trouble revealed to
jury was defendants statement during his second interview with police that
he broke into his girlfriends apartment to leave her flowers and lunch,
which was not particularly prejudicial to offenses at issue; defendants
aggravated assault conviction is reversed because aggravated assault is not
lesser included offense of aggravated child neglect; defendants two
aggravated child abuse convictions are affirmed. State v. Hodges, 12/17/15,
Nashville, Ogle, 15 pages.
http://www.tncourts.gov/sites/default/files/hodgesmichaeldeanopn.pdf

CRIMINAL PROCEDURE: Trial court erred in finding that defendants

consent to blood draw was not voluntary under totality of circumstances
when defendant, who testified that, after his arrest, he felt that he had no
choice but to consent to blood draw, gave express consent to and

cooperated with blood draw and never expressly revoked his implied
consent and thus, officer, who testified that he read implied consent form to
defendant, was authorized by implied consent statute to take defendants
blood without warrant. State v. Smith, 12/15/15, Jackson, Easter, dissent by
Williams, 12 pages.
http://www.tncourts.gov/sites/default/files/smithadopn.pdf
http://www.tncourts.gov/sites/default/files/a.d._smith_dissent.pdf

CRIMINAL PROCEDURE: Defendants advanced age and ignorance

about criminal justice system does not necessarily amount to defendants
statement to police being involuntary, and officers do not have duty to
research defendants intelligence level or age before questioning him. State
v. McAllister, 12/16/15, Nashville, Wedemeyer, 17 pages.
http://www.tncourts.gov/sites/default/files/mcallisteropn.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: When employee, unit secretary at
hospital, sustained work-related injury on 2/10/15, diagnosed as bilateral
carpal tunnel syndrome, employer accepted claim as compensable,
employer terminated employee for cause on 4/3/15, authorized treating
physician placed restrictions upon use of employees arms following each
carpal tunnel release, employee testified that she could have performed her
job duties within her light-duty restrictions following her left carpal tunnel
release on 4/8/15, she testified regarding her inability to perform her job
duties based upon restrictions following her right carpal tunnel release on
5/27/15, and there was no proof at Expedited Hearing that hospital could
have accommodated employees light-duty restrictions if she had not been
terminated, employee demonstrated likelihood of prevailing at hearing on
merits as to her entitlement to temporary total disability benefits; employer
contends that employees termination for cause precludes her from
receiving temporary disability benefits even though hospital could not have
accommodated her light-duty restrictions had she remained employed, but
employer cannot avoid paying temporary disability benefits when employer
has no light-duty work within injured workers restrictions. Spain v. Health
South Cane Creek Rehab Hospital, 8/4/15, Jackson, Phillips, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1147&context=utk_workerscomp

WORKERS COMPENSATION: Employee, who reported gradually

occurring lower back and left leg injury to employer, did not come forward
with sufficient evidence from which to conclude that she is likely to prevail
at hearing on merits when authorized treating physician determined that
diagnoses from which employee suffered were not work related and very

likely pre-existing. Newport v. BSH Home Appliance Corp., 7/16/15,

Kingsport, Addington, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1137&context=utk_workerscomp

FORMAL ETHICS OPINION

PROFESSION OF LAW: Lawyers have ethical obligations to preserve
client files and to return them or permit access to them by client if
requested. Formal Ethics Opinion 2015-F-160, 12/11/15, 8 pages.
https://s3.amazonaws.com/bpr_website/pdf_downloads/pdfs/000/000/109/original/Formal_Ethics_Opinion_2015-F-160.pdf?1450130461

If you would like a copy of the full text of any of these opinions, simply
click on the link provided or, if no link is provided, you may respond to
this e-mail or call us at (615) 661-0248 in order to request a copy. You
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