Category Archives: Tort Law

Victims of SLAPP-Suits Cannot Recover Their Legal Fees If Plaintiffs Withdraw Their Claims Before Hearing, Holds Tennessee Supreme Court

Appeals, Civil Procedure, Tennessee Public Participation Act, Tort Law, ,

By Daniel A. Horwitz:

Strategic lawsuits against public participation—better known as “SLAPP-suits”—use the legal system to punish constitutionally protected speech.[1]  The Tennessee Supreme Court has explained that “[t]he primary aim of a SLAPP is not to prevail on the merits, but rather to chill the speech of the defendant by subjecting him or her to costly and otherwise burdensome litigation.”[2]  Using this definition, it is hard to argue that plaintiffs are engaged in anything other than quintessential SLAPP litigation when they: (1) sue someone for their speech; (2) run up a defendant’s litigation expenses for as long as possible before a hearing; and then (3) withdraw their claims just before a reviewing court can rule on them.

Fortunately, like many jurisdictions, Tennessee has enacted an anti-SLAPP statute called the Tennessee Public Participation Act, or the “TPPA.”  As Tennessee’s Court of Appeals has explained, “the TPPA is largely intended to deter SLAPP lawsuits and prevent litigants from spending thousands of dollars defending themselves in frivolous litigation.”[3]  “[T]housands of dollars,” it should be noted, is a dramatic undercount.  Given Tennessee courts’ routine willingness to allow SLAPP-suit filers to delay proceedings through discovery, amendment, and other litigation tactics, the cost of defending a SLAPP-suit through a TPPA hearing routinely exceeds $25,000.00, and it often eclipses hundreds of thousands of dollars or, in some cases, millions.

In theory, the expenses imposed on SLAPP-suit victims do not matter at the end of the day.  That is because the TPPA contains an expense-shifting provision—Tennessee Code Annotated section 20-17-107(a)—that requires trial courts to “award to the petitioning party: Court costs, reasonable attorney’s fees, discretionary costs, and other expenses incurred in filing and prevailing upon the petition[.]”  Thus, no matter how long the litigation takes, the TPPA assures SLAPP-suit victims that they will recover their expenses at the end of it.  As a result, assuming a plaintiff’s ability to pay the award, the TPPA promises SLAPP-suit victims that they will (mostly[4]) be made whole when litigation ends.

Unsurprisingly, those who are engaged in abusive litigation that is intended to burden speakers with uncompensated expenses are uninterested in paying their victims.  And to achieve their nefarious goals, they have employed a simple tactic: file SLAPP-suits; run up a defendant’s litigation expenses for as long as possible; and then voluntarily dismiss their claims on the eve of hearing before a court can rule on them.  Lawyers who make SLAPP-suits their business also have employed this tactic over, and over, and over again, often nonsuiting literally minutes before hearing, the night before hearing, or even during a hearing on a TPPA petition.  After doing so, they have insisted that SLAPP-suit victims are not entitled to recover a penny of their legal expenses, because the voluntary dismissal precludes all further litigation, and a court has never granted a petitioner’s TPPA petition.

If blessing such a tactic seems antithetical to what the TPPA was designed to accomplish, that is because it is.  Filing a bogus speech-based lawsuit, imposing substantial litigation expenses, and—recognizing that one’s claims have no chance of prevailing—dismissing the case right before a court can rule is definitionally the behavior that the TPPA was designed to deter.  Even so, dozens if not hundreds of plaintiffs have done exactly that in the short time since the TPPA was enacted in 2019.

The certainty of fee-shifting also is what permits lawyers to defend SLAPP-suit victims on a contingent basis.  Without contingency representations, SLAPP-suit victims would be forced to expend—upfront—tens of thousands, hundreds of thousands, or even millions of dollars to defend their speech against bogus lawsuits: an amount of money that few speakers have to spend even if they wanted to.  Further, when faced with the choice of taking down a negative Yelp! review or having to liquidate one’s life-savings to defend it, self-censoring to avoid (or end) litigation becomes an easy choice.

Sadly, in a unanimous October 9, 2024 opinion authored by Justice Jeffrey S. Bivins, the Tennessee Supreme Court has now blessed the tactic of filing SLAPP-suits, running up litigation expenses, and then parachuting out of the litigation without consequence by nonsuiting on the eve of hearing.  The opinion arose out of the most sympathetic facts possible: a misbehaving landlord filing facially meritless litigation against speakers who successfully advocated for tenants that the landlord had tried to evict illegally—outside the legal process and in contravention of a federal eviction moratorium—by cutting off their heat during the middle of winter.  In response to TPPA petitions filed by those speakers, landlord Robert E. Lee Flade ran up the speakers’ litigation costs for roughly seven months; delayed a ruling following an initial TPPA hearing by convincing a trial court to allow him to take discovery first; and then voluntarily dismissed all of his claims just before a second TPPA hearing, leaving the sued speakers with tens of thousands of dollars in legal expenses that the Tennessee Supreme Court has now held they cannot recover due to Mr. Flade’s strategic dismissal.

The calamitous consequences of the Tennessee Supreme Court’s opinion in Flade—which strips the TPPA of its deterrent value—are assured.  Simply put: No longer do calculated abusers of the legal system have to worry about being ordered to pay their victims’ legal fees.  Instead, such abusers of the legal process are now empowered—as a matter of right—to file SLAPP-suits; wait and see if their victims are willing or able to hire an attorney to defend against them; run up their victims’ litigation expenses as long as possible before a TPPA hearing; and then voluntarily dismiss their claims before a court can rule.  Because lawyers who defend SLAPP-litigation—even successfully—can no longer be assured that they will be paid for doing so, Flade also represents the end of SLAPP-suit contingency representations in Tennessee.

Confronted with the inevitable results of sanctioning this proven abuse, the Tennessee Supreme Court’s opinion explains that “[w]e do not intend to minimize [these] concerns.  However, the[se] policy-based arguments are best addressed to the legislative branch.”  Thus, according to the Tennessee Supreme Court, its hands were tied by the text of Tennessee Rule of Civil Procedure 41.01(1), which “permits liberal use of voluntary nonsuits at any time prior to ‘final submission’ to the trial court for decision in a bench trial or in a jury trial before the jury” absent certain specified exceptions.

Lest anyone be fooled, the Tennessee Supreme Court has never followed this approach to interpreting Rule 41.01(1) before now.  For example, despite the Rule’s explicit prohibition against taking a voluntary dismissal “when a motion for summary judgment made by an adverse party is pending,” the Tennessee Supreme Court has held that “it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”[5]  The Tennessee Supreme Court has found other “implicit” exceptions to Rule 41.01(1)’s text, too, including inventing an entire category of exceptions for what it calls “The Vested Rights Implied Exception.”[6]  Thus, far from interpreting Rule 41 in a way that ties the judiciary’s hands, the Tennessee Supreme Court has interpreted it atextually in a way that furthers judicial policy preferences throughout the Rule’s existence.

With these considerations in mind, no one should be misled by the Tennessee Supreme Court’s claim that this result was compelled by text.  It was not—and the TPPA plausibly fell within three recognized exceptions to Rule 41.01(1) (two of them text-based) anyway.  The Tennessee Supreme Court’s effort to distinguish as “inapposite” TPPA-based claims from several other claims that Tennessee law holds courts may adjudicate post-nonsuit—including claims “involving sanctions under Rule 11 of the Tennessee Rules of Civil Procedure,” “an award of damages for a frivolous appeal under Tennessee Code Annotated section 27-1-122,” and “legislation concerning ‘abusive civil actions’”—also demonstrates the malleability of the judiciary’s approach to the question presented by itself.

In summary, as it has before, the Tennessee Supreme Court made a policy choice; here, to defang the TPPA and reward those who file SLAPP-suits in Tennessee with the freedom to do so without fear of incurring consequences.  The repercussions of that decision will be borne most heavily by the people who need the TPPA most—speakers of modest means who need lawyers to defend them on contingency—who will now be forced to incur significant debt to defend their speech; self-censor to avoid or end litigation; or defend themselves pro se.  No one should celebrate this policy choice, and Tennessee’s free speech protection scorecard has now been downgraded as a result of it.

Read the Tennessee Supreme Court’s unanimous ruling in Flade v. City of Shelbyville, No. M2022-00553-SC-R11-CV, 2024 WL 4448736 (Tenn. Oct. 9, 2024), authored by Justice Jeffrey Bivens, here:  https://www.tncourts.gov/sites/default/files/OpinionsPDFVersion/Majority%20Opinion%20-%20M2022-00553-SC-R11-CV.pdf.

Questions about this article?  Contact the author at daniel [at] horwitz.law.

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[1] Daniel A. Horwitz, The Need for a Federal Anti-SLAPP Law, N.Y.U. J. Legis. & Pub. Pol’y Quorum (June 15, 2020),  https://perma.cc/A8F4-FQ6G.

[2] Charles v. McQueen, 693 S.W.3d 262, 267 (Tenn. 2024).

[3] Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651, 670 (Tenn. Ct. App. 2021)

[4] By statute, a defending litigant can only recover expenses “incurred in filing and prevailing upon the petition[.]”  Tenn. Code Ann. § 20-17-107(a)(1).  Thus, not all expenses are compensable, so the provision falls slightly short of this goal.

[5] See, e.g., Stewart v. Univ. of Tennessee, 519 S.W.2d 591, 593 (Tenn. 1974) (“it is implicit in the Rule and inherent in the power of the Court that, under a proper set of circumstances, the Court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment.”); Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975) (“where a summary judgment is pending, the right to a nonsuit rests in the sound discretion of the trial judge.”).

[6] Flade v. Shelbyville, No. M2022-00553-SC-R11-CV, 2024 WL 4448736, at *13 (Tenn. Oct. 9, 2024).

If a Government Employee’s Negligence Kills You, the Government Will (Virtually) Never Have to Pay For It, Holds Tennessee Supreme Court

Appeals, Civil Procedure, Tort Law

By Daniel A. Horwitz:

On May 24, 2022, a gunman massacred 19 elementary school students and two teachers in Uvalde, Texas.  376 law enforcement officials who responded to the scene—who lied about at least a dozen critical facts of the shooting afterward—stood idly by while the gunman’s hour-long execution of young children and their teachers unfolded before them.  “Law enforcement responders failed to adhere to their active shooter training, and they failed to prioritize saving the lives of innocent victims over their own safety,” an Interim Report by the Texas Legislature’s Investigative Committee concluded.  The same committee also determined that law enforcement’s fatal failures were not attributable to “malice or ill motives”; instead, “systematic failures and egregious poor decision making” were the culprits.

In a unanimously wrong decision issued by the Tennessee Supreme Court on February 16, 2023, Tennessee’s high court has ruled that if this exact scenario unfolds in Tennessee tomorrow, then the government need not pay for any of the harm caused.  Only a concurring opinion by Justice Kirby—which expressly (and blessedly) calls for review of Tennessee’s outmoded, extra-statutory, judge-invented “public duty doctrine”—explains why.  The practical effect of the Court’s opinion, though, is clear: If heads, then the government wins.  If tails, then the plaintiff suing the government loses.  In virtually all instances, however, the government will not have to pay.

To understand how Tennessee law arrived at this disturbing point, some background is useful.  At common law, governments were generally immune from any lawsuit based on the doctrine of “sovereign immunity.”  The origins of that despotic doctrine are unapologetically monarchical. “‘[D]eeply rooted in feudal notions of the divine right of kings,’ sovereign immunity, which protects the state and its political subdivisions from tort liability, is based upon the premise that ‘the King can do no wrong.’”[1]

In 1975, a closely divided Tennessee Supreme Court disagreed about whether sovereign immunity was part of Tennessee’s common law.  Disputing that it was, two dissenting Justices complained that interpreting Tennessee’s straightforward law on the matter “does not require brilliance—just intellectual honesty”; that application of sovereign immunity had “produced ludicrous results”; that the Tennessee Supreme Court had woven “a tangled web . . . to protect and promote an unjust rule of law”; and that they would “condemn this legal monstrosity to the oblivion which it so richly deserves.”[2]  The dissenting Justices’ views did not carry the day.

Sovereign immunity’s questionable origins aside, all agree that Tennessee’s General Assembly has authority to enact legislation allowing the government to be sued for tortious misconduct.  In the 1970s, a slightly more evolved Tennessee General Assembly also did just that.  In particular, “[i]n 1973, following the lead of other states that had abolished or limited sovereign immunity by statute or judicial decision, our General Assembly passed the Tennessee Governmental Tort Liability Act[.]”[3]

The GTLA’s most important provision—Tenn. Code Ann. § 29-20-205—states that: “[i]mmunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment” except for specified exceptions (such as intentional misconduct) that are listed in the statute.  Based on this provision and the sole purpose underlying it (to allow tort victims of government negligence to recover), one might reasonably expect that the government could be sued successfully when its negligence causes harm.  Given another judicially manufactured common law doctrine—the “public duty doctrine”—that appears nowhere in the GTLA, though, the practical reality is quite different.

“The public duty doctrine originated at common-law and shields a public employee from suits for injuries that are caused by the public employee’s breach of a duty owed to the public at large.”[4]  This is a complex way of saying that if a public employee owes a duty to every member of the public, then the government is immune from suit if that duty is violated as to any specific person.  Thus, based on this doctrine, the Tennessee Supreme Court explained in 1975 that “[i]t is the settled law in this state that private citizens, as such, cannot maintain an action complaining of the wrongful acts of public officials unless such private citizens aver special interest or a special injury not common to the public generally.”[5]

To be sure, the Tennessee Supreme Court is aware that “[t]he public duty doctrine is not expressly listed as an exception to the waiver of immunity for injuries resulting from negligent acts or omissions of governmental employees” set forth in Tenn. Code Ann. § 29-20-205,[6] which instead delineates ten exceptions that are not the public duty doctrine.  Given that, how can it be that the public duty doctrine is still applied as an exception to liability in negligence cases arising under the GTLA?  The answer is straightforward and unsettling: Because regardless of the statute that the Tennessee General Assembly enacted, the Tennessee Supreme Court preferred a policy that prevented the government from being sued instead.  “We think that on balance, the State is better served by a policy that both protects the exercise of law enforcement discretion and provides accountability for failure to perform a duty,” the Tennessee Supreme Court explained in 1995.[7]  Given the Tennessee Supreme Court’s traditional fondness of proclaiming that “[i]t is not the role of this Court to substitute its own policy judgments for those of the legislature[,]”[8] the Court’s explicit embrace of such judicial policymaking is curious.

In any case, since 1995, the Tennessee Supreme Court has held that “the public duty doctrine was not abolished by the Governmental Tort Liability Act and that sound policy reasons support its continuance[.]”[9]  As a result, in order to sue the government for negligence caused by an employee, a plaintiff must generally raise a negligence claim under the GTLA and then overcome the separate immunity conferred by the public duty doctrine as well.

Until yesterday, doing so was difficult but not impossible.  In particular, based on the same 1995 decision discussed above, the Tennessee Supreme Court held that plaintiffs could overcome the public duty doctrine’s additional layer of immunity when one of the following three circumstances applied to establish a “special duty”:

1) officials, by their actions, affirmatively undertake to protect the plaintiff, and the plaintiff relies upon the undertaking; 2) a statute specifically provides for a cause of action against an official or municipality for injuries resulting to a particular class of individuals, of which the plaintiff is a member, from failure to enforce certain laws; or 3) the plaintiff alleges a cause of action involving intent, malice, or reckless misconduct.[10]

The first two exceptions are sufficiently rare that few plaintiffs can rely on them.  Thus, in virtually all cases in which the public duty doctrine applies, plaintiffs need to plead a negligence claim under the GTLA and also allege “reckless misconduct” to overcome the public duty doctrine.  The reason why was simple: The GTLA itself provides that intentional and malicious conduct remain subject to immunity.[11]  Thus, in most cases, the only non-exempt theory of relief that permitted a plaintiff to navigate both the GTLA’s and the public duty doctrine’s overlapping layers of immunity were negligence claims that involved reckless misconduct.

Based on this difficult-but-not-impossible state of affairs, at least some plaintiffs who found themselves the victims of government negligence could and did recover for their injuries.  For instance, in April 2022, the Court of Appeals reinstated a negligence claim filed by a gunshot victim who alleged negligence on the part of a sheriff’s deputy, unanimously explaining that “[t]he complaint also contains sufficient factual allegations of reckless misconduct such that the special duty exception to the public duty doctrine could apply.”[12]  Thus, the Plaintiff’s negligence-combined-with-recklessness claim went forward.  Other victims of governmental negligence that involved recklessness were able to survive early dispositive motions and then recover, too.

No longer.  Courtesy of the Tennessee Supreme Court’s decision in Lawson v. Hawkins Cnty., 2023 WL 2033336, at *6 (Tenn. Feb. 16, 2023), the Tennessee Supreme Court has now determined that:

The [GTLA] removes immunity only for “negligent” employee acts. Common-law precedent and statutory context make clear that the term “negligent” in section -205 means ordinary negligence, not gross negligence or recklessness. The Court of Appeals erred by holding otherwise.

The reasoning underlying the opinion is exceedingly poor.  For instance, the opinion relies heavily on Tennessee’s COVID liability statute—which was enacted in 2020, and which also had little bearing upon and did not purport to address the question presented—to determine the meaning of a statute enacted almost fifty years earlier.  That is an unusual departure from traditional interpretive methods, particularly given that the opinion was authored by the same Justice who—only six months ago, and in another government-favoring opinion that similarly raised eyebrows—took pains to emphasize the importance of examining “[o]riginal public meaning” and “authoritative dictionaries published around the time of a statute’s enactment[,]”[13] none of which appears to have been consulted.  Also ignored was directly relevant Tennessee statutory law, which has long recognized that simple negligence claims may include recklessness. See, e.g., Tenn. Code Ann. § 29-39-104(a)(1) (providing that recklessness may support an award of punitive damages in negligence cases); Wilson v. Americare Sys., Inc., 397 S.W.3d 552, 553 (Tenn. 2013) (remanding for consideration of punitive damages award in suit arising from, among other things, reckless misconduct in case where “the negligence of the staff, the owner, and its management company caused Ms. Farrar’s death.”).  The decision conflicts with recent authority from other jurisdictions that bears directly on the point, too.  See, e.g., Weis v. Baumann, No. DBDCV216038973S, 2021 WL 4895122, at *3 (Conn. Super. Ct. Sept. 22, 2021) (“While not all negligent acts are reckless, reckless conduct will almost certainly always also be negligent.”).

Given the continued application of the public duty doctrine, the practical effect of the Lawson Court’s ruling is certain: Virtually no plaintiff will be able to recover against the government in a negligence case.  In particular, to be able to sue under the GTLA, a plaintiff is now required to assert a simple negligence claim alone, because claims of recklessness are not subject to liability.  After asserting such a simple negligence claim, though, the plaintiff’s claim will be dismissed for failure to assert recklessness based on the public duty doctrine’s overlapping layer of immunity forbidding simple negligence claims.  So heads, the government wins, and tails, the plaintiff suing the government loses.

One Justice, at least, has recognized the “Catch-22 for plaintiffs” that the Tennessee Supreme Court has now assured.  Specifically, in a concurring opinion, Justice Kirby noted that:

If the plaintiff’s complaint alleges that the governmental entity’s employee was reckless in order to qualify for the “reckless misconduct” special duty exception to the public duty doctrine, then dismissal under the GTLA is likely because immunity is not removed for reckless conduct. Conversely, if the complaint alleges that the governmental employee was negligent in order to avoid dismissal under the GTLA, the plaintiff risks dismissal under the public duty doctrine by making his claim ineligible for the special duty exception for reckless misconduct.[14]

Justice Kirby’s concurrence also calls upon the Tennessee Supreme Court to consider whether it should “discontinue application” of the outmoded public duty doctrine “in deference to the statutes governing immunity” that do not embrace it.[15]

Assuming that at least one other Justice agrees that the Court should reconsider the continued viability of the public duty doctrine, that opportunity will come soon.  There are currently two cases pending in lower courts—one involving a woman’s preventable murder arising from Metro Nashville’s failure to enforce an order of protection, and another involving the preventable death of a pregnant woman who experienced a mental health event during a Metro police response—in which the claim that the public duty doctrine should be overruled has been expressly raised and preserved.

Regrettably, the Tennessee Supreme Court’s decision in Lawson is yet another example of courts undermining citizens’ ability to sue the government in the face of statutes that expressly provide they can.  Courts’ extra-statutory eagerness to gut the remedies afforded by 42 U.S.C. § 1983—the most important civil rights statute ever enacted—through the judge-made doctrine of qualified immunity is perhaps the best known example.  Less well known is the fact that courts have gutted, for instance, the remedies afforded by statutes like the law enforcement proviso of the Federal Tort Claims Act following a successful reform effort that was designed to ensure that federal law enforcement officials could be sued for intentional torts.  In every such case, though, courts’ response to legislative efforts to afford citizens a remedy has been to ensure that that remedy is as useless as possible and to leave tort victims like Mrs. Lawson without a remedy.

On a broader level, this reliable pattern is corrosive to democracy.  Unlike tacitly intimidating judges by visiting their homes, the right way to advocate for policy change is democratically—by petitioning legislators to change the law by adopting needed reforms, and by voting them out of office when they refuse.  When courts disrespect the results of the democratic process after citizens have advocated for reform successfully, though—for instance, when they rule that “on balance, the State is better served by a policy” that protects the government from being sued regardless of the legislation that the democratic process produced—the resulting message that judges (most of whom are former government lawyers) do not actually respect the democratic process is clear.  Unless and until the judiciary as a whole sheds its heavy preference for government-friendly outcomes, though, it seems unlikely that confidence in the American judiciary—currently at a historic low—is at risk of improving anytime soon.

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[1] Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011) (quoting Cooper v. Rutherford Cnty., 531 S.W.2d 783, 786 (Tenn.1975) (Henry, J., dissenting)).

[2] Cooper., 531 S.W.2d at 788–92 (Henry, J. dissenting).

[3] Hughes, 340 S.W.3d at 360.

[4] Ezell v. Cockrell, 902 S.W.2d 394, 397 (Tenn. 1995).

[5] Bennett v. Stutts, 521 S.W.2d 575, 576 (Tenn. 1975).

[6] Ezell, 902 S.W.2d at 400.

[7] Ezell, 902 S.W.2d at 401.

[8] State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017) (citing Frazier v. State, 495 S.W.3d 246, 249 (Tenn. 2016))

[9] Ezell, 902 S.W.2d at 401.

[10] Ezell, 902 S.W.2d at 402.

[11] See Tenn. Code Ann. § 29-20-205(2), 29-20-205(4), 29-20-205(6).

[12] Haynes v. Perry Cnty., No. M2020-01448-COA-R3-CV, 2022 WL 1210462, at *1 (Tenn. Ct. App. Apr. 25, 2022).

[13] State v. Deberry, 651 S.W.3d 918, 924 (Tenn. 2022) (emphasis added).

[14] Lawson, 2023 WL 2033336, at *12 (Kirby, J. concurring).

[15] Id.

Tennessee Court of Appeals Affirms First-Ever Anti-SLAPP Judgment Under the Tennessee Public Participation Act

Civil Procedure, Constitutional Law, Defamation, First Amendment, Judgments, Tort Law, ,

In a precedent-setting, unanimous ruling, the Tennessee Court of Appeals has affirmed the first trial court judgment ever issued under the Tennessee Public Participation Act, Tennessee’s recently enacted anti-SLAPP statute.  The ruling establishes several critical precedents for free speech law in Tennessee, and it represents a total victory for Wilson County woman Kelly Beavers, who has spent nearly two years defending her constitutional right to post a negative review on Yelp!.

“This precedent-setting victory for Ms. Beavers and her family sends a clear warning to anyone who would abuse the judicial process in an attempt to censor honest, critical consumer reviews and other constitutionally protected speech,” said Horwitz Law, PLLC attorney Daniel Horwitz, a First Amendment, anti-SLAPP, and speech defense lawyer who represented Ms. Beavers along with Sarah Martin.  “The First Amendment protects every person’s right to speak freely, and this ruling makes clear that the consequences for plaintiffs who file baseless defamation suits in Tennessee will be severe.”

The case at issue arose out of a lawsuit filed by Dr. Kaveer Nandigam and his corporation, Nandigam Neurology, PLC, against Kelly Beavers regarding a negative Yelp! review.  After Ms. Beavers took her father to see Dr. Nandigam and had a terrible experience there, she exercised her First Amendment right to post a negative review on Yelp!, a popular consumer review website.  Dr. Nandigam threatened to sue her if she did not remove the review, and ultimately, he did sue her for defamation and false light invasion of privacy regarding it when she refused to do so.

After Dr. Nandigam dismissed and then refiled his lawsuit against her, Ms. Beavers filed a Petition to Dismiss the Plaintiffs’ claims under the Tennessee Public Participation Act.  Ms. Beavers’ petition was granted, and the Tennessee Court of Appeals has now affirmed that dismissal in its entirety while ordering the Plaintiffs to pay Ms. Beavers’ legal fees and potential sanctions.  “As [Ms. Beavers] aptly notes in her principal brief, ‘the TPPA . . . was designed to prevent and deter such abuse, not to enable it,'” the Court of Appeals ruled.  Ms. Beavers’ claims for attorney’s fees and sanctions against Dr. Nandigam remain pending and will be adjudicated upon remand.  The Court of Appeals’ opinion additionally orders that: “We remand this matter to the general sessions court for a determination of the proper amount of reasonable fees incurred by Defendant during this appeal” as well.

Read the Tennessee Court of Appeals’ unanimous ruling in Nandigam Neurology, et al. v. Kelly Beavers here: https://www.tncourts.gov/sites/default/files/nandigamneurologyv.beavers.opn_.pdf

 

The Tennessee Public Participation Act is affirmed—and it’s working.

Defamation, First Amendment, Tennessee Constitutional Law, Tort Law

By Daniel A. Horwitz (Republished from the Tennessee Free Speech Blog):

In 2019, Tennessee’s free speech law underwent a sea change.  The Tennessee Public Participation Act—Tennessee’s first-ever meaningful anti-SLAPP law—took effect, ushering in a host of protections for people sued for defamation (libel or slander), false light invasion of privacy, business disparagement, or other speech-based torts.  Due to a recent decision out of Hamilton County, the constitutionality of the TPPA has now been expressly affirmed.  After nearly two years, it is also clear that the TPPA is working as intended “to encourage and safeguard the constitutional rights of persons to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law. . .”  See Tenn. Code Ann. § 20-17-102.

Bedsole v. Sinclair Broadcast Group, Inc. is a defamation lawsuit concerning the TV show “Tiny House Nation.”  After being sued, the defendants in that case raised claims for dismissal under the TPPA.  In response, the plaintiff asserted that the TPPA was unconstitutional in its entirety based on the Tennessee Constitution’s separation of powers doctrine.  Thus, in late February 2021, the Hamilton County Circuit Court held a hearing on the contested constitutionality of the statute.

There are, of course, several immediate problems with any broad claim that the Tennessee Public Participation Act is “unconstitutional.”  To begin, the TPPA is a collection of statutory provisions, not a single statute.  It has many different features—an automatic stay on discovery provision, fee-shifting and discretionary sanctions provisions, an interlocutory appeal provision, and several other provisions—all of which function independently.  Several of those provisions also are not even theoretically unconstitutional, and there is no serious argument otherwise.  More generally, anti-SLAPP statutes like the TPPA—which is narrowly tailored to preserve judicial discretion—also promote compelling public interests and serve as an essential tool to protect the oft-ignored rights of third parties.

Upon review, the Hamilton County Circuit Court issued a short but forceful ruling affirming the TPPA’s constitutionality.  “The TPPA, at least in the eyes of this Court, is clearly predicated upon public policy concerns,” the Court explained.  “There can be no serious questions that the intent of the legislature in passing this statute was to effect a more beneficial public policy.”  Further, “the over-arching purpose of the statute”—“to provide protection to [Tennessee’s] citizens from SLAPP lawsuits”—“do[es] not mandate any particular result but leave[s] the ultimate decision within the discretion of the trial court.”  Indeed, the Court noted, “the statute actually broadens the court’s authority to move past the very low requirements of Rules 8 and 12, and to impose attorney’s fees following a burden shift not previously available to the litigants.”  Thus, the Court held, “the constitutional challenge of the Plaintiff is DENIED.”

To be sure, this ruling is excellent news for anyone who cares about free speech in Tennessee.  Before the TPPA was enacted, bad actors could credibly threaten to impose tens—if not hundreds—of thousands of dollars’ worth of litigation expenses in SLAPP-suits over a period of several years if their baseless retraction or other demands were not met in legally frivolous speech-based tort cases.  That is no longer true, given the very real possibility that a plaintiff who files a SLAPP-suit will be ordered to pay the other side’s legal fees and could potentially be sanctioned.  The end result is that negotiating power has flipped, outcomes have dramatically improved, and any number of SLAPP-suits have been avoided entirely because plaintiffs were not willing to risk the severe consequences associated with filing one.  Speech defense attorneys (like the author) are also able to defend against SLAPP-suits on a contingent basis now, rather than having to do so on a pro bono basis when a defendant cannot afford to pay for a vigorous defense.

The evidence that the TPPA is working as intended is also indisputable at this juncture.  To date, TPPA petitions have been granted in four total cases:

  1. This lawsuit against a woman who posted a negative Yelp! review about a business (fees and sanctions pending appeal);
  2. This lawsuit against a woman who called 911 and sought an order of protection ($26,500.00 fees and sanctions award);
  3. This lawsuit against three community activists who criticized a congressional candidate ($39,000.00 fees and sanctions award); and
  4. This lawsuit regarding charges of animal cruelty (fees and sanctions TBD).

The TPPA has also resulted in prompt, favorable settlements to defendants before hearing, provided a backstop in cases that were ultimately dismissed on other grounds, and—this author can attest—has been utilized extensively in pre-suit correspondence to ward off litigation in the first place.

Why, specifically, is the TPPA so effective?  The answer is “for several reasons,” but the following three changes are instructive:

1. Prior to the TPPA being enacted, no matter how much money a plaintiff forced a defendant to spend on legal fees in order to defend against a bogus SLAPP-suit, a prevailing defendant’s ability to recover his or her legal expenses after securing a dismissal and then upholding the dismissal through appeal was capped at $10,000.00.  That is no longer the case, because under the TPPA, defendants who are subjected to baseless SLAPP-suits can recover their full legal fees and be made whole after winning.  That difference has also had enormous practical consequences when it comes to negotiating power and settlement leverage, and it enables rapid dismissals by agreement in cases that might otherwise have lasted years.

2.  Prior to the TPPA being enacted, plaintiffs could impose massive litigation costs and expenses and subject defendants to intrusive discovery simply by making baseless allegations that they did not have to substantiate with evidence until much later in a case.  That is no longer true, either, because the TPPA allows defendants who are subjected to speech-based lawsuits to force plaintiffs to come forward with admissible evidence to substantiate their claims immediately.  If a plaintiff cannot or does not do so, the plaintiff’s lawsuit will be dismissed with prejudice, and the plaintiff will be ordered to pay the defendant’s full legal fees.

3.  Trial court judges make mistakes from time to time, and prior to the TPPA being enacted, an erroneous trial court ruling that a cognizable claim for defamation had been alleged could take years to correct—forcing defendants to go through intrusive and costly discovery or even a full-blown trial in the interim.  As a consequence, an incorrect trial court ruling frequently had the effect of coercing defendants to settle baseless SLAPP-suits just to avoid the cost and stress of litigation.  Now, however, defendants who are subjected to frivolous speech-based lawsuits have a right to take an immediate interlocutory appeal to the Court of Appeals and avoid such expenses by getting damaging trial court errors corrected early.

Even with the TPPA in place, of course, competently defending against defamation and other speech-based lawsuits remains a complex and expensive proposition that requires specialized expertise.  Definitionally, the type of people who file SLAPP-suits—and the lawyers who take their cases—are also willing to abuse the legal process in order to censor, intimidate, and retaliate against critics, which means that such cases invariably involve unethical and abusive people as a matter of course.  There are also a disturbingly large number of ways that the legal system can be abused successfully by bad actors and unethical people generally, so it remains important to have a competent speech defense lawyer who can effectively push back.

The good news, though, is that with the TPPA in place, litigants’ ability to impose legal consequences now goes in both directions.  Plaintiffs who file SLAPP-suits can now be forced to pay very large sums of money to the people they have baselessly sued as well.  As detailed above, that has happened already, and while certain gaps in speech-based protections remain, it will continue to happen as long as the TPPA remains in effect.  This is good news for everyone who cares about the right to speak freely, as well as the right to hear what others have to say.

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The “Tennessee Public Participation Act”⁠—Tennessee’s First-Ever Meaningful Anti-SLAPP Law⁠—Takes Effect Today

Civil Procedure, Constitutional Law, Defamation, First Amendment, Tort Law

By Tennessee First Amendment, Speech Defense, and Anti-SLAPP Lawyer Daniel Horwitz:

If you woke up this morning feeling freer to speak your mind, there’s a reason: A little-noticed law with huge free speech benefits takes effect today. As of July 1, 2019, the “Tennessee Public Participation Act”—Tennessee’s first-ever meaningful Anti-SLAPP law—became effective and affords those who are sued for their speech a host of critical legal benefits.

Because litigation is often prohibitively expensive, bad actors can often intimidate critics into silence by threatening or filing baseless speech-based lawsuits asserting claims like defamation (libel or slander), false light invasion of privacy, business disparagement, or other questionable torts. When faced with the prospect of having to spend tens (if not hundreds) of thousands of dollars in legal fees to defend one’s legal right, for instance, to leave an unfavorable review of a business, self-censorship can also become an extremely attractive proposition. The result of such self-censorship is to undermine both individuals’ right to free speech and the public’s right to hear and receive information.

It is important to note that the overwhelming majority of defamation and other speech-based lawsuits are not filed because a person has suffered an actual legal injury. Instead, their purpose is to punish people for lawfully exercising their right to speak freely about a topic that the suing plaintiff wants to censor. Given the cost of litigation, historically, such lawsuits have also been disturbingly effective.

To provide a counterbalance to the financial threat posed by bogus defamation lawsuits, laws aimed at deterring “Strategic Lawsuits Against Public Participation” (Anti-SLAPP laws) afford speakers a number of significant legal protections, all of which are critical to safeguarding free speech and promoting the free exchange of information and ideas. First, Anti-SLAPP laws help deter bad actors from filing baseless lawsuits against people for lawfully exercising their free speech rights in the first place. Second, the best Anti-SLAPP laws provide people who are sued for exercising their First Amendment rights an efficient and expeditious means of getting frivolous speech-based lawsuits dismissed quickly. Third, Anti-SLAPP laws commonly provide a mechanism to punish abusive litigants and attorneys who file baseless defamation claims with significant monetary sanctions. Fourth, Anti-SLAPP laws frequently give people who are sued for exercising their free speech rights the right to recoup whatever attorney’s fees and court costs they incurred for having to defend against a meritless speech-based lawsuit.

Happily, beginning today, Tennessee now boasts an Anti-SLAPP law that affords speakers all of these benefits. Until today, Tennessee only had a limited Anti-SLAPP law that was narrowly restricted to statements made to government agencies.  Fortunately, though, earlier this year, Tennessee enacted the “Tennessee Public Participation Act” to protect Tennesseans’ right to free speech, which became effective July 1, 2019.  Thus, from today onward, the Randy Rayburns and Linda Schipanis and Bari Hardins of the world can now wield a powerful protective weapon against bad actors’ efforts to censor and intimidate them through frivolous speech-based lawsuits.

The Tennessee Public Participation Act has dramatically expanded the scope of speech that receives heightened legal protection in Tennessee. Under the Act, every “communication made in connection with a matter of public concern”—a term that is defined broadly and expressly encompasses statements involving issues of “health or safety” and “community well-being”—”that falls within the protection of the United States Constitution or the Tennessee Constitution” will come within the ambit of the law’s protection. In other words: Most statements made by citizens within the State of Tennessee—including social media posts and blog posts—now receive heightened protection against speech-based lawsuits, including defamation lawsuits, false light invasion of privacy lawsuits, or lawsuits that assert claims such as “defamation by implication or innuendo.”  Defendants who are sued for claims such as “abuse of process” or “malicious prosecution” will frequently enjoy heightened protection under the Tennessee Public Participation Act as well.

Censorship has always been rampant, and it comes in many forms—from firing people who speak out about misconduct in the workplace to libel and slander lawsuits. More than anything, in recent years, the permanence of the internet combined with the reach and speed of social media have made it more attractive than ever to try to censor others through the legal system before harmful information—whether accurate or not—reaches every corner of cyberspace. The good news is that the Tennessee Public Participation Act will now afford significant protection to people who speak out about topics like abuse and other important issues. The text of the law appears below.

The Tennessee Public Participation Act (Effective July 1, 2019):

20-17-101. This chapter shall be known and may be cited as the “Tennessee
Public Participation Act.”

20-17-102. The purpose of this chapter is to encourage and safeguard the
constitutional rights of persons to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable injury. This chapter is consistent with and necessary to implement the rights protected by Article I, §§ 19 and 23, of the Constitution of Tennessee, as well as by the First Amendment to the United States Constitution, and shall be construed broadly to effectuate its purposes and intent.

20-17-103. As used in this chapter:

(1) “Communication” means the making or submitting of a statement or document in any form or medium, including oral, written, audiovisual, or electronic;

(2) “Exercise of the right of association” means exercise of the constitutional right to join together to take collective action on a matter of public concern that falls within the protection of the United States Constitution or the Tennessee Constitution;

(3) “Exercise of the right of free speech” means a communication made
in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution;

(4) “Exercise of the right to petition” means a communication that falls
within the protection of the United States Constitution or the Tennessee Constitution and:

(A) Is intended to encourage consideration or review of an issue
by a federal, state, or local legislative, executive, judicial, or other
governmental body; or

(B) Is intended to enlist public participation in an effort to effect
consideration of an issue by a federal, state, or local legislative,
executive, judicial, or other governmental body;

(5) “Legal action” means a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable relief initiated against a private party;

(6) “Matter of public concern” includes an issue related to:

(A) Health or safety;

(B) Environmental, economic, or community well-being;

(C) The government;

(D) A public official or public figure;

(E) A good, product, or service in the marketplace;

(F) A literary, musical, artistic, political, theatrical, or audiovisual
work; or

(G) Any other matter deemed by a court to involve a matter of
public concern; and

(7) “Party” does not include a governmental entity, agency, or employee.

20-17-104.

(a) If a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action.

(b) Such a petition may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court’s discretion, at any later time that the court deems proper.

(c) A response to the petition, including any opposing affidavits, may be served and filed by the opposing party no less than five (5) days before the hearing or, in the court’s discretion, at any earlier time that the court deems proper.

(d) All discovery in the legal action is stayed upon the filing of a petition under this section. The stay of discovery remains in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.

20-17-105.

(a) The petitioning party has the burden of making a prima facie case
that a legal action against the petitioning party is based on, relates to, or is in response to that party’s exercise of the right to free speech, right to petition, or right of association.

(b) If the petitioning party meets this burden, the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.

(c) Notwithstanding subsection (b), the court shall dismiss the legal
action if the petitioning party establishes a valid defense to the claims in the legal action.

(d) The court may base its decision on supporting and opposing sworn
affidavits stating admissible evidence upon which the liability or defense is based and on other admissible evidence presented by the parties.

(e) If the court dismisses a legal action pursuant to a petition filed under this chapter, the legal action or the challenged claim is dismissed with prejudice.

(f) If the court determines the responding party established a likelihood of prevailing on a claim:

(1) The fact that the court made that determination and the
substance of the determination may not be admitted into evidence later in
the case; and

(2) The determination does not affect the burden or standard of
proof in the proceeding.

20-17-106. The court’s order dismissing or refusing to dismiss a legal action
pursuant to a petition filed under this chapter is immediately appealable as a matter of right to the court of appeals. The Tennessee Rules of Appellate Procedure applicable to appeals as a matter of right governs such appeals.

20-17-107.

(a) If the court dismisses a legal action pursuant to a petition filed under this chapter, the court shall award to the petitioning party:

(1) Court costs, reasonable attorney’s fees, discretionary costs,
and other expenses incurred in filing and prevailing upon the petition; and

(2) Any additional relief, including sanctions, that the court
determines necessary to deter repetition of the conduct by the party who brought the legal action or by others similarly situated.

(b) If the court finds that a petition filed under this chapter was frivolous or was filed solely for the purpose of unnecessary delay, and makes specific written findings and conclusions establishing such finding, the court may award to the responding party court costs and reasonable attorney’s fees incurred in opposing the petition.

20-17-108.  Nothing in this chapter:

(1) Applies to an enforcement action that is brought in the name of the
state or a political subdivision of this state by the attorney general, a district attorney general, or a county or municipal attorney;
(2) Can result in findings or determinations that are admissible in
evidence at any later stage of the underlying legal action or in any subsequent legal action;
(3) Affects or limits the authority of a court to award sanctions, costs,
attorney’s fees, or any other relief available under any other statute, court rule, or other authority;
(4) Affects, limits, or precludes the right of any party to assert any
defense, remedy, immunity, or privilege otherwise authorized by law;
(5) Affects the substantive law governing any asserted claim;
(6) Creates a private right of action; or
(7) Creates any cause of action for any government entity, agency, or
employee.

20-17-109. This chapter is intended to provide an additional substantive remedy to protect the constitutional rights of parties and to supplement any remedies which are otherwise available to those parties under common law, statutory law, or constitutional law or under the Tennessee Rules of Civil Procedure.

20-17-110. If any provision of this chapter or the application thereof to any
person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.

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The law protects victims of sexual harassment and domestic violence, even when elected officials do not.

Employment Law, Family Law, Tort Law, ,

By Daniel Horwitz:

The past week has been a terrible one for victims of sexual harassment and domestic violence.  Two high profile scandals—both involving elected officials—suggest that any number of Tennessee’s politicians have no qualms about leveraging their positions of power to harass, abuse and intimidate women.  The first scandal involves allegations that State Representative Jeremy Durham—a member of the Republican leadership until just a few days ago—sexually harassed legislative staff and interns repeatedly and without hesitation.  The second involves allegations that Nashville Metro Councilmember Loniel Greene—who resigned his seat last night effective immediately—used his position as a public official to intimidate a victim of domestic violence.  According to a recorded phone call, Greene threatened a woman who had reported a domestic violence incident, stating:  “Bitch, I’m smarter than you.  You try to play the system, motherfucker I am the system.”  After stating that “she’s going to have to be shut down,” Councilman Greene then “work[ed] on” the alleged victim in an attempt to silence her.

The response to these allegations from other elected officials was tepid at best.  For example, in an utterly tone-deaf statement that placed responsibility for Representative Durham’s alleged sexual harassment squarely on the shoulders of those who were believed to have been the victims of it, House Speaker Beth Harwell announced that: “I have instructed the Director of the Internship program that interns are not to attend receptions or events related to the legislature, and they are not to give their cell phone numbers to members.”  The response to Councilman Greene’s scandal was similarly listless.  Prior to his resignation, exactly two out of forty total Metro Councilmembers—Councilman Bob Mendes and Councilman Jeremy Elrod—condemned the allegations, while the Mayor suggested that Councilman Greene should consider resigning because the allegations could “becom[e] a distraction.”

In sharp contrast, however, the response by women’s advocates was considerably more pointed.  Said Pat Shea, CEO of the YWCA of Nashville & Middle Tennessee[1]:

“The YWCA of Nashville & Middle Tennessee is appalled at news accounts of a current domestic violence case involving a newly elected Metro Councilman.  How is it that persons in positions of power in Nashville are able to misuse that power to silence victims?  How is it that processes, put in place to protect victims, are not followed?  These patriarchal behaviors raise serious questions about whether we are able to trust the systems set up to protect victims.

As advocates, we are constantly asked ‘why women do not report abuse; why women will not prosecute; why women cannot just leave.’  This recent high profile incident provides a perfect example of why victims don’t, won’t, and can’t.  We want Nashville to be a place where all of our leaders work to make Nashville safer for victims of domestic violence, not more dangerous. ”

Added Sara Beth Myers of AWAKE (Advocates for Women’s and Kids’ Equality):

“Tennesseans should be confident in our laws that protect victims of harassment both in the civil and criminal context. The offices of our state and local elected officials should be paragons of professionalism and transparency, setting an example for every other workplace in Tennessee. In a state in which women are so underrepresented in our legislature, lawmakers and policymakers should be especially deliberate about interacting with their female colleagues both legally and respectfully. The past week’s events revealed a situation in our government that we should all deem unacceptable.”

The presumption of innocence is obviously of paramount importance and should not be discounted.  As such, pending the outcome of formal legal proceedings against Representative Durham and former Councilman Greene, those who have resisted making public condemnations are entitled to the benefit of the doubt.  Elected officials’ collective disregard for the alleged victims of these incidents, however, is far more difficult to explain.  Protecting victims of harassment and domestic violence and protecting the presumption of innocence are not incompatible concepts.  A legal system that fails to do both at once holds little value.

To be absolutely clear at a time when too many elected officials haven’t been: victims are not responsible for being sexually harassed, beaten, or intimidated.  Sexual harassment is illegal.  Domestic violence is illegal.  Intimidating a victim of domestic violence is illegal.  Retaliating against a victim who reports being abused is illegal.  All such acts are despicable.  None should ever be tolerated.

The law protects victims of harassment, violence and abuse.  If you have been victimized, resources are available to help you.  If you’re in danger, you can reach the YWCA’s 24-hour crisis and information line at (615) 242-1199 or toll free 1-800-334-4628.  The Legal Aid Society of Middle Tennessee and the Cumberlands has free lawyers available to help those who have been victims of domestic violence, including providing free divorce services and helping victims obtain orders of protection.  The District Attorney’s Office has a Victim Witness Services Division that is exclusively dedicated to helping victims navigate the legal system.  The Tennessee Coalition to End Domestic and Sexual Violence makes a multitude of free resources available to victims of domestic violence and sexual abuse.  Many employment lawyers, although they are not free, will take sexual harassment cases on a contingency basis.  All of these resources exist to help empower victims and stop the cycle of abuse.

It is also important to shed light on the many existing policy shortcomings that need fixing.  Although late in coming, legislative leaders have already acknowledged that the General Assembly’s current sexual harassment policy needs to be overhauled, because “staffers and others who are regularly at the Capitol do not feel comfortable coming forward.”  Sadly, the same is often true of the criminal justice system.  In many instances, for example, the names of victims of domestic and sexual violence are made publicly accessible on arrest warrants, which discourages a significant number of victims from reporting.  There is also a pending dispute in the Tennessee Supreme Court over whether victims’ private, personal information becomes a public record under Tennessee law once their records have been turned over to law enforcement.  On behalf of several domestic and sexual violence prevention advocates who participated in the case as amici curiae, the author has argued that it does not, but the Tennessee Supreme Court will have the final say.  Additionally, the legislature’s failure to adapt to modern forms of harassment has left a void in victims’ protection against abuses such as non-consensual pornography—otherwise known as “revenge porn”—and harassment via electronic media, such as text messages and facebook.

These shortcomings certainly need to be corrected.  While that happens, however, don’t wait.  The law protects victims of sexual harassment and domestic violence, even when elected officials do not.  If you need help, help is available.

Questions about this article?  Email Daniel Horwitz at [email protected].

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[1] In the interest of full disclosure, the author is a member of the YWCA’s Board of Directors.

All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court.

Health Care Liability Act, Tort Law,

By Daniel Horwitz:

In February of 2012, the Juvenile Court of Sumner County awarded temporary custody of “M.L.” – a minor child – to her great aunt and uncle.  However, the Court’s custody order also provided that M.L.’s biological parents – Adam and Ashley Ellithorpe – were permitted to participate in any counseling that she received.  After the Ellithorpes discovered that M.L. had received counseling for approximately two years without their knowledge, however, they sued M.L.’s counselor – Ms. Janet Weismark – for negligence.  According to M.L.’s parents, Ms. Weismark – a licensed clinical social worker – acted recklessly and caused their daughter substantial harm by providing her counseling services without first obtaining their consent to do so.

After receiving the Ellithorpes’ complaint, Ms. Weismark asked the court to dismiss it on the basis that the Ellithorpes had failed to comply with the pre-suit notice requirements of the Tennessee Health Care Liability Act (the “HCLA”).  In Tennessee, people who want to file lawsuits involving the provision of health care services are first required to comply with a variety of procedural requirements that are unique to health care claims.[1]  Given that the HCLA’s pre-suit notice requirements serve as a minefield to unwary litigants and frequently result in otherwise-valid claims being dismissed on technical procedural grounds, the author has previously characterized these requirements as “red tape with fangs.”  See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015) (feature article), available at http://issuu.com/nbanikki/docs/nbjjune15/17.

Chief among the HCLA’s pre-suit notice requirements is a rule that “[i]n any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.”[2]  This rule requires a plaintiff to certify that before filing the lawsuit, the plaintiff consulted at least one medical expert who concluded that there was a good faith basis to pursue the claim.[3]  Tennessee law also provides that a plaintiff’s failure to comply with this requirement results in his or her complaint being dismissed with prejudice,[4] which means that the lawsuit is over and it can never be brought again.

Continue reading All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court. →

In 4-1 ruling, Tennessee Supreme Court holds that procedural obstacles keep Clarksville man’s claim out of court

Tort Law, , ,

By Daniel A. Horwitz

Case Background

On the evening of December 24, 2009, Richard Moreno was driving his car across the Neal Tarpley Bridge in Clarksville when a massive tree suddenly slammed on top of his car, seriously injuring him.  The tree had been planted on property owned by the State of Tennessee.  As a result, in accordance with the Tennessee Claims Commission Act,[1] Mr. Moreno filed a claim with the Claims Administration describing his injuries and providing an accounting of his medical expenses.

After filing his claim, Mr. Moreno received an order from the Claims Commissioner directing him to file a formal complaint against the State of Tennessee.  Mr. Moreno promptly complied by filing a complaint alleging that the State had negligently maintained both the bridge and the tree that fell on him.  Thereafter, the State filed an answer to Mr. Moreno’s complaint denying liability.

Notably, the State’s initial answer to Mr. Moreno’s complaint never mentioned that someone else might be responsible for the accident.  However, sixteen months later, the State amended its answer and alleged for the first time that the City of Clarksville was responsible for Mr. Moreno’s injuries because water run-off from a city storm drain had eroded the soil around the bridge, rendering the tree that fell on him unstable.

Continue reading In 4-1 ruling, Tennessee Supreme Court holds that procedural obstacles keep Clarksville man’s claim out of court →

Tennessee Public Protection Act claims do not include a right to a jury trial, holds Tennessee Supreme Court.

Constitutional Law, Tennessee Constitutional Law, Tort Law, , ,

By Daniel A. Horwitz

After being accused of sexually harassing a city clerk, Mr. David Young – then the city administrator for the City of LaFollette – was fired by a majority vote of the LaFollette City Council.  Thereafter, Mr. Young sued the City in Circuit Court for retaliatory discharge under the Tennessee Public Protection Act.[1]  In his complaint, Mr. Young requested a jury trial, which the City opposed.  Ultimately, the dispute over whether Mr. Young was entitled to a jury trial was appealed to the Tennessee Supreme Court.  After considering several disparate constitutional and statutory provisions, the court concluded that Mr. Young had neither a constitutional nor a statutory right to have his case tried by a jury, and thus, his request for a trial by jury was denied.

Initially, the City argued that the Government Tort Liability Act (GTLA) expressly precluded a right to trial by jury.  The GTLA specifically states that claims brought under its provisions shall be tried “without the intervention of a jury.”[2]  According to the court, however, the Tennessee Public Protection Act is “an independent statute which establishes its own rights and remedies apart from the procedures that apply under the GTLA.”[3]  Thus, the GTLA’s prohibition against jury trials did not apply.

Separately, the Tennessee Constitution expressly includes a right to trial by jury.  Specifically, Tenn. Const. art. I, § 6 provides that “the right of trial by jury shall remain inviolate[.]”  Notwithstanding this apparent clarity, however, the Tennessee Supreme Court has held repeatedly that art. I, § 6 only provides a narrow right to trial by jury for claims that “existed at common law.”[4]  Incongruously, in practical terms, this means that the Tennessee Constitution only guarantees a right to trial by jury for claims that existed “under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.”[5]  In this particular case, because the Tennessee Public Protection Act “was enacted by the Tennessee Legislature in 1990, almost two hundred years after the adoption of the first Tennessee Constitution,” the court explained that art. I, § 6 did not apply to Mr. Young’s retaliatory discharge claim, either.[6]

Continue reading Tennessee Public Protection Act claims do not include a right to a jury trial, holds Tennessee Supreme Court. →

Tennessee Supreme Court holds that businesses may lawfully refuse to hire employees solely because they’ve previously filed for workers’ compensation.

Business Law, Tort Law, ,

By Daniel A. Horwitz

Can a business refuse to hire you solely because you’ve previously filed a workers’ compensation claim?  According to the Tennessee Supreme Court, the answer is yes.

In Yardley v. Hospital Housekeeping Systems, the Tennessee Supreme Court accepted a certified question of law to determine whether the Tennessee Workers’ Compensation Act prohibits employers from refusing to hire a prospective employee solely because he or she “had filed, or is likely to file, a workers’ compensation claim incurred while working for a previous employer.”  In some states, discrimination of this sort is unlawful and gives rise to a claim for “retaliatory failure to hire.”  In an opinion authored by Chief Justice Sharon Lee, however, the Tennessee Supreme Court held that under Tennessee law, this practice is legal.

In 2010, Kighwaunda Yardley, a hospital housekeeping employee, was hurt on the job and began receiving workers’ compensation benefits.  She received treatment and continued performing “light duty work” for her employer until 2012, with the expectation that when she fully recovered from her injury, she would return to her job as a housekeeping aide.

Unfortunately for Ms. Yardley, in 2012, her job was outsourced to a separate company (“the New Company”).  The New Company re-hired most of the hospital’s housekeeping staff, but it declined to hire Ms. Yardley.  An internal email sent by the New Company’s Vice President revealed that he had written that Ms. Yardley had: “been out on Workers’ Comp with the hospital long before the [New] Company’s arrival,” that her shoulder was hurting her again, and that “bringing her on board with the [New] Company would seem to be a Workers’ Comp claim waiting to happen.”  The New Company’s Vice President also stated internally that he: “would advise against hiring Ms. Yardley IF we have that option.”   After she was not hired, Ms. Yardley sued the New Company for retaliatory failure to hire.

Continue reading Tennessee Supreme Court holds that businesses may lawfully refuse to hire employees solely because they’ve previously filed for workers’ compensation. →