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Litigation SectionApril 1997 NewsletterArticles |
Tennessee Supreme Court Adopts Strict Pleading Rule Regarding
Causation Proof
By John B. Bennett
Ten reasons to read
The Life of the Law
By Pamela L. Reeves & Charles W. Swanson
In the years since the landmark case of McIntyre v. Ballentine1
and the adoption of a modified comparative fault rule in this
state, the Tennessee Supreme Court has issued several decisions
which provide practitioners and the lower courts guidance on how
to apply the standard to various situations. The Court recently
adopted, in the case of George v. Alexander,2 a strict reading
of the affirmative defense pleading requirement found in Rule
8.03 of the Tennessee Rules of Civil Procedure. George held that
evidence offered by the defendant of an alternative cause necessitates
an affirmative defense allegation in the defendant’s Answer. The
practical effect of George is that a defendant must trigger Tennessee
Code Annotated §20-1-119, which would then permit a plaintiff
to file suit against the non-party even if the statute of limitations
had run as to that party.3 The defendant may allege an alternative
cause of injury only if the plaintiff is also given an opportunity
to pursue a cause of action against that third party.
Following McIntyre, Rule 8.03 was amended to require that a
party who wishes to allege that the fault of a non-party reduced
its liability for damages must identify in an answer or amended
answer the contributing tortfeasor. This amendment, however, appeared
to apply only when the non-party was a “tortfeasor.”4 This led
to the problem faced by the defendant of whether a specific affirmative
defense was required when the defendant alleges that the cause
or partial cause of the plaintiff’s injury was someone else’s
non-negligent conduct.
The Tennessee Supreme Court reacted to this quandary in George.5
The Court set forth a bright-line rule that a defendant must plead
in an answer or amended answer if she intends to offer evidence
that another person caused or contributed to the alleged injury.
This requirement applies whether or not the defendant alleges
that the non-party was negligent. The basis for this decision,
wrote the Court, is that such causal evidence effectively shifts
blame for the injuries to another person. Because blame is shifted,
the evidence falls into the category of a comparative fault affirmative
defense and, therefore, pursuant to the pleading rules for an
affirmative defense, the answer must identify the non-party. The
Supreme Court was not persuaded by the fact that the defendants
were not asserting, nor wished to assert, that another party was
negligent, and had offered the evidence only to negate an element
of the plaintiff’s prima facie case - causation.
George was filed as a medical malpractice lawsuit. In October
1989, Ms. Ethel George underwent gynecological surgery performed
by Dr. James Daniell, Jr. Dr. Daniell ordered local anesthesia,
to be delivered through an epidural catheter. Two anesthesiologists,
the defendants, were involved in placing the epidural. After delivery
of the anesthesia, the plaintiff was placed on her back with her
feet supported by stirrups - the lithotomy position - at the direction
of Dr. Daniell.
In October 1990, the plaintiff sued the anesthesiologists, but
not the surgeon. The plaintiff alleged permanent damage to two
nerve roots caused by the administration of the anesthesia. The
defendants denied the plaintiff’s allegations and reserved affirmative
defenses. The defendants did not assert in their Answer the name
of any other party who contributed to the plaintiff’s injuries.
The case was set for trial in November 1993. A month before
trial, the plaintiff took the deposition of a subsequent treating
physician, neurosurgeon Vaughn Allen, M.D. Plaintiff’s attorney
asked Dr. Allen’s opinion on causation. Dr. Allen gave two possible
causes of the plaintiff’s alleged injuries, one unlikely and the
other the probable cause of injuries. The unlikely cause was inappropriate
insertion of the needle used to administer anesthesia. The probable
cause was improper positioning of Ms. George for the surgery.
The surgeon, according to Dr. Allen, was “primarily responsible”
for proper positioning. Following the deposition, the defendants
gave notice that they intended to introduce Dr. Allen’s deposition
at trial.
The plaintiff, prior to trial, moved that Dr. Allen’s deposition
testimony be excluded. Although the plaintiff learned of Dr. Allen’s
opinions the same time that the defendants did, the plaintiff
argued that the defendants should be barred from offering the
opinions because they did not assert as an affirmative defense
that Dr. Daniell was at fault. The defendants responded to this
argument that they were not asserting that the surgeon was negligent
in causing the plaintiff’s injury, but that the required positioning
was the cause of any alleged injury. The testimony was limited
only to defeating the prima facie element of causation. The defendants
did not seek to have Dr. Daniell’s name listed on the jury form
as someone to whom the jury should attribute fault.
The trial court denied plaintiff’s motion and admitted Dr. Allen’s
testimony into evidence. The jury returned a verdict for the defendants.
The plaintiff appealed and the intermediate appellate court affirmed.
The Tennessee Supreme Court then granted the plaintiff’s application
to appeal.
The plaintiff argued before the Court, as she had earlier, that
the trial court permitted the defendants to shift blame to Dr.
Daniell at trial and that this result was synonymous with a comparative
fault affirmative defense. Because the defendants had failed to
assert that Dr. Daniell was at fault in their pleadings, plaintiff
argued, they should have been barred from putting on the testimony
from Dr. Allen that the plaintiff had obtained. The defendants
again submitted that they were not asserting that Dr. Daniell
was negligent. Their purpose was to establish only that they were
not the cause of injury. Therefore, the pleading rules regarding
an affirmative defense never came into play.
In coming to the conclusion that the defendants should have
named Dr. Daniell in a comparative fault affirmative defense,
the Court analyzed the requirements of Tennessee Rules of Civil
Procedure 8.03. In pertinent part, Rule 8.03 reads:
In pleading to a preceding pleading, a party shall set forth
affirmatively facts in short and plain terms relied upon to constitute
accord and satisfaction, arbitration and award, assumption of
risk, comparative fault (including the identity or description
of any other alleged tortfeasors)...
The advisory commission explained that this rule applied only
to tortfeasors:
“Comparative fault” is substituted for “contributory negligence”
in light of McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992).
Note that the defendant must identify or describe other alleged
tortfeasors who should share fault, or else the defendant normally
would be barred from shifting blame to others at trial.
In McIntyre, however, the distinction between asserting another
is at fault and another is a cause, negligent or not, was obscured:
Fourth, fairness and efficiency require that defendants called
upon to answer allegations in negligence be permitted to allege,
as an affirmative defense, that a nonparty caused or contributed
to the injury or damage for which recovery is sought. In cases
where such a defense is raised, the trial court shall instruct
the jury to assign this nonparty the percentage of the total negligence
for which he is responsible.6
This passage mentions only causation, not causation plus negligence,
as the “affirmative defense.” Therefore, asserting someone caused
or contributed to an injury became synonymous with saying the
cause was the product of negligence.
After McIntyre, the state legislature passed a comparative fault
statute, Tennessee Code Annotated §20-1-119, to permit suing the
nonparty named in an answer or amended answer regardless of whether
a statute of limitations otherwise would bar suit. In harmony
with the above-quoted language from McIntyre, the legislature
omitted language that the defendant had to allege that another
person was negligent in addition to causing injury. That provision,
in pertinent part, states:
20-1-119. Comparative fault - Joinder of third party defendants.
(a) In civil actions where comparative fault is or becomes an
issue, if a defendant named in an original complaint initiating
a suit filed within the applicable statute of limitations, or
named in an amended complaint filed within the applicable statute
of limitations, alleges in an answer or amended answer to the
original or amended complaint that a person not a party to the
suit caused or contributed to the injury or damage for which the
plaintiff seeks recovery, and if the plaintiff’s cause or causes
of action against such person would be barred by any applicable
statute of limitations but for the operation of this section,
the plaintiff may within ninety (90) days of the filing of the
first answer or first amended answer alleging such person’s fault,
either: (1) Amend the complaint to add such person as a defendant
pursuant to Rule 15 of the Tennessee Rules of Civil Procedure
and cause process to be issued for that person; or (2) Institute
a separate action against that person by filing a summons and
complaint. If the plaintiff elects to proceed under this section
by filing a separate action, the complaint so filed shall not
be considered an “original complaint initiating the suit” or “an
amended complaint” for purposes of this subsection.
(b) A cause of action brought within ninety (90) days pursuant
to subsection (a) shall not be barred by any statute of limitations.
This section shall not extend any applicable statute of repose,
nor shall this section permit the plaintiff to maintain an action
against a person when such an action is barred by an applicable
statute of repose.
. . . .
(e) This section shall not limit the right of any defendant to
allege in an answer or amended answer that a person not a party
to the suit caused or contributed to the injury for which the
plaintiff seeks recovery.
In George, the Supreme Court reasoned that offering causation
evidence was “effectively” shifting blame despite the defendant
not offering evidence that the cause was the product of negligence.
Although the defendants were not asking that fault be assigned
to another, only to find that the anesthesiologists were not the
cause of injury, the Court decided that the result was shifting
blame and would be “totally surprising” to the plaintiff. The
problem with this reasoning is two-fold: (1) blame is not shifted,
effectively or otherwise, when the defendant offers evidence only
to defeat the prima facie element of causation, and (2) the plaintiff
could not be surprised when she obtained, in advance of trial,
the evidence later used by the defendants.
Attacking the plaintiff’s prima facie case is not synonymous
with asserting an affirmative defense. “[M]atter that merely contradicts
the plaintiff’s prima facie case is a negative defense. A true
affirmative defense, which is avoiding in nature, raises matter
outside the scope of the plaintiff’s prima facie case.”7 The defendants
were attacking the plaintiff’s prima facie case by negating causation.
The defendants were not asserting that the negligence of another
was the cause of injury. Therefore, the proof offered by the defendants
was not an affirmative defense requiring the same to be pleaded.
The plaintiff was protected by the fact that the defendants were
the only ones that the jury could hold responsible if the plaintiff
proved her case. No other defendant was listed on the jury form.
The Tennessee Supreme Court, however, found that the jury will
step outside these parameters and “effectively” shift blame to
non-parties if the defendant proves that the plaintiff has failed
to carry her burden of proof. Although a plaintiff should be protected
from a surprise that actually shifts blame by proof of another’s
negligence that caused injury, it does not follow that a plaintiff
needs to be protected from a failure of proof in her prima facie
case.
On its facts, George was not the case to establish this broad
rule. The plaintiff received notice of the non-party causation
at the same time as the defendants. The plaintiff obviously was
not surprised at trial by the testimony. Additionally, even if
the defendants had amended their Answer to conform with what they
had learned during Dr. Allen’s deposition and alleged that Dr.
Daniell caused the injuries, the statute of repose would have
barred any claim against the surgeon. To sidestep these arguments,
the Court stated in its opinion that it is adopting a “prophylactic”
rule “that must be strictly adhered to if it is to achieve its
purpose.”8 The Court will not review the merits of the case to
analyze whether the error was harmless.
Despite its shortcomings, there is a sense of practical reasoning
in George that benefits both defendants and plaintiffs. The pleading
standards are set when causation proof is at issue. The Court
established that the plaintiff at all times should be given the
opportunity to benefit from Tennessee Code Annotated §20-1-119
and to pursue a negligence case against all those who are alleged
to be a cause of injury. Otherwise, defendants could escape liability
by proving that another caused an injury. The plaintiff subsequently
would have only 20/20 hindsight about who should have been sued
and held responsible for an injury. Although the defense must
make this pleading allegation, it remains incumbent on the plaintiff
to prove a case against the third party.
Regardless of whether this was the case that should have resulted
in this new law, the bright-line rule established in George provides
guidance to all involved. Attorneys should reexamine their pleadings
and draft answers with the George holding in mind. With this “prophylactic”
rule, all attorneys should
not be “surprised” by rulings on causation evidence that is subject
to the George holding.
FOOTNOTES
1. 833 S.W.2d 52 (Tenn. 1992).
2. 931 S.W.2d 517 (Tenn. 1996).
3. Counsel should be aware that this statutory provision does
not extend a statute of repose.
4. Tenn. R. Civ. P. 8.03.
5. 931 S.W.2d 517 (Tenn. 1996).
6. McIntyre, 833 S.W.2d at 58.
7. 2A Moore’s Federal Practice, 2nd Ed., § 8.27[4].
8. George, 931 S.W.2d at 522.
A very special aspect of engaging in the practice of law involves
being part of a long-often distinguished line of professional
advocates who have toiled in the trenches to develop and secure
individual rights and to resolve important disputes in a mostly
civilized, non-violent manner. Many of us have only a vague, somewhat
intuitive perception of our connection to our historical predecessors.
Even the history majors among us often can not remember (or never
knew) where the concept of “due process” originated or how the
notion of stare decisis has become such a prominent factor in
modern law. Good news for all of us! Our own colleague, Alfred
Knight of Nashville, has written a truly informative and yet very
readable book, The Life of the Law. The book is full of interesting
historical vignettes which serve to illuminate the source of many
of the most fundamental legal concepts upon which we rely every
day in our practice. Knight’s book is surprisingly short, only
266 pages, and almost completely free of the formal citations
which would otherwise bog down a pleasant read.
We know how difficult it is to convince a lawyer to take time
away from billable hours to read a history of the law and legal
system or for that matter to even read a book review. With that
thought in mind, we decided to tempt you by simply listing ten
of the many good reasons why every practicing lawyer should read
this book.
1. You will learn a lot you never knew about the history and
tradition of our system and our profession. Even those of you
who were history majors and thought you knew all there was about
the common law traditions of our system may be surprised to know
that there was a lot they never taught you in Western Civilization
or American History 1010. For instance, did you know that the
organized “Bar” got its start when King Edward I issued a simple
order in 1291 that a certain number of the “better, worthier,
and more promising...attorneys and apprentices should be ordained
to follow the court and take part in its business, and no other”?
We bet you never knew you owed that license on your wall to Edward
I.
2. You will learn that the Magna Carta really is not all that
it has been cracked up to be. At one time or another, many of
us have been on the receiving end of a passionate closing argument
where the Magna Carta has been described as the source of all
that is good and wonderful about the American way. Al Knight’s
book may not provide you with a passionate response to this type
of argument, but at least you will learn that, in fact, the Magna
Carta was merely just a “tenant’s relief act.” Even the requirement
that no action shall be taken against a person “except by the
lawful judgment of his peers...” does not mean exactly what we
have all been taught it means. Knight goes so far as to declare
that “most of the other claimed constitutional offspring of the
charter are equally illegitimate.”
3. You will learn that the concept of stare decisis had its
origin in an exasperated comment from an English judge during
a tedious oral argument in 1454. What is more amazing is that
you will learn how that concept has been used and abused in the
American legal system to provide Supreme Court justices with ways
to leap from Plessy v. Ferguson to Brown v. Board of Education.
As Knight points out, these precedents become important “about
once in every generation, [when] a constitutional whale surfaces
in the American judicial sea,” but it is helpful to see the development
of these concepts. The potential impact of these judicial leaps
is further illustrated in Knight’s discussion of the Supreme Court’s
decision in Casey v. Planned Parenthood.
4. You will learn what John Scopes had in common with Thomas
More. Anyone who has ever had the opportunity to sit at counsel’s
table in the old courtroom in Dayton has felt the ghosts of Clarence
Darrow and William Jennings Bryant looming over our shoulder.
If you read this book, you will find yourself looking for Thomas
More as well. Knight points out that the role of the martyr against
the state has always been important in developing legal principles,
but adds that the advent of modern media helps compress “a generation
of struggle into an instantly decisive event.” Knight then looks
at the civil rights arena and demonstrates that the techniques
used by the marchers in Birmingham in the 1960s were actually
techniques used many years earlier in Dayton, Tennessee.
5. In a time when the concept of judicial independence and accountability
is being hotly debated, you will learn exactly where the concept
of judicial review arose. Contrary to the belief of many that
it developed from John Marshall’s famous decision in Marbury v.
Madison (“That is like saying Macy’s invented Christmas.”), Knight
explains that Lord Coke created the concept of judicial review
to overturn an act of Parliament simply by finding that the act
was “against common right and reason,” “repugnant,” and “impossible
to be performed.” Accordingly, the act of Parliament was deemed
“utterly void.” The mere fact that he had no precedent whatsoever
to support this type of ruling did not seem to bother Lord Coke,
whom Knight describes as follows: “If being an effective judge
means making the undisciplined exercise of power palatable by
garnishing it with rhetoric and massive learning, Coke was a Hall
of Famer.”
6. Speaking of Lord Coke, you will learn that Sir Walter Raleigh
was really just out on bail when he came to Virginia to help the
settlers conquer the new world. Lord Coke was actually the one
who prosecuted Raleigh and ultimately claimed Raleigh’s head.
What is more important for those of us in the legal community
is the fact that the charges and conviction against Raleigh were
based entirely on blatant hearsay. Knight calls the rule against
hearsay “the foot soldier of due process” and points out that
contrary to common practice, law students should bless hearsay
(“Raleigh most certainly would have.”), not curse it.
7. You will learn that the genesis of the freedom of speech
was in the prosecution of an immigrant printer named John Peter
Zenger. Zenger was a nice guy who must have considered himself
a “Gary Trudeau” of his time because he ran cartoons of various
government officials depicted as animals. Zenger was defended
by Alexander Hamilton, who must have been the Johnnie Cochran
of his time, because Hamilton took the position in his closing
argument that “the question before...you...is of no small or private
concern; it is not the cause of a poor printer, nor of New York
alone which you are trying.” Hamilton’s client was acquitted,
and freedom of the press took a giant leap forward.
8. You will learn about the lives of the people behind the cases
that are important in our history. Unfortunately for those of
us condemned to reading case summaries and advance sheets, most
of our exposure to the people who starred in these important cases
is very limited. Al Knight goes beyond the basics, and we actually
learn about the people who were the stars — even those who lost
their cases, but ultimately won their causes. You will learn how
Margaret Douglas’ simple attempt to teach a barber’s children
to read led to her arrest and conviction for “teaching colored
children to read and to write.” You will learn more about Rosa
Parks and Susan B. Anthony and realize that the causes they fought
for were revolutionary in their time, even though today their
actions seem quite tame. In fact, Knight makes you realize that
a lot we take for granted today was very revolutionary not so
very long ago.
9. You will learn that the untimely death of Chief Justice Fred
Vinson was really the reason that desegregation was struck down
in Brown v. Board of Education. You will also see how that change
on the Supreme Court led the Court to become much more confident
and assertive during the Warren era. Most lawyers have strong
opinions on the role the Supreme Court should play in our society
and in our system. The Life of the Law provides real insight into
how the Court’s current role has developed. As Knight points out,
the end result is that we are now at a point in time where society
perceives that “everything desirable” is a “right” and Americans
strive “to be members of an injured class.”
10. You will laugh a lot while you are learning this wealth
of information. It is easy for lawyers and judges to become so
cocky about our perceived importance in the world that we lose
our sense of humor. Al Knight will make you laugh, even as you
learn about our profession and our legal system.
Take the time to read and enjoy this book. It is better bedtime
reading than depositions or Barney books. Even better, bring it
with you to the TBA’s Annual Meeting at the Sandestin Hilton in
Destin, Florida, from July 13-18. It will make a great beach book.
We bet
you never knew
you owed
that license
on your wall
to Edward I.
