*1 et al. Michelle RYE OF CENTER
WOMEN’S CARE
MEMPHIS, MPLLC et al. Tennessee,
Supreme Court of
AT JACKSON.
March 2015 Session October
Filed *3 Haltom, Jr., Margaret
William H. F. Duckworth, Cooper, and D. James Mem- Tennessee, for phis, appellants, Wom- MPLLC, Memphis, en’s Care Center Clinic, Long, Ruch and Diane M.D. d/b/a Gary Philip K. Camp- Smith and C. M. bell, Tennessee, Memphis, appel- lees, Rye. Rye Ronald Michelle Smith, Tennessee, Bryan Memphis, W. Vail, D.C., Washington, John and Brian G. Brooks, Greenbrier, Arkansas, for ami- entry of to the trial court for curiae, for Jus- this matter Tennessee cus Association issues and these tice. other neces- proceedings OPINION sary. J., Clark, A. delivered Cornelia History I. Procedural Factual and Court, in G. which Sharon
opinion Bivins, J., Rye C.J., joined. February Lee, Jeffrey S. On Michelle Bivins, Lee, C.J;, (collectively “the Jeffrey G. S. her husband Ronald Sharon individually Rye” J., concurring opinions. Ryes” “Mrs. separate each filed *4 liability J., Rye”) Wade, dissenting “Mr. filed this health care Gary R. a filed J., against of Kirby, Care Center Holly participating. action Women’s opinion. MPLLC Ruch Clinic Memphis, d/b/a to in this granted perinission appeal We M.D., (“Ruch Clinic”) Long, Diane and liability to the action reconsider healthcare “Defendants”). (collectively Ryes’ The in adopted judgment standard out of obstetrical services lawsuit arises Co., Publishing Alltel Hannan v. of Long employees Dr. Ruch Clinic and 2008). Ap- of Rye 2007' to Michelle in and rendered the Hannan peals' that standard concluded her during pregnancy her third with of trial court’s deci- requires reversal child, January early born in granting summary'judgment to the sion is has Rh undisputed Rye of It that Mrs. plaintiffs’ on certain defendants that, result, overrule Hannan and hereby negative and a she claims. We blood injection summary judgment to should a standard have received RhoGAM return twenty-eighth near the week of her consistent with Rule 56 of Federal at or hold, pregnancy possible of to avoid Rules Civil We there- medical Procedure. third fore, in moving party may satisfy complications pregnan- that a its and future risks production undisputed It is also that the Defen- initial and shift the cies.1 burden production nonmoving to the dants’ failure administer a RhoGAM burden Rye to Mrs. party demonstrating injection that the nonmov- was deviation recognized acceptable pro- standard of ing party’s evidence is insufficient as practice matter law the fessional and deviation becoming Rye Rh- nonmoving party’s to establish the has resulted Mrs. stage condition, This Applying holding or sensitized. Rh-sensitiza- claim defense. our tion, case, in this we is irreversible means that Mrs. conclude and record summary Rye’s are blood contains antibodies to Rh the defendants entitled now positive It plaintiffs’ undisputed all the claims at blood. is judgment on Rye af- Mrs. appeal. Accordingly, pregnant we becomes future issue part positive, if the Rh it is judg- firm in fetus’s blood is part reverse possible positive Rh Appeals remand that the antibodies to ment of the Court child, develops Ryes’ healthy an her blood positive child was Rh 1. The third born complications. [existing] without “RhoGAM is a trade antibodies which do not affect the globu Rh preparation immune mark damage pregnancy, but can cause later- prevent lin. It used the formation injection positive Rh An conceived fetuses. positive nega Rh Rh blood] in [to antibodies during pre pregnancy can RhoGAM the first Rinck, tive women.” Walker N.E.2d antibodies,” vent of these formation (Ind. 1992) Attorney’s (citing 3 593 n.1 (citing Attorney’s Dictionary Medicine (1986)). Dictionary p. Medicine. R-92 (1986)) p. R-84 negative pregnant an Rh woman “When present Rye’s now Mrs. blood amounted to a blood will deviation from recog- placenta and attack of acceptable cross the fetus’s nized professional standard contingencies cells. If practice red blood all these and that this deviation has result- together—a future Rh pregnancy, occur ed in becoming Mrs. Rh-sensitized. fetus, Nevertheless, positive .crossing and antibodies Defendants asserted undisputed placenta—it the unborn their Ryes’ answer to the complaint, and risks, rang- fetus would face number of Court, continue contend in this that the ing from mild severe. Ryes no existing injuries have actual damages resulting from this deviation. complaint Ryes alleged their Dr, they Catholics,” “practicing July 13, 2010, Roman On Ryes after Rye’s prior learning Rh- Long-were deposed, the Defendants filed a potential sensitization and the risks it en- Ryes’ motion complaint, dismiss tails, they alternative, “had to have intended additional judgment. learning children.” After of Mrs. Specifically, alleged the Defendants Rh-sensitization, inquired Ryes “about any- failed to establish exist- *5 possibility dispensation ing injuries, a allege from have failed to future prohibition injuries Catholic Church’s traditional to a certainty, reasonable medical procedures” on sterilization but' alleged damages were “ad- have future that are a dispensation that .possibilities vised not speculative,” “mere have given Rye’s unless Mrs. life were in to allege dan- failed an actual injury sufficient infliction, ger.” Although Ryes have since support to a claim for negligent taking (“NIED”), toward steps prevent “leaned of emotional distress have pregnancies,” religious allege provide future their beliefs -to expert failed or medi- prevented undergoing from have them vol- cal or scientific of a proof serious or severe untary procedures using sterilization or emotional injury sufficient a support control; artificial means of other birth “stand-alone” NIED claim. Ryes alleged they The that have been motion, support As for their
placed in a state of emotional due distress undisputed statement material facts Rye’s to Mrs. Rh-serisitization and se- along with their as required filed motion presents it any preg- vere risks future by Rule 56.03 of thé Tennessee Rules Ryes requested.compensato- nancies. Procedure, Civil the Defendants relied (1) ry damages injuries physical Ryes’ upon deposition testimony ad- Rye, “disruption Mrs. as the such mitting Rye that had no Mrs. “has medical Rye’s] functioning normal capabil- [Mrs. complications receiving result of ity unimpaired, healthy to conceive chil- injection,” RhoGAM that “has not seen she dren, free from an abnormally high risk any doctor healthcare re- provider or death”; birth or premature defects fetal any ceived medical treatment whatsoever (2) (3) disruption family plans; of their receiving result as a of not a RhoGAM distress; the infliction emotional injection,” Ryes although that “have expenses medical that become neces- possible been advised that there are com- sary in the complications future treat plications that could occur did because she resulting Mrs. Rh-sensitization. ], not receive a injection[ none RhoGAM noted, already complications As the Defendants admit- these have occurred at time,” ted that their although Ryes failure a Rho- con- administer “are injection appropriate GAM time possible complications cerned about during Mrs. Rye’s pregnancy they might develop, third had no emotional legal response, Along with their because of sitization. problems
or psychiatric of Dr. counseling or treat- the affidavit any submitted required Bruner, Joseph specialist perinatolo- ment.” obstetrics,” subspecialty gy, which “a af- upon the also relied The Defendants “compli- care in involving “maternal-fetal” Dr. expert, Thomas G. Sto- of their fidavit cated, Dr. high-risk pregnancies.” Bruner vall, gynecolo- specialist obstetrics failure to opined that the Defendants’ ad- Stovall, Dr. motion. gy, to thеir support Rye injection a RhoGAM minister experience twenty-five-years’ who has over recog- from the a deviation amounted health specialty, opined in his acceptable professional nized standard “ex- woman are to an Rh-sensitized risks Rye practice to become and caused Mrs. opined thus Stovall tremely remote.” Dr. Dr. characterized Bruner Rh-sensitized. degree of medical “within a reasonable explaining injury, an Rh-sensitization likely more than certainty it that, Rye] is not the “[biologically, [Mrs. will never individual Rh-sensitized' became person same she was before she damages whatsoev- injuries any sustain Bruner, According to Dr. Rh-sensitized.” opined that “the risks er.” Dr. also Stovall Rye] began preg- her third “[w]hen [Mrs. an Rh- pregnancy a future a child in blood, nancy, without the she had normal that “it mother are remote” and sensitized system now her antibodies she degree with reasonable be said cannot life.” Dr. Bruner stated that Mrs. certainty that if an Rh-sensi- of medical possesses “now blood anti- diseased child, there will woman tized conceives *6 her into bloodstream bodies introduced Additionally, any injury to child.” own, no of through fault her situation opined, Dr. “within reasonable Stovall which not have occurred had she would certainty of that while Mrs. degree medical timely injection.” RhoGAM given been Rh-sensitized, Rye has [has become] she Rye’s Dr. Rh- Bruner stated that Mrs. injuries.” physical no Dr. Stovall incurred “two of con- sensitization has created areas any opined that risks additionally “[t]he to going cern forward”—the risks harm injuries to or a child Rye] future to [Mrs. Rye the risks harm to the Mrs. in pregnancy, a future such child is Ryes’ unborn children. conceived, so that it cannot be remote any degree of medi- stated reasonable to to regard With the risks harm Mrs. in certainty injuries cal such Rye, Dr. Bruner testified follows: fact occur.” Rye Mrs. involved in a [I]f is medical Sep- in emergency filed on which will a memorandum law henceforth she 2, 2010, transfusion, response require tember in the Defen- she at an blood motion, life-threatening prob- dants’ stated that risk of increased injured negligence directly them lems. This is attributable to Defendants’ had present Mrs. causing Rye become Rh-sensi- fact that she antibodies tized, present family plans, her were not before disrupted which their blood which Ordinarily, risks future children she became Rh-sensitized. increased the conceive, may hospital emergency the risk to treat- they average increased an setting, average Mrs. need a blood transfu- an of 20 should she ment it takes future, typing sion in emo- a blood and caused them 30 minutes distress, A proven matching pro- not be shorter tional which need cross occur. screen, cedure, type it by expert testimony because results a blood can be Rye’s injury—Rh-sen- approximately 10 minutes faster. physical from Mrs. done presence of develops Rh baby The antibodies after kernicterus triple blood will birth, double even which bilirubin is deposited in identify necessary compati- the time permanent brain and cause ble units blood for transfusions. This damage. symptoms Other high include likely life time difference threat- levels of sugar, insulin low blood ening emergency an situation which well as a condition called hydrops fetalis. required. blood transfusions are This is Hydrops fetalis causes fluids to accumu- particular significance major because baby’s late within body, causing accidents and traumatic events often oc- swelling before birth which even can n cur in in which sophisticated situations cause Hydrops fetal death. inhi- fetalis immediately physi- medical care is breathing bits normal after birth and cally typically available and time can lung growth interfere with if it con- a patiеnt the essence save who needs period. tinues for an Hydrops extended emergency multiple transfusion or fetalis and anemia can also contribute to transfusions. problems. heart regard to to any With the risks harm Babies of Rh-sensitized who mothers conceive, Ryes may future children the Dr. pregnancy may survive develop kernic- opined: Bruner terus, deafness, which can speech lead can have severe [Rh-sensitization] problems, cerebral palsy, mental re- consequences because -the destruction hydrops tardation. Extended can fetalis baby’s it involves of the cells. The blood lung growth inhibit and contribute to baby’s body compensate for tries to complica- heart failure. These serious anemia caused attack threatening, good tions are life but with by releasing mother’s antibodies imma- treatment, modern medical most babies cells, blood ture red called erythroblasts. can be saved. overproduction erythroblasts can spleen cause liver and to become *7 enlarged, potentially causing liver dam- I have made aware that been Mr. and age or á ruptured spleen. eryth- Excess and, Mrs. Roman Catholics be- are production roblast means that fewer of views, of religious cause their cannot types other produced, blood cells are undergo voluntary and do sterilization platelets such as and other factors im- practice not birth control other than portant clotting. Therefore, for blood through attempted timing of rela- sexual excessive can bleeding com- another tions Mrs. Rye since became Rh-sensi- plication. destroyed red blood cells However, I also tized.. am aware (hemo- pigment release blood’s red pregnancies can and do for cou- occur globin) which degrades yellow into ples in despite such circumstances their substance called bilirubin. Bilirubin is pregnancy, best efforts to I avoid a and normally produced die, as red blood cells made aware are been body but the can a low handle level opposed to and do not plan abortion fetalis, erythroblastosis of bilirubin. In have an abortion in event of a subse- high levels of bilirubin accumulate and quent pregnancy. hyperbilirubinemia, cause a condition in Dr, I baby jaundiced
which the have reviewed the Affidavit becomes be- birth, Contrary yellowish Thomas case. developing fore tone of Stovall eyes Stovall, hyperbilirubine- my and skin. If opinions of Dr. it newborn, mia opinion cannot be probable that it is than not more controlled velocity observation of blood of Mr. and Mrs. abnormal- children that unborn gesta- approximately in a to 24 weeks experience complications Rye will tion, Rh- subsequent or in subsequent pregnancy developing in a child an and severity degree of and the where anemia pregnancies, sensitized mother ejected will complications of those A who uses practitioner been observed. pregnancies successive to increase with means principle ultrasounds as the of Rh-sensitization of the nature because monitoring such a child conduct should impairment is an as a condition. This one to two those ultrasounds every Rye to children ability of Mrs. bear delivery. The prior to factors weeks of risks future free from series in the practi- influence the decision family likely more than ultrasound tioner as to whether do have had otherwise. . risk fac- include amniocentesis individual my experience, education upon
Based practitioner, tors as identified usu- perinatologist, as a training family’s geographic to available access preg- first for.the al course treatment care, avail- equipment the facilities known to be Rh- nancy in a woman experience and the level able (aspira- is an amniocentesis sensitized training of the doctor. needle) at 15 weeks tion of fluid subsequent pregnancy, In Michelle gestation to determine the fetal blood minimum, will, Rye’s unborn at a child baby is type and confirm whether the require monitoring described above baby is Rh-po'sitive. Assuming the fact certainty. medical reasonable likely than which more Rh-positive, na- pregnancies, later because starting given history, im- ture of Rh-sensitization and gestation, serial weeks amniocenteses system’s response mune Rh-sensi- ap- to be expected would be conducted patient, babies tized risks 27, 30, 33, proximately every 3 weeks succes- magnify significantly with will gestation. possibly 39 weeks pregnancies. sive 1 to 2 % Each amniocentesis carries a education, upon my training Based bleeding, infection, leakage of risk spe- perinatologist as a experience fluid, labor, preterm of the fe- and loss risk cializing high treatment tus, and each amniocentesis there patients, including treat- maternal-fetal expenses, to the mother discomfort many who pregnant women ment of a of the insertion needle because their abdomen, toil, have been Rh-sensitized and devel- and the emotional *8 babies, of Rh- oping pregnancies baby having risk delivered be into patients grouped of ce- sensitized preterm, accompanying with risks can be (1) categories: “mild three broad palsy. risk rebral disease,” in be born the child will which amnio- A potential alternative serial jaundice expected minimal to re- with centeses, adjunct an amniocentes- solve, short with es, treatment more conventional would be one or ultrasounds. for ly after and no blood birth need practitioner can enable the Ultrasounds (2) disease,” transfusions, velocity “moderate to measure fetal blood effective- prematurity tend which will to involve ly. count Babies with normal blood degree of and and some anemia will moving at a certain will blood require prolonged in a- neonatal velocity. stay which is a normal speed, facility in treatment and blood transfusions presence of anemia fetus developing through light therapy improve and. the use can therefore detected bilirubin, Fortunately, the babies’ and “severe dis- Mr. Rye’s and Mrs. third ease,” require aggressive which will child ... was healthy born and without 'útero, baby However, including treatment adverse events.. because of monitoring of hematocrit will fall Rye’s comparatively quick which Mrs. Rh-sen- 15-20, (from likely below a level of and will sitization the 28th week her accompanied by erythroblastosis pregnancy up fetalis third until the confirma- fetalis, a hydrops very and serious con- tion of her Rh-sensitive shortly status child), dition which fluid accumulates after delivery excess of her it .in third lungs, heart, my around the baby’s opinion and or- to a degree reasonable gans. Developing babies in this certainty “severe (cid:127)medical is a category are high comparatively disease” considered responder” biologi- “fast risk, I am upon my cally and often changes brought called about practice perinatologist provide as a among Rh-sensitization Rh-sensitized aggressive patients. consultation and treatment This temporal pathway patients. and intervention such Ag- her Rh-sensitization prompt was and the gressive treatment such in- babies condition is now irreversible. The anti- cludes, many invasive, proce- now in her body, bodies contained which diagnostic dures and present blood while were not before her Rh-sensiti- transfusions Despite zation, still babies are in útero. never go away during will her care, best such affected babies have a It is my opinion that therefore lifetime. moi;e significantly risk of higher prematurity it probable than not that Mrs. temporary complica- permanent pregnancy will next baby involve tions,' including respiratory and central moderate to ute- severe disease deficits, system nervous and even death. ro. . upon education, my training Based The Defendants Dr.: deposed Bruner on experience perinatologist as a spe- During deposi November 20Í0. his cializing high the treatment of risk tion, Dr. Bruner elaborated on his affidavit patients, including maternal-fetal treat- testimony concerning the risks to Mrs. many pregnant ment of women who Rye and to unborn children the have been Rh-sensitized their devel- may Excerpts conceive the future. babies, oping I have certain observed deposition testimony appear his below. percentages of classifi- disease and'risk ,Q. Okay. You and are communicat- I Generally, many cation. of the children ing. me, Let it .make clear. I’ve born in the pregnancy first of women you you’re if asked called they after have been Rh-sensitized will expert opinions this case what (mild disease), fall into category the first render, you you’ve will told me while 25 to approximately 30% those testimony—tell your I me catego- children.will fall into second this correctly—your testimony state (moderate disease), ry approximate- *9 would be about the risk that Mrs. ly 20 to 25% of those children will fall Rye has any unborn child of (severe disease). into category the third if would have her[s] another child However, it my opinion that it more I were conceived. Did make that
.probable than.not that the unborn chil- correctly: statement That’s sub- Rye dren of Mr. and will be at a ject your matter of testimony? . greater-than risk average statistical the reasons set A. forth below. -That’s correct. And, gent emergent or blood transfusion specifically, I hear right. All
Q. one, risk procedure. Then life-saving points. Number you say three to R[h-]sensi- became for her is that the turnaround time that Mrs. her her third trimester of produce compatible tized blood fail- because pregnancy prevent injury last or enough fast even injection; a RhoGAM ure to receive death. two, has she now lifetime
number risks, preg- she becomes whether this, say I I’m Q. not—when And I’m not; or number again nant to nail it You’re just trying down. three, pregnant if becomes she testify at this that going will have again, fetus she her any—if called as a you’re "she has risks. trial, at this has witness she correct. A. That’s any in her cur- currently other risk correctly? Did I state those Q. situation, rent, nonpregnant Yes, did. you A. risk, if other risks than the she had loss, pro- of the transfusion
blood Now, you give I right. being prolonged, All want cess correct? Q. opportunity before we leave every risk only A. That’s the medical today tell me here basis has, yes, she sir. "areas, go so ahead. each of those sensitization, As Okay. far A. has, Q, current risk that she On the far, itself, everything read so I’ve right only risk she has now agree- to be appears general there situation, her is this risk current in her that she was ment sensitized process it might longer take last because doc- pregnancy her case of—or her blood blood RhoGAM, tor’s failure to administer of a transfu- products the case spend I we so think need don’t sion? time much on that. longer process A. It would take fact is because Her lifetime risk unit of blood. has, R[h] disease she now circulating antibodies that she has go your Q. enough. Fair Let’s third requires If factor. she ever R[h] opinion. say You if she becomes requires or a bloоd
a blood transfusion future, pregnant, she her fetus both it will be neces- product specifically have risks. Tell me blood sary for her to be administered your opinions are in this re- not have the what products or blood that do R[h]factor, gard. provoke a or it else would body. response in her Well, A. risks from there are the dis-
ease, there are risks risk risk if in an treatment the disease. The she is So situation, mainly example, if disease centers emergency accident, incompa- fetus. her next R[h] With she’s a motor vehicle tible her immune re- pregnancy, some she falls down the stairs stronger than during sponse it was injury, perhaps sort of even will large pregnancy, in her last so she will result in a childbirth *10 will produce an ur- antibodies that cross requires acute loss blood placenta, they attach to in descriptions—in -will pathological de- fetal red blood cells. And these scriptions of fetuses that have been destroyed, blood will red cells be sick hydrops fetalis or have experience died, fetus will some one common-feature is a very degree of anemia. placenta, placenta thick a that’s also hydropic. placenta produces Q. Okay. Anything else? many substances, basal-active not anemia, A. Depending degree on the fetus, only for the but ones required—in fetus be order mother, affect well. when So replace blood cells are placenta becomes thick ede- being destroyed, ma[y] the fetus be matous, commonly the mother de- required organs convert other high velops pressure, blood fluid re- not normally produce that do blood proteinuria, tention and something into blood-producing specifi- organs, very closely akin to preeclampsia, liver, cally, the spleen, under sick, and so the mother becomes circumstances, severe the lin- even well. ing the bowel. The conversion of Q. Go ahead. What else? being these cells do forced to some- thing they normally pro- were Well, untreated, A. if typi- left this will grammed injurious. isdo cally result in death of the fetus if Q. it’s Injurious to the fetus? that severe. Yes,
A. injurious cells, injurious Q. If left untreated? organ injurious to the A. Yes. injury entire fetus. And this can Q. Okay. to an lead accumulation fluid A. So those risks are the to the fetus impaired within the fetus because process. from the disease So a flow eventually blood to condi- early loss, can result in an it can hydrops known as tion fetalis.... result viability, loss after it can Q. is that? What emergency result delivery an A. It’s collection fluid in more than that, unfortunately, may result body in a space one fetus as result baby, spite the loss anemia, provoked by of severe emergency delivery. response. immune may secondarily And so the mother Q. Okay. injured because of process the disease untreated, A. Left this may lead to fetus has or because fetal death. treatment the disease.... Q. Left untreated?
A. Yes. mentioned, A. Finally, as I all of these Q. if it’s What treated? procedures, all of these invasive A. variety pos- procedures Then complications. outcomes untreated,
sible. Left if although even probably And it’s treated, it can lead to ill- going through every maternal worthwhile is, scenario, way ness. The happens just way illustration, fetalis, fetus develops hydrops possible it’s that an amniocentesis does, placenta also, per- blood could sampling because the weeks, weeks, placenta belongs the fetus. And at 23 formed *11 occur, go- not that baby likely more than she’s could complication again with a ing pregnant become then survive but would deliver not com- child will have blood severely by prematurity, affected be pаtible [negative] her sta- R[h] with a result of the disease is not which tus? but a process, complication And of the disease. treatment beliefs, religious A. her Because severely survive and be baby could practice contra- allowed to .she’s not even palsy with affected cerebral her are ception, so she and husband (cid:127) then mental retardation and live having intercourse. unprotected still [forty] years- after that. Q.‘ you do How know-that? risks up pretty sums much So.that that in her A. she Because testified mother, of the fetus and the both at least— deposition. So (cid:127) - treat- and from the disease assump- Q. you’re working And on the ... ment. unprotected inter- tion that there’s going course on now. You're work- say more you can’t Q. Okay. So it’s ing assumption? on that likely than not that if she becomes Well, A. oath that she testified under pregnant again, and if the—and unprotected— there baby incompatible was has blood [negative] with her status R[h] Q. you’re testifying But that’s an accu- n baby is treated going not rate statement? for this? Yeah, A. I am. A. No. Q. saying not that? You’re not, likely it’s Q. And than she’s—more likely, InA. more than country, going child whose blood is get she would treatment. [sensi- her compatible, R[h] with Q. right. All saying that’s tized] status. You’re A. But the interlude until treatment not, likely more more than a .than begins may pregnancy result in a 50[%] chance of that? loss. A. That’s correct. Q. you’re that’s not a But risk testify likely prepared that more , going occur? than not, A. likely So than will more she No, I think so.
A. don’t again, pregnant because become Q. you say Can these already pregnant she’s become you’ve today told
things us about times, having in- unprotected three likely are more than not going not, likely More than tercourse. to her in occur the future? will in at the fetus be affected least one or pregnancies A.' Yes. more future be- simple cause of fact the' . say Q. you What? How can that? men, R[h-]positive are homo- 40[%] likely It’s more not that she than A. heterozygous. zygous, 60[%] will another pregnant become all, her Over a 70[%] chance .there’s . . pregnancy. sensitized pregnancy will be affected.... Q. Okay. what is basis And lady, your it’s statement
247 go. far can Q. you require But that’s It’s to have or to baby to have likely than not that get more she’ll monitoring.” Even if additional additional , pregnant, likely and it’s more than required, however, monitoring is Dr. Sto- baby blood will have vall likely not, testified that “more than
incompatible, likely more it’s like overwhelmingly—overwhelmingly, than that will mean that not, likely Rye] than more [Mrs. would not baby some—some will have any complications.” what? 15, 2011, July On the trial court held a specific. try A. Let me to be more hearing on the Defendants’ motion dis- Q. you. Thank miss, alternative, or in the for summary not, Okay. likely A. So it’s than more judgment. conclusion the hear- At.the pregnant. she’ll become It’s more ing, the trial its court announced decision not, likely baby than will be to grant the Defendants’ motion as to all incompatible. likely It’s than more claims for future damages Rye Mrs. not, the disease will be moderate arising from blood or future transfusions severe, which means that more like- 10, 2011, pregnancies. August On the trial not, ly than procedures invasive will court, consistent with its bench en- ruling, trimester, begin the late second in. n tered order granting Defendants’ weeks, between and these motion as “all claims damages for future procedures occur every invasive will [Mrs,] injuries Rye relatero less, days, or seven ten more prospective injury relating blood trans- pregnancy, the- remainder fusions pregnancies.” or trial future The each-of those events awith one-to- yet damages court found that such had percent risk. two be sustained and that “it is a matter of deposed Dr. was February Stovall speculation they whether will ever sus- Düring deposition, his Dr. Stovall trial tained.” court the .Defen- denied opinion previously reiterated the he had dants’ motion oh the issues whether the affidavit, that, expressed his while Ryes suffered emotional “ha[d] distress Rye Rh-sensitized, has become she has not Rye [whether Mrs.] R[h] disease physical injury incurred dam- sustained of,the negligence because the claimed ages as a result Rh-sensitization. However, during July [D]efendants.” Dr. Stovall testified that unless she be- hearing, the trial invited the court pregnant again, comes there no risk at Defendants motion renew their for sum- Rye all to -Mrs. from the Rh-sensitization. mary discovery after judgment, had been that, Dr. agreed Rye Stovall if Mrs. be- A completed. scheduling order the-trial pregnant comes in the future and the fetus 10, 2011, court provided entered March or suffers from dies cerebral palsy some discovery following deadlines: complication other serious from the Rh- May April discovery; 1—written 1—disclo- sensitization, would, point, at that witnesses; Ryes’ expert sures June have suffered harm from the Defendants’ . 1—disclosures of the expert Defendants’ injection. failure to administer RhoGAM witnesses;- July deposi- Dr. 1—-fact witness Stovall further if Mrs. testified future, discovery tions pregnant depositions becomes there witnesses; Ryes’ expert is a 40% develop August chance “that will she I-amend- enough pleadings; September antibodies ed 1—discovery those de- antibodies placenta baby will positions cross cause the experts; of defense n '28, 2012, court discovery On November January On after with its approximately an order consistent bench entered passed had deadlines *13 ruling. the trial denied Specifically, trial court piior to the scheduled two weeks summary judgment the date, their re- the renewed Defendants’ the Defendants Rye had a summary judgment issue whether Mrs. suffered quest for dismissal purposes of NIED physical injury memorandum in her- filing supplemental that Mrs. The claim. The court clarified support their motion. Defendants “from present precluded pre- no Rye Rye Mrs. has would not be again argued that plans senting family her their failure evidence of how or illness as a result injury damages injection. element changed [had] The an to administer RhoGAM to The trial Ryes’ allega- going emotional argued that the distress.” Defendants granted amount court the Defendants regarding tions emotional distress (1) requiring regard Rye’s to: Mr. NIED claims to “stand-alone” proof of emo- that was expert a severe serious “stand-alone” NIED claim expert required testimo- Ryes supported by had “devel- the injury tional and that the independent ny; Ryes’ cause oped proof support claim[s].” no to [their] Defendants, disruption family planning. Ryes action for According given opportunity ample “ha[d] been 26, 2012, Ryes On December filed have, they that develop proof this case seeking permis- motion in the trial court fact, damages as sustained actual a re- interlocutory pursue appeal sion to an [Defendants failure of the sult later, days the Defendants six issues. Two injection. RhoGAM administer seeking motion the trial filed their own [Ryes], proved damages.” no such permission interlocutory ap- for an court’s 22, 2013, peal on issues. On March two arguments on The trial court heard separate the trial court orders entered motion on the morn- Defendants’ renewed granting listing motions five of both February 6, ing of 2012—the date trial was requested by Ryes the six issues begin. The trial court reaf- scheduled issues-requested by both the Defen- genuine that a ruling firmed its earlier Thereafter, Ryes the De- dants. dispute of fact existed as to material separate filed Tennessee Rule of fendants Rye’s Rh-sensitization con- whether Appellate applications per- Procedure physical injury purposes stituted appeal. mission to claim, citing Dr. Bruner’s her NIED testi- 24, 2013, Appeals May On the Court of mony change in there had “been a her granted and limited its applications both However, the trial blood.” court conclud- following to the issues:. review facts showed that undisputed ed Rye physical injury. had sustained no Mr. Since Defendants have admitted result, provide As a trial court ruled Mr. the failure a RhoGAM injection to Rye independent Rye cause of action was a deviation [Mrs.] has no recognized accept- Mr. NIED claim. standard and dismissed orally professional gyneco- able Counsel for the then moved obstetric and grant interlocutory the trial court logical practice, the trial court to whether partial summary judg- so appeal. agreed properly granted The trial court do [Ryes’] it permit and indicated that ment to the Defendants appeal on pai'ties interlocutory Ryes’ seek an claims that the future children are Rye in its at risk for complications [Mrs.] all issues had been addressed motion. (cid:127)is at risk for the event of future rulings on the Defendants’ harm set App. 2014). blood transfusions as forth Ct. Mar. The Court deposition testimony of Affidavit and of Appeals part affirmed reversed ], upon court’s [ Bruner based [Dr.] part the trial ruling. Specifical court’s findings specula- that such risks are too ly, the Court of Appeals affirmed the deni to be to the jury; tive submitted al of judgment on the issue properly 2. Whether the trial Rye [c]ourt whether Mrs. has a physical suffered denied to the Defen- injury entitling bring her a stand-alone as to claims claim, dants [Mrs.] NIED without supporting the claim *14 - or “diseased blood” Rh disease *8, expert proof. with Id. at 20. The an in of injury therefore has the form an Appeals Court of also affirmed trial - status; bodily altered grant summary judgment court’s of to the properly [c]ourt 3. Whether the trial on Ryes’ independent Defendants denied to Defen- cause of disruption family action for of as to Rye dants the claim that [Mrs.] planning Rye’s for Mrs. claim future distress, has suffered emotional as such expenses medical possible associated with is not a claim “stand-alone” [NIED] future blood transfusions. Id. *13-16. law; claim under Tennessee Nevertheless, Appeals the Court of re 4. properly Whether the trial [c]ourt versed trial grant summary court’s granted summary judgment the De- to judgment to the Defendants on Mrs. Rye’s Rye fendants to the claim [Mr.] claim for expenses future associat medical distress, has suffered such emotional ed with pregnancies future and on Mr. claim is a “stand[-]alone” [NIED] claim *11-12, Rye’s NIED Id. *24. claim. at. and, law; under Tennessee With respect Rye’s to Mrs. claim fu 5. ture right Whether the medical fu expenses fundamental associated with procreation in ture pregnancies, Appeals Tennessee in articulated the Court law, Davis, e.g, Tennessee case Davis v. was to “reluctant conclude” (Tenn. 588, 1992), 842 S.W.2d 600-01 Rye’s proof “anything more was than con right confers of action or remedial tingent speculative/’ Id. at *11. The damages plan- disruption family however, Appeals Court of explained, ning impairment due to of reproductive high particularly Hannan had “created a capacity, right belongs and whether seeking standard” for defendants sum n (cid:127) to a woman also man. to mary judgment, id. concluded and: “disprove[]” Defendants had an failed 2009, Because this lawsuit filed in was essential factual claim and thus had failed of Appeals the Court the trial evaluated high to meet the Hannan standard. Id. ruling court’s on the summary Defendants’ *12. of Appeals agreed Court The judgment pursuant stan motion Rye the trial that Mr. alleged court had adopted dards v. Publ'g Hannan Alltel claim, only a NIED' which (Tenn. 2008), “stand-alone” Co., 1 rather than requires, expert proof prevail at trial. the standards in Tennessee Code Annotat Nevertheless, “high based burden 2014), ed 20-16-101 (Supp. section which standard,” *24,- the Hannan id. applies July actions after filed 2 Appeals 2011. held “that Mr. v. Women’s Care Ctr. Court Of MPLLC, expert Memphis, proof support failure to submit No. W2013-00804- COA-R9-CV, 2014 at *5 n.9 his prior NIED claim WL. 20, 2011, May §
2.
ofAct
ch.
3
Tenn.
Pub. Acts
at 471.
Corp., 387
New
Dev.
grant
Hughes
v.
sufficient
case is not
support
Life
2012)).
Before
S.W.3d
summary judgment.”
ap
in this
making
fresh determination
application
Defendants filed
standards
peal,
identify
we must first
from the Court
permission
appeal
so,
guide our de
To do
novo review.
decision,
pursuant
Tennessee
Appeals’
of.summary
history
we
review the
will
Appellate Procedure
This
Rule of
Rule
judgment,
including
adoption
application,
the Defendants’
granted
Proce
Rules of Civil
56-
the Tennessee
and,
issues raised in the
to the
addition
.56”),
(“Tennessee
three
Rule
dure
parties to address
application, directed the
States Su
of the United
seminal decisions
question
whether
discussing the standards
preme Court3
judgment
Hannan
standard articulated
practice,
apply
v,
Rye Women’s
should be reconsidered.
Hall,
Byrd
decision
.
MPLLC,
Memphis,
No.
Care Ctr of
(Tenn. 1993),
it en
confusion
(Tenn. Sept.
W2013-00804-SC-R11-CV
*15
the
gendered,
whether
reconsider
2014) (order
19,
directing
parties
in Hannan
consis
standard articulated
Hannan should be
brief whether
reconsid
summary judg
of
history
with
tent
ered).
56.
text of
Rule
ment and the
Tennessee
Analysis
II.
Judgment
Summary
History of
B.
of
A.
Review
Standard
in Tennessee
Summary judgment
is appropriate
Rule
Tennessee
Adoption of
pleadings, depositions, answers
when “the
56
Procedure
Civil
of
file,
and admissions
interrogatories,
history
of
comprehensive
affidavits, if
together
any,
with'the
show
has been
judgment practice in Tennessee
genuine
is no
issue as
there
this Court
provided
prior
of
decisions
moving party
fact
material
See, e.g., Byrd
and in law
articles.
review
as a
of
judgment
law.”
entitled
matter
Hall,
(Tenn. 1993); Judy
208
v.
847 SW.2d
Tenn. R.
P. 56.04. We
trial
Civ.
review
Cornett,
-Summary
M.
Trick
Treat?
ruling on a motion for
court’s
v.
Judgment
in Tennessee
Hannan
after
novo,
judgment
presumption
de
without
Co.,
Publishing
L.Rev. 305
77 Tenn.
Alltel
Wells,
Bain v.
936
correctness.
S.W.2d
Summary
[hereinafter Cornett’s
618,
(Tenn. 1997);
622
see also Abshure v.
Judgment
purposes
For
Tennessee].
Hosp.,
Healthcare-Memphis
Methodist
over
appeal,
following
historical
(Tenn. 2010).
98, 103
doing
325
In
S.W.3d
view will suffice.
so,
we make
fresh determination
.
sense
Summary
in the modern
requirements
whether the
of Rule 56
first became available in Tennessee
Rules
Civil Procedure
Tennessee
Brown,
January 1,1971,
Ten
adoption
Estate
402
have been satisfied.
193,
(Tenn. 2013)
Hart
Allstate Ins. Co. v.
(citing
198
nessee Rule 56.
S.W.3d
Steinman,
317,
Catrett,
lectively
trilogy.”
N.
Corp.
106
as "the
3. Celotex
v.
477 U.S.
Adam
2548,
(1986);
.Irrepressible
265
Myth
S.Ct.
91 L.Ed.2d
The.
Reconsider
.
Celotex:
Anderson
Inc.,
242,
Lobby,
Liberty
U.S.
106
S.Ct.
Twenty
477
ing Summary Judgment
Years
Burdens
(1986);
2505, 91
202
81,
L.Ed.2d
Matsushita
Trilogy,
L.Rev.
63 Wash. & Lee
After
Corp.,
Elec. Indus. Co. v.
475
Radio
Zenith
(2006).
82
We will refer to these decisions
574,
1348,
106 S.Ct.
251
Co.,
party
&
its
Accident
Indent.
483
carries
“burden under Rule
S.W.2d
ford
719,
(Tenn. 1972);
56(c),”
Byrd,
see
719
also
847
then “the nonmoving party must
adoption,
S.W.2d
210. At
time of
its
‘specific
come forward with
facts showing
essentially
Tennessee Rule
was
identi
56
genuine
is- a
issue,for
there
trial.’”
cal to
56 of
corresponding
Rule
.the
586,
475 U.S. at
(quoting
Justice Brennan filed a dissenting tion is no simply burden all and would Celotex, ion in Burger which Chief Justice permit summary judgment procedure to joined. and Justice Blackmun converted into tool for harassment. (Brennan J., dissenting). S.Ct. 2548 Rather, as the confirms, Court a party Although Justice Brennan “not dis- did who moves for summary judgment on agree with legal analysis,” the Court’s he ground nonmoving .party dissented from “the judgment” Court’s be- affirmatively no evidence must he show cause believed Celotex had not met “its the absence evidence in production burden the record. under Federal may require moving party Rule of Civil This Procedure 56.” 477 U.S. at depose (Brennan, J., nonmoving' party’s S.Ct. 2548 witnesses dissent-^ added): ing) (emphasis or to establish the inadequacy Justice Brennan docu- clearly also faulted -“not mentary ex- literally evidence. there is If *20 record, plaining] required no moving moving what evidence in the ’the party seeking summary judgment party may the demonstrate by this review- admissions, any—the nonmoving inter- record evidence—if the ing the court upon, the party purports rely burden exchanges between
rogatories, and other party, the production nonmoving shifts to Ei- in the record. parties the that (1) the who must rehabilitate evi- either however, moving party way, the ther moving party’s pa- attacked the dence that affirmatively demonstrate must (2) produce evidence pers, additional show- in the record is no evidence there genuine ing of a the existence issue nonmoving for the support judgment 56(e), in Rule sub- provided trial as party. explaining why mit an affidavit further fully dis- moving party has not If the necessary as in Rule discovery provided production, initial charged this burden 56(f).” 332, 106 Id. at S.Ct. 2548 n.3. summary judgment must its motion for Brennan, “[sjummary According to Justice denied, not con- the Court need non- judgment granted should be the moving has met party the sider whether in one or moving party respond fails to ultimate, persuasion. Ac- burden its if, ways, or after non- of these the more nonmoving party may de- cordingly, the responds, moving party the court deter- feat motion party moving that the has met its mines nonmoving party that that asserts court persuading ultimate burden by calling the Court’s no evidence genuine that no of material there is issue already supporting evidence attention providing fact for After trial.” Id. that was overlooked record law, explication his Justice view moving party. ignored Brennan that he “not read the declared did event, moving respond party must opinion say anything Court’s inconsis- making attempt to demonstrate preceding tent or different than the evidence, for it is inadequacy of this that his “dis- discussion” and reiterated only by attacking all record evidence agreement Court concern[ed] with the nonmoving par- supporting allegedly application principles the facts” these summary judg- ty party seeking of the Celotex case. 106 S.Ct. pro- 56’s burden of ment Rule satisfies 2548. Thus, if the record disclosed duction. moving party overlooked a had Byrd v. Hall 3. tes- provide relevant who would witness years trilogy, after the Seven Celotex trial, nonmoving party for the timony Byrd out in “to Court set establish moving could not find that the Court summary judg- clearer and more coherent discharged its initial burden had party jurisprudence” ment Tennessee under party production moving unless Byrd 56. at 209. The Rule inadequacy of sought demonstrate stated, examining prior Ten- after testimony. Absent such a this witness’ trilogy, nessee decisions and Celotex demonstration, “[cjomparison of the state federal the ground to be denied on construing caselaw and Tennes- [Federal to meet moving party had failed striking see] 56 to reveals no date Rule[s] under Rule 56. production its burden Id. at The Court ob- differences.” (Bren- 331-33, 106 S.Ct. 477 U.S. similarity of construc- “[t]his served (footnote nan, J., dissenting) and citations Rule] tion is not remarkable since [Federal omitted) added). (emphasis blueprint for our 56 served as own that, explained language “once Rule and the Brennan [Tennessee] Justice virtually both identical.” Id. has attacked whatever rules moving party
257 Byrd standing Court Celotex as creating genuine described facts a that issue needs “principle-that party may for the a move by to.be resolved the trier fact and summary judgment demonstrating for that a necessary. trial is therefore The opposing party will not be able nonmoving rely not party upon the produce sufficient trial to evidence with- allegations or pleadings denials his in a for stand motion directed verdict.” 847 carrying out this burden as by mandated And, Byrd S.W.2d at noted Court Rule 56.05. evidence offered The that the Sixth Circuit “read Celotex to had nonmoving must party be taken as true'. mean that ‘the challenge [can] movant Moreover, on the facts which non- opposing party “put up shut a up” on movant relies must admissible being critical issue. After afforded suffi: trial but need not be form admissible ... if discovery cient time for the [non- (otherwise presented as in motion an moving party up,” summary “put not does] affidavit, example, would be excluded ” judgment proper.’ Id. (quoting [is] hearsay). permit opposition To- an Co., v. J.C. Street & F.2d n bebased on evidence that Bradford (6th (alterations 1989) Cir. admissible at trial would undermine the original)). Byrd The expressly Court then goal of summary judgment process the construction Rule 56 in “embrace[d] prevent unnecessary trials since inad- Anderson, Celotex, Matsushita [Elec- missible evidence could not- be used .to tric Company] Industrial the extent support jury a. verdict. prior section this.opin- discussed (footnotes Byrd, 847 215-16 relating ion to those cases.” Byrd, omitted). S.W.2d at 214. Although Byrd Court stated however, Unfortunately, Byrd moving party may satisfy “this required up pronouncement followed with sev- showing ways,” several it provided eral place “observations” “to intended two examples. Id. at 215 n.5. As the first point finer the proper use the sum- example, Byrd Court stated that a mary process judgment in this [S]tate.” moving party may carry its burden Id. As for the of production burdens “affirmatively negating] an essential ele- placed moving nonmoving parties, nonmoving party’s ment of the claim.” Id. the Court stated: As example, for the second the Court'stat- ,[T]he party seeking summary judgment moving party ed that “the conclu- could has the burden of demonstrating to the sively establish affirmative defense are, disputed, court that there no materi-. claim, i.e., nonmoving partyls defeats the trial, al creating facts a genuine issue defendant would be entitled to terms, we defined those judgment he that the non- demonstrated he is judgment entitled as a matter moving party cannot establish an essential A conclusory law. assertion that Celotex, his (citing element of case.” nonmoving party no evidence S,Ct. (Brennan, 477 U.S. at clearly party insufficient. When the J., dissenting)). Byrd Court also seeking makes a motion, turned Justice Brennan’s Celotex dis- properly supported the burden examples nonmoving sent for of how then nonmoving party shifts to the to set facts, party may satisfy its specific conclusions, forth burden when legal faced by using discovery'ma- properly supported affidavits with a motion sum- 56.03, terials establishing mary judgment, explaining listed Rule such disputed, nonmoving may: there are party indeed circumstances material *22 258 allowing a movant trilogy Celotex ignored overlooked
point to evidence satisfy production its burden of demon- moving party that materi- establishes (2) strating evidence evidence dispute; rehabilitate nonmovánt’s al factual (3) an essential moving papers; insufficient to establish was party’s attacked showing claim. See element of the nonmovant’s additional evidence produce Hahn, trial; or v. genuine issue for No. M2003-00342-COA- of a Denton existence R3-CV, 2083711, (4) why fur- *10-11 explaining 2004 WL at an affidavit submit 2004) J., (Tenn. 4, (Koch, as necessary provided discovery May Ct. App. ther of Civil Procedure reading Rule This was based majority opinion). Tennessee Id. at 215n.6. Byrd having 56.06. on the Court embraced 56 in the interpretation Rule Federal Byrd Engendered The k. ap- Confusion having trilogy quoted Celótex with parent inter- approval the Sixth Circuit’s quickly Tennes- Although Byrd became pretation Sophia bible, of Celótex. Andrée “it judgment also summary see’s Hannan?, Blumstein, Bye Bye Tenn. 47 spawned con- quickly drew criticism” 14, 2011). Blums'tein, (Aug. on the 15 Those Sophia Bye, B.J. fusion. Andrée (Feb. Byrd, partic- side of the 23, B.J. other debate read Bye Byrd?, 45 Tenn. 23 ' Entman, ularly light of 2009); subsequent F. Flawed see also June Court,5 hav- of this Supreme Court’s decisions Activism: The Tennessee adopted dramatically differ- Liability ing standard Advisory Opinions on Tort Joint trilogy approach. from Judgment, 24 St. ent the Celotex Summary Mem. 2083711, Denton, (1994) *14 193, See 2004 WL at 216 [hereinafter U.L.Rev. (Tenn. 4, 2004) (Cottrell, J., May Ct. App. stat- One commentаtor Activism]. Flawed Summary Byrd concurring); Gossiping about although “purported] had ed that Judgment, (stating 220 evaluating 69 Tenn. L.Rev. at adopt the federal standard Serv., McCarley Quality v. Food the nonmovant West when the movant’s burden 585, (Tenn. 1998)“made issue, an 960 proof S.W.2d 588 the burden bears only Byrd: incipient in Ten- [Byrd] actually rigor- established a more real what was summary judg- with ous for movants in Tennessee nessee’s break federal standard Byrd?, Cornett, Bye, Bye 45 Legacy jurisprudence”); ment Judy courts.” M. interpreta- 23. Byrd Gossiping, Summary about Tenn. B.J. at Under' this v. Hall: Tennessee, its Byrd, 69 tion a movant could meet Judgment Tenn. L.Rev. by demonstrating simply burden that" Gossiping [hereinafter 175 Summary Judgment], The confu- nonmovant’s was insufficient about evidence but party judgment stage was re- sion “whether the seek- centered quired affirmatively negate an essential summary judgment must ing itself affir- element of claim or de- matively negate element of the nonmovant’s essential Bye Byrd?, it Bye, claim or whether can fense. 45 Tenn. B.J. the nonmovant’s Additionally, production just point, to the to 23. nonmovant’s failure burden mov- shifted nonmovant if the support- come forward evidence with ing Bye, Bye Byrd?, negation 45 ant bur- its claim.” Tenn. satisfied affirmative reading Byrd on one Id. This derived B.J. 23. Those den. .side Byrd following primarily fact debate, interpreted Byrd Serv., Mall, McCarley Quality West 130 S.W.3d West Food Blair v. Town See (Tenn. 2004); 1998). Staples v. CBL & Assocs., (Tenn. 2000); Inc., however, -the approval majori- den-shifting analysis differs, discussed *23 ,the by ty Rehnquist, party bearing Justice the at decision authored burden trial is cone, moving of Justice For party. example, plain- as well as White’s a elements curring who opinion and Justice Brennan’s dis- tiff files a motion for partial sum- senting' Gossiping mary About Sum- on an opinion. of his or element Judgment, mary 69 L.Rev. at Tenn. ISO- claim by her alleging shifts burden 93; Activism, Flawed 24 Mem. St. undisputed facts that show existence ILL.Rev. at Proponents 216-19. of this of that element plaintiff and entitle the n pointed view specifically to footnote of five of judgment as matter Byrd, provided which examples two Similarly, law. an asserting defendant from Justice Brennan’s dissenting opinion defense, laches, such as .affirmative . moving of party how may satisfy its production by alleg- shifts the burden of Bye production. burden of Bye Hannan?, ing undisputed facts that show the exis- 47 Tenn. B.J. at 15. tence the affirmative defense. n added). at (emphasis 8-9 n.6& Al 5. and its Hannan Aftermath though majority in Hannan acknowl granted permission We appeal in edged prior that no explicitly decision had Hannan to the debate and settle resolve rejected standard, the Celotex ex we the confusion proper interpreta- about the plained that our “departure” from fed Hannan, Byrd. tion of 270 at S.W.3d eral actually began Byrd standard in examining McCarley, After Byrd, and oth- merely continued in McCarley and subse er summary judgment applying decisions quent decisions. Hannan, at 270 S.W.3d 7 Byrd, Hannan, majority in which in- (citing Blair, 768; 130 at Staples, S.W.3d undersigned, cluded the declared: 88; McCarley, S.W.3d These clearly cases show that a mov- 588); Hannan, see also ing party’s production burden in (stating n.4 legal at least one com Tennessee bur- differs from federal interpreted Byrd mentator ’as depart had It enough den. is not moving ing from the Celotex citing standard party to challenge nonmoving party Gossiping about Summary Judgment to “put up up” or shut to cast even Tennessee, 220). 69 Tenn. L.Rev. at doubt a party’s ability prove an not, however, majority Hannan did base , element at trial. rejection its the Celotex standard his
torical differences' between federal and Tennessee, In summary,. moving practice or summary judgment Tennessee party who seeks to the burden textual differences between thé state and shift production nonmoving party to the who versions of' Rule 56. The Hannan federal proof bears burden at trial must majority acknowledge also failed (1) affirmatively either: negate es- an eight only applied other states standards sential element the nonmoving'par- different Celotex. Cornett’s Sum claim; ty’s show that the non- Tennessee, mary Judgment Tenn. moving party prove an essential cannot Rather, L.Rev. at 44 & nn. 266-273. element the claim at trial. majority settling Hannan focused on burden-shifting interpretation
These are the dispute proper two over moving methods available to the party Byrd. Summary Judgment See Cornett’s Tennessee, moving party when the does bear 77 Tenn. L.Rev. at 337 (“The of proof tragedy burden at trial. The real is ... bur- Hannan through judg- what Ten stake the heart it the issue addressed Tennessee,” predomi- By ment is, “[t]he it nessee law not what should be. nant reaction to Hannan interpretive battle making Hannan “trepidation.” and the bar” bench was Byrd, parties opportunity over lost the Judgment Cornett’s Summary Tennes- why argue prefera Celotex see, Another 77 Tenn. at 306. com- L.Rev. for Ten ble standard including the mentator noted that (footnote omitted)). nessee.” *24 example trial” words “at in second Koch, in C. Jr. William dissented Justice satisfy its burden how a may movant Hannan, 11 at Hannan. 270 S.W.3d had shifted the bur-* production, Hannan (Koch, J., dissenting). Justice Koch efri- away the -party of production den pat- 56 phasized Rule Tennessee was proof at who would bear burden essentially upon, and terned remained “with the the defendant trial and “saddled” to, identical 56. Id. at 12. Federal Rule requires proof, a burden burden in the Justice Koch noted as well that negative of to prove the the defendant years adoption, Court had after its Bye, Byrd?, 45 Bye claim.”- plaintiffs Rule 56 in man- interpreted Tennessee others, However, at includ- B.J. 26. Tenn. ap- ner that “mirrored federal courts’ as ing undersigned, Hannan viewed 12- at plication of Rule [Federal 56].” merely reaffirming summary judgment Byrd disagreed that de- 13. Justice Koch applied that had been since standards standard, he and parted from federal Summary Judgment Cornett’s Byrd. See purport- quoted language Byrd (stat- Tennessee, in 77 L.Rev. at 332 Tenn. trilogy—in- ed the Celotex to “embrace” ing majority had Hannan the per- cluding portion Celotex which guns to its “stuck and reaffirmed to, satisfy its moving party burden mitted a standard”). Byrdr-McCarley-Blair demonstrating production by it clear that years Two became later nonmoving party’s insufficient evidence it viewed majority in the Hannan others summary judgment stage estab- changed fundamentally sum having as nonmoving lish essential element of the Court, mary judgment practice when (citing claim Id. at 16 party’s defense. decision, abandoned the in a three-to-two n.5). 213, Byrd, 215 Justice 847 S.W.2d burden-shifting set forth mechanics predicted Koch that Hannan ulti- Green, Corp. Douglas McDonnell v. 411 “undermine, enhance, than mately rather 1817, 792, 668 U.S. 93 S.Ct. 36 L.Ed.2d utility summary judgment proceed- (1973), summary judgment for use at the ings out frivolous opportunities weed employment and stage discrimination expense time lawsuits and to avoid the cases, incompatible retaliation unnecessary trials.” Id. at Hannan standard. was not alone in his view Co., Koch Inc., Justice Supply Gossett v. Tractor 320 significantly 777, (Tenn. 2010); Hannan had altered also see LLC, Berkline, 796, summary judgment practice. Tennessee Kinsler v. 320 S.W.3d (Tenn. 2010).6 later, author, 2011, According year “most commenta- A one Assembly tors that Hannan driven the General enacted statute ha[d] believed Koch, J., (Clark, joined by dissenting part undersigned, S.W.3d at 789 6. The Justice Kinsler, ma concurring and Kinsler from the judgment); dissented Gossett in the jority's (Clark, J., decisions to abandon McDonnell concurring in S.W.3d at 802 argued was Douglas that it framework concurring judgment). part Gossett, incompatible with Hannan. ‘to purpose scheduling “with the stated overrule thе the trial court entered order parties standard for judgment and ruled mo proof who do not bear the burden of discovery tion after the deadline had set in Hannan v. Alltel Publish forth Hannan, passed. required Under we are Co., ing progeny, its the eases relied nonmoving party to assume that the Sykes Chattanooga Hannan.’” v. still, trial, the time somehow up come Auth., (Tenn. 18, 25 Hous. n.2 with evidence to her claim.’” support 2011) 2011, 20, (quoting May Act of eh. (quoting Target Corp., White No. 1471).7 § 2 Tenn. Pub. Acts W2010-02372-COA-R3-CV, 2012 WL App. at *7 n.3 Ct. Dec.
6. Hannan Reconsidered 2012) author))). J., (Kirby, Having reexamined the Celotex tril Like Federal Rule Rule Tennessee ogy, Byrd, majority dissenting and the *25 does require 56 not the moving party to Hannan, opinions in well as the as cases Instead, expressly it present affidavits.. it, that have followed we conclude dispenses with that requirement, stating adopted incompati in Hannan is standard party “a seeking upon recover history ble with the and text of Tennessee claim, counterclaim, or cross-claim or to Rule 56 in practice functioned “(a] obtain a declaratory judgment” and purposes summary frustrate the for which claim, counterclaim, party against whom a judgment rapid intended—a inex was or cross-claim is or a declaratory asserted resolving pensive means issues judgment sought” is move for sum- cases about which is no there is genuine mary judgment or without support- “with Bowman, regarding sue material facts. ing 56.01, R. Tenn. Civ. P. affidavits.” 529; Corp., 547 Evco added); 56.02 see (emphasis also R. Tenn. at 24. Whether began the standard with Civ. P. (directing 56.04 the court to consid- Hannan, Byrd originated or we in con “affidavits, any,” er in determining clude that if standard has shifted the summary judgment whether should be far imposed parties balance too on - added)). granted (emphasis Tennessee seeking summary an almost in judgment requires Rule 56 both'-the movant and the production, surmountable burden of as the nonmovant to submit statements of undis- Appeals’ Court decision in this case facts, supported by puted citations to the illustrates. See also Boals v. Murphy, No. record, W2013-00310-COA-R3-CV, “[i]n order assist the in WL ascertaining whether there 5872225, any *15 materi- Ct. Oct. App. 2013) J., author) (‘“Under dispute,” 56.03, al facts in R. Civ. P. (Kirby, Han- Tenn. nan, case, provides that, perceive “[sjubject as we ruling moving in that to the enough is 56.03, it not rely nonmoving part/s compliance with Rule where, party’s proof here, lack judgment sought even as shall be forth- rendered Code Annotated 20-16- Tennessee section Demonstrates to the court provides as follows: nonmoving party’s evidence insuffi- summary judgment any In motions for cient to establish an essential element of Tennessee, moving par- civil action nonmoving party’s 'the claim. ty proof who does not bear the burden of 2014) § (Supp. Tenn. Ann. 20-16-101 Code prevail shall at trial on its motion for (effective 1, 2011). July This statute does it: if apply appeal in this because the (1) Submits affirmative evidence that ne- July filed action before statute's gates an essential element of nonmov- 2011 effective date. claim; ing party’s or rejection of the standards warrant answers depositions, if pleadings, with file, trilogy. the Celotex admissions interrogatories, enunciated.in and. affidavits', any, show together with if nothing history simply There is genuine issue as is no there Rule which necessi- text Tennessee moving party that the material fact.and rejecting enunciated in tates the-standards as a matter law.” entitled to Despite trilogy. the dissent’s the Celotex added). (emphasis P. Civ. Tenn. 56.04 R. contrary, principle assertions to the Rule Rule Tennessee Like Federal cases be' decid- law that should Tennessee summary judg- clearly states when require rejection does not ed on the merits provided in “supported ment motion is de- trilogy. Celotex When a cоurt 56],” nonmoving par- Rule [Tennessee termines, with the consistent standards allegations “may upon the mere ty not rest genuine Rule that no issue Tennessee party’s [nonmoving] or denials of grants of material-fact exists “by in response, affidavits pleading,” but been judgment, the case has decided on provided in [Tennessee otherwise reason, adop- For the same the merits.8 56], specific set forth facts Rule must tion the standards enunciated genuine issue for showing there is a trilogy entirely Celotex consistent not so party trial. If the adverse does by jury right the constitutional respond, judgment, appropri- I, 6 of guaranteed by section article *26 ate, against adverse shall entered As commen- Tennessee Constitution. one Conspicu- R. Civ. P. 56.06. it, law, Tenn. party.” a fact put tator “under common 56 ously Tennessee Rule is absent Cor- qua was the sine non trial.” issue any moving party Tennessee, language requiring Summary Judgment nett’s obtain, seek, and with schedul- to comply Tenn. L.Rev. at 311. Tennessee courts 77 moving summary ing “always empowered order before have been to decide although, dis- to the judgment, according legal questions upon agreed facts.” Id. sent, imposed obligation. “simply 56 Hannan Tennessee Rule embodies the recognition common law’s that if there is Instead, 56, Rule like Federal Tennessee dispute, no there is' no need for factual Rule 56 continu- authorizes courts order trial.” Id. ances motions power are that the party opposing summary judgment allow a We mindful affidavits, depositions, this Court to overrule former decisions “is obtain take o.r very ,may sparingly and when engage discovery in other forms exercised Edingbourgh P. Be- compelling.” Tenn. Civ. 56.07. is v. ordered. R. reason Co., 660, Sears, Roebuck & 206 provides 56 Tenn. 337 cause Tennessee Rule 13, (1960). prior 14 authority grant Adhering continu- courts with S.W.2d nonmoving generally preferred parties “the ances when decisions promotes course it motions made ade- because the evenhand before ed, develop predictable, consistent quate discovery provid- has been and time ed, discovery legal principles, in ment fosters differences between reliance contributes, decisions, under system discovery judicial federal judi perceived integrity of Civil do Rules Procedure actual Tennessee Indeed, actually although stage, ment the Hannan standard the dissent views Hannan standard, just, principle favoring "the parties antithetical to the forcing as the better genuine inexpensive speedy, of ac- proceed trial even no issues determination” when judg- tions on the merits. R. Civ. P. 1. fact exist at the Tenn. material
263
Tennessee,
process.” Payne v.
501
been
acquiesced
cial
reasserted
827,
808,
2597,
111
115
U.S.
S.Ct.
L.Ed.2d
long
years.”
City
number
v.
Arnold
Vasquez Hillery,
v.
474
(citing
720
S.W.,
Knoxville,
195,
469,
115 Tenn.
90
617,
265-66,
254,
106 S.Ct.
88 L.Ed.2d
U.S.
(1905); see,
Watkins,
e.g.,
v.
470
State
362
(1986));
598
see also In re Estate of
(Tenn. 2012)
530,
(overruling
556
S.W.3d
(Tenn.
McFarland,
299,
167 S.W.3d
306
sixteen-year-old decision because the state
“
2005).
stated,
Simply
¾ most
it
matters
it
constitutional test
adopted was unwork
important
applicable
rule
more
able
because there was no textual or
”
right.’
of law
than it
be settled
be settled
historical basis for interpreting the state
827,
Payne,
To prevail claim, at 171. the must establish liability plaintiff a statutory
following elements: case, Dr. expert, the defense Stovall, de- a reasonable testified “within accept- (1) recognized The standard that, certainty Mrs. while gree medical in practice profes- professional able n '(cid:127)sionand Rh-sensitized, she Rye [has- any, become] thereof, if specialty Ryes’ injuries.” no The physical incurred in com- practices defendant that, Bruner, “[biologi- Dr. stated expert, practices in defendant munity which cally; Rye] person not the same -is [Mrs.’ community at the time or in a similar Rh-sensitized” before she was she wrongful became injury action alleged or for life blood” possesses and “now diseased occurred; negligence. of the Defendants’ because (2) acted with less That the defendant Rye’s undisputed that Mrs. facts ordinary act than failed that it blood contains now antibodies with such care accordance reasonable contained but the Defendants’ not have standard; and negligence. defen- proximate a result As disagree Although experts omission, act or negligent dant’s amount to facts undisputed whether injuries which would plaintiff suffered opinion is injury, this difference-of physical have occurred. not otherwise above, inju- legal material. As.noted (2012). 29-26-115(a) § Tenn. Code Ann. against ry “signifies [a] an act omission “signifies act or omission legal injury A person’s rights that results' in some dam- against person’s rights results [a] Thus, Church, age.” at 171. Perales, damage.” v. Church some assuming Mrs. Rh-sensitization even 2000) Ct. S.W.3d App. disposi- physical amounts injury, Kyle, Barnes v. 202 Tenn. (citing question genuine tive issues .whether (1957)). “Any want of skillful fact exist as to the third factor: material diligence physician’s part care or reasonably Rye Mrs. certain to whether recovery, prolongs sets patient’s back a damages sustain for future medical ex- illness, plain- increases the patient’s penses as a of her result Rh-sensitization.13 or, short, suffering, tiffs makes review, skill, an After careful we patient’s condition than due worse used, “The care,-and question negative. consti- diligence had been swer this uncertain, damages injury purpose for the of a existence cannot [health tutes becoming liability, claiming our feár of Therefore is not inconsistent with her Harms learning pregnant her holding appeal. after Rh-sensitiza in this injuries.’ pro tion had caused emotional She enough injury to evidence of emotional duced damages past Ryes request 13. The did not judgment'on survive these claims. although expenses complaint, medical their Am., Corp. In Harms at *3. Lab. of law the filed memorandum /'die (N.D. 2001), F.Supp.2d Ill. case 891/912 been court had mentioned one, factually similar to the court most $343.00 billed for medical evaluation/con- recovery woman's limited Rh-sensitized Ac- sultation with Dr. Michael Schneider. injuries "only [the for which woman] to those cording Ryes’ deposition testimony, Dr. to the recovery risk” and disallowed herself [was] *30 Mrs. Rh- met them after Schneider with injury any for "risk of future future explained sensitizatiop. was discovered fetus,” ground impossible “it is on the pregnancies. posed the risks it for future speculation determine without what sort of injury—if. any—the fetus suffer.” Id.
267 speculative, not, or Discover v. negligence. remote.” Bank fendant’s It does how- (Tenn. 479, 2012). Morgan, 496 ever, S.W.3d require 363 proof of future medical , “Damages may never be on mere based metaphysi- treatment an absolute or conjecture speculation.” or v. Overstreet -Rather, cal certainty. the “reasonable Inc., (Tenn. , Shoney’s 4 Ct. S.W.3d certainty” requires plaintiff standard 1999). App. for future “[T]o [the] recover will, prove or proba-, that he she mere injury, effects of an effects must the future bly not, than need these medical services reasonably be shown to be certain in the future. ... possibility a mere likelihood or Inc., Singh Larry Fowler Trucking, degree
there must a be reasonable med (Tenn. 2012) App. S.W.3d 287-88 Ct. certainty develop ical plaintiff will Amacher, (quoting Henley v. No. M1999- a disease in the future as result of 02799-COA-R3-CV, 2002 WL injury.” Corp., Potts v. Celotex App. 28, 2002)); *13-14 Ct. Jan. see (Tenn. 1990). As also Tenn. Jury Prac. Pattern Instr. Appeals recently ex more 14,50 (2014 ed.) (“If T.P.I.-Civil you are to plained: determine a party’s damages, you must A person by who is injured another’s compensate that party loss or harm negligence may damages from recover reasonably that is certain to be suffered in past, person present, other for all the future as injury a result of the and prospective harm. in the .Included question; speculative You include prospective damages harm for which damages, compensation which is' future may be recovered is the reasonable cost that, loss or harm- although possible, is medical proba- services that will certain.”) conjectural or not'reasonably bly be incurred lingering because affidavit, In his Dr. Stovall opined that injuries effects of the caused any Rye future risks Mrs. result of negligent person. To remove awards pregnancy “extremely future re- expenses future medical from the mote” arid that “it cannot be said with speculation, realm seeking persons degree reasónable certainty medical expenses future present medical must patient that an ever Rh-sensitized will sus- (1) [showing] evidence that additional any irijuries tain damages.” or his de- reasonably medical treatment certain position, opinion Dr. Stovall his reiterated to be1 required the future and that, Rye pregnant unless Mrs. becomes [enabling] reasonably the trier-of-fact to again, presents Rh-sensitization no expected the cost estimate treat- risk at all Even if ment. to'her. be-’ Mrs.. pregnant comes an Rh- future With component The first of a claim for child, positive opined Dr. Stovall there is, future lan- expenses médical develop 40% chance “she will guage of the Jury Pattern Tennessee Instructions, enough antibodies those antibodies evidence additional placenta cross baby will medical cause “reasonably treatment is certain or to require baby to be to have required “rea- the future.” This monitoring.” certainty” sonable additional Even additional requires standard however, monitoring Dr. required, Sto- possibili- than mere likelihood more not, ty. opined It vall that-it than requires plaintiff likely is “more establish degree certainty overwhelmingly—overwhelmingly, some like he undergo likely not, Rye] she will than future medical treat- [that more injuries ment for the any complications.” caused de- would not have *31 will, Rye’s Mrs. claim Rye Mrs. opined that Dr. Bruner not, expenses medical associated pregnant become future likely than more pregnancies have to and future again declined with future blood because Rye Ryes’ Mrs. because evidence insuf- birth control and transfusions. Mrs. use had' n three pregnant previously become ficient as matter law demonstrate further testified expenses Dr. Bruner are reason- times. that future medical in pregnant Rye become ably should Mrs. certain occur demonstrates future, chance the fetus will is 70% expenses there that future medical de- instead additionally positive. be Dr. Bruner entirely Rh pend upon contingencies have would, positive fetus opined an Rh occur. never occurred not, moderate to suffer likely more than Although opined Dr. Bruner that Mrs. Rye’s due Mrs. complications severe likely become Rye more not to than Dr. Brun- above-average Rh sensitization. again, his pregnant testimony referred that, such er also under circum- opined Rye’s testimony to Mrs. deposition stances, require aggressive child would Rye engaged had in that she Mr. untreated, treatment, and if left the child sex since Rh-sensitization unprotected her complica- to severe could suffer moderate Rye understanding his that Mrs. had Bruner, According tions. to Dr. were Mrs. pregnant become three times before when experience Rye’s fetus future unborn couple engaged had in relations sexual of her complications as a result Rh-sensiti- using Rye’s without birth control. Mrs. zation, as well as the complications, these deposition testimony actually includes them, would and treatment monitoring great information that deal additional Rye’s health risks and the increase Mrs. Specifically, Dr. Bruner did mention. fetus. health risks to the unborn Rye prior to Rh- Mrs. testified that her Rye also that Mrs. opined Dr. Bruner couple not only sensitization the had de- expenses suffer future medical will clined to birth control measures use while damages from her Rh-sensitization should relations, engaging unprotected sexual in a future medical emer- she be involved planned they had to conceive children acute loss gency involving an blood determining Rye when Mrs. was “ovulat- blood requires emergent transfusion. an ing, things engaging like that” and sexu- Bruner, According damages tо Dr. these during Rye al relations times. Mrs. those presence will because “[t]he be incurred planning stated that this had “worked” Rh in Mrs. will blood antibodies conceiving them children. After her the time triple necessary double even Rh-sensitization, Rye Mrs. stated that the units of identify compatible blood for measures, couple these same had used “[tjhis time transfusions” and difference method, “rhythm” along pre- threatening likely emergen- life pregnancy. Rye vent a fourth stated Mrs. cy situation which blood transfusions couple had abstained from sexual required.” are during Rye relations when Mrs. times record, including ovulating” Having and the reviewed “could likelihood motion, response, deposi- conception greater. affidavits and been She tions, couple applicable judg- “bought under the also stated that the had standards, agree we with the trial bunch of tests” to assist them determin- ment ing had court that Defendants entitled when ovulation occurred.14 - previ ously pills she had birth treat 14. Mrs. also testified that used control certain *32 Thus, Rye, thirty-nine-years-old, Ryes’ request then testified for future medical pregnant during expenses not become arising she had from blood transfusions is January her years the four possibilities speculation, between based on not April her Rh-sensitization and certainty. reasonable deposition. The record a taken as whole could not
Moreover, contingency if the even first lead a rational fact trier of to find that the Rye occurs and Mrs. becomes pregnant Ryes reasonably are certain to incur fu- future, experts agree medical ture medical expenses associated with Rye neither Mrs. nor her child will unborn Rye’s Mrs. pregnancies future or blood any risks at all from her Rh-sensiti- suffer Thus, genuine transfusions. there no zation unless the unborn child’s future issue for trial. Matsushita Elec. Indus. Thus, positive. undisputed blood is Rh Co., 475 U.S. 106 S.Ct. Be- contingencies facts establish that two must demonstrated, cause the have Defendants occur Rye’s before Mrs. Rh-sensitization adequate time discovery, after for damages even a risk poses either Rye proof Mrs. lacks of an essential ele- Rye Mrs. or her future unborn children. Rye’s ment her claim Mrs: response undisputed facts thus insufficient identify proof claim, fails to supporting her genuine to establish a of material issue the Defendants to summary are entitled for as to certainty fact the reasonable judgment. Accordingly, we reverse the expenses medical with future associated Appeals Court of and reinstate the trial future pregnancies.15 court’s judgment granting the Defendants’ Rye’s on Mrs. re- proof Rye’s
Mrs. also falls short of es- quests damages for future ex- medical genuine tablishing a issue fact material penses pregnancies associated with future regard to for trial with the reasonable and future potential blood transfusions. certainty damages for future medical expenses associated future blood Ryes’ 2. The Claims NIED contingencies At transfusions. least three Minor, Rye must occur Camper before Mrs. will ever incur (Tenn. 1996), damages First, of this sort. she must this Court held experience emergency a future medical in- NIED plaintiff who asserts an claim need Second, volving prove an loss. accompanying physical inju acute blood not an Instead, emergency ry. medical must Id. at 446. have created we held that such immediate “gener need a blood transfusion. claims should be analyzed under Third, However, typing required negligence approach.” the blood al Id. re- Camper sult Mrs. Rh-sensitization must Court imposed safeguards de delay prevented signed only compensate persons have caused immediately receiving injuries need- who sustain serious emotionаl but compensating ed blood transfusion. The have also to of- avoid trivial and non- ends, at all that proof fered no of these meritorious claims. To these contingencies will bringing future occur. NIED plaintiff ever stand-alone conditions, evidence, although weighed medical she had not 15. We Rather, Rh-sensitization, dissent we contends. have consid- so her done since she record, undisputed ered all of the facts in the couple also that the had condoms stated used dissent, unlike.the which harvested from previously sanitary purposes and had done supporting the record those its facts fa- year preceding deposition. so within her vored result. *33 emotional injury to “stand-alone” apply prove that emotional claim must distress, con claims. negligent by caused .defendant’s And, or Id. “severe.” duct is “serious” at Id. 136-37. or must be injury impairment “the claimed recently, Rogers, this Court re- More or by expert medical scientific supported “expert proof’ require- that the affirmed Thus, Camper established
proof.” NIED only to “stand-alone” applies ment brings who a stand-alone plaintiff that a apply plain- not when a claims and does (1) satisfy ele must the five NIED claim ‘parasitic’ injuries “a tiffs emotional are negligence (duty, breach ordinary of ments that re- negligent conduct consequence fact, loss, or injury causation duty, damages.” types in multiple sults (2) cause), legal or establish proximate 10. Rogers, n. Never- 367 S.W.3d injury, “severe” emotional “serious” or theless, stated that actions we also (3) injury emotional prove of emotional distress “negligent infliction or expert or severe with medical serious negli- (including “subspecies” all three Camper, 915 S.W.2d proof. scientific ‘stand-alone,’ ‘parasitic,’ gent infliction: 446; Land Rogers Louisville also see require an ele- ‘bystander’) identical 2012). (Tenn. Co,, 367 S.W.3d shomng plaintiff ment: a suf- resulting injury a serious mental fered Univ., In Estate Amos v. Vanderbilt Rogers, conduct.” the defendant’s 133, 134 2001), Court added).’ (emphasis A 367 S.W.3d at Camper require whether the considered occurs, injury or mental serious severe expert or evi ment of scientific medical stated, “a plaintiff shows that we of a or severe extends injury dence serious constituted, person, normally reasonable resulting in emo negligence to all claims adequately unable to [have been] injury. The Amos tional Estate. of engendered cope mental -stress with .the applies Camper requirement held that by the case.” Id. circumstances NIED claims does stand-alone cope explained 210. “[u]nable We alleged apply to cases which the engendered” re- stress with mental other injury “parasitic” emotional . demonstrate, way quires plaintiff injuries. or Id. at of claims types enumerated, factors six non-exclusive explained: The Court evidence, pertinent other “that he impairment significant or she has suffered requirements special proof The . daily in his life.” Id. The “nonex- or her unique safeguard, to en- Camper are a Rogers clusive factors” enumerated are neg- reliability of “stand-alone” sure n follows: ligent infliction emotional distress (1) manifesta- physiological Evidence of subjective nature of “stand- claims. distress, including tions of but emotional injuries a risk emotional creates alone” nausea, vomiting, not limited to head- of a claims. The risk fraudulent aches, weight gain, less, however, severe loss or in a claim fraudulent like; inju- a claim for emotional ease which (2) ry multiple claims damages is one psychological Evidence of manifesta- distress, damages including emotional but damages. When tions of emotional consequence depression, negligent sleeplessness, “parasitic” limited to out- multiple types anxiety, spells or emotional crying conduct that results bursts, nightmares, drug alcohol impose is no need to damages, there and/or abuse, and mental reactions pleading proof requirements unpleasant special horror, shame, fright, grief, expert hu- submit proof such establish miliation, embarrassment, anger, cha- severe injury—an essential emotional ele- grin, disappointment, worry; ment of his NIED stand-alone claim. Having demonstrated that Mr. lacks plaintiff sought Evidence proof of claim, an essential of his element treatment, medical was diagnosed the Defendants are to summary entitled medical or psychiatric disorder such as *34 Thus, judgment on this claim. we reverse disorder, post-traumatic stress clinical Appeals’ the Court of decision and rein- depression, traumatically neuro- induced state grant- the trial court or psychosis, phobia, sis or was and/or ing summary judgment on this issue. medication; prescribed ' (4) regarding Evidence duration agree with We the courts below intensity of the physiological claimant’s Rye’s Mrs. claim for emotional dis symptoms, psychological symptoms, and “parasitic” tress damages her health treatment; medical However, care liability claim. agree >we (5) Other evidence that the defendant’s with the Defendants that judg plaintiff conduct caused the to suffer because, ment is- this claim appropriate significant impairment in or daily his her although expert proof, required, not Mrs. functioning; and Rye proof has offered no at all to demon instances, In certain of] [evidence strate that has a she suffered severe or outrageous the extreme and character of Mrs; injury. Rye serious mental testified the defendant’s . . conduct..... deposition in her that she was “scared” Rogers, 367. Having 209-10. upset” “so when told risks her governing legal principles, summarized pose Rh-sensitization any could future must evaluate genuine we whether issues pregnancy, she “.very con remains exist Ryes’ of material fact as to the emo- cerned” about the risks that could arise . tional claims.16 distress a should she need blood or transfusion agree We with pregnant the courts below become Rye future. Mrs. undisputed facts establish that testified that she thinks about the risks Rye any physical Mr. has not suffered associated with her “every Rh-sensitization injury. Although Rye argues day” Mr. that he and that she is more careful in her injury has sustained an actual in the na sexual relations with her husband because of disruption family ture planning, his the risks that could arise should she conclude, explained as will be pregnant However, we more become in the future. hereinafter, fully Rye Tennessee law does Mrs. sought stated she not has recognize disruption family not planning psychiatric emotional or counseling independent as either an cause action or a psychia mental health treatment from trist, damages. Accordingly, counselor, psychologist, an element Mr. or anyone Ryé has alleged a stand-alone NIED else as a result of her concerns. Mrs. agree claim. We the Defendants that also testified her concerns because, appropriate caused her to lose time work or despite adequate having time discov business activities and that she contin has ery, despite expiration and indeed all ued her parenting responsibilities without deadlines, discovery RyeMr. has disruption. failed genuine apply correctly
16. The dissent’s conclusion that a the dissent fails to the factors issue Rogers. of material fact exists is flawed because articulated in agree divorcing couple could sympathy not without 589. The we are Although disposition cryogenically as to the legal stan- considering Rye, Mrs. preserved product of vitro fertili- their we conclude Rogers, articulated dards zation, Davis Court referred which clearly testimony is insuf- that Mrs. embryos.” Id. Mrs. Davis as “frozen issue of material genuine ficient to create sought of the frozen originally custody em- concerning the essential element fact her intent to use bryos expressed injury. Despite mental or serious severe once divorce pregnant them become discovery, Rye pro- adequate time final, objected but Mr. Davis be- was inju- no of a serious mental evidence vided after the coming parent divorce and from the conduct. ry resulting Defendants’ The trial court without consent. his physiological suffered She neither embryos that the frozen were determined symptoms, sought nor medi- psychological *35 beings” awarded Mrs. “human Davis treatment, nor incurred professional or cal Ap- Id. of custody them. The Court of impairment daily any significant her trial peals remanded to the reversed and her Rh-sensiti- functioning resulting from entry vesting for Mr. court of an order fact, she has she testified that zation. “joint ... with control Mrs. Davis of any counseling or sought treatment disposition.” their Id. equal voice over daily par- work and any sort and that her review, granted adopted This bal- Court disrupted. not been enting routines have ancing potential test which determine Rye’s Having that Mrs. evi- demonstrated parent should control of the frozen receive genuine to create a insufficient dence is balancing embryos, applying and after trial, of fact for the Defen- issue material test, Appeals. of Id. at affirmed the Court summary judgment entitled dants are 590, 598-602. parasitic claim for emotional Mrs. on that, devising balancing It is true damages. distress test, the Davis Court referenced decisions Supreme of dis- the United States Court Disruption Ryes’ 3. The Claims for (1) cussing the individual constitutional Planning Family right gov- “be free unwarranted Ryes argue that the courts so intrusion into matters funda- ernmental summary judg in granting below erred mentally affecting person as the decision disruption of on fam ment their claims child”; (2) beget whether bear Ryes assert ily planning. The procreational autonomy; parental hold, based' on Davis v. should responsibilities regarding chil- rights and Davis, 588, 600-601 However, dren. 598-602. 1992), recognizes law dis that Tennessee held, nor implied, Davis Court neither nor family as either an ruption planning recog- that Tennessee law suggested even or as an independent of action ele cause disruption family planning as ei- nizes negligence for other damages ment of independent ther an action an element agree claims. with the Defen based We in negligence cases. damages Accord- nor other Davis dants neither ingly, the decisions of the we affirm courts disruption recognizes Tennessee decision granting summary below Defendants independent cause family planning as Ryes’ disruption judgment claim damages. action or an element of independent as an family planning ac- concluded, Indeed, entirely distinguishable Having already on a sep- Davis is tion. basis, summary judgment is began ap- case. Davis arate on its facts from this Davis, Rye’s parasitic on Mrs. claim for propriate action. as a divorce damages, we judges interpreted Byrd emotional distress need to be consistent ruling allowing Thus, upon address the trial court’s the federal standard. Hannan, present disruption evidence review of it immediately became Ryes’ that, family planning proof apparent representing rather than parasitic damages Byrd, “refinement” of represent- her emotional distress Hannan concluded, already change As have ed a sea claim. we however, support jurisprudence Indeed, provides Davis no State. these ruling. the trial court’s ramifications manifested themselves mere-
ly
days later on
civil
my
three
motions
IY. Conclusion
Monday,
docket
Nov.
That
docket contained five motions for
Having overruled
adopted
Hannan and
Hcmnan,
judgment. As
result of
I
applied
stan-
granted
motion
one
and denied the other
trilogy
dards articulated
Celotex
Byrd
four motions.
I applied
Had
in Tennessee Rule we conclude that the
standard, at
most
interpreted by
least
to summary judg-
Defendants are entitled
time,
judges
court
I
at that
all
ment on
claims the
in this
raised
granted summary judgment
two
Accordingly,
appeal.
part
we affirm in
the four cases in which I
mo-
denied the
*36
part
judgment
reverse in
the
and
Indeed,
in
tion.
the
case which
one
I did
Appeals
of
Court
case
remand this
grant summary judgment was a
that
case
entry
summary judg-
the trial court for
of
stipulated
was
facts.
submitted
any
ment on these claims and
nec-
further
essary proceedings
with this
consistent
de- Moreover, to the
that
was
extent
there
this
appeal
cision. Costs of
are taxed
any remaining
hope
flicker in the flame of
Ryes,
the
which
issue
execution
merely
represented
Hannan
a “re
necessary.
Byrd,
extinguished
of
finement”
hy
open
that flicker with the
force
Bivins,
Jeffrey
J., concurring.
S.
in
years
drant
its
two
decisions
later in
I
in
respects
concur
all
with the excel-
Co.,
Supply
cases Gossett v. Tractor
320
opinion
by
lent
in this case authored
Jus-
(Tenn. 2010),
v.
S.W.3d 777
and Kinsler
I
separately solely
tice Clark.
write
Berkline, LLC,
(Tenn.
departure
Hannan
I
deci-
participated
Had
jurisprudence.
sion,
joined
majority
I
that Hannan
contends
dissent also
The
However,
observing
ap-
after
opinion.
pro-
we
is
“have
not unworkable because
unique Hannan standard
plication of the
indicating-a
data whatsoever
[no]
duced
years,
conclude that
seven
I
over
-past
percentage
significant
decrease
Hannan standard
is unworkable
Han-
judgments granted after'
Although it is often
replaced.
should
is no such data
nan." Of course
there
quo
the status
rather
maintain
easier
not
collected
that information
because
made,
that a mistake was
we
than admit
any at-
Additionally,
the trial court level.
change
must
option.
do not have
We
such
from a review
eompile
data
tempt to
ax-e
course when we
we
headed
realize
Ap-
not helpful.
appellate decisions
wrong
direction.
peals from
motions
denials
Hannan
recognizes
rare
can
extremely
The dissent
appeals
accomplished
interlocutory
precision
clearly
“did
articulate
9 Rule
prong
Rule
10 of the Tennessee
was intended
just
under
how
second
Thus,
Appellate
that it be
practice”
suggests
Rules
Procedure.
work in
acknowledge-
appellate-court
implicit
such
This
data'derived
clarified.
is an
measuring
meaningless
the Hannan standai-d
opinions
is un-
ment
impact Hannan.
As a
“clarification” of
proposed
workable.
Hannan,
suggests
dissent
I
Finally,
must state
the dissent’s
rely
extensively
courts
more
should
separation
powers argument
is rather
scheduling
orders.
dissent does
If
us
baffling,
joining
best.
those
explain
grant
how
*37
majority opinion
the
in this
intended
case
discovery
based on
of a
cutoff
passage
the
to
the constitutional authori-
“surrender[ ]
in
square
holding
date
with a cox-e
would
Court,”
ty
not it
Supreme
of this
enough
it is
for the
Hannan—that
“not
much
to
this
have been
easier
avoid
case
challenge
nonmoving
to
moving party
the
constitutionality
simply
the
of
affirm
party
‘put up
up’ or even to cast
to
or shut
20-16-
Tennessee Code Annotated section
prove
an
party’s ability
on
to
doubt
challenge
101 in
ultimate constitutional
element
that will
suffice
trial and
it
Instead,
statutory provision?
to
to
moving
simply
party
for the
show
contrary,
the
have chosen
stake out
we
nonmoving party
evidence to
-
‘lacks
the
interpret
duty
our
our
constitutional
”
prove an
of its claim.’
essential element
ac-
irrespective
legislature’s
rules
Hannan,
problem
270
The
S.W.3d at 8.
Indeed, rather than the
stan-
tion.
federal
Hannan,
is,
affirmative
under
absent an
today
to be en-
adopted
“appearing]
dard
limitations,
such as a
the
defense
statute of
with
20-16-101”
tirely consistent
section
moving party
summary
obtain
by
dissent, may yet
as
stated
the
we
face
trial,
judgment
even if the nonmov-
before
challenge
eonstitutionally-suspect
this
no
whatsoever
ing party
evidence
has
language
the
of
specific
of
statute because
complaint. This
support the claims in the
ap-
provision
determine
two
away.
cannot
The
problem
be “clarified”
proaches are consistent.
it
scrap
replace
fix is to
it and
,
Lee, C.J.,
workable standard.
concurring.
G.
Sharon
serving
Supreme
suggests
I
The
we
was not
Court
dissent
should
can,
Publishing
Alltel
Hannan
when Hannan v.
keep
in
so that we
standard
case,
in a future
“confront head-on the
(Supp.
Code Annotated section 20-16-101
separation
presented by 2014),
issue”
separation-of-pow
has violated
-powers
enactment
Tennessee Code Annotat-
In
ers doctrine.1
the interest of consis
I
unwilling
ed
20-16-101.
am
section
tent, predictable procedural guidelines of
litigants
saddle
with a
judgment
I
adjudication, would
that Byrd,
hold
Han-
simply
standard that is unworkable
to set nan, and
progeny
their
should be reaffirm
stage
Legisla-
showdown with
ed as
summary judgment
the standard for
over,
authority
ture
a summary
its
to enact
in
applied
and should
Tennessee
judgment
The dissent
.
refer-
standard.
Moreover,
facts
in my
before us.
assess
chicken”,
“game
ences this as a
between ment,
standard,
even the federal
Assembly
General
Tennessee
Catrett,
in
adopted
Corp.
Celotex
v.
Supreme
fulfilling
it
my
I call
Court.
oath U.S, 317, 106 S.Ct.
L.Ed.2d 265
maintaining
independence
office
(1986), does not warrant dismissal
all
integrity
the judiciary.
must, therefore,
I
respectfully
claims.
dissent.
Wade, J.,
Gary
concurring
part
in
R.
dissenting
part.
Judgment
Summary
I.
in Tennessee
majority
The
opinion accurately re
The
standard articu-
development
counts
area
this
this
lated
Hannan
been
ultimately
law but
concludes that the sum
accurately summarized as follows:
mary judgment standard first articulated
a' motion for
judg-
When
Hall,
(Tenn.
in Byrd v.
Alltel issue as to ine material fact and the 2008), Court, and other decisions moving party judgment entitled view, my must now overruled. moving a matter oflaw. party may Hannan, principles articulated in when "(1) accomplish either: affirma- terpreted history light of the of sum tively negating an essential element Tennessee, mary set forth the claim; non-moving party’s preferable shifting standard the bur *38 showing party non-moving the proof summary judgment—one den of prove will not be able to an essential fully consistent with Tennessee However, element at trial. it is not By Rule of 56. granting Civil Procedure enough moving party for the to chal- Rule pre-dated 11 review in a case which lenge non-moving party up put the to passage the of a purporting statute to aset up? or shut or even to cast doubt on a new for summary judgment, by standard ability party’s prove to an element at rejecting the of well-established doctrine decisis, If moving party’s trial. the motion is by acquiescing stare to the pro- of by properly supported, the burden proposed the standard General Assem bly, then shifts the -my colleagues non-moving duction to preempted the genuine future important party consideration an show issue of con stitutional non-moving issue—whether the General As fact exists. material The sembly, by (1) may accomplish by: point- its party enactment Tennessee (cid:127) point, granted Appeals applied More to the I the sum- would not have correct standard for permission appeal mary parties judgment, the Defendants and neither of the place. first appeal vitality Because section on the or 20-16-101 raised continued wis- does claim, apply Ryes’ the Byrd/Hannan the dom the standard. lines, (Emphasis at a future trial.” add- establishing fac- material
ing evidence ed.) Ultimately, majority has conclud- the disputes that were overlooked tual standard “has Byrd/Hannan ed (2) moving party; reha- ignored by imposed far on too shifted balance by the bilitating attacked the evidence seeking summary judgment an al- parties (3) producing additional moving party; produc- insurmountable burden most establishing existence of evidence disagree I on all tion.” counts. trial; for sub- genuine issue view, my majority opinion In mitting explaining neces- an affidavit upon premise—a an erroneous based discovery.... for sity further ap- of Hannan faulty interpretation Memphis, Care Ctr. Rye v. Women’s originated unpublished pears to have W2013-00804-COA-R9-CV, MPLLC, No. by Appeals, Court of which our decision (Tenn. *5 Ct. App. 2014 WL permission application was no there added) (altera- ’2014) (emphasis Mar. Target v. Court. White appeal citations, tions, quotation internal of the Court of Corp., the Western Section omitted). principles sum- marks These by the Hannan Appeals criticized footnote long-standing foun- mary judgment have ruling, speculating standard re- jurisprudence, as con- dation Tennessee quires hypo- trial courts to future assume ruling this Court’s firmed 1993 with summary judgment facts at the thetical by McCarley in 1998 Byrd, as reaffirmed W2010-02372-COA-R3-CV, stage. No. Service, 960 Quality Food West (Tenn. at *7 Ct. 2012 WL n.3 1998), as refined 2012). footnote, App, Dec. which Hannan, as as well other our decision in supportive any authority failed include Today, than recent cases.2 less sev- more follows: provides interpretation, its the Hannan decision and years en after Hannan, perceive as we Under Byrd, twenty years my since more than case, it is ruling enough in that field, observing colleagues have reversed nonmoving party’s lack of rely judgment standard that our where, here, even proof “incompatible history and text scheduling order entered a court 56” Procedure] Rule Civil [of Tennessee mo- ruled purposes which “frustrate^] discovery tion after the deadline summary judgment was intended.” The passed. Hannan, we Under had. by adding majority suggests that opinion required nonmoving to assume that the prong still, trial, trial” to the second the words “at party time standard, up sup- the Court im- come with evidence Byrd/Hannan somehow her claim. port focus away moved the properly summary judg- at the evidence added); adduced (emphasis see also Boals v. *39 stage “hypothetical onto W2013-00310-COA-R3-CV, ment evi- Murphy, No. adduced, (Tenn. theoretically 5872225, be that could *5 App. dence 2013 WL Ct. 2013). discovery 30, now, despite passage Until this Court has the dead- Oct. assertion, point proper Contrary majority’s place a on the use of the 2. the finer to Han- "fundamentally change[] summary judgment process nan did sum- this state.” practice.” mary judgment Byrd, In this Court Byrd, 214. 847 While Hannan S.W.2d la- summary princi- judgment the "reaffirm[ed] clarify Byrd’s the to use of term ter served cases[,] ples ... ... em- found in Tennessee defense,” the standard otherwise "affirmative of Rule [the the construction 56 in brace[d] Hannan, unchanged. See 270 remained to ex- cases] [some] Celotex line of federal tent,” S.W.3d 6-7. made to several “observations
277 recognition never the of the Tar- to endorsed correctness “the constitution Tennessee footnote,3 view, 'my get In the better al that right by mandate ‘the trial jury course to simply reject would have been shall remain inviolate.’” Webb v. Nash interpretation by Target advanced Inc., ville Area Habitat Humanity, 346 footnote, Byrd/Hanncm reaffirm the stan- 422, (Tenn. 2011) 482 (quoting Const, dard, capitalize opportunity this upon 6) I, § Tenn. art. (citing Jones v. clarify rationale the differences Serv., Motorcycle L.L.C., l Escort 193 Prof between Tennessee and federal (Tenn. 2006)); 5.W.3d 572 State v. cf. jurisprudence.4 Bennett, 01C01-9607-CC-00139, No. 1998 true, WL at *11 if it is Crim. majority App. Even as the Dec. con cludes, 1998) J., (“Because (Wade, history concurring) in the “nothing text right to trial by jury precious Tennessee Rule Civil is too [of Procedure] 56 ... I rejecting abridge, ... necessitates [federal] tend trust a well- judgment, jury, standard[]” nei informed which has seen heard anything history ther does or text of firsthand of the quantity quality of the require adopting evidence, our Rule federal impartial than rather an tribunal added.)5 standard. (Emphasis of judges exposed only'to' We have the written rec consistently rejected federal ord of am rules the trial.... I unwilling to contrary strong preference denigraté to “the importance embod right ied Rules of jury Tennessee Civil Proce ... peers[;] is too great [t]hat sacrifice_”).6 dure ... stated, that cases on decided their As this Court merits,” and have afforded appropriate rejected first Byrd federal standard in written, 3. Since that footnote was practice inter- this now in favor the federal stan- pretation by of Hannan has been seven- cited dard. Appeals opinions, including Rye, teen Court unpublished. all of which are eleven In recognize While 6. I civil cases cases, sought permission those neither party technically decided "on the merits’' before appeal See App. R. Court. Tenn. P. trial, going to such as where theré are no cases, applica- 11. In one of those a Rule 11 disputé material facts can be issues appeal tion was filed but the was withdrawn law, resolved judge trial as a matter and dismissed before this reviewed it. the Tennessee Constitution and the Tennessee another, application In Rule was filed clearly Rules of Civil Procedure favor the Target interpretation but the court's Han- and, right therefore, by jury fully sup- appeal. nan was not issue on raised port adoption of a Finally, appli- three of have. the cases Rule place’s standard which a heavier burden pending cations our decision in case. parties [a] who "want out of lawsuit Cornett, Judy merits short a trial.” M. fact, Court, argument 4. at oral before this Summary Judgment Trick or Treat? in Tennes- counsel for the Defendants conceded Co., see Publishing Hannan v. Alltel After Target interpreta- footnote was an erroneous Tenn. L.Rev. 343-44 [hereinafter tion of Hannan and that Court would not Cornett, L.Rev.]; Tenn. see also at 338 id. need to overrule Hannan to render order ("Tennessee traditionally merits- favored judgment in favor of Defendants. based efficiency. determinations over As we seen, precursors even in its limited Contrary majority, assertion I summary judgment, jurisprudence do Tennessee not mean to law imply Tennessee *40 requires skeptical rejection highly deciding any of the of the issue on federal Celotex .was alone.”); remains,'however, ("Tennessee’s papers the 349 The fact id. at standard. that we long-standing consistently applied 'preferring our own tradition of mérits- judgment twenty-two efficiency standard the based last determinations to consider- years, majority probably large and the has ations [Su- not articulated wmild loom any principled suddenly preme reasoning reason to rejecting [for abandon C]ourt’s
278 Byrd requires moving party in cases in dem- so do numerous continued Cornett, party nonmoving that the can- L.Rev. onstrate See 77 Tenn.
thereafter.
of
not
essential element
([I]n
establish
years be
the almost fifteen
at 317
the claim
trial.
federal stan-
[The
Byrd and the
court’s
decision
tween
dard], however,
moving
give
would
Hannan,
Ap
Court of
in
the Tennessee
of
party
easier burden
demonstrat-
correctly
interpreted Byrd
peals generally
“
ing
nonmoving
evi-
party’s
qp or shut
‘put
rejecting
[federal]
as
”
dence—at
Hannan,,
standard.).7
con
up’
we
In
stage—is
to establish an es-
insufficient
departure
our
from
began
firmed
“we
Therefore,
federal,
the stan-
sential element.
Byrd, explaining
in
standard”
Byrd
adopted
in
dard we
differs
clearly
interpreta
between the
distinction
two
poses standard and
[the federal]
from
tions
follows:
moving party.
for the
heavier burden
shifting
method of
Th[e] second
Hannan,
(citations
270
omit-
S.W.3d at 7
outlined in
production
burden
differs;
ted).
Importantly,
of the
Byrd opinion
significantly
emphasis
...
federal,
Hannan was
in
differ-
standard’s]
[the
second
n trial,”
phrases
“at
opinion
ence between
burden-shifting.
method of
2010);
(Tenn.
strong
v.
standard]. Given
S.W.3d 88
Gossett
Tractor
Tennessee's
federal
(Tenn.2010);
Co.,
right
jury
320 S.W.3d
constitutionally
Supply
in
777
to trial
based
J.,
(Clark,
Gossett,
cases,
320
might
S.W.3d at 789
concur
[Supreme
also be
C]ourt
civil
part);
ring
part
dissenting in
v.
adopt
procedure
in
&
Kinsler
concerned
'
LLC,
Berkline,
(Tenn. 2010);
nonmoving party fail- injuries to as a result of Defendants’ trial, up the come with evidence somehow timely injec- a Target Corp., 2012 ure to administer RhoGAM claim.” support her Otherwise, third trimester Rye during literal- tion to Mrs. the n.3. at *7 WL In a pregnancy. of her health care motion would third ly every summary judgment action, Han- plaintiff required to liability a prong second denied under the be following elements: course, prove each the not been the nan. Of that has ruling. Summary the Hannan case since (1) accept- recognized standard The regularly grant- to judgment continues practice profes- in the professional able party which does in favor the ed thereof, any, specialty sion and the trial. The proof at the burden of bear practices in the com- that the defendant point. very us case before illustrates practices munity which the defendant of Appeals our Court trial court and community or at the time in a similar Byrd/Hannan standard the applied injury wrongful action alleged judg- yet summary granted partial still occurred; to Defendants.10 ment (2) with That the defendant acted less . ordinary than or to act with failed Byrd/Hannan Application II. with such reasonable care accordance Case this Standard standard; and 24, 2009, of the proximate and Mrs. a result defen- February Mr. As On omission, liability negligent care action dant’s act health Rye filed a See, misleading appropriate irrele- to do so. majority is circumstances are both Collier, First, scheduling, e.g., planning, State v. 899-900 the use vant. (Tenn. 2013) C.J.) (Wade, already governed by (overruling more pre-trial orders is twenty years of law which em- Civil Procedure so than common Tennessee Rule of minority a reiter- braced rule that the victim of be no need for Rule to there would Second, rape accomplice statutory qualifies I to procedures. have not as ate these crime). established, however, suggested "imposed” a schedul- It is well that Hannan judg- ing "obligation.” principle of stare dictates that Our decisis order moving absolutely party only change to we when nec- law ment allows standard that, view, demonstrating summary judgment essary. my In shift the burden reason, non-moving party require "will cor- standard Tennessee does not whatever rection, except prove element at to the extent that it been he an essential not trial,” able *5, misinterpreted by Rye, Failure the unfortunate footnote 2014 WL Moreover, Target. purely simply an- comply scheduling order is aside from the with Third, covering I way while account of Justice Bivins one meet standard. ecdotal day judge, neither the recognize did not in his tenure as opinion that our Hannan just majority opinion separate opinions precision how the nor clearly articulate prac- any prong produced work in whatsoever indicat- intended to data second was tice, develop- ing significant percentage common law is decrease the nature case-by-case judgments granted It is at all ment on basis. after Hannan. consequence, my colleagues leave one room have failed unusual for decision interpretation. Just used Tennessee later their assertion substantiate clarify proved the term “affir- the Hannan decision standard has Byrd, Simply put, I take this mative defense" from confusion "unworkable.” clarify application of the opportunity to application standard Hannan prong misunderstanding second of Hannan. the result of a fundamental misunderstanding now of that decision—a corrected, by the lightly obligation perpetuated, than I take "our rather do not rules,” majority. if the erroneous court-made correct *43 (cid:127) plaintiff injuries suffered which would required Ryes der to disclose their 1, 2011; otherwise have occurred. expert by May witnesses all dis- covery depositions to completed were 29-26-115(a) (2012).11 § Tenn. Code Ann. 1, by September 2011; dispositive motions instance, In this the first two elements are to be by 2011; were filed December element, As it present. to third trial February 6, was scheduled for 2012. undisputed negli- the Defendants’ 15, 2011, On July prior to completion gence failing timely to administer a discovery, trial hearing court held injection RhoGAM Rye’s resulted in Mrs. on or, the Defendants’ to motion dismiss Rh-sensitized, becoming which is an irre- alternative, for judgment. versible condition-that affects the antibod- timé, At that provided the trial court was present Rye’s ies Mrs. blood.12 The depositions with the Ryes of the and the only Ryes issue whether the have suf- Defendants, competing as well as affidavits or will suffer injury fered “which would expert to support witnesses Tenn, each not otherwise have occurred.” Code 10, 2011, August side. On the trial court 29-26-115(a)(3). § Ann. In support granting written entered order the De- claims, Ryes inju- their classified their a partial summary judgment; fendants (1) as physical ries follows: injuries particular, granted the trial court the De- Rye, “including disruption Mrs. nor- motion fendants’ as to “all claims for fu- functioning Rye’s] mal capability [Mrs. damages injuries ture for Rye [Mrs.] children, to conceive unimpaired, healthy that relate to prospective injury relating to from abnormally high free risk of birth blood pregnancies.” transfusions future death”; premature (2) fetal dis- defects (3) ruption family planning; infliction of January 24, 2012, On four almost (4) "emotional distress in- upon Ryé; Mrs. discovery months had after deadlines fliction upon emotional distress Mr. passed, the renewed Defendants their re- (5) Rye; expenses likely future medical quest for the Ryes’ Rye be incurred any Mrs. for future remaining damages. claims for On the (6) pregnancies; future ex- medical trial, trial morning grant- court likely penses Rye be incurred Mrs. partial summary judgment ed for the De- any future blood transfusions. as to Mr. fendants claim stand-alone 10, 2011, On March trial en- negligent court of emotional infliction dis- a scheduling pursuant tered Ten- Ryes’ order tress and to .the stand-alone claim nessee Rule of disruption Civil Procedure 16. As is of family The tri- planning. scheduling to this or- appeal, relevant postponed. al In an order was entered Ryes At the complaint, 11. time the filed develop Rh-posi- their will individual antibodies liability'’ “health care actions were re- still exposure Rh-positive tive blood. blood malpractice” ferred to as "medical actions. Rh-negative commonly in an woman most 29-26-115(a), along section with nu- during preg- occurs blood transfusions Code, merous other sections was If an nancies. Rh-sensitized woman becomes replace "malpractice” amended term fetus, pregnant Rh-positive with an the anti- liability.” Apr. with “health care 23, 2012, See Act of Rh-negative bodies woman's blood will 798, § ch. 2012-2 Tenn.Code destroy red attack and the fetus' blood cells. (LexisNexis). Legis. Adv. Ann. Serv. Burke-Galloway, Linda Dr. RhoGAM Shot The substantive elements of statute re- Comer, During Pregnancy, Pregnancy http:// unchanged. mained www.pregnancycorner.com/being-pregnanV (last healthnutrition/rhogam.html updated If Rh-negative an individual with blood 2014). June blood, Rh-positive becomes sensitized to later, emotional distress Rye court had suffered the trial ruled months several Defendants’, (4) conduct; could proceed to result material Rye issues of entitled future disputed two fact: Mrs. was whether com- future expenses had sustained whether medical related to injury as physical *1, result pregnancies. Id. at *24. pensable *44 timely a failure Defendants’ administer the- standard Pursuant Celotexiederal (2) injection, Mrs. whether RhoGAM summary judg- burden-shifting a distress as Rye had suffered emotional stage, my colleagues have concluded ment The result of the Defendants’ conduct. to sum- that the are entitled Defendants Ryes trial also that the court ruled Ryes’ on. of the mary judgment .each present of the dis- be allowed to evidence however, view, my application claims. as an ruption family planning of their .ele- Byrd/Hannan of standard either Rye’s to Mrs. damages of related ment sum- warrant the federal standard would of claim distress.. emotional six mary judgment on three interlocutory appeal, Court of On alleged original complaint: in the injuries Section, Appeals, part reversed Western (1) a family as disruption planning part. Bye, in- and affirmed WL .2014 claim; (2) Rye’s stand- stand-alone 'Mr. Specifically, *1. Court (3) distress; claim for emotional alone grant trial court’s Appeals affirmed the relat- Rye’s expenses Mrs. future medical Defendants I ed to future blood believe transfusions. disruption stand-alone Ryes’ claim genuine of material exist there issues family Rye’s planning and Mrs. claim claims, remaining as to all fact the three expenses for future medical associated proceed which to a on the should transfusions; future any with blood but (1) Rye’s condition merits: whether Mrs. grant trial court’s reversed the sum- her harm has caused Rh-sensitization Rye’s mary judgment Mrs. claim for (2) present physical- injury; form of a expenses medical' future associated Rye’s has Mrs. whether Rh-sensitization *9, pregnancies. *16. future caused her harm the form of emotional Further, applying interpretation the literal (3) distress; Rye’s Mrs. Rh- whether expressed Target trial” as “at reasonably cause sensitization certain to despite fact footnote and that discov- to future prospective harm her related end, ery come the Court of had pregnancies. Appeals grant reversed' for the Defendants on Mr. Rh-Sensitizjation A. aas Present distress, a claim emotional stand-alone Physical Injury which on the determination was based the- Although state several federal ory might sup- he be able to produce already recognized courts the viabili- , expert testimony by portive time, claim, - question of ty of such a whether trial. Id. at *23-24. effect of qualifies compensable a Rh-sensitization ruling proceed was that the could is matter of first (1) injury impression disputed trial on four whether issues: in- Tennessee. The record in case Rye compensable Mrs. had sustained conflicting deposition cludes affidavits and physical injury result Defen- testimony experts as to medical timely dants’ administer Rho- failure (2) Rye compen- Mrs. injection; Mrs. had whether suffered GAM whether injury in form of Rh- physical emotional distress as а result of sable suffered sensitization, conduct; any future irrespective of whether Mr. Defendants’ expenses pr~g- arise-and, therefore, trig medical related to future did not ger did not My applicable nancies or blood transfusions. leagues,however, col statute of limitations- scope conception child, havenarrowed the until the of her second hypothetical, [in 1978] of this issue to the determin who "was stillborn as a result of ing [ifj Rye's that "even Mrs. Rh-sensitiza by [Mrs. the destruction of its blood cells physicalinjury, Kenyon's] 963-64, tion amounts to a the dis-. Rh antibodies." Id. at positive question Mrs.,Rye is ... whether Supreme recog 967. The Arizona reasonably damages certain to sustain nized the cause of action but held that expenses for future medical as a result of Kenyon injury had sustained her Focusing only her Rh-sensitization."13 and, therefore, her claimwas barred upon expenses prospec future medical *45 by the statute oflimitations: Rye, majority tive harm to Mrs. an When her doctor failed to administer this, question negative and, swers seventy-two RhoGAMwithin hours of therefore, grants summary(cid:127) judgment.I child, the birth of her first Mrs. Ken- agree. my view, Court, cannot In this yon's physical changed condition federal courts and the courts of other ability ~heworse.because her to bear done, recognize states have should significantly action, jury per other children was paired. im- cause of and a should be susceptible disputed She became more mitted to resolve the issue of just problems Rye compensable those which later oc- whether Mrs. has a curred in the case at bench. If the physical injury as a result of her altered [defendant] ability had realized the error four blood status and decreased to bear days complica after the birth of the first child . childrenwithout serious medical tions--an irreversible condition from he would have been bound to advise Rye Kenyon which Mrs. would not suffer but for Mrs. of the error and to have the failure of the Defendantsto administer preg- warned her of the risk of future timely injection. nancy. susceptibility physi- RhoGAM Greater recognized cal harm has been as an ele- jurisdictions already Other have consid damage Certainly, qualifies ment of in Arizona. ered whether this condition as an Kenyón if Mrs. had known of her con- injury justifying recovery physical shortly damages. Kenyon Hammer, dition and consulted counsel v. for ex child, ample, Kenyon after the birth of her first an Sharon filed a medicalmal brought practice against physician action could have been to re- action who had damages necessary cover for the decreased abili- failed to administer a RhoGAM ty injection to bear children or increased risk of after the birth of her fii'st childhi fatality. ability fetal That decreased 1972. 142 Ariz. (1984). 688 P.2d granted susceptibility damage After the trial court sum or increased mary jttdgment physician, which will sustain a cause of action in for the Kenyon argued appeal injury tort. that her majority jority'sanalysis,however,
13. The insiststhat it has not fore- is there a discus- possibility presentlyexistingdamages closedthe of a claimbasedon Rh- sionof intheform presentphysicalinjury, bodily sensitizationas a der certain un- of an altered ability status or a decreased circumstances, Instead, xnajbrity becauseit is "as- tobearchildren. suming purposes appeal solely of this that Rh- focuses on "whetherMrs. is rea- may qualif5r compensable sonably damages sensitization as a certainto Sustain forfuture injury long damages proven expenses so to a medical as a resultofherRh-sensiti- certainty." (Emphasisadded.) reasonable Nowherein the ma- zation." added) (citations negligent omit failure administer Defendants’ (emphasis at 967 timely injection. Although ted); City Phoe RhoGAM DeStories see also (Ariz. nix, 744 P.2d that Rh-sensitization 154 Ariz. Defendants contend 1987) (“Mrs. Kenyon’s ‘greater App. compensable injury, Ryes not a have Ct. identifiable, fully de susceptibility’ pres- was this condition as properly asserted condition.”). veloped, present medical form of an al- physical injury ent Likewise, Corp. Laboratory in Harms v. status, bodily despite the lack tered America, in plaintiffs Rh-sensitization physical symptoms. Ryes current jury as follows: was described impairment to a wom- further contend Rh sensitiza- Harms suffers from capability
[Ms.] childbearing should be a an’s causes her tion. Whether condition recognized damages. As indi- element [she] suffering, physical pain and cated, actual jurisdictions acknowl- other have permanently altered been of action edged the cause advanced Thus, the dis- court sensitization- recognized Rh-sensitization Labcorp’s agrees with characteriza- entitling a physical injury, as a claimant pres- [she] has not suffered tion that physical for both and emotional recover injury.... physical injuries ent While *46 damages if is within the stat- a claim filed injuries a emotional fetus—or suf- instance, In of limitations. this both ute by Harms as a result of fered [Ms.] Appeals recog- of court and Court fetus—may not injuries to a those agree. I viability nized the of this claim. time, at this the court recoverable finds view, summary for my In may [Ms.] that Harms still be entitled pursuant inappropriate Defendants injury—either recovery physical either the standard Celotex/federal or emotional—to herself. Byrd/Hannan standard. (N.D. 2001) 891, Ill. F.Supp.2d 155 910 added); Harris v. (emphasis see also Rye of B. Emotional Distress Mrs. Inc., Brush Wellman No. 1:04cv598HSO (S.D. RHW, 5960181, alleged Rye Mrs. has that she WL *12 Because 2007 2007) 30, holding “para (citing Oct. from distress as Miss. suffers emotional “plaintiff Rh-sensitization, from Rh suffering consequence Harms that sitic” of her injury ... has an actual re sensitization has not presented a stand-alone claim she gardless physical of absence current negligent infliction of emotional dis symptoms”); Alberg v. Di Ortho-Clinical and, law, not required tress under our Inc., 98-CV-2006, agnostics, 2000 No. WL of prove damages emotional existence 2000) (N.D.N.Y. 24, at *3 Mar. through testimony. expert medical See (describing as an irrevers Rh-sensitization Univ., Amos v. Estate Vanderbilt ible, change physi person’s in a undesired (Tenn. 2001). 136-37 Never ology designed prevented that “was to be theless, in theory order to succeed RhoGam”).14 by damages, she must establish she instance, injury “suffered a serious re Rye mental Mrs. now suffers n sulting as a from the conduct.” [Defendants’] Rh-sensitization result cases, itself, isting physical injury 14. The in and which factual differences these attempt gives pointed by majority in to a the time out rise cause action at necessary applicability Ryes’ physician fails administer undermine their to the cir- cumstances, injection, (although completely irrespective irrelevant RhoGAM to) any may legal by not exclusive future harm that conclusion reached each these jurisdictions—that to the or the is an ex- caused mother fetus. Rh-sensitization Co., Land Rogers v. Louisville S.W.3d level of upon her “concern” “anxiety” (Tenn. 2012). sug learning Our law case the serious risks to herself and gests may by presenting she do so her future children. She contended worry mental reactions she “unpleasant evidence and her husband about ef- ... anger, chagrin, disappoint such as fects of- single Rh-sensitization “every n n ment, worry,” day,” along a condition “[e]videnee that has her affected regarding intensity” ability children, the duration to have more as both she byor symptoms, presenting “[o]ther these and her husband had planned throughout marriage. evidence conduct Catholics, their As practicing- [Defendants’] signifiсant impair caused suffer [her] cannot use form of birth ... daily ment in functioning.” her Id. at control contraceptive con- purposes; Contrary sequence, they 209-10.15 to the assertion must refrain altogether such majority, during evidence be established from sexual relations ovulation be- Ryes’ testimony own does not cause’ of the risks involved. Mrs. require Rye “sought emo proof relationship Mrs. described her with her hus- psychiatric tional or counseling “completely or mental band different” now psychiatrist, health treatment from a she Rh-sensitized. daily She attested counselor, psychologist, a or anyone anxiety, else.” spelling out some detail their 210; Willbanks, id. at see also Miller v. concerns in the context of religious their Cf. beliefs, meetings their with their 1999).16 All priest. of this evidence establishes deposition testimony of Mr. and factual' damages basis an award of Rye fully supports the existence based on Mrs. emotional distress. *47 Rye’s damages Mrs. the form emo- and, tional in consequence, distress Byrd/Hannan Under the standard for summary judgment, issue should survive summary judgment, have Defendants Byrd/Hannan whether under standard negate Rye’s to either Mrs. claim of failed otherwise, adopted that for the courts in federal emotional distress or establish Rye Celotex. Mrs. testified that immedi- Mrs. will Rye prove be unable to her ately Moreover, upon learning damages. of her sensitized condi- even the federal tion, clearly standard, which was Ryes’ caused the De- testimony a creates conduct, simply fendants’ she was “scared fact genuine issue material as to wheth ... painful death.” Rye compensable She described her Mrs. er suffered emo reaction when one of her daughters, who tional See Rogers, distress. 367 S.W.3d had overheard the conversation with Mrs. 209-10. Her has Rh-sensitization adverse Rye’s physician, grandmoth- ly right informed her affected her fundamental to' bear “mommy er any can’t have more ba- raise children. See Eisenstadt v. Baird, they’ll 438, 1029, Throughout 453, bies or die.” her 92 depo- 405 U.S. S.Ct. 31 sition, Rye (1972) Mrs. repeatedly described the (describing L.Ed.2d 349 deci “the may important 15. Other "nonexclusive factors” that be defendant’s evi conduct itself injury.” considered a claim for distress dence emotional of serious mental Id. physiological “[e]vidence include manifes tations of emotional distress” and prov- Even requirement "[e]vidence 16. if this were a treatment, sought claim, that the ing [claimant] medical Ryes distress both emotional diagnosed psychiatric was they sought with a medical or testified had advice ..., prescribed disorder was counseling surely medi priest, from their who and/or instances, sup- "In qualify "anyone providing cation.” at 210. certain would else” outrageous port the extreme and character services.
286 No, M1999-02799-COA-R3-CV, Amacher, beget or- child” bear
sion whether Oklahoma, “fundamental”); 100402, ex App. 2002 Ct. WL *13-14 Skinner 541, 28, 2002)). Williamson, 62 S.Ct. While 316 Jan. amount rel. U.S. (“Marriage necessarily damages “speculative 86 L.Ed. future very to the degree, im- procreation some “this imprecise” and' fundamental of the excluding” [human] survival existence and precision grounds evi- race.”). Ryes’ concerns would None dence of existence future medical failure of Defendants for the exist but may expenses that incurred. Over- be RhoGAM to have administered routine Inc., Shoney’s, street v. S.W.3d during pregnan third Mrs. injection 1999). (Tenn. App. Ct. summary cy. Under either instance, In this the Defendants have standard, in a the evidence must viewed motion for supported judg- their claims most to the light favorable of.the deposition ment with affidavit in all reasonable non-moving party, with witness, expert their Dr. G. Thomas Sto- drawn, claims. favor of those' ferences vall, testified “within a de- who reasonable n.2,& Corp., at 330-31 U.S. Celotex grеe certainty it is medical more (Brennan, J., dissenting); S.Ct. 2548 likely that an than not Rh-sensitized indi- Assocs., Inc., 15 Staples v. CBL & any injuries or vidual will never sustain view, (Tenn. 2000). my reason In Dr. Stovall damages whatsoever.” further easily juror conclude that could able any risks future “[t]he testified genuine profound suffered Rye] or to child in a injuries [Mrs. distress, By granting emotional is con- pregnancy, such child future however, my
judgment, colleagues ceived, are so remote it cannot any the merits precluded consideration degree stated with medi- reasonable of this elaim. certainty injuries cal that such Expenses Future Medical Related C. response, fact occur.” In sub- Pregnancies to Future deposition of their the affidavit and mitted witness, Bruner, expert Joseph Dr. who . Tennessee, a claimant recover *48 “[e]ontrary that opinions testified damages expenses relat- future medical Stovall, my Dr. it is that it is more opinion present injury future effects ed to “the probable than not that unborn children reasonably shown certain [are] Rye experience will compli- Mr. and Mrs. possibility.” Potts not a mere likelihood cations,” including conse- the “severe Corp., v. Celotex S.W.2d rup- as a quences” Rh-sensitization such (Tenn. 1990). This means “before .that spleen, bleeding, tured liver or excessive inju- may potential recover for [claimant] anemia, damage, permanent brain heart ries, degree must be a there reasonable According problems, and even fetal death. certainty will medical that [claimant] Bruner, if the child of an Rh-sensi- Dr. develop in the future as a result disease tized it pregnancy, mother survives the injury.” “reasonably of an Id. The terms “deafness, develop speech problems, can degree certain” “reasonable medical palsy, cerebral retardation.” certainty” mental “require[ ] [claimant] will, probably Dr. Bruner further that “it testified prove that he or more she not, probable more than Rye’s ... in the not that Mrs. than need medical services baby next with Singh Larry Trucking, pregnancy v. will involve future.” Fowler Inc., App. moderate in útero.” Ct. severe disease 2012) added) Henley explained More Dr. (emphasis (quoting specifically, Bruner Rye’s] that incom- [Mrs. R[h] next “[w]ith will ... patible pregnancy, produce she Okay. not, So it’s likely more than will placenta, that cross antibodies pregnant. she’ll become likely It’s more
they will attach to the red.blood fetal not, baby than will be incompatible. cells will red cells. And these blood likely not, It’s more than the disease will will destroyed, experience fetus and the be moderate severe.... degree (Emphasis of-anemia.” some add- My colleagues that conclude the Defen ed.) Finally, when asked defense coun- dants entitled during deposition “say sel if he could on this Rye’s issue because Mrs. “future things ... are more these expenses depend entirely upon n medical likely going than not to occur to [Mrs. contingencies not have occurred Rye] future,” responded Dr. Bruner never occur.” Again, this is not the as follows: for the standard review of evidence likely [Dr. Bruner:] It’s more than not summary judgment stage. See Staples, 15 will pregnant that she become with an- (“[At the summary judgment pregnancy. other sensitized stage,] must [c]ourts the evidence in view light most favorable to nonmoving n . likely [Defense counsel:] And .. more draw, party must also all reasonable not, going than it’s to be a child whose nonmoving inferences fa party’s compatible is not blood [Mrs. vor.”). Our case law requires that the Rye’s] R[h-sensitized] status. You’re expert claimant testimony introduce not, saying likely that’s more than more damages future “more probably than will 50 percent than a chance of that? Singh, not” occur. 390 S.W.3d .at 287. That’s [Dr. Bruner:] сorrect. expert proof Because the .have Rh-sensitization,.is
Mrs. lively more not to result than future ex not¡ likely more than she will medical So be- neither, penses, the Defendants have affir again.... pregnant likely come More matively negated Ryes’ element not, than will fetus be affected in claim nor otherwise demonstrated that one or pregnan- least more future prove will be unable all, future .... a 70 percent cies Over there’s trial,17 damages at under feder Even her pregnancy chance will be affected. al judgment, standard Ryes’ Defendants shown likely moré than It’s she will prove evidence is insufficient the exis pregnant again. If become she becomes *49 Rye during tence future harm Mrs. pregnant again, we know based what any pregnancies. future percent today, there’s a 70 risk that'the stated, baby incompatible. jurisdictions will be It’s more recognizing As likely baby than not that will have mod- agree claim based on Rh-sensitization require injury erate to severe disease and inva- accrues the time RhoGAM administered, procedures. sive injection have been should Contrary Ryes, by majority, only plau- 17. the assertion I favorable to leads to one have not “harvested from the record sible conclusion—the not Defendants have supporting [my] opinion Rye’s expert those facts disproven favored result.” of Mrs. not, thorough testimony A deposition likely review of the that she is more than as a result of condition, by competing the" affidavits medical ex- her Rh-sensitized incur medical perts, light properly expenses pregnancy. when in the viewed most related to a future is- appropriate on this damages mary judgment is of future amount even when v. Dahl St. John’s See sue. uncertain. 96045, 89-1784, at *4 1990 WL Hosp., No. 1990) (hold- (Wis. App. Apr. & n.3 Ct. Expenses Related D. Future Medical injury cause
ing s plaintiff that the to Future Blood Transfusions of the defen- at the time action accrued Rye’s “failure to administer claim for medical ex- alleged Unlike Mrs. dant’s approximately within injection penses pregnancies, RhoGAM to future related birth[, which] first child’s days of the three expenses related existence of future process of Rh factor sensitiza- began the transfusions too remote future blood ability to plaintiffs] impaired [the tion that summary judgment. uncertain to survive future”); ac- healthy have children motion for support In of their Co., No. Guaranty Nat’l Ins. cord Ford affi- offered the judgment, the Defendants 1:93CV213-S-D, at *6 1997 WL Stovall, witness, Dr. expert davit their 26, 1997); (N.D. Kenyon, 688 Miss. Nov. opined degree “within a reasonable who 967; v. Riverside Meth- P.2d at Simmons likely it more certainty that medical App.2d Hosp., 44 Ohio odist not an Rh-sensitized individual than (1975). 460, 461, an Because N.E.2d damages any injuries or will never sustain to file who fails suit claimant Rh-sensitized response, In of- whatsoever.” actually causes pregnancy until a future deposition testimo- fered the affidavit and likely be barred complications would Bruner, who ny expert, of their Dr. stated limitations, ju- these other statute Rye at an only that Mrs. was “increased recognized that the suit risdictions have problems” she life-threatening risk as the claimant must as soon be filed involved “medical were some provider medical failed learns that the ur- emergency” “require[ ] an necessary injec- RhoGAM administer as a gent emergent transfusion blood Dahl, See, e.g., tion. WL Testimony Dr. life-saving procedure.” despite inequi- *4-5 “the (recognizing likely condition “is Bruner significant social effects ty potentially threatening emergency life litigation requires a decision that in which blood transfusions situation damage is ultimate claims before the degree required” does establish ... known,” the “claim existed plaintiffs a claim for probability required support nоt adminis- ... RhoGAM was when the Singh, damages. future See damages tered,” claim for and “[a] fact, Dr. that he Bruner conceded recognized at law if complications is future testify that Mrs. would more could proba- adequately can assess the jury probably require than not a blood transfu- bility damages”). This Court of future Thus, sion the future. Defendants of the other states should follow lead affirmatively negated Ryes’ claim viability of this claim. recognize expenses medical future related Mrs, Rye pregnant in the If become does reasonably transfusions are certain blood very complications future and suffers *50 occur, to Ryes to and the have been unable as more than Dr. Bruner has identified any establishing the with evidence respond occur, responsible likely those her for trial. I genuine of a issue existence by escape accountability virtue injury will therefore, summary judgment, agree, one-year our of limitations statute standard Byrd/Hannan the under either liability these health care actions. Under standard, be circumstances, .should agree I cannot that sum- the Celotexfederal favor of on this granted uling the Defendants order trial the court which es- “firm tablished cut-off dates for completion issue. exchange of-discovery and of evidence.” Rye Cornett, E. Emotional of Mr. Distress 77 Tenn. L.Rev. at 334 n.198. Expert proof required support agree I Initially, by with assessment distress, claim for stand-alone emotional my colleagues Appeals and the Court of but RyeMr. to identify, failed within the properly trial court “[t]he concluded court, discovery deadlines set the trial Rye’s negligent that Mr. claim for inflic- an expert witness could who corroborate tion of emotional distress is a ‘stand alone’ viability of his In consequence, claim. claim, requiring expert proof to prevail at the Defendants have satisfied the second Rye, 903142, *24; trial.” at see WL Hannan by showing standard prong Minor, Camper at the judgment stage, after (Tenn. 1996). Rye Recognizing that Mr. deadlines, discovery that Mr. Rye cannot to identify expert has failed who would id.; prove his claim at See trial. see also testify at that he has suffered se- McDaniel, 2009 WL at *13-15 injury, majority vere emotional con- (explaining that the defendant was entitled cludes the De- to summary judgment plain- because the . is appropriate Rye fendants because “Mr. identify tiffs qualified had ex- failed of an proof lacks essential element of his pert within witness the time established indicated, claim.” As Appeals the Court of order). Thus, scheduling the trial 'court’s grant the trial of sum- reversed court’s I apply while would standard articulat- issue, mary judgment relying solely on this Hannan, in Byrd, ed and their progeny, upon interpretation of Hannan as ex- adopted rather than the federal newly pressed Target Rye, in the footnote. standard, agree I majority with the *23-24; Boals, WL at see also issue, summary should view, 5872225, *5. my 2013 WL In even granted in favor of Defendants. standard, Byrd/Hannan under the the De- summary judg- fendants entitled Family Disruption Planning F. affirmatively ment because have dem- they agree I Finally,. majority with will onstrated Mr. be unable recognize Tennessee does not a stand- prove emotional his distress claim trial. claim “disruption- family plan- alone presents perfect opportunity This issue ning.” Rye, 2014 *13- See WL how clarify prong the second of Hannan 16. As both the trial court and Court of practice. work in should however, concluded, Appeals correctly Applying an interpretation of Hannan Ryes present evi- should allowed expressed by as the Court of Appeals disruption family dence their Court, majority of this judg- plans part as a emo- physical and where, not appropriate ment even damages Rye’s tional with Mrs. associated here, identify a claimant has failed to stated, As Rh-sensitization. requisite expert witness estab- within the alleged physical injuries have form view, discovery my lished deadlines. status and the altered blood however, phrase trial,” “at used in “disruption functioning the normal Hannan, was never intended to relieve to conceive capability unimpaired, [her] children, responsibility comply claimants from abnormally from an healthy free instance, discovery In this high deadlines. risk of birth or premature defects They alleged the Defendants did well obtain sched- fetal death.” also emo- *51 Separation of Rye’s of Mrs. Ill. Powers injuries in the form tional anxiety the sig- daily about concerns princi-- the upheld I have Because would ability to of her en- impairment nificant in pies Byrd in refined established with activity sexual her regular in gage Hannan, generally to I ad- have chosen more children. As conceive husband to resolve, dress, the attempting without to indicated, jurisdictions in other have courts been constitutional issue which has recovery of theories recognized these my of col- preempted by the decision have become Rh-sensitized claimants who leagues Byrd/Hannan the to overrule provid- of a negligence medical due to the case, pre- a case standard which I would reinstate the consequence, In er. An- passage the of Tennessee Code dated on of trial court this issue and ruling the to purporting notated 20-16-101 section present to evidence trial allow change summary, judgment standard of family planning, of her disruption Lyon Judy& R. Tennessee. See Matthew claim.,ofphysical of only part as a but her Cornett, Hannan, The Case”: “Zombie M. damages. emotional Drive Supreme .Court Will Tennessee Ryes I summary, In believe that Dicta, Heart?, Through Its Dec. Stake proceed to to on able three should 2014,-at (questioning why Court (1) Mrs. Rye’s of whether their' claims: review n to grant Rye, other than would has of caused Rh-sénsitization condition' any challenge to “moot [sec- constitutional n physical present her harm the form of a 20-16-101],” tion “the Hannan because (2) injúry; whether Mrs. Rh-sensiti- already way its out” and standard is her harm in the form zation caused applying seem to lower courts “[t]he distress; emotional whether Mrs. appropriate- both Hannan and the statute reasonably Rye’s Rh-sensitization cer- ly”).18 prospective tain to cause her related harm Papers, The Federalist a collection I pregnancies. to future would allow the eighty-five essays by Alexander authored Ryes present disruption evidence Hamilton, Madison, Jay, John James family but as a planning, part of their designed the states’ were influence physical alleged emotional their adoption of Feder- the U.S. Constitution. damages. By granting summary judg- away the Paper alist No. far and most issues, my three colleagues ment these Supreme papers' by cited the U.S. deprived any opportunity have Court, lays powers groundwork their claims resolved on the merits broadly to the ad- granted judiciary and peers. consequence, by jury of their three powers dresses each responsible failing Defendants government: branches of comply recognized .standard of attentively the dif- profession Whoever considers cannot be held ac- care ferent-departments power per- must countable. always separate opinion, at- it is avoid a constitutional ly, In his Bivins easier to Justice challenge tempts separation-of-powers the claim on the minimize the than address by asserting Secondly, the-underlying mo- that if merits. his assertion issue constitutionality majority acquiesce “simply could affirm the really tive is to ,.. adopted by section 20-16-101” indicative of the standard re- Assembly, been belief that Court can whatever it "have reach the General n given simply it notion much this case and suit desires easier avoid case—a disconcerting anyone that a constitutionality of 20- who believes affirm the ... section obligation of Court is to fundamental -this 16-10Í an ultimate constitutional chal- lenge,” troubling. apply Initial- the established rule law. That statement *52 that, judiciary, eeive, government in a which of the it is in jeopar- continual other, they separated awed, from the of being overpowered, each dy or influ- n judiciary, from of the nature its func- by its enced coordinate branches tions, always dangerous, will be the least The complete' independence of the political rights Constitution; the the of justice courts of is peculiarly essential a capacity it be least in because will a limited ... one which Constitution^] injure or annoy them. The Executive specified exceptions contains certain honors, only dispenses the but holds legislative such, the in- authority; community. legis- the sword of the The stance, as it no pass shall bills of purse, the but lature commands attainder, laws, no ex-post-facto' and the prescribes the rules which the duties 'of Limitations can like. kind be rights every' and of citizen are preserved practice way no other than regulated. judiciary, The the con- through the medium of courts of justice, no trary, has influence over 'either duty whose it must be to declare all acts or the purse; sword no direction' either contrary to the tenor of the manifest or of strength of the wealth of this, void. Constitution Without all the society; and take active can no resolu- particular rights reservations of privi- or -truly tion whatever. It be said leges nothing. would amount to WILL, nor have neither FORCE but (Alexander Federalist No. The Hamilt merely judgment; ultimately, and must on).19 upon depend of-the aid executive for,the The U.S. Constitution as a model arm served judg- even of its efficacy , of the founders the Tennessee Consti- ments. tution, which specifically even con- more ... simple proves This view incontest- templates a of balance our among powers judiciary beyond ably, com- II, government. three of branches Article parison the depart- weakest the three provides, section “The powers power; it ments .the can never attack Government shall be into three divided two; success other either the. departments: Legislative, distinct Ex- all possible requisite and that care is ecutive, II, Judicial.” Article and section it against enable to defend their itself elaborates, person persons belong- “No proves, It equally though attacks. ing one of departments these shall exer- oppression may individual now and then any of powers belonging cise proceed justice, properly from the courts of others, except to either cáses general liberty people can never permitted.” endangered from herein directed While quarter ... so long judiciary precise are no there lines truly remains demarcation dis- respective tinct roles of legislature from.both our three branch- and.the “[Tjhere government, no es of liberty, Executive.... the traditional rule is power judging “the separated legislative be not au- [branch has] the legislative make, order, from the pow- and executive thority repeal [the ers.” ... laws], the natural [F]rom feebleness executive ... to administer and ” tive, dignity stability government 19. "The independent upon John both. branches, people, its Adams, the morals of (1776), all Thoughts on re- Government n every blessing society depend so much printed in 4 Works John Adams upon upright administration (Charles 1851), skillful ed., Adams Francis available n justice, judicial power ought that the to be http://oll.libertyfund.org/titles/2102. legislative distinct both execu- *53 292 (1899). 625, 950, Thus, 952 interpret ... 53
enforce, judicial Tenn. S.W. and the State, typically v. 529 Court will consent rules of Underwood this apply.” and 1975) (Tenn. (quoting Rich- 45, by procedure promulgated S.W.2d 47 that the 471, Tenn. 125 Young, “(1) 122 S.W. they ardson v. legislature long as are reason- (1910)). of 664, By terms our the 668 workable the framework and within able constitution, Supreme the Court “[o]nly already by judiciary, the adopted promulgate power has the inherent pro- already to supplement the rules work procedure practice the governing rules by Supreme mulgated the Court.” Mal- state, and inher- of this this of the courts lard, 40 481. S.W.3d at of by [Consti- virtue the power ‘exists ent majority If the had maintained the via- of a Court and not tution’s] establishment ” standard, bility of this Byrd/Hannan legislature.’ v. State largess eventually have been called Court would (Tenn. Mallard, 473, 40 480-81 S.W.3d whether Tennessee upon determine 2001) omitted) Haynes (citation (quoting v. is 20-16-101 rea- Code Annotated section 497, Hosp., Mem’l McKenzie within the burden- sonable and workable 1984)). (Tenn. In con- App. this 498 Ct. shifting Byrd, framework articulated text, supreme in fact as “this [C]ourt Hannan, many opinions of Brock, and the other Barger v. 535 well as name.” twenty-two years, the last (Tenn. 1976). this Court over S.W.2d supple- statute works and whether the upon principles, taking but Based these ment those rules al- comity into considerations of account See, ready by this Court. promulgated government, among the three branches e.g., Cooper v. Robert Funeral Ledford this has exercised measured re- Home, Inc., No. E2013-00261-COA-R10- holding leg- repeatedly “[a] straint CV, n.5 2013 WL *3 Ct. which does not frustrate islative enactment 2013) App. July (applying section 20- adjudicative function or interfere with the noting question 16-101 “unraised but imper- of the courts not constitute an does statute]”). constitutionality as to the of [the upon judicial missible encroachment By using Ryes’ case to Han- overrule City government.” Lynch branch standard, adopt my nan and federal (Tenn. 2006) Jellico, 205 S.W.3d colleagues preempted any future con- (alteration original) (quoting Under- important sideration this constitutional wood, 47). only by “It' S.W.2d consequence, question. we are unable remembering power the limits of the con- to address the issue whether Gener- judicial department fided to the Assembly al created amended rule government, respecting indepen- way procedure in such a departments, “strike[s] of the other that the dence very indepen- heart judiciary [this] [C]ourt’s can maintain its own exer- Mallard, judicial power.” proper dence sense cise term[.]” Lindsay, 103 at 483.20 State ex rel. Robinson v. “[b]y Although majority retroactively applying insists our the federal standard as appeal preempt Assembly years we cannot adopted by decision this the General after challenge claim, constitutional a statute does underlying Ryes’ events precisely apply appeal,” this this majority sidestepped has indeed consideration occurred, regardless of what has whether that legislature’s of whether the enactment granting By was the intended result. review pass procedural rule would constitutional case, overruling law the common scrutiny. courts, upon by parties relied propri- judgment stage deprived
“The same rule teaches the of a- ety of partition various trial on the of their between the merits claims. power, branches of teaches us likewise *54 partition ought
this to be so as to contrived independent
render the one of the other.” (Alexander No. 71 Federalist Hamil-
ton). I that today my colleagues 'fear have
preempted impor- our consideration
tant principle surrendering the consti- DIRECTV, INC., et al. authority Supreme tutional Court to establish standards júdiciary. Judy See & M. Cornett ROBERTS, H. Richard Commissioner Lyon, Matthew R. Contested Elections Revenue, State of Tennessee Legislative
Secret Weapon: over Control Tennessee, Court of Appeals Judicial Decision-making, 75 Alb. L.Rev. AT NASHVILLE. (2012) (describing 2095-98 & n.33 ” game “an being inter-branch of ‘chicken’ February 27, Filed 2015. played Assembly out between the General Application for Appeal Permission to Supreme the Tennessee Court over by Supreme Denied Court: power the issue of who has deter- 12, 2015 June mine standard Tennessee). responsibil- The fundamental
ity of an independent judiciary pro- is to against the
tect unwarranted intrusion legislative I branch. would reaffirm and, ruling in Hannan raised in case,
future separa- confront head-on the
tion-of-powers issue.21 Conclusion
IV. Byrd/Hannan
Because the standard em-
braces the principle basic resolution
disputes on the merits and the constitu-
tional right by jury, to trial the Tennessee preferable adopted by
rule is our
federal courts Celotex. Under either
standard, however, I three believe that
components Ryes’ of the complaint should
proceed Through to trial. inadvertence
otherwise, majority inappropriate-
ly weighed the evidence at the view, Contrary separate my Assembly to the assertions the General created the Lee, issue, opinion 'separation-of-powers majority’s Chief I filed Justice and the suggested summary judg- Court maintain abandonment of a workable - Byrd/Hannan purpose compromises, up- standard for the ment standard than rather holds, manufacturing separation-of-powers independence judiciary. issue. Notes claim.” See id. at 8 its (empha element of by Judy presentation Cornett by ' added): sis Fansler, Daryl Chancellor County Knox Court, Chancery Hannan v. Alltel-Is One law review article has offered Summary Judgment Dead?, Continuing explanation: following Legal program Education at East Tennes- Clearly, in articulating th[e] [second Lawyers Women, see Association" for shifting the burden to the for] method Knoxville, 2009) (on (Sept. 16, Tennessee nonmovant, Supreme the Tennessee Review)); file with the ac- Law Tennessee rejected approach federal Rustom, cord McDaniel No. W2008- summary way judgment as a of test- 00674-COA-R3-CV, 2009 WL sufficiency ing the of the nonmovant’s 2009). Ct. App. May *13-15 pre-trial. Tennessee, evidence In Commentators agreed have that the sec- produce negative has to evi- movant Hannan prong of encourages ond defen- that, dence somehow show dants civil cases greater to “strive for trial, at the time of the nonmovant of pretrial use orders with .firm cut-off prove will be unable an essential for completion dates of discovery ex- utterly element the claim. It Cornett, change evidence.” Tenn. insufficient in Tennessee for movant ' view, my n.198.8 In L.Rev. merely allege plaintiffs’ evi- Byrd/Hannan stan- interpretation of stage dence at is insufficient to fully comports dard Tennessee Rule prove an essential element its case. with of Civil 56—on the Procedure hand one. Cornett, Tenn. (emphasis L.Rev. at 334 providing opportunity added) (footnotes omitted). As suggested claim, and, on dismissal of a baseless commentators, by several the second other, protecting to a right jury of Hannan prong requires moving par- the merits when there are material on. , ty to more point do .than omissions in dispute.9 facts non-moving party’s proof or cast doubt evidence; Hannan Finally, non-moving party’s in- should have been stead, moving affirmatively party require must read courts “to assume that the Proceeding prong under the discovery second the use dead- Hannan of strict require moving party delay filing lines. aof discovery motion for until majority interpretation 9. The criticizes this completed discovery has been or the dead- standard, Byrd/Hannan observing passed, lines unlike instances which a ‘‘[c]onspicuously absent from Tennessee Rule moving party is able to file motion any language Civil [of Procedure] 56 is re- proceedings earlier in the seek,-obtain, moving party quiring the by affirmatively negating an essential element comply scheduling mov- order before claim; nevertheless, the burden can ing summary judgment, although, accord- easily prong be shifted tinder second dissent, ing imposed to the Hannan obli- assessment, gation.” my this statement