TAM-BYTES

August 25, 2014

Vol. 17, No. 34
2014 TAM CLE CALENDAR
Webinars
Retaliatory Discharge in Tennessee: 2014 Law and Other New
Developments, 60-minute webinar presented by David L. Johnson &
Valeria Gomez, Nashville attorneys, on Tuesday, September 16, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Tech Advice for the Non-Techy Attorney: Keeping Pace with E-Discovery
and Other Tech Issues, 60-minute webinar presented by Alex Khoury, Atlanta,
attorney, on Wednesday, September 17, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Police Liability in Tennessee: Top 20 Ways to Win and Lose a Section 1983
Lawsuit, 60-minute webinar presented by Steve Elliott, Nashville attorney,
on Thursday, September 25, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Custody Issues in Tennessee: Changing the Primary Residential Parent,
Modifying Parenting Time, and More, 60-minute audio conference presented
by Kevin Shepherd, Maryville attorney, on Tuesday, September 30, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

On-Site Events
Personal I njury Law Conference for Tennessee Attorneys
Friday, September 26 Nashville School of Law
TOPICS: Get up to date on the hottest issues in Tennessee personal injury
practice, including the latest products liability developments, trial tips from a trial
judge, handling medical records and private information, limitations on the use of
HIPAA protected documents in litigation, Affordable Care Act concerns, auto
insurance policies, negotiating with insurance adjusters, caps on damages,
Medicare set-asides, and maintaining client confidentiality.

FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs
and defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair,
Steven Fuller, Bryan Moseley, David Randolph Smith, and Mathew Zenner.
*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit

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Probate & Estate Planning Conference for Tennessee Attorneys
Thursday & Friday, October 23-24
Nashville School of Law

TOPI CS: Spend 2 days with some of the states top estate planning and probate
practitioners offering tips on advanced estate planning strategies, drafting QTIPs,
GRATs, and QPRTs, will drafting in 2014, the intersection of family law and
estate planning issues, use of Medicaid-compliant annuities, hot topics in probate
litigation, practicing in probate court, and updates on issues related to trusts,
estate planning, and probate. Also, hear about ethical issues arising when crafting
a healthcare power of attorney, a living will, or an advance care plan and ethical
issues arising in estate administration, such as client confidentiality, billing
inquiries, and other difficult-to-resolve dilemmas.

FACULTY: Elaine Beeler, Williamson County Clerk & Master; Will Bell,
Rainey, Kizer, Reviere & Bell; Rebecca Blair, The Blair Law Firm; David
Callahan, Goodman Callahan & Blackstone; Peter T. Dirksen, U.S. Trust, Bank
of America Private Wealth Management; Harlan Dodson, Dodson, Parker,
Behm & Capparella; Donald Farinato, Holbrook Peterson Smith; Carla Lovell,
Sherrard & Roe; Barbara Boone McGinnis, Elder Law Practice of Timothy L.
Takacs; Hunter R. Mobley, Howard Mobley Hayes & Gontarek; Jeff Mobley,
Howard, Mobley Hayes & Gontarek; Al Secor, CapitalMark Bank & Trust; Tim
Takacs, CELA, Elder Law Practice of Timothy L. Takacs; and Pam Wright,
CELA, West Tennessee Legal Services.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

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Law Conference for Tennessee Practitioners
Thursday & Friday, November 13-14
Marriott Franklin/Cool Springs

TOPI CS: Overview of the changes to the workers compensation law for injuries
occurring on or after July 1, 2014, as well as how claims will be decided by the
claims courts; compliance issues for attorneys subject to HIPAA; latest
developments in medical malpractice, including how the appellate courts have
ruled on compliance with the pre-suit notice and certificate of good faith
requirements; how to embrace your inner digital lawyer and get up to date on
issues such as mobile computing, file management, and the risks of going
mobile; what every litigator needs to know about business entity laws in
Tennessee; latest developments in the family law area; checklist for provisions to
be included in a will today; recent changes to the rules on computer calls; how to
use a little-known VA benefit to aid your clients; overview of the administrative
process in Tennessee from an experienced chancellor; ins and outs of standards
of review and the scope of the appellate practice from an appellate court judge;
tips from a chancellor on pretrial motion practice; an insiders perspective from
the Chief Disciplinary Counsel on the Boards recent developments; how to
avoid e-discovery ethical pitfalls and how to handle social media, e-mail, video,
and other electronically stored information; and insight from a former trial judge
and now special judge on displaying professionalism in the practice of law.

FACULTY: Judge John McClarty, Court of Appeals, Eastern Section; Judge Don
R. Ash, Senior Judge, Tennessee Senior Judge Program; Chancellor Ellen Hobbs
Lyle, Chancery Court, Davidson County; Chancellor Carol McCoy, Chancery
Court, Davidson County; Fred Baker, Wimberly Lawson Wright Daves & Jones
PLLC; Harlan Dodson, Dodson Parker Behm and Capparella PC; Sandy Garrett,
Chief Disciplinary Counsel, Board of Professional Responsibility; Randy L.
Kinnard, Kinnard, Clayton & Beveridge; Kevin Levine, DeSalvo & Levine PLLC;
Helen S. Rogers, Rogers, Kamm & Shea; Lucas R. Smith, Bass, Berry & Sims
PLC; Richard Spore, Bass, Berry & Sims PLC; Elizabeth Warren, Bass, Berry &
Sims PLC; and John Watts, Watts & Herring, LLC
*Earn up to 15 hours of CLE credit, including 3 hours of DUAL credit.

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Tennessee Workers Comp Conference
Thursday & Friday, November 20-21
Embassy Suites Nashville-South/Cool Springs

HI GHLI GHTS: Gain insight from new judges on the Court of Workers'
Compensation Claims and the Workers' Compensation Appeals Board; get review of
changes that took effect on July 1 -- including the new permanent partial disability
formula, the new standard developing medical proof regarding causation, adjustments
to physician panel process, and modification issues; gain insight from Department of
Labor and Workforce Development directors on employee misclassification, "new"
request for assistance process, and ombudsman program; hear a doctor's perspective on
everyday pain management of workers' comp claims; the Attorney Track features an
extended session, along with a panel discussion, on how the new court system will
work, as well as a session on ethical issues arising under the new law; the Employer
Track covers issues such as the new procedure for obtaining medical records, claims
management, workers' comp defenses, best practices for preventing retaliatory
discharge, issues that arise when employees are injured in transit, and supervisor
training in managing claims under the new law; and get a review of the latest cases
from the Tennessee Supreme Court and the Workers' Compensation Appeals Panels.

FACULTY: Judge Tim Conner, Workers' Compensation Appeals Board judge; Chief
Judge Ken Switzer, chief judge of the Court of Workers' Compensation Claims; Judges
Pam Johnson, Allen Phillips, and Jim Umsted, judges on the Court of Workers'
Compensation Claims; Robert Durham, Director of Benefit Review with the
Department of Labor & Workforce Development; Richard Murrell, Director of Quality
Assurance with the Department of Labor & Workforce Development; Scott Yarbrough,
Director of the Compliance Program at the Department of Labor & Workforce
Development; attorneys Barret Albritton, Mary Dee Allen, Fred Baker, Leslie Bishop,
Kitty Boyte, Allison Cotton, John Dreiser, Jason Ensley, Pele Godkin, Steve Karr,
Mary Beth Maddox, Blake Matthews, Stephen Morton, and Julie Reasonover; and Dr.
Jeffrey Hazlewood, who practices physical medicine and rehabilitation in both
Lebanon and Murfreesboro.
*Earn up to 13 hours of CLE credit, including 1 hour of DUAL credit.


IN THIS WEEKS TAM-Bytes

Supreme Court, in case of first impression, holds Tenn. Const. Art. I, Sec.
21, encompasses regulatory takings to same extent as Takings Clause of
Fifth Amendment;
Supreme Court says that post-conviction petitioner may be entitled to
subpoena his co-defendants as witnesses, but only if he can first
demonstrate that co-defendants are competent witnesses whose testimony
is relevant to his claims;
Workers Comp Panel reverses trial courts grant of employees request for
reconsideration of settlement award when employee refused to sign
disciplinary form, which was required for him to return to work, and began
working for another employer;
Court of Appeals holds countys decision to refrain from notifying plaintiff,
who purchased undeveloped property and was prohibited from building on it,
that property was located in floodprone area was discretionary decision
entitled to immunity pursuant to Governmental Tort Liability Act;
Court of Appeals, in case of first impression, adopts same proof standard
as test for Tennessee Uniform Trade Secrets Act preemption;
Court of Criminal Appeals, in reversing defendants conviction for
violating implied consent law, says once defendant consents to testing and
allows blood to be drawn, purpose of implied consent statute has been
satisfied, even if defendant later revokes consent for chemical analysis, and
same is true, when test is compelled; and
Court of Criminal Appeals, in DUI case, rules deficiencies in videotape of
stop, and officers inability to recall incident, both coupled with fact of trial
courts having to supply information regarding lane markings in area
support finding that officer did not have reasonable suspicion to support
stop of defendants vehicle.

SUPREME COURT

PROPERTY: Given similarities between federal Takings Clause and Tenn.
Const. Art. I, Sec. 21, lack of historical basis indicating that it should be viewed
as less protective of private property rights from federal Takings Clause, and
widespread adoption of federal regulatory takings jurisprudence by other state
courts, Tenn. Const. Art. I, Sec. 21, encompasses regulatory takings to same
extent as Takings Clause of Fifth Amendment. Phillips v. Montgomery County,
8/18/14, Nashville, Clark, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/phillipsm.opn_.pdf

CRIMINAL PROCEDURE: Post-conviction petitioner may be entitled to
subpoena his co-defendants as witnesses, but only if he or she can first demonstrate
that co-defendants are competent witnesses whose testimony is relevant to
petitioners claims. Taylor v. State, 8/21/14, Jackson, Wade, unanimous, 8 pages.
http://www.tncourts.gov/sites/default/files/taylorquantelopn_0.pdf

PROFESSION OF LAW: Board of Professional Responsibilitys imposition of
60-day suspension of attorney based on complaints Board received from judge
and opposing counsel regarding attorneys disruptive behavior during trial
proceedings was neither arbitrary nor capricious. Bailey v. Board of Professional
Responsibility, 8/18/14, Jackson, Clark, unanimous, 17 pages.
http://www.tncourts.gov/sites/default/files/baileyrs_opn.pdf


WORKERS COMP PANEL

WORKERS COMPENSATION: In case in which employee sustained work
injury in 11/07, employee settled claim for 7.5% permanent disability, and
employee filed Reconsideration Complaint in 5/12 alleging that he was no longer
employed by pre-injury employer, evidence preponderated against trial courts
finding that employer failed to prove voluntary resignation when employee was
asked to remove exhaust pipe and muffler from immobile damaged car outside
shop, employee enlisted help form co-worker to move vehicle inside shop,
employee was asked to sign disciplinary form as prerequisite to returning to work,
and employee refused and began working for another employer; employee held
keys of his employment in his pocket he could have signed form and remained
employed and, by not signing form, he forfeited his employment. Dia v. Imports
Collision Center I nc., 8/20/14, Nashville, Cox, 19 pages.
http://www.tncourts.gov/sites/default/files/diamadia.opnjo_.pdf

WORKERS COMPENSATION: In case in which employee was injured in
motor vehicle accident while at work, he claimed permanent injury to his left
elbow and left shoulder, and trial court found that employees left elbow was
permanently injured but that his left shoulder was not permanently injured,
evidence did not preponderate against trial courts determination that there was
no permanent disability to employees left shoulder when trial court chose to give
greater weight to opinions of physicians who provided treatment in years
immediately following accident and less weight to those who relied on inaccurate
medical history provided by employee; evidence did not preponderate against
trial courts decision that employee was overpaid by $20,160 for temporary total
disability benefits based on periods when he had been declared to be at maximum
medical improvement and had not yet had his temporary disability status
reinstated by subsequent physician; evidence did not preponderate against trial
courts decision not to order surgery for employees left shoulder when all three
physicians opined that employee would not benefit from rotator cuff surgery.
United Parcel Service I nc. v. Cameron, 8/15/14, Knoxville, Anderson, 10 pages.
http://www.tncourts.gov/sites/default/files/ups_cameron.pdf

WORKERS COMPENSATION: In case in which employee fell at work and
suffered lower back injury, she received medical treatment, including two back
surgeries, over period of years, and trial court awarded permanent disability
benefits based on employees back injury and bladder and bowel dysfunction that
developed during her subsequent treatment, evidence did not preponderate
against trial courts decision to accept impairment rating of one treating physician
(Dr. Austin) over that of another treating physician (Dr. Corradino) when
Corradino treated employee for 11 months and performed two major surgeries on
her lower back in 10/10 and 2/11 and last treated employee in 7/11 and when
Austin had not seen employee since 5/10 and based her opinions on her physical
examination, her own treatment, medical records of other treating physicians, and
Corradinos records; trial court did not err in finding that employees
incontinence was caused by her work injury; trial court did not err in finding that
employee acted reasonably by resigning, and hence, that she did not have
meaningful return to work, when, because of her symptoms, she was unable to
tolerate physical activities required of her by her job. Woods v. ACE-American
I nsurance, 8/15/14, Knoxville, Anderson, 9 pages.
http://www.tncourts.gov/sites/default/files/wc-woods_v_ace_american.pdf

WORKERS COMPENSATION: Evidence did not preponderate against trial
courts finding that employee sustained permanent injury as result of 10/08 and
12/08 work incidents when evaluating physician opined that work incidents had
advanced employees pre-existing degenerative condition, anatomical change at L4-
5 clearly showed that new injury occurred even if it resolved later, radiculopathy at
L5-S1 and atrophy in employees leg were indicative of aggravation of existing
condition, and employees testimony about diminution of his physical capabilities
after work incident was consistent with evaluating physicians opinion. Simons v.
A.O. Smith Corp., 8/20/14, Nashville, Cox, 8 pages.
http://www.tncourts.gov/sites/default/files/simonsjerry.opnjo_.pdf


COURT OF APPEALS

TORTS: When plaintiffs filed suit against county after county prohibited them
from building home on undeveloped property because property was below Base
Flood Elevation requirements established by county, and plaintiffs contended that
county had affirmative duty under countys zoning resolution to notify them prior
to their purchase of property that property was below Base Flood Elevation
requirements, trial court properly granted countys motion to dismiss for failure
to state claim; countys decision to refrain from notifying plaintiffs that property
was located in floodprone area was discretionary decision entitled to immunity
pursuant to Governmental Tort Liability Act; resolution did not create duty on
county or require county to implement any preexisting laws, regulations,
policies, or standards to inform plaintiffs that property was located in floodprone
area. Gibbs v. Gilleland, 8/13/14, MS, Clement, 7 pages.
http://www.tncourts.gov/sites/default/files/gibbsr.opn_.pdf

EMPLOYMENT: Same proof standard set forth in Hauck Manufacturing Co. v.
Astec Industries Inc., 375 FSupp2d 649 (E.D.Tenn. 2004) -- under which claim will
be preempted when it necessarily rises or falls based on whether defendant is found
to have misappropriated trade secret as those terms are defined in Tennessee
Uniform Trade Secrets Act (TUTSA) is adopted as test for TUTSA preemption;
plaintiffs common law breach of fiduciary duty/loyalty claim and its derivative
claims insofar as they are based upon misappropriation of trade secrets are
preempted by TUTSA, but plaintiffs common law breach of fiduciary duty/loyalty
claim and its derivative claims insofar as they are not grounded in
misappropriation of trade secrets, are not preempted by TUTSA. Ram Tool & Supply
Co. v. HD Construction Supply Ltd., 8/19/14, WS at Nashville, Highers, 26 pages.
http://www.tncourts.gov/sites/default/files/ramtoolsupply.opn_.pdf

COMMERCIAL LAW: In case, which was remanded by Tennessee Supreme
Court for reconsideration, in which plaintiff alleged claims arising out of
purchase of asset-backed securities that were later deemed unmarketable, trial
court erred in dismissing, for failure to state claim, claims for fraud, constructive
fraud, negligent misrepresentation, civil conspiracy, unjust enrichment, and
violations of Tennessee Securities Act. First Community Bank N.A. v. First
Tennessee Bank N.A., 8/20/14, ES, McClarty, 25 pages.
http://www.tncourts.gov/sites/default/files/firstcommbankopn.pdf

CIVIL PROCEDURE: When plaintiff brought garnishment action against debtor
through debtors former employer, garnishee failed to respond to garnishment, trial
court entered judgment against garnishee in amount of $1,283,066, garnishee
moved for relief from judgment on basis of insufficient service, trial court granted
garnishees TRCP 60.02 motion and set aside final judgment on basis of excusable
neglect and ineffective service of process, and plaintiff argued that garnishee
waived issue of service of process and that garnishees employees had colluded to
avoid valid judgment, trial court did not abuse discretion in granting garnishees
motion for relief from judgment. Newgate Recovery LLC v. Holrob-Harvey Road
LLC, 8/14/14, ES, Swiney, 8 pages.
http://www.tncourts.gov/sites/default/files/newgaterecoveryllcopn.pdf

COMMERCIAL LAW: When buyer, believing that seller was impairing
buyers ability to close on sale of real property on time in order to sell property
under contract to someone else, filed suit to enjoin seller from transferring
property to another and to require seller to provide documentation necessary to
close, trial court found that sellers discussions with another potential buyer were
merely to have back-up plan in event buyer did not close but granted injunctive
relief by extending deadline to close sale by 30 days and enjoined seller from
selling property to another in interim, and sale closed one week later, trial court
properly dismissed buyers claim for breach of contract; mere fact that closing
occurred after agreed upon closing date does not constitute breach of contract
since inability of party to close real estate sales contract on particular date is not
considered to be material breach of contract since general rule is that time is not
of essence in real estate sales contract, unless otherwise specified in contract.
Kantz v. Bell, 8/15/14, MS, Clement, 10 pages.
http://www.tncourts.gov/sites/default/files/kantzwilliam.opn_.pdf

FAMILY LAW: Parties were divorced in 1985, final divorce decree ordered
parties to execute copyright assignments, 25 years later, husband filed action to
compel wife to execute copyright assignments, and wife argued that action was
barred by 10-year statute of limitation applicable to action on judgment, trial court
properly held that execution of documents was ministerial act to effectuate property
division in divorce decree and was not execution on judgment, so action was not
barred by statute of limitation; after wife still failed to execute copyright assignment
documents, trial court properly designated clerk of court to act for wife to execute
them, pursuant to TRCP 70. Cohen v. Didier, 8/19/14, WS at Nashville, 11 pages.
http://www.tncourts.gov/sites/default/files/cohend.copn_.pdf

FAMILY LAW: In case in which juvenile court entered default order against
mother of child declaring parentage of father and ordering permanent parenting
plan, juvenile courts order is void due to improper notice to mother of hearing,
which was held on 2/3/12 fathers motion was served by mail on 1/26/12, and
excluding weekends and adding three days for service by mail, earliest hearing
could properly have been held was on 2/7/12; juvenile court erred in ordering
attachment of child, who was living with mother in California when there is no
indication that child was imminently likely to suffer serious physical harm and
while court purported to make warrant enforceable in California, statute
contemplates that warrants are only effective in Tennessee. I n re J oel B.,
8/18/14, MS, Bennett, 6 pages.
http://www.tncourts.gov/sites/default/files/inrejoelb.opn_.pdf

FAMILY LAW: Trial court properly held that mortgage payments made by
fathers business on commercial business solely owned by father should not be
added to his income for purpose of calculating child support; case is remanded to
trial court for further proceedings regarding whether depreciation on fathers
commercial property was properly deducted from fathers income after making
such determination, trial court must make appropriate finding regarding fathers
income for child support purposes. Hall v. Hall, 8/14/14, ES, Frierson, 9 pages.
http://www.tncourts.gov/sites/default/files/jhallopnfinal2.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of 37 counts of
sexual battery by authority figure, because state failed to make proper election of
offenses, evidence was insufficient to support his convictions; states election of
offenses insufficiently detailed and distinguished incidents to allow jury to render
discrete and unanimous verdicts on each count of sexual battery by authority
figure and failed to prevent possibility of patchwork verdict. State v. Qualls,
8/18/14, Jackson, Tipton, 15 pages.
http://www.tncourts.gov/sites/default/files/quallsjimmydaleopn.pdf

CRIMINAL PROCEDURE: Evidence was not sufficient to convict defendant
of violation of implied consent law when defendants blood was obtained via
mandatory provisions of TCA 55-10-406; once defendant consents to testing and
allows his or her blood to be drawn, purpose of implied consent statute has been
satisfied, even if defendant later revokes consent for chemical analysis, and same
is true, when, as in defendants case, test is compelled purpose of statute was
satisfied, i.e., defendants blood was drawn for determination of his intoxication
level. State v. Chrystak, 8/13/14, Jackson, Thomas, 8 pages.
http://www.tncourts.gov/sites/default/files/chrystakkevincortezopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was indicted for
possession of over .5 gram of cocaine with intent to sell, and charges were
dismissed after trial court granted defendants motion to suppress evidence, trial
judge erred in dismissing indictment; because there was sufficient probable cause
to arrest defendant facts and circumstances known to officers were sufficient to
warrant prudent person in believing that defendant had engaged in narcotics
transaction subsequent searches of defendants car and person were justified
pursuant to search incident to arrest exception to warrant requirement; indictment
is reinstated, and case is remanded for further proceedings. State v. Lucas,
8/21/14, Nashville, Page, 10 pages.
http://www.tncourts.gov/sites/default/files/lucasterryodellopn.pdf

CRIMINAL PROCEDURE: In DUI case, trial judge erred in denying
defendants motion to suppress evidence obtained as result of traffic stop when
officer did not lawfully stop defendants vehicle; deficiencies in videotape of
stop, and officers inability to recall incident, both coupled with fact of trial
courts having to supply information regarding lane markings in area support
finding that officer did not have reasonable suspicion to support stop of
defendants vehicle; defendants DUI conviction is reversed, and indictment is
dismissed. State v. Wild, 8/20/14, Knoxville, Glenn, 5 pages.
http://www.tncourts.gov/sites/default/files/wildsomeropn.pdf

CRIMINAL SENTENCING: In case in which defendant was convicted of DUI
and vehicular assault, trial judge abused discretion in granting defendants
request for judicial diversion; because defendant convicted of vehicular assault
by reason of DUI would not be qualified defendant for judicial diversion, trial
court abused discretion by deeming defendant eligible and, subsequently,
granting her request for judicial diversion. State v. J ones, 8/20/14, Nashville,
Wedemeyer, partial dissent by Tipton, 13 pages.
http://www.tncourts.gov/sites/default/files/jonesirisopn.pdf
http://www.tncourts.gov/sites/default/files/jonesirisacon.pdf

CRIMINAL SENTENCING: Petitioners sentence for aggravated rape was
illegal on face of judgment because it did not include mandatory supervision for
life provision; fact that petitioner did not show by documents attached to his
habeas corpus petition that illegal sentence was material bargained-for element of
his plea agreement does not alter fact that petitioner is entitled to some remedy in
form of habeas corpus relief; habeas corpus court erred in summarily dismissing
petition, and case is remanded to habeas corpus court for evidentiary hearing on
matter; although Shelby County Criminal Court is also court of conviction, court
was acting within capacity as habeas corpus court when it entered corrected
judgment, and hence, correction of judgment was improper; proper procedure
upon finding of void judgment by habeas corpus court is to transfer case to
convicting court for entry of corrected judgment. Ross v. State, 8/13/14, Jackson,
McMullen, Bivins not participating, 9 pages.
http://www.tncourts.gov/sites/default/files/rossjoeopn.pdf


SIXTH CIRCUIT COURT OF APPEALS

TORTS: When plaintiff filed suit against manufacturer of Aredia and Zometa,
prescription biophosphonate drugs given intravenously, most often to patients
with cancerous conditions, for failing to warn plaintiffs doctor that Aredia and
Zometa could cause serious damage to patients jaw bones, plaintiff took both
drugs and subsequently had to have part of her jaw removed, and plaintiff stated
in affidavit that [h]ad [she] been warned that Aredia and Zometa may cause
Osteonecrosis of the jaw, [she] would not have taken those drugs, district court
erred in granting manufacturer summary judgment; although Tennessee has not
adopted any of presumptions employed by other jurisdictions where patient stated
that he or she would not have taken medication if he or she had known of risk of
osteonecrosis of jaw (ONJ), Tennessee courts normally accept kind of evidence
that district court rejected as speculative; under Tennessee law, causation is
issue for jury, and district court erred in concluding otherwise; reasonable jury
could conclude that plaintiff would not have taken Aredia or Zometa had her
doctor warned her of risk of ONJ. Payne v. Novartis Pharmaceuticals Corp.,
8/18/14, Stranch, 10 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0193p-06.pdf

COMMERCIAL LAW: In case in which appellant, doctor who opened five
medical clinics in rural areas in Tennessee, plaintiff appealed district courts
affirmance of Department of Labor Administrative Review Boards
determination that he is personally liable for back wages, including expenses
physicians hired by his clinics incurred in obtaining their J-I waivers and H-1B
visas, and civil penalties, ALJ did not err in deciding to pierce corporate veil and
hold appellant liable; record supports nearly all of Tennessee factors for piercing
corporate veil and entities were used to commit wrong when appellant set up
web of corporate entities, with help of his attorney, in order to hire non-
immigrant physicians, appellant was sole owner and investor in these entities, he
made all companies major decisions regarding salaries and staffing from single
office in Florida, he and his wife were only officers and directors, there was no
evidence that any of corporations issued stock certificates and appellant did not
know whether they issued financial statements, appellant treated corporation as
extension of himself, corporations appear to have been undercapitalized, and
there was support for conclusion that corporations were interchangeable and did
not deal at arms length with each other. Kutty v. U.S. Department of Labor,
8/20/14, White, 18 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0196p-06.pdf

COMMERCIAL LAW: When debtor defrauded more than 1,000 victims in mail
and wire fraud schemes, district court ordered him to pay criminal restitution, debtor
did not comply with courts order, he later filed Chapter 13 bankruptcy petition,
triggering automatic stay, and government sought to bypass automatic stay by
invoking 18 USC 3613(a), government may enforce judgment imposing restitution
orders against property included in bankruptcy estate; based on plain meaning of 18
USC 3613(a), which provides that government may enforce judgment imposing
restitution notwithstanding any other Federal law, and approach adopted by other
circuits in interpreting this statute, 18 USC 3613 supersedes automatic stay. United
States v. Robinson, 8/22/14, Cole, 10 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0199p-06.pdf

GOVERNMENT: In suit by Green Party of Tennessee and Constitution Party of
Tennessee seeking to appear on Tennessees general election ballots as minor
political parties, and challenging laws they claim have unconstitutionally impeded
their access to ballot, because 2.5% signature requirement directly affects
plaintiffs ability to associate and campaign for political office, plaintiffs maintain
standing to challenge Tennessees new ballot-access scheme; because record does
not allow determination of extent to which plaintiffs are burdened by signature
requirement, as it operates in combination with Tennessees new deadline and
other aspects of its ballot-access scheme, district courts grant of summary
judgment is reversed, and case is remanded for further development of record;
effect of preferential ballot ordering on voter behavior involves questions of fact,
and record does not establish that Tennessees ballot-ordering statute appreciably
affects voter behavior, and district court erred in granting summary judgment on
issue. Green Party of Tennessee v. Hargett, 8/22/14, Cole, 24 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0201p-06.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to conspiracy
to possess with intent to distribute five or more kilograms of cocaine after his
motion to suppress evidence seized pursuant to search warrant was denied, district
court erred in determining that affidavit filed in support of search warrant was
sufficient to support finding of probable cause; affidavit does not contain indicia of
reliability needed to find statements made by confidential informant reliable absent
corroboration, and FBI agents knowledge of informants identity and nature and
detail of informants statements do not provide sufficient indicia of reliability to
support finding of probable cause without independent police corroboration;
because officers who executed warrant relied in good faith on its validity, district
court properly denied defendants motion to suppress evidence obtained as result of
execution of search warrant while affidavit did not meet standard necessary to
provide probable cause for search, FBI agent corroborated enough specific facts
(void of criminal behavior as they may be) to establish minimal nexus between
place to be searched and potential for criminal activity. United States v. Neal,
8/18/14, Nixon, 32 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0640n-06.pdf


TRIAL COURTS

TAXATION: Taxpayers purchase of Cessna aircraft is exempt from Tennessee
sales and use tax, pursuant to sale for resale exemption set forth in TCA 67-6-
102(70), and Commissioner of Revenue (Commissioner) is ordered to abate
$20,307 of use tax and interest it has assessed on aircraft; while leases do qualify
for sales and use tax exemption under statute, leases must be bona fide
taxpayers legal status as limited liability company was separate from two
associated aircraft lessees, and, as such, leases were legitimate and not illusory
and satisfy bona fide element of tax exemption; economic substance
test/criterion has not been adopted in Tennessee to analyze bona fide element
of exemption; Commissioner failed to demonstrate circumstances to pierce
corporate veil of taxpayer, which was another method asserted to prove absence
of bona fide leases. Niuklee LLC v. Roberts, 6/10/14, Davidson Chancery,
Lyle, 21 pages.




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