TAM-BYTES

March 30, 2015

Vol. 18, No. 13
2015 TAM CLE CALENDAR

Webinars
Health Care Liability: Latest Developments in Tennessee, 60-minute
webinar presented by Chris Tardio, with Gideon, Cooper & Essary in
Nashville, on Thursday, April 9, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Jury Selection in Tennessee: Starting the Trial on the Right Path, 60minute audio conference by Bryan Moseley, with Moseley & Moseley in
Murfreesboro, on Wednesday, April 22, at 2 p.m. (Central), 3 p.m.
(Eastern). *Earn 1 hour of GENERAL credit
Identity Theft: How to Use the FCRA, FDCPA, and TCPA to Help
Your Client and Yourself, 60-minute webinar presented by John
Watts, with Watts & Herring in Birmingham, on Thursday, April 23, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Health-Related Boards in Tennessee: Defending Professionals in
Disciplinary Proceedings, 60-minute webinar presented by Garrett
Asher, with Parker, Lawrence, Cantrell & Smith in Nashville, on
Wednesday, April 29, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Appellate Practice Basics: Top 10 Ways to Lose Your
Appeal, 60-minute webinar presented by Elizabeth Sitgreaves, with
Dodson, Parker, Behm & Capparella in Nashville, on Thursday, May 7, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit

Enhancing Your Trial Skills: Applying Rules of Discovery and

Evidence, 60-minute webinar presented by Stephen Gillman, with
Priest, Harber, Floyd & Coffey in Knoxville, on Wednesday, May 13, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for Tennessee Attorneys

*Now in its 8th year!*
WHEN: Friday, May 8
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; Daniel Clayton, Kinnard, Clayton &
Beveridge; C. J. Gideon, Gideon, Cooper & Essary; Ben Harrison,
Cornelius & Collins; Marty Phillips, Rainey, Kizer, Reviere & Bell; and
Tom Pinckney, Of Counsel, Howell & Fisher
HIGHLIGHTS: Recent developments in pre-suit notice and certificate of
good faith requirements; practical considerations for handling a health care
liability claim on behalf of an injured patient; techniques for deposing an
expert; physician credentialing and other hospital liability issues; trial tips
and tactics from the defense perspective; deposition strategies; the use of
technology in a health care liability case; review of recent health care
liability appellate court cases; a panel discussion of hot topics in health
care liability actions; and ethical issues in handling medical records,
including HIPAA compliance.
*************************************************************

Tennessee Business Law Conference

*New for 2015!*
WHEN: Friday, May 15
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: Alexander J. Davie, Riggs Davie, Nashville; Keith C.

Dennen, Dickinson Wright, Nashville; Cole Dowsley, Thompson Burton,
Franklin; J. Nelson Irvine, Chambliss, Bahner & Stophel, Chattanooga;
Mark Ison, Sherrard & Roe, Nashville; Thomas K. Potter, III, Burr &
Forman, Nashville; Andrew J. Pulliam, Wyatt, Tarrant & Combs,
Nashville; and Richard Spore, Bass, Berry & Sims, Memphis
HIGHLIGHTS: Piercing the corporate veil, including factors to consider,
parent/subsidiary liability, reverse piercing, and effect of Hobby Lobby;
liability and fiduciary duties of corporate officers and directors to the
corporation and the shareholders; a step-by-step guide to a business
divorce from fact-finding to the end game; recent changes to the
Tennessee Nonprofit Corporation Act optional changes to governing
documents; key considerations in selecting a business entity for example,
using series LLCs and new hybrid alternatives; drafting LLC operating
agreements key provisions to include; forming a professional service
business including management services and friendly PC arrangements
involving nonprofessionals; and ethics for attorneys in business disputes
including understanding the scope of your representation.
For more information or to register for any of our CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Supreme Court says employee must report employers wrongdoing to
someone other than wrongdoer to qualify as whistleblower, which
may require reporting to outside entity when wrongdoer is manager,
owner, or highest ranking official within company;
Supreme Court reverses rape of child conviction when cumulative
effect of trial courts two errors was prejudicial and entitled
defendant to new trial;
Supreme Court says trial court erred in granting defendants motion
to suppress in DUI case when officer had reasonable basis for
extending stop by 10 to 15 minutes while awaiting second officer,
and duration of detention did not exceed proper parameters;
Court of Appeals, in products liability action arising from workplace
injury in which plaintiffs left arm was severely injured when reducing
mechanism attached to ball valve he was using suddenly broke,
causing release of pressurized air and water, affirms trial courts grant
of summary judgment on plaintiffs failure to warn claim to defendant,
corporation that sold ball valve to plaintiffs employer; and

 Court of Appeals, in case in which grandmother filed petition to

intervene seeking custody of child, rules that although trial court found
that father posed risk of substantial harm to child due to his criminal
background and current criminal charges pending against him, it did
not err in concluding that child would not be exposed to substantial
harm if placed in mothers custody in spite of fact that mother was
living with father.

SUPREME COURT
EMPLOYMENT: Employee must report employers wrongdoing to
someone other than wrongdoer to qualify as whistleblower, which may
require reporting to outside entity when wrongdoer is manager, owner, or
highest ranking official within company. Haynes v. Formac Stables Inc.,
3/27/15, Jackson, Wade, 4-0, 10 pages.
http://www.tncourts.gov/sites/default/files/haynescharlesopn_0.pdf

EVIDENCE: In rape of child case, cumulative effect of two trial court

errors trial court erred by admitting victims recorded forensic interview
during her direct examination and erred by ruling that, if defendant testified,
prosecution would be permitted to ask him generally if he had ever been
previously arrested or convicted of crime was prejudicial and entitled
defendant to new trial; because victims credibility was linchpin on which
prosecutions case rested, trial court erroneously permitted prosecution to
bolster victims credibility by playing entire recorded forensic interview
during its case-in-chief and again during jury deliberations; although
defense counsel effectively pointed out weaknesses in states proof,
counsels effective representation was not sufficient to remedy cumulative
effect of trial courts two errors. State v. Herron, 3/26/15, Jackson, Clark,
4-0, 27 pages.
http://www.tncourts.gov/sites/default/files/herronf_opn.pdf

CRIMINAL PROCEDURE: In DUI case, trial judge erred in granting

defendants motion to suppress when officer (Reiman) had reasonable basis
for extending stop by 10 to 15 minutes while awaiting second officer
(Shoap), and duration of detention did not exceed proper parameters;
Reiman knew that Shoap, lead officer on call, was just down the road
from site of investigatory detention, by waiting for Shoap, Reiman was able
to assist[] by supervising [and] making sure the scene was safe, while
Shoap conducted field sobriety tests, and it was prudent for Reiman to wait

for second officer given presence of passenger inside defendants vehicle.

State v. Montgomery, 3/27/15, Nashville, Wade, 4-0, 9 pages.
http://www.tncourts.gov/sites/default/files/montgomerymechelleopn_0.pdf

CRIMINAL SENTENCING: Sections 4(A) and 4(E) of Supreme Court

Rule 12 are amended to clarify standards for granting or denying states
motion to set execution date, and for granting death row prisoners motion
for stay or delay of execution for pending state or federal court litigation of
collateral issues. In re Amendment to Supreme Court Rule 12, Sections
4(A) and 4(E), 3/25/15, Nashville, 4 pages.
http://www.tba.org/sites/default/files/order_amend_rule12_032515.pdf

WORKERS COMP APPEALS PANEL

CIVIL PROCEDURE: When employee alleged that he injured his back at
work on 8/11/10, claims adjuster for employer denied employees workers
compensation claim, employee filed Request for Assistance with
Department of Labor and Workforce Development (Department) on
10/4/10, Department issued order denying claim, Department then issued
Benefit Review Report on 1/13/11, which stated, After investigation and
resolution by the undersigned Workers Compensation Specialist, the
Benefit Review Process has been exhausted pursuant to [TCA] 50-6-203(a)
and Rule 0800-3-5-.09 as of 12/22/2010. Either party may file a lawsuit in a
court of competent jurisdiction, employee filed Request for Benefit
Review Conference (BRC) with Department on 5/19/11, parties attended
BRC on 2/7/12, Benefit Review Report was generated stating that parties
had reached impasse, and employee filed workers compensation action in
trial court on 3/20/12, trial court properly ruled that claim was barred by
one-year statute of limitation found in TCA 50-6-203; limitation period
began to run on 1/13/11, date Benefit Review Report was issued, and
employees argument regarding what he deems to be permissive language
in Benefit Review Report is not compelling. Abdalla v. Tyson Fresh Meats
Inc., 3/17/15, Nashville, Summers, 8 pages.
http://www.tba.org/sites/default/files/abdallaa_031915.pdf

COURT OF APPEALS
TORTS: In products liability action arising from workplace injury in which
plaintiffs left arm was severely injured when reducing mechanism attached
to ball valve he was using suddenly broke, causing release of pressurized air
and water, trial court properly granted summary judgment on plaintiffs

failure to warn claim to defendant, corporation that sold ball valve to

plaintiffs employer; trial court did not err in finding no existence of
genuine issue of material fact that would show lack of warning regarding
pushing pressure over 5,145 psi through ball valve as cause in fact of
plaintiffs injury; trial court did not err in finding no existence of genuine
issue of material fact that would show lack of warning regarding ball
valves use in water systems as cause in fact of plaintiffs injury; trial court
did not err in finding employers actions to be intervening cause of
plaintiffs injury when employer had subject ball valve in its possession for
three years following its purchase of valve, employees knew that valve was
difficult to turn, and coupling that actually broke during accident was
attached to ball valve by employees of employer. Long v. Quad Power
Products LLC,, 3/20/15, ES, Frierson, 17 pages.
http://www.tncourts.gov/sites/default/files/long_opinion_final.pdf

COMMERCIAL LAW: In suit by former student against college and its

director following cancellation of plaintiffs enrollment due to fact her
student file did not contain official copy of her high school transcript or
GED certificate as required by Tennessee Higher Education Commission
(THEC), trial court properly granted defendants summary judgment as to
plaintiffs claim for breach of contract; plaintiffs claimed damages of
expected value of her chosen course of studies were uncertain and
impermissibly speculative as matter of law, and alleged breach, cancellation
of plaintiffs enrollment, was not cause of damages claimed by plaintiff;
directors decision to cancel plaintiffs enrollment in single term because
her student file was not in compliance with THEC, and his decision to
affirm cancellation after plaintiff provided GED certificate because student
file was not in compliance prior to start of term, does not rise to sufficiently
outrageous standard required for recovery under intentional infliction of
emotional distress; plaintiffs vague and conclusory allegations were
insufficient to sustain claim under Tennessee Consumer Protection Act;
trial court did not abuse discretion in denying plaintiffs motion to amend
her second amended complaint to incorporate recovery for mental damages
in her breach of contract claim as general rule in Tennessee is that there can
be no recovery of damages for mental anguish occasioned by breach of
contract. Kindred v. National College of Business & Technology Inc.,
3/19/15, WS, Clement, 16 pages.
http://www.tncourts.gov/sites/default/files/kindredmopn.pdf

FAMILY LAW: In case in which parties, who were not married, had child
together in 2004, child spent most of his life in shared custody of mother
and maternal grandmother, in 2010, father filed suit seeking to be

designated as childs primary residential parent, while custody proceedings

were pending, mother and father reconciled and resumed living together in
8/11, and grandmother responded by filing petition to intervene seeking
custody of child, evidence did not preponderate against trial court decision
that custody of child should be awarded to mother; although trial court
found that father posed risk of substantial harm to child due to his criminal
background and current criminal charges pending against him, it
determined that in spite of fact that mother was living with father, child
would not be exposed to substantial harm if placed in mothers custody;
although grandmother was apparently instrumental in childs upbringing,
such circumstance does not warrant removing child from mothers custody
especially given fact that trial court credited mothers pledge that she would
protect child, as well as childs younger sibling, from any danger arising
from fathers past criminal behavior. In re Caleb B., 3/19/15, MS,
McBrayer, 8 pages.
http://www.tncourts.gov/sites/default/files/inrecalebb.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts

decision to designate father as childs primary residential parent when
father is in better position than mother to provide child with stable,
satisfactory environment, and father has structured job which allows him to
be home with child each evening, while mothers work schedule requires
her to rely on her parents to care for child during week; evidence did not
preponderate against trial courts decision to award mother 100 days of
visitation, while awarding father 265 days, when mother testified that
typical day with child is usually not until weekend, when she is not
working, and mother must rely heavily on her parents to care for child
during week, including feeding him and transporting him to and from
school. In re Jayden C., 3/23/15, MS, Clement, 12 pages.
http://www.tncourts.gov/sites/default/files/inrejaydenc.opn_.pdf

CRIMINAL PROCEDURE: Magistrate did not abuse discretion in

concluding that exceptional circumstances existed to warrant summarily
punishing attorney for direct criminal contempt when attorney expressed
clear disrespect for magistrates ruling that case would be heard at later
date and threatened to close this place down like I did before if you make
her come back here one more time, and when magistrate warned attorney
that he was close to being held in contempt, attorney addressed magistrate
in condescending manner and challenged magistrates authority; although
TRCrP 42(a), which permits judge to summarily punish individual who
commits criminal contempt in judges presence if judge certifies that he
saw or heard contemptuous conduct, requires entry of written order

reciting facts, it does not state that such order must be entered in record
before judge can summarily punish contemnor; Tennessee courts have
declined to require strict compliance with TRCrP 42(a)s requirements for
written order, and as such, attorney suffered no harm from juvenile courts
one-day delay in entering its written order, which clearly contains requisite
factual basis for contempt order. In re Brown, 3/23/15, WS at Memphis,
Gibson, 18 pages.
http://www.tncourts.gov/sites/default/files/brownjosephopn_0.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In drug case, trial judge did not err in failing
to charge jury with eyewitness identification instruction set forth in State v.
Dyle, 899 SW2d 607 (Tenn. 1995), when defendants identity was not
material issue at trial; identification is material issue when defendant puts it
at issue or eyewitness testimony is uncorroborated by circumstantial
evidence defendant did not dispute his identity as person involved in drug
transactions, rather, his theory of defense seemed to be that he did not
exchange drugs for money during meetings with confidential informant or
that he was only acting as middle man between co-defendant and buyers.
State v. Pennock, 3/19/15, Jackson, McMullen, 9 pages.
http://www.tncourts.gov/sites/default/files/pennockjamesopn.pdf

SIXTH CIRCUIT COURT OF APPEALS

INSURANCE: District court properly ruled that no insurance coverage was
available to driver of vehicle (Shaun) that injured Dembla when Shaun
lived with his parents, insurer issued automobile policy to Shauns father,
policy defined non-owned car as car in lawful possession of insured or
resident relative, Amanda, Shauns friend, asked Shaun to house sit at her
parents (Robertsons) house to feed dogs while Amanda and her parents
were on vacation, Amandas car and Mr. Robertsons truck were at house,
Shaun received call from friend who was intoxicated and needed ride,
because he could not get his vehicle in reverse, Shawn decided to drive Mr.
Robertsons truck, and Shaun fell asleep, crossed center line, and hit
another vehicle, injuring Dembla, passenger; only evidence of implied
consent was Shauns belief that he had permission to use Mr. Robertsons
truck based on his friendship with Amanda and her family, but Shauns
subjective belief that he had consent to use vehicle is irrelevant to question
of lawful possession; no reasonable factfinder could find that Shaun was in

lawful possession of Mr. Robertsons truck when he commandeered vehicle

to assist intoxicated friend. State Farm Mutual Automobile Insurance Co.
v. Dembla, 3/25/15, Siler, 8 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0229n-06.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: Employee was not entitled to workers
compensation benefits for injuries he sustained in vehicle collision while
riding as passenger in co-employees truck when employee and co-worker
consumed alcoholic beverages at some point in time prior to occurrence of
accident, employees testimony that he and co-worker were traveling to
delivery site when collision occurred was not credible, and employee and
co-worker were engaged in personal mission which was not intended to
benefit employer and did not do so. Buckelew v. Fay Portable Buildings
Inc., 12/17/14, Wyatt, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1035&context=utk_workerscomp

WORKERS COMPENSATION: Employee failed to establish

compensable work-related injury when employee had prior low back injury
in 2011 and had complained of back pain to doctor only one month prior to
his alleged date of injury, employee did not complain of work injury on
7/31/14, alleged date of injury, and only later reported his alleged injury in
response to being told by supervisor that his work performance was
unsatisfactory, and no physician opined that employees alleged back injury
arose primarily out of and in course and scope of employment. Cooper v.
Federal Express Corp., 12/8/14, Umsted, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1054&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