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Monday, March 02, 2020

New Tennessee Health Care Liability Action Opinion: Statute Concerning Mandatory Ex Parte Defense Interviews of a Plaintiff's Nonparty Health Care Providers Held to Be Unconstitutional, But, Allowed to Stand As Elided as Constitutional

The Tennessee Supreme Court recently released its opinion in Willleford v. Klepper, No. M2016-01491-SC-R11-CV (Tenn. Feb. 28, 2020).  The syllabus from the slip opinion reads:
We granted review in this case to determine whether Tennessee Code Annotated section 29-26-121(f) violates the separation of powers clause in the Tennessee Constitution. The statutory provision allows defense counsel to conduct ex parte interviews with patients’ non-party treating healthcare providers in the course of discovery in a healthcare liability lawsuit. We hold that section 29-26-121(f) is unconstitutional as enacted, to the limited extent that it divests trial courts of their inherent discretion over discovery. We also conclude that the statute can be elided to make it permissive and not mandatory upon trial courts. As such, we hold that the elided statute is constitutional. We vacate the trial court’s qualified protective order entered in this case and remand the case to the trial court for reconsideration based on the guidance set forth in this opinion.
Here is a link to the slip opinion:


Justice Kirby dissented and would have held Tenn. Code Ann. sec. 29-26-121(f) unconstitutional in toto.  Here is a link to her opinion that concurs and dissents in part:


NOTE: This opinion has been awaited by the Tennessee bar with much anticipation.  It offers much-needed light as to the statutorily allowed ex parte interviews.  

Further, the majority opinion cites favorably Baker v. Wellstar Health System, Inc.,703 S.E.2d 601 (Ga, 2010) for direction to the Tennessee Bench and Bar on this issue.  As such, here is a link to that opinion:


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