TAM-BYTES

December 1, 2014
Vol. 17, No. 48
2014 TAM CLE CALENDAR

Webinar
Where Family Law and International Issues Collide: Relocation and Child
Abduction Issues, 60-minute webinar presented by Rebecca McKelvey
Castaneda, with Stites & Harbison in Nashville, on Wednesday, February 25,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.
For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Court of Appeals rejects equal protection challenge to 10-year statute of
repose and its exceptions under Tennessee Products Liability Act in suit
against silica manufacturers and suppliers by plaintiff who, after working
as sandblaster for 30 years, developed silica-related injuries;
Court of Appeals holds Department of Revenue properly assessed sales
and use tax on out-of-state corporation for luxury motor home, which was
stored and driven in Tennessee;
Court of Appeals says that although transitional alimony is generally
subject to modification post-divorce, when parties expressly agree in
marital dissolution agreement that transitional alimony obligation will not
be modifiable, such agreement should be deemed to have force;
Court of Criminal Appeals reverses drug convictions when sum total of
states proof establishing constructive possession was that detective saw
driver and defendant, front seat passenger, moving in area of vehicles
console when detective activated his blue lights, and other than
defendants proximity to contraband, there was no proof establishing link
between defendant and hidden contraband;
Court of Criminal Appeals reverses DUI conviction when defendants
face, and in particular his mouth, was not visible on police videotape
during entire 20-minute observation period required by Sensing, at several
points throughout videotape, defendants face and mouth are obstructed
by what appears to be keyboard for Intoximeter, and officer testified that
he did paperwork during observation period; and

 Court of Workers Comp Claims rules employees injury was idiopathic

in nature, and hence, not compensable, when employee dislocated his
kneecap when he stood from squatting position after checking baling
machine at work.
WORKERS COMP PANEL
WORKERS COMPENSATION: In case in which employee alleged that he
sustained compensable back injury when stool on which he was sitting collapsed
causing him to fall to ground, employees treating physician opined that he
sustained permanent impairment as result of incident, two evaluating doctors
opined that employees symptoms were related to prior motor vehicle incident,
and trial court found that employee did not suffer compensable injury, trial court
did not abuse discretion by according greater weight to opinions of two
evaluating doctors than to treating physician when treating physicians opinions
were based on assumption that he received complete and accurate history from
employee, that assumption was disproved by evidence presented during trial,
treating physician understood that employee had no injuries to his back and no
treatments for back pain prior to 8/9/08 work incident, undisputed evidence
established that he had been in very serious motor vehicle accident in 1991 that
had caused fractures of four vertebrae, employee had been unable to work for
more than one year due to his injuries, and employee had sought medical
treatment for chronic back pain in 1996 and again in 2006. Jones v. CVS
Pharmacy Inc., 11/20/14, Knoxville, Stevens, 7 pages.
http://www.tncourts.gov/sites/default/files/jones_douglasopn.pdf

WORKERS COMPENSATION: In case in which employee injured his head,

neck, and back in tractor-trailer accident, trial court erred in excluding testimony
of vehicle accident reconstruction forensic engineer (expert) to calculate change
of velocity of employees vehicle with injuries recorded in volunteer testing;
experts proffered testimony did not relate to cause of employees injuries, as
found by trial court, but was offered to explain method of determining extent of
potential injury to humans based on given forces and how hypothetical persons
body responds to those forces; employer relied on experts excluded testimony
to support its position that accident could not have resulted in injuries to
employee in manner that employee described, but there was ample evidence to
support trial courts conclusion that employees injuries were caused by accident
when trial court found employee was consistent in terms of what happened in
accident and that his testimony was credible in describing how accident occurred
and when trial court discounted experts description of accident. Hudson v.
Kroger L.P. I, 11/24/14, Jackson, Blackwood, 11 pages.
http://www.tncourts.gov/sites/default/files/hudsonkevinopn.pdf

WORKERS COMPENSATION: in case in which employee sustained workrelated injury to his back and leg and returned to work but eventually resigned,
evidence did not preponderate against trial courts finding that employee did not
have meaningful return to work, and hence, employees permanent partial
disability award was not capped at 1.5 times his medical impairment rating,
when, even though treating physician returned employee to work with no
restrictions and employee was able to work for over nine months, trial court
accredited employees testimony that he continued to have severe pain during
this period of time. Keller v. Thyssenkrupp Elevator Corp., 11/21/14, Jackson,
Harris, 8 pages.
http://www.tncourts.gov/sites/default/files/kellerthomasopn.pdf

COURT OF APPEALS
TORTS: When plaintiff, who after working as sandblaster for 30 years,
developed silica-related injuries, filed products liability action against several
silica manufacturers and suppliers, trial court properly granted summary
judgment to defendants based on 10-year statute of repose; Tennessee legislature
had reasonable basis upon which it distinguished claims related to asbestos and
silicon gel breast implants from silica-related and other injuries that also have
long latency periods, and hence, Tennessee Products Liability Acts statute of
repose and its exceptions do not violate Equal Protection Clause or Tennessee
Class Legislation Clause. Adams v. Air Liquide America L.P., 11/25/14, MS,
Clement, 9 pages.
http://www.tncourts.gov/sites/default/files/adamse._opn.pdf

TAXATION: Department of Revenue properly assessed sales and use tax on

out-of-state corporation for luxury motor home, which was stored and driven in
Tennessee; trial court erred in concluding that there was not appropriate nexus
between motor homes use and Tennessee when corporation, while not operating
its business in Tennessee, has stored its equipment in Tennessee for six months
out of year for approximately seven years, and corporations owner and sole
member has residence in Tennessee and has used motor home to travel to and
from Tennessee on corporate business; trial court erred in finding that imposition
of sales tax was not authorized by statute and was not consistent with Commerce
Clause. McCurry Expeditions LLC v. Roberts, 11/14/14, WS at Nashville,
Stafford, 12 pages.
http://www.tncourts.gov/sites/default/files/mccurryexpeditionsopn.pdf\

FAMILY LAW: In case in which trial court awarded wife transitional alimony
for 60 months after parties 2012 divorce, parties marital dissolution agreement

(MDA) provided that alimony shall not be modifiable by either party, and after
wife remarried, husband filed petition to terminate his alimony obligation in 2013,
trial court properly granted wifes motion to dismiss husbands petition; although
transitional alimony is generally subject to modification post-divorce, when
parties expressly agree in MDA that transitional alimony obligation will not be
modifiable, such agreement should be deemed to have force; when parties plainly
state that agreed-upon transitional alimony is non-modifiable, courts should hold
parties to their agreement. Vick v. Hicks, 11/17/14, WS, Goldin, 7 pages.
http://www.tncourts.gov/sites/default/files/hicksopn.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of first degree murder
of his wife, trial court erred in admitting evidence of defendants financial
crimes as prior bad acts when trial courts reasoning in admitting evidence was
that defendant killed victim in order to conceal, continue, or cover-up another
crime, namely, his financial fraud, but purported relevance of defendants
financial crimes to his wifes murder was extremely speculative; error was
harmless in light of overwhelming evidence of defendants guilt state
meticulously built case against defendant with over 40 witnesses; proof of
defendants extramarital conduct is admissible for non-propensity purposes in
prosecution of spousal homicide. State v. Caronna, 11/18/14, Jackson,
McMullen, Bivins not participating, 53 pages.
http://www.tncourts.gov/sites/default/files/caronnajosephopn.pdf

EVIDENCE: In case in which defendant was convicted of aggravated sexual

battery, because trial court erroneously admitted evidence of defendants prior
bad act, i.e., daughter of defendants former girlfriend (L.) testified that
defendant had sexual intercourse with her for two years beginning when she was
14 years old, some 30 years prior to defendants trial, and because prosecutor
delivered improper closing argument, defendants convictions are reversed, and
case is remanded for new trial; admission of uncharged sexual activity of
defendant creates unfair prejudice that warrants reversal of conviction;
prosecutors closing argument was, in essence, urging jury to punish defendant
for crime for which he was not on trial, i.e., 30-year-old crimes he allegedly
committed against L., and argument, along with L.s testimony, adversely
affected defendants right to fair trial. State v. Gossett, 11/21/14, Jackson,
Williams, Smith not participating, 24 pages.
http://www.tncourts.gov/sites/default/files/gossettopn_0.pdf

EVIDENCE: In case in which defendant was convicted of theft between $1,000

and $10,000, trial court erred in admitting evidence of his prior conviction for

theft when, while evidence of defendants character may become admissible

when it logically tends to rebut claim of mistake or accident if asserted as
defense, because defendant did not interject mistake as issue at trial, trial court
erred in admitting prior conviction as propensity evidence; when other crime
is similar to charged offense in pending case, danger of unfair prejudice is
especially prevalent, increasing likelihood that jury would convict on perception
of past pattern of conduct, instead of on facts of charged offense; trial courts
error was not harmless when defendants credibility was crucial in case;
defendants theft conviction is reversed, and case is remanded for new trial.
State v. Hudson, 11/21/14, Nashville, Page, 11 pages.
http://www.tncourts.gov/sites/default/files/hudsonshaynethomasopn.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of

possession of .5 gram or more of cocaine with intent to sell, possession of .5
gram or more of cocaine with intent to deliver, or possession of firearm with
intent to go armed during commission of dangerous felony as result of routine
traffic stop when sum total of states proof establishing constructive possession
was that detective saw driver and defendant, front seat passenger, moving in
area of vehicles console when detective activated his blue lights; other than
defendants proximity to contraband, there was no proof to establish link between
defendant and hidden contraband; mere proximity or presence to seized
contraband is not sufficient to establish actual or constructive possession. State v.
Hilerio-Alfaro, 11/19/14, Jackson, McMullen, Smith not participating, 7 pages.
http://www.tncourts.gov/sites/default/files/hilerioalfaroopn.pdf

CRIMINAL PROCEDURE: In drug case, trial judge did not err in denying
defendants motion to suppress evidence obtained via wiretapping when
comprehensive explanation of investigative techniques either tried without
success or rejected as unlikely to yield success satisfied statutory requirement of
necessity of wiretap; law enforcement officer need not have shown that wiretaps
were last resort, only that most common investigative techniques had either been
tried or seriously considered before resort to wiretap applications; defendant,
who was provided, at preliminary hearing, with actual notice of all relevant
information regarding wiretaps, did not establish that he was prejudiced by
states failure to provide him with timely, formal notice and inventory. State v.
Darnell, 11/20/14, Nashville, Witt, 13 pages.
http://www.tncourts.gov/sites/default/files/darnellchristopherbrianopn.pdf

EVIDENCE: In DUI case, because state failed to comply with Sensing

requirements, defendants conviction is reversed; evidence preponderated against
trial courts finding that officer complied with requisite 20-minute observation
period when defendants face, and in particular his mouth, is not visible on police
videotape during entire 20-minute period, at several points throughout videotape,

defendants face and mouth are obstructed by what appears to be keyboard for
Intoximeter burping, belching, and regurgitating can occur in matter of
seconds, and while often belch or regurgitation will produce noise capable of
being heard by another person, this is not always case and officer testified that
he did paperwork during 20-minute observation period; because results of breath
test were only evidence establishing DUI per se and were only scientific evidence
offered by state in support of DUI charge, and in spite of fact that officer testified
that defendant drove somewhat erratically, that he smelled of alcohol, and that he
appeared intoxicated, without admission of .20% breath-alcohol test results, jury
would not have found that defendant was guilty beyond reasonable doubt. State
v. Puckett, 11/20/14, Jackson, Thomas, 13 pages.
http://www.tncourts.gov/sites/default/files/puckettmarcusopn_0.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Employees injury was idiopathic in nature,
and hence, not compensable, when employee dislocated his kneecap when he
stood from squatting position after checking baling machine at work;
employment did not contribute at least 50% in causing injury; employee could
have suffered same injury if he had squatted anywhere, and fact that injury
occurred while employee was at work does not convert it into workers
compensation injury. Willis v. All Staff, 11/10/14, Baker, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1020&context=utk_workerscomp

WORKERS COMPENSATION: Employee, who was injured while

attempting to restart stalled bucket truck after completing tree trimming
assignment, is likely to prevail at hearing on merits of claim; employer is
ordered to provide employee with panel of neurologists, employee is entitled to
reimbursement for out-of-pocket expenses for medical care he sought on his
own, and employee is entitled to recover temporary total disability benefits from
date of injury until he reaches maximum medical improvement; calculation of
temporary total disability benefits is based on pay stub for one week of work,
only information available concerning employees wage rate; clerk is directed to
forward copy of order to mediator who presided over alternative dispute
resolution proceeding so that mediator may take appropriate action against
employer who failed to file wage statement. Davis v. RWs Tree Service &
Stamp Removal, 10/24/14, Baker, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1015&context=utk_workerscomp

WORKERS COMPENSATION: Employee suffered injury arising primarily

out of and in scope of her employment on 7/15/14 when she strained to turn
rusty hand crank; fact employee mentioned low back pain before she began

work on 7/15/14 did not indicate different result when back pain employee was
experiencing before work did not disable her or cause her to limp, and her
condition after she reported injury indicates that whatever condition that
accounted for low back pain she previously described was so advanced and
progressed by work-related injury that she could not bear weight on her right
leg; employers obligation under Workers Compensation Law was not relieved
by employees fall at home on 8/9/14 when doctor maintained same diagnosis
and did not change restrictions after fall, employees recuperation was not
significantly hampered by fall, and employee testified that she fell when one of
her crutches, which she had been told by doctor to use as needed, slid on deck of
her home. Macumber v. USXpress, 11/7/14, Wyatt, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1021&context=utk_workerscomp

If you would like a copy of the full text of any of these opinions, simply click
on the link provided or, if no link is provided, you may respond to this email or call us at (615) 661-0248 in order to request a copy. You may also
view and download the full text of any state appellate court decision by
accessing the states web site by clicking here: http://www.tncourts.gov