The Need To Plead Affirmative Defenses - Articles

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Posted by: Donald Paine on Aug 27, 2009

Journal Issue Date: Sep 2009

Journal Name: September 2009 - Vol. 45, No. 9

Civil Procedure Rule 8.03 requires defense counsel to plead affirmative defenses in an answer. More precisely, counsel must "set forth affirmatively facts in short and plain terms relied upon to constitute" any listed affirmative defense. And the list is not exclusive, because it ends with: "and any other matter constituting an affirmative defense."

The list includes twenty defenses. Among those is comparative fault. When pleading this defense, counsel must include "the identity or description of any other alleged tortfeasors."

An instructive opinion is George v. Alexander, 931 S.W.2d 517 (Tenn. 1996), authored by Justice Frank Drowota. Ethel Faye George arrived at West Side Hospital in Nashville for gynecological surgery. Anesthesiologist Jones tried thrice to inject anesthetic into her lower spine. Each time she complained of pain in her right leg. Anesthesiologist Alexander was summoned to try, with the same result. But eventually Ms. George was anesthesized.

Along came Surgeon Daniel with his nurses. Under his supervision they placed the patient in the lithotomy position. A medical book in my hypochondriac library, Taber's Dictionary, indicates that she lay "upon her back with thighs flexed upon abdomen and legs upon thighs, which are abducted."

Ms. George suffered permanent damage to her right leg, ankle, and foot. She wears a brace and sometimes resorts to crutches or a wheelchair.

Only the two anesthesiologists were named as defendants; the surgeon was not. But at trial defense counsel introduced an expert's videotaped deposition (over objection from plaintiff's counsel) that laid blame squarely on the surgeon's failure to properly place Ms. George in the lithotomy position. That theory was also argued to the jury, which returned a verdict exonerating the two defendants, Drs. Alexander and Jones.

The Supreme Court reversed and remanded. The named defendants should have pleaded the affirmative defense of comparative fault and identified Dr. Daniel as a comparative tortfeasor. Had that been done, the plaintiff could have amended her complaint to add the surgeon as a defendant under Tenn. Code Ann.  §20-1-119.

Affirmative defenses are speed traps. Plead them or pay the penalty.

Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.