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.
Juror Bias Under Tennessee Law, and What to Expect in the Vanderbilt Rape Case
[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.
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:
- 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));
- 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
- 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 [email protected].
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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.
Tennessee Supreme Court Should Correct Lower Courts’ Erroneous Interpretation of its Decision in Stevens v. Hickman, Restore Sanity to Health Care Liability Act Cases
[Note: This entry was published as the feature article of the Nashville Bar Journal’s June 2015 edition. Interested readers should cite it as: Daniel A. Horwitz, The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577156.]
The Law of Unintended Consequences: Avoiding the Health Care Liability Act Booby Trap
In 2009, interest groups representing both healthcare providers and injured patients worked together “to draft and pass” several amendments to Tennessee’s medical malpractice statute that aimed to improve medical malpractice litigation for all involved.[1] According to the Tennessee Supreme Court, the goals of the 2009 amendments were “to give defendants written notice that a potential healthcare liability claim may be forthcoming,” to “facilitate early resolution of healthcare liability claims,” and to “equip[] defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.”[2] To accomplish these goals, the legislature required medical malpractice plaintiffs to satisfy six pre-suit “notice requirements,”[3] and it further required plaintiffs to file a “certificate of good faith” with their complaints in cases in which expert testimony would eventually be required.[4]
Due to the myriad technical dismissals that resulted from these reforms, however, the 2009 amendments unexpectedly turned out to be red tape with fangs for medical malpractice plaintiffs. For example, since the 2009 amendments were enacted, many plaintiffs have seen otherwise valid medical malpractice claims—now referred to as “health care liability actions”[5]—barred forever due to their failure to file the requisite “certificate of good faith” at the proper time.[6] More still have fallen prey to one or more of the pre-suit notice requirements created by the 2009 amendments, resulting in any number of Health Care Liability Act[7] (“HCLA”) complaints being dismissed due to seemingly hyper-technical errors, such as sending a letter to a defendant via FedEx rather than USPS.[8] Thus, what began as a laudable effort to improve medical malpractice litigation in Tennessee has instead created new procedural barriers that cause many cases to be dismissed on grounds that are completely unrelated to the merits of a plaintiff’s claim. Continue reading Tennessee Supreme Court Should Correct Lower Courts’ Erroneous Interpretation of its Decision in Stevens v. Hickman, Restore Sanity to Health Care Liability Act Cases
Tennessee Supreme Court holds that recorded forensic interviews in child sex cases are subject to evidentiary constraints on admitting prior consistent statements, reaffirms rule regarding offers of proof, and breathes life into cumulative error doctrine.
[Disclosure: The author filed an Amicus Curiae brief in the case discussed below on behalf of the Tennessee Association of Criminal Defense Lawyers (TACDL). The author’s brief — which primarily addressed the issue discussed in Section B, below — is accessible here.]
Forensic interviews in child sex cases generally are not admissible as substantive evidence in criminal trials, the Supreme Court of Tennessee held in a much-overlooked but vitally important criminal procedure case. According to the Court’s unanimous opinion in State v. Herron, No. W2012–01195–SC–R11–CD, 2015 WL 1361262 (Tenn. Mar. 26, 2015), forensic interviews in child sex cases are subject to the same evidentiary constraints that generally prohibit admitting “prior consistent statements” during criminal and civil trials.
Furthermore, the Tennessee Supreme Court’s opinion in Herron reaffirms the Court’s prior ruling in State v. Galmore that a defendant generally “is not required to make an offer of proof” in order to prove on appeal that a trial court’s erroneous, adverse ruling on impeachment evidence affected the outcome of his trial. See State v. Galmore, 994 S.W.2d 120, 125 (Tenn. 1999).
Additionally, by granting the defendant in Herron a new trial on the basis of the combined effect of two separate trial errors, the Court’s decision in Herron has breathed life into the oft-ignored “cumulative error doctrine,” which “embodies the idea that a multiplicity of errors—though individually harmless—may in the aggregate violate a defendant’s due process right to a fair trial.” State v. Clark, 452 S.W.3d 268, 299 (Tenn. 2014). Continue reading Tennessee Supreme Court holds that recorded forensic interviews in child sex cases are subject to evidentiary constraints on admitting prior consistent statements, reaffirms rule regarding offers of proof, and breathes life into cumulative error doctrine.
Doctors must prospectively disclose all significant medical risks to their patients—not just those risks that ultimately cause harm, holds Tennessee Supreme Court.
Under Tennessee law, a doctor who operates on a patient generally faces liability for three potential claims if something goes wrong:
- Medical battery, which means that the doctor performed a procedure that the patient did not authorize;[1]
- Medical malpractice – traditionally known as “negligence” or “medical negligence,” and now referred to as “health care liability” under Tennessee law – which means that the doctor’s performance fell below the recognized standard of acceptable professional practice in the doctor’s community;[2] and
- Lack of informed consent, which means that the doctor failed to provide sufficient information to the patient to allow him or her to evaluate the risks of the procedure that was performed.[3]
In Ike J. White, III v. David A. Beeks, M.D., the Tennessee Supreme Court addressed Continue reading Doctors must prospectively disclose all significant medical risks to their patients—not just those risks that ultimately cause harm, holds Tennessee Supreme Court.
Zero Is Not a Number For Purposes of Tennessee’s Health Care Liability Act, Says Tennessee Supreme Court
Is zero a number? The age-old question has frequently engendered debate among mathematicians, logicians and philosophers. When it comes to disclosing past violations of the “certificate of good faith” requirement of Tennessee’s Health Care Liability Act, however, the Tennessee Supreme Court has officially spoken: No, zero is not a number, and if a person has never previously violated Tenn. Code Ann. § 29-26-122, then the person has nothing to disclose.
Under Tennessee law, litigants who file claims for medical malpractice – now known as “health care liability actions” – are generally required to file a “certificate of good faith” with their complaint. See Tenn. Code Ann. § 29-26-122(a) (“In 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.”). The primary purpose of the certificate of good faith requirement is to prevent people from filing frivolous lawsuits against doctors and health care providers.[1] As a result, anyone who wants to sue a doctor or a health care provider under the Health Care Liability Act is required to Continue reading Zero Is Not a Number For Purposes of Tennessee’s Health Care Liability Act, Says Tennessee Supreme Court