Estate of Kelly Joe Morgan Lynn v. State of Tennessee

01/09/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 15, 2017 Session

ESTATE OF KELLY JOE MORGAN LYNN v. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission for the Western Division

No. T20140890 James A. Hamilton, III, Commissioner

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No. W2017-00806-COA-R3-CV

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Claimant estate appeals the dismissal of its claim against the State related to the failure of

a State prison to provide medical care to an inmate. Following a trial, the Claims

Commission dismissed the claim for lack of subject matter jurisdiction. Discerning no

reversible error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission

Affirmed

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which ARNOLD B.

GOLDIN, J. and, JOE G. RILEY, SP. J., joined.

Mary Clemons, Nashville, Tennessee, for the appellant, Jannie Mildred Lynn and Shelley

Renae Lynn, on behalf of the Estate of Kelly Joe Morgan Lynn.

Herbert H. Slatery, III, Attorney General and Reporter; Andreé S. Blumstein, Solicitor

General; Pamela S. Lorch, Senior Counsel, for the appellee, State of Tennessee.

MEMORANDUM OPINION1

1

Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm,

reverse or modify the actions of the trial court by memorandum opinion when a formal

opinion would have no precedential value. When a case is decided by memorandum

opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and

shall not be cited or relied on for any reason in any unrelated case.

Background

Decedent Kelly Joe Morgan Lynn (“Decedent”) was an inmate in the custody of

the Tennessee Department of Correction at Northwest Correctional Complex

(“Northwest” or “the prison”) from approximately 2011 to 2013. Shortly after his release

from Northwest, Decedent died, allegedly from complications related to Hepatitis C.

Jannie Mildred Lynn and Shelley Renae Lynn, on behalf of Claimant/Appellant Estate of

Kelly Joe Morgan Lynn (“Claimant”), thereafter filed a claim and complaint in the

Tennessee Division of Claims Administration against the State for negligence in failing

to appropriately treat Decedent’s illness while he was incarcerated. On April 15, 2014,

the claim was transferred to the Tennessee Claims Commission (“Claims Commission”).

On June 18, 2014, the State filed a motion to dismiss on the basis that no proper

and timely good faith certificate was filed in connection with this action. The

Commissioner eventually granted the motion in part, dismissing all claims arising out of

negligent healthcare. The Claims Commissioner allowed the case to proceed as to any

remaining claims not involving healthcare liability.2 An amended complaint was filed,

and the case proceeded to trial on August 30, 2016.

The evidence at trial showed that although Decedent was diagnosed with Hepatitis

C while in prison as early as 2008, he was initially asymptomatic.3 Following the

diagnosis, Decedent was released from prison in August 2009 but returned after violating

parole in 2011. Following his reincarceration, Decedent was housed at Northwest. In

May 2011, Decedent underwent a medical assessment that showed that he was a

candidate for Hepatitis C treatment. Although Decedent requested treatment in August

2011 and was ultimately placed on a list for treatment in September 2012, it was

undisputed at trial that Decedent never received the treatment available for Hepatitis C

that is at issue in this case.

Decedent was eligible for parole in February 2012 but parole was denied.

Decedent was ultimately released from prison in July 2013. Following his release,

Decedent was hospitalized due to alleged complications from end-stage liver cirrhosis.

Decedent died on October 10, 2013. Decedent’s treating physician following his release

from incarceration, Kenny Lynn, M.D., testified by deposition that Decedent’s death

2

The Claims Commissioner’s decision to partially grant the State’s motion to dismiss on this

issue has not been raised as an issue on appeal. As such, we express no opinion as to the propriety of the

dismissal or whether the claims that were ultimately taken to trial should have likewise been dismissed as

involving healthcare liability.

3

According to Claimant’s appellate brief, they do not take issue with the facts as found by the

Claims Commissioner. Accordingly, many of the facts recited in this Opinion are taken from the Claims

Commissioner’s order.

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resulted from end-stage liver cirrhosis, for which timely Hepatitis C treatment would

have “improved the odds for long-term survival[.]”4

At trial, the deposition of Glen Babich, M.D. was also submitted as substantive

evidence. At the time of the events at issue in this case, Dr. Babich worked as an

associate regional medical director for Corizon, an independent contractor hired by the

State to supply physicians to inmates housed in Tennessee prisons.5 In March 2012, Dr.

Babich worked in Northwest for three to five days as a fill-in physician. According to Dr.

Babich, he did not examine Decedent but reviewed his medical file. Decedent’s medical

files indicated that Decedent was a possible candidate for Hepatitis C treatment as early

as August 2011, but that, as of March 2012, Decedent had not yet been fully approved for

treatment. Dr. Babich testified that treatment was not scheduled immediately following

the determination of his candidacy because of the possibility that Decedent would be

released on parole in February 2012. According to Dr. Babich, the possible release meant

that Decedent “would not have sufficient time to take treatment.”6 Stopping treatment

prior to completion has “a very, very poor success rate” and can result in a “worse

outcome than if you waited.” As such, it is not recommended to start treatment where the

patient will be unable to complete it. Dr. Babich testified that Decedent fell into this

category of patients prior to his examination of the medical file in March 2012.

Once his parole was denied, however, Dr. Babich completed paperwork and

testing to place Decedent on an approved list for treatment.7 The medical records indicate

that Decedent was ultimately approved for treatment by the prison’s medical staff on

September 7, 2012. According to Dr. Babich, however, approval by the inmate’s home

prison’s medical staff was not the final step prior to Decedent obtaining the treatment at

issue in this case. Rather, Dr. Babich testified that many treatments, including the

Interferon indicated to treat Decedent’s Hepatitis C, were only administered at one

Tennessee prison: Deberry Special Needs Facility in Nashville, Tennessee (“Deberry”).

Transfers of patients to Deberry for this treatment were limited by the number of spaces

available.8 As such inmates are typically placed on a waiting list and only “called up”

once a bed is available. Dr. Babich testified that the ultimate decision of whether to

request a transfer of an inmate from a home prison to Deberry for Hepatitis C treatment

4

Dr. Lynn is Decedent’s relative.

5

Dr. Babich could not recall whether all of the nurses in all prisons were also employed by

Corizon at the time of the events at issue but stated that any actions taken by nursing staff were on the

direction of Corizon physicians.

6

Dr. Babich testified that the treatment required a minimum of six months of active treatment and

approximately six months of follow-up, plus approximately three months of testing to determine if the

patient is “really [a] candidate[] and [had] no contraindications.” As such, Dr. Babich testified that full

treatment required nine to eighteen months.

7

Dr. Babich testified that at that time, Decedent was required to undergo mental health and blood

testing before treatment could be recommended.

8

According to Dr. Babich, only approximately ten beds are available at Deberry for the treatment

at issue in this case.

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was made by the physicians at Deberry, not the inmate’s home prison, the regional

medical director, nor the prison warden.9 According to Dr. Babich, nowhere in

Decedent’s medical records is there an indication that a physician at Deberry ever

approved a transfer of Decedent to Deberry for treatment of his Hepatitis C. Finally, Dr.

Babich testified that the physicians making these decisions at Deberry during the relevant

time were employees of Corizon, rather than the State.

Warden Henry Steward testified by deposition as well. In general, Warden

Steward confirmed that he had no authority to transfer a patient to Deberry for treatment

absent an order from a Deberry physician. Specifically, Warden Steward testified that in

order to be transferred to Deberry, the warden of the prison where the inmate is currently

housed must issue a “gate pass” allowing the inmate to move between prisons. According

to Warden Steward, however, the warden does not issue a gate pass for an inmate to be

transferred to Deberry unless a Deberry physician has made a decision that the inmate

should be transferred for purposes of medical treatment.10 Finally, Warden Steward

detailed some specific Tennessee Department of Correction Policy documents that

supported his testimony regarding the procedure used to transfer inmates to Deberry.

At the conclusion of Claimant’s proof, the State moved to dismiss on the basis that

Claimant failed to present any evidence of negligence.11 The Claims Commissioner

initially denied the motion, noting that some medical records had been presented that it

had not had the chance to review. Following the conclusion of trial, however, the

Commissioner issued an order of dismissal based upon the earlier motion to dismiss and

the record as whole. The Commissioner found that while Decedent was diagnosed with

Hepatitis C and met the eligibility requirements for treatment, the determination of

whether Decedent would be transferred to a facility able to treat Decedent’s illness rested

solely with Corizon, a privately-owned contractor, based upon availability of beds at the

treatment facility. The Commissioner further found that no Corizon contractor ever

issued an order to transport Decedent to the treatment facility. Thus, any negligence in

9

Other than availability of beds for treatment, Dr. Babich further testified that an inmate’s refusal

to take part in testing might cause Deberry physicians to refuse to advance a patient on the waiting list;

Dr. Babich testified that while Decedent’s medical records indicated that Decedent expressed a desire for

treatment as early as 2011, in January 2013, Decedent refused medical testing “that would have been

necessary for him to continue on treatment.”

10

Warden Steward testified that the same process applied when an inmate requested early release

for medical reasons: the determination of whether the inmate was eligible for early release was made by

medical staff.

11

Although the State cited Rule 50 of the Tennessee Rules of Civil Procedure regarding directed

verdicts, this Court has repeatedly held that directed verdicts have no place in bench trials. See Burton v.

Warren Farmers Co-op., 129 S.W.3d 513, 520 (Tenn. Ct. App. 2002) (“[M]otions for directed verdicts

have no place in bench trials, while Tenn. R. Civ. P. 41.02(2) motions have no place in jury trials.”). As

such, the proper motion was for involuntary dismissal under Rule 41.02 of the Tennessee Rules of Civil

Procedure. Id. at 522 (applying the standard under Rule 41.02 rather than the standard under Rule 50).

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failing to treat Decedent was attributed not to the State but to a private contractor. The

Commissioner therefore ruled that it lacked jurisdiction “to determine any matter

concerning the medical care or services rendered to [Decedent] by Corizon employees.”

The Commissioner also ruled that no negligence had been shown to be committed by the

prison warden, and no private right of action was conferred by Tenn. Code Ann. § 9-8-

307(a)(1)(N).12

Claimant thereafter filed a motion for an en ban hearing before the Claims

Commission. On April 6, 2016, the motion for an en banc hearing was denied. Claimant

now appeals to this Court.

Issues Presented

Claimant raises two issues, which are taken from its brief:

1. Whether the Claims Commissioner erred in ordering the dismissal of the

Claim and denying an en banc review of the Claims Commissioner’s order.

2. Whether the law in Tennessee confers a private right of action in favor of

Claimant against the State.

Standard of Review

Here, the Claims Commissions granted the State’s motion for involuntary

dismissal under Rule 41.02 of the Tennessee Rules of Civil Procedure. Proceedings

before the Claims Commission are generally governed by the Tennessee Rules of Civil

Procedure. Tenn. Code Ann. § 9-8-403(a)(1) (“These proceedings shall be conducted

pursuant to the Tennessee Rules of Civil Procedure where applicable and otherwise

pursuant to rules and regulations promulgated by the commission.”). Appeals to this

Court are likewise governed by the Tennessee Rules of Appellate Procedure. Id. (“The

decisions of the individual commissioners or, when rendered, decisions of the entire

commission regarding claims on the regular docket may be appealed to the Tennessee

court of appeals pursuant to the same rules of appellate procedure which govern

interlocutory appeals and appeals from final judgments in trial court civil actions[.]”).

Because the Claims Commissioner’s ruling resulted in dismissal of the claim,

Claimant asserts that this Court must consider this case under the rather stringent

standard applicable to motions to dismiss under Rule 12.02 of the Tennessee Rules of

Procedure. In reviewing the grant of motion for involuntary dismissal, however the

applicable standard is as follows:

12

The Commissioner also found that it lacked jurisdiction over any claims related to the United

States Constitution, as discussed infra.

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When a motion to dismiss is made at the close of a plaintiff's proof in a

non-jury case [under Rule 41.02], the trial court must impartially weigh the

evidence as though it were making findings of fact and conclusions of law

after all the evidence has been presented. See City of Columbia v. C.F.W.

Constr. Co., 557 S.W.2d 734, 740 (Tenn.1977). If a plaintiff's case has not

been established by a preponderance of the evidence, then the case should

be dismissed if the plaintiff has shown no right to relief on the facts found

and the applicable law. Id.; Atkins v. Kirkpatrick, 823 S.W.2d 547, 552

(Tenn.Ct.App.1991). The standard of review of a trial court’s decision to

grant a Rule 41.02 involuntary dismissal is governed by Rule 13(d) of the

Tennessee Rules of Appellate Procedure. Atkins, 823 S.W.2d at 552.

Building Materials Corporation v. Britt, 211 S.W.3d 706, 711 (Tenn. 2007). The

standard of review applicable to involuntary dismissals is therefore identical to the

standard applicable in appeals from bench trials. See Tenn. R. App. P. 13(d)

(distinguishing the standard applicable where a jury is empaneled versus where the trial

court acts as fact-finder). Thus, we apply the Rule 13(d) standard regardless of whether

the Claims Commissioner’s decision is construed as granting a motion for involuntary

dismissal or simply as a dismissal following a bench trial. Consequently, we review the

trial court’s findings of fact de novo with a presumption of correctness. Id. The trial

court’s legal conclusions, however, are afforded no such deference. Id. Questions of

subject matter jurisdiction are issues of law that are reviewed de novo. See Nelson v.

Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999).

Discussion

A brief discussion of the history and subject matter jurisdiction of the Claims

Commission is helpful in this case. As the Tennessee Supreme Court explained:

Pursuant to its constitutional power to provide for suits against the state, the

legislature created the Tennessee Claims Commission in 1984 to hear and

adjudicate certain monetary claims against the State of Tennessee. See

Tenn. Code Ann. §§ 9-8-301 to 307 (1999). While the Claims Commission

has exclusive jurisdiction to hear claims arising against the state, cf. Tenn.

Code Ann. § 20-13-102(a) (1994), this jurisdiction is limited only to those

claims specified in Tennessee Code Annotated section 9-8-307(a). If a

claim falls outside of the categories specified in section 9-8-307(a), then the

state retains its immunity from suit, and a claimant may not seek relief from

the state. Cf. Hill v. Beeler, 199 Tenn. 325, 329, 286 S.W.2d 868, 869

(1956) (stating that “except as the Legislature of the State consents there is

no jurisdiction in this Board of Claims to entertain suits against the State”).

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Steward v. State, 33 S.W.3d 785, 790–91 (Tenn. 2000) (footnote omitted). Section 9-8-

307 provides, in relevant part:

The commission or each commissioner sitting individually has exclusive

jurisdiction to determine all monetary claims against the state based on the

acts or omissions of “state employees,” as defined in § 8-42-101, falling

within one (1) or more of the following categories:

* * *

(E) Negligent care, custody and control of persons; . . . .

Tenn. Code Ann. § 9-8-307(a)(1). The Tennessee Supreme Court has previously

recognized that section 9-8-307(a)(1)(E) may apply to “injuries to persons confined in

penal institutions, residences, or health facilities maintained by the state.” Steward, 33

S.W.3d at 792 (citing Learue by Learue v. State, 757 S.W.2d 3, 5 (Tenn. Ct. App.

1987)). As such, Claimant argues that the State’s negligence in failing to provide medical

treatment is a cognizable claim under section 9-8-307(a)(1)(E).

In contrast, the State asserts that Claimant failed to present proof that any “state

employees” committed negligence in this case, as required by the plain language of

section 9-8-307(a)(1). According to the State, all of the alleged negligence in this case

was committed not by state employees but by the employees of an independent

contractor. As such, the State contends that the trial court correctly found that no

evidence had been presented that the negligence of a state employee caused Decedent’s

alleged injuries, as required to impose liability in the Claims Commission.

The term “state employee” is defined by Tennessee Code Annotated section 8-42-

101 as, inter alia, “any person who is employed in the service of and whose

compensation is payable by the state, or any person who is employed by the state whose

compensation is paid in whole or in part from federal funds[.]” Tenn. Code Ann. § 8-42-

101(3)(A). The statute makes clear, however, that the definition “does not include any

person employed on a contractual or percentage basis.” Id. (noting some exceptions not

applicable in this case). As such, this Court has previously held that the negligence of

independent contractors employed by the State is not a cognizable claim in the Claims

Commission. See generally Martin v. State, No. M1999-01642-COA-R3-CV, 2001 WL

747640, at *1–*3 (Tenn. Ct. App. July 5, 2001) (holding that the Claims Commission

correctly declined to exercise jurisdiction over the claim where it was undisputed that the

alleged negligence was committed by independent contractors rather than state

employees). Thus, where the only negligence was the negligence of an independent

contractor or its employees, the Claims Commission must dismiss the claim as outside its

subject matter jurisdiction.

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A highly analogous situation occurred in Younger v. State, 205 S.W.3d 494

(Tenn. Ct. App. 2006). In Younger, the plaintiff alleged that he was negligently treated

by medical staff while an inmate in a Tennessee prison. Id. at 495. As such, the plaintiff

filed a claim against the State in the Claims Commission. The State denied, however, that

any of the allegedly negligent medical treatment was provided by state employees, as

required to confer subject matter jurisdiction on the Claims Commission. The Claims

Commission later granted summary judgment in favor of the State on this issue. Id. at

497.

In affirming the judgment of the Claims Commission, this Court first noted that

there was no dispute that the medical treatment at issue had been provided by

independent contractors, as allowed by Tennessee law. Id. at 498–99 (citing Tenn. Code

Ann. § 41-24-101, et seq. (allowing the State to employ independent contractors to

perform prison functions with certain limitations)). Because the negligence had not been

committed by state employees, we held that the Claims Commission lacked jurisdiction

to adjudicate the claim. Under these circumstances, we explained that “the proper

defendant for negligence claims arising from the action of private contractors, or their

employees, in operating correctional facilities is the contractor, and not the State.” Id. at

499. As such, the Claims Commissioner’s dismissal of the action was affirmed. Id.

The same is true in this case. Here, the evidence presented at trial and found by the

Claims Commissioner was that the decision as to whether an inmate would be transferred

to the treatment facility lay solely with Deberry physicians, who are undisputedly the

employees of an independent contractor. Although Claimant asserts in its brief that the

warden was the person authorized to “approve [Decedent] for a gate pass” to the

treatment facility, Warden Steward testified at trial that a gate pass authorizing the

transfer of an inmate to the treatment facility could only be issued after a physician made

a decision that an inmate should be transferred for purposes of medical treatment. Dr.

Babich likewise testified that the ultimate decision of whether an inmate would be

transferred to treatment at Deberry was made by Deberry’s physicians, who were not

State employees. Thus, all of the decisions regarding treatment were made by physicians

rather than prison staff such as the warden. These physicians, whether at Decedent’s

home prison, Northwest, or Deberry were employed by Corizon, rather than the State.13

Finally, we note that prison policy documents contained in the record support the

testimony of both Dr. Babich and Warden Steward, as these documents state that the

Deberry medical director has “authority over admissions and discharges to [Deberry].”

Tenn. Dep’t Corr. Policy 113.12(VI)(A)(2). Thus, without the approval of the Deberry

contractor physicians, no transfer for the purposes of medical treatment could be

13

The Claims Commissioner specifically found that the physicians at Northwest transmitted

Decedent’s medical information to physicians at Deberry “so that he might be placed on the list of

candidates seeking treatment.” As previously discussed, Claimant does not take issue with the Claims

Commission’s findings of fact.

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authorized. In sum, the failure to authorize treatment in this case, the allegedly negligent

conduct at issue, was committed not by State employees but by the employees of an

independent contractor. As such, like in Younger, we must conclude that the Claims

Commission properly dismissed Claimant’s action regarding the allegedly negligent

medical care for lack of jurisdiction.

Claimant contends, however, that the Claims Commission retained jurisdiction

pursuant to another provision of section 9-8-307(a)(1), which provides that the Claims

Commission has jurisdiction to consider claims against the State related to the

“[n]egligent deprivation of statutory rights created under Tennessee law[.]” Tenn. Code

Ann. § 9-8-307(a)(1)(N). In support, Claimant asserts that the actions of the State in this

case violated Tennessee Code Annotated section 41-1-104, which provides as follows:

“The custody, welfare, conduct and safekeeping of the inmates shall be the responsibility

of the warden, who will examine into the affairs of the institution daily to assure that

proper standards are maintained.” Tenn. Code Ann. § 41-1-104(b). In support, Claimant

points to prison policies effective at the time of the events in this case requiring wardens

to transfer ill inmates for medical treatment or release the inmates. Thus, Claimant

contends that the warden, an undisputed State employee, violated this policy, thereby

conferring subject matter jurisdiction on the Claims Commission.

Respectfully, we cannot agree. In order to prevail on this type of claim, “[t]he

claimant must prove under this subdivision (a)(1)(N) that the general assembly expressly

conferred a private right of action in favor of the claimant against the state for the state’s

violation of the particular statute’s provisions.” Id. Where a statute does not expressly

provide a private right of action, the Claims Commission lacks subject matter jurisdiction

to entertain a claim involving the negligent deprivation of that right. See Brown v. State,

333 S.W.3d 102, 106 (Tenn. Ct. App. 2010) (affirming the dismissal of a claim for lack

of subject matter jurisdiction where the statute did not expressly confer a private right of

action). Claimant directs this Court to no language in section 41-1-104 or its related

statutes that expressly confers a private right of action for the alleged violation of section

41-1-104(b). While Claimant asserts that “it is repugnant to suggest that the State [] does

not have or has not created a private right of action against denying an inmate necessary

and vital medical treatment,” we simply cannot infer a private right of action where none

was expressly provided for by the Tennessee General Assembly. As such, the Claims

Commission did not err in dismissing any claim arising from sections 9-8-307(a)(1)(N)

and 41-1-104(b) for lack of subject matter jurisdiction.

Claimant also asserts that the provision of medical care was a non-delegable duty

required of the State in the context of prisons under the Eight Amendment of the United

States Constitution, citing federal law. See West v. Atkins, 487 U.S. 42, 56, 108 S. Ct.

2250, 2259, 101 L. Ed. 2d 40 (U.S. 1988) (“Contracting out prison medical care does not

relieve the State of its constitutional duty to provide adequate medical treatment to those

in its custody, and it does not deprive the State’s prisoners of the means to vindicate their

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Eighth Amendment rights.”). As an initial matter, we note that no Eighth Amendment

claim was raised in Claimant’s initial claim or amended claim. Instead, it appears that this

claim was raised for the first time in Claimant’s proposed findings of fact and

conclusions of law, which was filed following the hearing in this case and the conclusion

of the proof.14 Additionally, Claimant’s Eight Amendment argument, was not included in

any fashion in Claimant’s brief to this Court but was raised to this Court for the first time

at oral argument.

The Tennessee Supreme Court has stated: “We are of the opinion that there is little

difference between an issue improperly raised before the trial court at the last minute and

one that was not raised at all.” In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001)

(involving a constitutional question). Likewise issues may be waived where the

appellant’s brief fails to include an argument on the issue satisfying the rules of appellate

procedure. Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012). This maxim holds true

even of arguments involving the constitutionality of statutes or conduct. See Adoption of

E.N.R., 42 S.W.3d at 32 (involving an attack to the constitutionality of a statute); State v.

Bane, 853 S.W.2d 483, 488 (Tenn. 1993) (“[D]efendant’s failure to raise the issues

asserted on appeal as unconstitutional amounts to a waiver of those issues for the

purposes of appellate review[.]”); State v. Davis, No. 03C01-9712-CR-00543, 1999 WL

135054, at *13 (Tenn. Crim. App. Mar. 15, 1999) (holding that the defendant’s argument

that his Eighth Amendment rights were violated was waived where the defendant failed

to properly brief the argument).15

14

The entirety of the argument contained in Claimant’s proposed findings of fact and conclusions

of law regarding the Eighth Amendment is as follows:

The Federal and State Courts have consistently held that the government has an

obligation born of the U.S. Const. amend[.] VIII to provide medical care for those whom

it is punishing by incarceration. An inmate must rely on prison authorities to treat his

medical needs. If the authorities fail to do so, those needs will not be met. Estelle v.

Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 ([] 1976 []). This claim sounds in

negligence. . . .

But see Estelle, 429 U.S. at 105–06 (holding that “in the medical context, an inadvertent failure to provide

adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ or to be

‘repugnant to the conscience of mankind’” as required to make out an Eighth Amendment claim). The

State responded to Claimant’s Eighth Amendment argument by contending that the Claims Commission

lacked jurisdiction over a claim involving the violation of the United States Constitution, discussed infra.

15

Rather than raise an argument concerning the Eighth Amendment of the United States

Constitution, Claimant’s brief cites only Article I, section 8 of the Tennessee Constitution and the

Tennessee Human Rights Act. From our review of the record on appeal, neither of these authorities was

cited before the Claims Commission. Moreover, the argument contained in Claimant’s brief concerning

these authorities is no more than skeletal. These arguments are therefore waived. See Sneed v. Bd. of

Prof'l Responsibility of Sup.Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“[W]here a party fails to develop an

argument in support of his or her contention or merely constructs a skeletal argument, the issue is

waived.”). Claimant also argues in the statement of issues section of its brief that the Claims Commission

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Despite the eleventh-hour introduction of this argument, the Claims Commission

did rule on the argument, finding that it had no jurisdiction over a constitutional claim.

See Shell v. State, 893 S.W.2d 416, 419–20 (Tenn. 1995) (citing Daniels v. Williams,

474 U.S. 327, 334 (1986)) (holding that the Tennessee General Assembly’s amendment

to Tennessee Code Annotated § 9-8-307(a)(1)(N), enacted in light of the Daniels

decision, removed any cause of action before the Claims Commission for negligent

deprivation of a constitutional right); Womble v. State, No. E2012-01711-COA-R3-CV,

2013 WL 3421925, at *8 (Tenn. Ct. App. July 3, 2013) (“[T]he Commission’s

jurisdiction over claims arising from negligent acts of state actors does not extend to acts

that allegedly deprive the claimant of a constitutional right.”). Although Claimant

submitted supplemental authorities to this Court following oral argument regarding its

contention that the Eighth Amendment was violated in this case, Claimant has failed to

offer any argument or authorities regarding the Claims Commissioner’s ruling that it

lacked subject matter jurisdiction to address the merits of this type of claim. We therefore

conclude that any argument that the Claims Commission erred in not finding in favor of

Claimant with regard to the alleged violation of the Eighth Amendment is waived by the

failure to properly brief this argument.

In conclusion, the evidence presented at trial does not preponderate against the

Claims Commissioner’s finding that Claimant presented no evidence to establish that

Decedent suffered injuries as the result of negligence committed by State employees.

Rather, it appears that the alleged negligence at issue in this case is attributable to the

employees of an independent contractor. Like in Younger, the proper defendant was

therefore “the contractor, and not the State.” Younger, 205 S.W.3d at 499. Likewise,

Claimant failed to show that the Claims Commission erred in dismissing for lack of

subject matter jurisdiction any claims arising from the negligent deprivation of a statutory

right or the United States Constitution. All other arguments not raised before the Claims

Commissioner and/or raised in no more than a conclusory fashion on appeal are waived.

Consequently, the Claims Commissioner’s decision is affirmed.

Conclusion

The judgment of the Tennessee Claims Commission is affirmed, and this cause is

remanded for all further proceedings as may be necessary and are consistent with this

Opinion. Costs of this appeal are taxed to Appellant, Estate of Kelly Joe Morgan Lynn,

and its surety.

erred in denying its request for an en banc hearing. This issue is not argued in the body of Claimant’s

brief. It is therefore likewise waived. See Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000) (“[A]n

issue is waived where it is simply raised without any argument regarding its merits.”).

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_________________________________

J. STEVEN STAFFORD, JUDGE

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