Document Category:
State: Tennessee
Subject Matter: Summary Judgment
Document Title:
Comments:

Good morning and I hope it’s been a nice week. Continuing with reports
on the recent legislative session concludes, attached is SA0580 (as
amended from SB1114/HB1358) which was adopted this week for the explicit
purpose of overruling the summary judgment standard set forth in Hannan
v. Alltell Publishing.I am also sending the Hannan summary we sent in
2008 that created a new standard for SJ in Tennessee that essentially
did away with SJ’s for defendant. Moving parties were held to a new
standard requiring affirmative evidence that the non-moving party would
be unable to meet the burden of proof at trial. Since then we’ve been
unsuccessful at nearly every MSJ in medical malpractice as Plaintiff
will in most all cases come forward with evidence at trial. The
legislation overruled this opinion and we now have yet another weapon in
the arsenal procedurally in TN. Most often, we advance summary
judgments on causation and qualifications and we will begin again to use
the SJ procedure in our cases effective 7-1-11.

Enjoy the day, the new tort reform and peer review protections and SJ.
Very good news in TN. Let us know if you have any questions or comments.

Rebecca

**************Hannan v. Alltel Report 10-31-08

Please see the attached opinions indicating a disturbing turn for the
worse in Tennessee’s procedural law of summary judgments. As we know,
Tennessee has historically diverged from SJ procedure followed by other
jurisdictions in which a defendant may move for SJ without any
supporting evidence. In TN, the movant has had to support its MSJ with
some evidence identifying a dispositive problem with the plaintiff’s
claim. And, at least in the case law from the Court of Appeals (and in
some early 1990s cases from the Supreme Court), TN allowed a D to gain a
SJ by showing that the P’s proof was not sufficient to support one or
more essential elements of a P’s claim.

In the Tennessee Supreme Court’s attached opinion, the Court clarified
that a TN court is not to grant SJ merely because the P’s evidence, at
the time of the filing/hearing of the MSJ, is not sufficient to support
one or more elements of a claim. In pertinent part, the Court ruled that
the movant for SJ must instead either affirmatively negate one of those
elements or demonstrate that at trial the claimant will not be able to
support each element of its claim. The dissenting opinion takes the
position that the Court’s opinion marks a sudden and unwarranted shift
of the case law, now making a SJ even harder to gain and exposing
defendants to greater risk of frivolous claims.

The Court’s opinion is quite troubling for its practical effects. For
example, say in a medical case that the defense deposes the plaintiff’s
physician expert who testifies clearly that he cannot say that the
negligence in the case probably caused or contributed to the decedent’s
death – maybe, but no more than a possibility. The defense moves for SJ
on the premises that the P cannot prove the element of causation and
thus the P’s case crumbles to ruin. Under the attached opinion, even
though the P’s deficient proof would entitle the D to a directed verdict
at trial, the D cannot win the desired SJ in that posture because there
remains the possibility that the P could retain another expert before
trial who will give favorable testimony. To win a SJ under the attached
opinion, it appears that the defendant must: a) spend the time and money
to retain its own physician expert; b) then support its MSJ with its
own expert’s affidavit negating the element of causation; and c) hope
that the P will not be able to find an expert to contradict the
defendant’s expert.

The attached opinion is a substantial aid to plaintiffs and a substantial problem to defendants.

Rebecca Adelman

ADELMAN LAW FIRM, PLLC
545 S. Main St., Suite 111
Memphis, Tennessee 38103
p] 901.529.9313
f] 901.529.8772

www.adelmanfirm.com
 
Of Counsel to
Quintairos, Prieto, Wood & Boyer, PA
www.qpwblaw.com
 
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Document Author: Rebecca Adelman
Firm/Company: The Adelman Law Firm
Document Date: January 1, 1970
Search Tags: SJ tort reform
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