This week, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), “return[ing] to a summary judgment standard consistent with Rule 56 of the Federal Rules of Civil Procedure.”
In Rye v. Women’s Care Center of Memphis, PLLC, No. W2013-00804-R11-CV (Oct. 26, 2015), plaintiff had Rh negative blood, and defendant failed to test and subsequently treat her with a specific injection during her third pregnancy. Because she was not treated, plaintiff became Rh-sensitized. The record contained extensive testimony regarding the risks to plaintiff and to any future pregnancies. Essentially, regarding future children, the evidence showed that if several contingencies occurred—“a future pregnancy, an Rh positive fetus, antibodies crossing the placenta—it [was] undisputed that the unborn fetus would face a number of risks, ranging from mild to severe.” Because plaintiff and her husband were Catholic, they asserted that they were limited in what steps they could take to avoid future pregnancies. Regarding the harm or risks to plaintiff herself, plaintiff’s own expert testified that the risk to her was that if she had an emergency situation and needed blood, the transfusion process could be longer because finding a match for sensitized blood could take more time.
Plaintiffs’ complaint asserted causes of action for health care liability, negligent infliction of emotional distress (NIED) for both plaintiff and her husband, and disruption of family planning. Defendants moved for summary judgment, arguing that the plaintiffs had “no existing actual injuries or damages resulting from the deviation,” that plaintiffs had “failed to allege future injuries to a reasonable medical certainty,” and that plaintiffs did not properly support their NIED claims. The trial court granted summary judgment as to all claims “for future damages to [plaintiff] arising from blood transfusions or future pregnancies,” finding that those damages had “yet to be sustained” and were speculative. The trial court also granted summary judgment on husband’s NIED claim, as he had not suffered physical injury and had not offered the required expert proof for an emotional distress action. Finally, the trial court granted summary judgment as to plaintiff’s “independent cause of action for disruption of family planning,” finding that Tennessee did not recognize such a claim. The court, however, denied summary judgment on plaintiff wife’s NIED claim, ruling that there was a genuine issue of material fact as to whether the change in her blood constituted a physical injury and also holding that she would be allowed to present evidence regarding how her family plans had changed as an element of her damages.
On appeal, the Court of Appeals affirmed in part and reversed in part. The Court affirmed denial of summary judgment as to the issue of whether wife had a physical injury that would support her NIED claim, and also affirmed summary judgment as to the claim for disruption in family planning. The Court of Appeals, however, “reversed the trial court’s grant of summary judgment to the Defendants on [plaintiff’s] claim for future medical expenses associated with future pregnancies and on [husband’s] NIED claim.” While the Court indicated that it believed the trial court had gotten these issues correct, it explained that Hannan had “created a particularly high standard” and that defendants “had failed to disprove an essential factual claim and thus had failed to meet the high Hannon standard.” Further, it determined that under Hannan husband’s “failure to submit expert proof to support his NIED claim prior to the trial in this case is not sufficient to support a grant of summary judgment.”
Summary Judgment Standard
The Supreme Court began its review of this case by setting out the history of Tennessee’s summary judgment law. The Court noted that in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), Tennessee purported to embrace the federal standard, as well as federal cases interpreting that standard. According to the Court, though, the pronouncement that Tennessee was embracing the federal standard was “[u]nfortunately…followed up…with several observations intended ‘to place a finer point on the proper use of the summary judgment process in this state.’” In Byrd, the Court stated that a moving party may satisfy its summary judgment burden in several ways, but it only provided two examples: “affirmatively negating an essential element of the nonmoving party’s claim” or “conclusively establish[ing] an affirmative defense that defeats the nonmoving party’s claim.”
Following Byrd confusion ensued, with at least some interpreting Tennessee’s summary judgment standard to now be more rigorous than the federal standard. “The confusion centered on whether the party seeking summary judgment must itself affirmatively negate an essential element of the nonmovant’s claim or whether it can just point to the nonmovant’s failure to come forward with evidence supporting the claim.” (internal quotation and citation omitted). The Supreme Court “granted permission to appeal in Hannan to settle the debate and resolve the confusion about the proper interpretation of Byrd.” In Hannan, the Court held that “a moving party who seeks to shift the burden of production to the nonmoving party who bears the burden of proof at trial must either: (1) affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element of the claim at trial.” The Hannan Court noted that Tennessee had begun moving away from the federal standard in Byrd.
In the present matter, the Court looked at the entire history of the law, as well as the effects and aftermath of Hannan, and “conclude[d] that the standard adopted in Hannan is incompatible with the history and text of Tennessee Rule 56 and has functioned to frustrate the purposes for which summary judgment was intended—a rapid and inexpensive means of resolving issues and cases about which there is no genuine issue regarding material facts.” The Court held that “the standard has shifted the balance too far and imposed on parties seeking summary judgment an almost insurmountable burden of production.” Instead, the Court ruled:
[I]n Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either (1) by affirmatively negating an essential element of the nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the summary judgment stage is insufficient to establish the nonmoving party’s claim or defense. We reiterate that a moving party seeking summary judgment by attacking the nonmoving party’s evidence must do more than make a conclusory assertion that summary judgment is appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving party to support its motion with ‘a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.’
As the Court noted in a footnote, the Tennessee legislature took it upon itself to clarify summary judgment law in 2011, passing Tenn. Code Ann. Section 20-16-101. Interestingly, the language used in that statute is nearly identical to the language adopted by the Court in this case. The statute, however, only applies to actions filed on or after July 1, 2011.*
Summary Judgment Standard Applied to this Case
Applying this newly defined standard to the present matter, the Court found that summary judgment was appropriate as to claims for future medical expenses related to wife’s Rh-sensitization. The Court held that “the undisputed facts demonstrate that [wife] has not sustained any damages related to this injury and that no such damages are reasonably certain to occur.” The Court found that even if the change in her blood were itself considered a physical injury, there was no reasonable certainty that she would sustain damages for future medical expenses related to this blood change. For both future blood transfusions and future pregnancies, the Court deemed any expenses too speculative, noting that several contingencies would have to occur for these damages to come into play. The Court held that “[b]ecause the Defendants have demonstrated, after adequate time for discovery, that [wife] lacks proof of an essential element of her claim and [wife’s] response fails to identify proof supporting her claim, the Defendants are entitled to summary judgment.”
The Court also found that summary judgment was appropriate as to both husband and wife’s NIED claims. For husband, there was no physical injury, so Tennessee law required him to support his claim with expert proof. Because defendants demonstrated that he failed to do so at this point, they were entitled to summary judgment. As to wife’s claim, expert proof was not required as her claim was parasitic to her health care liability claim. The Court held, however, that summary judgment was still warranted, as wife had “offered no proof at all to demonstrate that she has suffered a severe or serious mental injury.” The Court pointed out that wife had not sought counseling or treatment, had not lost time from work or business activities, and had carried on with parenting responsibilities. Based on these facts, the Court concluded that there was no “genuine issue of material fact concerning the essential element of severe or serious mental injury.”
Finally, the Court affirmed the trial and appellate courts’ holding that Tennessee does not recognize a claim for disruption of family planning, and thus summary judgment was appropriate.
Justice Wade wrote a lengthy dissent in this case, disagreeing with both the overruling of Hannan and the outcome of this case. According to him, “the principles articulated in Hannan, when interpreted in light of the history or summary judgment in Tennessee, set forth the preferable standard for shifting the burden of proof at summary judgment—one that is fully consistent with Tennessee Rule of Civil Procedure 56.” When applying the summary judgment standard to this case, Justice Wade stated that three of plaintiff’s claims should proceed to trial: “(1) whether [wife]’s condition of Rh-sensitization has caused her harm in the form of a present physical injury; (2) whether [wife’s] Rh-sensitization has caused her harm in the form of emotional distress; and (3) whether [wife]’s Rh-sensitization is reasonably certain to cause her prospective harm related to future pregnancies.”
According to the dissent, the Rh-sensitization was “a present physical injury in the form of an altered bodily status, despite the lack of current physical symptoms.” The dissent asserted that other jurisdictions have recognized this as a compensable injury and that such a claim should not be dismissed at the summary judgment stage.
As to emotional distress, the dissent found that wife’s claim should survive summary judgment because wife’s testimony was enough to support her claim. Wife had stated that she was “scared to death,” that she thought about it every day, and that she had daily anxiety. From this, Justice Wade found that a reasonable juror could conclude that wife had “genuine and profound emotional distress.”
Finally, as to future pregnancies, Justice Wade stated that because plaintiffs “have expert proof that [wife’s] Rh-sensitization is more likely than not to result in future medical expenses [related to future pregnancies], the Defendants have neither affirmatively negated an element of [plaintiffs’] claims nor otherwise demonstrated that [wife] will be unable to prove future damages at trial. Moreover, the dissent looked to the future implications of granting summary judgment on this claim, noting that should wife become pregnant and suffer damages, she might be barred from then recovering on those damages by the statute of limitations if the injury were deemed to have occurred when the improper treatment of the third pregnancy occurred and the sensitization were caused.
While this opinion is far less relevant for cases filed after July 1, 2011, it clarified Tennessee law and brought Tennessee back in line with both federal standards and the majority of other state standards for summary judgment. Now, whether common law or statutory law apply, the standard for summary judgment appears to be the same in Tennessee. I add it is no particular surprise that the Court did so – that the Court asked for briefing on this issue was a clear signal that the law was probably going to change.
After overturning Hannan, however, the majority opinion seems to overlook a few important issues in this case. As Justice Wade pointed out in his dissent, the plaintiff here had suffered a physical injury in that her blood had been altered. While she had not yet had medical expenses resulting from this “injury,” the jury should have been allowed to decide whether she had any physical or emotional damages for which she could recover. Further, as to plaintiff’s emotional distress, the dissent pointed out that the majority held the plaintiff to an extremely high standard. An emotional distress claim that is parasitic to a physical injury does not require expert proof, and plaintiff’s testimony regarding her emotional distress symptoms should have been set before a jury to determine whether they were enough to show serious mental distress. Finally, the dissent pointed out a potential issue that could arise for plaintiff in the future—if she cannot recover now, but is later subjected to expenses due to a future emergency injury or additional pregnancy, it is unclear whether the statute of limitations will allow her to recover. Because health care liability is subject to a one-year statute of limitations, if plaintiff’s injury were deemed to have occurred when her blood became sensitized, she could potentially be barred from recovering any damages when it was undisputed that she did not receive proper care.
*The dissent also indicated that the Legislature did not have the power to pass this statute, and that the majority opinion avoided a future case which addressed the important issues of separation of powers and the constitutionality of the summary judgment statute.