Court Reviews Whether Appellant Proved that her Expert was Familiar with the Standard of Care in a Community Similar to that of the Defendant

TINA JOHNSON, ET AL. v. DAVID J. RICHARDSON, M.D. (Tenn. Ct. App. August 13, 2010)

This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court's disqualification of her expert witness and grant of the Defendant/Appellee's motion for directed verdict. Finding that the Appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant's community, we affirm the decision of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/johnsont_081310.pdf

KIRBY concurring
http://www.tba2.org/tba_files/TCA/2010/johnsont_CON_081310.pdf

TWCA Reviews Whether Employer was Properly Ordered to Provide Employee’s Medications

JOHN CRUMBY, JR. v. RURAL/METRO CORPORATION OF TENNESSEE (TWCA August 11, 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. In 2001, the trial court found that Employee's coronary artery disease had been advanced by his employment. Medical benefits were awarded in accordance with the workers' compensation law. In 2007, a dispute arose between Employee and Employer as to whether certain medications and tests were related to the work injury. Employee filed a motion to compel Employer to provide the medications under the 2001 judgment. The trial court granted the motion, and ordered Employer to provide all of the medications at issue. On appeal, we conclude that the trial court erred by requiring Employer to provide medications for Employee's diabetes. We otherwise affirm the order.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/crumbyj_081110

Court Reviews Whether A Cause of Action Against an Employer Constitutes Negligence or a Workers’ Compensation Claim

MARY COLEMAN, ET AL. v. ST. THOMAS HOSPITAL (Tenn. Ct. App. August 5, 2010)

Plaintiffs filed suit against their employer, alleging common law negligence and negligent infliction of emotional distress due to their exposure to carbon monoxide in the workplace. The employer filed a motion for summary judgment, contending that Plaintiffs' tort claims were barred by Tennessee's workers' compensation law. The trial court denied the employer's motion for summary judgment, concluding that Plaintiffs' injuries did not "arise out of" their employment. The employer's application for an extraordinary appeal was granted. We reverse and remand for entry of an order granting summary judgment to the employer.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/colemanm_080510.pdf

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

Court reviews fault in a case involving an automobile accident

REGINALD DENARD USHER, SON OF REGINALD SMITH, DECEASED v. CHARLES BLALOCK & SONS, INC. ET AL. (Tenn. Ct. App. June 30, 2010)

Reginald Smith ("the Decedent") died when the exposed metal edge of a device known as a "Guardrail Energy-Absorbing Terminal" ("the crash cushion") penetrated the window of the cab of his moving overturned tractor-trailer and cut him nearly in half. His son, Reginald Denard Usher ("the plaintiff"), filed this action in the trial court against Charles Blaylock & Sons, Inc. The plaintiff also filed a claim against the State with the Tennessee Claims Commission.

The essence of the claims is that the crash cushion was negligently placed at the end of a series of concrete barriers that served to separate traffic entering on and exiting from the roadway connecting to the temporary end of Interstate 140 in Blount County. The alleged negligence was the failure to install a "transition panel" between the last concrete barrier and the crash cushion. Such a panel is designed to cover the otherwise exposed edge of the crash cushion thereby preventing vehicles from "snagging" the exposed metal edge. Eventually, the claim against the State was joined with the claim against Blaylock.

The case was tried to a jury with the circuit judge sitting as the Claims Commissioner; the jury was utilized by the trial judge in an advisory capacity with regard to the claim against the State. The jury returned a verdict in favor of the plaintiff. The jury found that the plaintiff's total damages were $2,000,000. It apportioned fault 25% to the Decedent, 37.5% to the State, and 37.5% to Blaylock. Acting as the Claims Commissioner, the trial court went against the advice of the jury and dismissed the claim against the State. The court found (1) that the plaintiff failed to carry the burden of proof with respect to the applicable standard of care for installing crash cushions; (2) that the plaintiff failed to prove a breach of duty; and (3) that, in any event, the Decedent was at least 50% at fault for speeding through a construction zone in foggy conditions.

Later, the trial court granted Blalock's motion for judgment notwithstanding the verdict and entered judgment in its favor. The court held (1) that Blalock was not responsible, as a matter of law, for leaving off the transition panel because the State's inspector on the scene "directed" Blalock to leave it off; (2) that the plaintiff failed to carry the burden of proving, by expert testimony, what a reasonably prudent contractor would have done under the circumstances; and (3) again, that the Decedent was at least 50% at fault. The court, acting as 13th juror, conditionally granted Blalock a new trial in the event the judgment in its favor was vacated or reversed. The plaintiff appeals. We affirm the judgment in favor of the State. We vacate the judgment in favor of Blalock and remand for a new trial as to that defendant.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/usherr_063010.pdf

Court reviews whether plaintiff adequately stated a claim for relief

CHARLES D. STECHEBAR V. DEERE & COMPANY & JOHN DOE (Tenn. Ct. App. June 29, 2010)

This case concerns a complaint for review by writ of certiorari and supersedeas. The initial action was a personal injury suit, arising from an automobile accident in which Plaintiff Charles D. Stechebar's vehicle was allegedly hit by a tractor-trailer owned by Defendant Deere and Company ("Deere") and driven by Defendant John Doe, an unidentified employee of Deere.

The personal injury suit was dismissed with prejudice in the general sessions court when the plaintiff failed to appear for the initial trial date. The record reflects that twelve days before the initial trial date, the plaintiff had filed an amended civil summons and obtained a new trial date.

Fifty days after the dismissal, the plaintiff filed an appeal to the circuit court, asserting that he had not been notified of the dismissal in time to file an appeal within the ten-day window required by Tenn. Code Ann. Section 27-5-108(a)(1). The circuit court dismissed the appeal for lack of jurisdiction. The plaintiff then filed the complaint for review by statutory writ of certiorari and supersedeas. The circuit court granted the defendant's motion to dismiss the writ on the ground that the plaintiff failed to state a claim for which review could be granted. We hold that the plaintiff stated a claim for relief under statutory writ of certiorari and supersedeas. The trial court's judgment is reversed and the case remanded to the trial court for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/stechebarc_062910.pdf

Court reviews whether the trial court failed to make an adequate award in a medical malpractice action

JAMES ERWIN v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA (Tenn. Ct. App. June 28, 2010)

Plaintiff recovered a judgment in this medical malpractice action, and during the pendency of the case the workers compensation carrier for plaintiff's employer intervened asserting its subrogation interest in any recovery due to its having paid the medical bills plaintiff incurred as a result of his injuries. The Trial Court awarded attorney's fees and expenses to plaintiff's attorney and plaintiff has appealed, arguing that the Trial Court failed to make an adequate award. On appeal, we affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/erwinj_062810.pdf

Court reviews whether plaintiff adequately proved constructive notice in a slip and fall case

CALVIN BENN v. PUBLIC BUILDING AUTHORITY OF KNOX COUNTY, ET AL. (Tenn. Ct. App. June 28, 2010)

Plaintiff slipped off the sidewalk while removing trash during the course and scope of his employment with Knox County. Plaintiff sustained injuries to his hip and shoulder as a result of his fall. He then filed suit pursuant to the Government Tort Liability Act. After a bench trial, the trial court found that Plaintiff failed to prove constructive notice by a preponderance of the evidence and entered a judgment in favor of Defendants. Plaintiff appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bennc_062810.pdf

Worker's Compensation Panel reviews whether employee suffered a compensable injury

MICHAEL HALL v. AM COMP ASSURANCE CORPORATION (TWCA June 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. Michael Hall ("Employee") alleged that he sustained compensable injuries as a result of repetitive use of his hands and arms in the course of his employment as a butcher for Latham's Meat Company ("Employer"). Employer denied that he had sustained a compensable injury. In the alternative, it alleged that Employee's injuries had been caused by his part-time work for a second employer.

The trial court found that Employee had sustained compensable injuries to his arms and that Employer was liable for workers' compensation benefits arising from those injuries. It awarded 22.5% permanent partial disability ("PPD") to both arms. On appeal, Employer contends that the trial court erred by finding that a compensable injury occurred and by finding that Employee sustained permanent disability as a result. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hallwc_062810.pdf

Court reviews dismissal of medical malpractice case

SHAWN HOWELL, Individually and as Administrator for the Estate of JESSE FRANKLIN BROWNING, JR. v. CLAIBORNE AND HUGHES HEALTH CENTER (Tenn. Ct. App. June 25, 2010)

This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name of an estate. The original claim was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, the Appellant later amended the complaint to name the administrator of the estate as the plaintiff.

However, upon the Appellee's motion, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. section 29-26- 121. Finding that the trial court erred, we reverse the decision of the trial court and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/howells_062510.pdf

TN Supreme Court reviews the applicability of the Government Tort Liability Act

ESTATE OF JOYCE BELL ET AL. v. SHELBY COUNTY HEALTH CARE CORPORATION D/B/A THE REGIONAL MEDICAL CENTER (Tenn. June 24, 2010)

This appeal involves the application of the Tennessee Governmental Tort Liability Act to an action for damages filed against a defendant that was not covered by the Act when the injury producing events occurred.

The defendant filed a motion for partial summary judgment in the Circuit Court for Shelby County seeking the benefit of the claims and defenses available to government entities under the Act. The plaintiffs responded by challenging the constitutionality of legislation extending the coverage of the Act to the defendant on the ground that the legislation had been enacted after the plaintiffs had sustained their injuries. The trial court held that the Act applied to the defendant but granted the plaintiffs permission to pursue an interlocutory appeal.

We granted the plaintiffs' application for permission to appeal after the Court of Appeals declined to consider the case. We have determined that applying the substantive amendment to the Tennessee Governmental Tort Liability Act enacted after the injury-producing events occurred to the plaintiffs' damage claims violates the prohibition against retrospective laws in Article I, Section 20 of the Constitution of Tennessee.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2010/bellj_062410

Court reviews causation and whether the trial court properly denied motions for summary judgment in a medical malpractice case

CAROL E. MILLER v. JOEL S. BIRDWELL, M.D., ET AL. (Tenn. Ct. App. June 23, 2010)

This appeal involves claims for medical malpractice against three doctors. The doctors each filed a motion for summary judgment. The trial court denied all three motions. After reviewing the record, we find that there are no material issues of fact in dispute. The defendant-doctors affirmatively negated an essential element of the Plaintiff's claim - causation. Plaintiff failed to come forward with expert proof to demonstrate that there was a material issue of fact in dispute. Accordingly, the doctors are entitled to summary judgment. Consequently, this Court finds that the trial court erred in denying the motions for summary judgment. Reversed and remanded.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/millerc_062310.pdf

Court reviews whether the statute of limitations barred claims in a case involving illnesses resulting from exposure to toxic mold

VICTORIA DUTTON, ET AL. v. FARMERS GROUP, INC., ET AL. (Tenn. Ct. App. June 22, 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 available at:
http://www.tba2.org/tba_files/TCA/2010/duttonv_062210.pdf

SUSANO concurring
http://www.tba2.org/tba_files/TCA/2010/duttonv_CON_062210.pdf

Court reviews the standard of care owed by a physician to a patient in a medical malpractice case.

MELISSA MICHELLE COX v. M. A. PRIMARY AND URGENT CARE CLINIC et al. (Tenn. June 21, 2010)

We granted permission to appeal in this case to address the standard of care that applies to a physician assistant in a medical malpractice case. The plaintiff sued for injuries she allegedly suffered as a result of physician assistant Michael Maddox's failure to diagnose her condition accurately. The plaintiff did not sue Maddox, but sued the clinic which he owned and in which he practiced and Dr. Austin Adams, Maddox's supervising physician.

The defendants filed a joint motion for summary judgment, supported by their testimony that (1) Maddox did not violate the standard of care applicable to physician assistants and (2) Dr. Adams did not violate the standard of care applicable to physicians. The plaintiff responded with her cardiologist's testimony that Maddox violated the standard of care applicable to primary care physicians. The cardiologist testified that he was not familiar with physician assistants or their supervision.

The trial court granted the defendants' motion for summary judgment on the basis that the plaintiff had failed to establish that Maddox violated the professional standard of care applicable to him. The Court of Appeals reversed the trial court, holding that the standard of care applicable to physician assistants is the same as that applicable to physicians. We reverse the Court of Appeals and hold that the standard of care applicable to physician assistants is distinct from that applicable to physicians. The trial court's summary judgment in favor of the defendants is reinstated, and the case is dismissed.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/coxm_062110.pdf

Worker's Compensation Panel reviews reconsideration action and subject matter jurisdiction.

LARRY BESHIRES v. BERKLEY REGIONAL INSURANCE COMPANY (TWCA June 18, 2010)

These workers' compensation appeals were consolidated for hearing and disposition by order dated May 27, 2009. The employee, Larry Beshires, settled a claim for work-related injuries to his left knee and right shoulder, based upon the two and one-half times impairment cap in Tennessee Code Annotated section 50-6-241(a)(1). The settlement was approved by the Chancery Court of Fayette County.

Mr. Beshires subsequently sustained a second injury, or aggravation of the previous injury, to his shoulder. He returned to work for a time, but then retired. He filed suit in the Chester County Chancery Court, seeking benefits for the new injury or, alternatively, reconsideration of his prior settlement. The reconsideration action was transferred to the Chancery Court of Fayette County. After a hearing on the merits, the Fayette County court declined to award additional benefits. The Chester County court awarded 48% permanent partial disability to the body as a whole for the later injury.

Both sides have appealed, and the appeals have been consolidated by order of the Supreme Court. Mr. Beshires contends that the Fayette County court erred by failing to award additional benefits. The employer contends that the Chester County court did not have subject matter jurisdiction, because the benefit review conference process had not been exhausted. We affirm both judgments.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/beshiresl_061810.pdf

Court reviews whether the trial court properly granted summary judgment in a medical malpractice case

NANCY LUNA v. ROGER DEVERSA, M.D. and HAMILTON COUNTY (Tenn. Ct. App. June 17, 2010)

This appeal arises from a medical malpractice claim. A surgeon performed a procedure on the plaintiff at the defendant hospital. The defendant hospitalist physician monitored the plaintiff's post-surgery recovery. The plaintiff filed this lawsuit asserting that the defendant hospitalist was negligent in releasing her from the hospital prematurely. The defendant hospitalist filed a motion for summary judgment, as did the hospital. The trial court granted summary judgment to both. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lunan_061710.pdf

Court reviews the sufficiency of the evidence in a case involving a hunting accident

BOBBY GERALD RILEY, and Wife, TANYA RILEY, Individually and as next of kin for HUNTER RILEY v. JAMES ORR (Tenn. Ct. App. June 14, 2010)

This is an appeal of a jury verdict. The plaintiff was hunting with his son. The defendant was also hunting in the general area, and accidentally shot the plaintiff. The plaintiff filed a lawsuit against the defendant for negligence, and included a claim for negligent infliction of emotional distress on behalf of his son. The parties stipulated as to the defendant's liability, and a jury trial was held on the issue of damages.

The jury instructions included instructions on the plaintiff father's mental pain and suffering and the son's emotional injury, but did not separately address the plaintiff father's emotional injury. After deliberating, the jury returned a verdict awarding damages to the plaintiff father as well as an award for the son's emotional injury. The trial court denied the defendant's motion for a new trial and approved the verdict. The defendant now appeals.

On appeal, the defendant challenges the sufficiency of the evidence supporting the verdict on several elements of damages, and argues that the inconsistency in the jury instructions on emotional injury necessitates a new trial. We affirm in part, vacate in part, suggest remittitur as to the awards for future medical expenses and for emotional injury, and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/rileyb_061410.pdf

Court reviews allocation of liability in an automobile accident

PAMELA C. BESS v. PROPERTIES, L.P. ET AL. (Tenn. Ct. App. June 14, 2010)

Car A was traveling north on a two-lane highway. Car B, a city police vehicle with its lights and siren on, was also traveling north on the same highway to answer a call. Car A could not pull off the road to the right to yield to Car B and instead turned left as Car B was passing. A collision ensued in which the driver of Car A suffered serious injuries. The driver of Car A sued the city. The trial court found the city 75% liable for the accident. The city appealed. We reverse the trial court's judgment, finding the driver of Car A more than 50% responsible for the accident.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bessp_061410.pdf

Court reviews summary judgment ruling in dental malpractice case

CHRISTINE GREENWOOD v. KIRBY FAMILY DENTISTRY, P.C., ET AL. (Tenn. Ct. App. June 7, 2010)

The trial court granted Defendants' motion for summary judgment in this action for dental malpractice. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/greenwoodc_060710.pdf

Court reviews denial of motion for directed verdict in medical malpractice case

TERESA LYNN STANFIELD, ET AL. v. JOHN NEBLETT, JR., M.D., ET AL. (Tenn. Ct. App. June 4, 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_060410.pdf

Court considers an issue of uninsured motorist coverage in an interlocutory appeal

RANDALL D. KISER v. IAN J. WOLFE & CONSUMERS INSURANCE COMPANY (Tenn. Ct. App. May 28, 2010)

This interlocutory appeal considers an issue of uninsured motorist coverage following an automobile accident in which Plaintiff Randall D. Kiser was permanently injured. The plaintiff was working within the scope of his employment, driving for a towing company, when his truck was struck by Defendant Ian J. Wolfe's vehicle. The defendant driver tendered his liability policy limits to the plaintiff and is not a party to this appeal. The employer towing company was insured by Defendant Consumers Insurance Company. In anticipation of arbitration for determination of damages and liability, the insurance company moved for partial summary judgment.

The trial court denied summary judgment but granted the insurance company permission for an interlocutory appeal to determine two issues, on which we hold:
(1) On a policy of vehicle insurance, the statutory requirement of Tenn. Code Ann. section 56-7-1201(a)(2) for a written rejection of uninsured/underinsured motorist benefits or written selection of uninsured/underinsured motorist benefits lower than liability limits is met when the insured signs an application containing a lower selection but neglects to initial a block provided for that purpose; and
(2) the insurer bears the burden of proof to show that the insured signed an insurance contract application containing a stated limit of uninsured/underinsured motorist coverage, but once that burden has been met, the insured must raise any issue that the insurer obtained the insured's signature unlawfully under Tenn. Code Ann. section 56-7-1201(a)(2).

We vacate the trial court's denial of the insurance company's Motion for Partial Summary Judgment and remand for reconsideration in light of this holding.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/kiserr_052810.pdf

Court reviews whether the exclusive remedy rule barred an employee's negligence suit

JAMES P. GRIFFITH, ET AL. v. JELLICO COMMUNITY HOSPITAL, INC. (Tenn. Ct. App. May 28, 2010)

Employee, whose employer provided services pursuant to a contract with hospital, sustained injuries from a fall while working on hospital’s premises. Employee subsequently filed a negligence action against hospital. The trial court permitted employer to intervene in the suit. Hospital filed a motion for summary judgment, and after an evidentiary hearing, the trial court found that hospital was the principal contractor pursuant to Tenn. Code Ann. section 50-6- 113 and the exclusive remedy rule barred employee's negligence suit. The trial court granted summary judgment in favor of hospital, and employee appealed. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/griffithj_052810.pdf

Supreme Court reviews whether records made in the ordinary course of a hospital's business are covered by the peer review privilege

KIMBERLY POWELL v. COMMUNITY HEALTH SYSTEMS, INC. ET AL. (Tenn. May 24, 2010)

This appeal involves the evidentiary privilege in the Tennessee Peer Review Law of 1967 [Tenn. Code Ann. section 63-6-219 (Supp. 2009)]. A former hospital employee filed suit in the Chancery Court for Bradley County against the hospital and an orthopaedic surgeon on the hospital's medical staff. During discovery, the former employee sought to depose the hospital's infection control director regarding the details of an investigation into postoperative nosocomial infections and her knowledge of whether the defendant surgeon had tested positive for infectious diseases. The hospital moved for a protective order on the ground that the requested information was privileged under Tenn. Code Ann. section 63-6-219(e).

The trial court declined to issue a protective order after determining that the information sought by the former employee was not privileged because it had been created in the regular course of the hospital's business and because the infection control director was the "original source" of the information. After granting the hospital an interlocutory appeal, a divided panel of the Court of Appeals affirmed the trial court. Powell v. Cmty. Health Sys., Inc., No. E2008-00535-COA-R9-CV, 2009 WL 17850 (Tenn. Ct. App. Jan. 2, 2009).

We granted the hospital's Tenn. R. App. P. 11 application for permission to appeal. We have determined that records received or made in the ordinary course of a hospital's business apart from the operation of a peer review committee are not protected by the peer review privilege in Tenn. Code Ann. section 63-6-219. We have also determined that documents prepared by or at the request of a peer review committee exercising its peer review function and documents prepared by third parties as part of the work of a peer review committee performing its peer review function are privileged. Finally, we have determined that the hospital did not waive its right to invoke the privilege in Tenn. Code Ann. section 63-6-219(e) with regard to the work performed by its infection control director in the context of a peer review proceeding.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/powellk_052410.pdf

WADE concurring
http://www.tba2.org/tba_files/TSC/2010/powellk_CON_052410.pdf

TN Supreme Court reviews the Peer Review Law in a case involving services provided by various hospitals

LEE MEDICAL, INC. v. PAULA BEECHER ET AL. (Tenn. May 24, 2010)

This appeal involves the application of the Tennessee Peer Review Law of 1967 [Tenn. Code Ann. section 63-6-219 (Supp. 2009)] to a hospital system's business decision regarding the provision of vascular access services to patients in its member hospitals. The hospital system had customarily outsourced these services at several of its hospitals, but, following an audit, it decided to discontinue outsourcing the services and to begin providing them using nurses employed by its own hospitals.

After several of the system's hospitals cancelled their vascular access services contracts, the vendor that had been providing the services filed two suits in the Circuit Court for Sumner County against the manufacturer of the catheters used to provide the services and one of its employees, a staffing affiliate of the hospital system and two of its employees, and the chief nursing officer at one of the system's hospitals.

These suits, which were eventually transferred to the Circuit Court for Williamson County and consolidated, sought damages under numerous theories based on the vendor's allegations that the defendants, all of whom had played a role in the audit, had disparaged the manner in which it had been providing the vascular access services and had improperly interfered with its contracts. During discovery, the vendor sought copies of various records relating to the audit of its services. The defendants claimed that these records were covered by the privilege in Tenn. Code Ann. section 63-6-219(e). After reviewing the disputed records in chambers, the trial court determined that most of the requested records were covered by the privilege. The trial court also granted the vendor permission to pursue an interlocutory appeal to the Court of Appeals; however, the Court of Appeals declined to accept the appeal.

We granted the vendor's Tenn. R. App. P. 11 application to address the trial court's interpretation and application of Tenn. Code Ann. section 63-6-219(e). We have determined that the trial court interpreted the privilege in Tenn. Code Ann. section 63-6-219(e) too broadly. Therefore, we vacate the portions of the trial court's discovery orders applying the privilege in Tenn. Code Ann. section 63-6-219(e) and remand the case to the trial court for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/leemedical_052410.pdf

WADE dissenting
http://www.tba2.org/tba_files/TSC/2010/leemedical_DIS_052410.pdf

TWCA reviews the limitation of permanent partial disability benefits where an employee chooses voluntary layoff

KIMBERLY WHEELER v. WHIRLPOOL CORPORATION (TWCA February 3, 2010)

In this workers' compensation action, the employee, Kimberly Wheeler, sustained repetitive trauma injuries to both arms. The injuries were accepted by her employer, Whirlpool Corporation, as compensable. After having surgery on both arms, she returned to work, initially in a light-duty status, and later to full duty. The product line on which she worked was then shut down and moved to another location. She was offered the option of accepting a voluntary layoff or moving to another product line. She chose the voluntary layoff. Under the terms of her employment contract, she continued to be an employee although she was not working. Eventually, the entire plant closed and Ms. Wheeler was terminated at that time. The trial court found that she had meaningful return to work and voluntarily left her employment. For that reason, it limited its award of permanent partial disability benefits to one and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(d)(1)(B). The employee has appealed, contending that the trial court erred by applying the one and one-half times impairment cap. We agree and modify the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/wheelerk_020310.pdf

TWCA reviews whether the trial court properly dismissed claims against an Injury Fund

TIMOTHY TODD v. MTD CONSUMER GROUP ET AL. (TWCA May 13, 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 fell from a platform at work. The injury was accepted by his employer as compensable. After a period of medical treatment, the authorized physicians released the employee to return to work with no permanent impairment or restrictions. The employee sought medical treatment on his own. Ultimately, he had surgery on his back and neck. He filed suit against his employer. Employee had two previous workers' compensation awards. Several months later, he amended his complaint to add the Second Injury Fund as a defendant.

After a trial on the merits, the trial court found that the employee had sustained a compensable injury which resulted in an 85% permanent partial disability to the body as a whole. The court apportioned the award according to Tennessee Code Annotated section 50-6-208(b). It then dismissed all claims against the Second Injury Fund, based upon the statute of limitations. It awarded some medical expenses claimed by the employee, but denied others. On appeal, the employee asserts that the trial court erred by dismissing the claim against the Fund, by incorrectly determining the percentage of disability represented by his earlier settlements, and by declining to award all requested medical expenses. Finding no error, we affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/toddt_051310.pdf

Court reviews sufficiency of trial court's award in a case involving a partnership

JOSEPH M. HASKINS, INDIVIDUALLY AND AS THE EXECUTOR OF THE ESTATE OF DREW E. HASKINS, JR., DECEASED v. DREW E. HASKINS, III (Tenn. Ct. App. May 13, 2010)

This case is on appeal for the second time after remand for determination of the defendant's request for attorney's fees, costs, and expenses. The defendant challenges the sufficiency of the trial court's award. After reviewing the record, we reverse in part and affirm in part the trial court's judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/haskinsj_051310.pdf

TWCA reviews whether the trial court erred by failing to require an employee to submit to an independent medical examination

VICKIE J. MYERS v. VANDERBILT UNIVERSITY (TWCA May 11, 2010)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. After developing an allergy to latex, a hospital employee filed a claim for workers' compensation benefits in the Chancery Court for Davidson County. While the case was pending, the trial court declined to require the employee to submit to an independent medical examination in accordance with Tenn. Code Ann. section 50-6-204(d)(1) (Supp. 2009). The trial court conducted a bench trial and determined that the employee's latex allergy was an occupational disease. The trial court also determined that the employee had a fifteen percent impairment to the body as a whole and awarded her permanent partial disability at fifty percent. The employer has appealed. We have determined that the trial court erred by failing to require the employee to submit to an independent medical examination. Accordingly, we vacate the judgment and remand the case for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/myersv_051110.pdf

Court reviews jurisdiction of a wrongful death case against a nursing home

ALLISON J. PERSON ET AL. v. KINDRED HEALTHCARE, INC., d/b/a PRIMACY HEALTHCARE AND REHABILITATION CENTER, ET AL. (Tenn. Ct. App May 7, 2010)

This is an action for negligence and wrongful death filed against a nursing home by the administrator of decedent patient's estate. The trial court denied Defendant nursing home's motion to dismiss or, in the alternative, for summary judgment upon finding decedent patient was not competent to execute the power of attorney pursuant to which decedent's daughter had executed an arbitration agreement with Defendant. Defendant appeals. We dismiss the appeal for lack of jurisdiction.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/persona_050710.pdf

Rule 60.02(1) relief denied for statute of limitations

WILLIAM JEFFREY WALKER v. NISSAN NORTH AMERICA, INC. (Tenn. Ct. App. August 18, 2009)

This appeal involves the dismissal of a personal injury case arising from an accident that occurred at Defendant's automobile manufacturing plant. The suit was originally filed and then voluntarily dismissed for improper venue. The case was filed again and later dismissed for failure to prosecute. Plaintiff filed a Motion to Set Aside the Order of Dismissal which was denied by the trial court. Plaintiff appeals. Finding that the trial judge did not abuse his discretion, we affirm the judgment of the trial court.

The full text of this decision may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/walkerw_082409.pdf

Officer deposition of driver condition sufficient to exclude evidence of underage drinking in rear end collision

ELISHEA D. FISHER v. CHRISTINA M. JOHNSON (Tenn. Ct. App. August 18, 2009)

This is a personal injury suit arising out of an automobile accident. Plaintiff appeals the trial court's dismissal of her punitive damages claim, as well as its exclusion of evidence regarding Defendant's underage consumption of alcohol prior to the accident and leaving the scene of the accident. Because Plaintiff has failed to show a genuine issue of material fact exists regarding Defendant's intoxication, we affirm the trial court's dismissal of Plaintiff's punitive damages claim. Because liability has been stipulated in this matter, and the punitive damages claim properly dismissed, we find Defendant's underage consumption of alcohol and leaving the scene of the accident irrelevant. Thus, we affirm the exclusion of such evidence.

The full text of this opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/fishere_082409.pdf

Court reviews summary judgment in wrongful death case regarding scope of employment

MICHAEL CLAWSON, ET AL. v. MICHAEL L. BURROW, ET AL. (Tenn. Ct. App. April 30, 2010)

Rachel M. Clawson ("the Decedent") was an employee of Summers-Taylor, Inc. ("the Employer") when she was killed in a tragic automobile-pedestrian accident. A vehicle driven by Michael Burrow veered off Highway 91 in Carter County and struck her. She had concluded her job duties for the day and was at the rear of her personally-owned truck visiting with co-workers and talking on a cell phone. The Decedent's truck was parked on the side of Highway 91 in an area approved by the Employer for employee parking.

Michael Clawson and Sherry Clawson, the Decedent's parents ("the Parents"), filed this wrongful death action against Burrow and the Employer. The Employer filed a motion for summary judgment, arguing that on the undisputed facts the Decedent's death arose out of and occurred in the course and scope of her employment. The trial court agreed and entered an order granting the Employer summary judgment. The Parents appeal. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/clawsonm_043010.pdf

Summary judgement remanded on attorney showing of detailed mail records, overcoming addressed-stamped-deposited mail presumption

AUBREY E. GIVENS, ADM. OF THE ESTATE OF JESSICA E. GIVENS, ET AL. v. THE VANDERBILT UNIVERSITY, ET AL. (Tenn. Ct. App. August 18, 2009)

Medical malpractice action was dismissed on summary judgment following plaintiffs' failure to oppose defendant's motion. Plaintiffs filed a motion to set aside the judgment of the trial court based on mistake where plaintiffs did not receive service of defendant's summary judgment motion. The trial court denied plaintiffs' motion; plaintiffs appeal. Finding that, under the facts of this case, the judgment should have been set aside, we reverse and remand.

The opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/givensa_081909.pdf

Rear end collision plaintiff awarded zero, discretionary costs remanded for reconsideration

BERNARD HUGHES v. DEMAR HUDGINS (Tenn. Ct. App. August 17, 2009)

The plaintiff claimed that he suffered neck and back injuries after the automobile in which he was riding was rear-ended by the defendant's automobile. The defendant admitted breach of the standard of care, but the jury found that the plaintiff had suffered no damages as the result of the accident, and he was not awarded any recovery. The trial court awarded the defendant $645.95 in discretionary costs to cover the court reporter fees he incurred for depositions. The plaintiff argues on appeal that there was no material evidence to support the jury's verdict. For his part, the defendant argues that the trial court erred in declining to award him all of the discretionary costs he requested. We affirm the jury verdict, but we remand the issue of the award of discretionary costs.

The opinion may be found at:
http://www.tba2.org/tba_files/TCA/2009/hughesb_081709.pdf

CLEMENT concurring in part and dissenting in part:
http://www.tba2.org/tba_files/TCA/2009/hughesb_CON_081709.pdf

"The basis for the trial court’s decision to award Mr. Hudgins some, but not all, of his discretionary costs is unclear from the record. Because of the discretion given to the trial court and its authority to apportion costs “as the equities demand,” we must remand this matter to the trial court for consideration of the award of discretionary costs." Id.

Summary Judgement Reversed Upon Disqualification of Medical Experts

DONNA FAYE SHIPLEY, ET AL. v. ROBIN WILLIAMS, M.D. (Tenn. Ct. App. August 14, 2009)

In reliance on plaintiff's experts, the trial court granted defendant doctor's motion for partial summary judgment on the medical malpractice claim pertaining to defendant's failure to admit plaintiff into the hospital. The trial court later granted the defendant doctor summary judgment on the remaining malpractice claims finding that the plaintiff's medical expert proof previously relied upon by defendant failed to comply with Tenn. Code Ann. section 29-26-115. We reverse the grant of partial summary judgment on the failure to admit claim since the defendant doctor relied solely on plaintiff's experts, whose testimony was later found inadmissible. We also reverse the summary judgment of the remaining malpractice claims since the defendant doctor never presented proof to negate an element of those claims. Consequently, the plaintiff had no duty to create issues of fact at the summary judgment phase.

The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/shipleyd_081409.pdf

Plaintiff successfully defends multiple challenges to experts, jurors, jury instructions and amount of damages awarded.

ROBIN FARLEY, ET AL. v. OAK RIDGE MEDICAL IMAGING, P.C., ET AL. CORRECTION (Tenn. Ct. App. August 13, 2009)

This is an appeal from a judgment entered on a jury verdict in the amount of $2,780,000 in a medical malpractice action based upon a failure to detect and report an abnormality on a mammogram. Robin Farley ("the Patient") and her husband, Dennis Farley ("the Husband"), are the plaintiffs in this action; they are referred to collectively in this opinion as "the Plaintiffs." Dr. James Rouse and his employer, Oak Ridge Medical Imaging, P.C., dba Oak Ridge Breast Center, P.C. ("the Breast Center"), are the defendants, referenced collectively as "the Defendants." The Patient reported to the Breast Center on November 15, 2001, for a mammogram. Dr. Rouse read the mammogram and reported his findings as normal. In 2004, the Patient noticed an indentation in her right breast. Follow-up care revealed stage IV incurable breast cancer.

According to the Plaintiffs, the cancer was present in 2001, and was treatable and curable had it been properly detected and reported. The Defendants conceded very little and alleged, as an affirmative defense, that the Patient knew that repeat mammograms were needed but failed to come back until it was too late. The case was tried to a jury over four consecutive days. The jury began deliberations on a Friday and resumed and announced its verdict on the following Monday. It found the Defendants negligent, but apportioned 20% of the fault to the Plaintiffs, apparently based upon the Patient's failure to have a timely follow-up mammogram. The Defendants appeal, raising a host of issues. We affirm.

The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/farleyr_CORR_081409.pdf

"The points of contention in this case – which are initially less than clear – are, (1) whether, and if so, the extent to which the medical expert’s knowledge of the matters set out in subdivision (a) (1) must be “personal” knowledge , (2) whether an expert licensed in a contiguous state in the relevant time frame must also know the standard of care in a comparable community in order to qualify as a causation expert, and (3) the extent to which the contiguous state requirement can be established to the trial judge’s satisfaction through material not admitted or admissible into evidence." Id.

"We do not believe Eckler went so far as to hold that the bridge of similarity from the community where the expert practices to the community where the defendant doctor practices, must all be built on personal, firsthand knowledge." Id.

"We agree completely with the approach taken in Russell. The quoted language from Payne concerning the “entwined” nature of causation and standard of care testimony is true enough, but should not be read to impose requirements not imposed by the language of the statute. This is especially true given that Payne based its holding on the “clarity” of the statute. We hold that a causation expert who does not testify on the standard of care is not required to establish familiarity with the standard of care." Id. (Case citations omitted)

"To conclude the point, we agree with the trial court that for Dr. Mitchell to take the stand and testify that he reviewed the 2001 mammogram and read it as normal, with no indicators of cancer, was to indirectly comment on the standard of care. Accordingly, we hold that the trial court did not abuse its discretion in so limiting the scope of Dr. Mitchell’s testimony." Id.

Drug testing evidence allowed in motor vehicle accident to show causation and credibility, no relief for invited error

JOHN C. BLAIR v. ROBERT SULLIVAN, JR., ET AL. (Tenn. Ct. App. April 22, 2009)

This appeal involves the plaintiff's negligence claim which arose from a motor vehicle accident with the defendant. Plaintiff first asserts that the trial court erred in allowing plaintiff's positive drug test to be admitted as evidence. Plaintiff also asserts that the trial court's jury instructions were improper and that the jury's verdict is not supported by the evidence. Reviewing plaintiff's first assertion, we find that the trial court did not abuse its discretion in admitting the drug test as evidence. Likewise, we find that the jury instructions were proper and that there is material evidence supporting the jury's verdict. Accordingly, we affirm the judgment of the trial court.

The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/blairj_081309.pdf

“Here, Plaintiff does not explain how the introduction of the drug test result into evidence would result in unfair prejudice. Plaintiff’s sole complaint is that defendant’s attorney discussed the drug test’s effect on damages during closing argument. As mentioned above, plaintiff failed to object to these statements in the trial court. Because plaintiff does not point to any other prejudice, we find that the trial court did not abuse its discretion in ruling that the drug test result was not excluded under Tenn. R. Evid. 403.” Id.

“Plaintiff first contends that the trial court erred by failing to explain the context of the statute and by failing to omit certain irrelevant provisions of the statute in its instruction. Parties, however, are not entitled to relief on appeal from invited error. Tenn. R. App. P. 36(a). Plaintiff asked the trial court to read the entire statute as a jury instruction. Consequently, he is not entitled to relief on appeal on this issue.” Id.

GTLA statutory cap on damages upheld in absence of express waiver from City of Memphis

FAYE BLACK v. CITY OF MEMPHIS (Tenn. Ct. App. April 22, 2009)

This is a wrongful death case against a municipality. In 1987, the plaintiff's teenage son was shot and killed by a police officer. The plaintiff sued the officer and the municipality, asserting claims under both federal and state law. Years of proceedings and delay ensued. By 2005, the only remaining claims were state law claims against the municipality. The parties filed crossmotions for summary judgment. The trial court granted summary judgment in favor of the plaintiff. The plaintiff then filed a motion for entry of judgment in the amount of $130,000, the maximum damage award under the Tennessee Governmental Tort Liability Act. The plaintiff filed separate motions for interest and costs. The municipality stipulated that if the court entered a judgment it should be in the amount of $130,000, but argued that the plaintiff was prohibited from recovering interest or costs in addition to the $130,000 judgment because such an award would exceed the statutory damage cap. The plaintiff argued that the municipality's misconduct prolonged the case and drove up costs, and that the court had authority to award costs in order to sanction the municipality for this misconduct.

The trial court entered a judgment for the plaintiff in the amount of $130,000, but denied the plaintiff's motions for interest and costs, finding that the Governmental Tort Liability Act precluded an award of discretionary costs in excess of the statutory cap on damages, and did not award sanctions. The plaintiff appeals, arguing that the court has authority to award sanctions in excess of the statutory damage cap. We affirm, finding that the trial court’s order does not indicate a finding that sanctions against the municipality were warranted.

The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/blackf_081309.pdf

“The statute specifically requires an express waiver before a governmental entity can be held liable for damages in excess of the statutory cap. Ms. Black cites no authority to support her argument that a governmental entity can be deemed to have constructively waived its protection under the GTLA damage cap. This argument is without merit.” Id.

Arbitration Agreement within 11 page contract found enforcible due, in large part to signature

CORINE BROADNAX, Individually and as heir and on behalf of the Estate of Mary Alice Johnson v. QUINCE NURSING AND REHABILITATION CENTER, LLC, ET AL. (Tenn. Ct. App. April 22, 2009)

The parties to a nursing home Admission Agreement dispute the enforceability of its arbitration provision. The trial court refused to enforce the arbitration provision. The nursing home appealed. For the following reasons, we reverse the decision of the circuit court and remand for entry of an order compelling arbitration.

The entire text of this opinion can be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/broadnaxc_081009.pdf

“Although we agree that mutual assent is essential to the formation of a contract, mutual assent is gathered from the language of the contract rather than the unexpressed or undisclosed intentions of the parties. 'The law conclusively presumes that the parties to a contract understood its obligations, and evidence is not admissible to show that their understanding was in fact otherwise.’” Id. (Case Citations Omitted)

“Based on the cases cited above, we find it inappropriate to relieve Ms. Broadnax from the operation of the Arbitration Agreement, due to her failure to read the document before signing it. In so ruling, we note that Ms. Broadnax had the ability to ask questions concerning the documents, was free to seek independent legal advice, and was given ample time to review the documents.” Id.

“Moreover, the Arbitration Agreement expressly stated that by signing such, Ms. Broadnax was 'giving up and waiving [her] constitutional right to have any claim decided in a court of law before a judge and a jury,' that execution was not a precondition to admission or the furnishing of services, and that it could be rescinded within thirty days. We further note that although the Arbitration Agreement was attached to a somewhat lengthy document, the Admission Agreement contained a table of contents, which should have drawn Ms. Broadnax’s attention to the inclusion of the Arbitration Agreement, which was a separate exhibit. Because Ms. Broadnax has failed to prove that Nursing Home either misrepresented the terms of the Arbitration Agreement or acted fraudulently in inducing her to sign such, we find that Ms. Broadnax’s signature evidences her assent to be bound by the Arbitration Agreement’s terms.” Id.

Intentional delay in advancing claim based on defendant health and misunderstanding of state intention to delay not sufficient to overcome statute of limitations.

HARRY SKIPPER, et ux v. STATE OF TENNESSEE (Tenn. Ct. App. July 31, 2009.)

Mr. Skipper filed a claim with the Tennessee Claims Commission, alleging that Tennessee Department of Transportation snow plow operator Dennis Burns crossed the center line, striking him. Mr. Burns became ill with cancer, and his deposition was scheduled three times before it was successfully taken. Following Mr. Burns' deposition, Mr. Skipper failed to advance his claim for a period of one year, and the Claims Commission dismissed his claim pursuant to Tennessee Code Annotated section 9-8-402(b). Mr. Skipper sought relief from the dismissal pursuant to Tennessee Rules of Civil Procedure 6.02, 59, and 60.02. Mr. Skipper's counsel claimed that he failed to act in order to allow Mr. Burns time to recover, so that he could testify live at trial. He further stated that it was his understanding that the State would contact him once such recovery was made. The Claims Commission denied Mr. Skipper relief from the order of dismissal, and Mr. Skipper appealed to this Court. We affirm.

Full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/skipperh_080309.pdf

Court reviews summary judgment ruling in a collision between an automobile and a pedestrian

DANNY J. PHILLIPS v. WILLIAM T. MULLINS (Tenn. Ct. App. April 26, 2010)

Danny J. Phillips ("Plaintiff") sued William T. Mullins ("Defendant") after a truck driven by Defendant struck and injured Plaintiff who was riding a bicycle. Defendant moved for summary judgment. After a hearing, the Trial Court entered an order granting Defendant summary judgment. Plaintiff appeals to this Court. We reverse the grant of summary judgment finding that there are disputed issues of material fact which preclude summary judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/phillipsd_042610.pdf

Court reviews denial of motion for a new trial based on evidence that was not admitted during trial

DUANE MCCRORY v. ANTHONY TRIBBLE and CYNTHIA TRIBBLE (Tenn. Ct. App. April 22, 2010)

This is a premises liability case. The plaintiff worker allegedly injured his knee while in the defendants' home. The plaintiff visited a doctor the next day, and ultimately had surgery on the knee the next month. Subsequently, the plaintiff sued the defendants, alleging premises liability. A jury trial was held. After the testimony concluded, the trial court declined to include a jury instruction requested by the plaintiff.

During closing arguments, the plaintiff's attorney started to read from a deposition that had not been entered into evidence; the trial court sustained a timely objection. Also during closing argument, the closing remarks of the defendant's attorney alerted the plaintiff's attorney to the fact that a particular medical record was not a part of the evidence submitted to the jury. While the jury was deliberating, the plaintiff sought to reopen proof to admit into evidence the omitted medical record; the trial court declined to reopen the proof. The jury returned a verdict for the defendants. The plaintiff filed a motion for a new trial, which was denied. The plaintiff now appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/mccroryd_042210.pdf

Court reviews sufficiency of service of process in a medical malpractice case

STEPHANIE JONES and HOWARD JONES v. RENGA I. VASU, M.D., THE NEUROLOGY CLINIC, and METHODIST LEBONHEUR HOSPITAL (Tenn. Ct. App. April 22, 2010)

This appeal involves delay of service of process. The plaintiffs filed a complaint against the defendants, alleging medical malpractice by the defendants almost a year earlier. The plaintiffs delayed service on the defendants until they had an expert witness review their claim. Summonses were issued to the defendants over eleven months after the complaint was filed. The defendants filed a motion to dismiss or for summary judgment, alleging insufficiency of service of process, and asserting that the plaintiffs' claims were barred by the one-year statute of limitations. The trial court denied the defendants' motion. The defendants appeal. We reverse and remand for entry of an order dismissing the complaint, finding that the delay of prompt service of process rendered the filing of the complaint ineffective to commence the action and stop the running of the statute of limitations.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/joness_042210.pdf

Court reviews breach of contract claim between insurance company and customer

JOHN COOK, JR. v. PERMANENT GENERAL ASSURANCE CORP. (Tenn. Ct. App. April 21, 2010)

This appeal involves the alleged breach of an insurance policy. The plaintiff insured had an automobile insurance policy with the defendant insurance company. The insured paid his insurance premium by check. He subsequently was involved in an automobile accident and notified the insurance company of the accident. The check was later returned for insufficient funds. The insurance company notified the insured that if he did not bring the premium current by a date certain, his insurance policy would be cancelled. The insured gave the insurance company a valid check for the premium, which was negotiated. The insurance company later cancelled the policy, retroactive to a date prior to the insured's automobile accident. The insured sued the insurance company for breach of contract. After a bench trial, the trial court held in favor of the plaintiff insured. The insurance company appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/cookj_042110.pdf

Court reviews jury verdict for hunting accident case involving claims of emotional distress

BOBBY GERALD RILEY ET. AL v. JAMES ORR (Tenn. Ct. App. April 20, 2010)

This is an appeal of a jury verdict. The plaintiff was hunting with his son. The defendant was also hunting in the general area, and accidentally shot the plaintiff. The plaintiff filed a lawsuit against the defendant for negligence, and included a claim for negligent infliction of emotional distress on behalf of his son. The parties stipulated as to the defendant's liability, and a jury trial was held on the issue of damages.

The jury instructions included instructions on the plaintiff father's mental pain and suffering and the son's emotional injury, but did not separately address the plaintiff father's emotional injury. After deliberating, the jury returned a verdict awarding damages to the plaintiff father as well as an award for the son's emotional injury. The trial court denied the defendant's motion for a new trial and approved the verdict. The defendant now appeals. On appeal, the defendant challenges the sufficiency of the evidence supporting the verdict on several elements of damages, and argues that the inconsistency in the jury instructions on emotional injury necessitates a new trial. We affirm in part, vacate in part, suggest remittitur as to the award for future medical expenses, and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/rileyb_042010.pdf

Court reviews trial court's determination that plaintiff's injury was the result of an automobile accident

EFFIE RIVERS v. NORTHWEST TENNESSEE HUMAN RESOURCE AGENCY (Tenn. Ct. App. April 19, 2010)

This is a personal injury case. The defendant's employee negligently backed the defendant's vehicle into the vehicle in which the plaintiff was a passenger. Prior to the accident, the plaintiff had reported discomfort in her shoulders to her physician. At some point after the accident, the plaintiff reported to her physician that she had pain in her right shoulder. Ultimately, the plaintiff required shoulder replacement surgery. The plaintiff sued the defendant for negligence. The parties stipulated to the defendant's liability, and a bench trial was held on causation and damages. Based in part on deposition testimony of physicians, the trial court found that the accident caused the plaintiff's injury and the ensuing surgery and entered judgment for the plaintiff. The defendant appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/riverse_041910.pdf

Court reviews use of Family Purpose Doctrine in automobile accident case.

ROBERT STRINE, ET AL. v. JOSHUA WALTON, ET AL. (Tenn. Ct. App. April 15, 2010)

On July 7, 2005, Ashley Strine (Plaintiff) was injured while riding in a vehicle being driven by Joshua Walton (Walton). The vehicle was owned by James Rice (Father), who had given the vehicle to his son, Kevin Rice (Son), for Son's personal use. On the day of the accident, Son had given Walton permission to use his vehicle to pick up Plaintiff. Walton and Plaintiff were planning on attending a birthday party later that day.

Plaintiff originally sued only Walton and Father. As to Father, Plaintiff asserted liability based on the family purpose doctrine and negligent entrustment. Over two years later, Son was added as a defendant. An order of compromise and dismissal was entered as to Walton. Thereafter, Father and Son filed a joint motion for summary judgment. The Trial Court granted Father summary judgment on Plaintiff's claims pursuant to the family purpose doctrine and negligent entrustment. With regard to Son, the Trial Court concluded that all claims against him were barred by the one-year statute of limitations. Plaintiff appeals. We affirm the judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/striner_041510.pdf

TWCA reviews use of a physician's impairment rating in workers' compensation case.

ANNEMARIE TUBBS v. ST. THOMAS HOSPITAL (TWCA April 15, 2010)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. The employee developed a latex allergy as a result of her employment at a hospital, and the hospital made certain accommodations that enabled the employee to continue working. However, the employee's sensitivity to latex increased over the years, and she eventually left her job.

The employee filed a petition seeking workers' compensation benefits in the Chancery Court of Davidson County. Following a bench trial, the trial court awarded the employee 60% permanent partial disability to the body as a whole. On this appeal, the employer contends that the treating physician's impairment rating should not have been admitted into evidence because it was not in accordance with the AMA Guides. The employer also argues that a lower impairment should have been used by the trial court and that the award should have been capped. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/tubbsa_041510.pdf

TWCA reviews petition to set aside settlement of a worker's compensation claim

WILLIAM DOWNEY v. GRIFFIN INDUSTRIES (TWCA April 15, 2010)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court approved a settlement of this workers' compensation claim. The settlement was presented to the court by means of an affidavit executed by the employee and a telephone conference between the court and the employee. Approximately six weeks later, the employee petitioned to set aside the settlement under Tenn. Code Ann. section 50-6-206(a) and alternatively, Tenn. R. Civ. P. 60.02. The trial court dismissed the petition for relief from Judgment. The employee has appealed. We affirm the order dismissing the petition to set the settlement aside.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/downeyw_041510.pdf

TWCA reviews whether a permanent partial disability award was excessive

LARRY BAIN v. TRW, INC. ET AL. (TWCA April 15, 2010)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. An employee sustained a work-related repetitive exposure hearing loss injury. After he retired for reasons unrelated to the injury, he filed suit in the Criminal Court for Wilson County seeking workers' compensation benefits. Following a bench trial, the trial court awarded 65% permanent partial disability to the hearing of both ears and set the date of injury as the date that the employee first learned of his hearing loss. The employer appealed arguing that the award was excessive and that the trial court erred in setting the date of injury. We find that the award was excessive and modify it to 15% permanent partial disability to the hearing of both ears. We have also determined that the trial court erred with regard to its determination of the date of the injury.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/bainl_041510.pdf

Court reviews wrongful death award in automobile accident case

LAURA WILBURN, as the Personal Representative of SON JONES, Deceased v. CITY OF MEMPHIS (Tenn. Ct. App. April 9, 2010)

Decedent was struck and killed by an on-duty City of Memphis police officer while attempting to cross the street. The trial court awarded $7,500.00 in a wrongful death award. Decedent's personal representative appeals, seeking an increased award. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/wilburnl_040910.pdf

Court reviews whether defendant properly showed that it met the standard of care in medical malpractice case

ALVIN FLATT v. CLAIBORNE COUNTY HOSPITAL AND NURSING HOME (Tenn. Ct. App. April 8, 2010)

In this medical malpractice action, the plaintiff offered evidence of the standard of care required of defendant by an expert witness, and defendant offered evidence that it complied with the standard of care by an expert witness, who was accepted as an expert by the Trial Court. The Trial Judge ruled in favor of defendant, essentially accepting the defendant's evidence that it had met the standard of care for the deceased. Plaintiff appealed, insisting that the Trial Court did not "correctly weigh the conflicting expert testimony" in its ruling for the defendant. On appeal, we affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/flatta_040810.pdf