TAM-BYTES February 24, 2014 Vol. 17, No.

8
2014 TAM CLE CALENDAR

Onsite Events
7th Annual Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 2. *Earn up to 7.5 hours of CLE, including 1 hour of DUAL CLE. FACULTY: Judge Ross Hicks, Brandon Bass, Brian Cummings, Clint Kelly, Dulin
Kelly, Chris Tardio, and Thomas A. Wiseman, III.

PROGRAM HIGHLIGHTS:
Admissibility of expert testimony Application of the pre-suit notice requirements How Shipley changed the playing field Telling a compelling story and developing cohesive themes Using todays technology to win your case Voir dire selecting the right jury The future of damages caps in Tennessee Review of recent medical malpractice appellate court cases A panel discussion of hot topics in healthcare liability actions Ethical issues in screening and choosing medical malpractice cases and clients For more information or to register go to: www.mleesmith.com/tn-med-mal

******************************************************************* 2014 Tennessee Attorney Technology Conference, to be held in NASHVILLE on Friday, May 9. *Earn up to 7.5 hours of CLE, including 2 hours of DUAL CLE. FACULTY: Judge Thomas Brothers, Davidson County Circuit Court; William
Caldwell, Ortale, Kelley, Herbert & Crawford, Nashville; Kevin Levine, DeSalvo & Levine PLLC, Nashville; Caitlin Moon, C.MoonLaw, Franklin; and Clinton Sanko, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga

PROGRAM HIGHLIGHTS:
Most common cloud technologies serving lawyers How to develop a mobile law practice Effective use of technology in the courtroom Mechanics of document production Time and business management tips Practical applications of e-discovery Practical tips on how to request social media discovery Jury selection and trial presentation tools Protecting confidentiality of clients while going mobile Social media and content marketing for lawyers Technology and ethics in the practice of law

For more information or to register go to: www.mleesmith.com/tn-tech

Audio Conferences
HIPAA: New Regulations, Its Implications, and Its Impact, 60-minute webinar presented by Elizabeth Warren, Nashville attorney with Bass, Berry & Sims, TOMORROW -- Thursday, February 27, at 10 a.m. (Central), 11 a.m. (Eastern). Understanding the Basics of Tennessees DUI Laws: Information and Guidance for Tennessee Attorneys, 90-minute webinar presented by Rob McKinney, Nashville attorney with the Law Office of Rob McKinney, TOMORROW Thursday, February 27 at 2 p.m. (Central), 3 p.m. (Eastern). Intentional Interference with Business Relationships in Tennessee: An Overview, Update, and Litigation Tips, 60-minute webinar presented by Thomas W. Shumate IV, Nashville attorney with Kay, Griffin, Enkema & Colbert, P.L.L.C., on Thursday, March 6 at 2 p.m. (Central), 3 p.m. (Eastern). Ethics of Social Media: Dos and Donts for Attorneys, 60-minute webinar presented by Marcus Chatterton, Birmingham attorney with Balch & Bingham, on Thursday, March 25 at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of DUAL credit. Voir Dire: Tips and Techniques for Starting the Trial on the Right Path, 60minute webinar presented by Erik Heninger, Birmingham attorney with Heninger Garrison Davis, LLC, on Wednesday, March 26 at 2 p.m. (Central), 3 p.m. (Eastern).
For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes Supreme Court holds that performance on field sobriety tests is but one of many factors officers should consider when deciding whether to arrest motorist for DUI or similar offenses without warrant; Workers Comp Panel affirms trial courts finding that employees stress at work caused rupture of her aneurysm; Workers Comp Panel reverses trial courts ruling that employees retirement was reasonably related to his work injury and therefore that employee did not have meaningful return to work; Court of Appeals affirms denial of summary judgment to defendant humane society on retaliatory discharge claims when plaintiff, veterinarian, alleged that technician used plaintiffs medications to illegally euthanize animals; Court of Appeals, in case in which plaintiff filed petition seeking attorney fees and costs exceeding $70,000 pursuant to suit filed pursuant to Public Records Act, holds trial court erred by finding plaintiffs attorney fees to be unreasonable and in reducing fees as well as costs for mileage and court reporter charges; and Court of Criminal Appeals rules, in drug case, fact that trial judge was friends on Facebook with witness, i.e., confidential informant, was not sufficient proof that trial court could not impartially fulfill its duty as thirteenth juror.

SUPREME COURT CRIMINAL PROCEDURE: In DUI case, officer had probable cause to arrest defendant without warrant for DUI based on fact that defendant was driving on wrong side of divided highway late at night, he smelled of alcohol, and he admitted having imbibed more than [he] should have, in spite of defendants successful performance on battery of field sobriety tests; performance on field sobriety tests is but one of many factors officers should consider when deciding whether to arrest motorist for DUI or similar offenses without warrant. State v. Bell, 2/20/14, Knoxville, Koch, unanimous, 14 pages.
http://www.tncourts.gov/sites/default/files/belldavidopn.pdf

PROFESSION OF LAW: In case in which six complaints of misconduct were filed against attorney, alleging misconduct in connection with attorneys failure to maintain sufficient funds in his trust account to cover his obligations to six clients after accepting and depositing settlement checks on his clients behal f, disbarment was appropriate sanction; by continuing to describe his trust account violations as insignificant attorneys conduct actually amounted to conversion for personal gain

 attorney shows lack of understanding that his conduct is wrong. Skouteris v. Board of Professional Responsibility, 2/21/14, Jackson, Lee, unanimous, 14 pages.
http://www.tncourts.gov/sites/default/files/skouterisgeorge.opn_.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employees stress at work caused rupture of aneurysm when neurologists opinion was based upon combination of stressful circumstances frustration, anxiety, discomfort from excessive heat, confinement, and like preceding actual rupture; although stress precipitating mental or physical injury must be identifiable and unusual in order for that injury to be compensable, it is not required that event be acute, momentary, or extraordinary; employee was in unusually stressful situation, according to neurologist she was working with truck in which auxiliary air conditioner was not functioning, she had delivery deadline that she could not possibly meet because of speed-governing device on her vehicle, she communicated these facts to her superiors but was offered no relief, when she was unable to make timely delivery, she was forced to wait in hot, cramped conditions for 10 to 12 hours, she made several attempts, through her employer and through her customer, to arrange alternate delivery time, have malfunctioning unit repaired, or wait in less physically demanding environment, and all those attempts were unsuccessful and that stress caused her blood pressure to rise and rupture aneurysm. Simerly v. Crete Carrier Corp., 2/14/14, Nashville, Anderson, 9 pages.
http://www.tncourts.gov/sites/default/files/simerlytamaraopn.pdf

WORKERS COMPENSATION: Trial court erred in finding that employees decision to retire was reasonably related to his work injury and, hence, that employee did not have meaningful return to work; employees choice to retire was voluntary and not reasonably related to his workplace injury when employee reduced his work to part time in 2004 so he could spend more time at home, he worked for employer for almost five years after work injury in 2006 with no complaint, employee made voluntary choice of date to retire after age 62 in 2011, so he could draw social security, his wife, age 70 in 2011, had already retired in 2008, employee announced his retirement to employer without any statement that it was associated with work injury, his doctor stated that during his almost five years of treatment employee would have flare-ups and undergo treatments and get better, he stated that employee had had mild progression of pre-existing arthritic condition of his back, and his doctor never restricted him from working throughout his entire period of treatment and did not advise him to retire. Hayes v. Sharp Transport Co., 2/20/14, Nashville, Anderson, 9 pages.
http://www.tncourts.gov/sites/default/files/hayesalvinopnjo.pdf

WORKERS COMPENSATION: In case in which employee suffered compensable injuries to his neck and back stemming from motor vehicle accident, trial court did not abuse discretion in adopting treating physicians opinion that employee sustained 7% impairment for lumbar spine injury; trial court erred by using 2% impairment rating for employees cervical spine injury instead of 1% total assigned by evaluating physician, which considered 50% apportionment to prior or non-work-related cause; when treating physician testified that employee suffered very large disc herniation that created pretty severe spinal stenosis, evaluating physician opined that it would be unsafe for employee to return to driving truck, and second evaluating physician testified that employee had very significant problems, such as poor gait, tenderness throughout his lumbar and cervical spine, reduced range of motion, and atrophy in his left leg, trial court did not err in awarding six times total impairment rating; utilizing cervical impairment rating of 1% and lumbar impairment rating of 7%, permanent partial disability award is modified to 48%. Hudson v. Pro Logistics, 2/20/14, Nashville, Ash, 22 pages.
http://www.tncourts.gov/sites/default/files/hudsonjohnnie.opn_.pdf

COURT OF APPEALS TORTS: In suit by plaintiff, veterinarian against humane society, trial court erred in granting summary judgment to defendant on negligent infliction of emotional distress claim based on lack of expert proof when plaintiffs claim for negligent infliction of emotional distress was not stand-alone claim because she also alleged other independent basis for tort liability, and hence, fact that plaintiff did not allege physical injury is not determinative; trial court properly denied defendants summary judgment motion on plaintiffs retaliatory discharge claims in case in which plaintiff refused to participate in continuing practice at defendant by which technician was using plaintiffs medications to illegally euthanize animals; regardless of whether plaintiff was partly motivated by concern for her professional license, liability, and reputation, defendant did not demonstrate that plaintiff cannot prove at trial that her whistleblowing activity furthered some important public policy interest embodied in law; because plaintiff reported technicians illegal conduct to plaintiffs supervisor and defendants executive director, and also reported it to defendants board o f directors, she did more than report offense to alleged offender. Coleman v. Humane Society of Memphis & Shelby County, 2/14/14, WS, Highers, 44 pages.
http://www.tncourts.gov/sites/default/files/colemanrebeccaopn.pdf

FAMILY LAW: In case in which mother and stepfather filed petition seeking to terminate biological fathers parental rights to child and to permit stepfather to adopt child, evidence preponderated against trial courts finding that termination of fathers parental rights was in childs best interest; while trial court, in reaching its holding on best interests, relied on facts supporting its ruling that father had abandoned child

by failing either to support or visit child and focused on positive environment child would have living with stepfather, childs environment living with stepfather would not change if fathers rights were not terminated, and there was no evidence that having father involved in childs life, in addition to stepfather, would be contrary to childs best interests. In re William T.H., 2/18/14, MS, Cottrell, 9 pages.
http://www.tncourts.gov/sites/default/files/williamth.opn_.pdf

GOVERNMENT: In case in which plaintiff filed petition seeking attorney fees and costs exceeding $70,000 pursuant to suit filed pursuant to Public Records Act, TCA 10-7-505(g), and trial court found that total fees and costs sought by plaintiff were unreasonable and excessive and awarded plaintiff $50,285, while also reducing costs awarded for mileage and court reporter charges, trial court erred by finding plaintiffs fees to be unreasonable; plaintiff should not be required to bear cost of reasonable fees incurred to enforce her access to public documents, and she should have been awarded all of fees sought. Little v. City of Chattanooga, 2/14/14, ES, Frierson, 11 pages.
http://www.tncourts.gov/sites/default/files/littlefinalopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In drug case, fact that trial judge was friends on Facebook with witness, i.e., confidential informant, was not sufficient proof that trial court could not impartially fulfill its duty as thirteenth juror; defendant failed to establish that trial judges participation in social network Facebook prevented him from properly exercising his role as thirteenth juror. State v. Forguson, 2/18/14, Nashville, Wedemeyer, concurrence by Witt, 19 pages.
http://www.tncourts.gov/sites/default/files/forgusonjmopn.pdf http://www.tncourts.gov/sites/default/files/forgusonjeffreymcon.pdf

EVIDENCE: In case in which 15-year-old defendant was convicted of aggravated sexual battery, aggravated child abuse, aggravated child neglect, and filing false offense report, in connection with offenses committed against his younger sister, trial judge did not abuse discretion in determining that probative value of two pages of drawings by defendant was not substantially outweighed by danger of unfair prejudice when drawings were not introduced to establish that defendants character was violent or cruel and that he acted in conformity with that character trait, but rather, drawings were probative of defendants animosity toward the victim for having to babysit her; trial court did not err in refusing to remand case back to juvenile court after jury rendered its verdicts when jury convicted defendant of aggravated sexual battery, charged as lesser included offense of aggravated rape of child, defendant was not acquitted on the charge or charges resulting in his transfer from juvenile court to criminal court. State v. Prindle, 2/19/14, Jackson, Bivins, 36 pages.
http://www.tncourts.gov/sites/default/files/prindlejopn.pdf

ATTORNEY GENERAL OPINION GOVERNMENT: When annexing municipality wants to provide water and/or wastewater services in annexed territory that is claimed to be within Water and Wastewater Treatment Authoritys existing service area, applicable statutory provisions are those in TCA 6-51-111(e). Attorney General Opinion 14-19, 2/14/14, 5 pages.
http://www.tn.gov/attorneygeneral/op/2014/op14-19.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