TDLA Journal Winter 2025

Journal the

WINTER 2025 ISSUE 13, VOLUME 2

Tennessee Defense Lawyers Association Tennessee Defense Lawyers Association Post Office Box 282 Lookout Mtn, TN 37350

A First in Our History: A Legacy of Leadership

TDLA PAST PRESIDENT STEVE DIX WITH HIS DAUGHTER TDLA CURRENT PRESIDENT RACHEL DIX BISHOP

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RACHEL DIX BISHOP

TABLE OF CONTENTS

TDLA President

rachel.bishop@permobil.com

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HANNAH LOWE

President’s Perspective

DRI State Representative

hslowe0@tva.gov

by Rachel Dix Bishop

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DRI State Representative

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MANUELA ESPINOSA

by Hannah Lowe

Manier & Herod

mespinosa@manierherod.com

Young Lawyer’s Bootcamp 7

by Manuela Espinosa

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ANNA MILLS

Leitner Williams Dooley & Napolitan

Expanding My Horizons

TDLA Professional Development Webinars 2025

anna.mills@leitnerfirm.com

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by Anna Mills

BRENDON PASHIA Gordon Rees

bpashia@grsm.com

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MICHAEL GOODIN Zurich

michael.goodin@zurichna.com

From Clarification to Consensus

Why Tennessee Should Adopt the 2023 Amendment to Federal Rule of Evidence 702

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by Brendon Pashia

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Third-Party Litigation Funding in Tennessee

by Michael Goodin

PUBLICATIONS COMMITTEE GABI JACKSON Manier & Herod

MARY W. GADD

LAURA SENCABAUGH

TDLA Executive Director

R Chatfield Company

Editor

Contributing Editor

Graphic Design

For advertising opportunities, please email Mary Gadd at office@tdla.net or call 423.314.2285

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PRESIDENT’S PERSPECTIVE

A Legacy of Service

I

am deeply honored to serve as TDLA’s President for the 2025-2026 term, and I begin with a heartfelt thank you to Hank Spragins for his outstanding leadership in 2024-2025 and to Mary Gadd for her support and dedication as our Executive Director.

This role is a privilege, and one made more meaningful to me as the first second-generation TDLA President, following my father, Steve Dix, who served as President in 2003-2004. His legacy inspires me, and I look forward to building on the foundation that he, and our other Past Presidents, established.

RACHEL DIX BISHOP is in-house employment counsel with Permobil, Inc. in Lebanon, TN. Her litigation experience is focused in employment discrimination, harassment, retaliation, wage and hour claims, restrictive covenants, trade secret misappropriation, and general tort and contract claims. She graduated from the University of Tennessee College of Law, summa cum laude in 2016. She may be reached at rachel.bishop@ permobil.com

Most recently, I served as TDLA’s Secretary/Treasurer, fully expecting to support President-Elect Chris Frulla through his term. However, during TDLA’s Annual Meeting in Nashville (August 27-29, 2025), Chris received the call that he had been appointed as Circuit Court Judge for the 30th Judicial District in Shelby County by Governor Bill Lee. In lieu of moving forward with accepting the Presidency during the Annual Meeting, Chris notified TDLA leadership, and the members of the Nominating Committee who were present convened on the spot to update the 2025-2026 nominations. This resulted in my being called to lead a year earlier than expected.

Chris’s selfless act allowed me to receive the ceremonial passing of the Presidential buffalo tie and scarf at the Annual Meeting with my family and lifelong mentor, Kitty Boyte, present – a moment I won’t forget. While Chris’s name will not officially appear in TDLA’s records as a Past President, his commitment, integrity, and servant leadership are indelibly etched in our history. TDLA is thrilled for one of its own to ascend to the Bench, and we are confident he will serve the State with distinction.

In addition to the excitement that Chris’s judicial appointment brought, other highlights from TDLA’s joint Annual Meeting with the Kentucky Defense Counsel (“KDC”) include our 2025 Award Winners and announcement of the 2025-2026 Board of Directors.

AWARD WINNERS:

• Defense Lawyer of the Year – KITTY BOYTE of Peterson White • Rising Star – GRACE BENITONE Burnett of Rainey, Kizer, Reviere & Bell • Nathan E. Shelby Emerging Leader – GABI JACKSON of Manier & Herod

BOARD OF DIRECTORS:

• President – RACHEL DIX BISHOP of Permobil, Inc. • President-Elect – ADRIENNE FAZIO of Manier & Herod • Secretary/Treasurer – A.J. PARKER of Rainey, Kizer, Reviere & Bell • Immediate Past President – HANK SPRAGINS of Hickman, Goza & Spragins

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Winter 2025 | Tennessee Defense Lawyers Association | Issue 13, Volume 2

BOARD OF DIRECTORS President............ Rachel Dix Bishop

Permobil, Inc. rachel.bishop@permobil.com

• Director I – ERICA GREEN of Kramer Rayson • Director I – DEREK MULLINS of Baker Donelson

President Elect.. Adrienne Fazio

Manier & Herod afazio@manierherod.com

• Director I – GABI JACKSON of Manier & Herod • West TN Representative – CHRISTINA HADAWAY of Gordon Rees Scully Mansukhani • Middle TN Representative – MARK NOLAN of Batson Nolan • East TN Representative – KEN WARD of Trammell, Adkins & Ward

Secretary/........... A.J. Parker Treasurer Rainey, Kizer, Reviere & Bell ajparker@raineykizer.com

Immediate Past President............ Hal S. “Hank” Spragins Hickman, Goza & Spragins hspragins@hickmanlaw.com

Each is well-deserving, esteemed, and meaningful to TDLA’s future.

We also enjoyed a record number of sponsors who participated at our Annual Meeting. TDLA is thankful for our sponsors and could not provide the same level of programming or resources it does without them.

TDLA continues to set the standard among State and Local Defense Organizations (“SLDOs”). This was clear at the DRI Annual Meeting in Chicago this October, which I attended alongside our DRI State Representative, Hannah Lowe, and Executive Director, Mary Gadd. Tennessee was among the best-represented states, and our members’ leadership in DRI shone brightly.

I enjoyed the exchange of ideas with other SLDO leaders and have fresh inspiration for NextGen training, amicus impact, and member engagement opportunities for the year ahead.

DRI State Rep..... Hannah Lowe TVA hslowe0@tva.gov

Director I............. Erica Green

Farmers Insurance erica.green1@farmersinsurance.com

Derek Mullins Baker Donelson dmullins@bakerdonelson.com

Gabi Jackson Manier & Herod gjackson@manierherod.com

Divisional Directors............. Mark Nolan

Batson Nolan dmnolan@batsonnolan.com

As we close 2025, we stand on the cusp of a milestone. TDLA will be celebrating its 60th Anniversary in 2026! From humble beginnings in 1966 to becoming a statewide voice for civil defense, our association has shaped Tennessee law, elevated professional standards, and fostered lifelong friendships along the way. We have big plans to celebrate, so please stay tuned for more information about our 2026 Annual Meeting.

In the interim, we are excited to announce several upcoming events: the return of TDLA’s Trial School, which will be held January 23-24, 2026 in Nashville, Tennessee; the Southeastern Women Litigators Conference (“SEWL”), for which TDLA Board Member Christina Hadaway and TDLA Member Mickala Lewis serve on the Planning Committee, will be held March 5-6, 2026 in Savannah, Georgia; and TDLA’s Joint Summer Conference with the Alabama Defense Lawyers Association (“ADLA”) will be held June 17-21, 2026 at the Perdido Beach Resort in Orange Beach, Alabama.

TDLA is like family to me. To our active members – thank you for your participation and passion, and I challenge you to bring a colleague to our next event. To our passive members – please let me know how TDLA can better serve you. From webinar topics to speakers at conferences, to the timing of our meetings or cost of membership, I welcome your feedback. To any non-member reading this Journal – I’d love to welcome you to our family.

Please reach out so I can share more about the professional and personal benefits of TDLA membership. I can be contacted via email at rachel.bishop@ permobil.com.

For more information about TDLA events, amicus activities, or membership, please feel free to contact Mary Gadd at office@tdla.net.

Thank you for your trust. I look forward to serving you, learning from you, and celebrating 60 years of TDLA together!

Rachel Dix Bishop President

Christina Hadaway Gordon Rees chadaway@grsm.com

Ken Ward Trammell, Adkins & Ward kenward@tawpc.com

PAST PRESIDENTS Percy McDonald, Jr.* (1966-1967) William E. Herod* (1967-1968) Edward P.A. Smith* (1968-1969) Mac E. Robinson* (1969-1968) James E. Leary* (1970-1971) William H. Woods* (1971-1972) Woodrow Norvell* (1972-1973) Hugh C. Gracey (1973-1974) Henry T. V. Miller (1974-1975) Paul R. Leitner* (1975-1976) J. G. Lackey, Jr.* (1976-1977) R. Hunter Cagle* (1977-1978) E. Blake Moore (1978-1979) Richard D. Taylor* (1979-1980) E. Riley Anderson* (1980-1981) C. Arnold Cameron* (1981-1982) James H. Camp* (1982-1983) James E. Moffitt (1983-1984) W. Ferber Tracy (1984-1985) James M. Doran, Jr. (1985-1986)

George S. Petkoff (1986-1987) W. Ritchie Pigue (1987-1988) L. Anderson Gaylon III* (1988-1989) J. Minor Tait, Jr.* (1989-1990) Terry L. Hill (1990-1991) Joseph C. Wilson, III (1991-1992) Gary K. Smith (1992-1993) Michael J. Philbin* (1993-1994) Thomas A. Williams (1994-1995) Kenneth R. Shuttleworth (1995-1996) Michael E. Evans (1996-1997) Brian H. Trammell* (1997-1998) Dale H. Tuttle (1998-1999) Katherine “Kitty” Boyte (1999-2000) Gary S. Napolitan (2000-2001) Joseph R. White (2001-2002) Gary R. Wilkinson (2002-2003) Steve A. Dix (2003-2004) Rebecca Brake Murray (2004-2005) David J. Deming (2005-2006)

Raymond S. Leathers (2006-2007) Robert G. Norred (2007-2008) C. Douglas Dooley (2008-2009) Stephen P. Miller (2009-2010) Melanie M. Stewart (2010-2011) Robert A. Crawford (2011-2012) John W. Barringer, Jr. (2012-2013) Bradford D. Box (2013-2014) James H. Tucker, Jr. (2014-2015) Catherine C. Dugan (2015-2016) Barret S. Albritton (2016-2017) Michael Mansfield (2017-2018) Lynn V. Lawyer (2018-2019) Rockforde D. “Rocky” King (2019-2020) Heather H. Douglas (2020-2021) Dawn Carson (2021-2022) Hannah Lowe (2022-2023) Michael Haynie (2023-2024) Hank Spragins (2024-2025) * Deceased

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DRI STATE REPRESENTATIVE

DRI Partners with You!

W

elcome to all new DRI members who took advantage of the DRI free membership program and joined DRI in September 2025.

I hope you will explore the many benefits of DRI membership and remain a member after the oneyear free membership ends. If you have any questions about how you can get involved with DRI, please feel free to reach out!

In October 2025, TDLA leadership traveled to Chicago for the DRI Annual Meeting and Leadership Conference.

TDLA President, Rachel Bishop, Executive Director, Mary Gadd, and I enjoyed the opportunity to share ideas with leadership from other State and Local Defense Organization (SLDO) around the United States, Canada, and beyond.

Highlights of the Annual Meeting included hearing from keynote speaker, investigative journalist and historian Bob Woodward, and listening to an interesting panel (including TDLA member, Michael Goodin) discussion on strategies to address third-party litigation funding.

We participated in DRI for Life activities, including a lovely sunrise walk beside Lake Michigan and a coffee run to the Starbucks roastery on Michigan Avenue. We donated books for charity for the DRI Cares initiative and enjoyed visiting the Shedd Aquarium for a networking reception, where we got to encounter some very cute penguins and beluga whales! As always, we came away inspired with ideas for how to advance the defense bar here in Tennessee.

Be on the lookout for information coming soon about DRI’s New Lawyer November program, Hannah Lowe is TDLA’s DRI State Representative, a Past President of TDLA, and counsel with the Tennessee Valley Authority. A native of Birmingham, England, she now resides in Knoxville, Tennessee, and is a 2010 graduate of the University of Tennessee College of Law. She may be reached at hslowe0@tva.gov.

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which will offer some great deals for membership for newly licensed lawyers. I first joined DRI as a new lawyer (within my first 5 years of practice) and have benefitted from the connections I have made with other DRI members over the years. If you have new lawyers in your firm, consider investing in their career by encouraging them to join TDLA and DRI. DRI remains the gold standard for CLE programming for defense practitioners. There are still some DRI seminars planned for the rest of 2025, including the Asbestos Medicine Seminar in Tampa, FL on November 12-14, 2025, and the popular Insurance Coverage and Practice Seminar and Professional Liability Seminar in New York on December 3-5, 2025. Make sure you take some time to check out the DRI seminars planned for 2026: https://www.dri.org/docs/default-source/webdocs/ other/2026/2026-calendar.pdf. In particular, DRI will be bringing its Construction Law Seminar, Litigation Skills Seminar, and Medical Liability and Health Care Law Seminar to Nashville on March 25-27, 2026, so if you have been looking for an opportunity to attend a DRI seminar, consider attending one of these great seminars when they come to our state next year.

In May 2026, TDLA leadership will travel to Boston, MA for the DRI regional meeting, which will give us another opportunity to share ideas with leaders from other SLDOs across the US and Canada.

Save the date for the 2026 DRI Annual Meeting in Washington DC, October 21-23, 2026. More information to come regarding speakers and networking events.

TDLA is proud to be a part of DRI, and we hope our members will take advantage of the numerous opportunities to get involved in both TDLA and DRI. If you have any questions about DRI and how to make the most of your membership, please feel free to give me a call (865-385-4724) or send me an email: hslowe0@tva.gov Best, Hannah Lowe

Winter 2025 | Tennessee Defense Lawyers Association | Issue 13, Volume 2

YOUNG LAWYERS

Young Lawyer Bootcamp

MAINTAINING BALANCE FOR NEW LAWYERS

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ttending the TDLA Young Lawyer Bootcamp was an incredibly enriching experience, especially as a first-year participant still finding my footing in the legal profession. The program created a supportive and candid space to talk about some of the challenges that come with starting out in law. One of the most impactful parts for me was our discussion on burnout and mental health in the legal field, a topic that often gets overlooked in day-to-day practice. Hearing other young lawyers’ share their personal experiences and strategies for maintaining balance made me feel more encouraged to prioritize my own well-being, without feeling guilty about it. It was reassuring to know that these struggles are common and that the profession is becoming more open to addressing them.

We also had an engaging conversation about the generational gap within law firms, which really resonated with me as someone early in my career.

It was interesting to explore how differences in communication styles, expectations, and values can sometimes lead to misunderstandings, but also how those differences can strengthen a team when approached with curiosity and respect. The discussion helped me better understand how to navigate these dynamics and find my voice as a young professional, while still learning from the experience and wisdom of others.

MANUELA ESPINOSA is an Associate at Manier & Herod in Nashville, Tennessee, practicing in Workers’ Compensation. Ms. Espinosa earned her Juris Doctor from Belmont University College of Law. Prior to law school, she received a Bachelors in English and Political Science from Florida State University in 2021, where she graduated with Honors in English.

She is eager to continue learning from experienced practitioners and will be attending TDLA’s Trial School in January 2026. She can be contacted at mespinosa@manierherod.com.

Beyond the bootcamp sessions, the overall TDLA/KDC Conference was an excellent opportunity to connect with practitioners from across Tennessee and Kentucky. I also appreciated the chance to meet and learn from more seasoned attorneys who were generous with their advice and encouragement. The conference struck the perfect balance between professional development, meaningful conversations, and genuine community. I left feeling inspired, supported, and excited to continue growing within the TDLA. I’m already looking forward to next year’s conference and the opportunity to keep building these connections.

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YOUNG LAWYERS

Expanding My Horizons:

TDLA’S PROFESSIONAL DEVELOPMENT WEBINARS 2025

I

f you are reading this, I most likely do not need to sell TDLA’s usefulness to your legal career.

It makes me think—are we really taking full advantage of all the opportunities our annual membership gives us? Throughout the past year, TDLA has offered periodic free continuing education webinars to its members. These webinars are generally during a lunch period (or a bit after for those of us in the Eastern time zone) and offer more than just one free hour of needed CLE credit. One extra benefit in my opinion was the small connections it built after seeing the same names and faces on each zoom webinar. When I attended my first TDLA Annual Conference this year, I was pleasantly surprised to see familiar faces that I had not yet met in person. But having seen some of the same names and faces over and over on various zoom calls made it a tad bit easier to reach out and introduce myself at the conference, where I essentially knew about two other people).

ANNA MILLS is an associate located in Leitner, Williams, Dooley and Napolitan’s Chattanooga office whose practice areas are primarily general liability, juvenile law, wills and trusts, and workers’ compensation law. She attended Mississippi State University for her undergraduate degree and went on to graduate with her Juris Doctor from Mercer Law School. She may be reached at anna.mills@leinterfirm.com.

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These webinars have offered timely and practical instruction on emerging litigation issues, ethics, trial techniques, and professional development—all at no cost to participants. The live-webinar format has made it easy for attorneys across the state to attend from anywhere, eliminating travel expenses and time constraints. Each session is carefully

designed to deliver focused, practiceready content, such as a whole hour on Workers’ Compensation practice tips. Approved for Tennessee general CLE credit, these webinars also meet the state’s attendancetracking requirements through Zoom, ensuring a seamless way for members to fulfill their professional obligations. Whether aimed at young attorneys or seasoned litigators, TDLA’s webinars have supported ongoing professional growth while removing the financial barriers that often limit access to quality education—helping our defense lawyers statewide stay informed, connected, and prepared for the evolving demands of their practice.

SHARPENING SKILLS AND BUILDING CONFIDENCE: INSIDE THE YOUNG LAWYER BOOTCAMP

This year, I had the unique experience of attending my first TDLA Joint Annual Conference as a member, while also helping plan and execute the Young Lawyer Bootcamp program on the Wednesday of the conference. The Young Lawyer Bootcamp is a fullday program of seminars focused solely on issues most relevant to lawyers in the early stages of their careers, regardless of age. This year, we covered five separate topics presented by different groups of experienced attorneys, including several past and current YLD

Winter 2025 | Tennessee Defense Lawyers Association | Issue 13, Volume 2

presidents. We also had the privilege of hearing from Chancellor Mansfield, who shared valuable trial tips both as a seasoned trial attorney and from the perspective of the bench. These insights and open conversations provided a wonderful way to kick off training and our annual conference with TDLA. The smaller group setting fostered closer connections between speakers and attendees and created a comfortable environment for open dialogue between young lawyers and seminar leaders.

The topics covered during this year’s Young Lawyers Bootcamp included Mental Health and Burnout Prevention, Navigating Generational Gaps in Law Firms, Billing Effectively and Ethically, Networking as New Lawyers and Building Your Book, and Evidence and Trial Tips. I’ll admit, as I proposed each of these topics to the board, I was somewhat biased in my opinion of them—they were subjects I personally wanted to learn more about. However, I was not prepared for the level of expertise and down-to-earth insight each speaker brought to their session. I left with not only new knowledge and practical tips to implement in my own practice, but also a sense of camaraderie with my

fellow attendees and speakers. Many of the sessions were structured as open group discussions, allowing participants of all experience levels to share ideas and challenges we’ve encountered in our legal careers so far.

I was impressed by how easy it was for the planning team to find volunteers willing to arrive early, prepare thirty minutes to an hour of presentation material, and speak to our young lawyers. This truly reflects the generosity and engagement of TDLA’s members and leadership. Personally, my favorite session of the bootcamp was Navigating Generational Gaps in Law Firms. I walked away with new ideas on how to better connect with my coworkers and partners, both in the workplace and beyond. The differences in how each generation approaches work—and the practice of law in particular—can be significant. However, I was reminded that these differences can be a real strength if we choose to recognize and work with them rather than against them. Although I’m beginning to age out of being a true participant in the young lawyers’ events, I plan to stay involved in any way I can, as I’ve truly valued the lessons I’ve learned and the connections I’ve made.

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EXPERT TESTIMONY

From Clarification to Consensus: WHY TENNESSEE SHOULD ADOPT THE 2023 AMENDMENT TO FEDERAL RULE OF EVIDENCE 702

CLARIFYING THE STANDARD FOR EXPERT TESTIMONY Few decisions in trial practice are as consequential as whether a jury hears an “expert” and what that expert is allowed to say. Yet courts have long struggled to draw a clear line between what constitutes reliable testimony and what merely carries weight, often allowing testimonial evidence that does not meet the rigorous standards set by Federal Rule of Evidence 702 (“Rule 702”). This can lead to costly, confusing, and sometimes unjust outcomes for parties on both sides of the “V” and litigants on both sides of the bar.

That amendment to Rule 702 from December 1, 20231 was designed precisely to address this issue. While it did not change the law, the amendment clarified the process for admitting expert testimony, emphasizing that it is the trial judge, not the jury, that must decide whether expert testimony meets the stringent criteria laid out in Rule 702.

Under the clarified rule, the proponent of expert testimony must prove, by a preponderance of the evidence, or that it is more likely than not, that: 1.

The expert’s knowledge will help the trier of fact understand the evidence or determine a fact in issue;

2. The testimony is based on sufficient facts or data; 3. The testimony is the product of reliable principles and methods; and 4. The expert’s opinion reflects a reliable application of those principles and methods to the facts of the case. 2

BRENDON PASHIA is an Associate in the Gordon, Rees, Skully and Mansukhani law firm’s Nashville office.

Brendon’s practice primarily focuses on commercial litigation and other general liability matters for clients across the United States. Mr. Pashia may be reached at bpashia@grsm.com.

As the Advisory Committee on Evidence Rules pointed out, the Rule 702 change was not a shift in the law but a reaffirmation of the proper gatekeeping role of judges. Even before the amendment took effect, federal courts began recognizing its clarifying purpose. For instance, the United States Court of Appeals for the Fourth Circuit cited the then-proposed rule to reverse a verdict founded on unsupported expert testimony, emphasizing “the indispensable 1 See, e.g., H.R. Doc. No. 118-33, 118th Cong., 1st sess. (2023); Fed. R. Evid. 702 Advisory Committee’s Note to 2023 Amendment; United States Supreme Court, Amendments to Federal Rules of Evidence: Communication From the Chief Justice, the Supreme Court of the United States, Transmitting Amendments to the Federal Rules of Evidence That Have Been Adopted By the Court, Pursuant to 28 U.S.C. 2072, U.S. G.P.O (2023), https://www.govinfo.gov/content/pkg/CDOC-118hdoc33/pdf/CDOC118hdoc33.pdf.

2 Fed. R. Evid. 702 (2023).

nature of district courts’ Rule 702 gatekeeping function.”3 The amendment reinforces the idea that expert testimony must be based on more than credentials or confidence. Expert testimony must rest on sound, reliable methods.

With Rule 702 (2023), courts are not only required to actively ensure the reliability of expert testimony but are also paving the way for states to revise their own rules to enhance consistency and trust in expert evidence.

WHY TENNESSEE SHOULD ACT NOW

Tennessee is well-positioned to take the next step toward adopting the December 2023 amendment to Rule 702. Through various organizations, including the Tennessee Bar Association (“TBA”), Lawyers for Civil Justice (“LCJ”), DRI, and the Tennessee Defense Lawyers Association (“TDLA”), various active members, executives, and task 3 Sardis v. Overhead Door Corp., 10 F.4th 268, 283–84 (4th Cir. 2021).

forces are preparing and poised to submit a white paper to the TBA’s Executive Committee and Litigation Section. And plans are in the works for the TBA to then present it to the Tennessee Supreme Court.

The aforementioned coalition is also preparing to advocate before the Court in support of legislative ratification, a process that is typically routine and procedural.

By acting soon, Tennessee can align its rule with federal practice and avoid inconsistency between state and federal courts in the State. The purpose of adoption is not to make expert testimony harder to admit, or to side either with plaintiffs/ prosecution or the defense. Rather, adoption of Rule 702 (2023) is all about making the standard clearer.

As national guidance explains, states should confirm the following: (1) judges, not juries, determine whether an expert’s opinion meets the rule’s reliability standards; (2) the proponent bears the burden of establishing sufficiency and reliability by a “more likely than

not” standard; and (3) experts may not express confidence in opinions unsupported by facts or methods that meet those standards.

THE DELAWARE SUPREME COURT LEADS THE WAY: CLARIFYING RULE 702 WITHOUT AMENDMENT

Via the matter of In re Zantac (Ranitidine) Litigation, the Delaware Supreme Court became the first state high court to apply the 2023 Federal Rule 702 amendment as binding jurisprudence, even though Delaware had not yet amended its own rule.4 The court emphasized that the federal changes merely clarified existing standards and rejected the trial court’s “weight” rather than “admissibility” approach, and confirmed that reliability remains a threshold question for judges, not juries. 5 The court further said that “because the Advisory Committee has explained that the 2023 4 In Re Zantac (Ranitidine) Litigation, 342 A.3d 1131, 1145-46 (Del. 2025).

5 Zantac, 342 A.3d at 1149.

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amendments are not substantive and instead only clarified the existing federal standard, we view the committee’s recent guidance as important material to consider in reviewing our trial courts’ decisions and providing guidance to litigants.”6 The court also noted that “[n]othing in the recent amendments conflicts with our existing precedent, and the commentary accompanying those amendments offers additional guidance as trial courts confront the difficult task of evaluating the admissibility of an expert opinion.”7 The Zantac decision demonstrates that even without adopting the new language, a court can bring about this change, as the language merely serves to clarify the existing standard. It is fitting that the “First State” in the country leads the way on this issue by creating a binding rule without formal amendment to its companion Rule 702.

IMPORTANT LESSONS FROM THE FEDERAL COURTS Recent appellate decisions at the federal level demonstrate how courts are implementing—or failing to implement—the clarified rule, underscoring why Tennessee’s adoption is necessary.

The United States Court of Appeals for the Sixth Circuit, which of course includes Tennessee’s federal courts, expressly held the amended Rule 702 is the governing standard.8 The court affirmed exclusion of a materials-science expert whose methods lacked demonstrable reliability, explaining that the 6 Id. at 1146.

7 Id. 8 Hill v. Med. Device Bus. Servs., Inc., 2025 WL 1950300, at **4-5 (6th Cir. July 16, 2025).

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proponent bears the burden of proof under a preponderance standard for each element of Rule 702.9 Federal courts in Tennessee are already applying the clarified text; state courts, and namely the Tennessee Supreme Court, should do the same for consistency and predictability.

The United States Court of Appeals for the Ninth Circuit also recently enforced amended Rule 702(c) and (d) by affirming exclusion of a plaintiff’s expert who relied on undisclosed posthoc rationalizations.10 The court emphasized that each conclusion, not merely the methodology, must be proven dependable by a preponderance of the evidence.11 In a United States District Court for the District of Arizona12 case, the court excluded an engineering expert’s causation opinions for lack of empirical testing and failure to apply methods reliably to the facts.13 Lawyers for Civil Justice submitted an amicus brief to the Ninth Circuit seeking that the Court uphold the District of Arizona’ decision that an expert’s “differential etiology” assessment did not satisfy FRE 702(c) or 702(d) when employed to identify a subject fire’s cause.14 Overall, the Jensen lower court decision reinforces that speculation 9 Id. 10 Engilis v. Monsanto Co., 151 F.4th 1040, 1048-50 (9th Cir. 2025).

11 Id. at 1050.

12 Jensen v. Camco Mfg., LLC¸ 2024 WL 4566781, at *7 (D. Ariz. Oct. 24, 2024).

13 Of note, Jensen is currently on appeal to the Ninth Circuit on November 22, 2024, and scheduled for oral argument in November 2025.

14 Brief of Lawyers for Civil Justice, as Amicus Curiae, in support of DefendantAppellee Camco Manufacturing, LLC, Jensen v.

Camco Mfg., LLC, No. 24-7092 (July 21, 2025), on appeal from Jensen, 2024 WL 4566781 at *1.

cannot substitute supported by data.

for

analysis

The Seventh Circuit, in a toxicexposure lawsuit on appeal from the United States District Court for the Northern District of Illinois, 15 is also expected to weigh and address whether Rule 702(d) requires proof that each conclusion rests on a reliable application of methodology.

The upcoming decision may further strengthen the nationwide move toward strict preponderance-based admissibility.

Meanwhile, although unrelated to products liability or more “scientific” expertise matters, the Fifth Circuit in a 2025 case titled Nairne v.

Landry, cited amply to the amended Rule 702(b) in affirming exclusion of unreliable statistical expert testimony in a voting-rights case.16 The decision shows that the clarified rule applies across all subject areas, with all kinds of experts, in various kinds of litigation.

Together, these federal cases highlight a clear national trend – admissibility of expert testimony hinges on proven reliability, not mere reputation. Across the eleven circuits, courts are consistently enforcing Rule 702’s “more likely than not” standard before allowing expert testimony to reach the jury.

Tennessee stands at the threshold of joining this movement. By adopting the 2023 amended Rule 702, Tennessee’s judiciary can lead with clarity and consistency, setting 15 Zurbriggen v. Twin Hill Acquisition Co., 338 F. Supp. 3d 875 (N.D. Ill. 2018), on appeal as Zurbriggen v. Twin Hill Acquisition Co., No. 25-1963 (June 4, 2025). Of note, the LCJ also filed an amicus brief in Zurbriggen on October 17, 2025.

16 Nairne v. Landry, 151 F.4th 666, 697-99 (5th Cir. 2025).

Winter 2025 | Tennessee Defense Lawyers Association | Issue 13, Volume 2

a standard that reflects the strength and fairness of our legal system.

From Memphis to Nashville to Eastern Tennessee, aligning with this clarified rule would ensure Tennessee’s courts maintain the delicate balance between expertise and accountability, keeping pace with the nation’s most reliable jurisprudence.

THE “BACKSLIDE” IN THE FOURTH CIRCUIT FROM THE MATTER OF SOMMERVILLE V. UNION CARBIDE CORP. (2025) Not all courts have followed the clarified standard. The United States Court of Appeals for the Fourth Circuit reversed a district court that had excluded a plaintiff’s air-dispersion The Fourth Circuit’s expert.17 appellate majority concluded the lower court over-scrutinized the expert’s methodology as it “was not a true critique of [the expert’s] methodology”, but a veiled attack on credibility.18 The Fourth Circuit, in turn, treated reliability disputes as jury questions.19 Notably, a petition for rehearing en banc is pending before the Court in Somerville.

However, the case nonetheless should serve as a warning: without clear state rules, courts can revert to pre-amendment habits that blur the judge’s gatekeeping role.

WHY THIS MATTERS FOR TENNESSEE States across the country are moving to align their evidence rules with the amended federal standard.

For example, Arizona, Delaware, Kentucky, Louisiana, Michigan, 17 Sommerville v. Union Carbide Corp., 149 F.4th 408, 413 (4th Cir. 2025) 18 Id. at 423.

19 Id. at 423-24.

Oklahoma, and Ohio have already adopted parallel amendments.

Missouri, New Jersey, and at least a handful of other states are currently considering similar updates. Only Maryland has deferred rule reform.

For Tennessee, the advantages to adopting the 2023 amendment to Rule 702 are practical and immediate: •

Uniformity: State and federal courts will apply the same burden and analysis.

•

Predictability: Litigants will know what must be proven and when.

•

Integrity: Unreliable “expert” opinions will no longer reach juries under a mistaken “weight versus admissibility” rationale.

•

Efficiency: Clearer rules mean fewer contested hearings and cleaner appellate records.

•

Public confidence: Clarified standards promote trust in the judicial process.

To put it simply, admitting unsupported expert testimony can mislead juries, undermine civil justice, and erode public confidence in our courts. Clarification is not about restricting expert testimony; it is about ensuring every opinion heard in Tennessee courts is grounded in the reliable methods and factual foundations our rules already demand.

If adopted ideally in 2026, Tennessee would join the growing number of jurisdictions ensuring that Rule 702’s clarified burden of proof (by a preponderance of the evidence) guides expert admissibility decisions. Both plaintiff and defense bar practitioners, as well as criminal law practitioners, will benefit from the consistency and transparency of standards that make trials fairer and more efficient.

CONCLUSION

Rule 702 has always required reliability; the 2023 amendment simply clarified that the burden of proof rests with the proponent and that admissibility must be demonstrated by a preponderance of the evidence. Adopting this language state-wide in Tennessee would strengthen the integrity of our courts, align our practices with federal standards, and ensure that juries hear only expert opinions based on reliable principles and sound data.

In essence, clarification is not change, it is restoration. It would return Tennessee courts to the original gatekeeping role envisioned

by Daubert and reinforced by the federal amendment.

THE ROAD AHEAD

The TDLA and TBA working group are preparing a white paper modeled on successful efforts in New Jersey. That document will include examples from federal and state court cases, amicus templates, and, ideally, a coordinated presentation to the Tennessee Supreme Court next year.

13

WORKERS COMPENSATION

Third-Party Litigation Funding in Tennessee

T

hird-party litigation funding (“TPLF”) has become embedded in civil litigation in the United States, including in Tennessee. TPLF allows a third-party investor to provide funds to a litigant or law firm in exchange for a share of any recovery.1 This practice, largely unregulated, raises significant questions for courts, practitioners, and policymakers in Tennessee and beyond.

I. WHAT IS TPLF?

MICHAEL GOODIN is the Managing Attorney for Zurich’s Tennessee and Georgia Staff Legal Offices, leading a team of legal professionals devoted to providing the highest standard of legal representation to Zurich’s insured. Prior to this role, Mr. Goodin worked with Zurich’s Claims Judicial and Legislative Affairs group to fight social inflation by developing and implementing judicial and legislative improvements. Mr. Goodin can be reached at michael.goodin@zurichna.com.

14

TPLF arrangements generally fall into three categories: consumer, commercial, and medical funding.

Consumer funding is most common in personal injury litigation and provides individual plaintiffs with cash advances during the pendency of their cases, which plaintiffs use for living expenses. 2 These advances are typically non-recourse, requiring repayment only if the plaintiff prevails. Commercial funding usually involves much larger investments, and the money is advanced to law firms or corporate entities. These commercial funding arrangements may be secured by a single case or by a portfolio of cases. 3 Medical funding occurs when health care providers provide treatment to plaintiffs on a lien basis, then sell those liens to funders during litigation.4 Because it is non-recourse, TPLF is often exempt from state usury laws. 5 As a result, consumer funding

loans often carry high effective interest rates and impose significant financial burdens for plaintiffs.6 Commercial funding, meanwhile, tends to involve more sophisticated parties and bespoke agreements, sometimes giving funders the right to influence or even control litigation strategy.7 Medical funding leads to inflated damages by encouraging higher medical charges, as providers both have a direct financial interest in the outcome of the underlying litigation and are not bound by insurance or Medicare rate controls.

II. REGULATION OF TPLF

TPLF is largely unregulated at both the state and national level.8 The regulation that does exist is a patchwork of state laws and local rules. Some states have adopted consumer protection statutes, a few have explicitly made the existence of TPLF discoverable, and a handful of states require plaintiffs to automatically disclose the existence of TPLF to an opposing party.

Tennessee has enacted the Litigation Financing Consumer Protection Act (“LFCFA”), which falls into the category of “consumer protection” regulation of TPLF. The LFCFA does not require disclosure of the existence of TPLF to an opposing party. Instead, it regulates the contents of contracts, requires funders to register with the state, and limits allowable fees and costs funders may impose on

Winter 2025 | Tennessee Defense Lawyers Association | Issue 13, Volume 2

plaintiffs.9 The LFCFA does not apply to commercial or medical funders, leaving these sectors unregulated in Tennessee.

III. TPLF’S IMPACT ON LITIGATION

Empirical data on TPLF’s prevalence is limited. The United States Government Accountability Office has highlighted the lack of transparency in the industry, noting that even major funders cannot estimate total market size or returns.10 Westfleet Advisors reports that the commercial TPLF market reached $16.1 billion in assets under management nationally in 2024, with portfolio funding comprising the majority of new investments.11 In Tennessee, twenty-six consumer litigation funders are currently registered as active in the State.12 Many funders target Tennessee plaintiffs and attorneys with their advertising. The prevalence of commercial and medical funding remains opaque, as there are no reporting requirements or centralized databases for these arrangements. Like their consumer funding counterparts, commercial13 and medical litigation funders14 advertise and operate in the State

of Tennessee, but unlike consumer funders, they are not subject to any regulation.

The effects of TPLF on litigation can be substantial. A common thread among all forms of TPLF is a lack of transparency. Agreements are not disclosed to courts or opposing parties. This opacity can impede discovery, complicate settlement negotiations, and mask conflicts of interest, particularly when medical experts or attorneys have financial ties to funders.

Consumer funding may complicate settlements by increasing the financial pressure on plaintiffs to hold out for larger awards. For example, applying the limitations of Tennessee’s LFCFA, a $25,000 advance to an individual plaintiff can accrue $11,500 per year in fees and interest, with the balance growing to $59,500 over three years. 15 Unlike a medical lien, opposing counsel are often completely unaware of this large financial burden that may dictate the course of settlement negotiations.

Commercial and medical funding may have an even more direct effect on the outcome of a case.

Commercial funders may acquire

contractual rights to direct litigation strategy, veto settlements, or access confidential materials, raising concerns about the integrity of the judicial process.16 Medical funding can drive up case values by inflating medical bills, with providers charging rates far above those accepted by insurers or Medicare.17 Medical funding also results in potential bias of treating physicians, who have provided care on a lien basis and will only collect if the plaintiff prevails in the underlying litigation.

IV. ADDRESSING TPLF IN TENNESSEE

A handful of states and federal courts now require automatic disclosure of TPLF arrangements18 or affirmatively allow for discovery of TPLF.19 Tennessee, however, does neither. Although Tennessee does not expressly allow for discovery of TPLF, it also does not prohibit such discovery requests.

Until the Tennessee General Assembly fully addresses TPLF through an affirmative disclosure requirement, defense attorneys should ask about TPLF through interrogatories or requests for production. The discovery should be tailored to seek information continued on page 16

15

that may significantly impact the context of the case and should always include requests for the existence of funding and the funding agreement.

Additionally, litigants may consider requesting information regarding the sale of medical accounts receivable, communications between plaintiffs’ attorneys and funders, and any documents that were provided to a funder.20 Compared to the sometimes-costly discovery process, a requirement for automatic disclosure of TPLF is a less burdensome and more effective way to ensure TPLF is used responsibly in Tennessee. Mandatory disclosure would allow courts and litigants to identify non-parties with a financial stake in case outcomes. Mandatory disclosure would also facilitate the early detection of frivolous or abusive claims, particularly in cases where funder-driven incentives distort litigation strategy. There is little downside to requiring disclosure of TPLF, because automatic disclosure does not necessarily mean that the existence of TPLF is admissible at trial. Instead, disclosure is a tool to allow better assessment of the true interested parties and motivations of those parties.

16

Reuters, August 18, 2015

V. CONCLUSION

TPLF is firmly entrenched in Tennessee’s legal landscape.

Consumer arrangements are subject to modest regulation, but no mandatory disclosure requirement.

Commercial and medical funding remain unregulated and unmonitored.

The lack of transparency poses risks to fairness, efficiency, and trust in civil justice. Adoption of a disclosure requirement, either by rule or statute, would be a prudent step to ensure that all parties, courts, and the public remain informed of the true interests driving litigation in Tennessee. Until the Tennessee General Assembly further addresses TPLF, diligent defense attorneys should utilize the discovery process to request information regarding the existence of TPLF in their cases. i.

ii.

THIRD-PARTY LITIGATION FINANCING: Market Characteristics, Data, and Trends, GAO-23-105210, December 2022, p. 1.

Third-Party Litigation Financing: Market Characteristics, Data, and Trends | U.S. GAO Id. at 12.

iii. The Westfleet Insider: 2024 Litigation Finance Market Report iv.

v.

GAO-23-105210, supra note 1, at fn. 65.

vi. Anthony J. Sebok, An Empirical Investigation of Third Party Consumer Litigation Funding, 104 Cornell L. Rev. 1133, *1142 (2019). “An Empirical Investigation of Third Party Consumer Litigant Funding” by Ronen Avraham and Anthony Sebok (cornell.edu) vii. See LCJ Rules Suggestion on Disclosure of TPLF Contracts, (Sept. 3, 2025). viii. GAO-23-105210, supra note i, at pp. 23-26. ix. Tenn. Code Ann. §§ 47-16-101 et seq. x.

GAO-23-105210, supra note i, at pp. 14-15.

xi. Westfleet Insider, supra note iii, at 5. xii. Tennessee Secretary of State, Business Services and Charitable Organizations xiii. See, e.g., https://usclaims.com/attorneys/ xiv. See, e.g., https://www.oasisfinancial.com/ for-attorneys/ xv. See Tenn. Code Ann. §§ 47-16-101 et seq. xvi. LCJ Rules Suggestion, supra note vii. xvii. See Alison Frankel and Jessica Dye, supra note iv. xviii.

See, e.g., Mont. Code Ann. § 31-4-108 (2023). xix. See, e.g., IN Code § 24-12-11-5 (2024) xx.

For additional resources, see https:// askabouttplf.com/ and https://www.dri. org/center/about/public-policy/third-partylitigation-funding

See Alison Frankel and Jessica Dye, Special Report: Investors profit by funding surgery for desperate women patients,

Winter 2025 | Tennessee Defense Lawyers Association | Issue 13, Volume 2

annual meeting DEFENSE LAWYER OF THE YEAR

Kitty Boyte

with Hank Spragins

EMERGING LEADER AWARD

Gabi Jackson

with Hank Spragins

PRESIDENTS AWARD

Hank Spragins

presented by Chris Frulla

RISING STAR AWARD

Grace Benitone Burnett with Hank Spragins

New lawyer boot camP

corporate representative depositions

young lawyer boot camP

defending motor vehicle accidents

annual meeting

magna sponsored lawn bowling

tdla for life walk

dine around

PAST PRESIDENTS

PAST AND CURRENT PRESIDENTS

PASSING THE BUFFALO SCARF

Kitty Boyte and Rocky King

Steve Dix and daughter, Rachel Dix Bishop

Hank Spragins and Rachel Dix Bishop

PAST AND CURRENT PRESIDENTS

PAST PRESIDENT

Kitty Boyte and Steve Dix, Past Presidents, flanking current President Rachel Dix Bishop

Kitty Boyte and her son, Miller McKee

Tennessee Defense Lawyers Association

A subscription to the TDLA Newsletter is included in the annual dues.

TDLA Membership Application

Please note: Individual Membership is not transferable.

I am a defense attorney and first time member of TDLA and I am a member of DRI.* In-House Counsel (as defined below,** please check if applicable) Young Lawyer (admitte d to the bar for ten years or less) I am not a member of DRI, but I am interested in a DRI membership.

Male

Female Name First time admitted to the Bar in in

Title

state/province

Firm Address

month/day/year

.

bar number

Number of years licensed to practice in Tennessee.

City

State/Province

Zip/Post Code

< 5 years

Country

Telephone

5 – 15 years Fax

Over 15 years

Email Primary area(s) of practice In order to maximize the educational and networking opportunities for its members, TDLA has established sections which focus more narrowly on specific practice areas. The list of these appears below. TDLA believes that belonging to one or more sections greatly enhances the value of your membership in TDLA and we encourage you to join those that interest you.

Membership in a section is free of charge, requires no additional commitment or responsibility on your part, and you may belong to as many sections as you wish. Please indicate which sections you wish to join by marking the corresponding box(es) below.

Employment & Workers Compensation Section

Optio nal

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1–2

Professional Negligence & Healthcare Section 3–10

TDLA is committed to the principle of diversity in its membership and leadership. Accordingly, applicants are invited to indicate which one of the following may best describe them:

11–20 African American Native American

21–50

Torts Section

51–99

100+

Asian American Caucasian Date of birth

Young Lawyers Section

Hispanic Other

month/day/year

Referred by

Name of referring TDLA Member attorney (if applicable)

I devote 51% or more of my professional time to the representation of business, insurance companies or their insureds, associations or governmental entities in civil litigation. I have read the above and hereby make application for individual membership.

Signature

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All applications must be signed and dated.

Please return application to: TDLA PO Box 282, Lookout Mtn, TN 37350 P: 423.314.2285 E: office@tdla.net | w w w.tdla.net * DRI = Defense Research Institute ** In-house counsel is defined as a licensed attorney who is employed exclusively by a corporate or other private sector organization, for the purpose of providing legal representation and counsel only to that corporation, its affiliates and subsidiaries.

25 21

TENNESSEE CHAPTER The following attorneys are recognized for

Excellence in the field of Alternative Dispute Resolution NAME

BASED IN

PHONE

NAME

BASED IN

PHONE

Adrienne Anderson

Knoxville

(865) 249-8011



Gayle Malone

Nashville

(615) 651-6775



Robert L. Arrington

Kingsport

(423) 723-0402



H. Richard Marcus

Chattanooga

(423) 757-0414



Gail Vaughn Ashworth

Nashville

(615) 254-1877



Minton P. Mayer

Memphis

(901) 312-1640



Kevin Baltz

Nashville

(615) 726-5566



David W. Noblit

Chattanooga

(423) 265-0214



Allen S. Blair

Memphis

(901) 820-4347



Robert P. Noell

Knoxville

(865) 215-1023



John T. Blankenship

Franklin

(615) 627-9390



Joshua G. Offutt

Nashville

(615) 802-8912



Hon. George H. Brown Jr.

Memphis

(901) 523-2930



Jerry O. Potter

Memphis

(901) 525-1455



John D. Burleson

Jackson

(713) 426-8114



Michael L. Russell

Nashville

(615) 815-0472



John R. Cannon Jr.

Memphis

(901) 328-8227



Sarah Y. Sheppeard

Knoxville

(865) 546-4646



Fred Collins

Milan

(731) 686-8355



Warren M. Smith

Nashville

(615) 256-1280



Paul T. DeHoff

Murfreesboro

(615) 631-9729



John R. Tarpley

Nashville

(615) 259-1366



Mary Beth Hagan

Murfreesboro

(615) 546-4070



C. Scott Taylor

Knoxville

(865) 546-8030



Paul D. Hogan Jr.

Knoxville

(865) 546-2200



Mark C. Travis

Cookeville

(931) 252-9123



Hon. Janice M. Holder (Ret.)

Memphis

(901) 527-3765



William D. Vines III

Knoxville

(865) 637-3531



Dana C. Holloway

Knoxville

(865) 643-8720



Howard H. Vogel

Knoxville

(865) 546-7190



Barry L. Howard

Brentwood

(888) 305-3553



Jack Waddey

Nashville

(615) 973-2630



Loys A. “Trey” Jordan III

Memphis

(901) 526-0606



Jeffrey M. Ward

Greeneville

(423) 639-6811



Hayden Lait

Memphis

(901) 230-4990



Ronald D. Wells

Chattanooga

(423) 756-5051



Mark S. LeVan

Brentwood

(615) 843-0308



Kreis White

Brentwood

(615) 309-0400



James H. London

Knoxville

(865) 637-0203



CALENDAR

CALENDAR

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