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TAM-BYTES

September 18, 2017


Vol. 20, No. 38

TAM Webinars

Federal Trade Secrets Act: Your Weapon of Choice in Intellectual


Property Cases?, 60-minute webinar presented by David Lucas, with
Bradley Arant Boult Cummings in Huntsville, AL, on Wednesday, October
25, at 10 a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/trade-secret-102517
or call (800) 727-5257

Obtaining and Using Cell Phone Records in Tennessee, 60-minute


webinar presented by Russell Taber, with Riley, Warnock & Jacobson in
Nashville, on Thursday, November 2, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/cell-110217
or call (800) 727-5257

Deposition Best Practices for Successful Attorneys: How to Prepare,


Take, and Defend, 60-minute webinar presented by Todd Presnell, with
Bradley Arant Boult Cummings in Nashville, on Tuesday, November 7, at
10 a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/depositions-110717
or call (800) 727-5257

Winning Your Civil Rights Violation Argument: Excessive Force, False


Arrest, & Malicious Prosecution, 90-minute webinar presented by Bryan
Moseley, with Moseley & Moseley in Murfreesboro, on Thursday,
November 9, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/civil-rights-110917
or call (800) 727-5257

On-Site Events

Tennessee Real Estate Law Conference


WHEN: TOMORROW, OCTOBER 20
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL
SPEAKERS: Kim A. Brown, Sherrard Roe Voigt & Harbison, PLC, Nashville; Jason
Holleman, West Nashville Law Group, Nashville; Anita I. Lotz, Farris Bobango PLC,
Memphis; Michael Patton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Memphis; Elizabeth C. Sauer, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Nashville; Brooks R. Smith, Bradley Arant Boult Cummings LLP, Nashville; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC, Nashville; Heather Howell Wright,
Bradley Arant Boult Cummings LLP, Nashville

HIGHLIGHTS: Kim Brown touches on many of the aspects of a commercial real estate
transaction by looking at resources and samples of documents that help to address the
various aspects of the transaction; Brooks Smith looks at inspection and diligence issues,
representations and warranties, covenants, and other details to making sure the sale goes
smoothly; Michael Patton reviews what events are covered by title insurance, how to
make a claim, and why title insurance companies deny claims and also discusses
litigation, arbitration, and the bad faith penalty; Heather Wright gives an overview of
insurance provisions in commercial leases, including coverage of tenant-installed fixtures
and improvements, coverage for damages and destruction of property, and waivers of
subrogation; Elizabeth Sauer explains special considerations for commercial and
investment transactions, including entity formation, CAP rate, zoning concerns, and 1031
exchanges; Anita Lotz details the closing process for commercial real estate
transactionsopening the closing, reviewing the sale agreement, reviewing the closing
package, and preparing and approving the documents and gives examples of closing
checklists; Jason Holleman reviews ethical concerns in boundary law, including attorney
fees, confidentiality, communication with unrepresented parties, and conflicts of interest;
and Wes Turner updates attorneys on the latest appellate court cases and legislation in
the real estate law area.

PRICING: $377 (full program) ($297 for any additional attendees from same firm);
and $197 (materials only)

For more information, visit www.mleesmith.com/trel or call (800) 727-5257.

Tennessee Workers Comp Conference


WHEN: WEDNESDAY, THURSDAY & FRIDAY, NOVEMBER 8-10
WHERE: Nashville Hilton Airport
CLE: Earn 15 hours of CLE 14 hours of GENERAL and 1 hour of DUAL

SPEAKERS: WORKERS COMP JUDGES: Judge Marshall Davidson; Judge


Pamela Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF
WORKERS COMPENSATION: Troy Haley. WORKERS COMP/EMPLOYMENT
LAW ATTORNEYS: Mary Dee Allen, Wimberly Lawson Wright Daves & Jones PLLC;
Fred Baker, Wimberly Lawson Wright Daves & Jones PLLC; Leslie Bishop, Lewis,
Thomason, King, Krieg, & Waldrop, P.C.; Kitty Boyte, Constangy, Brooks, Smith &
Prophete, LLP; Catherine Dugan, Peterson White; Frank Gallina, Parker, Lawrence,
Cantrell & Smith; Howard M. Kastrinsky, King & Ballow; Rockforde (Rocky) D. King,
Egerton, McAfee, Armistead & Davis, P.C.; Charles (Chuck) J. Mataya, Bradley Arant
Boult Cummings LLP; Marshall McClarnon, Ponce Law; Lynn C. Peterson, Lewis,
Thomason, King, Krieg & Waldrop, P.C.; Mallory Schneider Ricci, Constangy, Brooks,
Smith & Prophete, LLP; Steven L. Shields, Jackson, Shields, Yeiser & Holt; Steven N.
Snyder, Jr., McAngus Goudelock & Courie; and Kenneth D. Veit, Leitner, Williams,
Dooley & Napolitan PLLC. OTHERS: Wendy Fisher, Safety Compliance Manager with
Tennessee OSHA; Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine and
Rehabilitation, subspecialty Board Certification in Pain Medicine; and Dawn Trojan-
Randle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Insight from judges on the Court of Workers Compensation Claims


and the Workers Compensation Appeals Board; a panel discussion with attorneys and
physicians on the medical and legal determinations of causation in a workers comp case;
challenges faced by employers when dealing with social media in the workplace; tips on
how to avoid the imposition of penalties; a doctors perspective on the opioid epidemic;
interplay between workers comp, the ADA, and the FMLA; termination and retaliation
issues; attorney track also includes a session on whats new with Medicare set-asides,
ethical issues arising during mediation, medical issues in a workers comp claim, the
settlement process; hot topics from the plaintiffs perspective, and a panel discussion
featuring defense and plaintiffs attorneys; and review of the latest cases from the
Workers Compensation Appeals Panels, Workers Compensation Appeals Board, and
Court of Workers Compensation Claims.

PRICING: $547 (full program) ($477 for any additional attendees from same firm
or subscribers to Tennessee Workers Comp Reporter or the Tennessee Employment
Law Letter); $347 (Thursday only); and $247 (materials only)

For more information, visit www.mleesmith.com/trel or call (800) 727-5257.

Law Conference for Tennessee Practitioners


WHEN: THURSDAY & FRIDAY, NOVEMBER 16 & 17
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge John W. McClarty, Court of Appeals, Eastern Section; Chancellor


Ellen Hobbs Lyle, Chancery Court/Business Court, Davidson County; Chancellor
Russell T. Perkins, Chancery Court, Davidson County; Judge Thomas S. Wright,
Circuit Court, Third Judicial District (Greene, Hamblen, Hancock, and Hawkins
counties); Brandon Bass, Law Offices of John Day, PC; Griffin S. Dunham, Dunham
Hildebrand PLLC; Christopher S. Dunn, Waller Lansden Dortch & Davis LLP; Donald
J. Farinato, Hodges, Doughty & Carson PLLC; Sandy Garrett, Chief Disciplinary
Counsel, Board of Professional Responsibility; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson PLLC; Brenton H. Lankford, Stites & Harbison
PLLC; Rachel Schaffer Lawson, Schaffer Law Firm PLLC; Mark E. McGrady, Farrar
& Bates LLP; Melanie M. Stewart, Heaton and Moore PC; and Joseph L. Watson,
Waller Lansden Dortch & Davis LLP

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile


insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

PRICING: $497 (full program) ($427 for any additional attendees from same
firm/$397 for full program for lawyers 65 and over and lawyers in practice for two
years or less); $447 (full program less ethics); $297 (One day only); $147 (ethics
only); and $247 (materials only)

For more information, visit www.mleesmith.com/tlc or call (800) 727-5257.

Family Law Conference for Tennessee Practitioners


WHEN: THURSDAY & FRIDAY, NOVEMBER 30 & DECEMBER 1
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton, Memphis; David


Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court, 21st
Judicial District; Chancellor Jerri S. Bryant, chancery court, 10th Judicial District; Judge
Robert L. Childers, retired circuit court judge, Shelby County; Dawn Coppock,
Strawberry Plains attorney; Jason Hicks, Moore, Rader, Fitzpatrick & York, Cookeville;
C. Jay Ingrum, Phillips & Ingrum, Gallatin; Chancellor Larry McMillan, chancery
court, 19th Judicial District; Marlene Eskind Moses, MTR Family Law, Nashville;
Phillip R. Newman, Puryear, Newman & Morton, Nashville; Judge Phillip Robinson,
circuit court, Davidson County; Kevin Shepherd, Maryville attorney; Eileen Burkhalter
Smith, Disciplinary Counsel, Board of Professional Responsibility; and Greg Smith,
Stites & Harbison, Nashville

HIGHLIGHTS: Protecting a clients separate assets; dividing/valuing marital


property; orders of protection/domestic violence issues; relative/stepparent/adult
adoptions; technology for the family law practitioner; modifying permanent
parenting plans; practical tips from judges across the state; hot topics in child
custody/property division; tax issues in divorce; civil and criminal contempt in
family matters; use of trusts in family law practice; discovery abuses and
remedies; dealing with children in a divorce case; tips for effective direct/cross-
examination; case law/legislative update; ethics and professionalism in family
law practice; and attorneys ethical use of social media

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
*$50 early bird discount until October 20

For more information, visit www.mleesmith.com/family-law-conference or call (800) 727-5257.


Probate & Estate Planning Conference for Tennessee Attorneys
WHEN: THURSDAY & FRIDAY, DECEMBER 7 & 8
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Rebecca Blair, The Blair Law Firm, Brentwood; Alan L. Cates, Husch
Blackwell LLP, Chattanooga; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Elizabeth B. Hickman, Goodman Callahan & Blackstone, PLLC, Nashville; Glen Kyle,
Monica Franklin & Associates, LLC, Knoxville; Patrick B. Mason, Mason Zoccola Law
Firm, PLLC, Memphis; Steve McDaniel, Williams McDaniel, Memphis; Sara E.
McManus, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga; 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; and Michelle Poss, Law Office of A. Michelle Poss, Nashville

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills in
2018; trust drafting tips with samples; duties and liabilities of personal representatives;
implementing and handling conservatorships and guardianships; what to look for in
reviewing existing estate plans; dealing with tax issues when administering an estate;
using charitable trusts effectively; tips for drafting estate planning documents;
establishing a special needs trust; planning for a clients long-term care; understanding
issues that arise in small estates; probate litigation case law and legislative update; ethical
issues facing trust and estate planning attorneys; and ethical issues that arise when
choosing a client.

PRICING: $497 (full program) $70 off for any additional attendees from same
firm); $347 (One day only); and $247 (materials only)
*$50 early bird discount until November 3

For more information, visit www.mleesmith.com/tpep or call (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Supreme Court holds that preferred service employee with State of


Tennessee does not have protected property interest in his or her
continued employment;
Workers Comp Appeals Board, in case in which in-cab video
recording system showed employee slumped over, suggesting he was
asleep or unconscious at time truck left road, holds employer did not
establish at expedited hearing that employees injury was result of his
willful failure to perform duty required by law;
Workers Comp Appeals Board, in split decision, rules employer must
provide employee with new authorized treating physician when
employee received conservative medical care from authorized
physician, physician opined that employee did not need additional
medical treatment as result of work injury, and physician thereafter
refused to see employee;
Court of Appeals reverses grant of summary judgment to defendant,
with whom decedent had relationship, in negligence suit based on
defendants alleged acts of displaying and failing to properly store and
prevent accessibility to firearm with which decedent ultimately
committed suicide;
Court of Appeals reiterates that statement made under oath in open
court requires no independent corroboration;
Court of Appeals, in case involving transgender child, holds that
minors, acting by and through their parents, can seek name change of
first and/or middle name in same manner as adults under general
name change statutes; and
In attempted first degree murder case, Court of Criminal Appeals says
that although indictment did not state specific theory or means by
which state alleged that defendant committed offense, such is not
required in order to provide defendant with notice.

SUPREME COURT

GOVERNMENT: Pursuant to Tennessee Excellence, Accountability, and


Management Act of 2012 (TEAM Act), preferred service employee with
State of Tennessee does not have protected property interest in his or her
continued employment; TEAM Acts implementing regulations do not
support argument that preferred service employees have unique expectation
of continued employment, i.e., constitutionally protected property interest in
their continued employment, which at-will employees do not; Uniform
Rules of Procedure for Hearing Contested Cases before State Administrative
Agencies assigns burden of proof in contested case proceeding to party who
seeks to change the present state of affairs with regard to any issue
because petitioner initiates proceedings and typically is trying to change
present state of affairs with regard to issue, petitioner is generally assigned
burden of proof. Tennessee Department of Correction v. Pressley, 9/14/17,
Nashville, Bivins, unanimous, 21 pages.
http://www.tncourts.gov/sites/default/files/pressleydopn.pdf

GOVERNMENT: Supreme Court Rule 34 is amended to reflect separate


written public records policy applicable to appellate courts. In re
Amendments to Supreme Court Rule 34, 9/15/17, Nashville, 8 pages.
http://www.tba.org/sites/default/files/order_amending_sct_rule_34_-_adm2017-00344.pdf
WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee, truck driver, suffered


injuries when tractor-trailer he was driving left road and overturned, in-cab
video recording system shows employee slumped over, suggesting he was
either asleep or unconscious at time truck left roadway, and employer
contended that employees injury was result of his willful failure to perform
duty required by law as set out in TCA 50-6-110(a)(5), employer did not
present sufficient evidence at expedited hearing to establish this affirmative
defense; although video evidence may support conclusion that employee fell
asleep or was rendered unconscious for unknown reason, it does not support
inference that he willfully failed to perform duty required by law when
employee testified he had gotten good nights sleep night before and had
taken nap afternoon before picking up his truck, employee felt good when
leaving employers terminal, and he described extensive driving he had done
over course of his career with no similar incident. Butler v. AAA Cooper
Transportation, 9/12/17, Davidson, 14 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1910&context=utk_workerscomp

WORKERS COMPENSATION: When employee alleged work-related


back injury that employer accepted as compensable, after employee received
conservative medical care from authorized physician, physician opined that
employee did not need additional medical treatment as result of work injury
and thereafter refused to see employee, and employee sought order
compelling employer to authorize new treating physician who was willing to
see him, trial court did not err in ordering employer to replace authorized
treating physician on its panel to allow employee to select another physician
for any reasonable and necessary medical treatment causally related to work
injury in accordance with TCA 50-6-204(a)(1)(A) and 50-6-102(14)(C)
given that designated authorized physician refuses to allow return visit.
Limberakis v. Pro-Tech Security Inc., 9/12/17, Conner, dissent by
Davidson, 15 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1909&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1827&context=utk_workerscomp

WORKERS COMPENSATION: Employers motion to terminate


medical benefits falls within scope of TCA 50-6-239(d)(1) and Rule 0800-
02-21-.14(1) it was not motion for partial summary judgment pursuant to
TRCP 56.01, as suggested by trial court; trial courts error in not treating
employers motion as request for interlocutory relief pursuant to TCA 50-6-
239(d) was harmless under circumstances presented, and trial court did not
err in denying employers motion; employers argument that unopposed
motion must be granted as matter of course is incorrect, but trial court may
consider fact that motion is unopposed in deciding whether to grant or deny
motion; medical records and questionnaire response provided by employer
in support of its motion were equivocal as to need for additional medical
treatment, and thus, employer did not establish at this interlocutory stage of
case that it was likely to prevail at trial in proving employee has no need for
reasonable and necessary future medical care causally related to work
accidents. Noel v. EAN Holdings LLC, 9/13/17, Conner, 18 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1911&context=utk_workerscomp

COURT OF APPEALS

TORTS: When personal representative, on behalf of decedents estate,


brought negligence action against defendant based, inter alia, on defendants
alleged acts of displaying and failing to properly store and prevent
accessibility to firearm with which decedent ultimately committed suicide,
trial court erred in granting defendant summary judgment; based on
decedents history of depression and previous suicide attempt, coupled with
loss of custodial rights concerning her son and termination of her
relationship with defendant, it was reasonably foreseeable that decedent
might inflict harm upon herself by utilizing deadly weapon of which
defendant made her aware; no special relationship was shown to exist that
would justify imposing legal duty on defendant for nonfeasance, but to
extent that trial courts holding could be construed as requiring special
relationship concerning estates claims of misfeasance, such determination is
reversed, and trial court is directed on remand to evaluate claims of
misfeasance in accordance with general negligence principles; trial court
erred in holding that estates negligence claims were negated by
independent, intervening cause as prior cases establish that liability could
exist when defendant knew or should have known that decedent presented
reasonably foreseeable risk of suicide, as demonstrated by evidence
indicating that decedents demeanor or actions should have raised concerns
about her mental stability and defendants action increased such risk. In re
Estate of Cotten, 9/15/17, Nashville, Frierson, 21 pages.
http://www.tncourts.gov/sites/default/files/cotten.christina.opn_.pdf

COMMERCIAL LAW: When Commissioner of Tennessee Department of


Commerce and Insurance imposed civil fine and revoked license of
petitioner, insurance agent, evidence supported Commissioners decision
that petitioner violated applicable statutes in connection with insurance
practice when petitioner overcharged company by approximately $4,000 for
policies, deposited approximately $14,000 into his bank account and never
remitted any of money to insurance company, when insurance company
sought reimbursement for money it paid to reimburse company, petitioner
sent insurance company check that was returned with insufficient funds, and
when confronted, petitioner told insurance company that replacement
cashiers check was in mail, but insurance company never received check;
penalty imposed on petitioner by Commissioner $18,000 penalty and
revocation of license was not arbitrary and capricious. Cunningham v.
Tennessee Department of Commerce & Insurance, 9/11/17, Nashville,
Goldin, 13 pages.
http://www.tncourts.gov/sites/default/files/cunningham.charles.opn_.pdf

FAMILY LAW: Trial court properly found husband in civil contempt for
violating parties marital dissolution agreement (MDA) by concealing and
withholding two paychecks he earned during marriage that parties agreed to
divide equally during course of marriage, husband had his paychecks
automatically deposited into couples joint bank account, and before
couples divorce became final, he canceled automatic deposit, knowing that
MDA required that he and wife equally divide assets in joint bank account;
husbands purposeful act of cancelling automatic draft strongly indicated
that husband intended to conceal this asset from wife; because provision in
MDA ordering husband to transfer to wife one-half of his non-retirement
account at T. Rowe Price was not sufficiently clear, specific, and
unambiguous there was some discrepancy between numbers and names
used to describe accounts in MDA trial courts holding of husband in civil
contempt for violating this provision of MDA is reversed. Scobey v. Scobey,
9/13/17, Nashville, Clement, 14 pages.
http://www.tncourts.gov/sites/default/files/scobey.kathleen.opn_.pdf

FAMILY LAW: In case in which mother was found in criminal contempt


for providing child with materials on parental alienation in violation of
provisions of agreed parenting plan that granted both parents right to be
free of unwarranted derogatory remarks made about the parent or his or her
family by the other parent to the child or in the presence of the child,
mother admitted to her actions, which constituted willful contempt of court,
in sworn deposition and while under oath in open court before trial judge;
statement made under oath in open court requires no independent
corroboration, and hence, once mother testified in open court and under oath
that her earlier statements were accurate and voluntary, standard requiring
corroborating evidence did not apply it applies only to extrajudicial
confessions, not to testimony under oath; attorney fees may not be awarded
in context of criminal contempt proceeding. Nichols v. Crockett, 9/13/17,
Knoxville, McClarty, 13 pages.
http://www.tncourts.gov/sites/default/files/sheridan_nichols_formerly_crockett_v._richard_david_crockett_jr..pdf
FAMILY LAW: Evidence preponderated against trial courts determination
that petitioners (childs parents) failed to show that it was best interest of
child, who was transgender, to change his first and middle names parents
did not seek to change childs surname when petitioners supported their
motion with letters written by 16-year-old child, childs doctor, childs
therapist, and one of childs teachers, each explaining why name change was
in childs best interest; only restrictions contained in name change statutes
are set forth in TCA 29-8-101, and none of these restrictions apply in this
case; right to change ones name applies to minors in same way it applies to
adults, and Tennessee courts have held that TCA 29-8-101 to 102 include
both minors and adults, and thus, minors, acting by and through their
parents, can seek name change in same manner as adults under general name
change statutes. In re Leyna A., 9/15/17, Nashville, Clement, 14 pages.
http://www.tncourts.gov/sites/default/files/inreleynaa.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In attempted first degree murder case,


although indictment did not state specific theory or means by which state
alleged that defendant committed offense, such is not required in order to
provide defendant with notice; defendant was charged with single count of
attempted first degree murder, and evidence showed commission of single
offense, and to extent that defendant argued that indictment was deficient,
his argument is undermined by detailed bill of particulars filed by state; trial
court did not err in failing to require state to provide election of offense
when no election was required proof did not show multiple acts by
defendant which could separately constitute offense of attempted first degree
murder; trial judge erred in admitting officers opinion testimony that he
thought defendant was going to kill his wife if defendant had not been
apprehended when such testimony was closely intertwined with ultimate
issue of whether defendant had taken substantial step toward killing his wife,
but error was harmless when abundant and overwhelming evidence , aside
from officers lay opinion testimony, showed that defendant intended to kill
his wife and had undertaken substantial prepatory actions in furtherance of
his intent. State v. Fisher, 9/15/17, Knoxville, Montgomery, 23 pages.
http://www.tncourts.gov/sites/default/files/majority_opinion_5.pdf

SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL PROCEDURE: District court, in criminal case, does not


abuse discretion by refusing to give spoliation instruction based on
governments failure to preserve evidence in absence of bad faith;
government did not commit prosecutorial misconduct when it stated, during
closing arguments, its interpretation of defendants statements made on
audio recording of defendants mumblings from back of patrol car after
his arrest. United States v. Braswell, 8/21/17, Clay, 34 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0484n-06.pdf

TRIAL COURTS

CIVIL PROCEDURE: Plaintiffs motion to compel production of


inadvertently produced emails between defendant and defendants in-house
counsel is denied; although it is likely crime-fraud exception to attorney-
client privilege exists in Tennessee to be applied under appropriate
circumstances, exception is not applicable on facts of this case; essential
element of showing of serious crime or fraud has not been made. U.S.A.
Fundraisers LLC v. Great American Opportunities Inc., 6/22/17, Davidson
Chancery, Lyle, 7 pages.
https://www.tncourts.gov/node/4870444

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee at hotel (employer)


testified that after employer hosted event on 2/17/16, it offered leftover food
for employees consumption in break room, employee ate chicken
enchiladas, within hour or two, he began to experience nausea, bubbling in
his stomach, sweating, vomiting, and diarrhea, employee went to hospital
following conclusion of his shift, and while employee indicated he suffered
from food poisoning, hospital discharge notes state he suffered epigastric
pain, nausea with vomiting, and hypokalemia, and possibly peptic ulcer
disease with severe gastritis, records from hospital and other medical
providers do not state employment contributed more than 50% in causing
employees need for medical treatment; medical records from medical
providers do no not support claim relating employees ingestion of particular
meal and his condition. McGee v. Embassy Suites Nashville, 7/3/17,
Nashville, Switzer, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1850&context=utk_workerscomp

WORKERS COMPENSATION: While employer argued that employees


surgical request must be denied because neither he nor doctor appealed most
recent Utilization Review (UR) denial as of filing of Request for Expedited
Hearing, court has authority to review medical evidence and determine
whether it supports finding that employee is entitled to recommended
surgery; while employee may seek review of UR denial by Medical
Director, it is not prerequisite for seeking judicial review. Wilson v. Dixie
Produce Inc., 7/7/17, Chattanooga, Headrick, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1853&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:
www.tncourts.gov