TAM-BYTES

November 7, 2016
Vol. 19, No. 45
IN THIS WEEKS TAM-Bytes
Supreme Court adopts good-faith exception to exclusionary rule set
out by U.S. Supreme Court in Davis v. United States;
Supreme Court adopts set of plain language forms and instructions for
use in uncontested divorces between parties with minor children;
Workers Comp Appeals Board affirms order for medical benefits
when trial court found that opinions of utilization review physicians
did not overcome statutory presumption of correctness applicable to
opinion of authorized physician;
Court of Appeals affirms summary judgment in favor of defendant
hospital in suit by patient with mental disorder who was admitted and
then attempted to leave hospital against medical advice and was injured
when she fell or dropped herself to ground in emergency exit stairway;
Court of Appeals, in reversing summary judgment in favor of
defendant in suit by plaintiff, defendants son, who was helping
defendant wax RV when ladder fell with plaintiff on it, says that
defendant assumed duty to stabilize and secure ladder while
plaintiff was on it and that question of whether defendant breached
that duty was for trier of fact;
In split decision, Court of Appeals reverses jurys award of no
damages in rear-end collision when award failed to consider
aggravation of pre-existing condition and failed to compensate for
expenses which were not refuted by proof;
Court of Appeals affirms dismissal of will contest when
contestants would not benefit from previous will, but encourages
Tennessee Supreme Court to examine practical application of
Cowan and Jennings;
Court of Appeals says compensation limits on guardian ad litem fees set
forth in Supreme Court Rule 13 do not necessarily apply when parent
has been found to be financially able to defray a portion or all of the
cost of the childs representation; and

 Court of Criminal Appeals, in case in which prosecutor committed

prosecutorial misconduct during closing argument by quoting
inflammatory rap lyrics that had been specifically excluded during
pretrial motions, says defendant cannot be denied new trial for same
misconduct that resulted in new trial for his co-defendant.

SUPREME COURT
CRIMINAL PROCEDURE: Deputy had probable cause to believe that
defendant was driving while intoxicated at time of accident in which two
people were killed, and thus, implied consent statute was triggered;
warrantless blood draw violated defendants right to be free from
unreasonable searches and seizures; good-faith exception to exclusionary
rule, articulated by U.S. Supreme Court in Davis v. United States, is adopted
in Tennessee, and, as result, any evidence derived from testing defendants
blood need not be suppressed because warrantless blood draw was obtained
in objectively reasonable and good-faith reliance on binding precedent. State
v. Reynolds, 11/3/16, Knoxville, Clark, dissent by Lee, 3-1, 40 pages.
http://www.tncourts.gov/sites/default/files/reynoldsc.corr_.opn_.pdf
http://www.tncourts.gov/sites/default/files/reynoldscorrin.dis_.opn_.pdf

FAMILY LAW: Supreme Court adopts set of plain language forms and
instructions for use in uncontested divorces between parties with minor
children; Supreme Court approves forms as universally acceptable and
legally sufficient for use in all Tennessee courts effective 1/1/17. In re
Petition of Access to Justice Commission for Adoption of Universally
Acceptable & Legally Sufficient Forms & Instructions -- Plain Language
Forms for Uncontested Divorces with Minor Children, 10/31/16,
Nashville, 42 pages.
http://www.tncourts.gov/sites/default/files/order__appendix_-_sct_r52_amended-adm2015-01485.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employer accepted employees
claim for knee injury as compensable and provided authorized medical
treatment with Dr. Davidson, Davidson performed surgery and referred
employee to Dr. McCall when pain and symptoms continued, McCall
recommended additional surgery, employer sought utilization review with
Dr. Smith, who concluded that recommended surgery was not medically
necessary, employer denied authorization for surgery, McCall renewed

request that surgery be authorized, employer again submitted surgery

recommendation for utilization review by Dr. Goldman, who concluded total
knee replacement recommended by McCall should be considered unrelated
to the injury in question, employer continued to deny authorization for
surgery, and denial was appealed to Bureau of Workers Compensations
utilization review program, Bureaus medical director agreed with denial of
unicompartmental left knee replacement, trial court was within its
authority to evaluate utilization review reports and assess weight to be given
to such reports; although Goldmans opinion regarding medical causation
exceeded statutory scope of utilization review, trial court erred in finding
opinion was improper in its entirety, but error was harmless when trial
court specifically addressed issue and determined that, even if it considered
Goldmans opinion on medical causation, opinion was insufficient to
overcome presumption of correctness afforded to McCalls opinion. Venable
v. Superior Essex Inc., 11/2/16, Conner, 22 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1598&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1553&context=utk_workerscomp

COURT OF APPEALS
TORTS: When plaintiff was transported to defendant hospital complaining
of dizziness, nausea, chest pain, and headache, plaintiff had previously been
diagnosed with bipolar disorder and obsessive compulsive disorder and was
taking psychiatric medication at time, plaintiff was admitted to hospital,
plaintiff communicated on next day that she wished to leave, patient refused
to remain in hospital or sign AMA (against medical advice) form, as she was
walking down emergency exit stairway, plaintiff either fell or dropped
herself to ground, plaintiff sustained thoracic and lumbar burst fractures in
fall, and plaintiff filed suit against defendant hospital alleging negligence
and malpractice, trial court properly granted defendant hospital summary
judgment; once plaintiff terminated treatment and decided to leave against
medical advice, her status as patient of hospital ceased as well as hospitals
general duty of care to her as patient; hospital did not have any duty to
detain plaintiff when no certificate of need had been properly signed.
Collins v. HCA Health Services of Tennessee Inc., 10/28/16, Nashville,
Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/collinsb.opn_.pdf

TORTS: Trial court did not err in determining, based on plaintiffs failure to
substantially comply with TCA 29-26-121(a)(2)(E) requiring provision of
HIPAA medical authorization with pre-suit notice in healthcare action, that

plaintiffs were not entitled to extension of applicable statutes of limitation

and repose under TCA 29-26-121(c), when authorizations did not even
purport to release patients records as her name was not listed on forms;
trial court did not err in failing to find that extraordinary cause from
noncompliance existed when plaintiffs proffered excuse related solely to
their claimed ignorance as to what was necessary to comply with statute;
TCA 29-26-121 pre-suit notice requirement does not violate separation of
powers doctrine, Open Courts Clause, or equal protection guarantee; medical
authorization of TCA 29-26-121(a)(2)(E) neither conflicts with HIPAA nor
stands as obstacle to accomplishment of HIPAAs full purposes and
objections. J.A.C. ex rel. Carter v. Methodist Healthcare Memphis
Hospitals, 11/2/16, Jackson, Goldin, 24 pages.
http://www.tncourts.gov/sites/default/files/carterleshaopn.pdf

TORTS: When plaintiff was helping his father (defendant) wax defendants
recreational vehicle (RV), plaintiff worked on ladder in reaching high places
on RV, ladder fell with plaintiff on it, causing injury, and plaintiff filed suit
alleging that defendant breached his duty to exercise reasonable care in
securing and stabilizing ladder, trial court erred in granting defendant summary
judgment; defendant assumed duty to stabilize and secure ladder while plaintiff
was working on it when defendant would hold ladder at times to ensure
plaintiff was working safely, ground on which ladder was standing was not
level, and defendant was aware of dangers of working on ladder alone; it was
foreseeable that ladder might fall and cause injury to plaintiff in absence of
someone holding and securing it, and alternative conduct that would have
prevented harm holding ladder on sloping ground was not overly
burdensome; defendant had duty to exercise due care under circumstances, and
question of whether he breached that duty is one for trier of fact to determine.
Hoynacki v. Hoynacki, 10/31/16, Knoxville, Susano, 13 pages.
http://www.tncourts.gov/sites/default/files/hoynacki_v_hoynacki.pdf

DAMAGES: In suit by plaintiff to recover for injuries he allegedly

sustained when his truck was rear-ended while he was stopped for traffic on
interstate, material evidence did not support jurys award of no damages
because award fails to consider aggravation of pre-existing condition and it
fails to compensate for expenses which are unrefuted by proof; evidence
supported award of damages in amount minimally equal to reasonable and
necessary medical expenses incurred to evaluate for injuries following
collision; case is remanded for new trial on damages. Kempson v. Casey,
11/2/16, Knoxville, McClarty, dissent by Susano, 11 pages.
http://www.tncourts.gov/sites/default/files/kempsonopn.pdf
http://www.tncourts.gov/sites/default/files/kempson_v._casey_judge_susano_dissenting.pdf

CIVIL PROCEDURE: When plaintiff landowners filed complaint against

City of Clarksville (City) under theory of implied-in-fact contract, alleging
that City should repair and maintain plaintiffs sewer line and arguing that
broken sewer line is extension of Citys public sewer system, plaintiffs also
requested compensatory damages resulting from back-up of sewage into
their home, and City argues that broken sewer line is private sewer, for
which City has no responsibility, trial court properly held that gravamen of
plaintiffs complaint is damage to property, which sounds in tort; plaintiffs
complaint was time-barred under Governmental Tort Liability Act (GTLA)
when GTLA claim accrued no later than 6/26/13, when plaintiffs met with
various employees of City, state, and plumbing company and were told, that
City was responsible for repairing line, plaintiffs filed suit on 6/4/14 against
City, complaint and summons were served on administrative assistant
employed by City on 6/9/14, but TRCP 4.04(8) provides that service upon
municipality shall be made by delivering a copy of the summons and of the
complaint to the chief executive officer thereof, or to the city attorney, and
hence, service on administrative assistant was ineffective and did not toll
running of one-year statute of limitation. Moore v. City of Clarksville,
10/31/16, Nashville, Armstrong, 9 pages.
http://www.tncourts.gov/sites/default/files/mooregeorgevcityofclarksville.opn_.pdf

ESTATES & TRUSTS: Trial court properly dismissed will contest for lack
of standing because contestants would not benefit if testators will was set
aside when contestants were excluded from 2012 will, testators last will,
which appears to be valid on its face and is not challenged as being
improperly executed; Tennessee Supreme Court is free to revisit its rulings
in Cowan v. Walker, 96 SW 967 (Tenn. 1906), and Jennings v. Bridgeford,
403 SW2d 289 (Tenn. 1966), and examination is encouraged of their
practical application what stops wrongdoer, who procures will by either
undue influence or other fraudulent means, from procuring second will in
order to insulate last will from review by courts? In re Estate of Brock,
11/3/16, Knoxville, Gibson, 10 pages.
http://www.tncourts.gov/sites/default/files/estateofjdonbrockopn.pdf

FAMILY LAW: TCA 37-1-150 indicates that compensation limits on

guardian ad litem fees set forth in Supreme Court Rule 13 do not necessarily
apply when parent has been found to be financially able to defray a portion
or all of the cost of the childs representation; when parent is able to defray
portion or all of costs of guardian ad litem, those funds are ultimately paid
over to Administrative Office of Courts (AOC), and if AOC receives funds

greater than the total amount which appointed counsel or the guardian ad
litem has claimed and has been reimbursed pursuant to Tennessee Supreme
Court Rule 13, then any such excess funds shall be paid to the appointed
attorney such statutory requirement would be unnecessary if fees were
limited by Supreme Court Rule 13. In re Jackson H., 10/28/16, Nashville,
McBrayer, 12 pages.
http://www.tncourts.gov/sites/default/files/inrejackson.opn_.pdf

FAMILY LAW: In case in which parties never married but had two
children together, parties modified, by agreed order, existing parenting
plan for children, modification continued mother as childrens primary
residential parent, short time later, father learned that mother worked in
Nevada as prostitute, father filed motion seeking emergency temporary
custody order and temporary restraining order, and juvenile court
designated father as childrens primary residential parent, holding that
mothers occupation as prostitute amounted to material change in
circumstances, evidence preponderated against finding that father
established that mothers work as licensed prostitute met legal standard for
a material change in circumstances when father failed to establish that
children were affected by mothers past employment as prostitute at time
of hearing, mother was no longer working as prostitute, rather, she was
employed as social worker; evidence did not preponderate against juvenile
courts finding that mothers hostility toward father and his new wife
constituted material change in circumstances when trial court noted several
examples of how mothers hostility affected children, but juvenile court
abused discretion by designating father as childs primary residential
parent when both parents at times acted in manner that failed to put
childrens interests first, juvenile court failed to take into account fathers
significant child support and medical arrearages of $10,027, and father
admitted to using illegal drugs in family home while children were present;
judgment designating father as primary residential parent is reversed, and
mother is designated as childrens primary residential parent. C.W.H. v.
L.A.S., 10/31/16, Knoxville, Susano, 26 pages.
http://www.tncourts.gov/sites/default/files/c.w.h.__v._l.pdf

FAMILY LAW: Trial court abused discretion in awarding divorce to wife

when it later considered wifes relative fault in making its alimony
determination; trial courts decision is reversed, and parties are granted
divorce without regard to fault; trial court abused discretion in denying
wifes request for alimony in futuro when, although husband is far more
advanced in age husband was 76, and wife was 57 his increased earning

capacity in form of disability and retirement income demonstrated his ability

to pay long-term support; wife is awarded $2,000 per month as alimony in
futuro until such time as she can access her retirement benefits or upon
showing of substantial and material change in circumstances by either party.
Jackson v. Jackson, 11/4/16, Jackson, McClarty, 9 pages.
http://www.tncourts.gov/sites/default/files/jacksonpopn.pdf

FAMILY LAW: In case in which attorney, representing herself, filed suit in

chancery court against juvenile court judge and clerk after she was prevented
from accessing recordings of juvenile court proceedings to which she
claimed she was entitled under state law, attorney sought writ of mandamus
and judgment declaring juvenile court local rule, i.e., Local Rule 8, under
which juvenile judge denied her requests, invalid, and attorney then
amended her complaint, joining four clients that she had previously
represented before juvenile court, chancellor properly dismissed attorneys
claim; chancellor properly found that juvenile judges decision, which was
reached in reliance on Local Rule 8, not to release recordings did not violate
TCA 37-1-153; TCA 37-1-153 does not entitle plaintiffs to requested
recordings of juvenile court proceedings. Reguli v. Guffee, 10/28/16,
Nashville, McBrayer, 10 pages.
http://www.tncourts.gov/sites/default/files/regulic.vguffee.s.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Because defendant committed acts that would
constitute offense of indecent exposure in Tennessee, trial court properly
determined that defendants third conviction for indecent exposure in
Kentucky was sexual offense and qualifying conviction under
Tennessees indecent exposure statute; trial court did not err by finding that
defendant was sexual offender under TCA 40-39-202(19) and was subject
to enhanced punishment as provided in TCA 39-13-511(b)(3). State v.
Barnum, 11/1/16, Nashville, Holloway, 14 pages.
http://www.tncourts.gov/sites/default/files/barnumgregoryscott.pdf

CRIMINAL PROCEDURE: Reading of indictment to jury is an

appropriate and proper procedure which is a mere accusation to inform the
jury of the charges against the defendant and raises no presumption of
guilt. State v. Spicer, 11/1/16, Nashville, Witt, 14 pages.
http://www.tncourts.gov/sites/default/files/spicercephusdopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of first degree

premeditated murder and sentenced to life imprisonment, because prosecutor
committed prosecutorial misconduct during closing argument by quoting
inflammatory rap lyrics that had been specifically excluded during pretrial
motions, defendants conviction is reversed, and case is remanded for new
trial; although states case against defendant was relatively strong, especially
in light of defendants admissions of guilt to various witnesses, defendant
cannot be denied new trial for same misconduct that resulted in new trial for
his co-defendant while defendants appeal was pending, his co-defendant
also had separate appeal pending, and panel of this court reversed his
conviction, concluding that prosecutors comments were improper and
inflammatory. State v. Sharpe, 11/2/16, Nashville, Woodall, 12 pages.
http://www.tncourts.gov/sites/default/files/sharpequincyterrellopn_0.pdf

CRIMINAL PROCEDURE: When petition for post-conviction relief was

not signed by petitioner or counsel and was not verified by petitioner under
oath, post-conviction court should have provided petitioner with reasonable
opportunity to correct petition before summarily dismissing petition. Lewis
v. State, 10/31/16, Nashville, Williams, concurrence by Easter, 6 pages.
http://www.tncourts.gov/sites/default/files/lewischristopher.pdf
http://www.tncourts.gov/sites/default/files/lewischristopher.con_.pdf

CRIMINAL PROCEDURE: Petitioner enumerated sufficient facts to state

colorable claim, and post-conviction court erred by dismissing petition
without evidentiary hearing; despite petitioners status as disbarred criminal
defense attorney, Post-Conviction Procedure Act does not dictate higher
standard for evaluating whether colorable claim has been stated by petitioner
with legal training, and any reliance by post-conviction court on petitioners
legal training was misplaced for purposes of summarily dismissing petition.
Booher v. State, 11/4/16, Knoxville, Montgomery, 7 pages.
http://www.tncourts.gov/sites/default/files/booherkentopn.pdf

TRIAL COURTS
CIVIL PROCEDURE: Defendant is ordered to arrange for its custodial
agent, Logic Force Consulting, LLC, to make available, at time convenient
to plaintiff and its counsel, devices listed in attachment to subpoena duces
tecum served on Logic Force, for inspection, testing, and other functions
listed in TRCP 34; same arrangement shall be made as to information, data,
and electronically stored information on devices to inspect, copy, list or
sample; custodial role of Logic Force does not involve expertise and relates

to and is calculated to lead to discovery of admissible evidence on plaintiffs

claims of chain of custody and spoliation. Universal Strategy Group Inc. v.
Halstead, 5/16/16, Davidson Chancery, Lyle, 4 pages.
https://www.tncourts.gov/docs/documents/trial-court/biz-court-university-strategygroup

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: In case in which employee asserted he
was entitled to medical treatment, temporary disability benefits, and
permanent disability benefits for injury to his right shoulder, right elbow,
and left elbow, employee cannot meet his burden of establishing requisite
medical causation because doctors opinion only establishes employees
right arm and shoulder condition were related to his work, not that work
primarily caused them; without any means of calculating disability plan
benefits attributable solely to left arm injury, there is no information
showing amount of payment made to [employee] under an employer
funded disability plan for the same injury, and hence, employer is not
entitled to setoff. Williams v. Nissan North America Inc., 7/13/16,
Murfreesboro, Tipps, 14 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1481&context=utk_workerscomp

WORKERS COMPENSATION: Employee did not come forward with

sufficient evidence from which to conclude that he is likely to prevail at
hearing on merits regarding causation when his authorized treating
physician, after examining employee, reviewing results of skin and
pulmonary testing, and reading his medical records, concluded employees
chronic allergic rhinitis did not manifest as significant mold sensitivity and
doctor opined that employees history of fatigue and various other chronic
symptoms cannot be clearly explained by hypersensitivity to aeroallergens
or mold spores. Pool v. Jarmon D&Q Transport, 7/18/16, Nashville,
Switzer, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1484&context=utk_workerscomp

WORKERS COMPENSATION: When employee, who worked for

employer in motor-vehicle traffic control, fell on top of some poles inside
employers box truck and dislocated his shoulder, employers idiopathic
defense was not persuasive when employee testified that he tripped over
poles and fell and employer provided no countervailing testimony. McDade
v. IGC Protection, 7/25/16, Nashville, Baker, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1489&context=utk_workerscomp

WORKERS COMPENSATION: In case in which employee obtained job

that involved building house out of concrete and hired employee as
supervisor over construction of concrete home, employee was employee, not
independent contractor, at time of his work-related injury when, while
employee had authority to control many aspects of day-to-day activities
involving construction of concrete home, employer retained ultimate
authority regarding how work was to be performed. Thompsen v. Concrete
Solutions, 7/25/16, Cookeville, Durham, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1490&context=utk_workerscomp

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