TAM-BYTES March 17, 2014 Vol. 17, No.

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2014 TAM CLE CALENDAR

May 2014 -- Onsite Events

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 *This conference is ideal for all attorneys whether youre tech-savvy or new to cloud computing! 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

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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

Webinars
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). *Earn 1 hour of GENERAL credit. VA Pension: How to Use a Little-Known Benefit to Aid Your Clients, 60minute webinar presented by John Watts, Birmingham attorney, on Thursday, April 3 at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit.

Telephone Consumer Protection Act: New Rules on Computer Calls, 60-minute webinar presented by Stan Herring, Birmingham attorney, on Thursday, April 10, at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit. New RESPA Rules: Help for Homeowners Facing Foreclosure, 60-minute webinar presented by John Watts, Birmingham attorney, on Thursday, April 17, at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit. Probate Litigation in Tennessee: Learn the Impact of 2013 Changes and Whats Ahead, 60-minute webinar presented by Rebecca Blair, Brentwood attorney, on Thursday, April 17, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit.
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 retention/replace provision of Tennessee Plan and statewide election of intermediate appellate court judges constitutional; Workers Comp Panel reverses trial courts finding that employee, package car driver, sustained permanent disability as result of his two episodes of heat exhaustion; Court of Appeals reverses grant of summary judgment in favor of Big Brothers Big Sisters of America in suit arising from alleged sexual and emotional abuse of minor child by Big Brothers Big Sisters of Middle Tennessee volunteer; In suit stemming from medical providers failure to administer RhoGAM injection during wifes pregnancy, Court of Appeals reverses trial courts grant of summary judgment on wifes claim for future medical expenses associated with future pregnancy and husbands claim for negligent infliction of emotional distress, which he may support with evidence concerning disruption of couples family planning; Court of Appeals affirms trial courts finding that father was willfully underemployed for purpose of calculating his child support obligation when fathers criminal activity adversely affected his ability to find employment; Court of Appeals interprets TCA 16-15-5014 as vesting 10th division of Shelby County general sessions court with exclusive jurisdiction over matters involving domestic violence, orders of protection, domestic assault and all other cases incident to domestic abuse as defined in [TCA] 36-3-601, to exclusion of other general sessions courts; and

 Court of Criminal Appeals, in case in which defendant was initially detained by officer who was investigating unwanted person call but was subsequently arrested for DUI, says officers investigatory detention of defendant was unlawful.

SUPREME COURT GOVERNMENT: Retention election portion of Tennessee Plan is constitutional in that it satisfies constitutional requirement that judges of appellate courts be elected by qualified voters of Tennessee; election of judges to Tennessee Court of Appeals and Tennessee Court of Criminal Appeals on statewide basis does not violate Tennessee Constitution. Hooker v. Haslam, 3/17/14, Nashville, Blumstein, unanimous, 24 pages.
http://www.tncourts.gov/sites/default/files/hooker_opinion_final_version_03-17-14.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: Evidence preponderated against trial courts finding that employee, package car driver, sustained permanent disability as result of two episodes of heat exhaustion during summer 2011 when Dr. Kalnas, who had received specific training concerning heat exposure in workplace and found that heat exhaustion is not permanent condition, was better qualified than Dr. Fishbein, orthopedic surgeon who testified that condition was permanent, Kalnas obtained additional information, including weather data and information concerning employees job duties and non-work activities, Kalnas expressed greater familiarity with AMA Guides, all medical examinations or tests administered to employee after episodes of heat exhaustion yielded completely normal results, and employee had applied for several jobs that were substantially similar to his work for employer and testified that he felt he could perform those jobs. Hollars v. United Parcel Service Inc., 3/7/14, Nashville, Anderson, 9 pages.
http://www.tncourts.gov/sites/default/files/hollarsgeorge_v._ups_opnjo.pdf

COURT OF APPEALS TORTS: In suit against Big Brothers Big Sisters of America (BBBSA), in addition to its Tennessee affiliate and others, seeking damages arising from alleged sexual and emotional abuse of minor child by Big Brothers Big Sisters of Middle Tennessee (BBBSMT) volunteer, trial court erred in granting BBBSA summary judgment; question of whether duty should be imposed on BBBSA to take reasonable measures to prevent sexual abuse of children participating in programs offered by BBBSMT, its affiliate in Middle Tennessee, turns on whether BBBSA possesses means and ability to control affiliates operations; parameters of BBBSAs agreement with its affiliates

is not dispositive to this inquiry; strong public policy of preventing child sexual abuse unambiguously expressed by legislature, coupled with foreseeability and gravity of harm, weigh heavily in favor of imposing duty of care on BBBSA to supervise its affiliates so as to protect against child sexual abuse; duty to control conduct of third party does not arise in absence of means and ability to control third party; BBBSA failed to carry its burden to affirmatively demonstrate that it did not possess means and ability to control acts of BBBSMT for purpose of affirmatively negating mothers claims of negligent supervision and screening of volunteer, negligent failure to monitor child, negligent failure to ensure safe environment, and negligence in failure to ensure that match specialist assigned to child was complying with organizational policy and procedures. Ms. B v. Boys & Girls Club of Middle Tennessee, 3/6/14, WS at Nashville, Farmer, 10 pages.
http://www.tncourts.gov/sites/default/files/msbopn.pdf

TORTS: In suit for damages stemming from defendant medical providers failure to administer RhoGAM injection during wifes pregnancy, trial court erred in granting summary judgment to defendants on wifes claim for future medical expenses associated with future pregnancy; to extent that either husband or wife have cognizable claim for negligent infliction of emotional distress, that party may present evidence of disruption of family planning as evidence of damages sustained as result of that tort; wifes claim for emotional distress is not stand alone claim as any anxiety or distress that wife allegedly suffered is causally related to defendants alleged negligence and her resulting Rh-sensitization, and thus, wifes emotional distress claim is clearly parasitic to her claim for medical malpractice; husbands claim for negligent infliction of emotional distress is stand alone claim, requiring expert proof to prevail at trial. Rye v. Womens Care Center of Memphis MPLLC, 3/10/14, WS, Stafford, 35 pages.
http://www.tncourts.gov/sites/default/files/ryemopn.pdf

TORTS: When plaintiff suffered traumatic brain injury when he was passenger on bus that collided with concrete truck, plaintiff and his wife filed suit against bus manufacturer, bus owner, and bus owners franchisor, and jury apportioned 100% of fault for collision to owner of concrete truck with whom plaintiffs reached settlement prior to trial, material evidence supported jurys verdict when plaintiffs accident reconstruction expert testified that accident occurred because concrete truck failed to yield to shuttle bus; trial court was not required to instruct jury on effect of allocating fault to owner of concrete truck; no genuine issue of material fact exists as to whether owner of shuttle bus and franchisor were manufacturers or sellers of shuttle bus. Lake v. Memphis Landsmen LLC, 3/7/14, WS, Farmer, 14 pages.
http://www.tncourts.gov/sites/default/files/lakecliftonaopn.pdf

COMMERCIAL LAW: When attorney filed claim for contractual attorney fees and client filed counterclaim for legal malpractice, trial court properly granted attorney

summary judgment on legal malpractice counterclaim when attorney presented his own affidavit stating that his conduct during clients divorce case complied with applicable standard of care, affirmatively negating essential element of counterclaim, and client failed to present expert testimony to meet her burden of production; trial court did not err in finding that attorneys fee ($15,989 plus prejudgment interest) was reasonable when clients divorce involved complicated implied partnership issues, client and attorney agreed to $200 per hour rate including telephone communications and travel time and this rate was customary within locality, time expended was necessary and reasonable, delay in filing brief was due to continuation of proceedings, and divorce case was concluded without decision simply because parties reconciled. Hudson v. Grunloh, 3/11/14, WS at Knoxville, Highers, 22 pages.
http://www.tncourts.gov/sites/default/files/hudsontimothywopn.pdf

FAMILY LAW: Trial court did not err in concluding that father was willfully underemployed for purpose of calculating his child support obligation when fathers criminal activity, i.e., forgery charge, adversely affected his ability to find employment in his chosen profession, i.e., mortgage originator. Meeks v. Meeks, 3/6/14, MS, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/meeksk.opn_.pdf

CIVIL PROCEDURE: TCA 16-15-5014 is ambiguous as to whether it vests 10th division of Shelby County general sessions court with exclusive jurisdiction over matters involving domestic violence, orders of protection, domestic assault and all other cases incident to domestic abuse only to exclusion of other divisions of general sessions court, or also to exclusion of circuit, chancery, and juvenile courts in Shelby County; TCA 16-15-5014 is interpreted as vesting 10th division of Shelby County general sessions court with exclusive jurisdiction over matters involving domestic violence, orders of protection, domestic assault and all other cases incident to domestic abuse as defined in [TCA] 36-3-601, to exclusion of other general sessions courts; TCA 16-15-5014 does not impact jurisdiction of circuit, chancery, and juvenile courts in Shelby County to adjudicate such matters. Pantik v. Pantik, 3/10/14, WS, Highers, 7 pages.
http://www.tncourts.gov/sites/default/files/pantikmildredjoanopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In case in which defendant was initially detained by officer who was investigating unwanted person call but was subsequently arrested for DUI, trial judge properly granted defendants motion to suppress based on fact that officers investigatory detention of defendant was unlawful; when deputy detected odor of alcohol on defendant at time of stop and observed that defendant had slurred speech and watery eyes, but deputy, who had training and opportunity to do so, waited

for second officer (Shoap) to arrive rather than quickly confirming or dispelling his suspicions because this was [Shoaps] call, state did not meet its burden of demonstrating that deputys detention was reasonable; reasonable circumstances that justify delay in conducting similar investigations involve officers who detect smell of alcohol, continue to direct traffic after concert, and later request assistance of investigating officer, or when officer detained defendant for purpose of trained DUI unit/officer to arrive and administer sobriety tests. State v. Montgomery, 3/12/14, Nashville, McMullen, dissent by Bivins, 13 pages.
http://www.tncourts.gov/sites/default/files/montgomerymechelleopn.pdf http://www.tncourts.gov/sites/default/files/montgomery_mechelle_-_dissent.pdf

CRIMINAL PROCEDURE: In murder case, evidence did not preponderate against trial courts conclusion that defendant was competent to stand trial when expert (Dr. Bishop, expert in clinical and developmental psychology) initially testified that defendant was not competent to assist his attorney properly due to his mental retardation, but when questioned by trial court, she stated that defendant was capable of consulting with his lawyer and that he had rational and factual understanding of charges against him; trial court did not err in denying defendants request to present proof of his mental condition to jury for their consideration in determining validity of defendants confession, when testimony of defendants proffered expert (Dr. DeClue) was not critical to defendants defense; results of defendants testing with DeClue were not critical to his false confession defense when DeClues testimony did not make any issue that would be before the jury more or less probable, and if presented, danger of unfair prejudice would substantially outweigh the probative value of what would be speculative testimony, and state would be unable to rebut DeClues testimony with its own expert. State v. Mays, 3/7/14, Jackson, Bivins, 31 pages.
http://www.tncourts.gov/sites/default/files/maysmopn.pdf

CRIMINAL SENTENCING: In case in which defendant argued that his sentences for drug offenses were illegal because trial court imposed three concurrent sentences even though defendant was on bail in one case when he received his two subsequent charges, and TRCrP 32(c) mandates consecutive sentences when defendant commits felony while defendant is released on bail, because defendant s motion presents colorable claim for relief under TRCrP 36.1, case is remanded to trial court for further proceedings; TRCrP 36.1 is procedural in nature, and thus, defendants colorable claim is viable because rule became effective during pendency of this appeal. Lee v. State, 3/7/14, Jackson, Page, 8 pages.
http://www.tncourts.gov/sites/default/files/leemarcusdeangeloopn_0.pdf

CRIMINAL PROCEDURE: Rule set forth in Miller v. Alabama, 132 SCt 2455 (2012), is new rule of constitutional criminal law that should be applied retroactively because it forbids criminal punishment of mandatory sentence of life imprisonment without parole for certain class of defendants because of their status as juveniles;

unlike Arkansas and Alabama statutes discussed in Miller that only allowed for sentences of death or life imprisonment without parole for first degree murder, Tennessee defendants convicted of first degree murder may be sentenced to death, life imprisonment without possibility of parole, or life imprisonment; life imprisonment in Tennessee does not condemn juvenile offender to die in prison as did life-withoutparole sentences contemplated by Miller; because petitioner received life sentence with release eligibility after 51 years imprisonment, petitioner is not entitled to postconviction relief. Darden v. State, 3/13/14, Nashville, Tipton, 13 pages.
http://www.tncourts.gov/sites/default/files/dardencharlesdamienopn.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