Harmon v. Hickman Cmty. Healthcare Servs., Inc., No. M2016-02374-SC-R11-CV

• Court: Supreme Court of Tennessee
• Writing for the Court: Holly Kirby, J.
• Citation: 594 S.W.3d 297
• Parties: Bonnie HARMON, et al. v. HICKMAN COMMUNITY HEALTHCARE SERVICES, INC.
• Decision Date: 28 January 2020
• Docket Number: No. M2016-02374-SC-R11-CV

594 S.W.3d 297

Bonnie HARMON, et al.
v.
HICKMAN COMMUNITY HEALTHCARE SERVICES, INC.

No. M2016-02374-SC-R11-CV

Supreme Court of Tennessee, AT NASHVILLE.

May 31, 2019 Session
FILED January 28, 2020

C. Bennett Harrison, Jr., and Brian W. Holmes, Nashville, Tennessee, for Defendant-Appellant Hickman Community Healthcare Services, Inc. d/b/a Hickman Community Hospital.

David Randolph Smith, Dominick R. Smith, W. Lyon Chadwick, Jr., and Christopher W. Smith, Nashville, Tennessee, for Plaintiff-Appellees Bonnie Harmon, Edward Fagan, and Jenny Fagan.

Holly Kirby, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G. Lee, and Roger A. Page, JJ., joined.

Holly Kirby, J.

In this healthcare liability action, the trial court held that the plaintiffs’ sole expert witness was not competent to testify on causation and for that reason granted summary judgment to the defendant. The plaintiffs then filed a motion to alter or amend, proffering causation testimony from a new expert witness. The trial court denied the motion to alter or amend, and the plaintiffs appealed. The Court of Appeals, in a split decision, reversed the trial court’s denial of the motion to alter or amend. This Court granted permission to appeal. A trial court’s decision on a motion to alter or amend is reviewed under an abuse of discretion standard; this standard of review does not permit the appellate court to substitute its judgment for that of the trial court. We hold that the trial court’s decision in this case was within the range of acceptable alternative dispositions of the motion to alter or amend and was not an abuse of the trial court’s discretion. For this reason, we reverse the Court of Appeals and affirm the decision of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On December 12, 2011, the vehicle in which Pamela Rudder was a passenger was stopped by police for a non-functioning headlight. After Ms. Rudder was found to be in possession of illegal drugs and drug paraphernalia, she was arrested. She was taken to the jail in Hickman County, Tennessee.

While still incarcerated, Ms. Rudder reported that she was suffering symptoms of drug withdrawal, from legal prescribed medication as well as illegal substances. Three days after her arrest, on December 15, 2011, Ms. Rudder received treatment in the jail’s medical unit from Tonie D. Cloud, R.N., a nurse employed by Defendant-Appellant Hickman Community Healthcare Services, Inc., d/b/a Hickman Community Hospital (hereinafter "Hickman Community Healthcare" or "Defendant"). After seeing Nurse Cloud, Ms. Rudder returned to her jail cell. Ms. Rudder was seen by Nurse Cloud again, later that same day. Shortly after midnight that same evening, Ms. Rudder was found dead on the floor near the bed in her cell.

On April 11, 2013, Plaintiff-Appellees Bonnie Harmon, Jenny Fagan, and Edward Fagan (hereinafter "Plaintiffs"), all surviving children of Ms. Rudder, filed this

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healthcare liability suit in the Circuit Court for Davidson County against several defendants, including Hickman Community Healthcare.¹ In the course of the ensuing proceedings, the case against Hickman County Healthcare was transferred to the Circuit Court for Hickman County.²

After the case was transferred, Hickman County Healthcare filed a motion for summary judgment, arguing inter alia that Nurse Cloud’s care of Ms. Rudder complied with the applicable standard of care. This motion was denied. After further discovery, in September 2015, Hickman County Healthcare filed a renewed motion for summary judgment, arguing in part that they were entitled to judgment as a matter of law on the issue of causation.

Plaintiffs then filed a cross-motion for partial summary judgment on the issues of standard of care and causation.³ Plaintiffs’ motion and their reply to the Defendant’s motion for summary judgment were supported in part by the affidavit of their expert, Martin H. Wagner, M.D., a physician who was board-certified in neurology and psychiatry. In response, Hickman Community Healthcare challenged Dr. Wagner’s competency to testify on the issues; citing Tennessee Code Annotated § 29-26-115(b),⁴ it contended Dr. Wagner did not practice a "profession or specialty" that would make his expert testimony relevant to the issues. Because Dr. Wagner was not competent to give testimony on causation, Hickman County Healthcare maintained, it was entitled to judgment as a matter of law.

The trial court heard arguments on November 2, 2015, and took the matter under advisement. In late January 2016, the trial court entered an order denying Plaintiffs’ motion for partial summary judgment. The order did not resolve the Defendant’s renewed summary judgment motion or its challenge to the competency of Dr. Wagner.

Several months later, in April 2016, the trial court issued its order on the Defendant’s renewed motion for summary judgment. It held that Plaintiffs’ sole expert witness on causation, Dr. Wagner, was not competent to provide testimony under Tennessee Code Annotated § 29-26-115. It ruled Dr. Wagner’s testimony inadmissible, and as a result held that Plaintiffs could not show there was a genuine issue of material fact on causation. For that reason, the trial court granted summary

594 S.W.3d 300

judgment in favor of Hickman County Healthcare.

The next month, in May 2016, Plaintiffs filed a motion to alter or amend the order granting summary judgment to Hickman County Healthcare.⁵ In support, Plaintiffs filed an affidavit by Plaintiffs’ counsel and a declaration by a different physician expert, Kris Sperry, M.D., a board-certified pathologist. The affidavit from Plaintiffs’ counsel asserted that that this evidence was previously unavailable; he claimed that Plaintiffs were unable, through the exercise of due diligence, to obtain an affidavit from Dr. Sperry before the trial court’s November 2, 2015 hearing on the Defendant’s renewed motion for summary judgment.

In the affidavit, Plaintiffs’ counsel explained their position that the evidence from Dr. Sperry was "previously unavailable." He said that the Defendant notified him in early October 2015 that the Defendant intended to challenge the competency of Plaintiffs’ expert, Dr. Wagner. Within a few days, Plaintiffs’ counsel said, he emailed Dr. Sperry, described as "previously-retained." Days later, after receiving no response from Dr. Sperry, Plaintiffs’ counsel sent another email. As of the date of the trial court’s hearing, Plaintiffs still had not heard back from Dr. Sperry.

Plaintiffs’ counsel noted in his affidavit that, at the summary judgment hearing, he told the trial court that, in the event the trial court ruled that Dr. Wagner was not competent to testify, Plaintiffs would seek to offer evidence from another expert. At the hearing, however, Plaintiffs’ counsel maintained to the trial court that it should not be necessary for him to secure testimony from another expert because he believed that Dr. Wagner was competent to testify.

Dr. Sperry finally responded to Plaintiffs in early December 2015. In a voicemail message, Dr. Sperry explained that he had not responded earlier because he had been recovering from a back injury that kept him from working. Eventually, in April 2016, the trial court issued its order granting summary judgment to Hickman County Healthcare, and Plaintiffs filed their motion to alter or amend the next month.

The trial court held a hearing on Plaintiffs’ motion to alter or amend. It then entered an order denying the motion.

Plaintiffs appealed to the Court of Appeals. In a split decision, the Court of Appeals panel reversed the trial court’s denial of Plaintiffs’ motion to alter or amend, holding that the trial court had abused its discretion. Harmon , 2018 WL 3267080, at *9 (footnote omitted). Judge W. Neal McBrayer filed a dissenting opinion. Id. at *19 (McBrayer, J., dissenting).

Hickman County Healthcare then sought permission to appeal to this Court, which was granted.

ISSUES ON APPEAL

In its request for permission to appeal, Hickman County Healthcare argued that the analysis by the majority on the Court of Appeals was inconsistent with the standard of review for a trial court’s discretionary decision. We granted permission to appeal in order to address that issue.

In Plaintiffs’ brief to this Court, they seek to raise several additional issues. Most of these arguments were not made to

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either the trial court or to the Court of Appeals.⁶ We deem these issues waived. "Issues not raised in the trial court or in the intermediate appellate courts may be deemed waived when presented to this Court." Hodge v. Craig , 382 S.W.3d 325, 334 n.3 (Tenn. 2012) (citing Brown v. Roland , 357 S.W.3d 614, 620 (Tenn. 2012) ; In re Adoption of E.N.R. , 42 S.W.3d 26, 32 (Tenn. 2001) ; Alexander v. Armentrout , 24 S.W.3d 267, 273 (Tenn. 2000) ).

Plaintiffs also contend that their original expert, Dr. Wagner, was competent to testify on causation and the trial court erred in excluding his testimony and in granting summary judgment to Hickman County Healthcare on that...