Sports Bar Settles Suit for Overserving Customer Leading to Fatal Crash

The Atlanta Journal-Constitution reports that The Sports Grill, a Georgia sports bar, has settled a lawsuit against it, known as a dram shop action, for $1 million.  AJC repots that Cuneyt Erturk, was driving home on October 25, 2008 when he was struck and killed by a car driven by William Paul Davis.  The lawsuit filed on behalf of Mr. Erturk's widow claimed that Sports Grill staff members overserved Davis knowing he would drive home.  State Court Judge Toby Prodgers in May sanctioned the bar for destroying more than four hours of videotape that might have proved Ms. Erturk's case. The Judge also found evidence that The Sports Grill destroyed tabs for two customers who were with Davis and the "spill sheet" that recorded complimentary drinks to patrons that night. The Sports Grill denied the allegations in court documents, and the parties reached a settlement on July 15, 2010.

The Adams Law Firm prosecutes dram shop cases on behalf of plaintffs like Ms. Erturk.  As the Erturk case shows, early presrvation of evidence held by a bar or restaurant may be key is proving alleged liability.  Please call us with any questions or concerns you may have about establishments who irresponsibly serve patrons.    

Healthcare Fraud - Reforms May Lead to More Whistleblowers and Lower Costs

We often hear prospective jurors say they are hesitant to find in favor of plaintiffs because it may cause a rise in the cost of goods, services, and especially insurance.  While there are many arguments to the contrary, we cannot, at length, debate the issue during jury selection.  If we could, we would point out that, unlike legitimate tort claims, healthcare billing fraud costs consumers billions of dollars annually.  Fortunately, as Bloomberg reports, healthcare reform laws may make it easier for those aware of such fraud to report it without fear of employer retaliation.

When a worker reports such fraud, they are often referred to as a whistleblower, and the suit which may follow is referred to as a qui tam action.  Qui tam is an action brought by an informer which seeks a penalty for acts such as healthcare billing fraud and provides that the informer may recover some funds for his or her efforts.  The remainder of the fund goes to the state or other institutions which were affected by the fraud.  Such cases deter fraud and recover millions, and sometimes billions, of dollars which go back into the system to defray costs.

Court Reviews Whether the Trial Court’s Refusing to Allow Expert Testimony was Erroneous

JAMES Q. HOLDER, et al., v. WESTGATE RESORTS LTD., a Florida Limited Partnership d/b/a WESTGATE SMOKY MOUNTAIN RESORT AT GATLINBURG

(CORRECTION in the majority opinion (Tenn. Ct. App. July 28, 2010))

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_corr_072810.pdf

SUSANO, concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072810.pdf

Court Reviews Whether Defendants can use Trial Testimony Transcripts in Closing Arguments

CATHY L. CHAPMAN, ET AL. v. JAMES V. LEWIS, M.D., ET AL. (Tenn. Ct. App. July 28, 2010)

On April 10, 2000, William D. Chapman, II ("the Deceased") was involved in a motor vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and Medical Center in Kingsport where he came under the care of trauma surgeons, the defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other physicians and medical personnel.

The plaintiff, Cathy L. Chapman, brought this wrongful death action against the defendants based upon her allegation that they were guilty of medical malpractice in the treatment of her husband; she claims that their malpractice caused the death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008, counsel for the parties made their closing arguments. During the defense's argument, counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen what purported to be the Q. and A. trial testimony of the plaintiff's medical expert, Dr. Philip Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict in favor of both defendants.

Later, the trial court, acting on the plaintiff's motion, reversed itself and held that the defendants failed to lay a proper foundation for the use of the projected testimony. The court also pointed out that the defendants failed to give the plaintiff prior notice of their intention to use portions of the trial transcript in closing argument. As a consequence, the court granted the plaintiff a new trial. The defendants appeal. We reverse the trial court's grant of a new trial and reinstate the court's judgment in favor of the defendants.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/chapmanc_072810.pdf

TWCA Reviews Whether the Trial Court Properly Found that an Employee Sustained a Compensable Mental Injury

TRANSPORT SERVICE, LLC v. DONALD ALLEN (TWCA July 28, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

The employee alleged a compensable injury to his right shoulder and a compensable mental injury. His employer denied that the alleged mental injury was compensable. The trial court found both injuries to be compensable and awarded 50% permanent partial disability to the body as a whole.

On appeal, the employer contends that the trial court erred by awarding benefits for the mental injury and by finding that the employee did not have a meaningful return to work. The employee contends that the trial court erred by accepting the impairment rating of the Medical Impairment Rating Registry physician and in the trial court's application of the concurrent injury rule. We conclude that the evidence preponderates against the trial court's finding that the employee sustained a compensable mental injury and modify the judgment accordingly.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/transportservice_072810.pdf

TWCA Reviews Whether an Employee Had a Meaningful Return to Work

WENDY BLAIR v. WYNDHAM VACATION OWNERSHIP, INC. (TWCA July 28, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Wendy Blair ("Employee") sustained injuries as a result of a fall which occurred in the course of her work as a sales agent for Wyndham Vacation Ownership ("Employer").

The trial court found that she suffered permanent injuries to her neck and lower back due to the fall and that she had not made a meaningful return to work. The trial court awarded Employee 78% permanent partial disability ("PPD") benefits to the body as a whole. Employer has appealed from that judgment. We conclude that the trial court erred in its finding that Employee did not have a meaningful return to work. Consequently, we modify the judgment to award 19.5% PPD to the body as a whole.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/blairw_072810.pdf

TWCA Reviews Whether Employee’s Condition had been Worsened by Later Employment

VICKY L. BENSON v. OLD REPUBLIC INSURANCE COMPANY, ET AL. (TWCA July 28, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Vicky Benson ("Employee") developed bilateral carpal tunnel syndrome in 2002, as a result of her work for New Gray Cemetery ("Employer"). Her claim was accepted. She had surgery on her right arm in 2004 and returned to work. After her return, she was terminated for reasons not related to her injury. She continued to receive conservative medical treatment from time to time. She found new employment in 2006. In September 2007, her treating physician recommended surgery for her left arm.

Employer denied the claim, contending that her subsequent employer was liable for the condition and its effects. The trial court ruled that Employee's condition had been worsened by her later employment, and dismissed the claim. On appeal, Employee contends that the evidence preponderates against the trial court's finding. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/bensonv_072810.pdf

Court Reviews Issues Involving Physician Interviews in a Medical Malpractice Case

VICKI P. JACOBS, SURVIVING SPOUSE OF HARRIS N. JACOBS, DECEASED; AND FOR THE BENEFIT OF HERSELF AND THE MINOR CHILDREN OF HARRIS N. JACOBS, DECEASED v. NASHVILLE EAR, NOSE & THROAT CLINIC ET AL. (Tenn. Ct. App. July 27, 2010)

This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001.

The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/jacobsv_CORR_072710.pdf

Court reviews whether expert testimony should have been admitted in a case involving a fall on Defendant's premises

JAMES Q. HOLDER, et al., v. WESTGATE RESORTS LTD., a Florida Limited Partnership d/b/a WESTGATE SMOKY MOUNTAIN RESORT AT GATLINBURG (Tenn. Ct. App. July 23, 2010)

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_072310.pdf

SUSANO concurring in part and dissenting in part.
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072310.pdf

Court reviews whether trial court properly denied a motion for a directed verdict in a medical malpractice case

TERESA LYNN STANFIELD, ET AL. v. JOHN NEBLETT, JR., M.D., ET AL. (Tenn. Ct. App. July 23, 2010)

This is a medical malpractice case. The jury returned a verdict, finding that the Appellee/Doctor deviated from the standard of care, but that his deviation was not the legal cause of the injury. Appellant contends that the trial court erred in denying her motion for a directed verdict, erred in ruling on her objections to Appellee's experts and the impeachment of her experts, that she was prejudiced by the language used on the verdict form, and that the trial court abused its discretion in allowing Appellee to make a powerpoint presentation during opening statements and closing arguments. Finding no error, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/stanfieldt_072310.pdf

Court reviews the trial court's grant of a summary judgment motion in medical malpractice case

VICKI P. JACOBS, SURVIVING SPOUSE OF HARRIS N. JACOBS, DECEASED; AND FOR THE BENEFIT OF HERSELF AND THE MINOR CHILDREN OF HARRIS N. JACOBS, DECEASED v. NASHVILLE EAR, NOSE & THROAT CLINIC ET AL. (Tenn. Ct. App. July 16, 2010)

This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001.

The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/jacobsv_071610.pdf

Court reviews causation in an automobile accident case

GLENDA HAMPTON v. NORTHWEST TENNESSEE HUMAN RESOURCE AGENCY (Tenn. Ct. App July 13, 2010)

This is a personal injury case. The Appellant/Defendant's employee backed a van into a vehicle which the Appellee/Plaintiff was driving. Until the accident, the Plaintiff had not had any problems with her right shoulder. The morning after the accident the Plaintiff had pain and soreness in her shoulder. She was treated by three different orthopedic surgeons and ultimately had arthroscopic right shoulder surgery. The parties stipulated to liability. However, the Defendant disputed causation. A bench trial was held and the trial court found that the accident caused the Plaintiff's shoulder injury which necessitated the shoulder surgery. Defendant appealed from the trial court's judgment. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hamptong_CORR_071510.pdf

Worker's Compensation Panel reviews whether employee's condition was compensable

RUBY E. AUSTIN v. GENLYTE THOMAS GROUP, LLC ET AL. (TWCA July 12, 2010)

Employee alleged that she sustained a compensable injury to her back. Employer referred her to a physician who opined that her condition was not work-related, and her claim was thereafter denied. After trial, the court found that Employee's condition was compensable and awarded 65% permanent partial disability to the body as a whole and temporary total disability benefits. Employer has appealed, contending that the evidence preponderates against the trial court's finding that a compensable injury occurred, or alternatively in ordering payment of temporary total disability benefits. We modify the award of temporary total disability benefits but otherwise affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/austinr_071210.pdf

Court Reviews Whether the Statute of Limitations Barred Plaintiffs From Bringing a Claim Related to the Contamination of their House after a Flood

VICTORIA DUTTON, ET AL. v. FARMERS GROUP, INC., ET AL. (Tenn. Ct. App. July 12, 2010)

Plaintiffs' home flooded and incurred severe water and mold damage when the hot water tank burst. Plaintiffs began to experience varying illnesses after moving back into the home. Despite Defendants' assurances that the home was safe, three years after moving back into the home, Plaintiffs discovered that their home was contaminated with toxic mold. Thereafter, Plaintiffs filed suit against Defendants alleging various claims. Defendants moved to dismiss the Complaint asserting that the statute of limitations barred the claims. After a hearing, the trial court agreed and dismissed Plaintiffs' Complaint. Plaintiffs then filed a motion to alter or amend the judgment; the trial court denied the motion. Plaintiffs appeal. We reverse.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/duttonv_081210.pdf

SUSANO concurring
http://www.tba2.org/tba_files/TCA/2010/duttonv_CON_081210.pdf

Court reviews whether defendant City had notice of an unsafe road condition in an automobile accident case

JENNIFER BIVINS ET AL. v. CITY OF MURFREESBORO (Tenn. Ct. App. July 12, 2010)

Brandon Bivins died in an automobile accident on South Rutherford Boulevard in Murfreesboro. His mother sued the city, claiming that the road was unsafe or dangerous and that the city had notice of the condition of the road. The trial court held that the city did not have notice of an unsafe or dangerous condition at the spot of the accident. Because the city had notice of prior accidents along that segment of the road and had a consultant's report stating that the road did not meet design guidelines, we reverse the trial court and remand for a determination of whether the road was unsafe or dangerous.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bivinsj_071210.pdf

Court reviews whether plaintiff failed to establish the standard of cared owed by prison officials

SHIRLEY ANN ATKINSON, ADMINISTRATOR OF THE ESTATE OF ROBERT LEE PATTEE, JR., DECEASED v. STATE OF TENNESSEE (Tenn. Ct. App. July 12, 2010)

This is an appeal from the Tennessee Claims Commission. The claimant/appellant alleged that state employees or their agents negligently caused the death of her fiancé, who committed suicide while incarcerated at the Lois M. DeBerry Special Needs Facility in Nashville, Tennessee. The Commission determined the claimant was not entitled to recover because she failed to produce expert testimony to establish the standards of care by which to judge the conduct of the prison officials and mental health professionals allegedly responsible for the care, custody, and control of the deceased. Because the Commission correctly determined that the claimant is unable to prove a breach of duty without expert evidence to establish the applicable standards of care, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/atkinsons_071210.pdf

Court reviews causation in a medical malpractice and battery case

RUFUS R. CLIFFORD, III AND WIFE, CARRIE C. CLIFFORD v. LOYDA TACOGUE, M. D., ST. THOMAS HOSPITAL, AND ST. JUDE MEDICAL, S.C., INC. (Tenn. Ct. App. July 9, 2010)

Plaintiff husband alleged that he suffered an injury in the course of undergoing a cardiac catheterization procedure. Plaintiffs filed suit against the treating physician, alleging medical malpractice, lack of informed consent, and medical battery; against the hospital, alleging medical malpractice based on an actual or apparent agency with the physician; and against the manufacturer of the medical device used in the procedure, alleging that the manufacturer was vicariously liable for medical battery committed by its employee.

The trial court granted summary judgment to the defendants on all claims, holding that plaintiffs failed to establish that the use of the medical device to close the site where the catheter was inserted was the cause of husband's injury. Finding that the defendants negated the element of causation essential to each cause of action, the trial court's judgment is affirmed.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/cliffordr_070910

Workers' Compensation panel reviews the evidence in a case involving neck and back injuries

JACK KELTON v. BRIDGESTONE AMERICAS HOLDING, INC., ET AL. (TWCA July 8, 2010)

In this workers' compensation action, the employee alleged that he sustained compensable injuries to his neck and lower back. His employer asserted that his injuries were the result of pre-existing degenerative conditions, or in the alternative, were worsened by an automobile accident which occurred after the alleged work injuries. The trial court found the neck injury to be compensable, but denied recovery for the alleged lower back injury. It awarded 85% permanent partial disability benefits, temporary total disability benefits, and required the employer to provide medical care for the neck injury. The employer has appealed arguing that the evidence preponderates against the trial court's findings. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/keltonj_070810

Worker's Compensation Panel reviews whether employer is liable for employee's second injury

MONTRAIZE THOMISON v. YATES SERVICES, LLC (TWCA July 8, 2010)

Employee alleged that he sustained two compensable injuries to his left knee. The first injury occurred on December 12, 2004, was accepted as compensable by employer, and resulted in an award of 15% permanent partial disability to the left leg. That award is not contested on appeal. Employee alleged that a second injury occurred on September 26, 2006. Employer denied liability for that injury. The trial court found that Employee sustained a second injury and awarded 30% permanent partial disability to the left leg. On appeal, Employer asserts that the trial court erred by finding that a compensable injury occurred, or in the alternative, that Employee sustained a permanent disability as a result of the injury. We conclude that the record contains no medical evidence of a causal nexus between the second injury and the alleged disability. Accordingly, we reverse the judgment of the trial court and remand the case.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/thomisonm_070810

Worker's Compensation Panel reviews whether employer proved its affirmative defense of employee misrepresentation of physical condition

MARK ALLRED v. BERKLINE, LLC, ET AL. (TWCA July 1, 2010)

The employee sustained gradual injuries to his arms and shoulders as a result of repetitive motion in the course of his employment. His employer denied liability based upon the affirmative defense of misrepresentation of physical condition. Employee had sustained gradual injuries to his left shoulder and arm during a previous job. He was placed under permanent activity restrictions and received a workers' compensation award as a result of those injuries. In applying for employment with appellant, he did not disclose the prior injuries.

The trial court concluded that the employer did not prove the misrepresentation defense. Permanent total disability benefits were awarded. Employer has appealed, contending that the trial court erred by finding that it did not sustain its burden of proof as to the affirmative defense.

Upon review, we conclude that the evidence preponderates against the trial court's findings and that the employee's misrepresentation was willful, was relied upon by the employer and was causally related to his subsequent injuries. Because we find that the employer sustained its burden of proving its affirmative defense, we reverse the awarding of benefits. Finally, we conclude that the employer is not entitled to recover the cost of retaining a consulting physician to view a surgical procedure that did not take place.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/allredm_070110.pdf