LATAISHA M. JACKSON v. CHARLES ANTHONY BURRELL ET AL.
No. W2018-00057-SC-R11-CV
IN THE SUPREME COURT OF TENNESSEE AT JACKSON
April 1, 2020 Session
Appeal by Permission from the Court of Appeals; Circuit Court for Shelby County; No. CT-000328-15 Valerie L. Smith, Judge
The question presented in this health care liability case is whether the plaintiff‘s
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed; Order of the Trial Court Vacated; Remanded to the Trial Court
SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J., and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
R. Sadler Bailey and J. Vance Montgomery, Memphis, Tennessee, for the appellant, Lataisha M. Jackson.
Charles W. Hill, Robert B. C. Hale, and Danielle Rassoul, Memphis, Tennessee, for the appellee, Gould‘s Salons, Inc. d/b/a Gould‘s Day Spa & Salon.
Warren D. McWhirter, Germantown, Tennessee, for the appellee, Charles Anthony Burrell.
OPINION
I.
This case arises out of Lataisha Jackson‘s claim that Charles Anthony Burrell, a massage therapist for Gould‘s Day Spa & Salon in Cordova, Tennessee, sexually assaulted Ms. Jackson during an April 2014 massage.
Before the alleged assault, two customers had complained to Gould‘s about Mr. Burrell‘s conduct. In December 2013, a customer emailed Gould‘s claiming that Mr. Burrell had made her extremely uncomfortable during her massage. She stated that he had “[come] way too close to places he had no business touching.” This customer told Gould‘s that Mr. Burrell had not touched her in any inappropriate places, but he had “grazed more than once and that‘s not ok.” And in March 2014, a second customer called Gould‘s and reported that Mr. Burrell had made her uncomfortable during her massage and “was very inappropriate.” Gould‘s gave these customers gift cards to refund the charges for their massages. Mr. Burrell had been a licensed massage therapist since 2002, began working for Gould‘s in 2012, and had performed thousands of massages with no complaints. No disciplinary complaints had been filed against him with the Tennessee Board of Massage Licensure, and there had been no criminal charges filed. Mr. Burrell had previously given Ms. Jackson a massage in February 2014 without incident.
In January 2015, Ms. Jackson sued Gould‘s in the Shelby County Circuit Court alleging that Gould‘s was negligent in its training, supervision, and retention of Mr.
Gould‘s is a “health care provider” under the Act.3 In a health care liability case in which expert testimony is required, a plaintiff must file with her complaint a certificate of good faith. In the certificate, the plaintiff or her counsel must confirm that she or her counsel consulted with one or more experts who provided a signed written statement that they were competent to testify under the requirements of
The trial court granted summary judgment to Gould‘s based on Ms. Jackson‘s failure to file a certificate of good faith with her complaint.4
Ms. Jackson appealed. First, the Court of Appeals ruled that Ms. Jackson had waived the common knowledge exception by not raising the issue in the trial court or in the appellate court. Jackson v. Burrell, No. W2018-00057-COA-R3-CV, 2019 WL 237347, at *5 (Tenn. Ct. App. Jan. 16, 2019), perm. app. granted (Tenn. Aug. 21, 2019). The Court of Appeals then held that, even if Ms. Jackson had not waived the issue, the common knowledge exception did not apply and that expert proof was needed to establish the applicable standard of care in the massage industry. Id. at *6. Noting that Gould‘s had received two customer complaints about Mr. Burrell, the Court of Appeals concluded that neither customer had accused Mr. Burrell of sexual assault and that Ms. Jackson failed to establish what Gould‘s did or did not do after receiving these complaints. Id. The Court of Appeals found that without
One member of the Court of Appeals panel disagreed with the majority‘s ruling on the certificate of good faith issue. Id. at *6 (Stafford, P.J., W.S., concurring in part and dissenting in part). This judge found that Ms. Jackson had raised the common knowledge exception in the trial court and that Gould‘s, which had the burden of proving waiver, had not asserted the issue. Id. at *7. Finding no waiver, the dissenting judge determined that the common knowledge exception applied because an ordinary layperson could determine whether Gould‘s, after receiving customer complaints about Mr. Burrell, was negligent in allowing him to keep performing massages on disrobed customers. Id. at *10. In the dissenting judge‘s view, expert testimony was unnecessary because “this is exactly the type of question that can be answered by ‘practical experience gained in the ordinary affairs of life,‘” and it was “not a complex idea limited to ‘the massage industry.‘” Id. (citation omitted).
This Court granted Ms. Jackson‘s application for permission to appeal to determine whether Ms. Jackson waived the issue of the common knowledge exception, and if not, whether the common knowledge exception applied to Ms. Jackson‘s claim for negligent training, supervision, and retention so that she did not need to file a certificate of good faith with her complaint.
II.
Waiver
The material facts here are not in dispute. The issues of waiver and the application of the common knowledge exception present us with questions of law which we review de novo, with no presumption of correctness or deference to the decisions of the lower courts. Bryant v. Bryant, 522 S.W.3d 392, 399 (Tenn. 2017) (citing Rye v. Women‘s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Parker v. Holiday Hospitality Franchising, 446 S.W.3d 341, 346 (Tenn. 2014)).
We first address the matter of waiver because a party may not raise an issue on appeal that was not raised in the trial court.5 The party invoking waiver has the burden of showing that the other party did not raise the issue in the trial court.6 Gould‘s neither carried this burden nor argued that Ms. Jackson had waived the common knowledge exception. Instead, Gould‘s argued the merits of the issue—that the common knowledge exception did not apply and that Ms. Jackson had to file a certificate of good faith.
We find that Ms. Jackson raised the common knowledge exception both in the trial court and in the Court of Appeals. Ms. Jackson asserted in her complaint that she was not filing a certificate of good faith because her claim did not arise out of any diagnosis, treatment, or care, but arose out of a sexual battery that occurred while she was on the premises and a patron of Gould‘s. The complaint alleged, in part, that the negligent training, supervision,
In her response to the motion for summary judgment, Ms. Jackson argued that Gould‘s was negligent in its training, supervision, and retention of Mr. Burrell and had placed Mr. Burrell in a position to commit the alleged sexual assault. Ms. Jackson then invoked the common knowledge exception, citing the distinction between ordinary negligence and health care liability, which “turns on whether the acts or omissions complained of . . . can . . . be assessed on the basis of common everyday experience of the trier of fact.” Ms. Jackson‘s response stated that “[i]t would be obvious to any layperson that Defendant Gould‘s owed a duty of care to place Plaintiff in the hands of a properly trained and supervised massage therapist without the potential for any sort of unwanted touching of a sexual nature . . . .” Ms. Jackson also argued that the two previous customer complaints received by Gould‘s were sufficient evidence to overcome Gould‘s motion for summary judgment.
Arguing to the trial court that expert testimony was not necessary, Ms. Jackson‘s attorney said:
This case does not require expert proof. A jury does not need to be told that Gould‘s [had] been provided with notice that they have a potential claim, any claim that they have under their employment a sexual predator. Gould[‘s] has a duty to protect their customers from a sexual predator. Now, do we need an expert to tell us that. I don‘t understand what expert would we need to say that Gould‘s, if they [have] notice of a potential sexual predator has a duty to protect their customers. It is not the healthcare act. This sexual battery is criminal conduct. It does not require expert proof.
While Ms. Jackson may not have used the term “common knowledge exception,” her pleadings and arguments in the trial court show that she relied on the common knowledge exception.
Ms. Jackson also contended in a section of her brief to the Court of Appeals that the common knowledge exception applied to her negligence claim. Gould‘s, in turn, devoted four pages of its brief in the Court of Appeals to a section titled “The Common Knowledge Exception Does Not Excuse Appellant‘s Failure to File the Required Certificate of Good Faith.” Gould‘s was not denied an opportunity to respond to this issue.7
We interpret and apply our rules in a way that allows us to consider appeals on their merits. Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citing Tenn. R. App. P. 1). About questions of waiver on appeal, we “should not exalt form over substance.” Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010). Even though the parties used the term “common knowledge exception” for the first time on appeal, this does not amount to waiver. Id. (citing Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 143 n.1 (Tenn. 2001)) (“The fact that the party phrased the question or issue in the trial court in a different way than it does on appeal does not amount to a waiver of the issue.“); Fahrner, 48 S.W.3d at 143 n.1 (finding that “the failure to use the right label” for a claim did not cause a waiver of that claim on appeal).
In sum, Ms. Jackson maintained in the trial court and in the Court of Appeals that her claim did not require expert testimony. Thus, she did not waive this argument, and
Common Knowledge Exception
The resolution of this case depends on whether the common knowledge exception applies. In health care liability cases, this exception comes into play when the subject matter of the alleged misconduct is “within the understanding of lay members of the public.” Joseph H. King, The Common Knowledge Exception to the Expert Testimony Requirement for Establishing the Standard of Care in Medical Malpractice, 59 Ala. L. Rev. 51, 62–63 (2007) (“The Common Knowledge Exception“). The practical effect of applying the common knowledge exception is that the plaintiff need not produce expert testimony to prove the elements set forth in
The common knowledge exception is part of the law in many states, including Tennessee. See, e.g., Ex Parte Healthsouth Corp., 851 So. 2d 33, 39 (Ala. 2002) (quoting Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156, 161 (Ala. 1984)) (“reformulat[ing]” the common knowledge exception to recognize its application to cases “‘where want of skill or lack of care is so apparent . . . as to be understood by a layman, and requires only common knowledge and experience to understand it‘“); Revels v. Pohle, 418 P.2d 364, 366 (Ariz. 1966) (quoting Boyce v. Brown, 77 P.2d 455, 457 (Ariz. 1938)) (recognizing an exception to the requirement of expert testimony when “‘the negligence is so grossly apparent that a layman would have no difficulty in recognizing it‘“); District of Columbia v. Hampton, 666 A.2d 30, 36 (D.C. 1995) (noting that expert testimony is not required “when the issue before the jury [does] not involve either a subject too technical for lay jurors to understand or the exercise of sophisticated professional judgment“); McClure v. Clayton Cnty. Hosp. Auth., 336 S.E.2d 268, 271 (Ga. Ct. App. 1985) (quoting Killingsworth v. Poon, 307 S.E.2d 123, 125 (Ga. Ct. App. 1983)) (stating that the common knowledge exception applies when “‘the case concerns matters which juries must be credited with knowing by reason of common knowledge‘“); Craft v. Peebles, 893 P.2d 138, 149 (Haw. 1995) (citing Rosenberg ex rel. Rosenberg v. Cahill, 492 A.2d 371, 374 (N.J. 1985)) (explaining that the common knowledge exception transforms a medical negligence case “‘into an ordinary negligence case, thus obviating the need for expert testimony‘“); Oswald v. LeGrand, 453 N.W.2d 634, 640 (Iowa 1990) (finding that a doctor‘s responsibility to attend to a patient “screaming hysterically that she was about to give birth” in a hospital hallway was within the common knowledge of a layperson); Hare v. Wendler, 949 P.2d 1141, 1147 (Kan. 1997) (quoting Webb. v. Lungstrum, 575 P.2d 22, 25 (Kan. 1978)) (stating that the “‘common knowledge exception applies if what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind generally‘“); McCorkle v. Gravois, 152 So. 3d 944, 948 (La. Ct. App. 2014)
Tennessee has long recognized the common knowledge exception in health care liability cases. In Osunde v. Delta Medical Center, the Court of Appeals held that “expert testimony is not required where the act of alleged wrongful conduct lies within the common knowledge of a layperson.” 505 S.W.3d 875, 886–87 (Tenn. Ct. App. 2016) (citing Baldwin v. Knight, 569 S.W.2d 450, 456 (Tenn. 1978); Bowman v. Henard, 547 S.W.2d 527, 530–31 (Tenn. 1977); Tucker v. Metro. Gov‘t of Nashville & Davidson Cnty., 686 S.W.2d 87, 92 (Tenn. Ct. App. 1984)). Although the Act‘s pre-suit notice requirement,
Courts determine on a case-by-case basis whether expert testimony is necessary in a health care liability case. For example, the plaintiff in Osunde alleged that she fell and was injured after a hospital radiology technician provided her with a faulty stool that shifted when she stepped off of it. Id. at 877. Under the Act, the radiology technician was a “health care provider” and furnishing a stool in connection with x-ray services qualified as a “health care service.” Id. at 888. Thus, the plaintiff‘s lawsuit was subject to the requirements of the Act. Id. But the plaintiff did not have to present expert proof because the Court of Appeals found that “[i]t is within the common knowledge of a layperson to determine whether the provision of an unstable stool is negligent.” Id. at 889. The appellate court explained that a determination of the correct type of medical equipment to use during a medical procedure would generally require expert proof because “[i]t is not ordinarily within common knowledge what is appropriate for medical treatment.” Id. at 889 n.9. But it is within the common knowledge of a layperson to determine whether providing a specific piece of “inherently faulty” equipment, such as a “wobbly and unstable” stool, is negligence because it is common knowledge that “a stool should promote stability.” Id.
In C.D. v. Keystone Continuum, LLC, No. E2016-02528-COA-R3-CV, 2018 WL 503536 (Tenn. Ct. App. Jan. 22, 2018), the plaintiff alleged that a security guard working for the mental health facility where the plaintiff was a patient attacked and injured him. The plaintiff sued the facility, alleging negligent training and supervision of the security guard. Id. at *6. The Court of Appeals agreed with the trial court that the plaintiff‘s claims of negligent training and supervision were “health care services” under the Act but found that the plaintiff‘s claims involving willful assault
In other cases, courts have declined to apply the common knowledge exception after finding that specialized medical knowledge was needed to establish negligence in a health care liability action. See Mayo v. United States, 785 F. Supp. 2d 692, 696–97 (M.D. Tenn. 2011) (finding that the plaintiff needed expert testimony to prove potential exposure to bodily fluids caused hepatitis); Newman v. Guardian Healthcare Providers, Inc., No. M2015-01315-COA-R3-CV, 2016 WL 4069052, at *7 (Tenn. Ct. App. July 27, 2016) (holding that it was not within the ordinary knowledge of a layperson whether a psychiatric patient should be restrained, and therefore expert testimony was necessary); Patterson v. Arif, 173 S.W.3d 8, 12 (Tenn. Ct. App. 2005) (stating that it was not within the common knowledge of a layperson that a person suffering from shortness of breath should be taken immediately to the emergency room); McConkey v. State, 128 S.W.3d 656, 661 (Tenn. Ct. App. 2003) (holding that it was not within the knowledge of a layperson whether the accidental severing of a vein during a surgical procedure was a breach of the standard of care); Age v. HCA Health Servs. of Tenn., Inc., No. M2001-01286-COA-R3-CV, 2002 WL 1255531, at *2–3 (Tenn. Ct. App. June 7, 2002) (holding that the transfer of a post-surgical patient involved specialized training and knowledge that was beyond the knowledge of a layperson, and therefore the plaintiff had to prove negligence through expert testimony); Tyree v. Donelson Hosp., Inc., No. 88-227-II, 1989 WL 13064, at *3–5 (Tenn. Ct. App. Feb. 17, 1989) (concluding that the plaintiff needed to present expert testimony to prove that the hospital was negligent in failing to restrain and supervise a patient who was a fall risk).
What all of these cases have in common is the fundamental consideration of whether the conduct at issue involved the exercise of medical judgment or skill. In other words, whether the alleged negligent conduct involved technical or specialized knowledge of a medical procedure or a patient‘s medical condition or whether the alleged negligent conduct involved medical decision-making—such as determining the type of treatment or procedure to perform or the type of equipment or medicine to use. If so, then expert proof would be necessary. As Professor King has suggested, this inquiry might be phrased as whether “[t]he specific decision making by the health care provider . . . involve[d] the exercise of uniquely professional medical skills, a deliberate balancing of medical risks and benefits, or the exercise of therapeutic judgment.” The Common Knowledge Exception, supra, at 56.
After reviewing the undisputed facts, we hold that Ms. Jackson‘s claim against Gould‘s for negligent training, supervision, and retention is within the knowledge and experience of an ordinary layperson and does not require explanation from a witness with specialized knowledge of the massage industry. Ms. Jackson does not allege that Mr. Burrell negligently performed the massage, used improper technique or excessive force, or erred in decision-making as a massage therapist. Thus, there is no need for expert testimony about different types of massage, proper techniques for performing a type of massage, or other specialized knowledge that an expert in the massage industry would know and the average layperson likely would not. Instead, Ms. Jackson alleges that Mr. Burrell sexually assaulted her during a massage and that Gould‘s knew or should have known that Mr. Burrell had previously acted inappropriately, making two other clients feel uncomfortable, and thus posed a risk of sexually assaulting Ms. Jackson. A layperson could understand that a salon may be negligent in its training, supervision, and retention of a massage therapist who sexually assaults a disrobed customer in a private setting during a massage when the salon knew of the massage therapist‘s prior inappropriate actions.
Because we have determined that the common knowledge exception applies and expert testimony is not required to assist the trier of fact, we hold that the trial court erred in granting summary judgment based on Ms. Jackson‘s failure to file a good faith certificate.
III.
We vacate the trial court‘s grant of summary judgment to Gould‘s and reverse the Court of Appeals’ judgment affirming the trial court‘s ruling. We remand this case to the trial court for further proceedings consistent with this opinion. The costs of this appeal are taxed to Gould‘s Salons, Inc. d/b/a Gould‘s Day Spa & Salon, for which execution may issue if necessary.
SHARON G. LEE, JUSTICE