New Health Care Liability Action Opinion: Trial Court's Denial of Defense's Motion to Dismiss Based on a Finding of "Excusable Neglect" Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Moxley v. Amisub SFH, Inc., No. W2021-01422-COA-R9-CV (Tenn. Ct. App. Aug. 29, 2022). The syllabus reads:

In this interlocutory appeal of a health care liability action, the only issue for review is whether the trial court erred in denying the defendants’ motions to dismiss based on its finding that “extraordinary cause” existed to excuse the plaintiff’s failure to comply with the statutory pre-suit notice requirem)nts. For the following reasons, we reverse and remand for further proceedings.

Here is a link to the slip opinion: 

 https://www.tncourts.gov/sites/default/files/moxleyeugeneopn.pdf.

NOTE: There is subsequent history to this case. Moxley v. Amisub SFH, Inc., No. W2023-00220-COA-R3-CV (Tenn. Ct. App. Apr. 24, 2024). This latest opinion has been designated as a "MEMORANDUM OPINION" and "shall not be cited or relied on for any reason in any unrelated case." Id., slip op. at 2, fn. 1. Despite that designation, it still sheds light on the history of Moxley. 

New Health Care liability Action Opinion: Summary Judgment for Physician Reversed on Appeal Because the Trial Court Abused Its Discretion in Not Allowing Plaintiff to Obtain a New Standard-of-care Expert When that Expert Refused to Testify Through No Fault of Plaintiff, Etc.

The Tennessee Court of Appeals has issued its opinion in Blackburn v. McClean, No. M2021-00417-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This is a wrongful death health care liability action. At issue in this appeal are claims that were asserted against a hospital and an emergency room physician. During the course of litigation, the trial court permitted the defendants to amend their pleadings to assert a comparative fault defense but placed certain limitations on any new experts the plaintiff might retain to address the defense. The trial court also denied the plaintiff’s efforts to secure a new standard of care expert when one of his retained experts withdrew from the case and refused to testify. Ultimately, through a series of summary judgment orders, the claims against the hospital and emergency room physician were dismissed. Although the plaintiff generically challenges the trial court’s summary judgment dispositions on appeal, we conclude that the plaintiff’s challenges are all waived except as they relate to the last summary judgment order that was entered as to the emergency room physician. That summary judgment order is reversed consistent with the discussion herein, namely in light of our conclusion that the trial court abused its discretion in refusing to allow the plaintiff to secure a substitute standard of care expert after his retained expert refused to testify due to no fault of counsel or his client. Further, although we find no error in the trial court’s decision to allow the defendants to amend their pleadings to assert comparative fault, we are of the opinion that the court abused its discretion with respect to the limitations it placed on any potential expert retained by the plaintiff to address the issues raised in the later amendment alleging comparative fault.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/blackburn_v.mclean.pdf.

NOTE: The primary takeaway from this opinion is that it was an abuse of discretion by the trial court to not allow the plaintiff to obtain a new standard-of-care expert when the former expert in this area became unavailable through no fault of the plaintiff, which jibes with Tennessee's policy of deciding cases on their merits and not in procedural technicalities. The secondary takeaway is that the trial court also abused its discretion in severely limiting expert testimony that the plaintiff could offer to rebut a newly pleased defense based on the decedent's alleged comparative fault. Both of these abuses required reversal and a remand. 

P.S. This is the second appeal in this case. The first one is the subject of my from Aug. 1, 2020-post, to wit: http://theduncanlawfirm.blogspot.com/2020/08/new-case-on-certification-of-nonfinal.html.

Clarification Offered on Attorney's Fees Awarded under Tenn. Code Ann. sec. 20-12-119(c) upon the Granting of a Motion to Dismiss under Tenn. R. Civ. P. 12.02(6)

The Tennessee Court of Appeals has issued its opinion in Thomson v. Genesis Diamonds, LLC, No. M2021-00634-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This appeal involves an award of attorney’s fees pursuant to Tenn. Code Ann. § 20-12- 119(c). The trial court dismissed two of the plaintiff’s three claims for relief pled in his amended complaint pursuant to Tenn. R. Civ. P. 12.02(6), upon its finding that the plaintiff had failed to state a claim for which relief could be granted on the two claims. The third claim also was included in the defendant’s motion to dismiss, as well as arguments for improper venue and lack of subject matter jurisdiction, all of which were denied by the trial court. More than thirty days after a final judgment was entered, the defendant requested an award of attorney’s fees and discretionary costs. In his supporting affidavit, the defendant’s counsel included attorney’s fees as relevant to the entire motion to dismiss instead of distinguishing the time spent regarding the claims that were dismissed pursuant to Rule 12.02(6). The trial court awarded the defendant attorney’s fees in the amount of $10,000, which is the maximum amount of attorney’s fees a trial court can award under Tenn. Code Ann. § 20-12-119(c). The trial court denied the defendant’s request for discretionary costs as untimely. We affirm the trial court’s denial of discretionary costs, vacate the award of attorney’s fees, and remand for the Trial Court to reconsider the attorney’s fees award as consistent with this opinion and the Tennessee Supreme Court’s opinion in Donovan v. Hastings, No. M2019-01396-SC-R11-CV, -- S.W.3d -- , 2022 WL 2301177 (Tenn. June 27, 2022).

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/michael.thomson.opn_.pdf.

NOTE: This opinion offers insight into attorney's fees under sec. 20-12-119(a), discretionary costs,  and appellate practice. It is of significance as to the first matter and instructs the bench and the bar that fees under -119(c) are only for the work done on the claims dismissed, to wit:

We hold that the limited scope of Tenn. Code Ann. § 20-12-119(c) allows an award of attorney’s fees only for the tasks performed regarding the claims that were actually dismissed by the Trial Court for failure to state a claim upon which relief can be granted. Therefore, we vacate the Trial Court’s award of attorney’s fees and remand to the Trial Court for recalculation of the attorney’s fee award in this case in compliance with our Supreme Court’s opinion in Donovan and this opinion. During remand, the Trial Court should consider the factors in Tenn. Sup. Ct. R. 8, Rule of Professional Conduct 1.5(a) when determining whether the award of attorney’s fees is reasonable and necessary. See Donovan, 2022 WL 2301177, at *6 n.13 (“Rule of Professional Conduct 1.5 sets forth the ‘correct legal standard’ when assessing the reasonableness of a cost and fee request.”). Further, in compliance with Donovan, the Trial Court on remand should consider Defendant’s request for attorney’s fees incurred prior to the amended complaint only to the extent that the claim or claims were pled by Plaintiff prior to the amended complaint and defense counsel’s fees prior to the amended complaint involved those specific claims that were dismissed pursuant to Tenn. R. Civ. P. 12.02(6).

Thomas, supra, at 12.