Memorial Day

Same gave all. Please remember them this weekend.

The Federalist Papers

Here's a link to an online version of The Federalist Papers (a.k.a. The Federalist), to wit:

http://usgovinfo.about.com/library/fed/blfedindex.htm##5

Peer-Review Privilege in Tennessee

The Tennessee Supreme Court issued opinions today concerning the peer-review privilege and its effects, to wit:

Lee Med., Inc. v. Beecher, No. M2008-02496-SC-S09-CV (Tenn. May 24, 2010):

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Lee%20Medical%20v%20Paula%20Beecher%20etal%20opn.pdf

Here’s the dissent by Justice Wade and Chief Justice Holder:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Lee%20Medical%20v%20Paula%20Beecher%20etal%20dis.pdf


Powell v. Cmty. Health Sys., Inc., No. E2008-00535-SC-R11-CV (Tenn. May 24, 2010):

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Kimberly%20Powell%20v%20Community%20Health%20Sys%20etal%20opn.pdf

Here’s the separate opinion by Justice Wade where he concurs in part and dissents in part:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Kimberly%20Powell%20v%20Community%20Health%20Sys%20etal%20con.pdf

Discretionary Costs

The Western Section of the Tennessee Court of Appeals just issued its opinion in Wade v. Vabnick, No. W2009-02273-COA-R3-Cv (Tenn. Ct. App. May, 24, 2010). This case is a medical malpractice case that was non-suited in state court and re-filed in federal court. One of the defendants, a physician, filed a motion seeking over $30,000 in discretionary costs with the state trial court, which was granted. The Court of Appeals winnowed the costs down to $3,851.15 because some of the costs sought by the defendant are not allowed under Rule 54.04 of the Tennessee Rules of Civil Procedure.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Wlla%20G%20A%20Wade%20v%20Felice%20A%20Vabnick%20MD%20OPN.pdf

Our Liberty or Our Safety?

It was true over 200 years ago, and it still is today, to wit:

[S]afety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The Federalist No. 8 (A. Hamilton).

I would prefer to give up neither. That is the tricky part.

Tennessee Healthcare Facility Information

Do you need an address or other information about a healthcare facility in Tennessee? If so, this link will help you out:

http://health.state.tn.us/HCF/Facilities_Listings/facilities.htm

Model Voir Dire Questions

Below is a link to model voir dire questions from the State of New Jersey. While I'd change the questions a little bit, overall, they are sufficient. I think they offer a good outline for coming up with your own voir dire questions.

https://www.judiciary.state.nj.us/attorneys/assets/attyresources/jurorselectionquestions.pdf

Criminal Law: Sentencing in Tennessee

The Tennessee Supreme Court recently issued its opinion in Davis v. State, No. M2009-00011-SC-R11-HC (Tenn. May 7, 2010). The opinion contains a good analysis of criminal sentencing in Tennessee state courts among other things.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Terrance%20Lavar%20Davis%20v%20State%20OPN.pdf

Here's a link to the concurring opinion of Justice Wade, which Chief Justice Holder joined, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Terrance%20Lavar%20Davis%20v%20State%20CON1.pdf

Here's a link to the concurring opinion of Justice Lee, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Terrance%20Lavar%20Davis%20v%20State%20CON2.pdf

An Interesting Case: Violation of a City Ordinance

This appeal discusses the violation of a city ordinance and the law governing it. It's an interesting read (I don't want to give it away). The case is City of Murfreesboro v. Norton, No. M2009-02105-COA-R3-CV (Tenn. Ct. App. May 6, 2010).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Murfreesboro%20v%20Thomas%20L%20Norton%20OPN.pdf

Criminal Law: Sentencing in Tennessee

The Tennessee Court of Criminal Appeals recently issued its opinion in State v. Davis, No. M2008-01216-CCA-R3-CD (Tenn. Crim. App. Apr. 19, 2010). It offers a good discussion on criminal sentencing in Tennessee.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/102/State%20v%20Christopher%20Lee%20Davis.pdf

Say a Prayer for Nashville

We received more rain in a two-day period this past weekend than we have ever received. The flooding and its effects are having a huge impact on our city. Here's a link to a story from MSNBC about what has happened, to wit:

http://www.msnbc.msn.com/id/36891589/ns/weather/

Say a prayer for Nashville, folks. We need it.

Stats on Tennessee State Court Judges

Interested in the number of cases appealed from a particular Tennessee state court? Interested in a judge's case load? Here's a link to a site that has this information, to wit:

http://www.tncourts.gov/JudgeStats/Default.aspx

Nursing Homes: Court of Appeals Holds Arbitration Agreement Unconscionable

The Middle Section of the Tennessee Court of Appeals just released its opinion in McGregor v. Christian Care Ctr. of Springfield, LLC, No. M2009-01008-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2010). The Court held that the arbitration agreement in question was unconscionable.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Lula%20McGregor%20v%20Christian%20Care%20Center%20Opn.pdf

Criminal Law: Helpful Video for Defendants

Here's a video that covers a defendant's basic rights and responsibilities. While it is not a substitute for competent legal advice, it is very helpful in covering basic information.

http://www.tsc.state.tn.us/programs/self-help-center/what-should-i-expect-court-video

Torts: Summary Judgment for Defendant Reversed

The Eastern Section of the Tennessee Court of Appeals issued its opinion in Phillips v. Mullins, No. E2009-01930-COA-R3-CV (Tenn. Ct. App. Apr. 26, 2010). The trial court granted the defendant's motion for summary judgment; the Court of Appeals reversed, finding the genuine issues of material fact existed.

I agree with the Court of Appeals one-hundred percent. In my humble opinion, the trial court misapplied the standard of review that is required to be applied in determining whether or not to grant a motion for summary judgment. We must remember that the right to a trial by jury remains inviolate and that genuine issues of material fact must be decided by juries (assuming one is properly requested by the parties, of course).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Danny%20J%20Phillips%20v%20Wm%20T%20Mullins%20OPN.pdf

An Interesting Case

The Tennessee Supreme Court just issued its opinion in In re Estate of Davis, No. M2009-00660-SC-S09-CV (Tenn. Apr. 23, 2010). While this case involves the probate of a will, the opinion offers a good discussion of (1) statutes of limitations vs. statutes of repose; (2) statutory construction; and (3) fraudulent concealment and how it tolls the limitations period.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/102/SC%20Inre%20Estate%20of%20Mary%20Reeves%20Davis%20opn.pdf

Medical Malpractice: Delay in Service Proves Fatal for Plaintiffs' Lawsuit

The Western Section for the Tennessee Court of Appeals just issued its opinion in Jones v. Vasu, No. W2009-01873-COA-R10-CV (Tenn. Ct. App. Apr. 22, 2010). The Court of Appeals reversed the trial court and dismissed the plaintiffs' lawsuit due to their delay in effecting service upon the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Stephanie%20and%20Howard%20Jones%20v%20Renga%20Vasu%20MD%20etal%20OPN.pdf

Trial Practice: Damages & Remittitur

The Tennessee Court of Appeals just issued its opinion in Riley v. Orr, No. M2009-01215-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2010). The opinion offers a good discussion of damages recoverable in a personal-injury action, remittitur, etc.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Bobby%20G%20Riley%20and%20wife%20for%20Hunter%20Riley%20v%20James%20Orr%20opn.pdf

Torts & Affirmative Defenses: Tenn. R. App. P. 11 Application for Permission to Appeal in Allgood Denied

This post is related to my post of September 24, 2009 having to do with Allgood v. Gateway Health Sys., No. M2008-01779-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2009). The Tennessee Supreme Court denied Defendant Christopher Hoffman, M.D.'s application for permission to appeal under Tenn. R. App. 11 by an order dated April 14, 2010.

Here's a link to my September 24, 2009 post:

http://theduncanlawfirm.blogspot.com/search?q=affirmative+defenses.

Medical Malpractice: Court Upholds Dismissal of Plaintiff's Lawsuit for Failure to Comply with Pre-filing Notice Requirements

Today the Eastern Section of the Tennessee Court of Appeals issued its opinion in Long v. Hillcrest Healthcare - West, No. E2009-01405-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2010). Plaintiff contended that the claim sounded in general negligence. However, the trial court and the Court of Appeals held that it sounded in medical negligence, which required its dismissal due to the Plaintiff's failure to comply with the statutorily required pre-filing notice requirements, inter alia.

Here's a link to the majority opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Opal%20Hughes%20estate%20Medlinda%20Long%20Admin%20v%20Hillcrest%20HC%20west%20etal%20opn.pdf

Here's a link to the concurring and dissenting opinion filed by Judge Susano:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Opal%20Hughes%20estate%20Medlinda%20Long%20Admin%20v%20Hillcrest%20HC%20west%20etal%20DIS.pdf