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Journal the


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

TDLA Annual Meeting & Awards Dinner, September 1-3, 2021


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Community Involvement

by Matt Keenan





Shook, Hardy & Bacon


BRIE ALLAMAN STEWART Spears, Moore, Rebman & Williams


MICHAEL L. HAYNIE Manier & Herod

Workers' Compensation: Legislation



by Michael L. Haynie


Elliott Davis

Walk the Line – Balancing Scope, Access to Discovery, and Engagement Economics with the Financial Expert by Austin Starkley


Traffic citation to tortfeasor may extend Statute of Limitations to 2 years by Brad Fraser

UPDATES DRI State Representative


“I’m speaking.” Your Witnesses Have Power. Are They Using It?

by Brie Allaman Stewart, Esq.



by Heather Hardt Douglas

Electronic Medical Record Audit Trail Discovery: Observations and Objection


TDLA President Manier & Herod


TDLA Spring Meeting


TDLA Committees


BRAD FRASER Leitner, Williams, Dooley & Napolitan


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Community Involvement

HEATHER HARDT DOUGLAS is a principal with Manier & Herod practicing in their Nashville office in the area of workers’ compensation defense. Ms. Douglas received her Bachelor of Arts, magna cum laude, from the University of Tennessee, Knoxville. She obtained her Juris Doctor from the University of Tennessee College of Law, where she served as Student Materials Editor for the Tennessee Law Review. She may be reached at


insight on how to stay connected and address the changing work environment. Members have been sharing those ideas through committee correspondence, newsletters and webinars. In the coming months, we will continue to provide CLEs and resources to help our members as the profession continues to evolve with the times. And we will strive to make certain that our events, offerings, and membership reflect the organization’s commitment to being an inclusive community where all are welcome and all are heard.

TDLA committee in your field of practice. If you have not ever been to an in-person meeting or it has been longer than you would like to admit since you have been to one, then please make plans to attend our annual Fall meeting in Nashville, September 1st - 3rd. One of the many things learned over the past year is that there is truly no substitute for in-person collaboration and socializing. We plan to do our best to make up for lost time in both and hope you can join us. Until then, please stay safe and be kind to one another.

There has never been a better time to be involved with TDLA. Encourage your colleagues who are not yet members to join us. Consider becoming part of the

Heather H. Douglas, Esq., TDLA President

hat a difference a year makes! With widely available vaccines came the opportunity for us to have our Spring meeting in-person last month in Sandestin, Florida. Seeing our members faceto-face was certainly energizing. Many thanks to our Executive Director, Mary Gadd, and Conference Chair, Adrienne Fazio, for organizing such an amazing event. TDLA has come through the challenges of working in a pandemic. We have gained


Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

BOARD OF DIRECTORS President................ Heather Hardt Douglas Manier & Herod

President Elect

Dawn Davis Carson Hickman, Goza & Spragins

Secretary/............... Hannah Lowe Treasurer Trammell, Adkins & Ward

Immediate Past President....................Rockforde D. "Rocky" King, Esq. Egerton, McAfee, Armistead & Davis

DRI State Representative...... Catherine C. (Cate) Dugan Peterson White LLP

Vice-Presidents...... Sean W. Martin Carr Allison

Chris Frulla Rainey, Kizer, Reviere & Bell, PC

Nathan Shelby Rainey, Kizer, Reviere & Bell, PC

Directors................. Michael Haynie Manier & Herod

Hal S. “Hank” Spragins Hickman, Goza & Spragins

Ken Ward Trammell, Adkins and Ward

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)


* Deceased


DRI Update

L Since October 2020, Lynn Lawyer has represented Tennessee Defense Lawyers Association as the DRI State Representative. She is a past president of TDLA and a trial attorney with Nationwide insurance group and the law offices of Gary Wilkinson. She may be reached at

ike the rest of the world, DRI is opening back up and getting back to in-person events. There were two in-person seminars in the month of June. As of July, all DRI seminars have resumed as in-person events in accordance with recommended safety protocols and protections. The decision to transition back to in-person events has involved a very comprehensive review process and several data points were considered by the Executive Committee. Personally, I know that I am ecstatic that DRI has found a way to bring in-person events back while maintaining the highest safety protocols and protections. Of course, DRI will continue to develop and provide virtual content through webinars, on-demand programs, and other virtual events for the benefit its members. As always, DRI is committed to meeting the needs of ALL of its members. The last year was difficult for an organization that thrives on engagement, connection, and networking. DRI was able to adapt and continue to provide support


to its members in a time of need. With 2020 behind us, DRI is committed to being as strong of an organization as ever. DRI offers so many benefits from networking, publication opportunities, substantive law committees where you can learn and thrive within your practice area, and so many education opportunities. If you have never attended a DRI seminar, I encourage you to join DRI and participate-you will not regret the decision to invest in your career. The curriculums are amazing, the speakers are knowledgeable, and the opportunity to learn and network is unparallel. There are several webinar opportunities throughout the summer months that are available online. There are also some great in-person seminars coming up as well. The DRI website has all the up to date information on all these amazing opportunities. One of my personal favorite seminars, the DRI Annual Meeting, will be in person in Boston, MA this year from October 13-16, 2021. Join DRI and make your plans to attend

Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

as it is an event you do not want to miss. There are blockbuster speakers lined up including Kristin Beck, retired United States Navy Seal; Brian David Johnson, Author, Arizona State University professor,

Futurist; and Renee DiResta, Author, Stanford Internet Observatory, Social Networks. I am so excited to connect with new friends and reconnect with old ones!

Please reach out if you have any questions. I would love to help you become a member in DRI and get involved!! Lynn Lawyer YOU HAVE QUESTIONS. WE PROVIDE ANSWERS.

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“I’m speaking.”

Your Witnesses Have Power. Are They Using It? Of late, it seems the most important asset for witnesses is the “E”― exercising control. The following article will explain why and how.


MATT KEENAN is a partner at Shook, Hardy & Bacon in Kansas City, Missouri. His area of focus is the preparation and defense of a number of corporate witnesses in national product liability cases. Matt has prepared and defended 51 company witnesses for depositions in five MDL proceedings over the past 30 years. He may be reached at His article previously was published in DRI’s For the Defense.


ill your witnesses fall victim to the barrage of questions designed to make them look bad or will you help them to find and use their voice tactfully?

For witnesses getting ready for a deposition, I developed a simple roadmap to use with each one. It goes like this: PLEASE. Prepare Listen Exercise control Accept the obvious Stay in your area Emotion is OK


Document management systems have replaced witnesses as the storytellers. These systems, which track, manage, and store documents, not only document the decisions and the rationale for those decisions, but when matched with contemporaneous e-mails, serve as the editorial content to those same decisions. Whether it’s design history files, regulatory submissions, clinical trial documents, or post-marketing safety surveillance, these document management systems allow outsiders to connect the dots on decisions made many years earlier. This reality has shifted the focus of witness depositions into something new and far more nefarious―using the opportunity to push confirming narratives. Open-ended questions, like “tell me what happened,” went the way of the dodo bird, replaced by reptilian themes and stock questions vetted by the plaintiff’s steering committee and asked of every witness. And with the sharply directed content, questions are paired with an accusatory tone that appears lifted from a Hollywood screenwriter’s playbook. For many witnesses, this new re-

ality means that depositions today are less a search for the truth and more of a firing line. Questions are shifting from leading to argumentative. Court-imposed limits on depositions, which are commonly seven hours, add to the pressure to score sound bites. Counsel feels the need to create jury-friendly clips of witnesses cast in a bad light. The limited attention span of jurors contributes to this sound-bite driven nature of depositions. Plaintiffs’ attorneys look to tell their story in two minutes or less and make an impression with their jurors that jumps off the screen. The net effect is to force attorneys to condense their case and infuse it with pop and sizzle. Juxtaposed against these realities, courts have tied the hands of the defense to objections to form. The simple reality is that witnesses have to protect themselves. And they have the ability to do just that, provided you teach them to use it.


Witnesses are allowed to finish their answers. Indeed, they are obligated to do so, as they are sworn to be truthful. Yet, interrupting witnesses is one of the most common things I see now. Plaintiffs’ counsel,

Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

it seems, is simply taking its cue from the public at large. Stopping conversations, particularly by men of women, is becoming commonplace. In two Democratic primary presidential debates last summer, for instance, the candidates interrupted each other seventy-one times, most often men over women. In the first presidential debate, according to one news outlet, President Trump interrupted then-Democratic nominee Joe Biden 128 times. In the second debate, there were fifty-one interruptions, with President Trump interrupting twice as many times as Joe Biden. In Supreme Court arguments, among the Justices, there is significant gender disparity in both interruptions and time used for questions. You probably don’t need me to tell you who gets the short end of the time. Attorneys may think they are compensated for barging into the conversation, creating an incentive to interrupt. The more aggressive, the more rewarded. Experts note that men not only talk more, they are often louder. Further, what compounds this trend is that often the most important of any witness’ answer is the finale―i.e., getting to the point. Compounding the situation, the court reporter cannot record two people talking at once. The attorney knows this. The witness doesn’t. And when the court reporter pleads for support, the witness feels badly. Furthermore, the deposition process does not lend itself to empowerment. Witnesses feel at the mercy of the process. They are often selected, if not compelled, to appear. They are told what to bring, and when and where to appear. I handle this in three ways.

First, I explain that they will be interrupted; often I give them illustrations and often from other cases I have handled. Second, I walk my witnesses through the importance of finishing their answer. This goes against the grain for most witnesses who may feel deferential to the questioner. Third, if the attorney cuts them off, they should use their judgment and invoke the “may I finish” rejoinder. This can take some preparation. It is not an invitation to argument. They need guardrails. But they can and often should insist on completing their answer.

BE CAREFUL OF THE OPTICS Witnesses must balance the importance of finishing their answer with the risk of creating bad optics that may hurt their position. Beth Devlin, an experienced jury consultant and founding partner of EDGE Litigation Consulting LLC, has seen it all. She strikes this note of caution.

“Yes, interrupting is obnoxious for a lawyer to do. Nevertheless, more importantly, if the witness chooses to fight back or get into a debate with the lawyer, that strategy will always backfire on the witness. Jurors give lawyers some latitude to be obnoxious (they expect that to some degree when dealing with an adverse witness). However, they do not expect this of witnesses; and when witnesses act this way, they wind up looking defensive with jurors and lose credibility. She adds It is especially hard for a witness to maintain a cool and calm demeanor over the course of a deposition, but that’s when it’s more important than ever as that is when the opposing counsel is looking for

a ‘gotcha’ moment when the witness is beginning to grow weary after hours of testimony. However, the power to the witness comes when the witness completely does not engage with the behavior of that lawyer. In other words, if a lawyer is acting like a bully and the witness simply maintains a cool head and answers in a straightforward, earnest and polite manner, the disparity will be apparent and jurors will be more inclined to see the bullying behavior for what it is. The key for the witness is (1) know that the lawyer might use it as a tactic; but, critically, (2) do not engage in that tactic. Still, Witnesses Have Power and Should Use It Even when not interrupted, witnesses cannot be compelled to answer questions that are wrong, nonsensical, or silly. Yes, to be sure, the first line of defense is for counsel to protect the witness and, if necessary, to seek judicial assistance. In this increasing era of Zoom depositions, judges can join a deposition and watch not only the witness but plaintiffs’ counsel, as well. Without question, that option is most desirable. Still, bad questions come in many shapes and sizes, and many can and should be deflected by disclaiming expertise, personal knowledge or, in many cases, because the document predates their employment. Ms. Devlin recommends a firm but polite “that’s not correct” or “I disagree” and throw (nicely) the ball back across the table. “Sometimes, less is more, and a pithy response can be powerful for a witness.” It is my experience, however, that witnesses, particularly experts, can

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reshape questions to achieve the desired information while allowing everyone to move on. Illustrations of rejoinders that witnesses have used include the following: “I like to use my own terminology and would say it this way …” “I can’t answer that yes or no for these reasons …” “I shouldn’t speculate and so I would just say I don’t know.” “That was not my responsibility at the company.” “I don’t think it’s fair to put on the witness’ shoulders the burden of reshaping the questions,” Ms. Devlin adds. Putting a witness in that position can be stressful and take away from their


ability to do their main job, which is LISTEN to the question being asked, THINK internally about the best way to answer that question, and then ANSWER in a way that is clear, complete and concise, and also in a non-aggressive but assertive and confident tone. In my opinion, attempts to “fix” the question in the answer often can serve as a way of helping the opposing counsel, because it gives the opposing counsel a ‘read’ into how that witness is thinking about the issue, particularly when that witness is an expert. How counsel handle this issue may depend on the confidence of the witness and their experience with the process.


Despite all the changes in the world of litigation, it is fair to say that one thing remains the same: people do not like bullies. Plaintiffs’ counsel with a penchant to cut off witnesses will see their goodwill diminish. Yes, as Beth Devlin notes, plaintiffs’ counsel receive a longer leash than do corporate witnesses. However, defense counsel, whose client may be portrayed as the bad guy in the courtroom, may welcome the notion that maybe there is someone else who might be the villain. In any event, one thing is an absolute certainty―the era of obtaining sworn testimony for the purpose of just understanding the facts of the case is long gone. Counsel, and their witnesses, should be prepared for this new reality. Matt Keenan

Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

What is DRI? DRI is the leading organization of civil defense attorneys and in-house counsel. Its purpose is to enhance the skills and professionalism of defense attorneys.

1 2 3

Why Join DRI? People and Practice Our members enjoy access to industry experts and a global network of peers that support their efforts in building successful legal careers. We understand the importance of relationships and are dedicated to facilitating connections that enhance our members’ professional and personal growth.

Education and Advocacy Our innovative educational programs are designed to advance the skills of our members and help position them as leaders in today’s legal marketplace. Our engaging CLE seminars, trial skills development programs, business development workshops, and vast online on-demand library are just a few examples of our unceasing commitment to education.

The Business of Law Running a successful firm, legal team, or claims department requires business acumen and strategic thinking. Our resources provide members with the insight and guidance they need to be successful in an increasingly competitive legal business environment.

DRI is the best investment you can make in yourself and your career. For more information and to join, visit


Electronic Medical Record Audit Trail Discovery: Observations and Objections

D BRIE ALLAMAN STEWART, ESQ. is a stakeholder at Spears, Moore, Rebman and Williams in Chattanooga. Her practice centers primarily in the areas of professional liability and long term care litigation. She may be reached at


iscovery requests for “audit trails,” or the metadata associated with electronic medical records, have been made with increasing frequency in health care liability actions in the last few years. These are burdensome discovery requests, which frequently require hospital administrators to access hundreds, if not thousands, of pages of data across multiple medical records systems. It has not been the custom to require claimants to make any type of showing of need for these discovery requests, but Tennessee Circuit Courts have begun adopting an emerging federal majority view which presumes that metadata, including audit trails, is not discoverable absent a particularized showing of necessity. It would

behoove defense counsel to resist blanket requests for all medical audit trail data in health care liability actions and call for the adoption of the federal standard in discovery disputes related to audit trail production. Since 2009, health care providers have been required to maintain audit trail metadata on electronic patient care records pursuant to the Heath Information Technology for Economic and Clinical Health Act (“HITECH”).1 Audit trails are a form of metadata, which is defined as “secondary information not apparent on the face of the documents that ‘describes an electronic document’s characteristics, origins, and usage.’”2 Specifically, audit trails associated with medical records have been described as follows:

Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

The audit trail is a document that shows the sequence of events related to the use of and access to an individual patient’s EHR [“electronic health records”]. For instance, the audit trail will reveal who accessed a particular patient’s records, when, and where the health care provider accessed the record. It also shows what the provider did with the records—e.g., simply reviewed them, prepared a note, or edited a note. The audit trail may also show how long the records were opened by a particular provider. Each time a patient’s EHR is opened, regardless of the reason, the audit trail documents this detail. The audit trail cannot be erased and all events related to the access of a patient’s EHR are permanently documented in the audit trail. Providers cannot hide anything they do with the medical record. No one can escape the audit trail. 3 It is a common misconception that medical audit trails, which are required by the HITECH Act’s revisions to the Health Insurance Portability and Accountability Act (“HIPAA”), are subject to production at the request of the patient. Although HIPAA requires the production of the “designated record set,”4 the audit trail is not a part of the “designated record set and is not subject to production pursuant to a patient’s request under HIPAA. 5 If audit trails were required to be produced pursuant to a HIPAA records request, it would obviate the body of federal jurisprudence which specifically holds that medical record audit trails are not subject to production without a showing of necessity by the party requesting the information. Federal cases in Tennessee District Courts and the Sixth Circuit have acknowledged the burdensomeness of metadata discovery requests, and have recognized the “emerging judicial trend that metadata should not be produced, absent some showing of

necessity.”6 That is, there is a “general presumption against the production of metadata” and “[i]t is likely to remain the exceptional situation in which metadata must be produced.”7 Several federal courts, including the Middle District of Tennessee, have adopted a Default Standard for Discovery of Electronic Documents “under which the need for metadata must be shown” before it is subject to production.8 Given this presumption against the production of metadata, claimants in Tennessee health care liability claims have been required to make a “particularized showing of necessity” before audit trails are subject to production.9 It is not enough to simply state that audit trail data is necessary to allow the claimant to have “a complete picture of his care” or to determine whether there has been any alteration of the medical records. Instead, there must be a showing that the audit trail is likely to yield relevant information which is not contained in the medical records themselves.10 Such a showing has normally included some demonstration that the information the audit trail contains is material and necessary.11 Audit trail information is typically only required “if the authenticity of a document is questioned or if establishing who received what information and when is important to the claims or defenses of a party.”12 In addition to arguing that there should be a showing of necessity before audit trail information is subject to production, it has also been our practice to assert that information in audit trails evidencing quality improvement activities, including access by personnel performing quality improvement functions, is subject to redaction from any audit trail information produced in discovery. Tennessee’s peer review statute, T.C.A. § 68-11-272, protects from “direct or indirect means of discovery”13 any and

all “records” of a quality improvement committee (“QIC”).14 Despite the fact that “committee” is included in the term, no proof of committee involvement is required to bring an activity under the protection of the peer review statute. Instead, a “QIC” is defined as “one (1) or more individuals employed by a healthcare organization performing the types of functions listed” in T.C.A. § 6811-272(b)(4).15 In addition “records” are defined as “any and all . . . documentation generated by or in connection with activities of a QIC.”16 Therefore, any and all documentation of any quality improvement activity or function by any individual employed by a health care provider is protected from discovery. The applicability of Tennessee’s peer review privilege has been rejected by Tennessee federal courts because privilege issues are determined by federal law in that setting.17 However, it is clear that Tennessee’s peer review privilege applies in Tennessee state courts. Given the broad scope of the privilege, we have successfully argued that audit trail information which documents quality improvement activities, including records access by quality improvement personnel, is subject to redaction. In addition, access made in anticipation of litigation by risk management personnel is also subject to redaction pursuant to the work product doctrine.18 Of course, the need for redaction of audit trail data pursuant to these privileges adds to the burdensomeness of any requests, but it is necessary to preserve these privileges. Therefore, there is an emerging trend against the discoverability of metadata, including electronic medial record audit trail data. Health care liability defendants have successfully argued that there must be a showing of necessity before audit trail information is discoverable. If more

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continued from previous page defense counsel take this position, it may be possible to build a greater consensus across Tennessee which adopts this trend. This would save health care liability defendants the significant time and expense associated with audit trail production. Brie Allaman Stewart, Esq.

1. Schick, After HITECH: HIPAA Revisions Mandate Stronger Privacy and Security Safeguards, 37 J.C. & U.L. 403, 404 (2011). 2. 31 N.Y.S.3d 397, note 31 N.Y.S. 397. 3. Id. quoting 2011 Health L. Handbook § 10:9 “The positive effect of EHRs on reducing health care provider liability—the audit trail.”. 4. 45 C.F.R. § 164.524(a). 5. Osborne v. Billings Clinic, 2015 WL 14122626 (D. Mont. March 26, 2015). 6. John B. v. Goetz, 879 F. Supp. 2d 787, 879 (M.D. Tenn. 2010). 7. Williams v. Sprint/United Management Co., 230 F.R.D. 640, 652 (D. Kan. 2005). 8. Goetz, 879 F. Supp. 2d at 879. 9. Such Orders have been entered in the Circuit Court of Hamilton County, Tennessee in the cases of Dale v. Rebound, LLC d/b/a Healthsouth Chattanooga Rehabilitation


Hospital, No. 19-C-1031; Spight v. Chattanooga-Hamilton County Hospital Authority et al, No. 19-C-554. 10. Hall v. Flannery, 2015 WL 2008345 at *1 (S.D. Ill. May 1, 2015) (allowing discovery of the audit trail after Plaintiff showed that “two allegedly ‘different’ charts” were received, and there was an allegation that “the medical records have been improperly altered by Defendants.”); Gilbert v. Highland Hosp., 52 Misc. 3d 555, 558-559 (N.Y.S. 3d 2016) quoting Aguilar v. Immigrations & Customs Enf’t Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 354 (S.D.N.Y. 2008)(holding that, although “system metadata is typically not relevant and, therefore, not disclosed, but . . . ‘if the authenticity of a document is questioned or if establishing who received what information and when is important to the claims or defenses of a party’” then production may be appropriate, and allowing production of the audit trail to show access by a treating physician where there was an allegation that the physician did not see or treat the patient, and the medical records did not “indicate whether an Emergency Department Attending Physician ever reviewed the Plaintiff’s medical records and plan of care prior to her discharge.”) Isaacs v. Dartmouth Hitchcock Med. Ctr., 2012 WL 2088821, at *2 (D.N.H. June 8, 2012), aff’d (Jan. 5, 2015) (denying a request for audit trail information because “the plaintiff failed to “explain how his request… amount[ed] to a request for the ‘accounting of disclosures of [his] protected health information’ provided for by 42 U.S.C. § 17935(e) and 45 C.F.R. § 164.528” and “ha[d] not shown… how he is suffering irreparable harm from [defendant]’s alleged failure to provide [the] information.”).

11. Gilbert, 52 Misc. at 558. 12. Id. at 559 quoting Aguilar v. Immigrations & Customs Enf’t Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 354 (S.D.N.Y. 2008). 13. T.C.A. § 68-11-272(c). 14. Id. 15. T.C.A. § 68-11-272(b)(4). 16. T.C.A. § 68-11-272(b)(5). 17.” Levans v. Saint Francis Hosp.-Bartlett, Inc., 2015 WL 11017962 at *7 (W.D. Tenn. Sep. 18, 2015); but see Allen v. Woodford, 2007 WL 309945 at *8 (E.D. Cal. Jan. 30, 2007) (finding that “there is no recognized federal common law regarding privilege as applied to peer review… [so] the Federal Courts are to… apply the state privilege law in the federal forum”). 18. See Arnold v. City of Chattanooga, 19 S.W. 3d 779, 783 (Tenn. Ct. App. 1999) (recognizing that actions by parties made in anticipation of litigation are protected from discovery by the work product doctrine.).

Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

TENNESSEE CHAPTER The following attorneys are recognized for

Excellence in the field of Alternative Dispute Resolution CALENDAR








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Workers' Compensation: Legislation

MICHAEL L. HAYNIE is a principal with Manier & Herod in Nashville. For over 20 years, he has specialized in representing employers and insurers in workers’ compensation claims. He may be reached at


he most recent legislative session produced a broad array of changes to the workers’ compensation law. Substantively, not much changed regarding workers’ compensation benefits and administration of workers’ compensation claims set forth in Part 2, Claims and Payment of Compensation. However, there were significant changes to Part 4, Insurance, and Part 9, Construction Services Providers.



After a brief hiatus due to COVID-19, courts may once again award attorney’s fees when an employer wrongfully denies a claim, as provided by Tennessee Code Annotated, section 50-6-226(d) (1)(B). Since its enactment, section 50-6-226(d)(1)(B) has consistently had a sunset provision with the last date being June 30, 2020. Because of an abridged legislative session during the height of COVID-19 in 2020, the June 30, 2020 sunset date was not amended. Consequently, section 50-6-226(d)(1) (B) does not apply in cases with a date of injury from July 1, 2020 through June 30, 2021. Effectively reviving the attorney’s fees provision, Public Chapter 152 provides that section 50-6-226(d)(1)(B) applies to injuries occurring “between July 1, 2021, and June 30, 2023.” Take note that section 50-6-226(d)(1)(B) still does not apply to injuries occurring on July 1, 2020 through June 30, 2021.


Public Chapter 286 amends Tennessee Code Annotated, section 50-6-208(j) (1), which establishes eligibility criteria for vocational assistance provided through the Subsequent Injury and Vocational Recovery Fund, Next Step Program. Specifically, the amendment removes the requirement that an em-

ployee receive “all compensation permitted under § 50-6-207(3).” Without that requirement, an employee will be eligible for vocational assistance if the employee receives an original award and has not returned to work with any employer because of a work injury, or has returned to work at a wage or salary that is less that the pre-injury wage or salary. Public Chapter 286 also provides that hearings to resolve disputes relating to future medical treatment under a settlement agreement or compensation hearing order shall be conducted pursuant to Tennessee Code Annotated, section 50-6-239(c). Accordingly, the Tennessee Rules of Evidence and Rules of Civil Procedure, as well as specific rules governing hearings in the Court of Workers’ Compensation Claims, apply. Furthermore, workers’ compensation judges are now authorized to conduct judicial settlement conferences. Public Chapter 286 also continues the Next Step Program until June 30, 2025. The program was set to expire on June 30, 2021. Public Chapter 286 applies to injuries occurring on or after April 30, 2021.


Tennessee Code Annotated, section

Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

7-51-209 provides a rebuttable presumption that an emergency rescue worker who suffers from an “infectious disease” shell be presumed to have a disability suffered in the line of duty. Public Chapter 142 expands the definition of “infectious disease” as used in that statute to include certain viruses. Per the amendment, “infectious disease” now includes a virus or other communicable disease for which a pandemic has been declared by the World Health Organization or the federal centers for disease control and prevention and the governor has declared a state of emergency pursuant to section 58-2-107. Public Chapter 142 is extremely limited in scope, as it only applies to an “emergency rescue worker,” which is defined as “any person employed full-time by the state or any political subdivision of the state, including any county having a metropolitan form of government as a firefighter, paramedic, emergency medical technician or emergency medical technician advanced” and does not include “any person employed by a public hospital or any person employed by a subsidiary thereof.” The amendment applies to injuries occurring on or after April 13, 2021.


Public Chapter 88 revises the Construction Services Provider statute to transfer administration of the program, including the exemption registry, from the Secretary of State to the Bureau of Workers’ Compensation, effective January 1, 2022. Public Chapter 90 amends Tennessee

Code Annotated, section 50-6-914(b) (1), which generally provides that a general contractor, intermediate contractor, or subcontractor is not liable for injuries sustained by a construction services provider listed on the registry. The amendment adds that a general contractor, intermediate contractor, or subcontractor is not liable for workers’ compensation benefits to a construction services provider for injuries occurring from December 9, 2019 through September 9, 2021 if the following conditions are met: (i) During the time period of December 9, 2017, through December 9, 2021, the construction services provider provided the general contractor, intermediate contractor, or subcontractor a notice of registration from the secretary of state showing exemption from § 50-6-902(a); (ii) The general contractor, intermediate contractor, or subcontractor did not obtain workers’ compensation insurance to cover the construction service provider providing the notice of registration; and (iii) The construction services provider’s exemption registry registration was revoked on December 9, 2019, pursuant to § 50-6-908(b)(1 )(C), and the construction services provider failed to inform the general contractor, the intermediate contractor, or the subcontractor of the revocation The amendment applies to injuries occurring on or after April 7, 2021.


mation, certificates of insurance, and other records, as well as to question privately an employer, owner, operator, agent, worker, or employee, upon receipt of sufficient information “to give reasonable cause that an employer may be in violation of the insurance requirements.” This is in addition to authority to issue subpoenas compelling attendance of witnesses at administrative hearings and for the production of “books, documents, or other tangible things that may be relevant, or reasonably calculated, to lead to the discovery or relevant information held by the employer or third parties, including subcontractors, accountants and tax preparers, insurance agents, and banking institutions.” The amendment also provides for significant penalties for non-compliance with insurance requirements. The penalties may be collected via a distress warrant, and they “follow an owner of a business, or member of an LLC, that is closed, liquidated, or dissolved, when that owner or member owns or operates any part of a subsequent business that is carried on and controlled in substantially the same manner as the penalized employer.” Furthermore, the Bureau of Workers’ Compensation may seek an injunction in the chancery court of Davidson County to prohibit an employer from operating its business until the employer has complied with administrative orders relating to insurance. Public Chapter 189 is effective July 1, 2021. The new provisions are set to expire on July 1, 2024. Michael L. Haynie

Public Chapter 189 significantly revises Part 4 of Chapter 50, which generally applies to workers’ compensation insurance. Of note, the administrator or administrator’s designee is authorized to inspect and investigate the places of employment, business records, including complete payroll and tax infor-



Walk the Line – Balancing Scope, Access to Discovery, and Engagement Economics with the Financial Expert


AUSTIN STARKEY, CPA, CFE, CFF is a Consulting Manager at Elliott Davis in Chattanooga. His practice consists of forensic, valuation and litigation support. He may be reached at

very matter in litigation is unique, and every attorney approaches a case differently. As a litigation attorney engaging a financial expert, you manage the scope of that engagement with the expert, the discovery information provided to the expert, and the time and cost of that engagement on behalf of your client. This article addresses the balance and variation of these factors from the perspective of the financial expert via experiences collaborating with attorneys on numerous cases.

The discussion begins with the engagement letter from the financial expert, as it formalizes the relationship and stipulates the scope of services to be provided. In some cases, retaining counsel may prefer a narrow scope limited to specific analyses or limited review of documents to help them manage the economics of the engagement or to proceed on a more exploratory basis as new information is discovered. The resources required to litigate a case can be significant even before involving a financial expert, and it is understandable for attorneys to closely monitor the cost of an engagement in the form of a narrow scope for the financial expert. However, an engagement letter with a narrow scope from the outset can result in a form of tunnel vision. It occurs when the financial expert is unable to reach certain conclusions due to the limitations imposed in the engagement scope. If the scope requires the expert to analyze only certain accounts, certain discovery evidence, or other aspects of a case, the findings would relate to those scope items and may exclude or fail to identify other areas of concern. Further, the initial scope can often set the tone for follow-up such


Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

as requests for new information in discovery, potentially delaying eventual requests and contributing to subsequent inefficiencies if the scope is limiting. In contrast to engagements with a narrow scope, other litigation attorneys may prefer (or default to) a broad, open-ended scope that allows the financial expert some flexibility in the analyses performed. The financial expert is able to develop an expansive approach to the case and perform a battery of tailored high-level analyses that are informed by the expert’s skills, knowledge, education, experience, and training. Just as every matter in litigation is unique, so is the financial expert’s analysis and the way it unfolds. But with a broad scope comes the need for collaboration between retaining counsel and the expert. The two must set clear expectations throughout the case and communicate regularly on specific budgetary needs and milestones in work completed. This strikes a balance between the financial expert’s flexibility in their approach and engagement economics. Retaining counsel must also weigh the advantages and disadvantages

of providing certain discovery information to the financial expert. This can depend on any number of facts, circumstances, strategies, or limitations. Some attorneys may issue a login to an e-discovery portal with access to all case files while others send only certain information. This may not even be an intentional choice on the part of retaining counsel, just a default. Alternatively, the attorney may deem certain information irrelevant or unproductive by design, such as information from a previous lawsuit or a previous expert’s opinion. These decisions have a direct impact on engagement economics and the financial expert’s approach. Just as a narrow scope could lead to inefficiencies, overly limited access to case documents may result in an inefficient back and forth to obtain relevant information that retaining counsel or their client already possesses.

attorney must do what they believe is best for their client’s case with regard to the flow of information to the financial expert, finding a balance between case circumstances and engagement economics. When you find yourself in need of a qualified financial expert, the Elliott Davis team of litigation support professionals is ready to help. Austin Starkley

If the financial expert receives all case files in an engagement with thousands of documents, again, collaboration with retaining counsel is critical so the expert has guidance informing their document review and analyses. More information generally produces a stronger, better supported expert opinion, but ultimately, the



Traffic citation to tortfeasor may extend Statute of Limitations to 2 years September 2017. A state trooper issued a traffic citation to Defendant, 2 listing various offenses committed by Defendant, including failure to exercise due care, 3 violation of financial responsibility law,4 and failure to carry registration documents. 5 These were all violations under Title 55 of the Tennessee Code.

BRAD FRASER is a Member of Leitner, Williams, Dooley & Napolitan, PLLC and is located in their Knoxville office. He has provided many years of defense litigation for clients in various areas, including construction litigation, premises and products liability, employment, insurance disputes, and professional errors and omissions claims. He may be reached at


ursuant to Tennessee statutes and the Tennessee Rules of Evidence 410, a plea of nolo contendere may be inadmissible when a defendant issued a traffic citation elects not to contest the charge. Last month I read something that piqued my interest further about this issue: Younger v. Okbahhanes a recent opinion from the Tennessee Court of Appeals.1 In Younger, Plaintiff and Defendant had been involved in a traffic collision in


Plaintiff filed a lawsuit in April 2019, which was more than one year after the collision. As expected, Defendant filed a Motion for Summary Judgment, asserting the statute of limitations barred the action. Plaintiff filed a response arguing that the statute of limitations for personal injury actions was extended to two years, due to the traffic citation issued to the defendant for failure to exercise due care as a result of the vehicle collision. Defendant had signed the citation when issued by the officer. The citation, which was filed with the court in October 2017, commanded Defendant to appear before the Roane County General Sessions Court. However, Defendant simply paid the fine for his violation of the exercise of due care. The remaining offenses were then dismissed in November 2017. While this would render all these charges inadmissible in any actual trial of the civil suit, Plaintiff’s Complaint specifically alleged that

he had been injured as a direct result of Defendant’s negligent acts, omissions, and conduct, and that “Defendant was charged criminally for his conduct in causing the wreck” and had pled guilty to failure to exercise due care. The trial court agreed with Plaintiff. In its Order denying Defendant’s summary judgment motion, the Trial Court specifically found: 1. the citation for failure to use due care was related to the conduct or occurrence that gave rise to the cause of action; 2. a citation for failure to exercise due care is a criminal charge; 3. the traffic citation issued to Defendant was a sufficient “charging document” to commence a prosecution; and 4. Plaintiff was the individual allegedly injured by Defendant’s criminal conduct. Accordingly, the Trial Court found that Plaintiff’s claims were not barred, pursuant to the two-year statute of limitations as set forth in Tennessee Code Annotated § 28-3-104(a)(2). On appeal, the Tennessee Court of Appeals noted that whether Tennessee Code Annotated § 283-104(a)(2) is applicable to traffic citations was a matter of first

Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

impression in Tennessee.6 The Court further held the language of Tennessee Code Annotated § 28-3104(a)(2) was clear and unambiguous, and reiterated that the statute only requires that a "criminal charge” be brought against the defendant and that a “criminal prosecution” be commenced by a law enforcement officer, a district attorney general, or a grand jury within one year of the defendant’s conduct.7 Finding the statute clear and unambiguous, the Court applied the “plain meaning” of the statute.8 The Court further noted that according to Tennessee Code Annotated § 55-10-207(d), when a traffic citation has been prepared, accepted, and the original citation delivered to the court, that original citation “shall constitute a complaint to which the person cited must answer and the officer issuing the citation shall not be required to file

any other affidavit of complaint with the court (emphasis added).”9 The Court further noted, that if “our General Assembly intended to exclude traffic citations from the application of Tennessee Code Annotated § 28-3-104(a)(2) for policy reasons, it easily could have done so… It is not the role of this Court to rewrite the statute.10 The Court of Appeals upheld the Trial Court’s denial of summary judgment, holding that the issuance of a traffic citation for failure to exercise due care satisfies the statutory requirement of a criminal charge to trigger the two (2) year extension of the statute of limitations in Tennessee Code Annotated § 28-3104(a)(2).


Unless Younger is successfully reversed on appeal, when presented with a case that might otherwise

be barred by the 1-year statute of limitation, a traffic citation issued to the alleged tortfeasor could extend it another year. Brad Fraser 1. Younger v. Okbahhanes, Tenn. Ct. App. No. E2020-00429-COA-R10-CV, (Tenn. Ct. App. Jan. 28, 2021). 2. Tenn. Code Ann. § 55-10-207., et seq. 3. Tenn. Code Ann. § 55-8-136. 4. Tenn. Code Ann. § 55-12-139. 5. Tenn. Code Ann. § 55-4-108. 6. Younger, at 6. 7. See Tenn. Code Ann.§ 28-3-104(a)(2) (2017). 8. Younger, at 4 (citing Coleman v. Olson, 551 S.W.3d 686, 693 (Tenn. 2018)). 9. Id., at 7. 10. Id., at 8.


TDLA SPRING MEETING The TDLA/ADLA Joint Summer Conference was held last month at the Sandestin Golf and Beach Resort in Destin, Florida. While a Gulf Tropical Depression tried its hardest, it couldn’t put a damper on the spirits of those in attendance, especially as Brittany Wagner, keynote speaker, took center stage on Friday to speak on the important topic of Mentoring.  Saturday’s downright fascinating TDLA Breakout Session with speakers Larry Bridgesmith (“Neuroscience and Mediation”)

and Kim Vance (“Mentoring the Mentor”) completely enthralled their audience and left them wanting more. And as always, we cannot thank Austin Starkey and Brent McDade with Elliott Davis enough for their presentation on “What’s New with Numbers,” as well as their continued invaluable sponsorship.  But wait, there’s more!  Spirits were flying high for TDLA members Autumn Gentry, Craig Sanders, and Dawn Carson who all left sporting new and enviable swag, courtesy of our

incredibly generous sponsors and their fabulous door prizes. Family fun was in the books for those with kiddos and gosh darn it, what was not to love about the Margarita and Bloody Mary bars during the conference?  Great conversations (as always), great questions, interactive and valuable presentations, and lots of fun was had by all of the TDLA members who attended.  Won’t you join us, next year?  I’ll be sure to save you a seat…and a margarita. Adrienne Fazio

ADRIENNE B. FAZIO is a principal with Manier & Herod in Nashville practicing primarily in workers’ compensation. She may be reached at


Summer 2021 | Tennessee Defense Lawyers Association | Issue 8, Volume 1

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