New Health Care Liability Action Opinion: Supreme Court of Tennessee Remands Case to the Trial Court with Instructions on How to Determine If a New Trial Is in Order Due to the Jury's Exposure to Extraneous Information During Deliberations

The Supreme Court of Tennessee has released its opinion in Collier ex rel. Chase C. v. Roussis, E2022-00636-SC-R11-CV (Tenn. July 31, 2026). The syllabus from the slip opinion reads:

In this appeal, we address the analytical framework for determining whether a jury’s exposure to extraneous information during deliberations in a civil case warrants a new trial. The parties in this healthcare liability action tried a complex, multi-day trial in which a central issue was whether it was appropriate for medical personnel not to use epinephrine to treat a pregnant patient’s anaphylactic reaction. The trial included extensive expert testimony about the risks, benefits, and usage of epinephrine during pregnancy. The jury returned a verdict for the Defendants. Thereafter, the Plaintiff learned that one night during jury deliberations, a juror at home examined the warning label on an EpiPen, an epinephrine auto-injector device, and shared that information with the jury during continued deliberations. The Plaintiff moved for a new trial based in part on a claim that the jury’s exposure to the EpiPen information “tainted the verdict.” The trial court denied the motion, finding that the Plaintiff had not established by clear and convincing evidence that exposure to the EpiPen information affected the jury. The Court of Appeals reversed, concluding that the trial court had applied an incorrect legal standard. We granted permission to appeal to decide the proper analysis when a party in a civil case implicating the constitutional right to a jury trial challenges a verdict because the jury allegedly was exposed to extraneous information. Considering our analogous precedent from criminal cases, we hold that our courts should use a burden-shifting framework to determine whether error occurred and a new trial is required. More specifically, the party challenging the verdict bears the initial burden of proving error—that the jury was exposed to material extraneous information—by a preponderance of the evidence. Upon a successful showing, a rebuttable presumption of prejudice arises. This circumstance places a burden on the party defending the verdict to rebut the presumption of prejudice by showing that exposure to the material extraneous information was harmless error. To make this showing, the party must demonstrate that there is no reasonable possibility that the information would have altered the verdict of a reasonable jury. Absent this showing, a new trial is warranted due to the violation of the constitutional right to a jury trial. Because the trial court did not have the benefit of this framework when deciding the motion for a new trial, we vacate the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

Here is a link to that opinion: <https://tinyurl.com/54vwk7jj>.

NOTE: This is a must-read opinion for every lawyer who tries cases to a jury in our state's nisi prius courts because of our High Court's instruction as to how the lower courts are to deal with the introduction of extraneous information before a jury. 

New Laws Effective in Tennessee on July 1, 2026

Here is an abstract of the new laws that go into effect in Tennessee on July 1, 2026, to wit:

EffectiveRpt

Supreme Court of Tennessee Disallows Prejudgment Interest in a Personal Injury Case Maintained Solely Against the Plaintiff's UM Insurance Carrier

The Supreme Court of Tennessee has released its opinion in Haddon v. Vanlier, No. M2023-01151-SC-R11-CV (Tenn. May 12, 2026). The syllabus from the slip opinion reads:

In this case, we determine whether prejudgment interest may be awarded in an action brought against a tortfeasor and defended by an uninsured motorist carrier under Tennessee’s Uninsured Motorist Act. Tenn. Code Ann. §§ 56-7-1201–1206 (2016 & Supp. 2025). The trial court determined that Plaintiff Cinda Haddon could not recover prejudgment interest because her claim was for personal injury. The Court of Appeals reversed, finding that Ms. Haddon brought a contract action. Haddon v. Vanlier, No. M2023-01151-COA-R3-CV, 2024 WL 4590434, at *2–3 (Tenn. Ct. App. Oct. 28, 2024), perm. app. granted, (Tenn. March 17, 2025). Accordingly, the Court of Appeals remanded this matter to the trial court for a determination of prejudgment interest. Id. at *5. Upon review, we find that this is a personal injury action. Because prejudgment interest is not available in a personal injury action, we reverse the Court of Appeals and reinstate the judgment of the trial court denying Ms. Haddon prejudgment interest. 

Here is a link to the opinion: <https://tinyurl.com/yv7sxs5f>.

NOTE: This opinion is correct in its analysis and conclusion under Tennessee’s Uninsured Motorist Act. Tenn. Code Ann. §§ 56-7-1201–1206 (2016 & Supp. 2025). (FWIW: In Tennessee, UM and UIM are treated the same under our statute and both types of claims are referred to colloquially as "UM.")

Rare Case from the Supreme Court of the United States Regarding Medical Malpractice (and Civil Procedure): State-law Filing Requirement That Was in Conflict with the Federal Rules of Civil Procedure Is Displaced by Federal Rules

The Supreme Court of the United States has issued its opinion in Berk v Choy, 607 U.S. _____ (2026). While I normally post the syllabus from Tennessee state-court opinions here, the one from this slip opinion is a little long; because of that, I offer this analysis instead: 

SCOTUS reviewed the case and held that Delaware’s affidavit of merit requirement does not apply in federal court. The Court reasoned that Federal Rules of Civil Procedure, namely Rule 8, which governs what must be pleaded in a complaint that is filed to commence a civil action, sets the standard for pleadings and does not require supporting evidence such as an affidavit. Because Rule 8 is a valid procedural rule under the Rules Enabling Act that regulates the manner and means by which claims are presented, it displaces the contrary Delaware law. SCOTUS reversed the Third Circuit’s decision and remanded the case for further proceedings.

Justice Jackson filed an opinion concurring in the judgment but disagreeing with the analysis. Her Honor is of the opinion that Rules 3 and 12 are more relevant to the analysis. 

Here is a link to both opinions: <https://tinyurl.com/kbwer5rm>.

NOTE: This opinion is correct and settles a lot of uncertainty that had surrounded medical malpractice claims filed in federal court based on diversity jurisdiction. 

New Health Care Liability Action Opinion: Jury Verdict for the Defense Upheld on Appeal

The Court of Appeals of Tennessee recently released its second opinion in Davis v. Ellis, No. W2024-01467-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025). The syllabus from the slip opinion reads:

This is the second appeal in this healthcare liability matter. The plaintiff first appealed from the trial court’s grant of summary judgment to the defendant physician. This court reversed that judgment in 2020. Upon remand, a trial before a jury resulted in a defense verdict. The plaintiff again appeals. We affirm.

Here is a link to the opinion: <https://tinyurl.com/4mdvvxhz>.

NOTE: This opinion touches upon many aspects of a jury trial and an appeal therefrom. For example, it addresses the standard of review on an appeal from a jury verdict; a trial judge's function as the thirteenth juror; errata sheets; evidentiary issues; expert witness disclosures under Rule 26 of the Tennessee Rules of Civil Procedure; jury instructions; and awards of discretionary costs. This is a must-read opinion for any Tennessee trial lawyer—especially one who handles health care liability actions (f/k/a medical malpractice cases).

This appeal is the second one in this case. The first one is addressed in a prior blog post that can be viewed at this link, to wit: <https://tinyurl.com/y94mzd8w>. 

Trial Court's Evidentiary Rulings, Which Were Discretionary, Upheld on Appeal; Sanctions for a Frivolous Appeal Against the Defense Also Awarded

The Court of Appeals of Tennessee has released its opinion in Pajazetovic v. Baker, No. M2024-00372-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2025). The syllabus from the slip opinion reads:

In this automobile collision case, the jury returned a verdict in favor of the plaintiffs. On appeal, the defendant challenges several rulings related to the admission and testimony of the plaintiffs’ accident reconstruction expert. Because the defendant failed to file a motion for new trial raising these challenges, we conclude that they are waived, and so we affirm the judgment in favor of the plaintiffs. We award the plaintiffs their reasonable attorney’s fees and costs under Tennessee Code Annotated section 27-1-122.

Here is a link to that opinion: <https://tinyurl.com/yx588k9c>.

NOTE: This is the correct result (as well as a cautionary tale). 

Trial Court's Grant of the Defense's Motion for Summary Judgment Upheld on Appeal Because of the Plaintiff's Failure to Comply with Discovery Deadlines, Etc.; Sanctions for Frivolous Appeal Awarded

The Court of Appeals of Tennessee has issued its opinion in Metcalf v. Woodard, No. W2024-01321-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2025). The syllabus from the slip opinion reads:

This appeal arises from a personal injury action following a motor vehicle collision in Shelby County, Tennessee. The trial court granted defendants’ motion for summary judgment and dismissed the remaining negligence claim after concluding that plaintiff failed to provide sufficient evidence as to breach of duty and causation. We affirm.

Here is a link to the opinion: <https://tinyurl.com/2rz632kk>.

NOTE: This opinion serves as a cautionary tale of what not to do in a trial court and on appeal (because summary judgment was granted in the trial court and in addition to losing on appeal, sanctions for a frivolous appeal were awarded). 

New Health Care Liability Action Opinion: The Supreme Court of Tennessee Reverses the Court of Appeals of Tennessee and Holds That Grandmother Can Be a "Claimant" (as "Next Friend") for Her Grandchildren for Purposes of Authorizing Presuit Notices to Be Served under the Tennessee Health Care Liability Act

The Tennessee Supreme Court has released its opinion in Denson v. Methodist Medical Center of Oak Ridge, No. E2023-00027-SC-R11-CV (Tenn. Oct. 13, 2025). The syllabus from the slip opinion reads:

This case clarifies who may be “the claimant authorizing the notice” under the health care liability pre-suit notice statute, Tennessee Code Annotated section 29-26-121(a)(2)(B). Ashley Denson died after being admitted to the hospital. Her mother Bobbie Jo Denson took in Ashley’s two minor children and obtained legal custody of them. Bobbie Jo sent pre-suit notice to defendant health care providers identifying herself as the “claimant authorizing the notice” under Tennessee Code Annotated section 29-26-121(a)(2)(B). She subsequently filed suit on her own behalf and on behalf of the minor children, ultimately pursuing the claim solely on behalf of the minor children. Defendants filed motions to dismiss, arguing Bobbie Jo did not comply with pre-suit notice requirements because she did not identify the children as the claimants. The trial court denied defendants’ motions to dismiss but granted their motion for interlocutory appeal. The Court of Appeals reversed, finding Bobbie Jo did not comply with pre-suit notice requirements because the children were the claimants but not identified as such. We now reverse. Bobbie Jo Denson is “the claimant authorizing the notice” under Tennessee Code Annotated section 29-26 121(a)(2)(B), as minor children cannot authorize pre-suit notice and file suit on their own behalf. The judgment of the Court of Appeals is reversed, and the case is remanded to the circuit court.  

Here is a link to that opinion: <https://tinyurl.com/29c64mya>.

NOTE: This is a correct decision on so many levels, and I applaud our state's High Court for reaching the correct decision in this case. 

New Laws Effective in Tennessee as of July 1, 2025

Here is an abstract of the new laws that go into effect in Tennessee today, July 1, 2025, to wit: <https://tinyurl.com/5chndhen>.

New Health Care Liability Action Opinion: Summary Judgment for the Defense Affirmed Due to the Plaintiff's Expert Being Disqualified under the Locality Rule

The Tennessee Court of Appeals has released its opinion in Bowen v. Nelson, No. W2024-00749-COA-R3-CV (Tenn. Ct. App. May 27, 2025). The syllabus reads:

Plaintiff appeals the trial court’s decision to exclude the testimony of her proffered expert for failure to comply with the locality rule. Plaintiff also appeals the grant of summary of judgment based on the exclusion of that expert. Finding the trial court did not abuse its discretion in excluding the testimony, we affirm that ruling. Additionally, we affirm the trial court’s decision to grant summary judgment as the excluded testimony was the only evidence offered regarding the applicable standard of care.  

Here is a link to the slip opinion: BowenGladysClaireOPN.pdf.

NOTE: This opinion offers a good discussion of the locality rule that applies to expert witnesses in a health care liability action as codified in Tenn. Code Ann. sec. 29-26-115(a)(1). 

New Health Care Liability Action Opinion: Supreme Court of Tennessee Holds That Saving Statute Is Not Extended by 120 days in a Refiled Health Care Liability Action

This Supreme Court of Tennessee has released its opinion in Richards v. Vanderbilt University Medical Center, No. M2022-00597-SC-R11-CV (Tenn. Jan. 22, 2025). The syllabus from the slip opinion reads:

In this health care liability action, Clayton D. Richards asks us to consider whether the trial court erred in dismissing his complaint. Previously, Mr. Richards sued Vanderbilt University Medical Center alleging negligence. That lawsuit ended in a voluntary nonsuit. Mr. Richards refiled his complaint, which became the current action, over a year later. The trial court dismissed his complaint, holding that he had not complied with the terms of the saving statute, Tennessee Code Annotated section 28-1-105. On appeal, Mr. Richards argues that Tennessee Code Annotated section 29-26-121(c) offers him a 120-day extension of the one-year saving statute, making his lawsuit timely. We disagree and conclude that section 29-26-121(c) does not extend the saving statute. Thus, we affirm the trial court’s order granting Vanderbilt University Medical Center’s motion to dismiss.  

Here is a link to the opinion: https://tinyurl.com/ywy8y8ux.

NOTE: For myriad reasons, this case is difficult to reconcile with Foster v. Chiles, 467 S.W.3d 911 (Tenn. 2015) <https://tinyurl.com/vamx2c4t>. 

New Health Care Liability Action Opinion: Trial Court's Dismissal of Action Upheld on Appeal Because a Certificate of Good Faith Was Not Filed with the Amended Complaint

The Tennessee Court of Appeals has released its opinion in Allen v. Dehner, No. M2023-01750-COA-R3-CV (Tenn. Ct. App. Feb. 5, 2025). The syllabus from the majority opinion reads:

A husband and wife commenced this health care liability action by filing a complaint against a medical doctor and his practice. Along with their complaint, the couple filed a “Certificate of Good Faith” as required by Tennessee Code Annotated § 29-26-122(a), which requires certification that an expert has reviewed the available medical records “for the incident or incidents at issue” and that the expert believed there was “a good faith basis to maintain the action consistent with the requirements of § 29-26-115.” The original complaint alleged that the defendants caused severe permanent and physical injuries when they failed to properly diagnose and treat the husband’s cancer. After the husband died, the wife filed an amended complaint that alleged that the defendants’ negligence also caused the husband’s death. But the wife did not file a new certificate of good faith. For this reason, the defendants sought dismissal under Tennessee Code Annotated § 29-26-122(c). The trial court granted the motion, and this appeal followed. The issue is whether § 29-26-122(a) requires plaintiffs to file a new certificate of good faith with an amended complaint that alleges a new injury based on already-alleged negligent acts by existing defendants. In Sirbaugh v. Vanderbilt University, 469 S.W.3d 46 (Tenn. Ct. App. 2014) we held that a new certificate is required when adding new defendants to existing claims. And in Estate of Vickers v. Diversicare Leasing Corp., No. M2021-00894-COA-R3-CV, 2022 WL 2111850 (Tenn. Ct. App. June 13, 2022), we held that a new certificate is required when adding new allegations of negligence against existing defendants. Accordingly, we conclude that a new certificate is required when adding an injury based on existing claims against existing defendants. For this and other reasons, we affirm the trial court’s judgment in all respects.

The majority slip opinion is at this link: https://tinyurl.com/yc8dmcjr.

The partial concurring and dissenting opinion is at this link: https://tinyurl.com/yc67zdmm.

NOTE: Look for the plaintiff in this action to seek review by the Supreme Court of Tennessee via Rule 11 of the Tennessee Rules of Appellate Procedure. 

Trial Court's Grant of the Defense's Motion for Summary Judgment Upheld on Appeal Because of the Plaintiff's Untimely Response Thereto

The Tennessee Court of Appeals has released its opinion in Brecker v. Story, No. M2023-01640-COA-R3-CV (Tenn. Ct. App. Jan. 27. 2025).  The syllabus reads:

The plaintiff filed this lawsuit against his former attorney and her law firm, alleging legal malpractice and related claims. The defendants filed a motion for summary judgment, supported by the affidavit of the defendant-attorney and various other documents. Just days before the hearing on the motion for summary judgment, the plaintiff filed an untimely response to the motion for summary judgment along with voluminous exhibits. The defendants asked the trial court to disregard the late-filed exhibits and grant them summary judgment. The trial court found that the plaintiff’s response was untimely and deemed it stricken. In the absence of a response, the trial court also took the defendants’ statements of undisputed material facts as true. It then examined each of the causes of action asserted by the plaintiff and concluded that no genuine issues of material fact existed and that the defendants were entitled to judgment as a matter of law on all claims. The plaintiff appeals. We affirm and remand for further proceedings.

Here is a link to the slip opinion: Majority Opinion - M2023-01640-COA-R3-CV.pdf.

NOTE: This is a must-read decision for any lawyer who handles cases that are governed by the Tennessee Rules of Civil Procedure. 

New Health Care Liability Action Opinion: Grant of Summary Judgment to the Defense Upheld on Appeal Due to the Statute of Repose Barring the Claims and the Exception to the Statute of Repose, Fraudulent Concealment, Did Not to Apply

The Tennessee Court of Appeals recently released its opinion in Estate of Rowe v. Wellmont Health System, No. E2024-00431-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2024). The syllabus from the slip opinion reads: 

Paul David Rowe was not informed of a radiology report, which revealed two masses in his kidneys indicative of renal cancer, for five years. Mr. Rowe passed away after suit was filed, but his wife, Sharon K. Rowe, both individually and as the administrator ad litem of his estate, (“Plaintiffs”) maintained a health care liability action against the allegedly negligent parties, Wellmont Health System d/b/a Wellmont Bristol Regional Medical Center (“Wellmont”), Carl W. Harris, Jr., D.O. (“Dr. Harris”), and Northeast Tennessee Emergency Physicians [] (collectively, “Defendants”) in the Circuit Court for Sullivan County (“the Trial Court”). Defendants filed two separate motions for summary judgment, arguing that the three-year statute of repose barred Plaintiffs’ action. Plaintiffs raised the defense of fraudulent concealment. The Trial Court granted the motions for summary judgment finding that Defendants had no actual knowledge until 2015 that Mr. Rowe had or might have had cancer in 2010, and therefore, had nothing to fraudulently conceal. Plaintiffs appealed. We affirm.

Here is a link to that opinion: Estate of Paul Rowe Et Al. v. Wellmont Health System Et Al. Opinion.pdf.

NOTE: This recent opinion on fraudulent concealment in the health-care-liability-action (f/k/a medical malpractice action) context is a must read for any lawyer who handles these types of cases where Tennessee substantive law applies. 

New SCOTN Opinion Declines to Recognize a Cause of Action for Wrongful Foreclosure, Offers an Analysis of Standing Under the United States and Tennessee Constitutions, Etc.

The Tennessee Supreme Court has issued its opinion in Case v. Wilmington National, N.A., No. E2021-00378-SC-R11-CV (Tenn. Nov. 14, 2024). The syllabus from the slip opinion reads:

Plaintiff Terry Case did not make his mortgage payments for several years. The real property which secured his loan was subsequently sold at a foreclosure sale following the postponement of a prior sale date. Mr. Case brought a claim for “wrongful foreclosure,” among others, alleging Defendants Wilmington Trust, N.A. and Wilson & Associates, PLLC violated the notice requirements in the applicable deed of trust by failing to provide him with written notice of the postponement. The trial court granted summary judgment to Defendants, and Mr. Case solely appealed the dismissal of his claim for “wrongful foreclosure.” The Court of Appeals reversed, finding that Defendants failed to satisfy their notice obligations under the deed of trust and that summary judgment on the claim for “wrongful foreclosure” was therefore inappropriate. Defendant Wilmington Trust applied for permission to appeal to this Court, and we granted review to determine (1) whether Tennessee recognizes a common law cause of action for “wrongful foreclosure,” and (2) whether the Fannie Mae/Freddie Mac Uniform Deed of Trust requires written notice of postponement in addition to oral announcement pursuant to section 35-5-101(f) of the Tennessee Code. We further instructed the parties to address whether Mr. Case satisfied the requirements for constitutional standing. We hold that Mr. Case has constitutional standing to bring his claim. However, we also hold that there is no common law cause of action for “wrongful foreclosure” in Tennessee. As a result, we reverse the judgment of the Court of Appeals and remand to the trial court for entry of an order consistent with this opinion. 

Here is a link to the majority opinion: 

Majority Opinion - E2021-00378-SC-R11-CV_0.pdf

Here is a link to Chief Justice Kirby's concurring opinion:

Separate Opinion - E2021-00378-SC-R11-CV.pdf

NOTE: While the wrongful foreclosure does not interest me that much, the discussion of standing under Tennessee's open courts provision of its constitution is very interesting and worth a read. 

New Health Care Liability Action Opinion: Summary Judgment for the Defense Upheld on Appeal Because Plaintiff's Expert Proof Was Insufficient to Create a Genuine Issue of Material Fact

The Tennessee Court of Appeals has released its decision in Dickerson v. United Medical Transportation, LLC, No.  No. W2023-01084-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2024). The opinion's syllabus reads:

After suffering an injury, patient alleged that in-patient facility was negligent in failing to inform medical transportation company of his physical limitations prior to his discharge from the facility. In response to the facility’s summary judgment motion, patient relied on the testimony of an “expert in passenger ground transportation.” The trial court found that issues of fact remained as to patient’s ambulation needs, but granted summary judgment as to standard of care and breach because patient’s expert was not competent to testify under the Tennessee Health Care Liability Act, and the common knowledge exception did not apply. Finding no reversible error, we affirm.

Here is a link to the slip opinion: DickersonRobertOPN.pdf.

NOTE: This opinion reminds one of the general need for expert testimony for one to prevail in a health care liability action. 

Claim Against the State Barred Because Sovereign Immunity Has Not Been Removed for Gross Negligence.

The Tennessee Court of Appeals has released its decision in Gordon v. State, No. W2023-01012-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2024). The syllabus from the slip opinion reads:

The State appeals a judgment against it for an injury caused by the gross negligence of its employees in the creation or maintenance of a dangerous condition on state-owned property. Because we conclude that the Tennessee Claims Commission lacks subject matter jurisdiction over claims for gross negligence, we reverse.

Here is a link to that opinion: GordonTannaOPN.pdf (tncourts.gov).

NOTE: This is a must-read opinion for any lawyer who is handling a case before the Tennessee Claims Commission (especially where Tennessee's Recreational Use Statute is in play). 

Dismissal of Plaintiff's Third Lawsuit Upheld on Appeal Because It Was Not Timely Filed under the Saving Statute; Appeal Held to Be Frivolous

The Tennessee Court of Appeals has issued its opinion in Abdou v. Brown, No. M2023-01593-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2024). The syllabus reads:

This appeal arises from a civil action that was commenced and voluntarily dismissed without prejudice twice before the plaintiff refiled the same action for a third time. The defendants responded to the third filing by moving to dismiss on the ground that the third action was filed outside of the applicable statute of limitations. Relying on the authority in Payne v. Matthews, 633 S.W.2d 494 (Tenn. Ct. App. 1982), the trial court agreed with the defendants and dismissed the action with prejudice. The plaintiff appeals. We affirm. In their brief, the defendants/appellees ask this court to award them their attorney’s fees and expenses incurred in defending this appeal, contending that the appeal is frivolous. Finding that the appeal is devoid of merit and, therefore, frivolous, we remand this matter to the trial court to award the defendants/appellees their reasonable and necessary attorney’s fees and expenses incurred in defending this frivolous appeal.

Here is a link to that slip opinion: Majority Opinion - M2023-01593-COA-R3-CV.pdf (tncourts.gov).

NOTE: This opinion explains the interaction between the saving statute and Rule 41 of the Tennessee Rules of Civil Procedure. It also explains when an appeal is frivolous. Being familiar with this opinion will keep a lawyer out of trouble in my humble opinion. 

Summary Judgment for the Defense Upheld on Appeal: Plaintiff Failed to Rebut Defendant's Motion for Summary Judgment

The Tennessee Court of Appeals has released its opinion in Brooks v. Whaley Construction, LLC, No. E2023-00711-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2024). The syllabus from the slip opinion reads:

This is an appeal from a premises liability claim brought against a construction company. The plaintiff tripped over a cut signpost while walking along a highway in Blount County, Tennessee. The plaintiff alleged that the defendant construction company caused, created, or had knowledge of the signpost and had a duty to the plaintiff. Following a motion for summary judgment by the construction company, the trial court determined that that construction company was not responsible for the signpost and thus owed the plaintiff no duty of care. The plaintiff appealed to this Court. Discerning no reversible error, we affirm. 

Here is a link to that opinion: E2023-00711 Opinion.pdf (tncourts.gov).

NOTE: This opinion does, among other things, a good job of setting out what must be done by a defendant or a plaintiff who moves for summary judgment. A good read in my humble opinion. 

New Health Care Liability Action Opinion: Summary Judgment for the Defense Reversed on Appeal Due to Lack of Imputation of Knowledge to Plaintiff's Attorney and the Discovery Rule

The Tennessee Court of Appeals released its opinion today in Mark v. Eck, No. E2023-01643-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2024). The syllabus reads: 

This appeal concerns the discovery rule. Dr. Jason C. Eck, D.O. (“Defendant”) performed spinal surgery on Keetly Marc (“Plaintiff”). On November 10, 2020, Plaintiff’s counsel, who then was representing Plaintiff only in a workers’ compensation case, received information through discovery reflecting that Plaintiff’s surgery was performed at the wrong level. Counsel reviewed the material on November 30, 2020, and informed Plaintiff by December 4, 2020. On November 24, 2021, Plaintiff sent pre-suit notice. On March 30, 2022, Plaintiff sued Defendant in the Circuit Court for Hamilton County (“the Trial Court”) alleging health care liability. Defendant filed a motion for summary judgment asserting the statute of limitations. The Trial Court granted summary judgment to Defendant. Plaintiff appeals. We hold that Plaintiff cannot be charged with constructive notice based on her attorney’s November 10, 2020, receipt of the relevant information because counsel was then representing Plaintiff only in a workers’ compensation case, and a potential health care liability claim was beyond the scope of her representation. Thus, the knowledge obtained by Plaintiff’s counsel on November 10, 2020, may not be imputed to Plaintiff. Plaintiff was made aware of the relevant information at some point from November 30, 2020, through December 4, 2020, meaning her lawsuit against Defendant was timely filed. We reverse the Trial Court’s judgment and remand for this case to proceed.

Here is the slip opinion: Keetly Marc v. Jason Eck, D.O. Opinion.pdf (tncourts.gov).

NOTE: Look for the defendant to seek review of this decision by the Tennessee Supreme Court.