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BirdDog Law, the new leading resource center for Tennessee trial lawyer s and judges, now has free access to a user-friendly version of the Tennessee Rules of Criminal Procedure.   Access the rules from your desktop, notebook, tablet or cell phone 24/7 anywhere you have access to the internet.

BirdDog Law is designed to help trial lawyers have ready, 24/7 access to materials they use everyday.   BirdDog is still growing, but is quickly becoming the site of choice for Tennessee trial lawyers to access information they need to serve their clients.

Bookmark BirdDog!

The parties in Djeneba Sidibe et al. v. Sutter Health, Case No. 3:12-cv-04854-LB, a civil antitrust case in federal court in San Francisco, are in a dispute over whether a case ready for trial should be tried virtually.  Plaintiff seeks an immediate virtual trial.  Defendant opposes it.

The joint submission by the parties on the issue includes arguments for and against virtual jury civil jury trials and a host of case law on the issue.  This 16-page letter , which includes an exhibit for remote and safety protocols for the trial, cost tens of thousands of dollars in lawyer time to prepare.

And you get the benefit of the work at no cost.

Colorado’s highest court has ruled that in cases involving an unemancipated minor child, either the child or the child’s parents may recover the child’s pre-majority medical expenses  Double recovery is not permitted.  The case is Rudnicki v. Bianco.

The Tennessee will be holding oral argument soon on a related issue in Borngne ex rel Hyter v. Chattanooga-Hamilton County Hospital Authority.  

NOTE:  The link to the Borngne  case is a link to the status of case provided by my new site, www.birddoglaw.com.  BirdDog Law provides multiple free resources to Tennessee lawyers, one of which is “Status of Cases Pending Before the Tennessee Supreme Court.”

I am pleased to announce the launch of BirdDog Law, a massive online resource center for Tennessee lawyers, particularly those who do trial work.

The website includes free access to the Tennessee Rules of Civil Procedure, the Tennessee Rules of Appellate Procedure, and the Tennessee Rules of Evidence,  as well as the Tennessee Rules of Professional Conduct.   I believe readers will find the these resources on this site to much more user-friendly than those found on any other website.

Another free section of the website is the Tennessee Rules of Civil Procedure (As Modified for Use in the Claims Commission).   Those of us who practice before the Tennessee Claims Commission know that the Tennessee Rules of Civil Procedure generally apply to cases before the Commission but have been modified by regulation in several respects.  I know of no other place where the two bodies of rules have combined into one user-friendly recourse for the benefit of Tennessee lawyers.

I am pleased to announce, after over a year of work, that I have completed the creation of a new website for Tennessee lawyers.

The website is called BirdDog Law.  The website is designed to help Tennessee lawyers better serve their clients while saving themselves time and money.  A major component of the site is free access to the rules of evidence, civil procedure, and appellate procedure.  These resources are available at no charge on other sites, but in my judgment the sites are not user-friendly.  I worked to design the BirdDog Law website to provide information the way that lawyers seek information.  I am sure it is not perfect (and I intend to keep working to make it better), but I am convinced that it is a material improvement over any other free site and, if I may say, just as user-friendly as sites you must pay to access.

There are two things BirdDog gives you for free what you can’t readily get anywhere else.  First, BirdDog has combined the rules of civil procedure with the Claims Commission regulations modifying the rules of procedure for use in Claims Commission so that you can look at one document to see the rules of civil procedure applicable in the Claims Commission.  Second, BirdDog creates a list of cases pending before the Tennessee Supreme Court and gives you the current status of this case.  This permits you to determine in less than one minute what cases (and issues) are before the Court and determine the case’s likely decision date.  This information is publicly available, elsewhere but it is cumbersome to find.

Penny White, Joe Riley and I will be hosting our annual three-city, 15-hour seminar program again the Fall.   The program will be held in-person in Knoxville (Dec. 2-3), Nashville (Dec. 9-10), and Memphis (Dec. 16-17.

We will also be offering the same 15 hours of CLE via video.  Those interested in remote learning can purchase all fifteen hours, individual hours, or bundles of hours.

Check out the Justice Programs website to learn more.

Where there was material evidence in the record to support the jury’s finding that plaintiff’s neighbor had not diverted water onto plaintiff’s property, the verdict for defendant on claims of nuisance and trespass was affirmed.

In Whitford v. Village Groomer & Animal Inn, Inc., No. M2020-00946-COA-R3-CV (Tenn. Ct. App. Sept. 17, 2021), plaintiff and defendant were neighbors. The southern property, which was owned by defendant, was “naturally situated a higher elevation than the northern section,” which was owned by plaintiff. The two properties were previously owned by a single owner, who had installed two storm drains on the northern property to divert surface water away from the property. He had also built a large shed on the southern property, which had three gutters that directed rainwater towards the northern section’s storm drains.

Plaintiff purchased the northern section of the property in 2002, and he built two buildings there to use in his veterinary business. One of the buildings was leased by defendant from 2002 to 2009. In 2007, defendant purchased the higher, southern section of the property. After the purchase, defendant “modified the existing shed,” and “some of the gutters on the new building directed rainwater toward the storm drains” on plaintiff’s property. Defendant also built three dog runs.

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When defendant filed a petition to dismiss a defamation case under the Tennessee Public Participation Act (TPPA), and plaintiff failed to respond by “establish[ing] a prima facie case for each essential element of the claim in the legal action,” dismissal was affirmed. Further, exclusive jurisdiction of the appeal of the TPPA dismissal rested in the Court of Appeals. In Nandigam Neurology, PLC v. Beavers, No. M2020-00553-COA-R3-CV (Tenn. Ct. App. June 18, 2021), plaintiffs neurology clinic and neurologist filed this suit against defendant after defendant left a negative review of plaintiff doctor online. After non-suiting the first action, this case was filed in general sessions court, wherein plaintiffs alleged defamation and false light invasion of privacy. Defendant filed a petition to dismiss the case in its entirety, asserting first that plaintiffs failed to state a claim because they “failed to plead the substance of any statement over which they complained,” and that the statement “was not defamatory because it expressed only opinions and rhetorical hyperbole.” In addition, defendant argued that this case should be dismissed pursuant to the TPPA because the “review was a statement made in connection with a matter of public concern and that Plaintiffs’ lawsuit ‘qualifies as one filed in response to defendant’s exercise of the right to free speech.’” Defendant’s petition also asked that she be awarded costs, attorney’s fees, and sanctions pursuant to the TPPA. Defendant supported her petition with a personal affidavit stating that “her Yelp! review was based on her personal observations and that she had no reason to believe any of the statements in the review were false.”

Plaintiffs responded to the petition by arguing that Tenn. Code Ann. § 20-17-101 et. seq., known at the TPPA, could not apply here because it was a rule of civil procedure, which is not applicable in sessions court. Plaintiffs, however, “did not address the substance of Defendant’s argument nor did Plaintiffs offer any countervailing proof in response to Defendant’s affidavit.”

The general sessions court held a hearing on February 6, 2020, where plaintiffs continued to rely “solely on the theory that the TPPA is a rule of civil procedure that does not apply in general sessions court.” Six days after the hearing, plaintiffs filed a supplemental response where they argued for the first time that they “could prove a prima facie case for defamation and false light,” and they attached the doctor’s affidavit in support. The sessions judge ruled the following day, dismissing the claims pursuant to the TPPA and plaintiffs’ failure to respond to the petition to dismiss with any facts. The order, however, did not resolve defendant’s request for costs, attorney’s fees and sanctions.

Where plaintiff alleging defamation was a public figure but had pleaded in the complaint that defendants were “negligent and/or reckless in ascertaining the truth” of the statements, the trial court incorrectly granted judgment on the pleadings on the defamation and false light invasion of privacy claims. Further, where defendants had counterclaimed for trespass to chattels, conversion, negligence, and trespass, and the “countercomplaint [had] factual allegations to support the required elements” of those claims, dismissal was reversed. In Kauffman v. Forsythe, No. E2019-02196-COA-R3-CV (Tenn. Ct. App. May 25, 2021), plaintiff shot and injured defendant’s dog when it was on plaintiff’s property. According to plaintiff, the dog had cornered his cat and he feared for its safety. After this incident, the dog’s owner, Ms. Bishop, and an individual unrelated to the dog, Mr. Williams, posted negative opinions about plaintiff on social media.

Sometime after this incident, plaintiff ran for county commissioner. During the campaign, Ms. Bishop and Mr. Williams continued posting negative opinions and information about plaintiff. Ms. Bishop’s children’s grandfather, Mr. Forsythe, also posted negative comments about plaintiff on social media. Plaintiff lost the election.

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Where plaintiffs filed an Tennesseee medical malpractice (HCLA) claim on behalf of their stillborn child and made no claims “for damages for harm or injury to Savannah Jackson (‘Mother’),” the HIPAA authorization form provided by plaintiffs that identified the stillborn child as the patient and released records in his name was proper, and the claims commission was correct to deny summary judgment to defendants. The fact that the health care providers did not have records under the child’s name and thus did not disclose any records in response to defendants’ request did not change that analysis. In Jackson v. State, No. E2020-01232-COA-R9-CV (Tenn. Ct. App. April 20, 2021), plaintiffs were the parents of a stillborn child. Plaintiffs sent proper pre-suit notice with a HIPAA authorization to defendant, and the authorization stated that the patient name was “Branson Vance Jackson,” the name of the deceased child. Plaintiff mother signed the authorization in her capacity as the mother, but no HIPAA authorization was sent regarding the mother’s files, as no “claim was presented for damages for harm or injury” to the mother.

The State sent the HIPAA authorization to four medical providers who were sent notice and identified by plaintiff, and none of the providers produced any medical records in response to the request. Two providers specifically responded that they had no record of a patient with that name or date of birth on file.

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