The Tennessee Supreme Court unanimously reversed a Tennessee Court of Appeals opinion that had found there was clear and convincing evidence that both parents of a young infant found with 22 rib fractures had committed “severe child abuse.” Instead, the state high court found in In Re Markus E. that there was insufficient evidence that the parents’ actions or omissions were “knowing.”
The case involved a prematurely born infant – known in court papers as Markus E. – who suffered from a variety of ailments, including neonatal Graves disease, an overactive thyroid condition, chronic subdural hematomas, bronchitis and — most disturbingly – 22 rib fractures.
A child abuse specialist at Vanderbilt determined that the likely cause of the fractures was child abuse. Because of this diagnosis, the Department of Children’s Services (DCS) got involved and ultimately sought a termination of the parental rights of both the mother and father of Markus E.
In September 2015, a juvenile court in Davidson County found Markus E. to be a dependent and neglected child. The parents appealed the dependency and neglect finding to circuit court. While this appeal was pending, DCS moved to terminate both parent’s parental rights. Ultimately, in May 2019, a trial court issued a 73-page opinion granting DCS’s petition to terminate the parental rights of both parents. The court credited expert testimony that the rib fractures were caused by child abuse. The Tennessee Court of Appeals also found clear and convincing evidence to support the ground of severe child abuse as to both parents.
On appeal, the Tennessee Supreme Court reversed in its May 19, 2023. Writing for the majority, Justice Holly Kirby explained that to terminate parental rights, a party, such as DCS in this case, must first establish a ground of termination and then show that termination of parental rights is in the best interests of the child.
DCS sought two grounds in this case: (1) severe child abuse for both parents; and (2) substantial noncompliance with the permanency plan by the mother.
The bulk of the Tennessee Supreme Court’s analysis examined what is “knowing” within the meaning of the “severe child abuse” statute in Tennessee. The statute defines “severe child abuse” as follows:
The knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily injury or death and the knowing use of force on a child that is likely to cause serious bodily injury or death.
Kirby explained that “a parent’s failure to protect can be considered knowing if the parent was deliberately ignorant, as where the parent avoids actual knowledge of the abuse or neglect but is aware of facts, circumstances, or information that would put a reasonable parent on notice of the risk and the need to protect the child.”
She added that a person can knowingly commit severe child abuse “when he or she is either in deliberate ignorance of or in reckless disregard of the information that has been presented to him or her.”
She also explained that in these type cases, “the evidence shows that one parent inflicted the abuse and the other parent failed to protect the child from it.”
Kirby noted that Markus E. suffered many physical injuries and problems and that there was no finding that these were non-accidental, inflicted injuries.” The mother, in fact, had taken her child to a variety of hospitals and health care providers when she had custody. Furthermore, Kirby wrote that “[b]ecause rib fractures are not necessarily accompanied by external bruising or other identifiable body damage, the source of the pain, even from an acute or recent injury, may not be obvious.”
Kirby concluded that “the evidence in the record does not clearly and convincingly show that the failure of Mother and Father to protect Markus from the non-accidental rib fractures was ‘knowing.’”
Justice Sarah Campbell wrote a short concurring opinion that agreed with nearly all of Justice Kirby’s analysis. However, Campbell wrote that in interpreting legislature purpose, the emphasis must be on the statutory text: “My only point of disagreement with the majority opinion is its suggestion that statutory interpretation requires consideration of a statute’s purposes and objectives separate and apart from its text.”
Questions about this article? Contact daniel [at] horwitz.law.
Procedural rules matter. They help ensure that litigation moves along in an orderly and understandable way. They can also be used as a shield and, when an opponent has misunderstood them, as a sword.
That is the story of Ingram v. Gallagher, a healthcare liability action (better known as a “medical malpractice” claim) filed against a physician, a hospital, and two other defendants. After filing suit, the plaintiff filed an amended complaint naming only the physician as a defendant. Under Tennessee law—Tennessee Rule of Civil Procedure 15.01, in particular—plaintiffs may amend once “as a matter of course” at any time before a responsive pleading has been served, so the plaintiff’s amended complaint became the operative pleading in the case immediately upon its filing.
Five minutes after amending his complaint, the plaintiff filed a notice of voluntary dismissal—often called a “nonsuit”—regarding the non-physician defendants. He also tendered a proposed order dismissing those defendants without prejudice. The intended purpose of the filing was to protect the plaintiff’s right to refile his claims against the dismissed defendants within the following year—something that Tennessee’s savings statute permits as a matter of right when a plaintiff has taken a nonsuit. The trial court then entered the nonsuit order, which the plaintiff later sought to alter or amend so he could reinstate his claims against the other defendants. The plaintiff also attempted to amend one of the earlier-dismissed defendants back into the case through another amended complaint several months later.
The problem with this approach, as a unanimous opinion authored by Justice Bivens explained, was that the plaintiff had already filed his first amended complaint, which eliminated any other defendants as parties, before he filed his nonsuit. Under Tennessee law, the effect of an amended complaint is to “supersede[] and destroy[]” the original complaint as a pleading, essentially rendering it a nullity.[1] Thus, after the plaintiff’s amended complaint was filed, there was only one defendant in the case. And because of that, there were no other defendants for the trial court to dismiss from the action, rendering void both the plaintiff’s attempted nonsuit dismissing those defendants and the trial court’s order purporting to dismiss them.
The practical effect of this chronology was that the plaintiff could not seek to alter or amend the trial court’s nonsuit order, which was void. By amending the other defendants out of his complaint, the plaintiff also functionally abandoned his claims against those defendants. And because the issue of whether Tennessee’s savings statute applies to abandoned, rather than dismissed, claims is not entirely clear (the text of Tenn. Code Ann. § 28-1-105(a), which requires a “judgment or decree,” suggests that the answer is no), the Plaintiff’s subsequent attempt to reinstate his claims against one of the earlier defendants now risks being time-barred—an issue that lower courts will eventually have to sort out on remand.
Interestingly, nobody involved in the case appears to have noticed these issues, either. The plaintiff certainly did not. Neither, it seems, did the trial court. Instead, the issue was apparently identified for the first time by the Tennessee Supreme Court after it accepted review, pretermitting its consideration of the issue that it had actually granted review to address: whether a voluntary dismissal of one of multiple defendants in a Governmental Tort Liability Act case may be set aside through a motion to alter or amend. Due to a procedural misstep that risks foreclosing the plaintiff’s claims against that defendant on a different ground, though, that issue does not appear to matter in this case any longer.
Malicious prosecution—a common law tort claim—is designed to afford civil redress to people who are subjected to maliciously false lawsuits or criminal charges. Between the two, being an innocent person who is wrongfully charged with a crime based on malicious falsehoods is worse. As the U.S. Supreme Court has observed, “[a]rrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”[1] Put another way (as the Fifth Circuit has):
“[A] wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.”[2]
With this context in mind, the tort of malicious prosecution exists to deter people from initiating knowingly baseless charges for malicious purposes and to enable those who are harmed by such charges to be made whole. Nobody seriously disputes the public policy value of such a tort. Indeed, independent of civil liability, it is a crime to initiate a knowingly false report to a law enforcement officer for a reason.[3]
By the same token, society has strong interests in encouraging people to report crimes and to insulate those who do so in good faith from retaliatory lawsuits. Nobody reasonably disputes this, either. That is why Tennessee (rightly) sets a high bar for malicious prosecution claims and recognizes multiple easy-to-prove defenses along with three separate (and overlapping) common law and statutory immunities from suit—all of which function to protect good-faith reporters from any serious fear of liability and enable them to recover their legal expenses whenever they are improperly sued.
As of yesterday, though, based on practical realities of the criminal justice system that the Tennessee Supreme Court’s unanimous opinion in Mynatt v. NTEUutterly fails to acknowledge, what was previously a high bar has become impossible to clear in nearly all criminal cases. The essential holding of the Court’s opinion is that “plaintiffs can pursue a claim for malicious prosecution only if an objective examination, limited to the documents disposing of the proceeding or the applicable procedural rules, indicates the termination of the underlying criminal proceeding reflects on the merits of the case and was due to the innocence of the accused.”[4] Because Tennessee’s criminal judgment form does not contemplate such a finding, though—and because innocent criminal defendants lack any power to force courts or prosecutors to declare their innocence on their dismissal documents—this standard is illusory as a practical matter. Thus, when a prosecutor determines that a defendant is innocent and opts to dismiss the charges against him as a result, a defendant who wishes to maintain a subsequent malicious prosecution claim must now object to the dismissal of the charges and demand a trial instead.
This will never (and should never) happen. It also makes little sense to treat criminal defendants whose cases reach trial more favorably than those against whom evidence was so weak that a prosecutor agreed to dismiss charges without one. That is not just the author’s view, either. As Justice Kavanaugh explained for the United States Supreme Court when assessing the same issue under federal law just last year:
“[R]equiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a [malicious prosecution] claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense.”[5]
It is not entirely clear from the Tennessee Supreme Court’s opinion—which contains several glaring errors (like misstating the relevant statute of limitations applicable to criminal proceeding-based malicious prosecution claims and mischaracterizing the substance of the trial court order under review)—that even an acquittal after trial will suffice, either. As even the most naïve observers of the criminal justice process are aware, an acquittal does not actually reflect a judgment “due to the innocence of the accused,” which is what the Tennessee Supreme Court now says is the standard. To the contrary, an acquittal “does not prove innocence but, rather, indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime.”[6] Independently, because a separate element of malicious prosecution claims is that a charge must have been initiated without probable cause, charges that reach trial traditionally preclude malicious prosecution liability based on the “interim adverse judgment rule” on the ground that a charge “had sufficient potential merit to proceed to trial[.]”[7] A rule that acquitted criminal defendants may (maybe) maintain malicious prosecution claims—but that defendants whose cases were dismissed before trial cannot—is also asinine, “upside down[,]” and has the “perverse consequence of ensuring that some of the most deserving plaintiffs, those who are falsely accused and whose cases were dismissed early on, could not sue . . . .”[8]
All of this is deeply unfortunate. And the basis for the ruling—which overrules two centuries of Tennessee precedent in favor of adopting the standard for malicious prosecution claims that arise out of civil proceedings—is even worse. Unlike criminal defendants, civil defendants who are victimized by fraudulent civil litigation have a wide range of tools at their disposal under Tennessee law that enable them to be made whole—including the ability to pursue sanctions even after dismissal,[9] prevent non-merits dismissals merely by moving for summary judgment,[10] and obtain up to $10,000.00 following early-stage dismissals under Tenn. Code. Ann. § 20-12-119(c). To the extent that the Tennessee Supreme Court was concerned about exposing good-faith reporters to discovery, people who are sued for malicious prosecution for reports to law enforcement also have the ability to stay discovery—every time[11]—merely by petitioning under the Tennessee Public Participation Act, and they can win immediately (and recover their legal expenses) simply by demonstrating that they reported in good faith.
The practical result of the Tennessee Supreme Court’s ruling is that—with the exception of criminal defendants whose charges are dismissed at the earliest possible stage of proceedings for lack of probable cause—no Tennessee criminal defendant will ever be able to maintain a malicious prosecution claim. A person who falsely accuses, in bad faith, someone of committing a crime can also largely insulate themselves from subsequent malicious prosecution liability just by testifying falsely at a preliminary hearing or filing a false report that facially establishes probable cause. It goes without saying that society will not benefit from this standard or the perverse incentives it creates.
Considered broadly: If the Tennessee Supreme Court wants to shut the door to righteous civil claims—something it has been increasingly aggressive about doing—it should just say so. Pretending that claims are available when—as a practical matter—they are illusory compromises the judiciary’s integrity and misleads the public by suggesting that wrongs have remedies when they do not. Judges—who enjoy absolute immunity from nearly all such claims of wrongdoing—also are not likely to appreciate the genuine consequences of such an approach. Perhaps it will take a member of the judiciary being wrongfully arrested based on maliciously false criminal charges, suffering the personal and professional humiliation of a false-but-widely-publicized criminal accusation, and finding him or herself without redress after the charge is dismissed for that to change. Until then, Mr. Mynatt deserved better.
[8] Tr. of Oral Argument at 73:10–17, Thompson v. Clark, 142 S. Ct. 1332 (2022) (No. 20-659), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-659_lkgn.pdf.
[9] Menche v. White Eagle Prop. Grp., LLC, No. W2018-01336-COA-R3-CV, 2019 WL 4016127, at *10 (Tenn. Ct. App. Aug. 26, 2019).
[11]Cf. Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 734, 74 P.3d 737, 741 (2003) (noting that California’s anti-SLAPP law “potentially may apply to every malicious prosecution action”).
