TAM-BYTES January 20, 2014 Vol. 17, No.

3
2014 TAM CLE CALENDAR

Onsite Events
7th Annual Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 2. *Earn up to 7.5 hours of CLE, including 1 hour of DUAL CLE. FACULTY: Judge Ross Hicks, Brandon Bass, Brian Cummings, Clint Kelly, Dulin
Kelly, Chris Tardio, and Thomas A. Wiseman, III.

PROGRAM HIGHLIGHTS:
Admissibility of expert testimony Application of the pre-suit notice requirements How Shipley changed the playing field Telling a compelling story and developing cohesive themes Using todays technology to win your case Voir dire selecting the right jury The future of damages caps in Tennessee Review of recent medical malpractice appellate court cases A panel discussion of hot topics in healthcare liability actions Ethical issues in screening and choosing medical malpractice cases and clients

For more information go to: www.mleesmith.com/tn-med-mal ******************************************************************* 2014 Tennessee Attorney Technology Conference, to be held in NASHVILLE on Friday, May 9. *Earn up to 7.5 hours of CLE, including 2 hours of DUAL CLE. FACULTY: Judge Thomas Brothers, Davidson County Circuit Court; William
Caldwell, Ortale, Kelley, Herbert & Crawford, Nashville; Kevin Levine, DeSalvo & Levine PLLC, Nashville; Caitlin Moon, C.MoonLaw, Franklin; and Clinton Sanko, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga

PROGRAM HIGHLIGHTS:
Most common cloud technologies serving lawyers How to develop a mobile law practice Effective use of technology in the courtroom Mechanics of document production Time and business management tips Practical applications of e-discovery Practical tips on how to request social media discovery Jury selection and trial presentation tools Protecting confidentiality of clients while going mobile Social media and content marketing for lawyers Technology and ethics in the practice of law

For more information go to: www.mleesmith.com/tn-tech

Audio Conferences
HIPAA: New Regulations, Its Implications, and Its Impact, 60-minute webinar presented by Elizabeth Warren, Nashville attorney with Bass, Berry & Sims, on Thursday, February 27, at 10 a.m. (Central), 11 a.m. (Eastern). Understanding the Basics of Tennessees DUI Laws: Information and Guidance for Tennessee Attorneys, 90-minute webinar presented by Rob McKinney, Nashville attorney with the Law Office of Rob McKinney, on Thursday, February 27 at 2 p.m. (Central), 3 p.m. (Eastern).
For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes In suit under Governmental Tort Liability Act by plaintiff who was injured when his motorcycle hit pothole, Court of Appeals affirms trial courts findings that city did not have actual or constructive notice of pothole; Court of Appeals remands divorce case for reevaluation of husband s unincorporated dental practice without consideration of professional goodwill; Court of Appeals rules trial judge erred in failing to recuse herself following judges disclosure of earlier patient-physician relationship with defendants expert witness in medical malpractice suit; Court of Appeals reverses trial courts decision holding unconstitutional TCA 49-9-112, which authorized transfer of administrative and financial

responsibilities relative to lease of University of Tennessee Memorial Research Center and Hospital employees to non-profit corporation; Court of Appeals upholds constitutionality of Senate Reapportionment Act of 2012, which reapportioned Tennessee State Senate following 2010 federal census; and Court of Criminal Appeals says robbery of business establishment in which multiple persons are present does not expand perpetrators due process protections such that he is free to move and/or detain multiple persons in order to commit single robbery without facing kidnapping convictions, at least as to those victims against whom he cannot be charged with robbery. WORKERS COMP PANEL WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employees 10 months of work for employer did not aggravate or advance his pre-existing ruptured disc and degenerative disc disease when trial court gave greater weight to testimony of Dr. Killeffer over that of Dr. Kennedy, Kennedy failed to articulate any mechanism of injury by which employees 10 months of work for employer advanced or accelerated employees pre -existing disease, and Kennedy admitted that those changes were well on their way before employees work with employer began. Beeler v. DeRoyal Industries Inc., 1/14/14, Knoxville, Daniel, 10 pages.
http://www.tncourts.gov/sites/default/files/beeler_v_deroyal_industriesopn.pdf

WORKERS COMPENSATION: Evidence did not support trial courts conclusion that employee sustained new compensable injury in 2008 when employee complained about pain and other problems involving his neck before he began working as plugger, evidence did not bear out doctors assumption that employees neck was asymptomatic before he began working as plugger, doctors assumption was based on less than complete set of employees medical records, and hence, record did not support foundation of doctors opinion that employee sustained new injury in 2008. Simpkins v. A. O. Smith Corp., 1/15/14, Nashville, Koch, 12 pages.
http://www.tncourts.gov/sites/default/files/simpkinsalbertopn__jo.pdf

WORKERS COMPENSATION: When employee sustained work-related injury to her shoulder while working as licensed practical nurse at hospital, she returned to work in modified duty position for several months after second shoulder surgery, she elected to have knee replacement surgery to remedy pre-existing arthritis that was unrelated to work, knee replacement surgery caused foot drop, employee exhausted her available leave time, and hospital terminated her employment, evidence preponderated against trial courts finding that employee was permanently and totally disabled when employee was capable of performing her work duties at time she

requested leave for knee surgery; trial court erred by finding that employee did not have meaningful return to work following her shoulder surgeries when employee continued to work in modified position until she took leave to have knee replacement surgery and hospitals HR director testified that hospital would have allowed employee to continue working in modified duty position indefinitely. Cawthon v. Baptist Memorial Hospital-Union City, 1/15/14, Jackson, Ash, 11 pages.
http://www.tncourts.gov/sites/default/files/cawthonopn.pdf

WORKERS COMPENSATION: Evidence did not preponderate against trial courts conclusion that employee did not have meaningful return to work when employer submitted that employee was terminated for various acts of misconduct, employee denied all allegations of misconduct other than late injury report, Maddox, HR manager for employer at time, testified that admitted violation, standing alone, would not normally provide basis for termination, Maddox, who no longer worked for employer at time of trial, could not authenticate any prior discipline, Vaughns, who continued to work for employer when trial occurred, had no personal knowledge of allegations against employee other than late injury report, Jordan, immediate supervisor, did not testify at trial, and no business records documenting allegations of misconduct were authenticated or introduced into evidence. Aramark v. Nix, 1/14/14, Nashville, Ash, 20 pages.
http://www.tncourts.gov/sites/default/files/aramark-nix_opn.pdf

COURT OF APPEALS TORTS: In suit under Governmental Tort Liability Act by plaintiff who was injured when his motorcycle hit pothole, evidence did not preponderate against trial courts finding that city had no actual notice of pothole when, while testimony of pothole foreman for city, along with repair logs that were admitted into evidence, revealed that section of road where pothole was located had been repaired approximately 11 times over approximately 18-month period, these repairs were made in general area of accident and there was no proof that this particular pothole or area of road was more troublesome than other areas; evidence supported trial courts finding that city did not have constructive notice of dangerous condition on roadway when, although there was testimony that water leaks may cause pothole to form overnight, there was no indication that city knew or should have known that repaired water leak may have recurred at specific location, necessitating further road repair at time of plaintiffs accident. Merrell v. City of Memphis, 1/16/14, WS, Stafford, 13 pages.
http://www.tncourts.gov/sites/default/files/merrellcopn.pdf

INSURANCE: Defendants insurance contracts with insurers (Travelers and CNA) provided that it would pay premiums for employees and all other persons who posed risk of workers compensation liability, pursuant to contracts, insurers both charged

defendant premiums for physical therapists (PTs) with whom defendant had contracted, and insurers filed suit seeking compensation for additional workers compensation premiums, Department of Commerce and Insurance (Department) ruled that defendant was not liable for additional premiums because PTs were independent contractors rather than employees, and trial court upheld Departments ruling, Department did not err in concluding that PTs are independent contractors, rather than employees, as defendant possesses little control over means by which PTs provide therapy to each patient, control employer exerts over PTs to ensure that they comply with Tennessee law is control over quality of service rather than control over means by which PTs provide their services, and such control over end-result rather than means of achieving it is indicative of independent contractor relationship; plain language of contract does not restrict provision to application only where TCA 50-6-113 might apply; had any of PTs been injured during policy periods and sought workers comp benefits from defendant, insurers would have had duty to defend suit at their expense, even if only to determine whether PT was employee or independent contractor, and defendant is obligated by policies to pay premiums for PTs in return for shifting that risk of litigation to insurers; Departments failure to address risk of loss basis for premiums constitutes error that resulted in its decision being unsupported by evidence that is substantial and material in light of record; defendant is liable for retrospective premiums to CNA for $44,089 and to Travelers for $97,522. Continental Casualty Co. v. Theraco Inc., 1/14/14, WS at Nashville, Farmer, 18 pages.
http://www.tncourts.gov/sites/default/files/continental_casualtycompanyopn.pdf

PROPERTY: In case in which widow lived on property, which was held in her husbands name, for over 20 years, believing that property belonged to her, evidence did not preponderate against trial courts findings that widow acquired ownership of property through adverse possession; it is not necessary to prove that widow knew that she was possessing land that belonged to someone else for court to find that she held property adversely; evidence was undisputed that widow possessed and used property openly and exclusively, putting world on notice that she claimed ownership of property. Estate of Woodard v. Franklin, 1/14/14, MS, Cottrell, 9 pages.
http://www.tncourts.gov/sites/default/files/woodardmb.opn_.pdf

PROPERTY: Evidence preponderated against trial courts finding that holders of easement (appellees) could use easement for recreational purposes when easement was limited to ingress and egress purposes from road to other parcels of land; because appellees use of easement was inconsistent with purposes of easement at its creation, it is unauthorized, and unauthorized use is trespass regardless of burden it places on servient estate. Shell v. Williams, 1/14/14, WS at Nashville, Stafford, 16 pages.
http://www.tncourts.gov/sites/default/files/shellj.opn_.pdf

FAMILY LAW: In divorce case in which husband is dentist who operated solo dental practice, trial court erred in adopting valuation of husbands dental practice as set forth by wifes expert (Henderson) when valuation erroneously considered professional goodwill of husbands practice; professional goodwill of business is not marital asset that can be divided in divorce proceeding; although Henderson distinguished between husbands personal goodwill in community and goodwill his practice would continue to enjoy with different practitioner in terms of equipment, staff, location, and established patients, such distinction may be considered in including business goodwill for valuation when practitioner has one or more partners or pre-established contracts that could be assumed by another practitioner, but in case of sole practitioner of unincorporated dental practice, whether husbands business could continue without him is speculative, leading to conclusion that goodwill of husbands practice should not be considered in valuing such practice; case is remanded to allow parties to present additional evidence regarding value of dental practice. Hartline v. Hartline, 1/13/14, ES, Frierson, 33 pages.
http://www.tncourts.gov/sites/default/files/hartline.pdf

CIVIL PROCEDURE: In medical malpractice case, trial judge erred in failing to recuse herself following judges disclosure of earlier patient-physician relationship with defendants expert witness; although trial judge was not presiding over matter in 2005 or 2006, when she was patient of defendants expert, it is objectively reasonable to believe that trial judges credibility assessment with respect to standard of care may be impacted positively or negatively by her personal knowledge and experience as former patient of expert witness; at very least, appearance of partiality arises where trial judge was patient of key expert witness in medical malpractice action during pendency of action in court, albeit in different division. Hall v. Randolph, 1/14/14, WS, Farmer, 5 pages.
http://www.tncourts.gov/sites/default/files/hallsandrabuckleropn.pdf

CIVIL PROCEDURE: In suit by school administrator alleging that his employment was terminated in violation of both Open Meetings Act and his contract of employment, trial court erred in granting school board summary judgment, on basis of laches, on administrators declaratory and injunctive relief claims pursuant to Open Meetings Act when school board did not show that it will be unable to defend against claims, that it has been disadvantaged, or that money or valuable services have been wasted as result of delay in filing claim, and hence, failed to show prejudice; trial court erred in granting summary judgment to school board on administrators breach of contract claim when, regardless of whether harm to reputation is appropriate measure of damages in breach of employment contract case, administrators failure to plead such damages pursuant to TRCP 9.07 was fatal to his claim. Hampton v. Macon County Board of Education, 1/10/14, WS at Nashville, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/hamptond.opn_.pdf

CIVIL PROCEDURE: In defamation suit, trial court erred in granting TRCP 12.02 motion to dismiss when pro se plaintiffs motion to amend their pleadings was still pending; in absence of any information concerning effect of plaintiffs civil procedure violations sending ex parte letter to court and failing to notice defendants of subpoenas or information obtained thereunder on defendants case, and in absence of any indication that ex parte communication resulted in prejudice, or that plaintiffs intentionally usurped courts authority, trial court acted outside its discretion in imposing drastic sanction of dismissal, harshest of penalties, without specific explanation and without exploring less drastic options for addressing plaintiffs rules violation. Cohen v. Clarke, 1/10/14, WS at Nashville, Stafford, 13 pages.
http://www.tncourts.gov/sites/default/files/hamptond.opn_.pdf

GOVERNMENT: In case in which nurse began working for University of Tennessee Regional Medical Center and Hospital in Knoxville when it was owned and managed by University of Tennessee (UT), UT executed lease and transfer agreement in 1999 pursuant to TCA 49-9-112 by which operation of medical center was transferred to University Health System, Inc. (UHS), private, non-profit corporation, hospital personnel, like nurse, who had been university employee prior to transfer, were thereafter leased by private, non-profit corporation from university, and nurse filed employment action, trial court erred in ruling that TCA 49-9-112, which authorized transfer of administrative and financial responsibilities relative to leased employees to UHS, was unconstitutional; delegation of administrative responsibility to UHS is within legislatures discretion, and hence, statute does not unconstitutionally delegate legislative authority; legislature has not extended credit of state to UHS, and hence, there is no violation of Tenn. Const. Art. II, Sec. 31. Womble v. University Health System Inc., 1/16/14, ES, McClarty, 23 pages.
http://www.tncourts.gov/sites/default/files/wombleopn.pdf

GOVERNMENT: Senate Reapportionment Act of 2012 (2012 PC 514), which reapportioned Tennessee State Senate following 2010 federal census, is constitutional; redistricting plan adopted by General Assembly in 2012 achieved population equality superior to plan urged by plaintiffs, eight Shelby County registered voters, did not divide any county more than once, achieved greater regional population equality, and crossed eight county lines in contrast to six crossed lines advocated by plaintiffs. Moore v. State, 1/10/14, WS at Nashville, Farmer, 14 pages.
http://www.tncourts.gov/sites/default/files/moorekermit_opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In case in which defendant was convicted of especially aggravated kidnapping and aggravated robbery, police officers admonition to

defendant to tell the detective everything the detective wanted to know, made prior to defendant receiving his Miranda warnings, did not render inadmissible defendants later statements, which were made after defendant received his Miranda warnings and after he waived his rights against self-incrimination and to assistance of attorney; criminal defendant cannot create conflict of interest (or appearance of impropriety) requiring disqualification of prosecutors office simply by filing federal lawsuit against office and its members; robbery of business establishment in which multiple persons are present does not expand perpetrators due process protections such that he is free to move and/or detain multiple persons in order to commit single robbery without facing kidnapping convictions, at least as to those victims against whom he cannot be charged with robbery; State v. White, 362 SW3d 559 (Tenn. 2012), requires expanded kidnapping instruction only when jury is required to determine whether defendant committed dual offenses of kidnapping and accompanying crime for which some measure of detention was necessary against the same victim. State v. Teats, 1/10/14, Nashville, Bivins, dissent by Tipton, 44 pages.
http://www.tncourts.gov/sites/default/files/teatsjopn.pdf http://www.tncourts.gov/sites/default/files/teatsjeromedis.pdf

CRIMINAL PROCEDURE: Trial court erred in instructing jury on aggravated kidnapping by failing to give instruction mandated by State v. White, 362 SW3d 559 (Tenn. 2012), and error was not harmless when evidence was capable of more than interpretation had jury been properly instructed, it could have concluded that state failed to show removal or confinement of victim by defendant that interfered with victims liberty beyond that necessary for defendant to assault victim; defendants aggravated kidnapping conviction is reversed, and case is remanded for new trial on that count; defendants dual convictions for aggravated assault and stalking did not violate double jeopardy when defendants convictions did not arise from same act or transgression, i.e., same continuous act. State v. Dockery, 1/15/14, Jackson, Smith, 20 pages.
http://www.tncourts.gov/sites/default/files/dockeryaopn.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to two counts of sexual exploitation of minor, child neglect, two counts of aggravated sexual battery, and two counts of rape of child, trial judge properly denied defendants motions to suppress when defendant had no expectation of privacy in seized materials recovered from defendants residence, which had been condemned for demolition by city, when defendant knowingly exposed illicit materials to anyone entering house, including city officials who entered house upon legal process, and defendant abandoned property, leaving it to whim of anyone entering house. State v. Ledford, 1/13/14, Knoxville, Witt, 13 pages.
http://www.tncourts.gov/sites/default/files/ledfordcharlesedgaropn.pdf

CRIMINAL SENTENCING: In case in which defendant, correctional officer, pled guilty to sexual contact with inmate and was sentenced to one year to be served on probation, trial judges denial of defendants request for judicial diversion is vacated; although trial judge determined that three factors supporting judicial diversion defendants absence of prior record, his social history, and circumstances of offense did not outweigh one factor against judicial diversion that public trust must be protected trial court did not specifically address status of defendants amenability to correction, his physical and mental health, or deterrence value to defendant and others; case is remanded in order for trial court to explain adequately on record why it denied defendants request for judicial diversion and why factors against judicial diversion outweighed factors supporting judicial diversion; proper standard of review when addressing judicial diversion is abuse of discretion with presumption of reasonableness. State v. Daniels, 1/16/14, Knoxville, Ogle, dissent by Williams, 11 pages.
http://www.tncourts.gov/sites/default/files/danielsstanleyopn.pdf http://www.tncourts.gov/sites/default/files/danielsdisopn4.pdf

CRIMINAL PROCEDURE: In case in which petitioner was convicted of first degree premeditated murder and sentenced to death, evidence did not preponderate against post-conviction courts finding that petitioner received effective assistance of counsel at both guilt and sentencing phases of trial. Stephenson v. State, 1/13/14, Knoxville, Page, 40 pages.
http://www.tncourts.gov/sites/default/files/stephensonjonathanopn.pdf

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