Eddie C. PRATCHER, Jr. v. METHODIST HEALTHCARE MEMPHIS HOSPITALS et al.
Supreme Court of Tennessee, at Jackson.
June 28, 2013.
407 S.W.3d 727
Nov. 8, 2012 Session Heard at Memphis.
Randall L. Kinnard and Daniel L. Clayton, Nashville, Tennessee; Steven R. Walker, Oakland, Tennessee, for the appellee, Eddie C. Pratcher, Jr.
OPINION
SHARON G. LEE, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and JANICE M. HOLDER and CORNELIA A. CLARK, JJ., joined. WILLIAM C. KOCH, JR., J., filed a dissenting opinion.
The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose,
I.
On Saturday morning, December 4, 1999, Sandra Y. Jones Pratcher, who was thirty-six weeks pregnant, was feeling ill. After she vomited what appeared to be blood, Plaintiff took her to the emergency room at Methodist Hospital-Central in Memphis.
Mrs. Pratcher was thirty-four years old, weighed 280 pounds, and suffered from hypertension. After being admitted through the emergency room, she was taken to the labor and delivery unit of the hospital. Dr. Alison Mullaly, the resident obstetrician on call, determined that Mrs. Pratcher‘s blood pressure was high. Dr. Mullaly decided to induce Mrs. Pratcher‘s labor and deliver the baby. When the baby‘s heart rate began to fluctuate downward, Dr. Mullaly decided the baby needed to be delivered by cesarean section.
Defendant had an exclusive contract to provide anesthesia services in the obstetrical labor and operating rooms at Methodist Hospital-Central. Defendant agreed to provide its services twenty-four hours a day, seven days a week. After Mrs. Pratcher was taken to the operating room, Irene C. Wadlington, a Certified Registered Nurse Anesthetist employed by Defendant, began preparing for the anesthesia process. Before Mrs. Pratcher‘s surgery began, Ms. Wadlington was called away to another operating room to assist a patient who was having an emergency cesarean section. Defendant had no other personnel in the hospital to administer Mrs. Pratcher‘s anesthesia. Dr. Dinesh Chauhan, the owner and president of Defendant, was at his home that Saturday afternoon and evening. When a nurse called him to come to the hospital, Dr. Chauhan indicated that with holiday traffic, he was forty-five minutes away. Dr. Chauhan did not go to the hospital, and instead Dr. Philip Andrew Rojas, an anesthesiologist employed by the Medical Anesthesia Group, was requested to provide
Almost immediately after Dr. Rojas administered the first anesthetic drugs to Mrs. Pratcher through an intravenous catheter, she began having respiratory distress. Multiple attempts were made to establish an airway, but Mrs. Pratcher stopped breathing and went into cardiac arrest. An endotracheal tube was inserted and medical staff were able to revive Mrs. Pratcher‘s heart, but she suffered injuries to her brain from the lack of oxygen. Mrs. Pratcher‘s doctors successfully delivered Mrs. Pratcher‘s baby, but Mrs. Pratcher lapsed into a coma and was taken to the intensive care unit. Mrs. Pratcher remained in a coma and died on January 19, 2000.
II.
On December 1, 2000, Plaintiff, as surviving spouse and next friend of Mrs. Pratcher‘s three minor children,1 filed a complaint alleging medical negligence against (1) Methodist Healthcare-Memphis Hospitals (“Methodist Hospital“); (2) Dr. Rojas; (3) Medical Anesthesia Group as the employer of Dr. Rojas; (4) Ms. Wadlington; and (5) Defendant as the employer of Ms. Wadlington.2 Plaintiff contended that the named defendants’ negligence proximately caused his wife‘s injuries on December 4, 1999, and her death on January 19, 2000. As to Defendant, the complaint specifically asserted a vicarious liability claim based on respondeat superior due to the alleged negligence of Ms. Wadlington, Defendant‘s employee and agent. Initially, Plaintiff did not sue Dr. Chauhan or include a vicarious liability claim against Defendant for any alleged negligence by Dr. Chauhan.
On January 3, 2001, Plaintiff filed an amended complaint, asserting the same allegations against Defendant. Defendant answered the amended complaint on May 30, 2001, denying any negligence and contending that the amended complaint failed to state a claim upon which relief may be granted. Defendant also pleaded the statute of limitations and comparative fault as defenses.
On December 4, 2002, the statute of repose for health care liability ran on Plaintiff‘s claims. The statute provides in pertinent part that “[i]n no event shall any such [health care liability] action be brought more than three (3) years after the date on which the negligent act or omission occurred.”
On November 1, 2005, Dr. Rojas and Medical Anesthesia Group filed a motion for leave to file an amended answer, alleging comparative fault against Defendant and Dr. Chauhan. The trial court granted this motion, and Dr. Rojas filed an amended answer on March 15, 2006.
On March 3, 2006, Plaintiff filed a second amended complaint with leave of court, asserting that Defendant was vicariously liable for the negligent acts of Dr. Chauhan and Ms. Wadlington. The amended complaint alleged that Dr. Chauhan failed to come to the hospital on December 4, 1999, when he was needed. Defendant did not answer the second amended complaint and, thus, failed to as-
On April 21, 2006, Plaintiff filed a third amended complaint with leave of court similar to the second amended complaint, alleging Defendant was vicariously liable for the negligence of Dr. Chauhan and Ms. Wadlington. Defendant did not answer the third amended complaint and, thus, again failed to raise a statute of repose defense.
On July 3, 2006, Plaintiff filed a fourth amended complaint with leave of court, alleging Defendant negligently breached its contract with Methodist Hospital because Dr. Chauhan failed to provide anesthesia care. On August 15, 2006, Defendant answered the fourth amended complaint, alleging that the complaint failed to state a cause of action upon which relief could be granted. Defendant‘s answer did not raise the statute of repose as a defense.
The pretrial order listed the contentions of the parties, including Plaintiff‘s contention that Ms. Wadlington, Dr. Chauhan, and Defendant were all at fault. A jury heard the case from September 11 to 22, 2006. As a part of his proof, Plaintiff introduced expert testimony that Dr. Chauhan and Ms. Wadlington deviated from the applicable standards of care.
At the close of Plaintiff‘s proof, the trial judge granted a directed verdict as to the direct negligence of Methodist Hospital. The case proceeded as to Medical Anesthesia Group as the employer of Dr. Rojas, Dr. Rojas, Defendant as the employer of Ms. Wadlington and Dr. Chauhan, and Ms. Wadlington. When jury deliberations began on September 21, 2006, the trial court gave the jury a verdict form that provided in pertinent part:
1. Do you find the Defendants, DR. PHILIP ANDREW ROJAS/MEDICAL ANESTHESIA GROUP, to be at fault?
Answer: _____ (YES or NO)
2. Do you find the Defendants, IRENE C. WADLINGTON, CRNA/CONSULTANTS IN ANESTHESIA, INC. to be at fault?
Answer: _____ (YES or NO)
(... If you answered Questions Number 1 and 2 “NO” sign the verdict form and notify the Court Officer.)
...
During deliberations, the jury asked the following question about the verdict form concerning Dr. Chauhan: “There is no question on the verdict form that specifically addresses Dr. Chauhan as a separate Defendant. Should there be? Or is Dr. Chauhan synonymous with Consultants in Anesthesia, Inc., in question number two?”
Plaintiff‘s counsel argued that the trial court should add a third question to the verdict form, asking whether Defendant was at fault for the negligence of Dr. Chauhan. Defendant‘s counsel countered that the verdict form was sufficient since there was no claim against Dr. Chauhan individually. The trial judge did not change the verdict form but instructed the jurors: “If you find that Dr. Chauhan is negligent, then you must also find Defendant Consultants in Anesthesia Incorporated is negligent.”
On September 22, 2006, the jury answered “NO” to both questions, returning a verdict for all of the defendants at trial. Plaintiff filed a motion for a new trial arguing, in part, that the trial court had failed to allow the jury to independently consider the fault of Defendant based on any negligence by Dr. Chauhan. The motion included the affidavit of a juror who said that she and several other jurors believed that Defendant was at fault through the actions and inactions of Dr. Chauhan.
Defendant responded to Plaintiff‘s motion for a new trial and noted, among other things, that the trial judge had instructed the jury that any negligence of Dr. Chauhan should be imputed to Defendant. At the hearing on the motion for new trial, counsel for Defendant argued that “your Honor rightfully re-instructed the jury that [Defendant] admits that Dr. Chauhan is an employee of [Defendant]. If you find that Dr. Chauhan is negligent, then you must also find [Defendant] is negligent.”
The trial judge ruled that he had made a “significant error” by not changing the jury verdict form to deal with Dr. Chauhan‘s alleged negligence. The trial judge granted Plaintiff a new trial as to all defendants because the jury verdict form should have included a question regarding the fault of Defendant acting through Dr. Chauhan. The trial judge also noted that “the Court is not satisfied with the verdict [in its role as thirteenth juror] as it relates to [Defendant] acting through Dr. Dinesh Chauhan.” The order for a new trial also directed that a different judge in the Circuit Court for Shelby County preside over the second trial.4
On December 19, 2007, Defendant filed a motion for an interlocutory appeal contending that the jury verdict form was adequate and that a second trial was needless. On April 28, 2008, the original trial judge denied the motion for an interlocutory appeal.
On April 15, 2009, Defendant for the first time asserted a statute of repose defense by filing a motion to dismiss any claims arising from the actions of Dr. Chauhan because the statute of repose barred such claims. Defendant relied on the Tennessee Court of Appeals’ unpublished decision of Huber v. Marlow, No. E2007-01879-COA-R9-CV, 2008 WL 2199827 (Tenn.Ct.App. May 28, 2008), and argued that Plaintiff should not be able “to breathe life into a claim that is plainly extinguished.” The basis for Defendant‘s claim was that the vicarious liability claim against Defendant had been extinguished by agent exoneration based on the running of the statute of repose as to Dr. Chauhan. Plaintiff responded, arguing that the running of the statute of repose is an affirmative defense, which Defendant waived by failing to raise the defense before or during trial. Plaintiff noted that Defendant did not answer the second or third amended complaints, and in its answer to the fourth amended complaint did not assert the statute of repose as a defense.
On October 1, 2010, over four years after the trial, Defendant moved to amend its answer to the fourth amended complaint to include a statute of repose defense. On October 4, 2010, the trial judge5 entered an order denying Defendant‘s motion to dismiss on the ground that Defendant waived the right to rely on the statute of repose as a defense. In light of this ruling, the trial court denied Defendant‘s motion to amend its answer as futile.
On July 15, 2011, the trial court granted Defendant‘s motion for permission to seek
III.
The issues we address are (1) whether the statute of repose is an affirmative defense under
There are no material facts in dispute. The issues we review require statutory construction, which presents a question of law that is reviewed de novo without a presumption of correctness. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 308 (Tenn.2012); Estate of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn.2011). Similarly, “[i]nterpretation of the Tennessee Rules of Civil Procedure is a question of law, which we review de novo with no presumption of correctness.” Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn.2009).
The first issue we address is whether the statute of repose is an affirmative defense under
Bruce, however, is not persuasive. First, we overruled Bruce in Cronin v. Howe, 906 S.W.2d 910, 913 n. 3 (Tenn. 1995), as it related to the interaction of the savings statute with the statute of repose. Second, while the application of a statute of repose bars the claim, it does not divest a court of jurisdiction over the case. As the Washington Court of Appeals explained, a statute of repose “does not affect the court‘s jurisdiction; rather, statutes of repose, like statutes of limitation, attach to and bar only the claim itself.” In re Estates of Palmer, 145 Wash.App. 249, 187 P.3d 758, 763 (2008). Similarly, a Florida appeals court has noted “the [s]tatute of [r]epose cannot be equated with subject matter jurisdiction.” Square D Co. v. State Farm Fire & Cas. Co., 610 So.2d 522, 522 (Fla.Dist.Ct.App.1992). Statutes of repose and statutes of limitation do not deprive courts of subject matter jurisdiction. As United States Supreme Court Justice Ginsburg explained: “It is anomalous to classify time prescriptions, even rigid ones, under the heading ‘subject matter jurisdiction.‘” Carlisle v. United States, 517 U.S. 416, 434, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (Ginsburg, J., concurring); see also Bode v. Minn. Dep‘t of Natural Res., 594 N.W.2d 257, 260 (Minn.Ct.App.1999) (“A court may very well have the subject-matter jurisdiction to adjudicate the case, but rules of procedure or statutes of repose prevent the exercise of the jurisdiction.“). Accordingly, the running of the statute of repose does not deprive the court of subject matter jurisdiction.
Next, Defendant argues that the statute of repose is substantive and is, therefore, an affirmative defense that cannot be waived. The statute provides:
(3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.6
Defendant emphasizes the unyielding language of the statute through its use of the phrase “in no event.” Defendant argues the statute vests a substantive right in a medical provider to be free from suits filed more than three years after a negligent act. We agree that the statutory language provides protection against suits filed more than three years after the negligent act. The statutory language, however, does not authorize Defendant to sit on its hands and not assert the defense. Our rules of procedure require that matters be raised before trial if a party intends to rely on them. To hold otherwise would be to invite parties to lie in wait and, after a long and expensive trial, assert a defense.
In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption of risk, comparative fault (including the identity or description of any other alleged tortfeasors), discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver, workers’ compensation immunity, and any other matter constituting an affirmative defense.
(Emphasis added).
As a general rule, a party waives an affirmative defense if it does not include the defense in an answer or responsive pleading. See
Conflicts between provisions of the Tennessee Rules of Civil Procedure and Tennessee statutes which cannot be harmonized are resolved in favor of the Rules of Civil Procedure.
The United States Court of Appeals for the Sixth Circuit recognized the possible tension between the statute of repose and
The Tennessee Court of Appeals has not been as ambivalent. It recognized the statute of repose as an affirmative defense in Woodard v. Gross, No. W2011-02316-COA-R3-CV, 2012 WL 3893519, at *8 (Tenn.Ct.App. Sept. 10, 2012) (“[A] defendant who relies on an affirmative defense, such as the statute of repose, in a summary judgment motion, must point to undisputed facts that establish the defense.“). We implicitly acknowledged the statute of repose as an affirmative defense in Hannan v. Alltel Publ‘g Co., 270 S.W.3d 1, 6 (Tenn.2008), when we quoted
The statute of repose and
A generic invocation of the words “failure to state a claim” cannot be used as a vehicle to assert an affirmative defense. An affirmative defense must be “specifically pleaded.” George v. Bldg. Materials Corp. of Am., 44 S.W.3d 481, 486 (Tenn.2001).
A leading purpose of the Tennessee Rules of Civil Procedure is to ensure the
Defendant focuses on the designation of the statute of repose as substantive instead of procedural. Some of our prior decisions have placed great emphasis on this distinction. This Court, in a divided 3-2 opinion,7 relied on the substantive nature of statutes of repose to overrule two prior decisions and find that “a plaintiff‘s minority does not toll the statute of repose.” Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 517 (Tenn.2005). However, the procedural/substantive distinction is not always “the decisive factor.” Cronin, 906 S.W.2d at 914. In Cronin, we harmonized the statute of repose with the savings statute8 to allow a plaintiff to rely upon the savings statute to nonsuit and then refile a medical negligence lawsuit outside of the three-year statute of repose. We held this to be the case even though both the nonsuit and the refiling occurred outside the three-year period. Id. at 914-15. Similarly, in this case, we have found that a harmonious construction exists between the health care liability statute of repose and
The designation of the statute of repose as “substantive” does not provide talismanic immunity from fundamental rules of civil procedure. Some jurisdictions have focused on the substantive nature of statutes of repose and determined they cannot be waived. The Arkansas Supreme Court held that a statute of repose is not an affirmative defense and can be raised on appeal. Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 219, 114 S.W.3d 189 (2003). The Delaware Supreme Court determined a statute of repose “may not be waived and may be raised at any time during the proceedings.” Cheswold, 489 A.2d at 421.9 The Pennsylvania Supreme Court similarly determined “a statute of repose is not waived if not pled as an affirmative defense, and may be raised for the first time in a motion for nonsuit, directed verdict, or judgment n.o.v.” Vargo v. Koppers Co., 552 Pa. 371, 715 A.2d 423, 425 n. 1 (1998). However, those jurisdictions, unlike Tennessee, do not have a rule of civil procedure that specifically lists the statute of repose as an affirmative defense.
Jurisdictions that treat statutes of repose as affirmative defenses, as Tennessee does, have determined that they can be waived. The Texas Supreme Court has explained, “[A]s an affirmative defense, the statute of repose is only available to parties that properly raise it in the trial court.” Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 609 (Tex.2012). Significantly, this Texas high court reached this result even though it considered the statute of repose to be a “substantive definition of rights.” Id. Although an Illinois health care liability statute contained “in no event” language similar to Tennessee‘s, a state appeals court found that “statutes of repose are affirmative defenses subject to forfeiture.” McRaith v. BDO Seidman, LLP, 391 Ill.App.3d 565, 330 Ill.Dec. 597, 909 N.E.2d 310, 327 (2009). The court explained, “The pertinent Illinois statutes and authority... do not support an interpretation of the ‘in no event’ language as mandatory.” Id. at 323. Instead, the court noted that the legislature had enacted exceptions that tolled various statutes of repose, such as cases of fraudulent concealment. The Alabama Supreme Court ruled that a bank waived its affirmative defense of the statute of repose in a case involving the payment of unauthorized checks. Pinigis v. Regions Bank, 942 So.2d 841, 847 (Ala.2006). A Colorado appeals court determined that a statute of repose in real property cases was an affirmative defense that a defendant needed to raise “in a timely manner.” Dunton v. Whitewater W. Recreation Ltd., 942 P.2d 1348, 1351 (Colo.App.1997). Some second-
Defendant also contends that the application of
Defendant argues that a ruling that
Defendant contends that declaring the statute of repose to be an affirmative defense (as
We hold that the statute of repose is an affirmative defense that is generally waived if not timely raised. Defendant argues that, under the facts of this case, waiver is not appropriate. At oral argument before this Court, counsel for Defendant asserted that the delay in raising the statute of repose defense was because the
The Tennessee Court of Appeals in Huber relied on this Court‘s decision in Johnson v. LeBonheur Children‘s Med. Ctr., 74 S.W.3d 338 (Tenn.2002). In Johnson, we explained that “a principal may not be held vicariously liable under the doctrine of respondeat superior based upon the acts of its agents ... when the right of action against the agent is extinguished by operation of law.” Id. at 345. This Court reiterated the principles of Johnson a year later in Shelburne v. Frontier Health, 126 S.W.3d 838, 844-45 (Tenn.2003).
In Huber, as in the case before us, the right of action against the agent was extinguished by operation of the statute of repose. Therefore, there was no basis to hold the principal liable under the doctrine of respondeat superior. But the defendant in Huber asserted the statute of repose before trial. In the instant case, Defendant did not. Unlike the defendant employer in Huber, Defendant took the position during trial and even during arguments on Plaintiff‘s motion for a new trial that Defendant would be liable if Dr. Chauhan was found negligent. A key portion of the September 2006 trial focused on Dr. Chauhan‘s alleged failure to meet the standard of care.
This is not the first time we have reviewed a trial court‘s decision to deny a motion to amend pleadings to assert an affirmative defense late in the proceedings. In George, we affirmed a trial court‘s decision to deny a defendant‘s post-trial motion for leave to amend its answer to assert a statute of limitations defense. The defendant first raised the statute of limitations defense in a pre-trial brief, eight months after the defendant had filed its answer. 44 S.W.3d at 485-86. At the beginning of the trial, the defendant requested that the pleadings be amended based on
The defendant in George had claimed its delay was justified by an unreported workers’ compensation panel decision released earlier that year.16 The trial court found that the defendant‘s discovery of the unreported workers’ compensation panel decision did not justify the defendant‘s delay in raising the statute of limitations defense until the eve of trial. Id. at 487-88. In the case before us, the trial court was not persuaded that Huber justified Defendant‘s delay in asserting the statute of repose defense until three years after the trial. Huber followed and applied Tennessee Supreme Court precedent; it was not a new legal development. Moreover, the Court of Appeals issued its decision in Huber on May 28, 2008, and denied a petition for rehearing on July 10, 2008. The Defendant did not file its motion to dismiss until April 15, 2009, and its motion to amend its answer until October 1, 2010.
Trial courts have broad authority to decide motions to amend pleadings and will not be reversed absent an abuse of discretion. Hawkins v. Hart, 86 S.W.3d 522, 532 (Tenn.Ct.App.2001). Under the abuse of discretion standard, an
Today we clarify that the statute of repose is an affirmative defense that is generally waived if not timely raised. A defendant must assert an affirmative defense in a timely manner to secure the “just” and “speedy” resolution of litigation.
Defendant attempted to revive an affirmative defense that should have been pleaded years earlier. Once an affirmative defense is waived, it is waived. See Ternes v. Galichia, 43 Kan.App.2d 857, 234 P.3d 820, 825 (2010) (“Once an affirmative defense is waived it is gone. We find no case law or statute that permits it to be ‘unwaived.’ “). The trial court did not abuse its discretion in denying Defendant the opportunity to use the statute of repose as a defense in the retrial of this case. Our standard of review of a discretionary decision does not allow us to substitute our judgment for that of the trial court. Williams, 193 S.W.3d at 551. This Court recently determined that even a waived non-affirmative defense may not be raised in a second trial. See In re Estate of Smallman, 398 S.W.3d 134 (Tenn.2013) (finding that the issue of standing was waived during the first trial and was not available to a party during the second trial).
IV.
The judgment of the trial court is affirmed. We remand the cause to the trial court for such further action as is necessary, consistent with this opinion. Costs on appeal are assessed to Consultants in Anesthesia, Inc. and its surety, for which execution may issue if necessary.
WILLIAM C. KOCH, JR., J., filed a dissenting opinion.
WILLIAM C. KOCH, JR., J., dissenting.
This case has gone unresolved for far too long. It was finally tried more than six years after Ms. Pratcher‘s death and after the filing of four amended complaints. After the jury returned a defendant‘s verdict, the trial court granted a new trial because of a perceived shortcoming in the verdict form and because of its disagreement with the jury‘s verdict. With the second trial pending, one of the defendants sought to amend its answer to include a substantively meritorious defense based on the statute of repose in Tenn. Code Ann. § 29-26-116(a)(3) (2012). With little explanation or analysis, the trial court denied the motion to amend on the ground of waiver.
The controlling question before us is whether the trial court abused its discretion when it denied the defendant‘s motion to amend its answer. While the Court
Under the Tennessee Rules of Civil Procedure, pleadings are no longer technical traps that ensnare unwitting lawyers. However, they are more than mere procedural niceties. Their purpose is (1) to inform the opposing party and the court of the nature of the claims and defenses being asserted by the parties, Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn.2011); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1182, at 17-18 (3d ed.2004), and (2) to enable opposing parties to prepare for trial. Sanford v. Waugh & Co., 328 S.W.3d 836, 848 (Tenn.2010).
All parties—both plaintiffs and defendants alike—occasionally find it appropriate or necessary to amend their pleadings. Prior to the adoption of the Tennessee Rules of Civil Procedure, such amendments were hard to come by. However, after the “new” rules became effective in 1971,
Not surprisingly, most of the cases construing and applying
However, borrowing the words of
The trial court in this case did not provide a reasoned explanation for its conclusion that Consultants in Anesthesia, Inc. (“Consultants“) had waived its right to assert a statute of repose defense in this case. This Court has not questioned the legal soundness of the defense. Rather, relying on George v. Building Materials Corp. of Am., 44 S.W.3d 481, 487 (Tenn.2001), it has decided that the trial court reached the correct result because Consultants‘s delay in asserting this affirmative defense was “undue.” This is a close call.
When the original complaint in this case was filed in 2000,
Trial lawyers should keep abreast of the amendments to the Tennessee Rules of Civil Procedure. However, it is understandable that busy trial lawyers preparing for a trial that is two months away might overlook an intervening change in the rules that affects their pleadings. Based on the factors discussed in George v. Building Materials Corp., I am loathe to conclude that Consultants unduly delayed in asserting its affirmative defense based on the statute of limitations. The explicit requirement that a statute of repose defense be pleaded as an affirmative defense became effective after most of the pleadings had been filed. There is no evidence of bad faith on Consultants‘s part. Consultants‘s failure to include a statute of repose defense in its answer to the fourth amended complaint was, at most, an understandable oversight.
Following a defendant‘s verdict, the trial court exercised its prerogative to grant a new trial, thereby placing both the plaintiff and the defendant back at square one. With the parties in this posture, why does justice require preventing Consultants from asserting a meritorious defense that would, if granted, spare it the time and expense of a second trial? It cannot reasonably be said that Consultants‘s “delay” in pleading the defense was tactical or that it prejudices the plaintiff‘s ability to respond to the defense.1 No discovery of the facts relevant to the defense is needed because the relevant facts have been known to the parties for quite some time. Under the circumstances of this case, the plaintiff can be afforded a full and fair opportunity to respond to the defense.2
Accordingly, I respectfully disagree with the Court‘s conclusion that Consultants should be denied the opportunity to amend its complaint because it unduly delayed asserting its statute of repose defense.