The “Law of The Case” and Its Exceptions – Tennessee Style

A recent health care liability case illustrates the importance of putting your best case forward the first time around and not depending on appeals or “do-overs” to save your claims.

In Shipley ex rel. Shipley v. Williams, No. M2014-02279-COA-R3-CV (Tenn. Ct. App. May 19, 2016), plaintiff brought suit in 2002 alleging that defendant doctor was negligent in failing to assess her condition, failing to provide proper care, failing to admit her to the hospital, and failing to properly follow-up. In 2006, the trial court granted summary judgment to defendant on the failure to admit claim, and after granting defendant’s motion to exclude plaintiff’s expert witnesses, the trial court also granted summary judgment on the remaining claims. The Court of Appeals reversed all of the summary judgment rulings, but the Supreme Court reinstated summary judgment as to the failure to admit claim, allowed the plaintiff’s experts to testify, and allowed the balance of the case to go to the jury. The case was remanded and tried, and the jury found for defendant doctor. Plaintiff appealed.

The first issue on appeal related to the summary judgment on the failure to admit claim. On remand, the trial court initially set aside the summary judgment, “applying the ‘substantially different evidence’ exception to the law of the case doctrine.” After more discovery, though, summary judgment was reinstated, and the Court of Appeals affirmed this decision. The Court noted that the law of the case doctrine means that “an appellate court’s decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal.” (internal citation omitted).

Plaintiff asserted that three exceptions applied here: (1) that the evidence at the second trial or hearing was substantially different; (2) that the “prior ruling was clearly erroneous and would result in a manifest injustice if allowed to stand;” and (3) that the prior ruling was “contrary to a change in the controlling law[.]” (internal citation omitted).  The Court rejected this argument, noting that there was no substantially different evidence and that in particular plaintiff’s expert stated that “his medical opinions have not changed, and that nothing new has occurred to cause him to change his opinion.” The Court found that plaintiff was simply trying to reargue the merits of her claim, and thus affirmed summary judgment on the failure to admit claim.

The second main issue here was an evidentiary one related to what the plaintiff argued was defendant’s attempts to introduce evidence of “blame shifting.” Defendant did not plead comparative fault in this case, and plaintiff asserted that certain testimony regarding plaintiff knowing where the emergency room was located, testimony regarding an emergency room physician, and testimony regarding plaintiff not telling defendant about a previous hospitalization were an attempt to shift the blame to others. Defendant, on the other hand, argued that such testimony was relevant to her theory of the case that she relied on the fact that plaintiff did not complain further to her to mean that plaintiff was not having further health issues. The Court ultimately found that plaintiff’s arguments were without merit. The Court pointed out that the trial court gave a jury instruction that the jury should not consider plaintiff’s care at another hospital or the proximity of the emergency room when deciding the case. Based on this instruction, the Court ruled that “the instruction sets an appropriate balance between the procedural posture of the case, the theories advanced by the parties, and the evidence.” Finding no error, the Court of Appeals affirmed summary judgment and the jury verdict for defendant doctor.

The primary lesson here is simple—get your evidence before the Court the first time. Appellate courts will base their decisions on the evidence you manage to get in the record, and you want to give them every opportunity to decide in your favor. Once a trial and appellate court has ruled on your claim, it is next to impossible to re-argue the merits.

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