TAM-BYTES

September 1, 2014
Vol. 17, No. 35

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).
*Earn 1 hour of GENERAL credit.

Business Entity Laws in Tennessee: Tips for Litigators from Richard
Spore, 60-minute audio conference presented by Richard Spore, Memphis
attorney, on Thursday, October 9, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

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.

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Tennessee Workers Comp Conference
Thursday & Friday, November 20-21
Embassy Suites Nashville-South/Cool Springs

HI GHLI GHTS: Gain insight from new judges on the Court of Workers'
Compensation Claims and the Workers' Compensation Appeals Board; get review
of changes that took effect on July 1 -- including the new permanent partial
disability formula, the new standard developing medical proof regarding
causation, adjustments to physician panel process, and modification issues; gain
insight from Department of Labor and Workforce Development directors on
employee misclassification, "new" request for assistance process, and ombudsman
program; hear a doctor's perspective on everyday pain management of workers'
comp claims; the Attorney Track features an extended session, along with a panel
discussion, on how the new court system will work, as well as a session on ethical
issues arising under the new law; the Employer Track covers issues such as the
new procedure for obtaining medical records, claims management, workers' comp
defenses, best practices for preventing retaliatory discharge, issues that arise when
employees are injured in transit, and supervisor training in managing claims under
the new law; and get a review of the latest cases from the Tennessee Supreme
Court and the Workers' Compensation Appeals Panels.

FACULTY: Judge Tim Conner, Workers' Compensation Appeals Board judge;
Chief Judge Ken Switzer, chief judge of the Court of Workers' Compensation
Claims; Judge Pam Johnson, Judge Allen Phillips, and Judge Jim Umsted, of
the Court of Workers' Compensation Claims; Robert Durham, Director of
Benefit Review with the Department of Labor & Workforce Development;
Richard Murrell, Director of Quality Assurance with the Department of Labor &
Workforce Development; Scott Yarbrough, Director of the Compliance Program
at the Department of Labor & Workforce Development; attorneys Barret
Albritton, Mary Dee Allen, Fred Baker, Leslie Bishop, Kitty Boyte, Allison
Cotton, John Dreiser, Jason Ensley, Pele Godkin, Steve Karr, Mary Beth
Maddox, Blake Matthews, Stephen Morton, and Julie Reasonover; and Dr.
Jeffrey Hazlewood, who practices physical medicine and rehabilitation in both
Lebanon and Murfreesboro.
*Earn up to 13 hours of CLE credit, including 1 hour of DUAL credit.

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Family Law Conference for Tennessee Practitioners
Thursday & Friday, December 4-5
Nashville School of Law

TOPI CS: The Family Law Conference for Tennessee Practitioners packs two days
with judges and leading authorities delivering critical family law practice guidance on
the hottest topics and some of the most complex issues youll face, including, the
impact of current technology on divorce discovery, obtaining restraining/protection
orders in cases involving domestic violence, the standard for changing custody, the
effect of cohabitation on alimony, common evidentiary issues in domestic relations
litigation, relocation of the primary residential parent, drafting tips for prenuptial
agreements, agency and DCS adoption issues, factors to consider in making an
equitable division of a marital estate, a wireless and paperless law office, imputing
income to an unemployed/underemployed parent, ethical considerations for family law
practitioners, and locating, valuing, and dividing assets.

FACULTY: Judge Mike Binkley, circuit court, 21
st
Judicial District; Judge Robert
L. Childers, Shelby County circuit court; Judge Jeff Hollingsworth, Hamilton
County circuit court; and Judge Phillip Robinson, Davidson County circuit court; and
attorneys, Amy J. Amundsen, Memphis; Rebecca Byrd, Franklin; Dawn Coppock,
Strawberry Plains; Lisa J. Hall, Knoxville; Larry Hayes, Jr., Nashville; Sean
Martin, Nashville; Kevin Shepherd, Maryville; and Greg Smith, Nashville.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.


IN THIS WEEKS TAM-Bytes

Supreme Court, in FELA case, says that although ruling that notice
instruction given by trial court was substantially accurate, in future, more
precise statement regarding notice required to establish breach of duty
would include language regarding whether railroad knew or should have
known at time sufficiently before incident in question such that railroad
could have taken action to prevent incident or ameliorate its effects;
Supreme Court says TCA 29-20-101 to 408, which allows governmental
entities to pool resources in order to address liabilities created under
Governmental Tort Liability Act, is not subject to Tennessee uninsured
motorist coverage requirements;
Supreme Court reverses defendants second degree murder conviction
when prosecutor impermissibly commented upon defendants right to
remain silent and not testify at trial and violated defendants due process
rights by failing to turn over, until after trial, third statement key witness
gave to law enforcement officers investigating murder; and
Court of Appeals reverses trial courts decision to increase wifes alimony
in futuro award by $1,000 per month when wifes potential federal tax
liability associated with her receipt of alimony did not constitute
substantial and material change in circumstance.


SUPREME COURT

WORKERS COMPENSATION: When plaintiff, who was injured while
pulling switch for employer railroad, filed suit for negligence under Federal
Employers Liability Act, instruction given by trial court stated that plaintiff
must prove that railroad knew or should have known that on the day of the
incident, switch was not operating properly, and jury returned verdict in favor
of railroad, instruction provided by trial court was substantially accurate and,
therefore, was not erroneous; in future, more precise statement regarding notice
required to establish breach of duty would include language regarding whether
railroad knew or should have known at time sufficiently before incident in
question such that railroad could have taken action to prevent incident or
ameliorate its effects. Spencer v. Norfolk Southern Railway Co., 8/29/14,
Knoxville, Wade, unanimous, 9 pages.
http://www.tncourts.gov/sites/default/files/spencerandrewopn.pdf

INSURANCE: TCA 29-20-401 to 408, which allows governmental entities to
pool resources in order to address liabilities created under Governmental Tort
Liability Act, is not subject to uninsured motorist coverage requirements of TCA
56-7-1201 to 1206; TCA 29-20-401(d)(1) plainly exempts special funds created
by agreement of governmental entities and consisting of pooled funds of
governmental entities from Tennessees insurance statutes; because insurance
statutes do not apply, uninsured motorist vehicle coverage statute is necessarily
inapplicable and cannot be written into Coverage Document Tennessee Risk
Management Trust issued to Anderson County. Harris v. Haynes, 8/26/14,
Knoxville, Clark, unanimous, 9 pages.
http://www.tncourts.gov/sites/default/files/harrisdm_opn.pdf

CRIMINAL PROCEDURE: In second degree murder case, because lead
prosecutors remark during final closing argument at trial amounted to
constitutionally impermissible comment upon defendants exercise of her right
to remain silent and not testify, defendants conviction is reversed and case is
remanded for new trial; prosecutor also violated defendants due process rights
by failing to turn over, until after trial, third statement key witness gave to law
enforcement officers investigating murder. State v. J ackson, 8/22/14, Jackson,
Clark, unanimous, 52 pages.
http://www.tncourts.gov/sites/default/files/jacksonn_opn.pdf


WORKERS COMP PANEL

WORKERS COMPENSATION: Evidence did not preponderate against trial
courts finding that employee did not have meaningful return to work, meaning
that award for permanent partial disability was not limited to 1.5 times his
medical impairment, when doctor imposed 50-pound lifting restriction on
employees activities when he returned to work, employees pre-injury position
as general laborer required him to move rolls of rubber weighing 500 pounds, 5-
gallon glue buckets weighing 70 pounds, and 80-pound seam machines, trial
court found that employee was returned to same job, his duties exceeded his
lifting restrictions, he could not perform these duties without pain, employer did
not offer any testimony from any of its other employees who could describe
work employee was expected to perform, and trial court found that employer
was also on notice that employee was unable to perform his job duties because,
due to pain he experienced upon his return to work, employee became ill and
spent half of day sitting in company truck; despite reservations about employees
character and credibility of his testimony employee had numerous convictions
for shoplifting proper focus is whether employees decision to leave his
employment was reasonably related to his workplace injury. Peterson v.
McMillans Roofing & HVAC, 8/25/14, Knoxville, Wade, 8 pages.
http://www.tncourts.gov/sites/default/files/petersonmichaelopn.pdf


COURT OF APPEALS

FAMILY LAW: Evidence preponderated against trial courts decision to increase
wifes alimony in futuro award by $1,000 per month when wifes potential federal
tax liability associated with her receipt of alimony did not constitute substantial
and material change in circumstance as it was not unforeseen circumstance at
time of divorce when divorce decree, itself, referred to how taxes are to be paid
and recited tax allocation as factor in awarding wife alimony in futuro. Salvucci v.
Salvucci, 8/26/14, WS, Kirby, 17 pages.
https://www.tba.org/sites/default/files/salvuccit_082614.pdf

FAMILY LAW: In case in which parties were awarded equal parenting time
with their three sons at time of divorce, both parents filed petition to modify
parenting plan and sought to be named primary residential parent, and trial court
named father as primary residential parent of parties oldest son, but continued
parties equal parenting arrangement for two younger sons, trial court did not
abuse discretion in determining that it was in best interest of parties oldest son
to be away from his two younger brothers for limited time period every other
week when father testified that he had observed increase in sibling rivalry
between oldest son and two younger sons and some inappropriate aggressive
tendencies, and oldest son testified that his younger brothers do not mind at
mothers house, that time away is good just to kind of cool down, and
sometimes we just need some time apart. Rousos v. Boren, 8/26/14, WS at
Nashville, Highers, 29 pages.
http://www.tncourts.gov/sites/default/files/rousosdanielp.opn_.pdf

FAMILY LAW: In divorce case, trial court, in accepting calculation of
$134,085 promissory note as liability for one business co-owned by husband,
failed to require value of same amount as note receivable for business collecting
payment on debt, owned 50% by husband, and as such, trial courts valuation of
business collecting payment on debt is increased by one-half amount of
applicable note receivable, or $67,041; trial court erred by attributing to husband
full liability for third business, limited liability company in which husband owns
one-half interest, and as such, allocation for that liability is reduced by one-half,
or $45,690, increasing total modification of value of husbands net assets
awarded by trial court by amount of $112,732 wife is awarded 48% of this
increase, or $54,111, commensurate with what was trial courts equitable
distribution of marital property; case is remanded for determination regarding
proper method of distribution for this additional award to wife. Browne v.
Browne, 8/27/14, ES, Frierson, 42 pages.
http://www.tncourts.gov/sites/default/files/browne_opinion_final.pdf

CIVIL PROCEDURE: In legal malpractice case in which plaintiffs alleged that
defendant was negligent in her representation of plaintiffs in suit involving
nuisance, trial court properly granted defendant summary judgment based on
statute of limitation; plaintiffs suffered actual injury when underlying suit was
dismissed for failure to comply with discovery order, as plaintiffs then were
forced to take further action which otherwise would have been unnecessary, i.e.,
to pay fees in order to have their suit refiled; letter of 8/19/09 from one of
plaintiffs to defendant shows that plaintiffs knew or should have known of
defendants wrongful or negligent conduct by date of letter, at latest, plaintiffs
did not show fraudulent concealment, statute of limitation began to run as of
date of 8/19/09 letter at latest, and plaintiffs suit, which was filed on 9/21/10,
was filed outside of statute of limitation. Dennison v. Overton, 8/25/14, ES,
Swiney, 12 pages.
http://www.tncourts.gov/sites/default/files/dennisoneopn.pdf

CIVIL PROCEDURE: Trial court erred in finding that plaintiffs response to
defendants motion for summary judgment was untimely; pursuant to TRCP
56.04, period of time prescribed or allowed for plaintiff to serve and file response
to defendants motion for summary judgment was no later than five days prior to
hearing; as five days is less than 11 days, pursuant to TRCP 6.01, intermediate
Saturdays and Sundays are excluded from computation; since TRCP 56 phrases
time period allowed as not later than five days before the hearing, it makes
sense logically to calculate allowed period of time by counting backwards from
date of hearing; day before hearing, 3/21/13, is first day; TRCP 6.01
unambiguously provides that last day of period so computed shall be included
unless it is Saturday, Sunday, or legal holiday; from 3/21/13 counting backward
to 3/15/13, day plaintiff filed response, and excluding Saturday, 3/16/13, and
Sunday, 3/17/13, there are exactly five days. Cartwright v. Tennessee Farmers
Mutual I nsurance Co., 8/21/14, ES at Nashville, Swiney, 9 pages.
http://www.tncourts.gov/sites/default/files/cartwrights.m.opn_.pdf

CIVIL PROCEDURE: Trial court did not abuse discretion by imposing
sanctions against appellants when appellants missed several discovery deadlines,
failed to file all of exhibits to their depositions, and failed to pay fine for
contempt and attorney fees. First Tennessee Bank N.A. v. Shelby Village
Mobile Home Park LLC, 8/26/14, MS, Jackson, 11 pages.
http://www.tncourts.gov/sites/default/files/firsttennbank.opn_.pdf

CIVIL PROCEDURE: In suit by former police officer at Tennessee State
University against university, Tennessee Board of Regents, and chief of
university police department under Tennessee Human Rights Act, Tennessee
Public Protection Act, and Title VII, grant of summary judgment is vacated
when neither written order nor oral ruling stated legal grounds for grant of
summary judgment, and trial court did not state findings of fact. Hardy v.
Tennessee State University, 8/21/14, MS, Dinkins, 6 pages.
http://www.tncourts.gov/sites/default/files/hardyk.opn_.pdf

GOVERNMENT: In case in which petitioner filed application with Decatur
County Beer Board (Board) requesting license for sale and storage of packaged
beer in location within Decatur County (County), but outside any incorporated
city or town, and Board denied petitioners application because petitioners place
of business was located approximately 625 feet from church, violating 2,000-
foot distance ordinance, trial court erred in reversing Boards decision on basis
that sale of beer was allowed due to Countys status as Tennessee River resort
district; Countys ordinance restricting sale of beer within 2,000 feet of church
remains in effect despite Countys status as Tennessee River resort district.
Wood v. Decatur County, 8/25/14, WS, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/woodbopn_0.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: Trial court erred in constructively amending
Count 10 of presentment, charging defendant with driving on suspended license,
after jeopardy attached by instructing jury on offense of driving without license
in possession; because trial court constructively amended indictment by
permitting jury to convict the defendant upon a factual basis that effectively
modifies an essential element of the offense charged, defendants conviction for
driving without drivers license in his possession is dismissed; trial judge erred
in allowing police officers to testify about defendants gang affiliation when
there was no evidence suggesting that murder in question was related to any
gang activities, but error was harmless when evidence supporting defendants
murder conviction was overwhelming. State v. Smith, 8/27/14, Knoxville,
Smith, 21 pages.
http://www.tncourts.gov/sites/default/files/smithrichardcleophusopn.pdf

EVIDENCE: In case in which defendant was convicted of evading arrest while
operating motor vehicle in which flight or attempt to elude created risk of death
or injury to innocent bystanders or other third parties, trial judge properly denied
defendants motion to exclude testimony about private surveillance video
provided to police by Meneese, who had installed video surveillance system
monitored by seven security cameras, around her property because she had
problems with individuals trespassing on her property; even assuming that state
had duty to preserve video, degree of negligence in states failing to do so was
simple negligence after officer viewed video, he asked Meneese if police
might be able to get copy of it for evidence, Meneese testified that she tried to
make copy but did not know how, and that, unbeknownst to her, her computer
hard drive taped over video after 30 days. State v. Gaines, 8/22/14, Nashville,
Ogle, 12 pages.
http://www.tncourts.gov/sites/default/files/gainesladarronopn.pdf


SIXTH CIRCUIT COURT OF APPEALS

EMPLOYMENT: When employer began testing employees at its
manufacturing facility for substances appearing in both illegal drugs and in
prescription medications packaged with warnings about operating machinery,
plaintiffs, none of whom have disability under Americans with Disability Act
(ADA), worked at facility and took prescribed medications for variety of
conditions, after these employees tested positive, employer directed employees
to disclose their medications to third party company hired to administer drug
tests, third party company reported machine-restricted drugs to employer,
employer warned plaintiffs to discontinue using offending medications,
employer terminated plaintiffs after retests came back positive, and plaintiffs
filed suit alleging that employer violated 42 USC 12112(d)(4)(A) of ADA,
which prohibits employers from requiring medical examination[s] or
mak[ing] inquiries of an employee as to whether such employee is individual
with a disability unless such examination or inquiry is shown to be job-
related and consistent with business necessity, and jury found for all but one of
plaintiffs, district courts conclusion that employers drug-testing protocol
constituted either medical examination or disability inquiry as matter of law is
vacated; accepting EEOCs fact-bound definitions of medical examination and
disability-related inquiry as reasonable, reasonable jury could decide these
issues either way; case is remanded for trial on whether employers drug testing
constituted medical examination or disability inquiry. Bates v. Dura Automotive
Systems I nc., 8/26/14, Cook, dissent by Gibbons, 28 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/10a0339p-06.pdf

CRIMINAL SENTENCING: District court properly determined that
petitioner, Tennessee prisoner under sentence of death, suffers from deficits in 2
of 10 areas of adaptive behavior, thereby satisfying second prong of statutory
definition of intellectual disability; because under non-prevailing standards for
adjudicating claims of intellectual disability, Tennessee Court of Criminal
Appeals used erroneous causation analysis with respect to third prong of early
onset, petitioner is entitled to habeas relief conditioned on new evidentiary
hearing before state trial court; post-conviction hearing given to petitioner did
not meet retroactively applicable substantive and procedural standards set forth
in Coleman v. State, 341 SW3d 221 (Tenn. 2011); state courts application of
Tennessee law with regard to whether petitioner is intellectually disabled under
Atkins v. Virginia, 536 US 304 (2002), was contrary to clearly established
federal law; case is remanded to district court so that it may grant conditional
writ of habeas corpus prohibiting execution unless state completes new Adkins
hearing consistent with this opinion. Heck Van Tran v. Carlson, 8/25/14,
Rogers, 42 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0203p-06.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