Lataisha M. Jackson v. Charles Anthony Burrell, 602 S.W.3d 340

In April 2014 plaintiff Lataisha Jackson alleges a massage therapist employed by Gould’s sexually assaulted her during a massage.
Prior to the alleged assault, two customers complained to Gould’s (Dec. 2013 and Mar. 2014) that the therapist had behaved inappropriately and made them uncomfortable.
Jackson sued Gould’s for negligent training, supervision, and retention (among other claims); Gould’s is a “health care provider” under the Tennessee Health Care Liability Act.
Jackson did not file a certificate of good faith under Tenn. Code Ann. § 29-26-122, arguing expert proof was not required because the claim fell within the common knowledge exception.
The trial court granted summary judgment for Gould’s for failure to file the certificate; the Court of Appeals affirmed.
The Tennessee Supreme Court reversed, holding Jackson did not waive the common-knowledge argument and that expert testimony was not required to prove Gould’s negligence on these facts; the summary judgment was vacated and the case remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of the common knowledge exception on appeal	Jackson argued below and on appeal that expert proof was unnecessary and relied on lay common sense (so no waiver)	Gould’s argued Jackson waived the argument by not framing it as the “common knowledge exception”	Court: No waiver—Jackson raised the substance (lack of need for expert proof) in trial court and on appeal; appellee bears burden to show waiver
Whether expert testimony (and thus a certificate of good faith) was required for negligent training/supervision/retention	Jackson: Common knowledge exception applies because claims concern nontechnical supervision/training decisions after known complaints; jurors can decide without industry expert	Gould’s: Industry standards require expert proof; the complaints did not allege sexual assault and facts about Gould’s response are unclear, so expert testimony is needed	Court: Held common knowledge exception applies; negligence in retaining/supervising a therapist who had prior inappropriate conduct is within lay understanding, so expert testimony and certificate were not required

Fayne v. Vincent, 301 S.W.3d 162 (Tenn. 2009) (encourages deciding appeals on merits; waiver principles)
Powell v. Community Health Sys., Inc., 312 S.W.3d 496 (Tenn. 2010) (do not exalt form over substance when assessing waiver)
Osunde v. Delta Medical Ctr., 505 S.W.3d 875 (Tenn. Ct. App. 2016) (common knowledge exception applied where an unstable stool was obviously negligent)
Zink v. Rural/Metro of Tennessee, L.P., 531 S.W.3d 698 (Tenn. Ct. App. 2017) (common knowledge exception applied to EMT striking a restrained patient)
Miller v. Willbanks, 8 S.W.3d 607 (Tenn. 1999) (expert testimony unnecessary where jury can assess serious mental injury from intentional conduct)