Day on Torts
When faced with a TPPA petition to dismiss, a plaintiff must present more than conclusory statements to establish a prima facie case for their claims.
In Blythe v. Forshythe, No. M2023-01463-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2025), the plaintiff was a surgeon and the defendant was a scrub tech. The plaintiff and the defendant had a verbal altercation during a surgery, and the defendant scrub tech stated that the plaintiff grabbed her wrist and physically knocked her off a stool in the operating room.
After the surgery, the defendant gave a statement to the hospital, filed a police report, and filed a complaint with the health board. Based on these verbal and written statements, the plaintiff surgeon filed this case asserting claims for defamation and intentional interference with a business relationship against the defendant scrub tech. The defendant filed a petition to dismiss under the Tennessee Public Participation Act (“TPPA”), which the trial court granted, and the Court of Appeals affirmed.
When considering a dismissal petition under the TPPA, a court must first consider whether the defendant has met the initial burden of showing that the TPPA applies. If he or she has, the burden then shifts to the plaintiff to establish a prima facie case for each element of the claims in the complaint.
Here, the trial court found that the TPPA applied to this case for two reasons. It determined that the defendant’s statements related to her right to free speech, as the statements involved a matter of public concern—“the health and safety of [the defendant, the plaintiff], other staff in the room, and most importantly, the patient who was under anesthesia and completely vulnerable during these events.” In addition, the trial court ruled that the statements to the police and the health board constituted both “the exercise of free speech” and the “exercise of the right to petition.”
On appeal, the plaintiff argued that the TPPA did not apply because the defendant’s statements were false. The plaintiff argued that false statements are not protected by the constitution, which meant they would not fall within the TPPA. The Court of Appeals, however, rejected this argument. The Court stated that the plaintiff’s argument “puts the cart before the horse.” Noting that during the first stage of the TPPA analysis “the evidence is considered in a light most favorable to” the moving party, the Court stated that the plaintiff’s “contention that he has more convincing evidence that the statements are false than [the plaintiff] has that they are true is of no consequence regarding resolution of step one of the TPPA analysis.” The ruling that the TPPA applied was thus affirmed.
Next, the Court considered whether the plaintiff had established a prima facie case of the elements of his claim under step two of the TPPA analysis. For the intentional interference with business relationships claim, the Court found that the plaintiff presented nothing more than conclusory statements to support the element of damages. The Court stated that it needed “[f]acts, not conclusory statements,” in response to a TPPA dismissal petition. Here, the plaintiff failed to offer any specific facts or information about how his business relationship was affected. To “make a prima facie case under the TPPA, a party must present enough evidence to allow the jury to rule in his favor on that issue.” (internal citation omitted). The plaintiff failed to meet that standard.
The Court also explained that if the plaintiff were attempting to rely on an injury to his reputation as a form of damages, he would have to show “real or actual damages.” The plaintiff’s conclusory statements regarding his reputation were “vague, general and conclusory” and were not sufficient for a jury to find for him. (internal citation omitted).
Regarding the plaintiff’s defamation claims, the Court pointed out that damages are also an essential element of that claim. For the same reasons that conclusory allegations stating that his reputation had been harmed were not enough to make a prima facie showing of intentional interference with a business relationship, they were not enough to make a prima facie showing of defamation.
Dismissal pursuant to the TPPA petition was affirmed, and costs of the appeal were taxed to the plaintiff.
The TPPA continues to be heavily litigated, with Tennessee plaintiffs and defendants now having access to more opinions analyzing the application of this statute. This case shows that a plaintiff faced with a TPPA petition needs facts, not conclusory statements, to survive potential dismissal.
This opinion was released sixteen months after oral arguments in this case.