Tom and Karen Moore v. Lloyd A. Walwyn, M.D. - Dissenting

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

FILED

TOM AND KAREN MOORE, ) Jan. 19, 1996

)

Plaintiffs/Appellants, ) Cecil Crowson,

) Davidson Circuit Jr.

Appellate Court Clerk

) No. 94C-1356

VS. )

) Appeal No.

) 01-A-01-9507-CV-00295

LLOYD A. WALWYN, M.D., )

)

Defendant/Appellee. )

DISSENTING OPINION

Both the trial court and the majority of this panel have decided that Tom

and Karen Moore are not entitled to a jury trial on their medical malpractice claim

against Dr. Lloyd A. Walwyn because of shortcomings in the affidavits they filed

in opposition to Dr. Walwyn’s motion for summary judgment. While I do not

relish defending sloppy lawyering, I am convinced that my colleagues have

scrutinized the Moores’ counter-affidavits using standards stricter than those

required by Tenn. R. Civ. P. 56.05 and Tenn. Code Ann. § 29-26-115 (1980). I

would vacate the summary judgment because the counter-affidavits demonstrate

the existence of genuine and material factual issues that only a jury should resolve.

I.

Tom Moore severely injured his left forearm and left leg when he fell from

a roof on May 1, 1993. He was first taken to the Williamson County Medical

Center and was later transferred to the Tennessee Christian Medical Center where

he came under the care of Dr. Lloyd A. Walwyn. Dr. Walwyn determined that

injuries to Mr. Moore’s leg required surgery and on May 2, 1993, performed an

open reduction of the fractures of the left fibula and tibia.1 During this procedure,

Dr. Walwyn repaired the fractured fibula using a plate and screws and repaired the

fractured tibia using two screws. Three days after the surgery, Dr. Walwyn

performed a closed manipulation of the fracture of the tibia and inserted pins into

the tibia to stabilize it with an external fixator.2

Mr. Moore left the hospital on May 7, 1993. He changed physicians after

three office visits with Dr. Walwyn between May 19 and June 16, 1993. In July

1993, the physicians at Metro General Hospital advised Mr. Moore that his leg

fracture would require additional surgery because he had “infected pins on his

current external fixator which communicate with his fracture site.” During

surgery on July 21, 1993, Dr. Melvin Law confirmed infection of the pin sites and

also infected nonunion of both the left tibia and left fibula. Dr. Law irrigated and

debrided the infected tibia, fibula, and pin sites. He also replaced the external

fixator Dr. Walwyn had installed. Dr. Law removed the second external fixator

and placed Mr. Moore’s leg in a cast in October 1993.

Mr. Moore and his wife sued Dr. Walwyn and others on May 2, 1994. They

alleged that the infection in Mr. Moore’s leg was caused by Dr. Walwyn’s

negligent failure to prescribe sufficient antibiotics before, during, and after the

May 2, 1993 surgery. They also alleged that the infection caused by Dr.

Walwyn’s negligent failure to prescribe antibiotics required Mr. Moore to undergo

“four surgeries including nine different procedures” and to experience pain,

suffering, additional medical expenses, and loss of wages. In addition, they

alleged that Dr. Walwyn declined to treat Mr. Moore after learning that he lacked

the funds to pay him.

1

An open reduction of a fracture is a surgical procedure involving the manipulation of the

affected bone or bones after an incision into the skin and muscle over the site of the fracture.

See Stedman’s Concise Medical Dictionary 872 (2d ed. 1994) (“Stedman’s”).

2

The closed manipulation did not require a second incision; however, the pins attaching

the tibia to the external fixator did protrude through the skin. A fixator is a device providing

rigid immobilization through external skeletal fixation by means of rods attached to pins which

are placed in or through the bone. See Stedman’s 386.

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From this point on, the case fell into the predicable pattern common to many

medical malpractice cases. On October 19, 1994, Dr. Walwyn filed a motion for

summary judgment supported by his own self-serving affidavit asserting in the

most general terms that he “acted with ordinary and reasonable care” in

accordance with “the recognized standard of professional practice in orthopaedic

surgery in Nashville and similar areas.”3 This motion placed the burden squarely

on the Moores to produce a competent affidavit supporting their claim that Dr.

Walwyn had committed malpractice. Failure to produce competent expert

testimony contradicting Dr. Walwyn’s affidavit would result in the summary

dismissal of the Moores' claims against Dr. Walwyn because they could only be

substantiated with expert testimony.4

The Moores responded to Dr. Walwyn’s motion for summary judgment on

December 5, 1994, with a memorandum of law and a promise that counter-

affidavits would be filed no later than one day before the hearing on the summary

judgment motion. The Moores were apparently unable to locate an orthopaedic

surgeon in Tennessee willing to testify against Dr. Walwyn. On the day before the

hearing, they filed the “affidavit” of Dr. Bruce Schlafly, a board-certified

orthopaedic surgeon practicing in Missouri, who opined that “Dr. Lloyd Walwyn

. . . breached the recognized standard of care in failing to administer antibiotics

and such breach of care caused Tom Moore injuries that he would not have

otherwise suffered.”

Dr. Walwyn’s lawyers launched a fusillade of objections to the form,

substance, and timing of Dr. Schlafly’s affidavit at the December 16, 1994

3

This motion was proper because a defendant physician’s affidavit is sufficient by itself

to support the physician’s motion for summary judgment. Smith v. Graves, 672 S.W.2d 787,

789-90 (Tenn. Ct. App. 1984). There is, however, a growing judicial hostility toward expert

affidavits used to support or to oppose motions for summary judgment that contain only an

opinion without supplying a foundation of specific facts. See Edward Brumet, Summary

Judgment Materials, 147 F.R.D. 647, 674-676 (1993) ("Brumet").

4

Goodman v. Phythyon, 803 S.W.2d 697, 702-03 (Tenn. Ct. App. 1990); Hurst v.

Dougherty, 800 S.W.2d 183, 185 (Tenn. Ct. App. 1990); Parker v. Vanderbilt Univ., 767 S.W.2d

412, 420 (Tenn. Ct. App. 1988); Ayers v. Rutherford Hosp., Inc., 689 S.W.2d 155, 160 (Tenn.

Ct. App. 1984).

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hearing. The trial court decided to consider Dr. Schlafly’s affidavit even though

it had not been filed within the time required by the local rules of court.5 On

January 11, 1995, the trial court entered an order granting Dr. Walwyn’s motion

for summary judgment because “there is no genuine issue as to a material fact

concerning whether the defendants deviated from the recognized standard or

acceptable professional practice.”

The Moores hired a second lawyer who filed a “motion to reconsider” on

February 9, 1995. Since Dr. Walwyn’s lawyers had taken issue with the form of

Dr. Schlafly’s original “affidavit,” the Moores’ motion was accompanied by a

second affidavit by Dr. Schlafly that was “more succinct in form for the Court to

consider.” The motion reiterated that “there was sufficient proof to show that the

Defendant deviated from the acceptable standard of care sufficient to raise a

question of fact.”

The trial court conducted another hearing on February 24, 1995. The trial

court declined to consider Dr. Schlafly’s second affidavit because the Moores had

“not made a sufficient showing as to why the affidavit testimony of Dr. Schlafly

in support of the Motion to Reconsider could not have been submitted earlier in

response to the Defendants’ Motions for Summary Judgment and why the

testimony of the same witness should be considered again in this proceeding.”

Accordingly, the trial court denied the Moores’ motion and reaffirmed its

conclusion that Dr. Walwyn was entitled to a judgment as a matter of law.

5

Rule 12.04(d) of the Local Rules of Practice requires responses to motions, including

counter-affidavits, to be filed by the close of business on the Monday preceding the Friday on

which the motion is to be heard. Accordingly, Dr. Schlafly’s affidavit should have been filed

by December 12, 1994. Local rules may require that opposing affidavits be filed earlier than

required by the Tennessee Rules of Civil Procedure, see Pfeil v. Rogers, 757 F.2d 850, 857-58

(7th Cir. 1985) cert. denied, 475 U.S. 1107 (1986); 10A Charles A. Wright et al., Federal

Practice and Procedure § 2719, at 12-14 (2d ed. 1983); however, trial courts may, in their

discretion, accept late affidavits. Beaufort Concrete Co. v. Atlantic States Constr. Co., 352 F.2d

460, 462 (5th Cir. 1965), cert. denied, 384 U.S. 1004 (1966).

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II.

PURPOSE OF SUMMARY JUDGMENTS

A summary judgment proceeding provides an efficient and effective means

to conclude a case that can be decided on legal issues alone. Alexander v.

Memphis Individual Practice Ass'n, 870 S.W.2d 278, 280 (Tenn. 1993); White v.

Methodist Hosp. South, 844 S.W.2d 642, 651-52 (Tenn. Ct. App. 1992). It should

not be used for docket control, Schaefer v. Larsen, 688 S.W.2d 430, 433 (Tenn.

Ct. App. 1984), or to replace a trial of genuine, material factual issues. Blocker

v. Regional Medical Ctr., 722 S.W.2d 660, 660-61 (Tenn. 1987); Foley v. St.

Thomas Hosp., 906 S.W.2d 448, 452 (Tenn. Ct. App. 1995). Accordingly,

summary judgment proceedings should not be permitted to become "trials by

paper,"6 and should not be used to find facts, to resolve disputed factual issues, or

to choose among various factual inferences that may be drawn from undisputed

facts. Byrd v. Hall, 847 S.W.2d 208, 216 (Tenn. 1993).

The party seeking a summary judgment has the burden of demonstrating the

absence of material factual disputes and its entitlement to a judgment as a matter

of law. Byrd v. Hall, 847 S.W.2d at 215; Gambill v. Middle Tenn. Medical Ctr.,

751 S.W.2d 145, 146 (Tenn. Ct. App. 1988). The courts hold parties seeking a

summary judgment to stringent standards. Baker v. Lederle Labs., 696 S.W.2d

890, 893 (Tenn. Ct. App. 1985). Accordingly, they will grant a summary

judgment only if the facts and the conclusions reasonably drawn from the facts

support the conclusion that the moving party is entitled to a judgment as a matter

of law. Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn. 1981);

Mansfield v. Colonial Freight Sys., 862 S.W.2d 527, 530 (Tenn. Ct. App. 1993).

They should not grant a summary judgment if any uncertainty or doubt exists with

regard to the facts or the conclusions to be drawn from the facts. Byrd v. Hall, 847

S.W.2d at 211; Poore v. Magnavox, Inc., 666 S.W.2d 48, 49 (Tenn. 1984);

Gambill v. Middle Tenn. Medical Ctr., 751 S.W.2d at 147; Baker v. Lederle Labs.,

696 S.W.2d at 894.

6

Brumet, supra note 3, 147 F.R.D. at 647.

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The courts customarily treat the nonmoving party's papers more indulgently

than they do the papers filed by the party seeking the summary judgment. The

evidence supporting and opposing the summary judgment will be considered in

the light most favorable to the nonmoving party. Speaker v. Cates Co., 879

S.W.2d 811, 813 (Tenn. 1994). The nonmoving party is also entitled to all

favorable inferences that can be reasonably drawn from the proof. Byrd v. Hall,

847 S.W.2d at 210-11; Cowden v. Sovran Bank/Central South, 816 S.W.2d 741,

744 (Tenn. 1991); Blocker v. Regional Medical Ctr., 722 S.W.2d at 663. The

courts’ indulgence may also extend to the form of the nonmoving party's papers.

Technically defective papers may be sufficient to defeat a summary judgment if

they apprise the court of important relevant evidence that the nonmoving party can

and will introduce at trial. 6 James A. Moore et al., Moore's Federal Practice ¶

56.22[1] (2d ed. 1995); 10A Charles A. Wright et al., Federal Practice &

Procedure § 2738, at 485 (2d ed. 1983).

III.

THE FORM OF TENN. R. CIV. P. 56 AFFIDAVITS

The trial court decided to consider Dr. Schlafly's original "affidavit" filed

on December 15, 1994, even though its form was irregular. The majority has now

concluded that the trial court should have excluded the "affidavit" because of

defects in the signature and the jurat. I would not find these relatively innocuous

defects to be fatal to the Moores' case.

Parties seeking or opposing a summary judgment may, but are not required

to, use evidentiary materials to support their respective positions. In most

circumstances, the sole purpose of these evidentiary materials is to provide the

court with some reliable indication of the proof the parties intend to present at

trial. Rooker v. Rimer, 776 S.W.2d 124, 128 (Tenn. Ct. App. 1989), cert. denied,

493 U.S. 1073 (1990). Tenn. R. Civ. P. 56.03 permits the use of various types of

materials including affidavits, depositions, answers to interrogatories, and

admissions on file. Litigants in Tennessee's courts now generally use affidavits

to support and to oppose motions for summary judgment.

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An affidavit is nothing more than a written statement made and signed

under oath before an authorized person. Harvey v. State, 166 Tenn. 227, 229, 60

S.W.2d 420, 420 (1933); Jas. N. Watt & Co. v. Carnes, 51 Tenn. (4 Heisk.) 532,

534 (1871). Tenn. R. Civ. P. 56 contains no additional requirements with regard

to the form of affidavits in summary judgment proceedings. Accordingly,

documents meeting the general common-law requirements of being made and

signed under oath should be considered as long as they comply with the other

substantive requirements of Tenn. R. Civ. P. 56.

Dr. Schlafly's "affidavit" filed on December 15, 1994, is not in the

customary affidavit form. It consists of three related documents: a one-page

introductory statement, a four-page curriculum vitae, and a four-page report of Dr.

Schlafly's findings and conclusions about Mr. Moore's medical care. The

curriculum vitae and report are specifically incorporated into the statement. Dr.

Schlafly's introductory statement recites that he was "duly sworn" and thereafter

states that he has practiced his specialty in Missouri for more than one year, that

Dr. Walwyn "breached the recognized standard of care in failing to administer

antibiotics," and that this "breach caused Tom Moore to suffer injuries he would

not have otherwise suffered as is more fully explained in my attached report." Dr.

Schlafly signed the statement, but his signature is not immediately followed by a

jurat and notary's signature.

The April 1994 curriculum vitae attached to the statement shows that Dr.

Schlafly is a board-certified orthopaedic surgeon, that he has been licensed to

practice his specialty in Missouri since 1985, and that he currently has admitting

privileges at seven St. Louis-area hospitals. The report dated December 13, 1994

contains Dr. Schlafly's expert findings and conclusions based on the copies of Mr.

Moore's medical records that had been provided to him. Dr. Schlafly signed the

last page of the report, and a customary jurat follows his signature, as well as the

seal and signature of a Missouri notary public.

The majority has decided that these documents, taken together, do not

qualify as an affidavit because the first document does not contain a jurat

following Dr. Schlafly's signature and because the jurat and notary's signature on

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the last page of Dr. Schlafly's report is dated the day before the date appearing on

the first page. The majority apparently views the difference in the dates as

undisputable evidence that the jurat on the last page cannot apply to the preceding

one-page statement and the curriculum vitae. There are, however, other plausible

inferences. Dr. Schlafly could have post-dated or misdated the one-page statement

and could have signed both the first and the last page at the same time, before the

notary affixed her certificate. This conclusion is consistent with the

complementary statements on the first and last pages of the documents that Dr.

Schlafly was "duly sworn" before he signed and acknowledged the documents.

Even if these technical defects prevent the December 15, 1994, documents

from qualifying as an "affidavit" in the strictest sense of the term, the trial court

did not abuse its discretion by considering them. Despite the irregularities in their

form, the documents demonstrate that Dr. Schlafly can and will provide competent

expert testimony contradicting Dr. Walwyn's conclusions with regard to

negligence and proximate cause. Accordingly, I cannot concur with the majority's

conclusion that the form of Dr. Schlafly's December 15, 1994 "affidavit” prevents

its consideration.

IV.

EXPERT AFFIDAVITS IN MEDICAL MALPRACTICE CASES

Tenn. R. Civ. P. 56.05 and Tenn. Code Ann. § 29-26-115 control the

substance of affidavits used to support or to oppose motions for summary

judgment in medical malpractice cases. Tenn. R. Civ. P. 56.05 contains three

requirements. First, affidavits must be made on personal knowledge.7 Second,

they must set forth facts that would be properly admissible at trial, but the

affidavits themselves need not be admissible.8 Third, they must affirmatively

7

Price v. Becker, 812 S.W.2d 597, 598 (Tenn. Ct. App. 1991); State v. Hartley, 790

S.W.2d 276, 278 (Tenn. Crim. App. 1990) (affidavit based on information and belief is

insufficient); Keystone Ins. Co. v. Griffith, 659 S.W.2d 364, 365-66 (Tenn. Ct. App. 1983)

(affidavit based on information and belief is insufficient).

8

Byrd v. Hall, 847 S.W.2d at 215-16; Teeters v. Currey, 518 S.W.2d 512, 514 (Tenn.

1974); Braswell v. Carothers, 863 S.W.2d 722, 729 (Tenn. Ct. App. 1993); Baker v. Lederle

Labs., 696 S.W.2d at 893.

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show that the affiant is competent to testify to the matters contained in the

affidavit.9 The courts may decline to consider affidavits that do not meet these

standards. See Keystone Ins. Co. v. Griffith, 659 S.W.2d at 366.

In addition to the requirements in Tenn. R. Civ. P. 56.05, Tenn. Code Ann.

§ 29-26-115 contains five substantive requirements for expert affidavits in

medical malpractice cases. The affiant must first demonstrate that he or she

satisfies the geographic and durational requirements in Tenn. Code Ann. § 29-26-

115(b). Second, the affiant must demonstrate that he or she practices in a

profession or specialty that makes his or her testimony relevant to the issues in the

case.10 Third, the affiant must assert familiarity with the recognized standard of

professional practice in the community where the defendant practices or in similar

communities.11 Fourth, the affiant must give an opinion concerning whether the

defendant acted with less than or failed to act with ordinary and reasonable care

in accordance with the proper standard of practice.12 Fifth, the affiant must give

an opinion concerning whether the defendant's negligence more likely than not

caused the plaintiff to suffer injuries that he or she would otherwise not have

suffered.13 The "more likely than not" standard has also been expressed in terms

of requiring plaintiffs in medical malpractice cases to prove causation in fact as

a matter of probability, not mere possibility.14

9

Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978).

10

Tenn. Code Ann. § 29-26-115(b). The affiant need not practice in the same specialty

as the defendant physician. Goodman v. Phythyon, 803 S.W.2d at 701-02.

11

Tenn. Code Ann. § 29-26-115(a)(1).

12

Tenn. Code Ann. § 29-26-115(a)(2).

13

Tenn. Code Ann. § 29-26-115(a)(3). Kilpatrick v. Bryant, 868 S.W.2d 594, 602 (Tenn.

1993) (the plaintiff must demonstrate that the defendant's negligence more likely than not caused

the injury).

14

Kilpatrick v. Bryant, 868 S.W.2d at 602 (causation in fact is a matter of probability not

possibility); White v. Methodist Hosp. South, 844 S.W.2d at 648-49 (the plaintiff must prove

more than a mere possibility); Whittemore v. Classen, 808 S.W.2d 447, 458 (Tenn. Ct. App.

1991) (a jury cannot base a verdict on "it might have been" but must find "it probably was"); St.

Martin v. Doty, 493 S.W.2d 95, 97 (Tenn. Ct. App. 1972) (courts cannot stretch "possibilities"

into "probabilities").

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DR. SCHLAFLY'S DECEMBER 15, 1994 AFFIDAVIT

The majority has concluded that Dr. Schlafly's December 15, 1994

"affidavit" is substantively deficient in three areas. First, it does not demonstrate

that Dr. Schlafly is competent to give an expert opinion under the locality rule in

Tenn. Code Ann. § 29-26-115(b). Second, it fails to describe the existing standard

of care in Nashville and similar communities or Dr. Schlafly's familiarity with this

standard. Third, it does not recite that Dr. Walwyn's negligence caused Mr.

Moore's injuries "with a reasonable degree of medical certainty." I concur only

with the majority’s conclusion concerning the standard of care in Nashville and

similar communities.

This court has admonished lawyers to couch their medical expert's

conclusions in the language of Tenn. Code Ann. § 29-26-115 in order to avoid just

the sort of interpretative disputes that are involved in this case. Gambill v. Middle

Tenn. Medical Ctr., 751 S.W.2d at 148. Careful practitioners have heeded this

advice, but it is not always possible to frame expert conclusions in the precise

words of the statute because of differences in the medical and legal vocabularies

and frames of reference.

Tenn. Code Ann. § 29-26-115 is not "holy writ," and it should never be so

rigidly applied that it requires the ritualistic incantation of its precise terms in

order to permit an injured party to maintain a malpractice claim against a health

care provider. The courts should expect substantial adherence to the language of

Tenn. Code Ann. § 29-26-115 but should never abandon their judicial powers of

reasonable interpretation and construction. At the summary judgment stage, any

reasonable doubt concerning the meaning or effect of an expert affidavit should

be resolved in the nonmoving party's favor.

Viewed in a light most favorable to the Moores, Dr. Schlafly's December

15, 1994 “affidavit” establishes that he is a board certified orthopaedic surgeon

in Missouri and that he has been practicing his specialty in and around St. Louis

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since 1985.15 This is sufficient to satisfy the geographic and durational

requirements of Tenn. Code Ann. § 29-26-115(b).

Dr. Schlafly’s statement and report also conclude that Dr. Walwyn's "breach

caused Tom Moore injuries he would not have otherwise suffered" and that "the

omission of intravenous antibiotics (except for the single dose), during the May

hospitalization at Tennessee Christian Medical Center, was probably a

contributing factor in the later development of Mr. Moore's bone infection."

While the report contains other references to "possibilities" and does not preface

Dr. Schlafly's opinion with the qualification that it is based on "a reasonable

degree of medical certainty," these two statements, taken in a light most favorable

to the Moores, should be sufficient to create a jury question on the issue of

causation.16

The only material shortcoming in Dr. Schlafly's December 15, 1994

"affidavit" is the omission of any reference to the appropriate recognized standard

of professional practice in Nashville or similar communities as required by Tenn.

Code Ann. § 29-26-115(a)(1). Dr. Schlafly's report does not state that he is

familiar with the standard of practice for orthopaedic surgeons in Nashville or

similar communities or that this standard requires antibiotic prophylaxis in clean

orthopaedic surgery. The report contains only a general reference to the

"recognized standard of care" and to a report that "the overwhelming number of

orthopaedic surgeons in the United States have chosen to adopt some type of

prophylaxis." The report does not link these general references to Middle

Tennessee.17

15

The curriculum vitae states that Dr. Schlafly completed his internship and residency in

1985 and that he was licensed to practice medicine in Missouri in 1985.

16

Expert opinions in medical malpractice cases must be to a reasonable degree of medical

certainty. Kilpatrick v. Bryant, 868 S.W.2d at 602. The concept of "reasonable degree of

medical certainty" is a legal, not medical, concept. While an expert's use of these words in laying

the foundation to his or her opinion is well-advised, no reported decision requires that medical

experts must use this precise phrase when stating an opinion. The phrase usually appears in a

lawyer's question, not in a medical expert's answer.

17

Dr. Schlafly stated that his opinion was based on the medical records he had been

provided. The majority seems to infer that his opinion was undermined because he did not have

all the available records at hand when he formed his opinion. The nature of the records relied

on by Dr. Schlafly goes to the weight of his opinion, not his competency to give an opinion.

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DR. SCHLAFLY'S JANUARY 30, 1995 AFFIDAVIT

The majority notes that the only difference between Dr. Schlafly's

December 15, 1994 and January 30, 1995 affidavits is that the latter "uses all the

appropriate 'buzz' words found in the statute and the rules." Thus, the majority

appears to concede, as well they must, that the January 30, 1995 affidavit meets

all the requirements of Tenn. R. Civ. P. 56.05 and Tenn. Code Ann. § 29-26-115.

I concur with this conclusion. It follows, therefore, that the January 30, 1995

affidavit, if entitled to consideration, establishes the existence of a material factual

dispute sufficient to defeat Dr. Walwyn's motion for summary judgment.

V.

CONSIDERATION OF THE JANUARY 30, 1995 AFFIDAVIT

The only remaining issue concerns the trial court's decision not to consider

Dr. Schlafly's January 30, 1995 affidavit because the Moores did not adequately

explain the reasons for their failure to submit a proper affidavit prior to the

hearing on Dr. Walwyn's summary judgment motion. The majority has affirmed

the trial court's decision because the second affidavit does not contain "new

evidence" and because it is "nothing more than the first affidavit dressed up." The

majority's reasoning is plainly at odds with our prior opinions permitting the

consideration of late-filed affidavits in opposition to motions for summary

judgment.

This court has specifically held that the "newly discovered evidence"

standard normally associated with motions for new trial should not be used in

summary judgment cases to exclude affidavits attached to timely filed Tenn. R.

Civ. P. 59.04 motions to alter or amend. Richland Country Club v. CRC Equities,

Inc., 832 S.W.2d 554, 557-58 (Tenn. Ct. App. 1991); Schaefer v. Larsen, 688

S.W.2d at 433. Accordingly, we have directed trial courts to look with favor on

Tenn. R. Civ. P. 59.04 motions filed before a summary judgment becomes final

Courts should not weigh the evidence in a summary judgment proceeding. Byrd v. Hall, 847

S.W.2d at 211.

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because the moving party is seeking an opportunity to try its case for the first

time.18

The Moores' Tenn. R. Civ. P. 59.04 motion was filed before the order

granting Dr. Walwyn's motion for summary judgment became final and did not

invoke the "newly discovered evidence" standard. Dr. Schlafly's second affidavit

was not intended to supply new evidence but rather to cure perceived deficiencies

in his first affidavit. Tenn. R. Civ. P. 56.05 specifically authorizes trial courts to

permit parties to supplement affidavits filed in summary judgment proceedings.

The trial court should have considered Dr. Schlafly's supplemental affidavit in this

case because it established that Dr. Walwyn had not carried his burden of

demonstrating the absence of genuine, material factual disputes.

__________________________________

WILLIAM C. KOCH, JR., JUDGE

18

We have not encouraged the same liberality with regard to affidavits attached to Tenn.

R. Civ. P. 60 motions filed after a summary judgment has become final. Braswell v. Carothers,

863 S.W.2d at 730 (the judgment was final and the movant relied on the newly discovered

evidence rule); Blair v. Johnson City Medical Ctr., 724 S.W.2d 370, 371 (Tenn. Ct. App. 1986)

(the requirements of Tenn. R. Civ. P. 60 were not met).

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