TAM-BYTES

October 24, 2016

Vol. 19, No. 43
TAM Webinars
Your Best Foot Forward: Opening Statements that Win at Trial, 60minute audio conference presented by Parker Miller, with Beasley Allen in
Montgomery, on Tuesday, December 6, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Digital Depositions: An Attorneys Essential Steps for Going
Paperless, 60-minute audio conference presented by Taylor Bartlett,
with Heninger Garrison & Davis in Birmingham, on Thursday, December
8, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Auto Injuries: Quantifying Pain and Suffering in Tennessee, 60minute audio conference presented by Steven Fuller, Nashville attorney, on
Tuesday, December 13, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Injury Damages in Tennessee after West and Dedmon, 60-minute
webinar presented by Laura Baker and Brandon Bass, with the Law
Offices of John Day in Brentwood, on Wednesday, December 14, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Medical Battery and Informed Consent Claims in Tennessee:
Essential Attorney Practice Tips, 60-minute webinar presented by Clint
Kelly, with the Kelly Law Firm in Hendersonville, on Thursday, December
15, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

TAM On-Site Event

Probate & Estate Planning Conference for Tennessee Attorneys
WHEN: Thursday & Friday, December 8-9
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere & Bell PLC, Jackson;
Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan, Goodman Callahan
& Blackstone, PLLC, Nashville; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Ralph Levy, Jr.,
Dickinson Wright PLLC, Nashville; Carla Lovell, Sherrard Roe Voight & Harbison,
PLC, Nashville; Hunter R. Mobley, Howard Mobley Hayes & Gontarek, PLLC,
Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville; Julie
Travis Moss, The Blair Law Firm, Brentwood; Michelle Poss, Sobel, Poss & Moore,
Nashville; Timothy L. Takacs, CELA, Elder Law Practice of Timothy L. Takacs,
Hendersonville; and M. Matthew Thornton, Bourland, Heflin, Alvarez, Minor &
Matthews, PLC, Memphis.

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills
in 2016; trust drafting tips with samples; duties and liabilities of fiduciaries; structuring
marital agreements to deal with estate planning issues; what to look for in reviewing
existing estate plans; business succession planning; qualifying for TennCare;
alternatives to full probate administration; planning for a clients long-term care; tips for
probating a will and administering estates; planning for digital assets; probate litigation
case law and legislative update; ethical issues facing trust and estate planning attorneys;
and ethics in elder care.

For more information or to register call us at (800) 274-6774 or visit

www.mleesmith.com/probate
IN THIS WEEKS TAM-Bytes
Workers Comp Appeals board, in split decision on interlocutory
appeal, affirms trial courts finding that employee, who suffered
dislocation of shoulder at work, would likely prevail at trial in

establishing that subsequent dislocation at home were causally related

to workplace injury;
Court of Appeals says trial court did not err in applying Delaware
Block Method in suit to determine judicially fair value of shares of
dissenting shareholders following merger;
Court of Appeals says trial courts setting of retroactive child support
was impermissible modification of prior order, which did not require
father to pay monthly child support, but did not entirely relieve father
of his obligation to remit support when father was made responsible
for maintaining cost of childs medical insurance or remitting
payment for childs future medical expenses; and
Court of Workers Comp Claims rules licensed practical nurse, who
worked for company providing residential home health care to various
patients and was required to provide her own transportation to each
assigned patients home, did not fall into any exception to rule
providing that accidents occurring while traveling to and from work
are not compensable.
WORKERS COMP APPEALS PANEL
WORKERS COMPENSATION: When employee injured his left foot
while working as custodian, despite two surgeries, employee continued to
experience pain associated with injury and was diagnosed with complex
regional pain syndrome (CRPS), when being treated for foot injury,
employee fell and hurt his right foot, which also developed CRPS, and while
recovering from these injuries, employee became severely depressed, trial
court correctly determined that employee was permanently and totally
disabled when employees work injury causes him significant pain, each of
testifying medical professionals agreed that employee suffered from chronic
pain syndrome that could interfere with his obtaining or maintaining
employment, his unsuccessful attempt to work at Nissan and rental home
renovations he performed for his mother demonstrate his limitations and
inability to perform any type of job requiring physical exertion, forensic
psychiatrist testified that employee suffered from depression as result of his
work injury and chronic pain and that he needed ongoing psychiatric
treatment and that he did not foresee employee ever getting all the way off
the antidepressant medication, and vocational expert opined that, in light of
employees physical and mental limitations resulting from his work injury,
there were no reasonable employment opportunities available to employee in

local labor market. Mayes v. City of Tullahoma, 10/20/16, Nashville,

Bivins, 12 pages.
http://www.tncourts.gov/sites/default/files/mayes.david_.opnjo_.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee suffered compensable
shoulder injury, dislocation of shoulder, on 8/31/15, employees shoulder
dislocated again on 2/5/16 as result of large dog jumping on him, employee
experienced recurrent dislocation as result of rolling over in bed, and
employee reported another right shoulder dislocation on 4/28/16 as result of
just a simple swat of his arm, there was sufficient evidence at expedited
hearing to establish that employee was likely to prevail at trial in
establishing that recurrent dislocations and need for surgery were causally
related to compensable injury; employer argued that employees actions
constitute independent intervening events resulting in need for additional
medical treatment, but trial court properly concluded that instances resulting
in employees recurrent dislocations did not amount to intentional or
negligent conduct on part of employee. Lee v. Wester Plastics, 10/20/16,
Davidson, dissent by Hensley, 22 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1592&context=utk_workerscomp

COURT OF APPEALS
TORTS: When decedent died on 8/4/08 due to complications arising from
stent placement procedure, , plaintiff mailed written notice of potential
medical malpractice claim, along with HIPAA-compliant authorization, to
each of defendants, plaintiff field original complaint on 11/30/09, case
proceeded to trial on 4/15/13, three days into trial, plaintiff moved for
voluntary nonsuit, which trial court granted on 5/3/13, plaintiff against sent
notice on 5/30/13 of potential medical malpractice claim to defendants, and
HIPAA-compliant authorization was not included with notices, trial court
properly granted motion to dismiss; rather than providing HIPAA-compliant
medical authorization, plaintiff, when she served defendants with pre-suit
notice of her intent to refile her action, referenced 2010 agreed Records
Acquisition Services (RAS) order from initial action, and plaintiffs failure
to provide medical authorization in case is significant and would necessarily
prejudice defendants if case proceeded further; trial court properly refused to
grant plaintiff waiver for her noncompliance due to extraordinary cause;

plaintiff contends that defendants are liable under ordinary negligence

cause of action originated prior to 2011 amendments to Tennessee medical
Malpractice Act but all claim sound in medical malpractice as regular
person without advanced medical background would hardly be able to assess
symptoms of internal bleeding, much less determine severity of decedents
condition or decide whether treatment was rendered in timely manner.
Cright v. Overly, 10/17/16, Knoxville, Susano, 19 pages.
http://www.tncourts.gov/sites/default/files/cright_v._overly_et_al._1.pdf

COMMERCIAL LAW: When Athlon Sports Communications, Inc.

(Athlon) completed merger which converted minority dissenting
shareholders (defendants) shares into cash consideration and terminated
their rights as shareholders, Athlon offered cash consideration for shares at
$0.10 per share, and Athlon sued defendants to determine judicially fair
value of these shares, trial court correctly followed Tennessee case precedent
in utilizing Delaware Block Method for valuation; while Tennessee case law
available in years since Blasingame has refined further approach to judicial
valuation, it never has departed utterly from Delaware Block Method as
baseline. Athlon Sports Communications Inc. v. Duggan, 10/17/16,
Nashville, Swiney, 18 pages.
http://www.tncourts.gov/sites/default/files/athlonsportscommunications.opn_.pdf

FAMILY LAW: In case in which mother filed petition in 1999 to establish

parentage of child and to set child support, mother and father entered into
agreement in which father was required to remit payment for childs medical
expenses incident to her birth and to provide medical insurance or to remit
payment for future medical expenses, agreement did not require payment of
monthly child support, and in 7/12, mother filed new petition for child
support, requesting child support retroactive to date of childs birth, which
was granted by trial court, trial courts setting of retroactive child support
was impermissible modification of 1999 order; while trial courts 1999 order
is deficient in some respects, it did not entirely relieve father of his
obligation to remit support when he retained responsibility to maintain cost
of medical insurance or to remit payment for future medical expenses; trial
courts failure to issue factual finding justifying deviation from Child
Support Guidelines does not render 1999 order subject to attack when time
for direct appeal of order has passed. State ex rel. Rogers v. Lewis,
10/21/16, Jackson, McClarty, 10 pages.
http://www.tncourts.gov/sites/default/files/rogersmopn.pdf

FAMILY LAW: In case involving dispute between widowed husband and

mother (grandmother) of deceased woman (Jessica), trial court erred in

awarding Jessicas life insurance proceeds to grandmother in trust for child

when Jessicas action in changing beneficiary on her life insurance policy
violated temporary injunction issued automatically as result of mothers
divorce complaint pursuant to TCA 36-4-106(d)(2); all life insurance
proceeds that were realized from mothers life insurance policy should have
been returned to father; trial court erred in awarding grandmother
grandparent visitation when there was no evidence of opposition to visitation
prior to filing of grandparent visitation petition. Coleman v. Olson,
10/20/16, Nashville, Stafford, 28 pages.
http://www.tncourts.gov/sites/default/files/colemanr.opn_.pdf

CIVIL PROCEDURE: When plaintiffs timely filed healthcare liability suit,

after voluntarily dismissing initial suit, plaintiffs provided pre-suit notice
before filing second suit pursuant to saving statute, and defendant moved to
dismiss, arguing that saving statute did not apply because there was no
identity of parties between actions, explaining that second complaint was
filed against him in his individual capacity while initial complaint was
lodged against him in his corporate capacity, trial court erred in holding that
second action was barred for failure to file within applicable statute of
limitation; saving statute applied to second action when allegations within
initial complaint clearly identified defendant in his individual capacity as
proper party, defendant was also personally served with summons in first
action and filed answer, and other than attempting to identify himself as
corporation by another name, defendant never raised any issue concerning
his identity by motion or specific negative averment. Robinson v. Robbins,
10/19/16, Jackson, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/robinsonmyrtleopn.pdf

CRIMINAL PROCEDURE: In case in which traffic citation was issued to

appellant by City of LaVergne (City) police officer charging appellant with
violation of SPEEDING 55-8-152, reference to Tennessees statutory
prohibition on speeding found at TCA 55-8-152, appellant was found guilty
of speeding in municipal court and appealed to circuit court, and circuit
court entered judgment against appellant for violating municipal ordinance
rather than violating state statute charged on citation, citation issued to
appellant was insufficient to provide reasonable notice of municipal
ordinance he was charged with violating; while City could have cured
deficiency by moving to amend citation to specify violation of LaVergne
Municipal Code section 15-801 and allowing appellant further time to
prepare his defense, record does not reflect that it did so, and hence, case

against appellant should have been dismissed. City of LaVergne v. LeQuire,

10/19/16, Nashville, Goldin, 10 pages.
http://www.tncourts.gov/sites/default/files/city_of_la_vergne_v_lequire.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In case in which defendant was convicted of
attempted first degree murder, aggravated burglary, and especially
aggravated robbery, trial judge did not err by instructing jury on flight;
although two years elapsed between defendants initial arrest and his release
on bond, any ex post facto indication by accused of desire to evade
prosecution may be shown as one of series of circumstances from which
guilt may be inferred; no requirement exists that hiding out or concealment
take place immediately following commission of offense or that it be
without interruption; trial judge did not err by admitting evidence of
defendants failure to comply with court-ordered electronic monitoring as
proof of defendants attempt to evade prosecution. State v. Rattler, 10/19/16,
Knoxville, Holloway, 24 pages.
http://www.tncourts.gov/sites/default/files/rattlerzacharygale.pdf

CRIMINAL SENTENCING: Trial court erred in ordering sentence of

continuous confinement for defendants convictions of burglary of an auto,
specifically enumerated non-violent property offense in TCA 40-35-122(c)(18);
case is remanded for resentencing consistent with TCA 40-35-122(a) and 40-35104(c). State v. Cole, 10/18/16, Nashville, Holloway, 15 pages.
http://www.tncourts.gov/sites/default/files/colenicholas.pdf

SIXTH CIRCUIT COURT OF APPEALS

CONSTITUTIONAL LAW: When Memphis police officer was arrested in
early morning hours of 8/26/12 shortly after leaving night club on Beale Street
in downtown Memphis, officer brought claims individually and on behalf of
those similarly situated, alleging that routine practice of City of Memphis of
sweeping Beale Street at 3 a.m. on weekend nights violated his constitutional
right to intrastate travel, jury found that City implemented its street-sweeping
policy without consideration of whether conditions throughout Beale Street
area posed existing, imminent, or immediate threat to public safety, based on
jurys findings, district court found policy unconstitutional under strict
scrutiny, entered injunction, and ordered other equitable relief on behalf of
class, intermediate scrutiny should be applied to this type of narrow place

restriction; evidence adduced at trial and jurys factual findings show that
timing and execution of Sweep policy was tied to arbitrary time, not to
existing conditions on ground, and, without requisite connection to public
safety, policy fails under intermediate scrutiny. Cole v. City of Memphis,
10/17/17, Gibbons, partial dissent by Griffin, 19 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0258p-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee worked as LPN for
Home Health Care of Middle Tennessee (HHC), providing residential home
health care to various patients in Middle Tennessee, HHC assigned
employee on 2/21/15 to provide nursing service to HHC client in Rockvale,
Tenn., approximately 75 miles from employees home in Lawrenceburg,
Tenn., while she was on way to patients home, roads on employees route
were icy, so she decided to return home and notify HHC she was not going
to make it to appointment, and on her way home, another vehicle struck
employees car, causing injuries, HHC demonstrated that employees
evidence was not sufficient at summary judgment stage to establish injury
arising primarily out of and in course and scope of her employment; injuries
sustained by employee while traveling to or from work are generally not
considered within course of employment unless they occur on employers
premises, and employees accident did not occur within any exception to
general rule; employee contends that she falls into traveling employee
exception because she did not have fixed place of work and was required to
travel to assigned patient homes, but even though she had to travel to her
job, travel itself was not substantial part of her employment; employee
contended distinguishing factor in her case is that her provision and
maintenance of vehicle to do job as condition of her employment with HHC,
but Tennessee case law does not reveal any such exception to coming and
going rule. Dugger v. Home Health Care of Middle TN, 6/15/16,
Murfreesboro, Tipps, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1461&context=utk_workerscomp

WORKERS COMPENSATION: Employees neck and left wrist injuries

obviously arose from his fall on 9/20/14, and hence, employee has proven by
preponderance of evidence that injuries to his neck and left wrist primarily
arose out of and in course and scope of his employment; connection between
employment and employees right wrist, asthma, and blood pressure
conditions is not so obvious, simple, or routine, and employee did not

present sufficient medical evidence to establish causal relationship between

these injuries and his employment. Scales v. Sherlock, 6/7/16, Memphis,
Umsted, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1453&context=utk_workerscomp

WORKERS COMPENSATION: Employee was entitled to temporary

partial disability benefits because there was inadequate proof of why employer
terminated him for alleged attendance issues; employee was entitled to
temporary total disability for time he was off work following his surgery. Hall
v. Mid-South Industrial Inc., 6/10/16, Jackson, Phillips, 18 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1456&context=utk_workerscomp

WORKERS COMPENSATION: When employee, who worked for

temporary employment agency (employer), began training for assignment as
warehouse clerk, which required her to inspect three-pound tubs of cookie
dough, according to employee, she picked up a tub and when she tilted it up
to audit, do quality control, her wrist popped, and authorized treating
specialists response to letter appeared to be based on faulty premise, i.e., that
employee did not pick up tub of cookie dough, but merely titled it toward her,
employee provided sufficient evidence for which to determine that she is
likely to prevail at hearing on merits regarding causation; when employee
refused to sign light duty work form and began screaming and shouting at her
supervisor in front of other employees as well as job applicants, and refused to
leave until employers employees threatened to call police, employees
conduct constituted misconduct under ordinary workplace rules, and was
true motivation for employers refusal to allow her to return to work at light
duty, and hence, employee failed to prove that she is likely to prevail on issue
of temporary disability benefits at hearing on merits. Carlton v. Wood
Personnel Services, 6/24/16, Cookeville, Durham, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1468&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