Most of the several decades of “Day on Torts” columns address the substantive law of torts.¹ Oh, there have been practice tips included in certain articles, and of course the opinions of the author have been a part of most columns. But most of the words are devoted to substantive law.

This column is different. The Tennessee Supreme Court recently created a new common law privilege. A full discussion of it is the stuff for which law reviews exist.² Instead, the author will briefly summarize the opinions in Borngue ex rel. Hyter v. Chattanooga-Hamilton Cty. Hosp. Authority, and then focus on addressing the practical implications of it.³

In Borngue, the defendant Dr. Seeber did not want to provide expert testimony concerning the standard of care of the defendant nurse midwife Mercer, for whom he was potentially vicariously liable. The trial court said he need not do so. After a judgment for all defendants, plaintiff appealed insisting, inter alia, that Dr. Seeber had the duty to answer questions on the appropriateness of the conduct of the midwife.⁴ The Supreme Court affirmed the trial judge’s ruling, saying that a brand new privilege⁵ meant “a defendant healthcare provider cannot be compelled to provide expert opinion testimony about another defendant provider’s standard of care or deviation from that standard,”⁶ and that this holding “stands regardless of any supervisory relationship between the providers.”⁷

There were three concurring opinions. Justice Sarah Campbell thought the creation of a privilege should be left to the Legislature but would have affirmed in any event because any error was harmless.8 Justice Holly Kirby joined Justice Campbell’s opinion but wrote separately to disagree with the public policy decision made by the majority and discuss the negative implications of the majority opinion.⁹ Justice Sharon Lee wrote separately too, adopting the majority opinion but criticizing the concurring opinion by Justice Campbell.¹⁰

So, it is now perfectly permissible for a medical doctor to refuse to provide expert testimony on the standard of care applicable to a co-defendant or a nonparty. This is true even if he or she directly supervises the subject of the inquiry. To avoid questions on the conduct of subject, the deponent need only invoke the colleague privilege and the questioning cannot go forward on that subject.¹¹ It is reasonable to expect other professionals to attempt to invoke colleague privilege; time will tell if the courts apply it beyond the healthcare arena.¹²

One can see how a deponent in a healthcare liability action, especially a party deponent, would like to maintain as much flexibility as possible on whether and when to cast aspersions on a co-defendant, co-worker or nonparty. Thus, at the deposition stage, it would not be at all unusual for the deponent to want to invoke the privilege, especially if the testimony about the deponent will be critical of the performance of the target of the inquiry.

But, as judgment day nears, the deponent might have a change of heart (or tactics).¹³ He or she might decide it is in his or her best interest to be critical of the performance of others and is now more than willing to opine on this issue. This would be especially true if the conduct was that of a person who could no longer be sued under a statute of repose — how nice it would be to cast (late) aspersions on someone the opponent could no longer sue.¹⁴

So, if we are to have a colleague privilege, a plaintiff should not lose the right to sue someone because an existing defendant invokes privilege concerning the fault of a nonparty and chooses to waive it after the statute of repose applicable to that nonparty expires. Likewise, plaintiffs (and co-defendants) should not risk continuance of a trial date because of a late waiver of privilege and should not bear the time and expense of a second deposition of his or her expert because of a late waiver of privilege. Likewise, a defendant should not bear the risk of the last co-defendant testifying at trial and, without warning, decide to waive an earlier-asserted privilege and testify against the other defendants. Finally, no other party to the litigation should bear the extra expense associated with a party deponent’s change of heart (or tactics) about testifying as to the standard of care of a co-defendant, co-worker or nonparty.

Thus, scheduling orders should include a deadline by which a party deponent will declare whether he or she is going to invoke the colleague privilege and refuse to testify about the standard of care applicable to a person providing care to the plaintiff or plaintiff’s decedent. The deadline should be at least 10 days before the deposition of the party so that the attorneys taking the deposition do not need to go to the expense of preparing to depose on matters which the deponent will refuse to discuss because of the privilege. In the event of a corporate defendant, the deadline would apply to the healthcare providers employed by the corporate defendant when the patient was being treated and who will be deposed in the case, whether they are named individually as defendants or not. A deadline for the filing of notice of the intent to assert the privilege as to a particular person or persons should be set forth in the order.¹⁵

Once the colleague privilege is invoked, the witness should be precluded from later testifying via affidavit, declaration or at trial on the issue. This is essential because other parties may well have made certain tactical decisions of their own in reliance of the invocation of the privilege by another party, and thus there is the potential for unfairness, extra expense and trial delays if deponent unilaterally elects to change his or her mind on the privilege issue.

For example, assume Defendant A invokes the privilege as to care given by Defendant B. B, silently critical of Defendant A’s care but reluctant to criticize Defendant A after A invoked the privilege as to B’s conduct, elects to invoke the privilege as to Defendant A. Should A be able to change his mind and criticize B, which in turn likely will give rise to (1) B criticizing A; and (2) A claiming that the only reason B is criticizing A is because A criticized B?¹⁶

Or assume the same basis facts but assume further that shortly before trial B elects to settle the case with the plaintiff. Assume the plaintiff relies on A’s invocation of the privilege when settling with B. Should A be able to unilaterally change her mind and testify against nonparty B, an “empty chair,” at trial?

No. Once invoked, an attempt to waive a previously asserted colleague privilege should be permitted by the court only on motion and only for good cause. Among the factors a court should consider in determining whether to allow a change of position on the colleague privilege is (a) the reasons for the change of position on the privilege; (b) the timing of the change of position in relation to other depositions, expert disclosures, expert depositions, and the trial date; (c) the additional expense and delay that will arise because of the change of position; (d) the ripple effect of the change of position; i.e. how will the movant’s change of position on the privilege impact the positions of other parties on privilege issues; and (e) other relevant factors. Ordinarily, if the court permits a party to revoke an earlier assertion of the privilege the party should be ordered to pay every other party additional expense (including attorneys’ fees) incurred as a result.¹⁷

If the subject of the waiver of the prior invocation of privilege concerns the potential liability of a nonparty, additional facts for the court to consider are (a) whether the deponent has asserted fault of the nonparty in an answer or amended answer and the timing of that assertion of fault and when that assertion occurred in relation to the request to waive a the previously asserted privilege; (b) whether a deadline for asserting the fault of a nonparty has expired; (c) whether any other party has previously asserted fault of the nonparty; (d) whether a claim against the nonparty is barred or will be shortly barred by the expiration of a statute of repose; (e) whether the nonparty is a person or entity who reached a prior settlement with the plaintiff and, if so, the extent to which the plaintiff relied on the prior invocation of the privilege in determining whether to settle with the nonparty; and (f) other relevant factors.

As indicated above, the author will allow others to debate the wisdom of the judicial adoption of a colleague privilege. It is now the law, and thus lawyers and judges must take steps to ensure that the assertion of privilege is not used to subvert or delay justice or increase the expense of obtaining it. |||

---

JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood, Murfreesboro and Nashville. When the rules of litigation are changed by the legislature or a court decision, he prefers thinking about how to tackle litigation with the new rules in place rather than dwelling on why the old rules were superior. He agrees with the thoughts of California Sen. Dianne Feinstein about being a woman running for political office: “You have to learn the rules of the game. And then you [must try to] play it better than anyone else.”

---

NOTES

1. The predecessor to “Day on Torts” was “Tort Law Topics.” The series began in December 1999.

2. Disagree? Remember that Tennessee has five justices on its highest court. The result in this case, released almost a full year after oral argument, resulted in four different opinions on a single issue. This issue and court opinions addressing it are the genesis of the dreams of many a law nerd.

3. 671 S.W.3d 476, 2023 WL 3593617 (Tenn. May 23, 2023).

4. The Court of Appeals reversed the trial judge on this issue and ordered a new trial. 2021 WL 2769182, at *8-13 (Tenn. Ct. App. July 21, 2021).

5. 2023 WL 3593617 at *6.

6. Id. at *8. There is nothing in the opinion to suggest that the deponent can avoid giving causation testimony that may be harmful to another defendant by invoking the colleague privilege. Causation testimony could be sought via a hypothetical question the states an assumed violation of the standard of care. Likewise, the opinion does not prohibit a defendant from being asked the standard of care applicable to his or her own conduct.

7. Id. at *9.

8. Id. at *14. Justice Kirby joined in this opinion.

9. Id. at *24.

10. www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Separate%20Opinion%20E2020-00158-SC-R11-CV-Lee.pdf.

11. The term “colleague privilege,” is my term, not the court’s. Every other privilege has a name. “Colleague privilege” seems appropriate here and is broad enough that if the courts later extend it to professionals other than healthcare providers, the moniker will remain accurate.

The use of the word “colleague” in naming the privilege comes from the majority opinion’s concern that [t]here is a heavy strain on the relationships in a hospital, clinic or other healthcare facility when one healthcare provider is required to make a public assessment under oath about another healthcare provider’s professional performance. People understand a requirement that a witness must divulge facts; they are often more sensitive to a colleague’s critical opinion. The resulting tension can destroy friendships, working relationships and economic relationships. In the absence of necessity, there are practical reasons to avoid these familiar human problems by not requiring nonessential opinion testimony from certain witnesses.

Id. at *11, citing Carney-Hayes v. Northwest Wisconsin Home Care Inc., 699 N.W.2d 524, 536 (Wis. 2005).

12. Indeed, Justice Kirby’s concurring opinion predicts this will occur, and the privilege will not be limited to the common definition of professionals. Id. at 13.

13. There is no capital “j” on judgment or “d” on day as used it this sentence; instead, “judgment day” refers to the title on a court document entered after a trial on the merits. It does not refer to what is known as the Last Judgment, Final Judgment, Day of Reckoning, Day of Judgment, Judgment Day, Doomsday, Day of Resurrection or The Day of the Lord. That said, one facing “Judgment Day” or “judgment day” tends to have an increased focus on what is important, and it is not uncommon for one’s words and actions to change as either day is on the immediate horizon.

14. Tennessee’s several liability model means that, if believed, testimony of the fault of a nonparty who could not be sued would result in financial harm to the plaintiff, whose recovery would be reduced by the percentage of fault assigned to the nonparty.

15. There are scores of pending cases in which it will be too late for a scheduling order to include this type of deadline. In these cases, counsel will need to accomplish the same result with amendments to scheduling orders or motions in limine.

16. One needs little imagination to see how the existence of a conditional privilege can give rise to gamesmanship. And all of this gives rise to another issue: should the jury be told that the privilege was invoked? Assume that two surgeons are sued; both are alleged to have committed violations of the standard of care in treatment of a surgical treatment in the hospital. Each invokes the privilege and refuses to testify about the conduct of the other. It is reasonable to assume that the jury will wonder why neither doctor — both in the same specialty and both in the same hospital caring for the same patient — does not comment on the conduct of the other. Should not the jury have the right to know that each doctor invoked the privilege not to comment on the conduct of the other?

17. Cost-shifting will reduce gamesmanship.