Category Archives: Tort Law

The “Tennessee Public Participation Act”⁠—Tennessee’s First-Ever Meaningful Anti-SLAPP Law⁠—Takes Effect Today

By Tennessee First Amendment, Speech Defense, and Anti-SLAPP Lawyer Daniel Horwitz:

If you woke up this morning feeling freer to speak your mind, there’s a reason: A little-noticed law with huge free speech benefits takes effect today. As of July 1, 2019, the “Tennessee Public Participation Act”—Tennessee’s first-ever meaningful Anti-SLAPP law—became effective and affords those who are sued for their speech a host of critical legal benefits.

Because litigation is often prohibitively expensive, bad actors can often intimidate critics into silence by threatening or filing baseless speech-based lawsuits asserting claims like defamation (libel or slander), false light invasion of privacy, business disparagement, or other questionable torts. When faced with the prospect of having to spend tens (if not hundreds) of thousands of dollars in legal fees to defend one’s legal right, for instance, to leave an unfavorable review of a business, self-censorship can also become an extremely attractive proposition. The result of such self-censorship is to undermine both individuals’ right to free speech and the public’s right to hear and receive information.

It is important to note that the overwhelming majority of defamation and other speech-based lawsuits are not filed because a person has suffered an actual legal injury. Instead, their purpose is to punish people for lawfully exercising their right to speak freely about a topic that the suing plaintiff wants to censor. Given the cost of litigation, historically, such lawsuits have also been disturbingly effective.

To provide a counterbalance to the financial threat posed by bogus defamation lawsuits, laws aimed at deterring “Strategic Lawsuits Against Public Participation” (Anti-SLAPP laws) afford speakers a number of significant legal protections, all of which are critical to safeguarding free speech and promoting the free exchange of information and ideas. First, Anti-SLAPP laws help deter bad actors from filing baseless lawsuits against people for lawfully exercising their free speech rights in the first place. Second, the best Anti-SLAPP laws provide people who are sued for exercising their First Amendment rights an efficient and expeditious means of getting frivolous speech-based lawsuits dismissed quickly. Third, Anti-SLAPP laws commonly provide a mechanism to punish abusive litigants and attorneys who file baseless defamation claims with significant monetary sanctions. Fourth, Anti-SLAPP laws frequently give people who are sued for exercising their free speech rights the right to recoup whatever attorney’s fees and court costs they incurred for having to defend against a meritless speech-based lawsuit.

Happily, beginning today, Tennessee now boasts an Anti-SLAPP law that affords speakers all of these benefits. Until today, Tennessee only had a limited Anti-SLAPP law that was narrowly restricted to statements made to government agencies.  Fortunately, though, earlier this year, Tennessee enacted the “Tennessee Public Participation Act” to protect Tennesseans’ right to free speech, which became effective July 1, 2019.  Thus, from today onward, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world can now wield a powerful protective weapon against bad actors’ efforts to censor and intimidate them through frivolous speech-based lawsuits.

The Tennessee Public Participation Act has dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. Under the Act, every “communication made in connection with a matter of public concern”—a term that is defined broadly and expressly encompasses statements involving issues of “health or safety” and “community well-being”—”that falls within the protection of the United States Constitution or the Tennessee Constitution” will come within the ambit of the law’s protection. In other words: Most statements made by citizens within the State of Tennessee—including social media posts and blog posts—now receive heightened protection against speech-based lawsuits, including defamation lawsuits, false light invasion of privacy lawsuits, or lawsuits that assert claims such as “defamation by implication or innuendo.”  Defendants who are sued for claims such as “abuse of process” or “malicious prosecution” will frequently enjoy heightened protection under the Tennessee Public Participation Act as well.

Censorship has always been rampant, and it comes in many forms—from firing people who speak out about misconduct in the workplace to libel and slander lawsuits. More than anything, in recent years, the permanence of the internet combined with the reach and speed of social media have made it more attractive than ever to try to censor others through the legal system before harmful information—whether accurate or not—reaches every corner of cyberspace. The good news is that the Tennessee Public Participation Act will now afford significant protection to people who speak out about topics like abuse and other important issues. The text of the law appears below.

The Tennessee Public Participation Act (Effective July 1, 2019):

20-17-101. This chapter shall be known and may be cited as the “Tennessee
Public Participation Act.”

20-17-102. The purpose of this chapter is to encourage and safeguard the
constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury. This chapter is consistent with and necessary to implement the rights protected by Article I, §§ 19 and 23, of the Constitution of Tennessee, as well as by the First Amendment to the United States Constitution, and shall be construed broadly to effectuate its purposes and intent.

20-17-103. As used in this chapter:

(1) “Communication” means the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic;

(2) “Exercise of the right of association” means exercise of the constitutional right to join together to take collective action on a matter of public concern that falls within the protection of the United States Constitution or the Tennessee Constitution;

(3) “Exercise of the right of free speech” means a communication made
in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution;

(4) “Exercise of the right to petition” means a communication that falls
within the protection of the United States Constitution or the Tennessee Constitution and:

(A) Is intended to encourage consideration or review of an issue
by a federal, state, or local legislative, executive, judicial, or other
governmental body; or

(B) Is intended to enlist public participation in an effort to effect
consideration of an issue by a federal, state, or local legislative,
executive, judicial, or other governmental body;

(5) “Legal action” means a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable relief initiated against a private party;

(6) “Matter of public concern” includes an issue related to:

(A) Health or safety;

(B) Environmental, economic, or community well-being;

(C) The government;

(D) A public official or public figure;

(E) A good, product, or service in the marketplace;

(F) A literary, musical, artistic, political, theatrical, or audiovisual
work; or

(G) Any other matter deemed by a court to involve a matter of
public concern; and

(7) “Party” does not include a governmental entity, agency, or employee.

20-17-104.

(a) If a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action.

(b) Such a petition may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court’s discretion, at any later time that the court deems proper.

(c) A response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.

(d) All discovery in the legal action is stayed upon the filing of a petition under this section. The stay of discovery remains in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.

20-17-105.

(a) The petitioning party has the burden of making a prima facie case
that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.

(b) If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.

(c) Notwithstanding subsection (b), the court shall dismiss the legal
action if the petitioning party establishes a valid defense to the claims in the legal action.

(d) The court may base its decision on supporting and opposing sworn
affidavits stating admissible evidence upon which the liability or defense is based and on other admissible evidence presented by the parties.

(e) If the court dismisses a legal action pursuant to a petition filed under this chapter, the legal action or the challenged claim is dismissed with prejudice.

(f) If the court determines the responding party established a likelihood of prevailing on a claim:

(1) The fact that the court made that determination and the
substance of the determination may not be admitted into evidence later in
the case; and

(2) The determination does not affect the burden or standard of
proof in the proceeding.

20-17-106. The court’s order dismissing or refusing to dismiss a legal action
pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.

20-17-107.

(a) If the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party:

(1) Court costs, reasonable attorney’s fees, discretionary costs,
and other expenses incurred in filing and prevailing upon the petition; and

(2) Any additional relief, including sanctions, that the court
determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.

(b) If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney’s fees incurred in opposing the petition.

20-17-108.  Nothing in this chapter:

(1) Applies to an enforcement action that is brought in the name of the
state or a political subdivision of this state by the attorney general, a district attorney general, or a county or municipal attorney;
(2) Can result in findings or determinations that are admissible in
evidence at any later stage of the underlying legal action or in any subsequent legal action;
(3) Affects or limits the authority of a court to award sanctions, costs,
attorney’s fees, or any other relief available under any other statute, court rule, or other authority;
(4) Affects, limits, or precludes the right of any party to assert any
defense, remedy, immunity, or privilege otherwise authorized by law;
(5) Affects the substantive law governing any asserted claim;
(6) Creates a private right of action; or
(7) Creates any cause of action for any government entity, agency, or
employee.

20-17-109. This chapter is intended to provide an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available to those parties under common law, statutory law, or constitutional law or under the Tennessee Rules of Civil Procedure.

20-17-110. If any provision of this chapter or the application thereof to any
person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.

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The law protects victims of sexual harassment and domestic violence, even when elected officials do not.

By Daniel Horwitz:

The past week has been a terrible one for victims of sexual harassment and domestic violence.  Two high profile scandals—both involving elected officials—suggest that any number of Tennessee’s politicians have no qualms about leveraging their positions of power to harass, abuse and intimidate women.  The first scandal involves allegations that State Representative Jeremy Durham—a member of the Republican leadership until just a few days ago—sexually harassed legislative staff and interns repeatedly and without hesitation.  The second involves allegations that Nashville Metro Councilmember Loniel Greene—who resigned his seat last night effective immediately—used his position as a public official to intimidate a victim of domestic violence.  According to a recorded phone call, Greene threatened a woman who had reported a domestic violence incident, stating:  “Bitch, I’m smarter than you.  You try to play the system, motherfucker I am the system.”  After stating that “she’s going to have to be shut down,” Councilman Greene then “work[ed] on” the alleged victim in an attempt to silence her.

The response to these allegations from other elected officials was tepid at best.  For example, in an utterly tone-deaf statement that placed responsibility for Representative Durham’s alleged sexual harassment squarely on the shoulders of those who were believed to have been the victims of it, House Speaker Beth Harwell announced that: “I have instructed the Director of the Internship program that interns are not to attend receptions or events related to the legislature, and they are not to give their cell phone numbers to members.”  The response to Councilman Greene’s scandal was similarly listless.  Prior to his resignation, exactly two out of forty total Metro Councilmembers—Councilman Bob Mendes and Councilman Jeremy Elrod—condemned the allegations, while the Mayor suggested that Councilman Greene should consider resigning because the allegations could “becom[e] a distraction.”

In sharp contrast, however, the response by women’s advocates was considerably more pointed.  Said Pat Shea, CEO of the YWCA of Nashville & Middle Tennessee[1]:

“The YWCA of Nashville & Middle Tennessee is appalled at news accounts of a current domestic violence case involving a newly elected Metro Councilman.  How is it that persons in positions of power in Nashville are able to misuse that power to silence victims?  How is it that processes, put in place to protect victims, are not followed?  These patriarchal behaviors raise serious questions about whether we are able to trust the systems set up to protect victims.

As advocates, we are constantly asked ‘why women do not report abuse; why women will not prosecute; why women cannot just leave.’  This recent high profile incident provides a perfect example of why victims don’t, won’t, and can’t.  We want Nashville to be a place where all of our leaders work to make Nashville safer for victims of domestic violence, not more dangerous. ”

Added Sara Beth Myers of AWAKE (Advocates for Women’s and Kids’ Equality):

“Tennesseans should be confident in our laws that protect victims of harassment both in the civil and criminal context. The offices of our state and local elected officials should be paragons of professionalism and transparency, setting an example for every other workplace in Tennessee. In a state in which women are so underrepresented in our legislature, lawmakers and policymakers should be especially deliberate about interacting with their female colleagues both legally and respectfully. The past week’s events revealed a situation in our government that we should all deem unacceptable.”

The presumption of innocence is obviously of paramount importance and should not be discounted.  As such, pending the outcome of formal legal proceedings against Representative Durham and former Councilman Greene, those who have resisted making public condemnations are entitled to the benefit of the doubt.  Elected officials’ collective disregard for the alleged victims of these incidents, however, is far more difficult to explain.  Protecting victims of harassment and domestic violence and protecting the presumption of innocence are not incompatible concepts.  A legal system that fails to do both at once holds little value.

To be absolutely clear at a time when too many elected officials haven’t been: victims are not responsible for being sexually harassed, beaten, or intimidated.  Sexual harassment is illegal.  Domestic violence is illegal.  Intimidating a victim of domestic violence is illegal.  Retaliating against a victim who reports being abused is illegal.  All such acts are despicable.  None should ever be tolerated.

The law protects victims of harassment, violence and abuse.  If you have been victimized, resources are available to help you.  If you’re in danger, you can reach the YWCA’s 24-hour crisis and information line at (615) 242-1199 or toll free 1-800-334-4628.  The Legal Aid Society of Middle Tennessee and the Cumberlands has free lawyers available to help those who have been victims of domestic violence, including providing free divorce services and helping victims obtain orders of protection.  The District Attorney’s Office has a Victim Witness Services Division that is exclusively dedicated to helping victims navigate the legal system.  The Tennessee Coalition to End Domestic and Sexual Violence makes a multitude of free resources available to victims of domestic violence and sexual abuse.  Many employment lawyers, although they are not free, will take sexual harassment cases on a contingency basis.  All of these resources exist to help empower victims and stop the cycle of abuse.

It is also important to shed light on the many existing policy shortcomings that need fixing.  Although late in coming, legislative leaders have already acknowledged that the General Assembly’s current sexual harassment policy needs to be overhauled, because “staffers and others who are regularly at the Capitol do not feel comfortable coming forward.”  Sadly, the same is often true of the criminal justice system.  In many instances, for example, the names of victims of domestic and sexual violence are made publicly accessible on arrest warrants, which discourages a significant number of victims from reporting.  There is also a pending dispute in the Tennessee Supreme Court over whether victims’ private, personal information becomes a public record under Tennessee law once their records have been turned over to law enforcement.  On behalf of several domestic and sexual violence prevention advocates who participated in the case as amici curiae, the author has argued that it does not, but the Tennessee Supreme Court will have the final say.  Additionally, the legislature’s failure to adapt to modern forms of harassment has left a void in victims’ protection against abuses such as non-consensual pornography—otherwise known as “revenge porn”—and harassment via electronic media, such as text messages and facebook.

These shortcomings certainly need to be corrected.  While that happens, however, don’t wait.  The law protects victims of sexual harassment and domestic violence, even when elected officials do not.  If you need help, help is available.

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

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[1] In the interest of full disclosure, the author is a member of the YWCA’s Board of Directors.

All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court.

By Daniel Horwitz:

In February of 2012, the Juvenile Court of Sumner County awarded temporary custody of “M.L.” – a minor child – to her great aunt and uncle.  However, the Court’s custody order also provided that M.L.’s biological parents – Adam and Ashley Ellithorpe – were permitted to participate in any counseling that she received.  After the Ellithorpes discovered that M.L. had received counseling for approximately two years without their knowledge, however, they sued M.L.’s counselor – Ms. Janet Weismark – for negligence.  According to M.L.’s parents, Ms. Weismark – a licensed clinical social worker – acted recklessly and caused their daughter substantial harm by providing her counseling services without first obtaining their consent to do so.

After receiving the Ellithorpes’ complaint, Ms. Weismark asked the court to dismiss it on the basis that the Ellithorpes had failed to comply with the pre-suit notice requirements of the Tennessee Health Care Liability Act (the “HCLA”).  In Tennessee, people who want to file lawsuits involving the provision of health care services are first required to comply with a variety of procedural requirements that are unique to health care claims.[1]  Given that the HCLA’s pre-suit notice requirements serve as a minefield to unwary litigants and frequently result in otherwise-valid claims being dismissed on technical procedural grounds, the author has previously characterized these requirements as “red tape with fangs.”  See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015) (feature article), available at http://issuu.com/nbanikki/docs/nbjjune15/17.

Chief among the HCLA’s pre-suit notice requirements is a rule that “[i]n any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.”[2]  This rule requires a plaintiff to certify that before filing the lawsuit, the plaintiff consulted at least one medical expert who concluded that there was a good faith basis to pursue the claim.[3]  Tennessee law also provides that a plaintiff’s failure to comply with this requirement results in his or her complaint being dismissed with prejudice,[4] which means that the lawsuit is over and it can never be brought again.

Continue reading All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court.

In 4-1 ruling, Tennessee Supreme Court holds that procedural obstacles keep Clarksville man’s claim out of court

By Daniel A. Horwitz

Case Background

On the evening of December 24, 2009, Richard Moreno was driving his car across the Neal Tarpley Bridge in Clarksville when a massive tree suddenly slammed on top of his car, seriously injuring him.  The tree had been planted on property owned by the State of Tennessee.  As a result, in accordance with the Tennessee Claims Commission Act,[1] Mr. Moreno filed a claim with the Claims Administration describing his injuries and providing an accounting of his medical expenses.

After filing his claim, Mr. Moreno received an order from the Claims Commissioner directing him to file a formal complaint against the State of Tennessee.  Mr. Moreno promptly complied by filing a complaint alleging that the State had negligently maintained both the bridge and the tree that fell on him.  Thereafter, the State filed an answer to Mr. Moreno’s complaint denying liability.

Notably, the State’s initial answer to Mr. Moreno’s complaint never mentioned that someone else might be responsible for the accident.  However, sixteen months later, the State amended its answer and alleged for the first time that the City of Clarksville was responsible for Mr. Moreno’s injuries because water run-off from a city storm drain had eroded the soil around the bridge, rendering the tree that fell on him unstable.

Continue reading In 4-1 ruling, Tennessee Supreme Court holds that procedural obstacles keep Clarksville man’s claim out of court

Tennessee Public Protection Act claims do not include a right to a jury trial, holds Tennessee Supreme Court.

By Daniel A. Horwitz

After being accused of sexually harassing a city clerk, Mr. David Young – then the city administrator for the City of LaFollette – was fired by a majority vote of the LaFollette City Council.  Thereafter, Mr. Young sued the City in Circuit Court for retaliatory discharge under the Tennessee Public Protection Act.[1]  In his complaint, Mr. Young requested a jury trial, which the City opposed.  Ultimately, the dispute over whether Mr. Young was entitled to a jury trial was appealed to the Tennessee Supreme Court.  After considering several disparate constitutional and statutory provisions, the court concluded that Mr. Young had neither a constitutional nor a statutory right to have his case tried by a jury, and thus, his request for a trial by jury was denied.

Initially, the City argued that the Government Tort Liability Act (GTLA) expressly precluded a right to trial by jury.  The GTLA specifically states that claims brought under its provisions shall be tried “without the intervention of a jury.”[2]  According to the court, however, the Tennessee Public Protection Act is “an independent statute which establishes its own rights and remedies apart from the procedures that apply under the GTLA.”[3]  Thus, the GTLA’s prohibition against jury trials did not apply.

Separately, the Tennessee Constitution expressly includes a right to trial by jury.  Specifically, Tenn. Const. art. I, § 6 provides that “the right of trial by jury shall remain inviolate[.]”  Notwithstanding this apparent clarity, however, the Tennessee Supreme Court has held repeatedly that art. I, § 6 only provides a narrow right to trial by jury for claims that “existed at common law.”[4]  Incongruously, in practical terms, this means that the Tennessee Constitution only guarantees a right to trial by jury for claims that existed “under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.”[5]  In this particular case, because the Tennessee Public Protection Act “was enacted by the Tennessee Legislature in 1990, almost two hundred years after the adoption of the first Tennessee Constitution,” the court explained that art. I, § 6 did not apply to Mr. Young’s retaliatory discharge claim, either.[6]

Continue reading Tennessee Public Protection Act claims do not include a right to a jury trial, holds Tennessee Supreme Court.

Tennessee Supreme Court holds that businesses may lawfully refuse to hire employees solely because they’ve previously filed for workers’ compensation.

By Daniel A. Horwitz

Can a business refuse to hire you solely because you’ve previously filed a workers’ compensation claim?  According to the Tennessee Supreme Court, the answer is yes.

In Yardley v. Hospital Housekeeping Systems, the Tennessee Supreme Court accepted a certified question of law to determine whether the Tennessee Workers’ Compensation Act prohibits employers from refusing to hire a prospective employee solely because he or she “had filed, or is likely to file, a workers’ compensation claim incurred while working for a previous employer.”  In some states, discrimination of this sort is unlawful and gives rise to a claim for “retaliatory failure to hire.”  In an opinion authored by Chief Justice Sharon Lee, however, the Tennessee Supreme Court held that under Tennessee law, this practice is legal.

In 2010, Kighwaunda Yardley, a hospital housekeeping employee, was hurt on the job and began receiving workers’ compensation benefits.  She received treatment and continued performing “light duty work” for her employer until 2012, with the expectation that when she fully recovered from her injury, she would return to her job as a housekeeping aide.

Unfortunately for Ms. Yardley, in 2012, her job was outsourced to a separate company (“the New Company”).  The New Company re-hired most of the hospital’s housekeeping staff, but it declined to hire Ms. Yardley.  An internal email sent by the New Company’s Vice President revealed that he had written that Ms. Yardley had: “been out on Workers’ Comp with the hospital long before the [New] Company’s arrival,” that her shoulder was hurting her again, and that “bringing her on board with the [New] Company would seem to be a Workers’ Comp claim waiting to happen.”  The New Company’s Vice President also stated internally that he: “would advise against hiring Ms. Yardley IF we have that option.”   After she was not hired, Ms. Yardley sued the New Company for retaliatory failure to hire.

Continue reading Tennessee Supreme Court holds that businesses may lawfully refuse to hire employees solely because they’ve previously filed for workers’ compensation.

Tennessee Supreme Court holds that insurance assignment clause was ineffective.

By Daniel A. Horwitz

A Victim was injured in a car accident, and he sought chiropractic services from the Plaintiff, Action Chiropractic Clinic.  Prior to receiving the chiropractic services, the Victim signed a contract with an “Assignment of Rights” clause.  In pertinent part, the Assignment of Rights clause stated:

For treatment provided, I hereby require my Health Insurance, Auto Insurance, or any other party involved to pay by check and mail directly to: ACTION CHIROPRACTIC

. . . .

For the medical expense benefits allowable, and otherwise payable to me under the current Insurance Policy, as payment toward the total charges for Professional Services rendered.

The Assignment of Rights clause specifically named Erie Insurance Exchange as the policy holder.  Of note, however, Erie Insurance Exchange was not the Victim’s insurance company.  Instead, Erie Insurance Exchange was the insurance provider for the driver who had injured the Victim in the car accident.

Action Chiropractic Clinic ultimately charged the Victim $5,010.00 for its chiropractic services.  Shortly thereafter, Erie Insurance Exchange entered into a settlement with the Victim and paid him $8,510.00 for all claims relating to the car accident.  However, neither the Victim nor Erie Insurance Exchange paid Action Chiropractic Clinic anything for the chiropractic services that it rendered to the Victim.  As a result, Action Chiropractic Clinic sued both the Victim and Erie Insurance Exchange seeking payment, among other things, under the “Assignment of Rights” provision. Continue reading Tennessee Supreme Court holds that insurance assignment clause was ineffective.

Jury’s verdict that CSX was liable for negligently causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial addressing damages, holds Tennessee Supreme Court.

By Daniel A. Horwitz

A massive jury verdict finding the railroad company CSX liable for causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial on the damages awarded to the employee’s widow, the Supreme Court of Tennessee has held.

Between 1962 and 2003, Winston Payne worked for CSX Transportation as a switchman, a switch foreman, and a brakeman.  Less than three years after he retired, he was diagnosed with lung cancer.  In 2007, Mr. Payne filed a lawsuit against CSX both under the Federal Employers’ Liability Act and based on a common law negligence theory, alleging that CSX had negligently exposed him to asbestos, diesel engine exhaust fumes, and radioactive materials, and further alleging that CSX had violated several statutes and regulations designed to protect the safety of railroad employees.  According to Mr. Payne, all of these failures contributed to his developing lung cancer.

In contrast, CSX contended that Mr. Payne had instead developed lung cancer due to his history of cigarette smoking.  Furthermore, CSX contended if the jury decided to award damages to Mr. Payne based upon its negligence, then any damages award should be reduced by virtue of the impact of Mr. Payne’s cigarette smoking.  Mr. Payne died from lung cancer in 2010, and his widow continued the lawsuit in his place.

During the trial, the late Mr. Payne’s legal team Continue reading Jury’s verdict that CSX was liable for negligently causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial addressing damages, holds Tennessee Supreme Court.