TAM-BYTES

May 25, 2015

Vol. 18, No. 21
2015 TAM CLE CALENDAR

Webinars
Affordable Care Act: Impact on Damages in Tennessee, 60-minute
webinar presented by Steven Fuller, Brentwood attorney, on Tuesday,
June 9, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Commercial and Residential Leases: Key Provisions,
Tenant Default, and More, 60-minute webinar presented by Joshua
Kahane, Memphis attorney, on Wednesday, June 17, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Qualifying for TennCare and VA Benefits: Use of Irrevocable
Trusts, 60-minute webinar presented by Alex M. Taylor, with
Kennerley, Montgomery & Finley in Knoxville, on Wednesday, June 24, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Life Care Plans: How to Defend a Claim for Future Medical
Expenses, 60-minute webinar presented by John Alexander, with
Rainey, Kizer, Reviere & Bell in Jackson, on Thursday, June 25, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Proving Defamation from the Use of Social Media: A Primer for
Attorneys, 60-minute webinar presented by Marcus Chatterton, with
Balch & Bingham in Birmingham, on Tuesday, June 30, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Maximizing Uninsured Motorist Coverage in Tennessee from the
Plaintiff's Perspective, 60-minute webinar presented by Laura Baker,

with the Law Offices of John Day in Brentwood, on Wednesday, July 8, at

10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information or to register for any of our CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com

On-Site Event

Personal Injury Law Conference for Tennessee

Attorneys
WHEN: Friday, September 25
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: 16th Judicial District Circuit Judge Mark Rogers; Laura
Baker, Law Offices of John Day; Brandon Bass, Law Offices of John Day;
Philip N. Elbert, Neal & Harwell; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson; Chris Tardio, Gideon, Cooper &
Essary; and Bryan K. Williams, Cornelius & Collins
HIGHLIGHTS: Review of recent personal injury cases; constitutionality
of caps on damages; recent developments in healthcare liability pre-suit
notice and certificate of good faith requirements and ex parte
communications; trial judges dos and donts for arguing for or against a
motion for summary judgment; handling complex subrogation and lien
issues; social media, the internet, and ESI challenges; effective direct
examination, cross-examination, and redirect; deposition strategies
preparing for deposition, preparing the witness, and taking the deposition;
and interplay of ethics, evidence, and experts.
To learn more or to register, visit: www.mleesmith.com/tn-personal-injury-law

IN THIS WEEKS TAM-Bytes

Supreme Court, in healthcare liability informed consent case, holds
trial court erred by limiting testimony of plaintiffs expert witness to
only those risks that allegedly materialized and injured plaintiff;

 Workers Comp Appeals Board rules that trial court incorrectly

determined that filing of affidavit with motion for expedited hearing is
unnecessary when party seeking expedited hearing testifies at hearing;
Court of Appeals reverses trial courts decision to order father to pay
50% of childrens tuition costs in case in which father was ordered to
pay mother $806 per month in child support for parties two children,
$469 each month toward child support arrearage, and $807 per month
for his federal income taxes and FICA payments; and
Court of Criminal Appeals says officer needs no suspicion or cause to
run the [drug] dog around stopped vehicle if he does it
contemporaneously with legitimate activities associated with traffic
violation.

SUPREME COURT
TORTS: When defendant performed spinal fusion on plaintiff, plaintiff
filed suit claiming that his back pain was caused by nerve compression due
to ectopic bone growth at site of fusion, plaintiff alleged that defendant
failed to give him adequate information to enable him to give informed
consent to surgery, and plaintiffs expert testified in pretrial deposition that
to obtain informed consent, doctor was required to advise plaintiff that he
would use bone-grafting protein, InFuse, and inform plaintiff about all
potential risks arising from its use, including risks that allegedly caused
harm and risks that did not cause harm, trial court erred in limiting
plaintiffs expert witnesss testimony at trial to only those risks that
allegedly materialized and injured plaintiff; complete testimony of
plaintiffs expert about risks of InFuse was relevant to jurys assessment of
what prudent person would have decided if properly informed of all
significant risks, and trial court erred by conditioning inclusion of evidence
on whether undisclosed risks actually occurred; erroneous exclusion of
testimony of plaintiffs expert witness, more probably than not, affected
outcome of trial; plaintiff is entitled to new trial on his informed consent
claim. White v. Beeks, 5/18/15, Knoxville, Lee, unanimous, 15 pages.
http://www.tncourts.gov/sites/default/files/whitei.opn_1.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: Rule 0800-02-21-.14(1)(a), which
provides that all motions for expedited hearing must be accompanied by
affidavits and any other information demonstrating that employee is entitled
to temporary disability or medical benefits, cannot be reasonably construed

as applying only to those situations where party requesting expedited

hearing does not intend to testify at hearing; giving terms all and must
their plain and ordinary meaning, trial court incorrectly determined that
filing of affidavit is unnecessary when party seeking expedited hearing
testifies at hearing. Hadzic v. Averitt Express, 5/18/15, Davidson, 16 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1098&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1079&context=utk_workerscomp

COURT OF APPEALS
COMMERCIAL LAW: When plaintiff and her late husband agreed to
loan defendants $30,000, defendants executed three notes, dated 3/25/96,
5/15/96, and 7/8/96, payable to plaintiff and her husband, two of notes bore
due date of one year-ninety day notice, third note bore due date of one
year or ninety day notice, defendants remitted interest through 8/3/99,
following defendants failure to remit payment on principal, plaintiff filed
suit on 8/29/11, defendants filed motion for summary judgment arguing that
collection of notes was barred by statute of limitation, trial court denied
motion, and trial court ruled in favor of plaintiff following bench trial, trial
court did not err in determining that defendants were estopped from
asserting statute of limitation when plaintiff identified specific promises and
assurances to repay when defendants were able to sell property, promises
occurred in 1999, 2002, and thereafter, well before expiration of six-year
statute of limitation claimed by defendants, and plaintiff promptly filed suit
when defendants failed to fulfill their obligation to her after selling
property; trial court did not err in determining that defendants had revived
obligation when plaintiff testified that both defendants offered repeated
assurances before and after claimed limitations period that they would
repay debt. Kesterson v. Jones, 5/21/15, ES, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/kerstersonopn.pdf

COMMERCIAL LAW: In suit against surgeon (defendant) for breach of

employment agreement by his employers, group (plaintiff) owned equally
by four optometrists and one non-physician, trial court did not err in
allowing enforcement of agreement; evidence did not preponderate against
trial courts determination that defendant violated his duty of good faith and
fair dealing by failing to give 180 days notice in writing of his desire to
terminate his employment, which his ability to open new private practice in
same month plaintiff closed revealed had long been his intent; defendant
was considered and treated as owner of practice, as he made his own
scheduling times at facility, hosted Christmas party at his home that was
billed to company, and attended at least one board meeting in addition to
receiving increased monthly salary, and hence evidence supported trial

courts calculation of defendants pay and responsibility for share of

accrued debt. Plastic Surgery Associates of Kingsport Inc. v. Pastrick,
5/19/15, ES, McClarty, 28 pages.
http://www.tncourts.gov/sites/default/files/pastrick2opn.pdf

COMMERCIAL LAW: When plaintiffs purchased decking product

manufactured by defendant, product was covered by limited warranty,
which included arbitration agreement, limited warranty was never provided
to plaintiffs, notice was attached to product, advising plaintiff to retrieve
copy of limited warranty through defendants website, and following
installation of product, plaintiff experienced problems with product, trial
court properly found that parties had not entered into agreement to arbitrate;
contemplated mutual assent and meeting of minds cannot be accomplished
by unilateral action of one party; plaintiffs were not provided with copy of
limited warranty that contained arbitration agreement prior to their purchase
or when product was delivered for installation, notice provided on product
did not reference arbitration agreement or provide any indication that
acceptance of product was tantamount to acceptance of arbitration
agreement, plaintiffs, like any ordinary consumer did not consult their
warranty to contact manufacturer of product until after they experienced
issue approximately six months after product was installed, and under such
circumstances, arbitration agreement was not formed because there was
never objective mutual assent to terms of agreement when plaintiffs were
not notified that such agreement existed. Capps v. Adams Wholesale Co.,
5/21/15, ES, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/cappsopn.pdf

FAMILY LAW: In case in which father was ordered to pay mother $806
per month in child support for parties two children, $469 each month
toward child support arrearage, and $807 per month for his federal income
taxes and FICA payments, evidence preponderated against trial courts
decision to order father to pay 50% of childrens tuition costs given fact
that father is left with less than $1,800 to pay his remaining expenses,
requiring him to pay $623 per month in private school tuition (not including
any school-related expenses) would be unjust and inappropriate; trial
court did not abuse discretion in awarding father $250 per month child
support credit for necessaries he provided to his son; any credit for
necessaries sounds in contract and must be commenced within six years
after necessaries were provided. Martin v. Martin, 5/20/15, WS,
Armstrong, 15 pages.
http://www.tncourts.gov/sites/default/files/martindawn.pdf

CIVIL PROCEDURE: In case in which defendant claimed that default

judgment was improperly entered because he did not receive mailed service

of process or any other mailings sent to him by opposing counsel or court,

defendant testified that he was separated from his wife during relevant time
frame and was not residing at his legal residence, but trial court found
defendants testimony not credible, further concluding that defendant was
intentionally evading service, and trial court correctly determined that
defendant was properly served pursuant to TRCP 4.04(11); default
judgment was improperly entered when, although unclaimed registered mail
may form basis for finding of proper service of process pursuant to TRCP
4.04(11), such unclaimed mail cannot provide basis for entry of default
judgment pursuant to TRCP 4.04(10); as expressly provided by TRCP
4.04(10), default judgment cannot be based on service of process by mail
unless return receipt is personally accepted by defendant or persons so
designated by TRCP 4.04 or statute. Petersen v. DeBoe, 5/20/15, ES,
Frierson, 9 pages.
http://www.tncourts.gov/sites/default/files/petersen.opn_.final_.pdf

GOVERNMENT: When former Tennessee State University professor filed

claim for damages, Claims Commission erred in holding that it lacked
subject matter jurisdiction to hear breach of contract claim; professor was
appointed as tenure-track assistant professor in 5/5/08 letter, in executing
this agreement, both parties agreed to be held to certain contractual
obligations, initial term of agreement was established in paragraph stating,
[t]his appointment is on an annual basis only, subject to renewal by
Tennessee State University, and an annual approval by the Tennessee Board
of Regents, for a maximum probationary period of seven years, and even
though professors initial appointment as professor was for 2008-09 year,
professor continued beyond that year, consistent with terms and conditions
of contract, until uncertainty regarding her visa status arose and she was
issued 1/31/12 letter, 5/5/08 letter and conduct of parties satisfied
requirements at TCA 9-6-307(a)(1))(L) that there be written contract
between professor and State; trial court properly dismissed professors
negligent deprivation of statutory rights claim; TCA 9-8-307(a)(1)(N)
requires that there be statutory right at issue, with additional requirement
that there be proof that legislature conferred private right of action against
State, and while TCA 50-1-102(c)(1) creates cause of action for false or
deceptive representations made to induce person with reference to various
terms or conditions of employment, statute does not expressly confer
private right to enforce claim against state. Boyraz v. State, 5/20/15, MS,
Dinkins, 7 pages.
http://www.tncourts.gov/sites/default/files/boyraz_v.tn_.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: Trial judge did not err in denying
defendants motion to suppress evidence obtained from traffic stop and
subsequent search of his vehicle when officer had probable cause to initiate
traffic stop of defendants vehicle based on officers observation that
defendant was not wearing seatbelt and his observation of illegal taillight
cover on vehicle; defendants detention did not exceed length necessary to
effectuate purpose of stop when facts of additional criminal activity were
revealed so early in detention, and it was less than 15 minutes from time
officer stopped defendants vehicle until time canine alerted; officer needs
no suspicion or cause to run the dog around stopped vehicle if he does it
contemporaneously with legitimate activities associated with traffic
violation. State v. Crockett, 5/18/15, Nashville, Woodall, 12 pages.
http://www.tncourts.gov/sites/default/files/crockettmichaelopn.pdf

CRIMINAL LAW: In case in which defendant, acupuncturist, was

convicted of four counts of sexual battery, although trial judge did not err in
determining that victims statements to her friend (Alduenda) and victims
statements to police officer (Laymance) about being sexually assaulted by
defendant were admissible hearsay, trial judge erred in failing to instruct
jury as to how it should consider evidence offered by Alduenda and
Laymance when case was he-said-she-said case consisting solely of
victims testimony against defendants testimony jury, with no instruction
from trial court as is required for proper admission of prior consistent
statements, may have considered evidence as substantive evidence against
defendant; although trial judge improperly admitted testimony of Dr. Lee,
acupuncturist, that victim had told him that defendant had sexually abused
her and that he encouraged her to go to police, error was harmless when
Lees testimony did not rise to level necessary to have, alone, affected
outcome of trial; because trial court allowed three witnesses (Alduenda,
Laymance, and Lee) to recount hearsay evidence of victim relaying to them
her account of alleged sexual abuse and provided no instruction to jury that
it could not consider this evidence as substantive evidence, and because
these errors were further compounded by trial courts error in failing to rule
on whether information contained in Dr. Boeros report that was not
excluded pursuant to TRE 412 was relevant and admissible, defendant is
entitled to new trial; trial courts judgments are reversed, and case is
remanded for new trial. State v. Heng Lac Liu, 5/19/15, Nashville,
Wedemeyer, 33 pages.
http://www.tncourts.gov/sites/default/files/liuhengopn.pdf

CRIMINAL PROCEDURE: Trial court did not err by failing to instruct

jury on assault by offensive touching as lesser included offense of rape.
State v. Stewart, 5/22/15, Nashville, Montgomery, 19 pages.
http://www.tncourts.gov/sites/default/files/stewartcheyner.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of

one count each of sale and delivery of cocaine within 1,000 feet of
elementary school and one count each of sale and delivery of cocaine
within 1,000 feet of recreational center, trial court erred by failing to merge
all four of defendants guilty verdicts into single conviction when
legislature did not intend to allow for multiple units of prosecution under
TCA 39-17-432 for single sale of cocaine pursuant to TCA 39-17-417 that
occurred in overlapping drug-free zones; case is remanded to trial court for
entry of corrected judgments reflecting merger of defendants multiple
guilty verdicts into single conviction. State v. Tate, 5/20/15, Knoxville,
Thomas, 10 pages.
http://www.tncourts.gov/sites/default/files/tatetracydaleopn_1.pdf

PUBLIC CHAPTER
TORTS: Passive investor may not be held liable in healthcare liability
action; if healthcare provider receives notice of potential claim for
healthcare liability, provider must, within 30 days, provide written notice to
potential claimant of any other person, entity, or healthcare provider who
may be properly named defendant. 2015 PC 254, effective 4/24/15, 3 pages.
http://www.tn.gov/sos/acts/109/pub/pc0254.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: Employers arguments that employees
prior back injuries were actual or possible cause of his back condition are
premature because, if employee gave proper notice, then statute requires
employer to provide panel of physicians for evaluation and treatment; it is
not enough for employer to provide panel and initial medical visit, but it
must provide medical evaluation sufficient to afford provider with
opportunity to reach opinion regarding causation; employer must therefore
provide employee with panel of neurosurgeons from which he may choose
physician to opine on causation and provide treatment as appropriate.
Chambers v. Adventage Human Resources, 2/9/15, Phillips, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1054&context=utk_workerscomp

WORKERS COMPENSATION: Employee proved he suffered

compensable injury due to special hazard of his employment when
employee lost his balance as he was exiting back hoe and fell to ground;
employees job placed him in elevated position inside backhoe on top of
trailer, his elevation on equipment increased likelihood of injury, and
although reason for fall may be idiopathic, employees job presented special
hazard. Williams v. City of Kingsport, 2/10/15, Addington, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1057&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