Denial of Motion to Revise (Alter or Amend) Reversed

Where plaintiffs had attempted to communicate with a second expert and eventually obtained an affidavit from him, the Court of Appeals ruled that the trial court should have granted plaintiffs’ motion to alter or amend.

In Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-COA-R3-CV (Tenn. Ct. App. June 29, 2018), plaintiffs filed an HCLA claim after decedent died shortly after being incarcerated at the Hickman County jail. Decedent was arrested at a traffic stop and found to be in possession of drugs. She “started experiencing symptoms of narcotic withdrawals” and requested medical treatment. She was treated at the jail by Nurse Cloud, was later found unresponsive in her cell, and died the next day. Nurse Cloud was an employee of defendant, and the jail had a contract with defendant for medical care.

Both plaintiffs and defendant filed motions for summary judgment in this case. The trial court ultimately granted defendant’s motion for summary judgment based on plaintiffs’ inability to prove causation. The trial court ruled that the expert relied upon by plaintiff was not competent to give causation testimony under Tennessee law, and that there was thus no genuine issue of material fact. One month after this ruling, plaintiffs submitted a Motion to Revise (which the trial court and Court of Appeals determined was actually a Rule 59 Motion to Alter or Amend), supported by declarations from a new expert witness. The trial court denied the motion, but the Court of Appeals reversed this ruling.

In its motion for summary judgment on causation, defendant presented testimony from a doctor who was board certified in emergency medicine and toxicology and who opined that decedent had “hypertensive heart disease and more likely than not died from a cardiac arrhythmia.” In response, plaintiffs submitted testimony from a doctor who was board certified in neurology and psychiatry and opined that decedent died from mistreatment of drug withdrawal. Defendant challenged plaintiffs’ expert’s competency, and the trial court ultimately agreed that plaintiffs’ expert’s credentials did not make him competent to testify as to causation in this case, and thus granted defendant summary judgment since plaintiff had produced no admissible evidence countering defendant’s expert.

Summary judgment was granted on April 4, 2016, and plaintiffs submitted their Motion to Revise on May 4, 2016, supported by declarations from a second expert who was a pathologist. In denying this Motion to Revise, the trial court relied heavily on the timeline of this litigation. Plaintiffs’ counsel knew that defendant was going to challenge the competency of their first expert as early as October 12, 2015, with the motion officially filed on October 15th. The motion for summary judgment was argued on November 2, 2015, and was taken under advisement for five months before the trial court issued its ruling. Plaintiffs’ counsel had been in contact with the second expert for two years before the summary judgment motion was filed, but did not want to incur the expense of getting declarations from him. After the motion was filed, plaintiffs’ counsel emailed expert 2 on October 16 and 20, but got no response. Plaintiffs received a voicemail from expert 2 on December 1st explaining that he had suffered a back injury. At no point during the argument or pendency of the motion for summary judgment did plaintiffs request a continuance or seek an extension of time to obtain expert affidavits. With these facts in mind, the trial court ruled that “it would be unfairly prejudicial to Defendant to grant Plaintiffs’ Motion after Plaintiffs had numerous chances to submit Dr. Sperry’s testimony or ask for an extension of time during the Summary Judgment phase.” The Court of Appeals, however, disagreed.

When a party files a motion to alter or amend based on newly submitted evidence, the trial court must consider:

(1) the moving party’s effort to obtain the evidence in responding to the summary judgment; (2) the importance of the new evidence to the moving party’s case; (3) the moving party’s explanation for failing to offer the evidence in responding to the summary judgment; (4) the unfair prejudice to the non-moving party; and any other relevant considerations.

(internal citation omitted). The Court of Appeals looked at these factors and determined that they weighed in favor of granting the Motion to Revise.

First, the Court of Appeals looked at plaintiffs’ efforts to obtain the second expert’s declaration and their reasons for not obtaining it earlier. The Court pointed out that plaintiffs sent two emails immediately after the summary judgment motion was filed, and that in the November 2nd hearing, plaintiffs counsel mentioned that if the motion was granted, plaintiffs “would request the opportunity to get another expert that could address her points.” The Court also noted that the reason plaintiffs had been in communication with expert 2 but not yet gotten an affidavit from him was “in part due to the high cost of pathologist testimony.” Based on this information, the Court of Appeals found that plaintiffs “promptly submitted [expert 2’s] declaration” upon the court’s ruling that their first expert was not competent, and that the plaintiffs’ actions up to that point were reasonable.

Next, the Court analyzed the importance of the new evidence to plaintiffs’ case. An HCLA plaintiff must prove causation through expert testimony, and since plaintiffs’ original expert was deemed not competent, this new expert testimony was “critical to Plaintiffs’ case because his opinion on causation expressed therein raises a genuine issue of material fact.” While defendant asserted that even the pathologist’s affidavit failed to raise an issue of fact, the Court of Appeals disagreed, finding: “Plaintiffs were not required to produce an expert witness who specialized in ‘toxicology’ or whose practice regular[ly] involves the treatment of live patients.” The pathologist was “licensed to practice a profession or specialty that would make [his] expert testimony relevant to the issues in the case,” so his importance to the case was very high.

Finally, the Court examined whether there would be unfair prejudice to defendant in granting the motion to revise. The Court pointed out that defendant had not identified any prejudice, that no trial date had been set, and that no expert depositions had been taken. The Court ruled that “[g]iven the policy of our courts to hear cases on their merits, and in the absence of unfair prejudice to Defendant, the interests of justice would have been promoted had the court granted the motion to revise.”

In addition to the Motion to Revise, a motion for summary judgment regarding the loaned servant doctrine was also at issue on appeal. Under the loaned servant doctrine, “the liability of an employer can be shifted to another employer” where “a general employer ‘loans’ his agent to a special employer, thereby giving the special employer control over the agent, along with responsibility for the agent’s acts or omissions.” (internal citations omitted).  The argument here was whether Nurse Cloud was a “servant” of defendant or of the Hickman County jail. The Court pointed out that there was conflicting testimony regarding who supervised Nurse Cloud, who provided equipment, and who provided instruction. Because there were genuine issues of material fact regarding “who actually controlled Nurse Cloud and to what degree,” summary judgment was inappropriate on this issue, and the trial court’s denial of both plaintiffs’ and defendant’s motions was affirmed.

Next, the Court looked at defendant’s argument that the case should be dismissed due to a settlement agreement reached in a prior case regarding decedent’s death. At issue here was whether language in the settlement agreement that released agents of Hickman County included Nurse Cloud, but the Court of Appeals pointed out again that whether Nurse Cloud was an agent of Hickman County was an issue of fact. Accordingly, the trial court was right to deny summary judgment on this point.

Last, defendant took issue with a claim raised in plaintiffs’ third amended complaint, asserting that it was barred by the statute of limitations. The claim was that “defendant was liable for the negligent training and supervision of Nurse Cloud,” and it had been included in the original complaint and the first amended complaint, but left out of the second amended complaint. The Court of Appeals affirmed the trial court’s holding that the amendment related back to the “conduct, transaction, or occurrence set forth…in the original complaint,” and therefore the amendment was not futile and the claim was not time barred.

Ultimately, the Court of Appeals affirmed the trial court in part, but reversed “the judgment denying Plaintiffs’ Motion to Revise.”

Judge McBrayer wrote a dissent, opining that the trial court did not abuse its discretion by denying the Motion to Revise. He focused on the fact that plaintiffs “could have put forth more effort” in contacting the second expert, as they did not even call his office. He also relied on the plaintiffs’ failure to request a continuance and the fact that the court waited several months after the hearing to rule, during which time plaintiffs did nothing to pursue the second expert.

While the plaintiffs here were saved on appeal, this result is not common. It can be quite difficult to get a Motion to Alter or Amend reversed on appeal and a party would be advised to gather his or her evidence and make his or her legal arguments in response to the original motion.  The saving grace here for the plaintiffs was announcing at the hearing on the original motion that it was their intention to utilize another expert if the first one was disqualified, coupled with the unavailability of the alternate expert.