TAM-BYTES

January 18, 2016

Vol. 19, No. 3
TAM Webinars
Tennessee Family Law Cases that Could Impact Your Practice, 90minute webinar presented by Brent Lankford, with Stites & Harbison in
Nashville, 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, with
Rice, Amundsen & Caperton in Memphis, on Thursday, February 25, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Update on Living Wills, Advance Directives, and Powers of Attorney
for Health Care in Tennessee, 60-minute webinar presented by Terry
Cox, with Cox & Wortman in Collierville, on Wednesday, March 9, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Proving Defamation from Social Media Abuse: Strategies for Helping

Clients Respond, 60-minute webinar presented by Marcus Chatterton,
with Balch & Bingham in Birmingham, on Wednesday, March 16, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

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.

Tennessee Business Law Conference

*Now in its 2nd year!*
WHEN: Friday, May 20
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: A. Neal Graham, Harris Shelton Hanover Walsh PLLC,

Memphis; L. Kevin Levine, L. Kevin Levine, PLLC, Nashville; Ralph
Levy, Jr., Dickinson Wright PLLC, Nashville; Chancellor Ellen Hobbs
Lyle, Davidson County Chancery Court; David B. Parsons, Nashville
attorney; Richard R. Spore, III, Bass, Berry & Sims, PLC, Memphis; and
Bryan K. Williams, Gullett Sanford Robinson & Martin PLLC, Nashville.
HIGHLIGHTS: Survey of business law issues that have arisen in the
Tennessee Business Court Pilot Project; creative practices for handling
business disputes to avoid litigation; mistakes to avoid in drafting LLC
operating agreements; what every attorney needs to know when litigating
a business dispute in Tennessee; what federal tax issues arise when
operating a limited liability company; key issues in drafting an acquisition
agreement; top 10 negotiation strategies for obtaining a settlement in a
business dispute; and ethics for attorneys in business disputes including
adequacy of fees and charges.
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 holds that defendants rights under Confrontation
Clause were not violated by admission into evidence of autopsy
report at murder trial through testimony of medical examiner who did
not perform autopsy;
Workers Comp Panel affirms trial courts finding that employee
sustained compensable mental injury as result of 2005 event when
employee suffered from major depression and doctors testified that
cause of his condition was multifactorial but that chronic pain and
disability caused by his back injury were contributing factors;
Court of Appeals affirms trial courts allocation of 60% of fault to
Fire Rescue employee who was responding to emergency call in
truck equipped with siren and emergency lights and was struck by
vehicle driven by plaintiff, who did not see or hear truck and entered
intersection on green light; and
Court of Criminal Appeals says trial judge erred in failing to give
jury enhanced identity instruction when identity was material issue at
trial, but error was harmless when corroborating evidence supported
reliability of eyewitness identification.

SUPREME COURT
CRIMINAL PROCEDURE: Autopsy report prepared by medical
examiner was not testimonial, and its admission into evidence at trial
through testimony of another physician did not violate defendants rights
under Confrontation Clause; because responding officers initial entry into
defendants home was justified by exigent circumstances, subsequent entry
into home by other officers constituted mere continuation of initial officers
lawful entry into home, and trial court did not err by denying defendants
motion to suppress evidence that was in plain view and within scope of
exigent circumstances search; admission into evidence of items that were
not in plain view, even if erroneous, constituted harmless error. State v.
Hutchison, 1/14/16, Knoxville, Kirby, unanimous, 33 pages.
http://www.tncourts.gov/sites/default/files/hutchisont.opn_.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: Evidence did not preponderate against
trial courts finding that employee sustained compensable, permanent back
injury on 6/19/05 when employee had suffered and underwent surgery on
his lower back in 1990s, he had returned to work in 1997 and successfully
performed jobs in number of settings, and doctors testified that 2005
incident had caused exacerbation of employees underlying degenerative
condition; evidence did not preponderate against trial courts finding that
employee sustained compensable mental injury as result of 6/29/05 event
when employee suffered from major depression and doctors testified that
cause of his condition was multifactorial but that chronic pain and disability
caused by his back injury were contributing factors; evidence preponderated
against trial courts finding that employer knowingly, willfully, and
intentionally forced employee to use his disability benefits in lieu of
receiving workers compensation benefits, and hence, employer is entitled
to set-off for amount of payment from short-term and long-term disability
from employer-funded plan against temporary disability payments awarded
by trial court. LaPradd v. Nissan North America Inc., 1/14/16, Nashville,
Cantrell, 19 pages.
http://www.tncourts.gov/sites/default/files/lapradd-nissan.opnjo_.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: Employees submission of inaccurate
timecards was violation of ordinary workplace rule and supported

employees termination, and hence, employer was relieved of its obligation

to pay injured employee temporary disability benefits; preponderance of
evidence supports finding that, but for employees termination for cause,
employer would have had opportunity to offer employee light-duty position
after his surgery within his medical restrictions, and hence, employee was
not entitled to temporary disability benefits. Jones v. Crencor Leasing &
Sales, 12/11/15, Conner, 19 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1261&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1233&context=utk_workerscomp

WORKERS COMPENSATION: Employees actions precipitating his

dismissal after cleaning parking lot, employee went inside without
wearing his jacket, he received written warning for violating [d]ress code
for office, and when he walked through employers reception area, he
stated this is unf-cking believable qualified as misconduct under
workplace policy prohibiting insubordination, unprofessional conduct,
and lewd behavior, and hence employer was relieved of its obligation to
pay injured employees temporary disability benefits. Mace v. Express
Services Inc., 12/11/15, Davidson, 18 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1260&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1217&context=utk_workerscomp

COURT OF APPEALS
TORTS: In case in which Fire Rescue employee (Mundall), responding to
emergency call in Ford F-250 truck equipped with siren and emergency
lights, began making left turn against red light after stopping or slowing in
attempt to make sure oncoming traffic lanes were clear, plaintiff, who had
green light and did not hear or see emergency vehicle, drove into
intersection and collided with truck, and plaintiff filed suit against Bradley
County, evidence did not preponderate against trial courts finding that
Mundall was 60% at fault when Mundall admitted his duty to use extreme
caution under circumstances, particularly since he did not have passenger
to assist in working emergency warning equipment, there was evidence that
Mundall did not stop before entering intersection, there was no evidence
that he changed siren mode to yelp or hyper-yelp before entering
intersection, which would have made his approach more audible, and
Mundall admitted that when he entered plaintiffs lane of oncoming traffic,
he could see no more than 10 or 15 feet; evidence did not preponderate
against trial courts award of $150,000 for pain and suffering and
permanency of injuries when plaintiff suffered injuries to her spine
including compression fractures in two of her thoracic vertebrae and
herniations of two cervical discs, injuries to her chest wall, and fractured

clavicle that resulted in massive calcium deposit in her shoulder area,

injuries caused pain that will become worse over time, she incurred pretrial
medical expenses of $45,610, and she would need two surgical procedures
in future. Jones v. Bradley County, 1/15/16, ES, Susano, 15 pages.
http://www.tncourts.gov/sites/default/files/jones_v_bradley_co.pdf

FAMILY LAW: In case in which wife claimed that she received judgment
against husband for $24,000 at time of parties divorce, wife filed lien
against real property that was awarded to husband in divorce after husband
failed to pay judgment, and upon learning that real property in question was
scheduled to be sold at auction, wife filed suit seeking to stop auction and
enforce her lien, trial court erred in dismissing wifes complaint and in
dissolving underlying lien based on wifes failure to have summonses
issued or served at time of filing of complaint; pursuant to language of
TRCP 3, if no process is issued at time of filing of complaint, plaintiff may
have process issued for up to one year from complaints filing date; trial
court erred in relying upon lack of issuance or service of process as ground
for dismissal when wife had one year from date complaint was filed during
which she could have process issued and served. Christenberry v.
Christenberry, 1/14/16, ES, Frierson, 8 pages.
http://www.tncourts.gov/sites/default/files/christenberry.opn_.final_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of domestic
assault, trial judge did not err in refusing to instruct on lesser included
offense of domestic assault by extremely offensive or provocative physical
contact when evidence was not sufficient to support such lesser included
offense defendants conduct, i.e., defendant used tree branch to strike
victims backside, leaving visible bruising, was not type of conduct that can
be characterized as offensive or provocative. State v. Jones, 1/14/16,
Nashville, Thomas, 14 pages.
http://www.tncourts.gov/sites/default/files/joneslloydarlanopn.pdf

CRIMINAL PROCEDURE: Trial judge erred in failing to give jury

enhanced identity instruction pursuant to State v. Dyle, 899 SW2d 607
(Tenn. 1995), when identity was material issue at trial; trial judges error
was harmless when corroborating evidence supported reliability of
eyewitness identification in case. State v. Young, 1/12/16, Nashville,
Holloway, 11 pages.
http://www.tncourts.gov/sites/default/files/young.tobylynn.pdf

CRIMINAL PROCEDURE: Trial judge erred by entering default

judgment declaring defendant motor vehicle habitual offender (MVHO)
when state failed to comply with terms of MVHO statute and Tennessee
Rules of Criminal Procedure for service of process. State v. Gaia, 1/14/16,
Jackson, Witt, 4 pages.
http://www.tncourts.gov/sites/default/files/gaiapatrickopndoc.pdf

TRIAL COURTS
CONTRACTS: In suit alleging, among other things, breach of noncompete provisions, it cannot be derived or conceived from facts pleaded in
First Amended Complaint, inferences therefrom, or hypothetical facts how
partial performance exception to statute of frauds would apply in context of
oral non-compete agreements; nationwide research reveals no case where
partial performance removed non-compete case from statute of frauds;
because this is dispositive motion, plaintiff is requested to file additional
briefing to state in theory or concept how partial performance exception to
statute of frauds could be present in case and to state conceivable facts it
might find upon discovery. Cryosurgery Inc. v. Rains, 12/23/15, Davidson
Chancery, Lyle, 5 pages.

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: In case in which employee, iron
worker, slipped and fell while climbing out of manhole, injuring his right
knee, employee did not present sufficient evidence from which it can be
determined that he is likely to prevail at hearing on merits when Dr.
Kakkar, panel-selected doctor, concluded that work incident did not
contribute more than 50% of employees right knee condition, and opinion
of evaluating physician, who marked Yes in response to plaintiffs
attorneys question regarding cause but was not asked to consider all causes
or to opine that work accident contributed more than 50% in causing
employees injury, was insufficient to rebut Kakkars assessment. Taylor v.
TEC Industrial, 8/31/15, Kingsport, Addington, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1179&context=utk_workerscomp

WORKERS COMPENSATION: When employer did not originally

provide panel of physicians to injured employee but sent him for evaluation
at Wellmont Occupational Health Services (Wellmont), Dr. Kakkar at
Wellmont later referred employee to orthopedist, employer provided panel
at that time, when Kakkar made referral to orthopedist, and he did not make

specific referral, employers proper response should have been to provide

employee with panel of three orthopedists; employer did not provide
appropriate panel when it provided only two orthopedists, orthopedist
selected by employee refused to render causation opinion, and neither
circumstance is acceptable. Drovdahl v. City of Bristol, 8/31/15, Kingsport,
Addington, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1181&context=utk_workerscomp

BOARD OF JUDICIAL CONDUCT

PROFESSION OF LAW: Montgomery County General Sessions Judge
Ray Grimes received public reprimand in connection with his disposal of
numerous cases in which criminal and juvenile defendants were represented
by his wife, who is attorney practicing in Montgomery County. In re
Grimes, 1/11/16, Craft, 4 pages.
http://www.tncourts.gov/sites/default/files/docs/grimes_-_public_reprimand_and_agreed_cease__desist_order1-11-16.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