Court Requires Production of Pre-suit Expert Statement Supporting Certificate of Good Faith

When a defendant files a motion “requesting the court to compel the plaintiff or his counsel to provide the court with a copy of the expert’s signed written statement that was relied upon in executing the certificate of good faith” pursuant to Tenn. Code Ann. Section 29-26-122 of the HCLA, that motion does not have to be raised as part of a motion for summary judgment or motion for discretionary costs.

In Jones v. Hargreaves, No. M2017-01271-COA-R3-CV (Tenn. Ct. App. July 23, 2018), plaintiff filed an HCLA complaint accompanied by a certificate of good faith signed by his counsel. Defendant doctor filed a motion for summary judgment, supported by his own affidavit. Plaintiff never responded to the motion for summary judgment, and plaintiff’s counsel moved to withdraw before the hearing. The motion was eventually granted, with plaintiff never filing a response.

After summary judgment, defendant “filed a motion pursuant to section 29-26-122(d)(2) to compel [plaintiff] to produce the expert’s signed written statement relied upon in executing the certificate of good faith filed with the complaint and requesting the court to determine if [plaintiff’s] attorneys complied with [the statute] in executing and filing the certificate of good faith.” Plaintiff’s former counsel responded to this motion, asserting that he did comply with the statute but that he “decided not to pursue the case due to the lack of a permanent injury and the expense of pursuing this matter with lack of significant damages.”

The trial court denied defendant’s motion, finding that he should have raised this issue in his motion for summary judgment or in a motion for discretionary costs. This appeal followed, and the Court reversed this decision via a memorandum opinion.

The Court of Appeals noted that the subsection of the HCLA at issue gives courts the “tools needed to determine whether the certificate of good faith was itself executed in good faith,” and “creates additional consequences” if it was not. According to the statute, the only prerequisite to invoking this section is that “the party prevail on the basis of the failure of an opposing party to offer any competent expert testimony.” There is no requirement that such a motion be presented as a motion for summary judgment or for discretionary fees, and the trial court was wrong to read that requirement into the statute. Here, because defendant had prevailed due to plaintiff’s failure to present any expert testimony, the threshold for invoking this section had been met. The judgment of the trial court was thus reversed.

While this issue doesn’t arise often, it is important for lawyers filing HCLA claims to be aware of this section and ensure that they follow statutory requirements when executing certificates of good faith.  There is a risk of fee-shifting if for lack of compliance with the statute.