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Analysis of Recent 6th Circuit Court Opinion in Fox v. Amazon

Cole Law Group blogThe Sixth Circuit Court of Appeals recently decided a case involving an Amazon hoverboard that caused a fire resulting in various injuries and the destruction of the Plaintiffs’ home in Fox v. Amazon, Inc. (6th Cir. 2019).1  Plaintiffs claimed in their complaint that Amazon sold an unreasonably dangerous product in violation of the Tennessee Products Liability Act of 1978, T.C.A. § 29-28-101; breached a duty to warn about a defective or unreasonably dangerous product; and caused Plaintiffs’ misunderstanding about the source of the product in violation of the Tennessee Consumer Protection Act.

Relevant Facts

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Attorney Paul Tennison Active Duty

The Physical Disability Review Board was created by federal law with the passage of the Dignified Treatment of Wounded Warriors Act in 2008. The DTWWA made several significant changes to the care of wounded veterans. First, the law required the military branches to use the same disability determination rating scale as that used by the VA. Second, the law expanded the care available to injured service members after their military service. This included changes in treatment in military and civilian facilities for a variety of conditions, including Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD). Third, the new law required comprehensive plans to address TBI and PTSD. Fourth, the law directed the Secretary of the Department of Defense (DoD) to establish physical disability review boards to review disability determinations meeting certain criteria and timeline requirements. The law also addressed the quality of housing provided to patients by requiring improved standards.1

After the law passed, the DoD issued instruction 6040.44 which “establish[ed] policies, assign[ed] responsibilities, and provide[d] procedures for PDBR operation and management as required by section 1554a of Title 10, United States Code.”2 The PDBR’s mandate is to: “reassess the accuracy and fairness of the combined disability ratings assigned former service members” who meet certain criteria.3 Those criteria are summarized here:

Blog-photo-defamation-law-1-300x200Recently, the Tennessee Senate and General Assembly unanimously passed HB 0777/SB1097 otherwise known as the Tennessee Public Participation Act. On April 23, 2019, Governor Bill Lee signed the bill which will become effective on July 1, 2019. This statute dictates new anti-SLAPP (Strategic Lawsuits Against Public Participation) measures for all citizens of Tennessee. The Tennessee Public Participation Act will broadly increase the protections as outlined in the first paragraph of the bill summary below:

“Under this bill, if a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action. All discovery in the legal action will be stayed upon the filing of a petition pursuant to this bill and the stay of discovery will remain in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.”¹

The Tennessee Public Participation Act goes beyond Tennessee’s current anti-SLAPP Law (limited only to complaints made to government entities) and Tennessee’s “Loser pays” statute.² Tennessee joins states such as California and Texas in passing comprehensive anti-SLAPP legislation.

Attorney Paul Tennison active duty

Attorney Paul Tennison active duty

The U.S. Department of Veterans Affairs administers disability compensation that veterans have for illnesses or injuries which were caused by, or have been made worse during, active military service. The compensation may include financial support and other benefits such as health care.  Click here for more information on eligibility requirements for VA disability.

If you believe you are eligible for Veterans Affairs disability, the first step is to gather any supporting documentation for your claim. You will need evidence such as military records related to the injury or illness at issue, your medical treatment records, and your DD214 or other separation documents. Fill out your claim form completely and include all the relevant evidence. Today, you have several options for how you can file a claim:

Alimony – A Primary Issue in Divorce

Alimony ButtonFor better or worse, nearly half of marriages in the United States end in divorce. Although the exact statistics on divorce fluctuate slightly from year to year and state to state, the residents of Tennessee are no strangers to breaking the bonds of matrimony. Throughout Tennessee, it is widely accepted and understood that issues pertaining to child custody and property division must be decided as part of any divorce. However, another extremely important issue in divorce – the issue of alimony (sometimes referred to as “spousal maintenance” or “spousal support”) – is often less certain or overlooked by parties to a divorce until it is too late, particularly if either or both of the parties have never gone through divorce before or if the divorce is unexpected.

In a broad legal sense, there are five (5) primary issues pertaining to any divorce: (1) grounds for divorce; (2) child custody; (3) child support; (4) equitable distribution of marital property; and (5) alimony. While none of these issues can be considered in isolation, the issue of alimony often predominates throughout divorce. The issue of alimony is the last major issue decided by the trial judge in a Tennessee divorce. Even if the facts of a case strongly indicate that the Court is likely to award one party alimony at the conclusion of the proceeding, vigorous litigation can ensue regarding what form the alimony should take, as well as its amount, duration, and other conditions.

Path to Permanent Residence in Nashville, TNThe United States immigration system contains millions of pending applications at any given time. Although many immigrants throughout the United States ultimately submit their applications to obtain lawful permanent residence (i.e., a “Green Card”) or other immigration benefits to the U.S. Citizenship and Immigration Services (“USCIS”), the Immigration Courts located in the Executive Office for Immigration Review (an office within the U.S. Department of Justice) present a very different, surprising, and far riskier path to lawful permanent residence: removal proceedings.

Without a doubt, being placed in removal proceedings and facing deportation from the United States is probably one of the greatest fears of any immigrant in the United States. If the Government succeeds in its case against an immigrant in removal proceedings, the Immigration Court will order the immigrant removed from the United States and, with only few exceptions, the immigrant will be transported back to their native country. Immigrants placed in removal proceedings because of criminal charges brought against them in the United States may even be placed in federal custody and detained for the duration of their removal proceedings, rendering it difficult or impossible for them to re-connect with their loved ones while their removal proceedings are ongoing, and their ability to secure legal counsel and obtain the necessary evidence to support their defense may be substantially impaired. Indeed, for nearly all immigrants currently residing in the United States – lawfully or otherwise – the possibility of being placed in removal proceedings is a scenario that cannot be described as anything other than truly horrifying and disastrous, as their removal from the United States will mean separation from their families, an end to the life they have built for themselves over a period of months or years, and a return to dangerous or unhealthy living conditions in the country they hoped to flee, leave behind forever, or never return to.

As difficult as the removal process is for countless immigrants, the current legal landscape does provide a little-known silver lining to the removal process: certain immigrants can acquire lawful permanent residence status and a Green Card by obtaining a form of relief known as cancellation of removal in a removal proceeding. Indeed, in certain circumstances, not only can immigrants prevail in their removal proceeding and avoid deportation from the United States – they can actually obtain a Green Card at the conclusion of the proceeding and be admitted to stay in the United States permanently when there would have otherwise been no other avenue available to obtain a Green Card.

Path to Permanent Residence in Nashville, TNIn the United States, one of the most important goals for millions of immigrants is acquiring a “Green Card” – the symbol of lawful permanent residence and a pathway to citizenship. Although many immigrants apply for a Green Card through a family member who is already a lawful permanent resident or United States citizen, many immigrants – both inside and outside of the United States – do not have such family connections and cannot rely on a family member to achieve the goal of obtaining lawful permanent residence. Part 3 of this series discusses employment-based immigration and how those with certain education, training, or other skill sets can nevertheless apply for legal status in the United States as part of their employment or trade, despite lacking any family connection that might otherwise make them eligible for an immigration benefit. If you missed Part 1 of this series (providing an overview to obtaining a Green Card) or Part 2 of this series (discussing family-based immigration), you can find Part 1 here and Part 2 here.

Generally, employment-based immigration is split into five (5) different preference categories:

  1. Priority workers, which include persons with extraordinary ability, outstanding professors and researchers, and multinational managers or executives (EB-1);

Path to Permanent Residence in Nashville, TNThroughout America, one of the greatest struggles facing millions of immigrants is that of obtaining lawful permanent residence or – as it is commonly called – a “Green Card.” There are dozens of possible paths to obtaining a Green Card. Even many undocumented immigrants have a pathway to legal permanent residence available to them. Part 2 of this series focuses on family-based immigration and some of the ways immigrants can seek a Green Card through family relationships they have with relatives who are U.S. citizens or legal permanent residents. If you missed Part 1 of this series (an overview to obtaining a Green Card), you can find it here.

Currently, family-based immigration results in greater numbers of admissions than the other categories of immigrants. As specified in the Immigration and Nationality Act, eligibility for family-sponsored immigration is determined by an immigrant’s familial relationships to U.S. citizens or legal permanent residents. See 8 U.S.C. §§ 1151, 1153. If an immigrant can be categorized as an “immediate relative” of a U.S. citizen, he or she may be exempt from the waiting times that apply to other categories in family-based immigration. However, immigrants seeking to obtain lawful permanent resident status through their marriage to a U.S. citizen may also be subject to heightened scrutiny and evidentiary requirements. Determining your eligibility for a family-based immigration category, as well as which category is best for you, is a complex process that should not be attempted without the assistance of an immigration attorney.

Generally, the process of obtaining a Green Card in family-based immigration starts with the filing of a visa petition by the immigrant’s relative in the U.S. Visa petitions are generally filed with the United States Citizenship and Immigration Services (“USCIS”), an agency within the Department of Homeland Security. Generally, a USCIS Officer will be responsible for adjudicating the visa petition. Approving a family-based visa petition can be discretionary for a USCIS Officer. Therefore, it is crucial to complete the visa petition in the legally correct manner and with sufficient supporting evidence to prove the bona fide nature of the family relationship. To gather the necessary evidence and complete the visa petition properly, it is important to secure the legal counsel of an immigration lawyer before submitting a visa petition to USCIS or any other government agency.

Path to Permanent ResidenceThe “Green Card” – to some, it is a symbol of hope, accomplishment, and security for a new life in America. To others, it symbolizes peace of mind, enduring stability with loved ones, and extinguishing the fear of deportation. Regardless of background or viewpoint, obtaining a Green Card means successfully completing the path to legal permanent residence. While millions of immigrants throughout the United States want a Green Card, relatively few of those immigrants ultimately succeed in acquiring one. For a variety of reasons, many immigrants find obtaining a Green Card challenging and difficult. This series of posts – while far from comprehensive or a substitute for legal counsel – discusses some of the ways immigrants in the United States can obtain status as a lawful permanent resident.

In the legal sense, acquiring lawful permanent resident status is the same thing as obtaining a Green Card. Upon receiving lawful permanent resident status, the immigrant is given an identification card. Over time, people began referring to these identification cards as “Green Cards” due to the green backdrop on the cards. Thus, while many people consider the Green Card to be the key to legal status, the card itself is really nothing more than a piece of plastic – the true prize is obtaining the status of lawful permanent resident.

But how can you get status as a lawful permanent resident? It depends. Every case is different, and there are dozens of possibilities. The current immigration system utilizes four (4) main categories of immigrants: (1) family-sponsored immigrants; (2) employment-based immigrants; (3) diversity immigrants; and (4) humanitarian immigrants. Within each category there can be several additional sub-categories, all with differing eligibility requirements. In addition, many of those categories have numerical limits on the number of visas that can be issued each year, resulting in various wait times. Therefore, it is not uncommon for many immigrants to be eligible to apply for legal permanent residence but have a waiting period before they can actually complete the process and obtain their Green Card. Even outside of these four (4) main categories, there are several other possible paths to receiving lawful permanent resident status. Indeed, even immigrants currently in removal proceedings and facing deportation may be able to obtain a Green Card and adjust their status to that of a lawful permanent resident.

Separate v. Marital PropertyProperty owned during a marriage in Tennessee is classified as either separate property or marital property. This distinction becomes quite important for many spouses when considering divorce. The concept is worth understanding because only marital property is subject to equitable distribution during a divorce. Separate property includes property which was owned by a spouse before marriage; property which was acquired in exchange for property which was already owned prior to the marriage; income and appreciation of separate property; property acquired by a spouse through gift, bequest, devise or descent; pain and suffering awards; victim of crime compensation; future medical expenses; future lost wages; and property acquired by a spouse after an order of legal separation in which a court has completed a final disposition of property.

Where the separate property analysis gets tricky is a carve out section, T.C.A. § 36-4-121(b)(1)(B)(i). This section states: ” ‘Marital property’ includes income from, and any increase in the value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation” This requires an understanding of substantial contribution and preservation and appreciation. Thankfully, the statute includes some more helpful information by defining a substantial contribution. A substantial contribution may include, but not be limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court having jurisdiction thereof may determine.” Preservation and appreciation are not further defined in the statute.

Let’s consider a few hypotheticals. In Marriage A, Wife was gifted a significant amount of publicly traded stocks from a family member prior to marriage. Husband paid taxes on Wife’s stocks when sold. Are the stocks marital property? In Marriage B, Husband bought a house before the marriage that was never used as the marital home. Wife’s name was never put on the deed. However, when the house needed repairs, Wife paid for the HVAC to be replaced. Is the house Husband’s separate property? In Marriage C, Wife purchased a house during the marriage and the house was foreclosed on. Can Husband be awarded dissipation?

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