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TAM-BYTES

December 28, 2015


Vol. 18, No. 52
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
Judgment Collection in Tennessee -- Locating Assets and Collection
Methods that Work, 60-minute audio conference presented by Griffin
Dunham, with Emerge Law in Nashville, on Wednesday, February 24, at
2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Handling Uninsured and Underinsured Motorist Claims in
Tennessee, 60-minute webinar presented by Dan Coughlin, with
Massengill, Caldwell & Coughlin in Bristol, on Thursday, February 25, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour 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 approves changes to rules regulating licensing of
attorneys, including easing provisions for attorneys who have
practiced in other jurisdictions and seek admission in Tennessee;
Court of Appeals rules plaintiff in healthcare liability action failed to
provide defendants with HIPAA-compliant medical authorization that
would allow them to request medical records from all other noticed
providers;
In healthcare liability action, Court of Appeals holds TCA 28-1-106
requires judicial adjudication of incompetency in order to toll statute
of limitation;
Court of Appeals says, in granting right to engage in collaborative
conferencing on terms and conditions of employment only to licensed
teachers while making employment of non-licensed personnel to be at
will of director of schools, legislature negated any policy, such as
school boards labor negotiations policy, which has effect of removing
directors discretion;
Court of Appeals says trial court did not abuse discretion by rejecting
attorney generals proposed plan for distributing remaining funds of
two non-profit public benefit corporations serving elderly; and

Court of Criminal Appeals says trial court should have merged


convictions for possession of cocaine in school zone with intent to
sell, possession of cocaine in school zone with intent to deliver, sale
of cocaine, and delivery of cocaine when other than proof that
conviction for possession with intent to sell occurred in school zone,
same evidence is used to support all convictions.

SUPREME COURT
PROFESSION OF LAW: Changes to Supreme Court Rule 7 include
allowing out-of-state lawyers to practice pending admission to practice in
Tennessee and permitting spouses of those in military to obtain temporary
law licenses in Tennessee while their active-duty spouse is stationed in
Tennessee or Fort Campbell, Ky. In re Amendments of Supreme Court
Rules 6, 7, and 8 (RPC 5.5), 12/21/15, Nashville, 57 pages.
http://www.tncourts.gov/sites/default/files/docs/order_amending_sct_rules_678__43_-_12-21-15.pdf

COURT OF APPEALS
TORTS: Trial court properly dismissed healthcare liability action based on
plaintiffs failure to comply with pre-suit notice requirement of TCA 29-16121 when eight healthcare providers Methodist Healthcare Germantown,
Methodist LeBonheur Hospital, Dr. Ellis, Mid-South Pulmonary Specialists,
Memphis Vascular Center, Memphis Radiological, P.C., Dr. Shelton, and
Dr. Donovan were given pre-suit notice, but HIPAA forms submitted by
plaintiffs only authorized Methodist LeBonheur Healthcare and its affiliates
to release medical records; plaintiffs failed to provide defendants with
HIPAA-compliant medical authorization that would allow them to request
medical records from all other noticed providers, and, hence, plaintiffs were
not entitled to 120-day extension of statute of limitation; relationship
between defendants and Methodist LeBonheur Healthcare is not fact that can
be judicially noticed, and complaint did not allege that Memphis Vascular
Center, Memphis Radiological, P.C., Shelton, and Donovan were affiliates
of Methodist LeBonheur Healthcare. Dolman v. Donovan, 12/23/15, WS,
Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/dolmanmelindaopn.pdf

TORTS: When plaintiff argued that statute of limitation in healthcare


liability action had been tolled because decedent had been adjudicated
incompetent within meaning of TCA 28-1-106, trial court properly
dismissed case upon finding that statute unambiguously required judicial

adjudication of incompetency in order to toll statute of limitation; plaintiff


contended that statute of limitation was tolled pursuant to TCA 28-1-106
because decedent met criteria for adjudicated incompetent at time of his
injury as he met criteria of unsound mind, term used in statute prior to
2011 amendment, but reading TCA 28-1-108 in conjunction with current
version of TCA 28-1-106, plaintiffs mental incompetency must have been
judicially adjudicated at time cause of action accrued. Johnson v. UHS of
Lakeside LLC, 12/23/15, WS, Stafford, 12 pages.
http://www.tncourts.gov/sites/default/files/johnsonceoopn.pdf

TORTS: Trial court properly granted defendants summary judgment in suit


by plaintiff who fell on sidewalk outside building owned by defendants
while delivering office supplies when he stepped off unmarked drop-off in
sidewalk; expert testimony was not prerequisite to establishing that sidewalk
or wheelchair ramp was unreasonably dangerous; defendants met their
burden of production by demonstrating that plaintiffs evidence at summary
judgment stage was insufficient to establish their claim for negligence by
submitting evidence to establish that build-out of building was inspected and
approved by city code officials and by submitting one plaintiffs deposition
that no other incidents had occurred at wheelchair ramp in 11 years since it
was constructed; plaintiffs failed to create genuine issue of material fact by
simply pointing to photographs of location and plaintiffs deposition
testimony that [a] little bit of paint would have made a difference and
solved all the problems. Steele v. PrimeHealth Medical Center P.C.,
12/22/15, WS, Gibson, 14 pages.
http://www.tncourts.gov/sites/default/files/steelegaryleeopn.pdf

TORTS: Trial court properly granted defendant summary judgment in suit by


plaintiff who fell in defendants fast-food restaurant and alleged that transition
from non-skid surface to tiled surface amounted to trap and that employees
were negligent in permitting foreign object, namely ice, to collect and remain
on floor; plaintiffs cannot identify hard object that actually caused fall and,
therefore, cannot establish that defendant caused dangerous condition or that
defendant had actual or constructive notice that condition existed long enough
to be discovered by proper diligence. Willis v. McDonalds Restaurants of
Tennessee Inc., 12/23/15, ES, McClarty, 7 pages.
http://www.tncourts.gov/sites/default/files/willisopn.pdf
COMMERCIAL L AW: When plaintiff construction company bid on state
project that involved disposing of waste dirt from construction site,
documents prepared by Tennessee Department of Transportation (TDOT)
identified nearby property that had wet weather conveyance on it, plaintiff
arranged with property owner to dump waste dirt on neighboring property,

based on this anticipated cost, plaintiff bid for project, before state accepted
plaintiffs bid, wet weather conveyance was reclassified by Tennessee
Department of Environment and Conservation as stream, this change in
classification meant that plaintiff was no longer able to dump waste dirt on
neighboring property, TDOT learned of reclassification prior to accepting
plaintiffs bid and changed project plans after it awarded project to plaintiff,
and plaintiff incurred unexpected costs and delays as result of
reclassification of wet weather conveyance but state refused to compensate
it, Claims Commission erred in finding it lacked subject matter jurisdiction
over breach of contract claim given that plaintiffs claim is not predicated on
states regulatory activity; Claims Commission did not err in denying
plaintiffs motion to amend complaint to add claim for negligent preparation
of plans because plaintiff does not fall within group TCA 9-8-307(a)(1)(L) is
meant to protect. Wright Brothers Construction Co. v. State, 12/22/15, MS,
Bennett, 14 pages.
http://www.tncourts.gov/sites/default/files/wrightbrothersopn.pdf

FAMILY LAW: Evidence did not preponderate against juvenile courts


determination, in finding child to be dependent and neglected, that child was
victim of severe child abuse at hands of her adoptive parents when record is
replete with proof of actions and inactions on part of parents that, when
taken as whole, clearly and convincingly support trial courts conclusion that
parents committed severe child abuse by neglecting to procure medical care
for child, by physically abusing child, and by locking child in her bedroom
for extended periods of time. In re C.M., 12/18/15, WS at Nashville,
Armstrong, 51 pages.
http://www.tncourts.gov/sites/default/files/inrecarolinam.opn_.pdf

GOVERNMENT: When director of schools notified union that represents


school districts service workers that, in accordance with 2011 amendment to
law governing employees of boards of education, he was rescinding school
boards labor negotiations policy (LNP), and union sought declaratory
judgment that policy was still in effect, trial court erred in holding that director
did not have authority to rescind policy; reading 2011 amendments to TCA 492-301 and amendments to Part 6 of Chapter 5 of Title 49 in pari materia,
legislature granted right to engage in collaborative conferencing on terms and
conditions of employment only to licensed teachers while making employment
of non-licensed personnel to be at will of director; in vesting sole discretion to
make employment decisions pertaining to non-licensed personnel in director,
legislature negated any policy, such as LNP, of board of education which has
effect of removing that discretion. Service Employees International Union
Local 205 v. Metropolitan Nashville Board of Public Education, 12/21/15,
MS, Dinkins, 8 pages.
http://www.tncourts.gov/sites/default/files/svc.emp_.v.metroopn.pdf

GOVERNMENT: In suit by tenured teacher alleging that her transfer from


Instructional Coach to classroom teacher was arbitrary, capricious, and contrary
to law, trial court erred in granting TRCP 12.02(6) motion to dismiss filed by
defendants (Knox County Board of Education and Superintendent of Knox
County Schools); rather than applying required standard applicable to TRCP
12.02(6) motion to dismiss, trial court instead did not take teachers factual
allegations as true for purposes of motion, made findings, and ruled on merits of
case; teachers claim may or may not succeed on its merits, but teachers
allegations that she was transferred arbitrarily without any consideration of her
evaluation results could warrant relief. Jones v. Knox County Board of
Education, 12/21/15, ES, Swiney, 7 pages.
http://www.tncourts.gov/sites/default/files/jonesswopn.pdf

GOVERNMENT: In case in which attorney general brought judicial


dissolution action against two non-profit public benefit corporations serving
elderly, trial court did not abuse discretion in rejecting attorney generals
proposed plan for distribution of liquidated non-profits remaining funds
when (1) proposed plan did not distribute funds to organizations which carry
on and serve charitable purposes of dissolved non-profit corporations, i.e.,
corporations serving elderly, (2) creation of new charitable foundation to
identify organizations and then to distribute the [f]unds is inefficient,
redundant, and will delay distribution to charitable recipients, as there are
already organizations in existence with resources to do this, and (3) after
setting up expectation that he would seek public input and use transparent
process, attorney general failed to do so; trial court is ultimate
decisionmaker with respect to distribution of non-profits funds. State ex rel.
Slatery v. SeniorTrust of Florida Inc., 12/22/15, MS, Bennett, 15 pages.
http://www.tncourts.gov/sites/default/files/seniortrust.opn_.pdf

COURT OF CRIMINAL APPEALS


CRIMINAL LAW: In case in which defendant was convicted of possession
of cocaine in school zone with intent to sell and deliver (Counts 1 and 2),
sale of cocaine (Count 3), and delivery of cocaine (Count 4) in connection
with his role in sale of cocaine to confidential informant, defendants
multiple convictions violate double jeopardy because other than proof that
conviction for possession with intent to sell occurred in school zone, same
evidence is used to support all convictions; defendants four convictions in
Counts 1 through 4 are merged into one conviction for possession of cocaine
in school zone with intent to sell. State v. Carero, 12/22/15, Knoxville,
Easter, 13 pages.
http://www.tncourts.gov/sites/default/files/careroziberiam.opn_1.pdf

CRIMINAL LAW: In case in which defendant pled guilty to DUI, because


trial court erred in denying defendants motion to suppress after holding that
officer had probable cause or reasonable suspicion to stop defendants
vehicle for being illegally parked in turn lane officer never testified that he
made stop because of traffic violation, instead, he testified that he stopped
defendants vehicle based on alleged domestic assault between defendant
and passengers defendants guilty plea is vacated, and indictment against
him is dismissed; although officer testified that he approached defendants
vehicle because of alleged domestic assault between defendant and
passenger outside car, video recording made by camera inside patrol car is
devoid of any evidence that domestic assault occurred. State v. Eayrs,
12/22/15, Knoxville, McMullen, concurrence by Easter, 14 pages.
http://www.tncourts.gov/sites/default/files/eayrskendallopn.pdf
http://www.tncourts.gov/sites/default/files/kendal_mckenzie_eayrs.concur_1.pdf

CRIMINAL PROCEDURE: In DUI case, evidence did not preponderate


against trial courts finding that defendant knowingly and voluntarily
consented to have her blood drawn when defendant, who had been convicted
of DUI on three prior occasions, was familiar with criminal justice system in
general and with procedures employed during DUI stop, twice interrupted
officers reading of implied consent form to express her willingness to have
blood test, as officer read section of implied consent form regarding
mandatory blood draw, defendant interrupted to say that she wanted test, and
once she was fully informed of consequences of refusing test, she again
eagerly expressed her willingness to have her blood drawn. State v. Richter,
12/22/15, Nashville, Ogle, 9 pages.
http://www.tncourts.gov/sites/default/files/richtercarlaopn.pdf

COURT OF WORKERS COMPENSATION CLAIMS


WORKERS COMPENSATION: In case in which employee, over-road
truck driver, asserts that he suffered serious mental injury because of verbal
altercation with another driver while he was picking up load for employer,
while employee alleged that other driver touched him, he did not claim he
sustained physical injury, so his claimed injury is purely mental injury;
employee did not show his mental injury was caused by identifiable stressful
work-related event producing sudden mental stimulus such as fright, shock,
or excessive, unexpected anxiety when employee did not claim driver who
accosted him was armed or realistically able to place him in physical danger
and when employee was able to contact his dispatcher during altercation,
was able to return to cab of his truck to await receipt of his load, was able to
drive away from warehouse without incident, and was able to deliver load on

time at its designation; employee did not establish his claim by expert
medical opinion when physicians assistant wrote, insomnia likely
secondary to patient[]s current stressors, including working and being away
from family for a long period of time. Ali v. USXpress Enterprises Inc.,
8/13/15, Chattanooga, Wyatt, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1152&context=utk_workerscomp

WORKERS COMPENSATION: Trial court properly granted employers


motion to dismiss claim based on employees failure to comply with portion
of Initial Hearing Order that required employee to provide discovery
responses and to disclose identity of his expert witnesses; while employee
proceeded without assistance of legal counsel, this does not excuse his
failure to comply with courts order. Sachs v. Johnson Controls, 8/13/15,
Nashville, Baker, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1153&context=utk_workerscomp

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