Monthly Archives: June 2015

FedEx can deliver HCLA pre-suit notice letters, too, holds Tennessee Supreme Court

By Daniel A. Horwitz

In yet another round of litigation concerning Tennessee’s medical malpractice statute (known as the Health Care Liability Act, or the HCLA), the Tennessee Supreme Court has held that litigants may use commercial carriers like FedEx to deliver pre-suit notice letters.  This holding is significant because the HCLA specifically provides that pre-suit notice letters must be delivered by “the United States postal service.”[1]  Thus, by excusing a plaintiff’s technical non-compliance with the HCLA’s  service requirement, the Court’s decision in Arden v. Kozawa represents a further extension of the “substantial compliance doctrine,” which this author has previously described as “the rule that ‘close is close enough.’”[2]  Furthermore, Arden represents yet another iteration of the Court’s view that “[s]o long as a health care defendant is not prejudiced” by a plaintiff’s procedural errors, “substantial compliance with . . . statutory requirements will suffice.”[3]

The underlying law in Arden was not in dispute.  Before filing a medical malpractice claim, Tennessee law “require[s] medical malpractice plaintiffs to satisfy six pre-suit ‘notice requirements[.]’”[4] Those requirements include, for example, providing a medical malpractice defendant (usually a doctor or a hospital): (1) “[t]he full name and date of birth of the patient whose treatment is at issue;”[5] (2) “[t]he name and address of the attorney sending the notice, if applicable;”[6] and (3) “[a] HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.”[7]  Of note, the HCLA also states that plaintiffs must demonstrate that pre-suit notice was actually provided to defendants through either “[p]ersonal delivery of the notice”[8] or “[m]ailing of the notice.”[9]

If a plaintiff chooses to mail the notice, rather than hand-delivering it (something that avoids a great deal of angst, as nobody—doctors included—enjoys being personally served with notice of an impending lawsuit), then the HCLA states that proof of mailing: “shall be demonstrated by filing a certificate of mailing from the United States postal service[.]”[10]  In Arden, the plaintiff’s attorney admitted that Continue reading FedEx can deliver HCLA pre-suit notice letters, too, holds Tennessee Supreme Court

Tennessee’s Double Jeopardy standard may be applied retroactively, holds Tennessee Supreme Court

By Daniel A. Horwitz:

On May 27, 2010, Terrence Feaster savagely beat his housemate, dragged her into a bedroom, tied her feet to an entertainment center, and threatened to kill her if she moved.  Mr. Feaster was subsequently arrested and indicted for his crimes.  Following a trial, a jury convicted him of voluntary manslaughter, aggravated assault, and false imprisonment.  Over Mr. Feaster’s objection, the trial court declined to “merge” any of his convictions, meaning that it did not eliminate any of them for being duplicative.

Approximately two years after Mr. Feaster’s crimes, the Tennessee Supreme Court decided State v. Watkins.[1]  Watkins adopted a new test for determining when multiple convictions for offenses that arise under different statutes must be merged in order to avoid violating Tennessee’s Double Jeopardy clause.[2]  Importantly, Watkins also expressly abandoned the earlier (four-factor) merger test that the Tennessee Supreme Court had established in State v. Denton.[3]   For various reasons, the Denton rule was more favorable to criminal defendants than the Watkins rule, which is now in effect today.  Under the current Watkins standard, courts must conduct the following three-factor inquiry to determine whether a defendant’s convictions must be merged:

First: “Tennessee courts must focus upon ascertaining legislative intent.  If the General Assembly has expressed an intent to permit [or not to permit] multiple punishment, no further analysis will be necessary, and multiple convictions should be upheld against a double jeopardy challenge.”[4]

Second: Continue reading Tennessee’s Double Jeopardy standard may be applied retroactively, holds Tennessee Supreme Court

SCOTUS Decision Day Roundup: Supreme Court upholds ACA subsidies and approves disparate impact claims under the Fair Housing Act.

By Daniel A. Horwitz

Today was a major decision day at the Supreme Court of the United States.  Although the Court released only two opinions, both of today’s decisions carry enormous social import in Tennessee and throughout the nation.  Each also represents a major victory for the Obama Administration, which secured wins in support of its health care and housing policies.  The day’s two decisions were as follows:

1.  King v. Burwell (6-3):

In 2010, Congress passed the Patient Protection and Affordable Care Act (“the ACA”), which has since been derided by many as “Obamacare.”  Among other provisions of the law, the ACA sought to make insurance more affordable by giving refundable tax credits to individuals with household incomes that fell between 100 percent and 400 percent of the federal poverty line.

The ACA also required the creation of an “Exchange” in each state, which is essentially a marketplace that allows people to compare and purchase health insurance plans.  The Act afforded each state the option of establishing its own Exchange, but it also provided that the federal government would establish “such Exchange” if a state chose not to establish its own exchange.  At issue in this case, the ACA further provided that tax credits “shall be allowed” to any “applicable taxpayer,” but only if the taxpayer had enrolled in an insurance plan through “an Exchange established by the State[.]”  Thus, the specific question presented in this case was whether tax credits would be available on all exchanges, or whether they would only  apply to exchanges established by states.

Held:  Tax credits are available to individuals in states that have a federal exchange.   According to the Supreme Court:  “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”  Consequently, based on the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme,” tax credits are available to individuals who purchase health insurance on either a federally-created or a state-created insurance exchange.

Special commentary and Tennessee connections:  The importance of the Supreme Court’s decision in King v. Burwell cannot be overstated.  In light of the continuing controversy surrounding the Affordable Care Act, this decision carries tremendous social and political significance.  Consequently, Continue reading SCOTUS Decision Day Roundup: Supreme Court upholds ACA subsidies and approves disparate impact claims under the Fair Housing Act.

No, the Double Jeopardy Clause does not prevent re-trial in the Vanderbilt rape case.

By Daniel A. Horwitz

Yesterday, Judge Monte Watkins declared a mistrial in the consolidated prosecutions of Cory Batey and Brandon Vandenburg, which have come to be known collectively as “the Vanderbilt rape case.”  Judge Watkins’ eight-page mistrial order is accessible here.  As explained in detail in this post from last week, Tennessee law presumes jurors to be biased when they give false statements or fail to be forthcoming in response to questions asked during jury selection, and under such circumstances, a new trial is appropriate regardless of the strength of the evidence that was presented.   In this case, the juror in question appears to have lied several times in response to a wide array of questions that he was asked during voir dire.  For example, in page six of Judge Watkins’ ruling, he explains: “[I]t would be difficult to believe that Juror #9 did not [recall] his involvement in a statutory rape case when sexual assault, rape, and unwanted sexual touching [were] mentioned over one hundred and four times during the course of voir dire.”

Following Judge Watkins’ mistrial declaration, several observers have inquired whether the Double Jeopardy clause of the Fifth Amendment prohibits the government from re-trying the two defendants.  It does not.  According to the U.S. Supreme Court, barring bad-faith or prosecutorial misconduct, “a mistrial ruling explicitly contemplates reprosecution of the defendant.”  United States v. Jorn, 400 U.S. 470, 476 (1971).  As the Supreme Court has explained: Continue reading No, the Double Jeopardy Clause does not prevent re-trial in the Vanderbilt rape case.

SCOTUS Decision Day Roundup: Spider-Man royalties, raisin takings, and some Supreme Court humor

By Daniel A. Horwitz

The Supreme Court of the United States issued four opinions today that addressed patent royalty payments, administrative searches of hotel guest logs, use of force against detainees, and the application of the Fifth Amendment’s takings clause to personal property.

A few of the Justices also offered a rare, entertaining glimpse into Supreme Court humor.  “[H]aving the Court of Appeals calculate ‘just compensation’ in this case would be a fruitless exercise,” Justice Thomas wrote in a concurring opinion involving government takings of raisins.  “In this world, with great power there must also come—great responsibility,” quoted Justice Kagan in a case involving royalties over a Spider-Man toy, who also quipped that “[p]atents endow their holders with certain superpowers,” and that “[t]he parties had contemplated that royalties would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).”  The day’s four opinions were as follows: Continue reading SCOTUS Decision Day Roundup: Spider-Man royalties, raisin takings, and some Supreme Court humor

Is Nashville’s Airbnb Ordinance Constitutional?  Maybe not. 

By Daniel A. Horwitz

A few weeks ago, Lindsay Boyd penned a fun article for the Beacon Center TN Blog about Nashville’s new Airbnb ordinance entitled “My Dog Has More Freedom Than You Do.”  Contrasting Nashville’s newly enacted “Short Term Rental Property” regulations with the comparatively regulation-free environment available to short term dog sitters, Ms. Boyd explains:

“[T]hose of us residing in Nashville will no longer have the same freedoms that our pets do to shop for accommodations or open our homes to prospective vacation renters.  This spring, the city of Nashville announced a new policy for Airbnb operations.

Now, not only do Airbnb operators have to pay the same taxes as hotels, but those whose homes are used strictly for “short term rentals” (or Airbnb business) must also stand in line to vie for a limited number of licenses granted by the city—available to a mere 3% of households per census tract.  Those who fail to obtain these permits and adapt their services to adhere to further regulations on the number of sleeping rooms, signage, parking, and food service, will simply be out of luck—or become outlaws if they continue to operate unabated.”

After reviewing the provisions of Nashville’s short term rental property ordinance, however, I began to wonder:  can Nashville’s Airbnb regulations withstand constitutional scrutiny?  From my vantage point – at least with respect to the provision of the ordinance that caps the total number of short term rental permits at “[n]o more than three percent of the single-family or detached two-family residential units within each census tract”[1] – the answer is no. Continue reading Is Nashville’s Airbnb Ordinance Constitutional?  Maybe not. 

SCOTUS Decision Day Roundup: A Criminal Justice and First Amendment Jubilee

By Daniel A. Horwitz

The Supreme Court of the United States issued six opinions today, several of which may affect the development of Tennessee law or pending Tennessee cases.  The day’s opinions were largely centered on criminal justice and first amendment issues, and their holdings were as follows: Continue reading SCOTUS Decision Day Roundup: A Criminal Justice and First Amendment Jubilee

Tennessee Supreme Court Holds that a Witness’s Claim of Memory Loss Concerning Prior Statements Can Trigger Hearsay Exceptions and that Inconsistent Verdicts Are Acceptable

Guest Post by Memphis Attorney Neil Umsted

A witness’ claimed lack of memory at trial, whether legitimate or feigned, will trigger a number of rules that can allow that witness’ prior statements to be introduced as substantive evidence, the Tennessee Supreme Court held in State v. Marlo Davis, W2011-01548-SC-R11-CD.  Moreover, the Court held that so-called “inconsistent verdicts” will not, standing alone, entitle a defendant to any relief.

Marlo Davis was indicted along with a co-defendant for felony murder and premeditated murder—alternative theories of guilt for the homicide of a single victim. At trial, one of the State’s key witnesses, Jarcquise Spencer, testified that he did not recall witnessing the shooting, that he did not recall identifying the Defendant as the shooter in a statement to police, and that he did not recall testifying at the preliminary hearing in the case.  The trial court, convinced that Spencer was feigning his memory loss, allowed the State to introduce Spencer’s prior statements and prior testimony as proof of the defendant’s guilt.

Continue reading Tennessee Supreme Court Holds that a Witness’s Claim of Memory Loss Concerning Prior Statements Can Trigger Hearsay Exceptions and that Inconsistent Verdicts Are Acceptable

Juror Bias Under Tennessee Law, and What to Expect in the Vanderbilt Rape Case

By Daniel A. Horwitz

[Disclosure:  In a directly related lawsuit, the author filed an amici curiae brief in the Tennessee Supreme Court on behalf of several domestic and sexual violence prevention advocates seeking to protect the private records of the victim in this case.  The author’s brief – which applied only to the civil public records request filed in connection with this case by The Tennessean on behalf of a larger media coalition – is accessible here.]

In Sunday’s Tennessean, Stacey Barchenger provides answers to several questions involving post-trial criminal procedure in the consolidated prosecutions of Cory Batey and Brandon Vandenburg, which have come to be known collectively as “the Vanderbilt rape case.”[1]  Many of the questions that Ms. Barchenger answers in her column concern the alleged biases of one of the jurors who decided the case.  As reported by ABC News, Mr. Todd Easter – who served as the jury’s foreman – was “a victim of statutory rape 15 years ago, . . . but [he] never revealed that information during the jury selection process.”[2]  According to The Tennessean’s reporting, one of the specific questions that Mr. Easter was asked during jury selection was whether he “knew any victims of sexual assault.”[3]

Co-defendants Batey and Vandenburg have both argued that they are entitled to a new trial because Mr. Easter was biased against them but failed to disclose his biases during voir dire (jury selection).  In her article, Ms. Barchenger correctly explains that “[i]f the judge [agrees that] the juror should have disclosed the [fact that he had been raped],” then the judge will “grant a mistrial and set a new trial date.”  On Monday, the parties held an extensive evidentiary hearing concerning Mr. Easter’s potential biases, which will assist the trial court in ruling on the defendants’ motions.

This article attempts to provide a detailed summary of the legal questions that Criminal Court Judge Monte Watkins will have to answer in determining what exactly Mr. Easter “should have disclosed” during jury selection, and whether Mr. Easter was legally biased against the two co-defendants.  Additionally, assuming that Judge Watkins finds that Mr. Easter was indeed biased, this article explains why Mr. Batey and Mr. Vandenburg are entitled to receive a new trial—even though the evidence against them can fairly be characterized as overwhelming.  Continue reading Juror Bias Under Tennessee Law, and What to Expect in the Vanderbilt Rape Case

Tennessee Supreme Court approves one-sided arbitration clauses that require one party to arbitrate all disputes while allowing the other party to seek judicial review for limited purposes. 

By Daniel A. Horwitz

The Supreme Court of Tennessee has held that a contract that requires one party to arbitrate all of its legal claims but which allows the other party to litigate some of its claims in court is not inherently unconscionable under Tennessee law.  The Court’s opinion in Richard Berent v. CMH Homes, Inc. specifically held that a one-sided arbitration clause in an adhesive consumer contract was enforceable where the party that was not required to arbitrate all of its disputes was permitted to seek judicial review only for limited purposes.

Berent endeavored to “clarify” the Tennessee Supreme Court’s prior opinion in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 2004), which had also addressed whether “non-mutuality of remedies” rendered one-sided arbitration clauses unenforceable under Tennessee law.  Taylor appeared to establish a rule that for purposes of Tennessee law, one-sided arbitration clauses which grant one party the option of litigating its claims while binding the other party to arbitrate its claims are unconscionable per se.[1]  Specifically, Taylor held that an arbitration clause in a consumer contract of adhesion was “unconscionable and therefore void because it reserve[d] the right to a judicial forum for [the seller] while requiring [the buyer] to submit all claims to arbitration.”  Taylor, 142 S.W.3d at 287.

While noting that the “the Court’s opinion in Taylor is not a model of clarity,” Berent rejected the notion that Taylor had held that one-sided arbitration clauses are categorically unconscionable under Tennessee law.  Instead, the Berent Court opined that “Taylor applied the doctrine of unconscionability in a nuanced manner, weighing the degree of one-sidedness in the arbitration provision as an important factor, but not the only factor, and viewing the arbitration provision in the context of the overall contract and the surrounding circumstances.”

Thus, following Berent, one-sided arbitration clauses are not unenforceable per se under Tennessee law, and non-mutuality of remedies is only one factor among many to be considered in determining whether an arbitration clause is unconscionable.  Based on the language of the Court’s opinion in Berent, additional factors that determine whether one-sided arbitration clauses are unconscionable (and thus unenforceable) under Tennessee law include:

  1. Whether the arbitration clause was included as part of a contract of adhesion—defined as a “standardized contract form that was offered on essentially a ‘take it or leave it’ basis without affording [the accepting party] a realistic opportunity to bargain.” Taylor, 142 S.W.3d at 286 (quoting Black’s Law Dictionary 40 (6th ed. 1990));
  1. Whether the arbitration provision was “completely one-sided,” or whether it permits one party to seek judicial review only for limited purposes (emphasis in original); and
  1. Whether there is “a reasonable business justification for the carve-out” that allows only one party to the contract to access the court system.

Taken together, and viewed in light of all the facts and circumstances of a particular case, the question then becomes “whether the terms of the contract are beyond the reasonable expectations of an ordinary person,” or alternatively, whether the contract “is one in which the provisions are so one-sided, in view of all the facts and circumstances, that the contracting party is denied any opportunity for meaningful choice.”  Taylor, 142 S.W.3d at 285-86.

Although the Tennessee Supreme Court described non-mutuality of remedies in a binding arbitration clause as an “important” factor, it is worth noting that whether such a clause was included as part of a contract of adhesion was described as a “significant” factor as well, but the Berent Court upheld a one-sided, adhesive arbitration clause nonetheless.  Thus, it stands to reason that the additional factors identified by the Berent Court – whether an exception to arbitration is carved out for limited purposes only, and whether there is a reasonable business justification for the carve-out – will play a more important role in determining whether one-sided arbitration provisions are enforceable going forward.

Read the Tennessee Supreme Court’s opinion in Richard Berent v. CMH Homes, Inc. here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Expressing disagreement with that conclusion at the time, former Tennessee Supreme Court Justice Janice Holder penned a dissenting opinion in which she argued that “the mere fact that there are different forums available to the parties in this case does not make the arbitration provision unconscionable.”  Taylor, 142 S.W.3d at 287 (Holder, J., dissenting).  The Court’s opinion in Berent effectively adopts this view.