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TAM-BYTES March 31, 2014 Vol. 17, No.


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.

         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 today’s 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:

*************************************************************** 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 you’re 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

           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:


“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 What’s 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. “Disability Offsets: Traps for the Unwary Attorney and Tips for Avoiding Them,” 60-minute webinar presented by Grayson Smith Cannon, Goodlettsville attorney, on Tuesday, May 13, 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

IN THIS WEEK’S TAM-Bytes  Court of Appeals reverses dismissal of medical malpractice action when plaintiff gave pre-suit notice before filing 2009 suit, took nonsuit, and filed second suit with attached certificate of good faith but failed to provide new 60day pre-suit notice and instead attached copy of previously filed 60-day presuit notice;  In employment discrimination case, Court of Appeals says defendant employer cannot negate element of plaintiff’s prima facie case merely by showing that plaintiff did not submit sufficient evidence at summary judgment stage, but, to obtain summary judgment, employer must show that plaintiff cannot establish this element of her claim at trial;  In suit alleging unlawful use of plaintiff’s image and likeness, Court of Appeals rules federal Copyright Act preempted statutory claims for violation of Tennessee Personal Rights Protection Act and Tennessee Consumer Protection Act and common law claims for unjust enrichment, accounting, and conversion;  Court of Appeals considers whether requirement of obtaining new process or recommencing action in general sessions court is triggered for purposes of TCA 16-15-710 by failure to return unserved prior process within 60 days as required by TCA 16-15-902; and  U.S. District Court grants preliminary injunction to three same-sex couples prohibiting State of Tennessee from enforcing TCA 36-3-113 and Tenn. Const. Art. XI, Sec. 18, Anti-Recognition Laws.

COURT OF APPEALS TORTS: When plaintiffs provided statutorily required 60-day pre-suit notice on 1/8/09 pursuant to TCA 29-26-121, plaintiffs filed suit on 4/8/09, during pendency of action, legislature enacted changes to statute setting forth new requirements for medical malpractice actions filed on or after 7/1/09, plaintiffs voluntarily dismissed suit on 9/8/09, plaintiffs filed second suit on 9/8/10 with attached certificate of good faith but failed to provide new 60-day pre-suit notice, instead attaching copy of previously filed 60-day pre-suit notice, trial court erred in dismissing second suit; although pre-suit notice was not compliant with 2009 revisions to statute in effect at time second suit was filed, 2009 revisions did not apply because notice was given prior to 7/1/09, and plaintiffs were compliant with notice provisions in effect at time of filing first and only successful notice. Potter v. Perrigan, 3/27/14, ES, McClarty, 6 pages.

TORTS: In suit arising out of accident on entrance ramp from Hardin Valley Road to Pellissippi Parkway in Knox County that occurred when defendant’s vehicle struck plaintiff’s vehicle from rear, material evidence supported jury’s verdict that defendant was not negligent when it was not unreasonable for defendant to expect plaintiff to continue moving forward into merge lane and for defendant to look over her left shoulder to check for oncoming traffic. Hicks v. Prahl, 3/25/14, ES, Frierson, 11 pages.

EMPLOYMENT: When plaintiff employee filed suit alleging that she was singled out for termination in reduction in force based on her age and/or race, trial court erred in granting defendant employer summary judgment; fact that employer proffered legitimate non-discriminatory reason for selecting plaintiff for termination instead of another warehouse worker does not entitle defendant to summary judgment on age discrimination claim because court is required to assume that plaintiff may still obtain evidence for trial that defendant’s termination of plaintiff’s employment was discriminatory; defendant did not negate fourth element of plaintiff’s prima facie claim of race discrimination – that plaintiff was treated differently than similarly situated employees outside protected class – and did not establish that plaintiff cannot prove fourth element of her race discrimination claim at trial; issue is not whether plaintiff had submitted evidence of race discrimination at summary judgment stage, but whether plaintiff cannot submit evidence of race discrimination at trial. Stewart v. Cadna Rubber Co., 3/26/14, WS, Kirby, 12 pages.

COMMERCIAL LAW: When appellee, more than 30 years ago, hired advertising agency co-owned by Walker to create nostalgic-looking advertisement for defendant Chattanooga Bakery, Inc. (CBI) to use in marketing its MoonPie, Walker asked family friend for permission to use her 10-year-old son (plaintiff) in advertisement, plaintiff, in exchange for modeling for photo, received chance to skip school, some cash, and free MoonPies, later version of photo includes RC Cola – manufactured by appellee Dr. Pepper/Seven Up, Inc. (DPSU) – that was digitally placed into photo after CBI obtained digital copy of it in 1999 by scanning first page of old brochure, CBI used photo in other mediums – commemorative tin, bottleneck ringer, cigar box, book of MoonPie Memories, and knit blanket – plaintiff noticed, in 2011, that photo was being used in these other mediums and filed suit asserting statutory claims for violations of Tennessee Personal Rights Protection Act and Tennessee Consumer Protection Act, and common law claims for unjust enrichment, accounting, and conversion, trial court properly ruled that claims were preempted by Copyright Act; plaintiff’s claims do not involve use or appropriation of plaintiff’s personal traits or identity, but rather, defendants’ use of copyrightable photo that includes, among other things, unidentifiable young boy who happens to be plaintiff,

and this falls within subject matter of copyright. Wells v. Chattanooga Bakery Inc., 3/25/14, MS, Bennett, 13 pages.

TAXATION: When taxpayer sued for refund of sales and use taxes paid based on two issues, in response to Department of Revenue’s (Department’s) motion for summary judgment, taxpayer conceded one issue, which constituted about 70% of amount contested, and moved for summary judgment on other issue, trial court ruled for Department on conceded issue and for taxpayer on other issue, and both sides sought attorney fees and expenses, trial court erred in holding that taxpayer was prevailing party and in awarding taxpayer attorney fees; because each party won one issue, and each party received substantial relief, there is no prevailing party; award of attorney fees to taxpayer is reversed. Five Oaks Golf & Country Club Inc. v. Farr, 3/20/14, MS, Bennett, 5 pages.

FAMILY LAW: In case in which parties were divorced in 11/08, mother was designated as primary residential parent of parties’ only child – shortly after his birth, child was diagnosed with rare genetic disorder called Phenylketonuria or PKU, which requires strict diet in order to prevent neurological damage – and in 9/11, father filed petition seeking to be designated child’s primary residential parent, evidence did not preponderate against trial court’s determination that there had been material change of circumstances warranting change in child’s primary residential parent to father from mother; finding that mother exposed child to danger to his health by failing to follow necessary dietary regimen is sufficient to support finding that it is in best interest of child that father become his primary residential parent. Austin v. Torres, 3/20/14, MS, Cottrell, 9 pages.

FAMILY LAW: In case in which mother and father were divorced in 2/10, father was required to maintain life insurance policy to support parties’ six children, following father’s death, children became entitled to death benefit of approximately $184,000, litigation ensued between mother and father’s father (Wright), executor of father’s estate, over control and disposition of life insurance proceeds, Wright filed petition seeking to be appointed trustee or interim guardian of pension funds on behalf of children, and after investigating mother’s personal finances, probate court became concerned with her management of trust and appointed guardian ad litem to protect children’s assets and to “take any and all such further actions as may be necessary,” probate court acted beyond scope of its jurisdiction in appointing guardian ad litem to further investigate mother’s mismanagement of trust. In re Guardianship of Minor Children of Wright, 3/27/14, WS, Farmer, 6 pages.

CIVIL PROCEDURE: If unserved process is not returned unserved within 60 days of issuance, plaintiff in general sessions court who wishes to rely on original commencement as bar to running of statute of limitation has nine months from end of 60 days from issuance of prior process to obtain new process or plaintiff must recommence action within one year after 60 days from issuance of initial process not served and not returned; plaintiff who fails to return process unserved runs risk that statute of limitation will expire on his or her claim. Gates v. Perry, 3/26/14, ES, Swiney, 8 pages.

GOVERNMENT: TCA 2-7-133(i), which requires any person attempting to be elected by write-in ballots to complete notice requesting such person ’s ballots be counted in each county of district, no later than noon, 50 days before general election, is constitutional as written and was not unconstitutionally applied to plaintiff, write-in candidate for election to Metropolitan Nashville city council. Johnston v. Davidson County Election Commission, 3/26/14, MS, Dinkins, 11 pages.

COURT OF CRIMINAL APPEALS EVIDENCE: In case in which defendant was convicted of second degree murder of his wife, although question is close one, trial judge did not err in allowing victim’s coworker to testify about victim’s statements regarding defendant’s infidelity and her intention to confront him about his cheating when evidence was admissible under state of mind exception to hearsay rule because it established victim’s intent and plan to confront defendant about his infidelity at time of her death – victim’s state of mind was at issue because defendant claimed that victim’s death was result of suicide rather than homicide; trial judge did not err in allowing victim’s daughter (Dana) to testify that she and her two other siblings had filed wrongful death lawsuit against defendant, that they had obtained default judgment against him, that no family member (other than defendant) had received any funds from victim’s bank accounts, 401(k) accounts, or any proceeds from victim’s life insurance proceeds, and that defendant did not allow her to have any of victim’s personal belongings and sold some of victim’s jewelry and other belongings at flea market when, because defendant raised issue of amount prayed for in wrongful death complaint, trial court properly allowed state to question Dana about whether victim’s family had received any funds or belongings following her death, and evidence was relevant and admissible because it provided additional motive for defendant to kill victim, i.e., to obtain victim’s money and belongings. State v. Owens, 3/24/14, Nashville, McMullen, 34 pages.

CRIMINAL LAW: In case in which defendant was convicted of especially aggravated kidnapping, aggravated assault, and attempted voluntary manslaughter (as

lesser included offense of attempted first degree murder), evidence was not sufficient to convict defendant of attempted voluntary manslaughter when attempted voluntary manslaughter should not have been charged as lesser included offense of attempted first degree murder as no rational trier of fact could have found that victim’s action in telling defendant that she would not have sex with him and that she was going to leave constituted “adequate provocation sufficient to lead a reasonable person to act in an irrational manner”; case is remanded to trial court for new judgment form which reflects that defendant’s conviction for attempted voluntary manslaughter is reversed and no longer merges with aggravated assault conviction. State v. Waller, 3/21/14, Jackson, Williams, 13 pages.

EVIDENCE: In case in which defendant was convicted of aggravated rape in connection with assault of victim at bar, trial judge did not err in allowing victim to testify about prior sexual assault she suffered as child – victim stated that she was sexually abused as child, that after each incident she simply returned to living room, and that she did not tell anyone that it occurred – when testimony was relevant as to question of why victim reacted in certain manner and whether she was telling truth about her reaction, both essential determinations in case, and testimony aided jury in determining if victim was telling truth when she claimed that she was raped by defendant, especially in light of defense grilling of victim about why she failed to scream for help or seek immediate attention and inference that she invented “story” because her boyfriend was angry that she stayed out late at bar. State v. Wright, 3/21/14, Jackson, Williams, 14 pages.

CRIMINAL PROCEDURE: In case in which defendant was convicted of aggravated sexual battery, trial judge did not err in denying defendant’s motion to suppress his statement to police when 54-year-old defendant, who came to police station on his own and did not appear intoxicated, was advised of his rights, waived them, and was questioned for less than hour by two officers, trial court found that defendant did not exhibit diminished mental capacity, and police made only equivocal statements regarding possibility of leniency given in exchange for confession – while officers’ two exchanges with defendant hinted that confession could lead to leniency, less jail time, and possibly mental health treatment, officers would forthcoming in telling defendant that district attorney (DA) would determine charges against him, and immediately after referencing defendant’s exposure to incarceration, officer told defendant they would tell DA that defendant had been reluctant at first but was ultimately honest and that they would ask DA, “What can we do for him?”; learned treatise may be used to impeach expert witness, but not lay witness. State v. McRee, 3/21/14, Jackson, Williams, 19 pages.

CRIMINAL SENTENCING: In case in which defendant pled guilty to delivery of dihydrocodeinone, was sentenced to three years, suspended after service of nine months in confinement, and was prohibited from driving motor vehicle or having motor vehicle on his property within his control, given defendant’s extensive criminal history, which stemmed in part from alcohol and drug abuse, defendant failed to show that special condition prohibiting him from driving or having control of motor vehicle was improper or unrelated to rehabilitative purpose of his sentence, which was to prevent him from injuring members of community; this special condition does not amount to forfeiture because there was no requirement that defendant divest himself of any vehicle in his possession without compensation or that his motor vehicle be stored by any law enforcement agency for duration of his probation. State v. Giles, 3/24/14, Nashville, McMullen, 10 pages.

PUBLIC CHAPTERS INSURANCE: Various changes are made to insurance coverage for sinkhole loss and subsequent structural repair. 2014 PC 537, effective 7/1/14, 6 pages.

GOVERNMENT: Cities and counties may hold referendum to authorize selling of wine in retail food stores. 2014 PC 554, effective 3/20/14, 7/1/14, 7/1/16, 17 pages.

U.S. SUPREME COURT CRIMINAL PROCEDURE: Trial court properly denied petitioner’s motion to suppress evidence seized from his apartment when petitioner’s co-tenant consented to search, after petitioner had been arrested, even though petitioner had earlier objected to search; requiring officers to obtain warrant when warrantless search is justified may interfere with law enforcement strategies and impose unmerited burden on person willing to consent to immediate search. Fernandez v. California, 2/25/14, Alito, concurrences by Scalia & Thomas, dissent by Ginsburg, 6-3, 33 pages.

SIXTH CIRCUIT COURT OF APPEALS EMPLOYMENT: When plaintiff was hired in summer 2008 as teacher and assistant basketball coach at Union City High School in Tennessee, he was offered another teaching contract for 2009-10 school year and 2010-11 school year, board of

education approved plaintiff for tenure on 4/11/11, plaintiff showed up for work day following board of education’s meeting, multiple student allegations concerning plaintiff surfaced after board of education’s meeting, plaintiff’s contract was not renewed for 2011-12 school year, and plaintiff filed suit, district court properly held that plaintiff was not tenured and therefore not entitled to procedural safeguards in Tennessee Tenure Act or recovery under 42 USC 1983; because plaintiff did not receive new contract for following school year or report to work as teacher in 2011-12 school year, he was not re-employed within meaning of tenure act. Barbee v. Union City Board of Education, 3/17/14, McKeague, dissent by Moore, 20 pages, N/Pub.

CONSTITUTIONAL LAW: When plaintiff pled nolo contendere in 2008 to statutory rape by authority figure and was sentenced to three years, or 1,095 days, plaintiff was awarded total of 310 credit days, and plaintiff filed suit against Corrections Corporation of America (defendant) for false imprisonment and negligence under 42 USC 1983, alleging that he was incarcerated beyond his correct release date, which he identified as “early October 2010,” district court erred in dismissing plaintiff’s action as untimely; for purposes of summary judgment, plaintiff’s period of false imprisonment spanned 42 days – beginning sometime in early 10/10 and ending when he was released on 11/19/10 – statute of limitation began to run on 11/19/10, day plaintiff’s false imprisonment ended, and thus, plaintiff’s complaint, which was filed on 11/18/11, was timely filed, and district court’s determination to contrary was in error; damages stemming from plaintiff’s false imprisonment, if proven, would span from date he should have been released from prison until date he was actually released. Panzica v. Corrections Corporation of America, 3/17/14, Cole, 7 pages, N/Pub.

CRIMINAL PROCEDURE: Ineffective assistance of post-conviction counsel can establish cause to excuse Tennessee defendant’s procedural default of substantial claim of ineffective assistance at trial. Sutton v. Carpenter, 3/19/14, White, 11 pages, Pub.

U.S. DISTRICT COURT FAMILY LAW: Request by plaintiffs, three married, same-sex couples who lived and were legally married in other states before moving to Tennessee, for preliminary injunction prohibiting State of Tennessee from enforcing Anti-Recognition Laws (which only recognizes marriages between one man and one woman) is granted. Tanco v. Haslam, 3/14/14, M.D.Tenn., Trauger, 20 pages.

FAMILY LAW: Motion to stay preliminary injunction barring enforcement of AntiRecognition Laws against six named plaintiffs, three married, same-sex couples who lived and were legally married in other states before moving to Tennessee, is denied. Tanco v. Haslam, 3/20/14, M.D.Tenn., Trauger, 9 pages.

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 state’s web site by clicking here: