Day on Torts - New Post: Denial of Motion to Alter or Amend Reinstated by Supreme Court

The Tennessee Supreme Court recently reversed a Court of Appeals opinion and reinstated a trial court’s refusal to grant a motion to alter or amend. The trial court had granted defendant’s summary judgment motion based on plaintiff’s HCLA expert being unqualified to testify as to causation and plaintiff not obtaining a second expert affidavit until after summary judgment was granted.

In Harmon v. Hickman Community Healthcare Services, Inc., No. M2016-02374-SC-R11-CV (Tenn. Jan. 28, 2020), plaintiff filed an HCLA suit after decedent died while in Hickman County jail. Decedent had been arrested on possession of illegal drugs, and while incarcerated, she began suffering drug withdrawal symptoms. She was treated by an R.N. in the jail’s medical unit then sent back to her cell. Later that night, she was found dead on the floor of her cell.

Plaintiff filed suit and identified a “physician who was board-certified in neurology and psychiatry” as her expert, and defendant filed a motion for summary judgment asserting that plaintiff could not prove causation because her expert was not qualified to testify as to causation under the HCLA. The trial court heard oral arguments on the motion on November 2, 2015, denied a motion for partial summary judgment by plaintiff in January 2016, and finally issued an order granting summary judgment to defendant in April 2016. The trial court “held that Plaintiffs’ sole expert witness on causation…was not competent to provide testimony under Tennessee Code Annotated § 29-26-115.”

The following month, plaintiff filed a motion to alter or amend the order, supported by an affidavit from a different expert who was a pathologist. Plaintiff claimed that this expert’s affidavit was previously unavailable and that plaintiff had been “unable, through the exercise of due diligence, to obtain [it] before the trial court’s November 2, 2015 hearing[.]” Plaintiff stated that she was told by defense counsel that defendant planned to challenge the credibility of plaintiff’s expert in October 2015. Plaintiff then emailed the pathologist, and after receiving no reply emailed him again. Plaintiff told the court during the summary judgment hearing that if her expert was deemed not competent to testify she would seek to offer testimony from another expert, but she also stated that she believed her first expert was competent. The pathologist finally got back to plaintiff in December 2015 and explained that he had been recovering from a back injury. Plaintiff then did nothing more with the pathologist until after the defendant’s summary judgment motion was granted in April, at which time plaintiff filed the motion to alter or amend with the pathologist’s affidavit attached.

The trial court denied the motion to alter or amend, but on appeal, the Court of Appeals reversed and held that the trial court had abused its discretion. In this opinion, the Supreme Court reinstated the trial court’s denial of the motion.

When considering a motion to alter or amend, a court should consider the Stovall factors:

(1) the movant’s efforts to procure the newly offered evidence when responding to the motion for summary judgment; (2) the importance of the newly offered evidence to the movant’s case; (3) the movant’s explanation as to why the newly offered evidence was not offered in response to the motion for summary judgment; (4) any unfair prejudice to the respondent; and (5) any other relevant considerations.

(citing Stovall v. Clarke, 113 S.W.3d 715 (Tenn. 2003)). In denying plaintiff’s motion, the trial court focused on the facts that plaintiff was “on notice that [the expert’s] competency was being challenged yet chose to take the risk of relying solely on his testimony;” that the summary judgment motion was taken under advisement for five months, and plaintiff never requested a continuance or sought any other relief during that time; and that plaintiff had been communicating with the pathologist for over two years before the summary judgment motion was filed.

Applying the relevant factors, the trial court found that plaintiff “did not make a strong effort to obtain [the pathologist’s] declaration” by simply sending two emails, and that plaintiff “took a gamble and moved forward.” While the evidence was of high importance to plaintiff, the trial court found that the explanation for why it was not submitted earlier or why no motion for continuance or other relief was sought showed that plaintiff “took a calculated risk by relying solely” on the first expert. The trial court also found that granting the motion to alter or amend would unfairly prejudice defendant as plaintiff “had numerous chances to submit [the pathologist’s] testimony or ask for an extension of time during the summary judgment phase.” Thus, the trial court denied the motion to alter or amend.

The Court of Appeals, however, reversed. In a split decision, the Court of Appeals “applied the Stovall factors to the facts and reached conclusions that differed sharply from those of the trial court.” The Court of Appeals relied heavily on the fact that plaintiff stated at the hearing that if the expert was found incompetent, she would seek to offer an opinion from a different expert. The Court of Appeals found that plaintiff’s “desire to avoid incurring the cost of securing [the pathologist’s] assistance was not inappropriate.” The Court also found that defendant would not be prejudiced. While the dissent felt that the trial court’s decision “was not outside the range of acceptable alternative dispositions,” the Court of Appeals majority reversed the trial court.

After reviewing the case history, the Supreme Court noted that “a trial court’s ruling on a motion to alter or amend may be reversed only for an abuse of discretion.” (internal citation omitted). When reviewing a case under an abuse of discretion standard, a reviewing court should analyze the lower court’s opinion to decide “(1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the lower court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the lower court’s decision was within the range of acceptable alternative dispositions.” (internal citation omitted). At issue here was the third factor, whether the trial court’s decision was “within the range of acceptable alternative dispositions.”

The Supreme Court found that the Court of Appeals applied the Stovall factors to the facts of the case and determined that the motion to alter or amend should have been granted. The Supreme Court reasoned:

This would have been a perfectly valid decision—had it been made by a trial court. However, the fact that the Court of Appeals reached a different result in applying the Stovall factors to the facts does not answer the essential question of whether the trial court’s decision was ‘within the range of acceptable alternative dispositions.’ …The abuse of discretion standard of review does not permit an appellate court to substitute its judgment for that of the trial court. …[R]eviewing courts will not second-guess a trial court’s exercise of its discretion simply because the trial court chose an alternative that the appellate courts would not have chosen.

(internal citations and quotations omitted).

In this case, plaintiff only sent two emails to the pathologist before the summary judgment hearing and plaintiff failed to ask for any extension of time. Further, even after communicating with the pathologist, plaintiff did not send his declaration to the trial court until after the summary judgment motion was granted. With these facts in mind, the Supreme Court ruled that denying the motion to alter or amend was “within the parameters of the trial court’s sound discretion” and overturned the Court of Appeals.

The Supreme Court also summarily affirmed the trial court’s ruling that plaintiff’s initial expert was not competent to testify as to causation, quoting from the Court of Appeals dissenting opinion that noted that the expert’s CV did “not reflect any experience with alcohol and benzodiazepine withdrawals, and there [was] no other testimony or evidence in the record that the practice of psychiatry or neurology would qualify a doctor to provide relevant testimony on the cause of [decedent’s] death.”

The trial court’s grant of summary judgment to defendant was therefore reinstated.

NOTE:  to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers.   Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented.  In this case, the opinion was released about eight months after oral argument.