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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. E2007-02602-SC-R11-CV
Regular Panel Decision
Sep 20, 2010

Gerry G. Kinsler v. Berkline, LLC - Concurring

The Supreme Court of Tennessee at Knoxville heard an appeal in Gerry G. Kinsler v. Berkline, LLC, concerning a retaliatory discharge claim. Justice Cornelia A. Clark authored a concurring opinion, affirming the Court of Appeals' decision to deny summary judgment for the employer. The opinion clarifies the proper application of the McDonnell Douglas framework in conjunction with Tennessee's summary judgment procedures in employment discrimination and retaliation cases. Kinsler, terminated after rejecting a workers' compensation settlement, argued pretext in Berkline's stated reason of inability to perform job duties due to lifting restrictions. The court found genuine issues of material fact regarding the employer's stated reasons for termination, highlighting discrepancies in job requirements and potential disparate treatment.

Workers' CompensationRetaliatory DischargeSummary JudgmentPretextMcDonnell Douglas FrameworkEmployment DiscriminationCausationFunctional CapacityJob RequirementsLifting Restrictions
References
13
Case No. 03S01-9608-CH-00086
Regular Panel Decision
Jan 04, 1999

Wayne Eldred Hill v. CNA Insurance and Larry Brinton, Jr., Director of the Division of Workers Compensation, Tennessee Dept of Labor - Concurring

The Tennessee Supreme Court issued a concurring opinion in the case of Wayne Eldred Hill. Justice Janice M. Holder agreed with the majority's finding that this case falls under Tenn. Code Ann. § 50-6-208(a). However, she reiterated her prior dissenting view from Bomely v. Mid-America Corp. (1998) regarding the application of subsections (a) and (b) of the statute. Justice Holder posited that subsection (a) should apply solely when a subsequent injury leads to permanent and total disability. In contrast, she argued that subsection (b) should be reserved for instances where employees can still earn wages but have vocational disabilities exceeding statutory limits. This clarifies her interpretation of the statute's scope in workers' compensation cases.

Workers' CompensationSecond Injury FundPermanent Total DisabilityVocational DisabilityStatutory InterpretationConcurring OpinionAppellate LawDisability BenefitsSubsequent InjuryTennessee Supreme Court
References
1
Case No. MISSING
Regular Panel Decision

State of New York Higher Education Services Corp. v. Zamore

Judge Meyer concurs, noting that the Legislature has the power to revive a claim even if it is barred by limitations, citing several precedents. Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, and Simons all concur with the decision to affirm the order, with Judge Meyer also providing a separate concurring memorandum in which Judge Jasen joins.

Limitations PeriodLegislative AuthorityClaim RevivalConcurring OpinionJudicial PrecedentAffirmed Order
References
4
Case No. MISSING
Regular Panel Decision

Neagle v. Nelson

Justice Robertson concurs with the majority opinion but respectfully disagrees with Justice Kilgarlin’s conclusions. Robertson argues that the legislative intent to abolish the “discovery rule” in *Gaddis v. Smith* via Tex.Ins.Code Ann. art. 5.82 and Tex.Rev.Civ.Stat. Ann. art. 4590i is not manifest in the plain language of the statutes and that legislative history should not be the starting point without ambiguity. He also finds the analogy to workers’ compensation law for determining permissible delay in malpractice cases to be strained due to numerous distinctions. Robertson maintains that the "discovery rule" issue and alternatives to workers' compensation analogy remain open questions, suggesting common law and equitable doctrines like laches. Justice Kilgarlin also provides a concurring opinion, addressing questions left unanswered by the court. He states that if the fact that Neagle reasonably should not have known of his injury during the limitations period is controverted, Neagle bears the burden of proof. Kilgarlin concludes that the legislative intent was to overrule *Gaddis v. Smith*'s discovery rule, and therefore, a two-year period after discovery cannot be reinstated. He proposes adopting the "good cause" standard from workers’ compensation law to determine permissible delay for filing suit after discovery in medical malpractice cases where discovery could not occur within two years of the tort or last treatment. Both justices concur in reversing and remanding the case.

Medical MalpracticeDiscovery RuleStatute of LimitationsLegislative IntentWorkers' Compensation AnalogyOpen Courts ProvisionGood CauseTexas LawConcurring OpinionJudicial Interpretation
References
9
Case No. MISSING
Regular Panel Decision

Hoffmann-La Roche Inc. v. Zeltwanger

Justice O'Neill, joined by Justice Smith, penned a concurring opinion regarding the viability of intentional infliction of emotional distress claims, specifically criticizing the Court's 'gap-filler' approach as unworkable. The opinion argues for emphasizing a stringent threshold for such claims in the workplace, requiring conduct to be 'extreme and outrageous' and beyond all bounds of decency. Referencing GTE Southwest, Inc. v. Bruce, O'Neill asserts that Zeltwanger's allegations, while reprehensible, do not meet the high standard of severe physical abuse, intimidation, or threats required to establish intentional infliction of emotional distress liability. Therefore, while concurring with the judgment, O'Neill disagrees with the Court's reasoning.

Intentional Infliction of Emotional DistressWorkplace ConductSexual Harassment ClaimsExtreme and Outrageous Conduct StandardTort LawConcurring OpinionEmployer LiabilityEmployment DisputesLegal ThresholdEvidentiary Sufficiency
References
4
Case No. 01-19-00618-CV
Regular Panel Decision
Jun 15, 2021

Gary Lynn Fomby v. Manorcare-Sharpview of Houston Texas, LLC and Sharpview SNF Management, LLC

The case involves an appeal by Gary Lynn Fomby against ManorCare's motion to dismiss, based on Fomby's alleged failure to file a Chapter 74 expert report. The concurring opinion addresses Fomby's arguments that he preserved constitutional challenges (open-courts and due-process) to the expert-report requirement and that these requirements are unconstitutional. While agreeing that Fomby preserved these arguments, the opinion finds his constitutional challenges lack merit, reaffirming previous Texas court decisions that Chapter 74's expert-report requirement is rationally related to a legitimate legislative purpose of discouraging frivolous malpractice suits. Consequently, the judgment affirming dismissal is concurred.

Medical MalpracticeExpert ReportChapter 74Open CourtsDue ProcessConstitutional LawAppellate ProcedurePreservation of ErrorTexas LawFrivolous Lawsuits
References
21
Case No. 05-18-00556-CV
Regular Panel Decision
May 03, 2019

Skeet Phillips v. Ray Clark

Justice Whitehill concurs with the majority's decision to dismiss the appeal for lack of jurisdiction but disagrees with their reasoning. The core argument is that the appellant, Skeet Phillips, did not base his summary judgment motion in the defamation case on the First Amendment, its Texas equivalent, or Civil Practice and Remedies Code Chapter 73. Therefore, the court lacks jurisdiction, and there is no need to analyze what constitutes 'electronic media' or the 'member of the electronic or print media' clause of Civil Practice and Remedies Code § 51.014(a)(6). The concurring opinion advocates for a straightforward application of statutory interpretation, arguing against unnecessarily expanding the scope of judicial inquiry when a clear jurisdictional deficiency exists.

defamationjurisdictionsummary judgmentstatutory interpretationelectronic mediaFirst AmendmentTexas ConstitutionCivil Practice and Remedies Codeinterlocutory appealplain meaning
References
17
Case No. MISSING
Regular Panel Decision

Formosa Plastics Corp., USA v. Kajima International, Inc.

This is a concurring opinion by Justice Castillo concerning an appeal in a fraud lawsuit between Kajima International, Inc. and Formosa Plastics Corporation, USA. The majority reversed and remanded the trial court's judgment, finding an abuse of discretion in not disqualifying Kajima's expert witness. Justice Castillo concurs with the reversal and remand but for different reasons, arguing that the trial court properly admitted the expert's testimony regarding reliability and found no disqualifying conflict of interest. The case involved claims related to construction contracts, and the jury awarded Kajima $15,432,123.45 in fraud damages. Justice Castillo further addresses and supports the trial court's decisions on mitigation evidence, single business enterprise, and broad-form fraud questions.

FraudExpert Witness DisqualificationSide-Switching ConflictConfidentiality WaiverConstruction LawDamages CalculationMitigation of DamagesSingle Business EnterpriseJury InstructionsAppellate Review
References
62
Case No. MISSING
Regular Panel Decision

Texas Mexican Railway Co. v. Bouchet

Justice Spector pens a concurring and dissenting opinion, challenging the majority's interpretation of Texas's Anti-Retaliation Law, former article 8307c. Spector argues against the majority's conclusion that the law only protects employees of workers’ compensation insurance subscribers, advocating for a broader application to include employees of nonsubscribers, citing principles of statutory construction and the Act's comprehensive nature. Despite this disagreement, Spector concurs with the judgment that Lawrence Bouchet cannot sue under article 8307c. This concurrence stems from the fact that Bouchet's original lawsuit was filed under the Federal Employers Liability Act (FELA), a federal compensation scheme, and therefore does not fall under the Texas Workers’ Compensation Act.

Workers' CompensationAnti-Retaliation LawStatutory ConstructionFELANonsubscriberEmployer LiabilityTexas LawRemedial StatutesLegislative IntentConcurring Opinion
References
5
Case No. MISSING
Regular Panel Decision

Maritime Overseas Corp. v. Ellis

This concurring and dissenting opinion addresses an appeal in a toxic tort case where a plaintiff, Ellis, suffered injuries from exposure to diazinon while working as a steward's assistant. Justice Robertson concurs with the majority's decision to deny punitive damages and prejudgment interest, but strongly dissents from the majority's affirmation of $8.576 million in actual damages. The core of the dissent is the insufficiency of expert testimony to establish a scientific causal link between diazinon and delayed neurotoxicity, criticizing the reliance on general organophosphate studies without specific evidence for diazinon. The opinion also argues for a remittitur on the excessive and cumulative awards for future medical expenses, pain, mental anguish, and physical impairment.

Toxic TortOrganophosphate PoisoningDiazinon ExposureJones ActUnseaworthinessMaritime LawExpert TestimonyCausationDaubert StandardEpidemiological Studies
References
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