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Monday, April 06, 2015

New Health Care Liability Action & Comparative Fault Opinion: Joinder of a Nonparty under Tenn. Code Ann. sec. 20-1-119

The Tennessee Court of Appeals recently released its opinion in Swearengen v. DMC-Memphis, No. W2014-00724-COA-R3-CV (Tenn. Ct. App. Apr. 2, 2015).  The summary from the opinion states as follows:
This is an appeal from the trial court‟s grant of a motion to dismiss Appellant‟s medical malpractice action[] against defendants named in Appellant‟s amended complaint filed more than one year after the cause of action accrued. The trial court found that Appellant‟s claims against the additional parties were time barred because the amended complaint adding these parties was not filed within ninety days of the original answer asserting comparative fault against non-parties. Discerning no error, we affirm and remand. 
Here is a link to the opinion: 

NOTE: Respectfully, I think this opinion is wrongly decided,  This is because it appears to be contrary to the Tennessee Supreme Court opinion issued in the case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000), available at,43 (last visited Apr. 6, 2015). Per Brown, and Rule 8.03, Tenn. R. Civ. P., it appears that a defendant must be more specific in pleading the fault of a nonparty as an affirmative defense than was allowed in this opinion.  Brown, 12 S.W.3d at 789.

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