The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
May 22, 2012 Session
JEFFERY SMITH and BRENDA K. SMITH v. METHODIST HOSPITALS
OF MEMPHIS, ET AL.
Direct Appeal from the Circuit Court for Shelby County
No. CT-004846-00 Kay S. Robilio, Judge
No. W2011-00054-COA-R3-CV - Filed August 31, 2012
This lawsuit originated as a medical malpractice action that was filed against the Hospital
and other defendants in 2000. The trial court granted summary judgment in favor of the
Hospital on the medical malpractice claim in 2003 because Plaintiffs had failed to come
forward with competent testimony from a medical doctor regarding causation. Thereafter,
Plaintiffs filed a supplemental complaint to allege that the Hospital had tortiously interfered
with the Plaintiffs’ contract with a nurse expert witness. The trial court granted summary
judgment in favor of the Hospital on this claim in 2010. Plaintiffs appealed. We affirm the
trial court’s order granting summary judgment on the issue of tortious interference with
contract, but we reverse the trial court’s order granting summary judgment on the medical
malpractice claim and remand for further proceedings.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part, Reversed in Part and Remanded
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.
Lenal Anderson, Jr., Memphis, Tennessee, for the appellants, Jeffery Smith and Brenda K.
Smith
Jill Steinberg, John R. Branson, Mason W. Wilson, Ormonde B. DeAllaume, Memphis,
Tennessee, for the appellee, Methodist Healthcare - Memphis Hospitals
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
On August 24, 1999, Jeffery Smith was admitted to Methodist Hospital (“the
Hospital”)1 for elective umbilical hernia repair under the care of his surgeon. General
anesthesia was obtained after a difficult esophageal intubation. The surgery itself was
unremarkable, and Mr. Smith was discharged from the Hospital that same day. Two days
later, Mr. Smith returned to the emergency room at the Hospital with respiratory distress,
swelling of his pharnyx, and an infection. He underwent an emergency tracheotomy and
another surgery and was hospitalized an additional sixteen days.
In August 2000, Mr. Smith and his wife, Brenda Smith (collectively, “Plaintiffs”) filed
this lawsuit against the Hospital and other defendants, alleging medical malpractice.
Plaintiffs’ claims against the other defendants were dismissed for various reasons, and the
Hospital became the sole remaining defendant. Plaintiffs’ complaint alleged that the
Hospital was negligent in failing to provide Mr. Smith with proper postsurgical care, failing
to inform him of the risks attendant to infection, failing to provide equipment free of
infectious disease, failing to train and monitor the anesthesiologist and nurse anesthetist, and
permitting an “incompetent” surgeon and anesthesiologist to utilize its facilities.
In June 2001, Plaintiffs responded to interrogatories and indicated that they intended
to call one of Mr. Smith’s treating physicians, Dr. Victoria Lim, as “their expert [at] trial.”
In December 2002, the Hospital filed a motion for summary judgment. The motion pointed
out that Dr. Lim was the sole expert identified in the Plaintiffs’ responses to interrogatories.
The Hospital claimed that Dr. Lim’s deposition testimony regarding causation was
speculative, as she had stated that an earlier detection of Mr. Smith’s condition “may have”
prevented further complications, “hopefully,” but “not necessarily.” Thus, the Hospital
argued that Plaintiffs could not establish causation through the testimony of their only expert,
and therefore, summary judgment was appropriate.2
1
Although the complaint in this case named the defendant as “Methodist Hospitals of Memphis,”
the brief submitted by the Hospital on appeal lists the defendant as “Methodist Healthcare - Memphis
Hospitals, Incorrectly Named as Methodist Hospitals of Memphis.” Aside from this reference, neither party
raises an issue regarding the proper name of the defendant. We will refer to the defendant simply as “the
Hospital.”
2
Alternatively, the Hospital argued that the Plaintiffs had failed to produce evidence regarding the
applicable standard of care. The Hospital submitted an affidavit from a nurse who had treated Mr. Smith at
the Hospital, who stated that she complied with the applicable standard of care. In response, the Plaintiffs
(continued...)
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A consent order was entered on January 31, 2003, which stated that Plaintiffs were
not in a position to oppose the Hospital’s motion for summary judgment. Accordingly, the
order provided, the Hospital’s motion for summary judgment would be granted unless the
Plaintiffs filed with the court an expert affidavit in opposition to the motion within thirty
days.
Approximately thirty days later, Plaintiffs filed the affidavit of nurse Joyce Hudspeth.
Relevant to the issue of causation, Nurse Hudspeth stated that Mr. Smith’s subsequent
surgeries “could have been avoided with early detection and medical management.” Nurse
Hudspeth later withdrew from serving as an expert witness for the Plaintiffs, but the
Plaintiffs filed a substantially similar affidavit from another nurse in October 2003.
On December 1, 2003, the trial court entered an order granting summary judgment to
the Hospital on the Plaintiffs’ medical malpractice claim “because Plaintiffs did not present
testimony of a medical doctor that any action or failure to act on the part of [the Hospital]
made any difference in the medical outcome of the condition of the Plaintiff, Jeffrey Smith.”
In that same order, the trial court granted the Plaintiffs leave to file a supplemental
complaint against the Hospital, due to Plaintiffs’ allegations that the Hospital had interfered
with their contract with the nurse who initially served as their expert witness, Nurse
Hudspeth. Thereafter, Plaintiffs filed a supplemental complaint alleging that an agent of the
Hospital wrongfully contacted and pressured Nurse Hudspeth’s employer after she provided
an affidavit in this matter, which led Nurse Hudspeth to terminate her contract with the
Plaintiffs.
In September 2010,3 the Hospital filed a motion for summary judgment on the
Plaintiffs’ claim of tortious interference with contract, and it supported its motion with the
deposition testimony of Nurse Hudspeth. She testified that when she provided her affidavit
in this matter in March of 2003, she was employed as a regional supervisor of investigations
with the Tennessee Department of Health, and in that capacity, she had investigated
2
(...continued)
submitted the affidavit of another nurse, who stated that if the Plaintiffs’ allegations were true, then the
applicable standard of care was not met. Thus, there were conflicting affidavits with regard to this issue.
The trial court did not address the standard of care issue in its order granting summary judgment, and the
Hospital does not argue on appeal that summary judgment should have been granted on that basis. Therefore,
we will not discuss the issue further in this opinion.
3
It is not clear from the record whether there was any activity in the case between 2003 and 2009.
After the December 1, 2003 order granting summary judgment on the medical malpractice claim, the next
document in the record was filed in 2009, and it relates to discovery.
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complaints against doctors and nurses “at all the area hospitals.” It was undisputed that
approximately three weeks after Nurse Hudspeth provided her expert affidavit in this case,
the Hospital’s assistant general counsel contacted an attorney who served as the director of
the Office of Investigations for Health Related Boards at the Department of Health, and who
was also Nurse Hudspeth’s supervisor, in order to suggest that a conflict of interest existed
when the Department’s investigators served as expert witnesses in medical malpractice
lawsuits due to the information investigators obtain during investigations. Thereafter, the
Department of Health changed its internal policy to prohibit its investigators from serving
as expert witnesses in medical malpractice lawsuits. Nurse Hudspeth testified that she
stopped serving as a legal consultant in any cases after she was instructed not to do so by her
employer. However, Nurse Hudspeth testified that she had already withdrawn from serving
as an expert in this case before her employer’s policy change. She explained that after she
reviewed the file in this case, she had a conversation with the Plaintiffs’ attorney about her
opinion, and she informed him at that time that she would not be willing to serve as an expert
in this matter because she did not feel that the Plaintiffs had a strong case against the
Hospital. Nurse Hudspeth testified that the Plaintiffs’ attorney told her that he really needed
an affidavit in order to keep the case moving forward because of an impending deadline, and
he asked her to provide an affidavit “just to get him over the hump of that deadline,” stating
that he could then find another expert who might have a more favorable opinion. Although
Nurse Hudspeth did provide the requested affidavit, she testified that her involvement in this
case came to an end at that time, and that she informed the Plaintiffs’ counsel that she would
not continue to serve as an expert in this case. Nurse Hudspeth testified that it was after she
withdrew from serving as an expert in this case when the Hospital’s assistant general counsel
contacted her employer, and she testified unequivocally that her withdrawal was not
prompted by the call from the Hospital or by any instruction from her employer. She stated,
“That was my decision.”
In response to the motion for summary judgment, the Plaintiffs argued that a
credibility issue existed regarding Nurse Hudspeth’s testimony about the reason for her
withdrawal. They pointed out that when Nurse Hudspeth was asked during her deposition
if she stood by the expert affidavit she had provided in this case, she responded, “Well, yes.”
Plaintiffs argued that it was inconsistent for Nurse Hudspeth to say that she stood by her
expert affidavit and, at the same time, to say that the case was “weak.” Additionally,
Plaintiffs claimed that Nurse Hudspeth had made an equivocal statement regarding the reason
for her withdrawal during a 2003 teleconference with the judge. Finally, Plaintiffs pointed
out that in May 2003, Nurse Hudspeth notified their attorney in writing that she could no
longer serve as a legal consultant in any cases due to her employer’s change in policy. In
short, the Plaintiffs argued that a substantial credibility question existed regarding the true
reason for Nurse Hudspeth’s withdrawal, which could not be resolved by a motion for
summary judgment. The Hospital filed a reply, arguing that the Plaintiffs’ unsupported
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assertion that Nurse Hudspeth was lying did not warrant a trial, as there was no evidence to
suggest that Nurse Hudspeth was not credible.
In November 2010, the trial court granted the Hospital’s motion for summary
judgment on the issue of tortious interference with contract. The court found it undisputed
that Nurse Hudspeth voluntarily withdrew as the Plaintiffs’ expert witness, and that she did
not withdraw as a result of the contact made by the Hospital with her employer. The
Plaintiffs timely filed a notice of appeal.
II. I SSUES P RESENTED
On appeal, the Plaintiffs present the following issues, as we perceive them, for review:
1. Whether the trial court erred in granting summary judgment to the Hospital on the
medical malpractice claim; and
2. Whether the trial court erred in granting summary judgment to the Hospital on the
claim for tortious interference with contract.
For the following reasons, we affirm in part, reverse in part, and remand for further
proceedings.
III. S TANDARD OF R EVIEW
A motion for summary judgment should be granted only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “When ascertaining whether a
genuine dispute of material fact exists in a particular case, the courts must focus on (1)
whether the evidence establishing the facts is admissible, (2) whether a factual dispute
actually exists, and, if a factual dispute exists, (3) whether the factual dispute is material to
the grounds of the summary judgment.” Green v. Green, 293 S.W.3d 493, 513 (Tenn. 2009).
“The party seeking the summary judgment has the burden of demonstrating that no
genuine disputes of material fact exist and that it is entitled to a judgment as a matter of law.”
Green, 293 S.W.3d at 513 (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008);
Amos v. Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)).
“The moving party may make the required showing and therefore shift the burden of
production to the nonmoving party by either: (1) affirmatively negating an essential element
of the nonmoving party's claim; or (2) showing that the nonmoving party cannot prove an
essential element of the claim at trial.” Martin, 271 S.W.3d at 83 (citing Hannan v. Alltel
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Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008)). In order to negate an essential element of the
claim, “the moving party must point to evidence that tends to disprove an essential factual
claim made by the nonmoving party.” Id. at 84 (citing Blair v. W. Town Mall, 130 S.W.3d
761, 768 (Tenn. 2004)). “If the moving party is unable to make the required showing, then
its motion for summary judgment will fail.” Id. (citing Byrd v. Hall, 847 S.W.2d 208, 215
(Tenn. 1993)).
If the moving party does make a properly supported motion, “[t]he non-moving party
must then establish the existence of the essential elements of the claim.” McCarley v. West
Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)). The nonmoving party is required
to produce evidence of specific facts establishing that genuine issues of material fact exist.
Martin, 271 S.W.3d at 84 (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215).
“The nonmoving party may satisfy its burden of production by: (1) pointing to evidence
establishing material factual disputes that were over-looked or ignored by the moving party;
(2) rehabilitating the evidence attacked by the moving party; (3) producing additional
evidence establishing the existence of a genuine issue for trial; or (4) submitting an affidavit
explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.” Id.
(citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215 n.6). “The nonmoving party's
evidence must be accepted as true, and any doubts concerning the existence of a genuine
issue of material fact shall be resolved in favor of the nonmoving party.” Id. (citing
McCarley, 960 S.W.2d at 588).
The resolution of a motion for summary judgment is a matter of law, which we review
de novo with no presumption of correctness. Id. However, “we are required to review the
evidence in the light most favorable to the nonmoving party and to draw all reasonable
inferences favoring the nonmoving party.” Id. (citing Staples v. CBL Assocs., Inc., 15
S.W.3d 83, 89 (Tenn. 2000)).
IV. D ISCUSSION
A. Medical Malpractice
We note at the outset that because the trial court granted summary judgment on the
medical malpractice claim in 2003, the Hospital argues that we should review the trial court's
order granting summary judgment using the standard set forth in Byrd v. Hall, 847 S.W.2d
208 (Tenn. 1993), which, it claims, is different than the current summary judgment standard
described in Hannan v. Alltel Publ'g Co., 270 S.W.3d 1 (Tenn. 2008). The Hospital claims
that "[u]nder Byrd v. Hall, summary judgment is appropriate when the non-moving party,
after adequate time for discovery, fails to come forth with evidence that would allow a
reasonable jury to return a verdict in his or her favor." Essentially, the Hospital is arguing
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that it was entitled to use the "put up or shut up" approach to summary judgment because,
according to the Hospital, that method was authorized under Byrd v. Hall. Despite the
Hospital's protestation to the contrary, our Supreme Court has clearly stated that it was not.
In Hannan, the Supreme Court emphasized, “This Court did not adopt a ‘put up or
shut up’ approach to burden-shifting in Byrd or in subsequent cases.” 270 S.W.3d at 6. The
Court acknowledged that after Byrd, there was "some confusion among Tennessee courts as
to the proof required for the moving party to meet its burden of production." Id. at 5. In fact,
as noted in Justice Koch's dissent, the trial courts and the Court of Appeals had repeatedly
interpreted the summary judgment standard to allow a moving party to satisfy its burden of
production by demonstrating that the nonmoving party's evidence was insufficient to
establish an essential element of the nonmoving party's claim. Id. at 16. Nevertheless, the
Supreme Court insisted in Hannan that it had never adopted the "put up or shut up" method
of burden-shifting, and therefore, the Court explained, it is not enough for the moving party
to demonstrate that the nonmoving party's evidence, at the summary judgment stage, is
insufficient. Id. Instead, the moving party may shift the burden of production to the
nonmoving party by showing that the nonmoving party cannot establish an essential element
of the claim at trial. Id.
In sum, the Supreme Court has stated that Hannan was a "clarification" of Tennessee
summary judgment law. Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777, 782 (Tenn.
2010). The summary judgment standard that the Hospital asks us to apply may have been
utilized in previous Court of Appeals opinions, but according to Hannan, it was never
adopted by the Supreme Court, in Byrd or in subsequent cases. As a result, we find no merit
in the Hospital's contention that we should apply Byrd to this case rather than Hannan.4 See
also Akladyous v. Gtech Corp., No. M2008-00665-COA-R3-CV, 2009 WL 856667, at *2
(Tenn. Ct. App. Mar. 31, 2009) (noting that the Court would apply Hannan even though the
case was decided by the trial court and briefed before the Court of Appeals prior to the
Hannan decision).
Now, turning to the facts of this case, we have the Hospital’s motion for summary
judgment in which it contended that the Plaintiffs had “no competent medical evidence” as
to the required elements of their medical malpractice claim.5 As support for this assertion,
4
We note that the Hospital contends that the outcome of this case would be the same under either
Byrd or Hannan.
5
A patient filing a medical malpractice action has the burden of proving:
(1) The recognized standard of acceptable professional practice in the profession and the
(continued...)
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the Hospital pointed out that the only expert identified by the Plaintiffs in their interrogatory
responses was Dr. Lim. The Hospital claimed that Dr. Lim’s testimony regarding causation
was speculative and insufficient to establish causation to a reasonable degree of medical
certainty.6 The Hospital argued, “Because causation is an essential element in plaintiffs' case,
and must be stated by an expert to be a probability, Methodist is entitled to judgment as a
matter of law.” The trial court granted the motion for summary judgment “because Plaintiffs
failed to present testimony of a medical doctor stating to a reasonable degree of medical
certainty, that any action or inaction on the part of [the Hospital] caused any difference in the
medical outcome of the Plaintiff, Jeffrey Smith.” We conclude that this was error.
“Summary judgment may be appropriate for the moving party who relies upon
evidence from the nonmoving party, but only if that evidence affirmatively negates an
essential element of the nonmoving party's claim or shows that the nonmoving party cannot
prove an essential element of the claim at trial.” Hannan, 270 S.W.3d at 10. “It is not
enough for the moving party to challenge the nonmoving party to ‘put up or shut up’ or even
to cast doubt on a party's ability to prove an element at trial.” Id. at 8. Here, the Hospital
claims that “Dr. Lim’s testimony negates Plaintiffs’ causation element of their medical
malpractice claim by demonstrating that the cause of Plaintiffs’ injuries is speculative.”
However, we find that the proffered deposition testimony of Dr. Lim did not negate the
element of causation. She did not affirmatively testify that Mr. Smith’s additional surgeries
and complications were not caused by any action or inaction on the part of the Hospital or
its agents. Had she done so, this would have negated the Plaintiffs’ allegations to the
5
(...continued)
specialty thereof, if any, that the defendant practices in the community in which the
defendant practices or in a similar community at the time the alleged injury or wrongful
action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care
in accordance with such standard; and
(3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered
injuries which would not otherwise have occurred.
Tenn. Code Ann. § 29-26-115(a). Subject to the “common knowledge” exception, which is inapplicable in
this case, plaintiffs must establish each of these three statutory elements of their claim by competent expert
testimony. Shipley v. Williams, 350 S.W.3d 527, 537 (Tenn. 2011).
6
“[P]roof of causation equating to a ‘possibility,’ a ‘might have,’ ‘may have,’ ‘could have,’ is not
sufficient, as a matter of law, to establish the required nexus between the plaintiff's injury and the defendant's
tortious conduct by a preponderance of the evidence in a medical malpractice case. Causation in fact is a
matter of probability, not possibility, and in a medical malpractice case, such must be shown to a reasonable
degree of medical certainty.” Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn. 1993) (citing White v.
Methodist Hosp. South, 844 S.W.2d 642, 648-49 (Tenn. Ct. App. 1992)).
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contrary. Instead, Dr. Lim testified that an earlier detection of Mr. Smith’s condition “may
have” prevented further complications, “hopefully,” but “not necessarily.” This evidence
simply casts doubt upon the Plaintiffs’ ability to prove causation at trial. The situation is
analogous to the one in Madison v. Love, No. E2000-01692-COA-RM-CV, 2000 WL
1036362 (Tenn. Ct. App. July 28, 2000), a wrongful death case, where the defendant was
granted summary judgment based upon the fact that the pathologist who performed an
autopsy on the decedent stated that he “did not know what caused [the decedent's] death.”
The Court of Appeals explained that this evidence did not negate the element of causation:
While Dr. McCormick's affidavit – and hence his presumed testimony
– may be a serious impediment to the successful pursuit of this claim at trial,
that is not the issue before us. Material supporting a motion for summary
judgment must do more than “nip at the heels” of an essential element of a
cause of action; it must negate that element. While it is clear that Dr.
McCormick's affidavit casts doubt upon the plaintiff's ability to prove
causation, that affidavit does not do enough. It does not negate the plaintiff's
claim of causation in a way that would trigger the plaintiff's burden to produce
countervailing material. In order to negate the element of causation, the
defendants would have had to present admissible competent testimony that the
defendants' failure to render aid did not cause or contribute to the death of the
plaintiff's decedent. The affidavit, with its cause-of-death-is-unknown
language is not the same.
Id. at *2. In sum, a “showing that a party may not yet, at the summary judgment stage, be
able to prove an element of the case does not mean that an element has been negated or that
proof of the element will be missing at the time of trial.” Dykes v. City of Oneida, No.
E2009-00717-COA-R3-CV, 2010 WL 681375, at *5 (Tenn. Ct. App. Feb. 26, 2010)
(explaining that a doctor’s testimony that he did not know whether police officers’ failure to
summon medical assistance was a factor in the victim’s death did not negate the element of
causation, because the testimony did not amount to an opinion that the officers’ failure to act
did not play a role in the death).
We note that under Hannan’s second method of burden shifting, the moving party
may demonstrate that “the nonmoving party cannot prove an essential element of the claim
at trial.” 270 S.W.3d at 10. However, Dr. Lim’s testimony fails to demonstrate that the
Plaintiffs cannot prove causation at trial. The Hospital refers to Dr. Lim as the Plaintiffs’
“designated medical expert,” and the Plaintiffs’ responses to interrogatories only identified
Dr. Lim when asked to identify experts they intended to call at trial, but there is nothing in
the record to suggest that the Plaintiffs could not have retained another expert prior to trial.
There is no mention in the record of a scheduling order or deadline for disclosing expert
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witnesses, and there appears to be nothing that would have prevented the Plaintiffs from
supplementing their discovery responses to identify additional experts prior to trial.7 Without
such a limitation on the Plaintiffs’ ability to retain another expert, the Hospital failed to
demonstrate that the Plaintiffs cannot prove an essential element of their case at trial. They
simply demonstrated that the Plaintiff could not establish an essential element of their case
with that expert testimony. See Hannan, 270 S.W.3d at 19-20 (J. Koch, dissenting).
Because the Hospital failed to affirmatively negate an essential element of the
Plaintiffs’ claim or show that the Plaintiffs could not prove an essential element of their
claim at trial, the motion for summary judgment should have been denied, and the burden
never shifted to the Plaintiffs to come forward with a causation expert. Thus, it is immaterial
that the Plaintiffs only responded with the affidavit of a nurse rather than testimony from a
medical doctor. The trial court’s order granting summary judgment to the Hospital on the
medical malpractice claim is accordingly reversed, and this matter is remanded for further
proceedings consistent with this opinion.
B. Tortious Interference with Contract
Now, we must consider the motion for summary judgment filed by the Hospital with
regard to the Plaintiffs’ claim for tortious interference with their contract with Nurse
Hudspeth. To recap, the basis of the Plaintiffs’ claim was that Nurse Hudspeth would not
have terminated her expert witness contract with the Plaintiffs but for the Hospital’s contact
with her employer. The Hospital filed a motion for summary judgment, claiming that it did
not cause Nurse Hudspeth to withdraw from the case.8 The Hospital did not dispute that its
assistant general counsel contacted Nurse Hudspeth’s employer, the Tennessee Department
of Health, approximately three weeks after she provided her expert affidavit for the Plaintiffs.
However, the Hospital pointed to Nurse Hudspeth’s deposition testimony that she had already
informed the Plaintiffs’ counsel, when she provided the expert affidavit, that she would no
7
The Hospital does not argue that the January 31, 2003 consent order, requiring the Plaintiffs to file
“an expert affidavit” in response to the summary judgment motion within thirty days, would prohibit the
Plaintiffs from obtaining additional experts after they filed the aforementioned affidavit. In fact, the
Plaintiffs did file an affidavit from an additional nurse in October 2003. Moreover, a motion filed by the
Hospital in the trial court stated that it was undisputed that “Plaintiffs were allowed from March through
November of 2003 to put on whatever proof they desired” before summary judgment was entered on
December 1, 2003.
8
In order to establish a cause of action for unlawful inducement of a breach of contract, “a plaintiff
must prove that there was a legal contract, of which the wrongdoer was aware, that the wrongdoer
maliciously intended to induce a breach, and that as a proximate result of the wrongdoer's actions, a breach
occurred that resulted in damages to the plaintiff.” Quality Auto Parts Co., Inc. v. Bluff City Buick Co.,
Inc., 876 S.W.2d 818, 822-23 (Tenn. 1994) (emphasis added).
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longer serve as an expert in this matter because she felt that the case against the Hospital was
weak. Nurse Hudspeth testified that it was after she withdrew as Plaintiffs’ expert in this
case that the Hospital contacted her employer, and she testified unequivocally that her
withdrawal was not prompted by the call from the Hospital or by any instruction from her
employer. We conclude that this testimony negated an essential element of the Plaintiffs’
claim, i.e., causation, and therefore the burden shifted to the Plaintiffs to produce evidence
of specific facts establishing that genuine issues of material fact existed. Martin, 271
S.W.3d at 84. In response to the motion for summary judgment, the Plaintiffs questioned
Nurse Hudspeth’s credibility and suggested that she was untruthful regarding the reason for
her withdrawal. The specific facts produced by Plaintiffs in support of their assertion were:
(1) Nurse Hudspeth testified that she stood by her expert affidavit; (2) Nurse Hudspeth wrote
a letter to Plaintiffs’ counsel regarding her employer’s change in policy in May 2003; and (3)
Nurse Hudspeth allegedly made an equivocal statement regarding the reason for her
withdrawal during a teleconference with the judge. We will examine each of these facts in
turn in order to determine whether the Plaintiffs established a genuine issue of material fact.
The first evidence to which the Plaintiffs pointed was Nurse Hudspeth’s deposition
testimony that she continued to “stand by” her expert affidavit. Plaintiffs basically argued
that this statement means that Nurse Hudspeth was lying when she said she felt the case was
weak. However, when the Nurse Hudspeth’s statement is considered in context, it does not
support this assertion. The statement at issue was made in the context of Plaintiffs’ counsel
asking Nurse Hudspeth if her personal opinion about the case being weak means that the
statements she made in her expert affidavit were untrue, and Nurse Hudspeth responded, “I
don’t think so.” Plaintiffs’ counsel asked if she continued to “stand by” her affidavit, and
Nurse Hudspeth responded, “Well, yes.” However, she also explained that Plaintiffs’
counsel pressured her into providing the affidavit because of his impending deadline, and that
she worded the affidavit very carefully to include such phrases as, “if [the Plaintiffs’]
allegations are true,” and she “tried to construct it in such a way that [she] was not
committing [her]self to a conclusion that anything had occurred.” Considering Nurse
Hudspeth’s statement about “standing by” her affidavit in context, we find that it does not
suggest that she is lying about withdrawing because the case was weak.
Next, the Plaintiffs point to a May 20, 2003 letter from Nurse Hudspeth to the
Plaintiffs’ counsel which states, “This letter is to notify you that effective immediately, I will
no longer be able to assist you with any legal matters related to malpractice or negligence
claims.” The letter goes on to explain that the Department of Health had changed its policy
to prohibit its investigators from serving as experts in medical malpractice cases. Nurse
Hudspeth went on to apologize for any inconvenience, and she stated that the situation was
“entirely out of [her] control.” In response to the Hospital’s motion for summary judgment,
the Plaintiffs seemed to suggest that this May 20, 2003 letter proves that Nurse Hudspeth did
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not withdraw from the case until after the Department of Health’s policy change. However,
considering the other evidence in the record, we again conclude that this letter is entirely
consistent with Nurse Hudspeth’s testimony that she withdrew from the case in March 2003
because she felt the case was weak. Nurse Hudspeth testified that it was approximately one
to two months after she withdrew from serving as an expert in this case when her supervisor
informed her that she could no longer serve as an expert in medical malpractice cases. She
testified that after her employer changed its policy, she “immediately sat down and drafted
a letter to all of the attorneys that I was working with at the time to inform them that I would
no longer be serving in that capacity.” Nurse Hudspeth’s May 2003 letter stated that she
would no longer be able to assist Plaintiffs’ counsel with “any legal matters related to
malpractice or negligence claims,” and it did not specifically mention the case at bar.
However, she testified that she had already withdrawn from serving as an expert in this case
by informing Plaintiffs’ counsel of that decision in March 2003, and the Plaintiffs’ produced
no evidence to the contrary. As such, we find that the May 2003 letter is consistent with
Nurse Hudspeth’s deposition testimony, and it does not suggest that she is lying about when
she withdrew from the case at bar.
Finally, the Plaintiffs claimed that Nurse Hudspeth made an equivocal statement about
why she withdrew during a teleconference with the trial judge in July 2003. There is no
transcript of the conversation, but during Nurse Hudspeth’s deposition in 2010, she testified
about it as follows:
Q. Did you have any further involvement after you signed the affidavit in
this case?
A. No. Well, I take that back. I had got a phone call from Judge Kay
Robilio. I'm assuming it was on the day of the hearing. She called to ask
me some questions about the affidavit.
Q. Okay. Can you describe that -- the substance of that conversation with
Judge Robilio for me?
A. Well, I don't have verbatim recall.
Q. Sure. No. I understand. It's been a while.
A. It has been a long time. But the gist of it was she wanted to know my
opinion about the case and the affidavit that I had submitted. And
basically, I had to tell her, you know, that Mr. Anderson, you know, had
sort of put some pressure on me to do that. And I felt badly, you know,
that I couldn't help these people. But in the way in which I constructed
the affidavit, I tried to construct it in such a way that I was not
committing myself to a conclusion that anything had occurred — you
know, may have been true. Because I put in there that if allegations
were true, then it would be a violation of the nurse practice act - not the
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act, but rather nursing standards.
Q. Right. And I don't want to get into all the details about the affidavit or
anything like that.
A. I understand. I don't know where to go.
On cross-examination, Plaintiffs’ counsel then questioned Nurse Hudspeth about the
conversation as follows:
Q. Do you recall Judge Robilio inquiring as to what prompted your
withdrawal from this case?
A. I don't remember that, no.
Q. Do you recall telling Judge Robilio that you could no longer serve in
this case?
A. I think I did, yes.
Q. And do you recall telling Judge Robilio that contact had been made
with your employer such that you could no longer serve in this case?
A. You know, I don't remember. It's possible.
(Emphasis added). Once again, viewing the testimony as a whole, we find no genuine issue
of material fact regarding when and why Nurse Hudspeth withdrew from this case.
Significantly, the Plaintiffs did not present any evidence to contradict Nurse Hudpseth’s
testimony that she informed Plaintiffs’ counsel when she provided the expert affidavit in
March 2003 that she would no longer serve as an expert in this case. It is also undisputed
that she had no further involvement in this case thereafter. During the conference call with
the trial judge, Nurse Hudspeth explained that Plaintiffs’ counsel had pressured her into
providing an expert affidavit before she withdrew from the case. The conference call took
place in July 2003, after the Department of Health changed its policy, and Nurse Hudspeth
acknowledged that she may have informed the trial judge about the recent change in policy
which, at that point, would have prevented her from serving as an expert in the case
regardless of her opinion as to its strength. However, this statement does not contradict
Nurse Hudspeth’s repeated statements that she withdrew from serving as an expert in this
case in March 2003, before any contact between the Hospital and her employer, because she
felt the case was weak.
“A disputed fact presents a genuine issue if ‘a reasonable jury could legitimately
resolve that fact in favor of one side or the other.’” Martin, 271 S.W.3d at 84 (quoting Byrd,
847 S.W.2d at 215). In other words, “[i]f reasonable minds could justifiably reach different
conclusions based on the evidence at hand, then a genuine question of fact exists.” Green,
293 S.W.3d at 514. In the case before us, we conclude that the evidence and the inferences
reasonably drawn from the evidence permit but one conclusion, that Nurse Hudspeth
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voluntarily withdrew from serving as an expert in March 2003, and not as a result of any
action on the part of the Hospital. Finding no genuine issue of material fact regarding the
reason for Nurse Hudspeth’s withdrawal, we affirm the trial court’s decision to grant
summary judgment to the Hospital on the issue of tortious interference with contract.
V. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court in part, and
we reverse in part and remand for further proceedings. Costs of this appeal are taxed equally
to the appellants, Jeffrey Smith and Brenda Smith, and their surety, and to the appellee,
Methodist Healthcare-Memphis Hospitals, for which execution may issue if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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