Pamela Salas v. John David Rosdeutscher

01/09/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 7, 2023 Session

PAMELA SALAS V. JOHN DAVID ROSDEUTSCHER ET AL.

Appeal from the Circuit Court for Davidson County

No. 18C1229 Kelvin D. Jones, Judge

Nos. M2021-00449-COA-R3-CV;

M2022-00130-COA-R3-CV

Plaintiff’s attorneys appeal the trial court’s imposition of sanctions against them in the

amount of $68,617.28 and the denial of their second motion to disqualify the trial court

judge. We affirm the trial court’s discretionary decision to impose sanctions, but we vacate

the amount of sanctions awarded and remand for the trial court to calculate the reasonable

amount of monetary sanctions in keeping with the procedures and considerations outlined

in this opinion. We have determined that Plaintiff’s attorneys’ issue regarding the trial

court’s denial of their second motion to recuse is moot. Finally, we decline to award

attorney’s fees on appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in

Part and Vacated and Remanded in Part

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Mark Andrew Hammervold, Elmhurst, Illinois, for the appellant, Afsoon Hagh.

Brian P. Manookian, Nashville, Tennessee, pro se.

Dixie W. Cooper and Matthew Hawkins Cline, Brentwood, Tennessee, for the appellees,

John David Rosdeutscher and Cumberland Plastic Surgery P.C.

OPINION

FACTUAL AND PROCEDURAL HISTORY

This appeal concerns an order for discovery sanctions against attorneys Brian P.

Manookian and Afsoon Hagh. The underlying healthcare liability case has been

voluntarily dismissed by the plaintiff; however, due to allegations of discovery abuses and

attorney misconduct, the trial court retained jurisdiction over the issue of sanctions. See

Menche v. White Eagle Prop. Grp., LLC, No. W2018-01336-COA-R3-CV, 2019 WL

4016127, at *6 (Tenn. Ct. App. Aug. 26, 2019) (“[I]n the typical case wherein the trial

court enters judgment for one party, the judgment does not become final unless and until a

pending motion for sanctions is adjudicated.”).

A brief discussion of the facts of the underlying healthcare liability lawsuit is

necessary to understand the discovery issues. Pamela Salas (“Plaintiff”) experienced a

wound-healing complication after a cosmetic surgery performed by Dr. John David

Rosdeutscher in January 2017. Thereafter, Plaintiff received additional care and surgeries

from Dr. Kent Higdon. Plaintiff retained the law firm of Cummings Manookian PLC to

represent her, and she filed a health care liability action against Dr. Rosdeutscher and

Cumberland Plastic Surgery P.C. (collectively, “Defendants”) in May 2018. Plaintiff was

initially represented by attorneys Brian Cummings, Brian Manookian, and Afsoon Hagh;

however, when the Cummings Manookian PLC law firm dissolved, Ms. Hagh and Mr.

Manookian (collectively referred to as “Plaintiff’s attorneys”) continued to represent

Plaintiff.1

The issue at the center of this sanctions dispute is whether Plaintiff’s attorneys made

false statements and misrepresentations to the trial court, orally and in discovery responses,

regarding Dr. Higdon’s status as an expert witness and their knowledge of Dr. Higdon’s

opinions about the care Plaintiff received from Dr. Rosdeutscher. The communications

between Plaintiff’s attorneys and Dr. Higdon began in early 2018, before the lawsuit was

filed. In February 2018, Dr. Higdon’s administrative assistant emailed Ms. Hagh stating,

in part, “If you want to retain Dr. Higdon as an expert witness, we require a payment of

$1,500 for the first hour of review. ” Ms. Hagh followed up stating, “At this time, we are

not in a position to hire an expert witness. If that changes, I will most certainly let you

know.” On March 28, 2018, Ms. Hagh emailed Dr. Higdon’s assistant stating, “I will be

sending the records and payment in the next 7-10 days so that we can retain Dr. Higdon as

an expert.” On April 26, 2018, Ms. Hagh sent Dr. Higdon a letter and some of Plaintiff’s

medical records, stating, “Once you have completed your review of the records and formed

your resulting opinions, please contact me . . . I do not ask that you provide a written

report.” The letter went on to provide a timeline of the medical care Dr. Rosdeutscher

provided to Plaintiff. The closing sentence of the letter stated, “Again, I do not need a

written report from you upon completion of your review of the medical records and

operative reports.”

1

Mr. Manookian was temporarily suspended from the practice of law in September 2018. TENN. SUP.

CT. ORDER, No. M2019-00630-SC-BAR-BP, Order Reinstating Temporary Suspension (filed Oct. 11,

2019). On May 17, 2019, the Tennessee Supreme Court entered an Order dissolving the temporary

suspension of Mr. Manookian’s law license subject to his ongoing compliance with certain conditions. Id.

On October 11, 2019, Mr. Manookian’s suspension from the practice of law was reinstated. Id.

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Ms. Hagh and Dr. Higdon met on May 10, 2018, at the office of Cummings

Manookian PLC. Ms. Hagh provided Dr. Higdon with a $1,500 check that noted in the

memo line, “SALAS – EXPERT REVIEW.” In accordance with Tenn. Code Ann. § 29-

26-122, Dr. Higdon signed a statement supporting Plaintiff’s certificate of good faith.2 Ms.

Hagh denies that Dr. Higdon provided her with any document he prepared reflecting his

opinions at this May 10, 2018 meeting, but Dr. Higdon testified that he “believed” he

provided a document to Ms. Hagh at the meeting on May 10:

Q: Did you prepare a document for Ms. Hagh following your review of the

records she sent you?

A: I believe I did.

Q: I understand – how did you provide that document to Ms. Hagh?

A: I met her at her office and gave that to her. And I signed a form for her

at that time.

Q: You recall two documents at that meeting with Ms. Hagh, a document

that you had authored for her, correct?

A: Yeah. I think it was like a page, and I also signed something that was

official or something like that for her.

Dr. Higdon was not able to locate a copy of the document that he believes he drafted and

provided to Ms. Hagh, and Ms. Hagh denies the document exists.

In August 2018, Plaintiff provided discovery responses to Defendants’

interrogatories. Defendants’ first and second interrogatories and Plaintiff’s responses are

as follows:

2

The certificate of good faith stated:

Counsel for the Plaintiff consulted with one (1) or more experts who have provided

a signed written statement confirming that upon information and belief they:

(A) Are competent under § 29-26-115 to express opinion(s) in the case; and

(B) Believe, based on the information available from the medical records reviewed

concerning the care and treatment of the Plaintiff for the incident(s) at issue and, as

appropriate, information from the Plaintiff or others with knowledge of the incident(s) at

issue, that there are facts material to the resolution of the case that cannot be reasonably

ascertained from the medical records or information reasonably available to the Plaintiff or

Plaintiff’s counsel; and that despite the absence of this information there is a good faith

basis for maintaining the action as to each Defendant consistent with the requirements of

§ 29-26-115. Refusal of the Defendants to release the medical records in a timely fashion,

or where it is impossible for the Plaintiff to obtain the medical records waives the

requirement that the expert review the medical records prior to expert certification.

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1. With respect to each witness whom you will or may call as an expert to give

opinion testimony in the trial of this matter (whether in person or by deposition),

please state the following, consistent with Tenn. R. Civ. P. 26.02(4):

(a) The name and address of the witness;

(b) The field in which the witness is to be offered as an expert;

(c) A summary of the witness’s qualifications, including a list of all publications

authored in the previous ten years;

(d) The substance of the facts to which the witness is expected to testify;

(e) The substance of the opinions to which the witness is expected to testify and

a summary of the grounds for each such opinion;

(f) The caption, court, and case number for all other cases in which the witness

has testified as an expert during the previous four years;

(g) The compensation to be paid to the witness for each aspect of involvement

in this case;

(h) The date when the expert was first contacted;

(i) The date the expert was formally retained to serve in any capacity in this

case;

and

(j) The date when each expert was sent each medical, hospital, or other records

or materials in this case.

ANSWER:

Expert witnesses have not been retained at this time. This Interrogatory

will be supplemented pursuant to the Tennessee Rules of Civil Procedure

and applicable scheduling order.

2. With respect to any treating health care providers who are expected

to testify as to: (1) the standard of care applicable to any Defendant in this

matter in caring for patients such as you, or (2) the cause, nature, and/or

extent of any alleged injuries, please state the following:

(a) The name, phone number, email address, and address of the

witness;

(b) The field in which the witness is expected to testify;

(c) A summary of the witness’s qualifications;

(d) The substance of the facts to which the witness is expected to

testify; and

(e) The substance of the opinions to which the witness is expected to

testify and a summary of the grounds for each such opinion.

ANSWER:

-4-

Kent Higdon, M.D.

Vanderbilt University Department of Plastic Surgery

...

The Plaintiff objects to this Interrogatory as Dr. Higdon is a

treating physician and ordinary witness, therefore the

information requested in (b)-(e) is not required by the Tennessee

Rules of Civil Procedure. See[] Alessio v. Crook. Subject to and

without waiving the objection, Dr. Higdon’s qualifications can be

found here:

...

Dr. Higdon is a board-certified plastic surgeon and his medical

records, which have previously been provided to counsel for

Defendant, include some, but not all, of the information

responsive to this request. Any additional information and/or

opinions can be obtained during a discovery deposition.

According to a case management conference order entered on June 17, 2019, the

deadlines regarding expert witness disclosures were as follows:

 The Plaintiff’s Rule 26.02(4) disclosures shall be due by November 15,

2019, so long as Dr. Kent Higdon has been deposed by September 1,

2019.

 The Defendants’ Rule 26.02(4) disclosures shall be due by February 1,

2020.

 Depositions of expert witness shall be completed by June 1, 2020.

Mr. Manookian deposed Dr. Higdon on September 24, 2019. Counsel for Vanderbilt

University Medical Center was present for the deposition, but Dr. Higdon was not

personally represented by counsel. Relevant portions of Dr. Higdon’s deposition are as

follows:

Q: Dr. Higdon, do you agree that you treated Pamela Salas at Vanderbilt

University Medical Center?

A: Yes, sir.

Q: Do you agree that you are a treating physician for Pamela Salas at

Vanderbilt University Medical Center?

A: Yes, sir.

Q: Do you agree that you developed opinions and observations about Pamela

Salas’s condition as a result of acting as a treating physician for Pamela

Salas?

A: Yes, sir.

Q: You haven’t been retained as a consultant or an expert by anyone -- by

any attorney acting in this case; correct?

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A: Not to my knowledge.

Q: You don’t have a contract with any attorney in this case for you to provide

services in exchange for money; correct?

A: I don’t believe so.

...

Q: Do you agree that at the time that you saw Pam Salas on April 22, 2017,

she had suffered nipple loss and partial breast loss as a result of an operation

performed by Dr. Rosdeutscher?

A: Yes.

MR. CLINE: Object to the form.

BY MR. MANOOKIAN: Q Do you agree that Pamela Salas suffered nipple

loss as a result of improper care provided by Dr. Rosdeutscher?

MR. CLINE: I’m going to object here. This is something that was addressed

before the deposition. This is outside the course and scope of the doctor’s

treatment of this patient. As far as I know, he’s not seen the record from Dr.

Rosdeutscher and wouldn’t have a basis to comment. And so I’m going ask

the witness if he intends to comment, that we leave this issue off until an

expert disclosure can be prepared by you, served on us, so that we can prepare

for this deposition. If you’d like to continue with other topics, that’s

acceptable.

MR. MANOOKIAN: No, I’m going to ask him the questions that- I- want to

ask today.

MR. CLINE: Then we’re going [to] stop the deposition.

MR. MANOOKIAN: Okay. The deposition’s terminated. You’ll need to file

a motion promptly.

Defendants filed a Motion for Protective Order or in the Alternative Motion to

Compel Related to the Deposition of Dr. Kent Higdon stating that, “The key issue

presented by this motion is whether Dr. Higdon is an expert witness, requiring an expert

disclosure, or a treating physician.” In response to the motion for protective order, Mr.

Manookian asserted that Dr. Higdon was solely a treating physician, not an expert witness,

and that no expert disclosure was warranted. Mr. Manookian reiterated this position at the

hearing on the motion for protective order on November 8, 2019, stating to the court, “[Dr.

Higdon is] not my expert, I don’t know what his opinions are.” Based on Mr. Manookian’s

statements, the trial court denied the motion to compel, extended the expert deadline,

allowed counsel to continue the deposition of Dr. Higdon, and required Defendants to

reimburse Plaintiff’s attorneys for “the actual amount paid to Dr. Higdon for rescheduling

this deposition.”

Following the hearing, Defendants served additional discovery requests on Plaintiff

seeking all information, documents and correspondence exchanged between Dr. Higdon

and Plaintiff’s attorneys, including a statement as to whether Dr. Higdon was provided with

Dr. Rosdeutcher’s medical records. Ms. Hagh responded to the discovery responses on

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November 15, 2019, producing some documents. Defendants then issued a subpoena duces

tecum to Dr. Higdon seeking any documents he exchanged with or received from Plaintiff’s

counsel. Dr. Higdon’s responses identified documents, medical records, and emails that

were not produced by Plaintiff’s attorneys. Upon receiving Dr. Higdon’s document

production, Defendants filed a motion for sanctions against Mr. Manookian and Ms. Hagh.

On December 17, 2020, Mr. Manookian submitted a complaint regarding the trial

court judge to Tennessee’s Board of Judicial Conduct. On January 7, 2021, Mr. Manookian

filed a motion in the trial court to recuse the trial judge. The trial court denied the motion

to recuse, and Mr. Manookian appealed. On March 4, 2021, this Court affirmed the trial

court’s denial of the motion to recuse. Salas v. Rosdeutscher, No. M2021-00157-COA-

T10B-CV, 2021 WL 830009, at *3 (Tenn. Ct. App. Mar. 4, 2021).

The trial court held a hearing on Defendants’ motion for sanctions on January 10,

2020 and ordered:

By close of business on January 15, 2020, Plaintiff’s counsel shall

produce to the Court via email all correspondence and documents of any type

that are in any way related to the Plaintiff, this lawsuit, or Dr. Rosdeutscher

between:

o Dr. Higdon (including anyone affiliated with Dr. Higdon or

working in his office) and

o Cummings Manookian, Hagh Law, Brian Manookian, Brian

Cummings, Afsoon Hagh (or anyone in any way affiliated with these

attorneys or law firms).

Plaintiff’s attorneys failed to provide the requested documents by January 15, 2020, and

the trial court entered an order on January 28, 2020, ordering all counsel to appear in court

on February 7, 2020, for Plaintiff’s attorneys to show cause why they had not complied.

Ultimately, Ms. Hagh produced additional documents responsive to Defendants’ request

and eventually produced the document Dr. Higdon signed supporting the certificate of good

faith.

Following a hearing on February 19, 2020, which was a continuation of prior

hearings on Defendants’ motion for sanctions, the trial court ordered Defendants to conduct

a second deposition of Dr. Higdon to inquire into his interactions with Plaintiff’s counsel.

Specifically, the court was interested in “(1) whether Plaintiff’s counsel retained Dr.

Higdon as an expert, (2) whether Dr. Higdon reviewed records at the request of Plaintiff’s

counsel, [and] (3) whether Dr. Higdon informed Plaintiff’s counsel of his opinions related

to the care of the Defendants, etc.” Dr. Higdon was deposed on March 1, 2021. Dr. Higdon

testified in his deposition, in part, as follows:

-7-

Q: Dr. Higdon, I’m going to ask you some questions about whether you were

previously paid to provide expert opinions to Afsoon Hagh. My question to

you first, though, is, are you currently serving as an expert witness for any

party to this case?

A: No.

Q: Are you planning to serve as an expert witness in this case in the future?

A: No, sir.

Q: Are you going to offer opinions on the standard of care in this case?

A: No, sir.

Q: Are you going to offer opinions on causation in this case?

A: No, sir.

The trial court held a final hearing on Defendants’ motion for sanctions on April 19,

2021. The court informed the parties that the court would not be dismissing the case with

prejudice and requested that the parties submit proposed findings of fact and conclusions

of law on the sanctions issue. On April 26, 2021, Mr. Manookian filed a second motion to

recuse the trial judge, which the trial court denied by order entered on April 28, 2021. Also

on April 28, 2021, the trial court entered a 42-page order awarding Defendants sanctions

against Mr. Manookian and Ms. Hagh in the amount of $68,617.28 (comprised of

attorney’s fees in the amount of $65,387.50 and expenses in the amount of $3,229.78). The

court outlined specific instances of misconduct on the part of Plaintiff’s attorneys and

stated:

The Court finds that these actions by Mr. Manookian and Ms. Hagh

constitute an egregious abuse of the discovery process and are also contrary

to their duties as Officers of the Court. This abuse is exacerbated by the fact

that Mr. Manookian and Ms. Hagh have stubbornly refused to acknowledge

any wrongdoing whatsoever. The Court further finds that the misconduct of

Mr. Manookian and Ms. Hagh constitutes, at least, reckless conduct, failure

to comply with Court Orders, and deliberate disregard for the integrity of the

judicial process. The Court believes Mr. Manookian and Ms. Hagh intended

to present Dr. Higdon to the jury as an impartial treating physician. This is

tantamount to attempting to commit a fraud upon the Court. Whether this

was their goal or not, the Court finds the misconduct of Mr. Manookian and

Ms. Hagh sufficient to warrant sanctions under Tenn. R. Civ. P. 37.02 and

the Court’s inherent authority to sanction.

Ms. Hagh appeals, raising the following issues:

1. Whether the April 28, 2021 Sanctions Order reflected the independent judgment of

the trial court?

2. Whether the trial court abused its discretion in sanctioning Ms. Hagh?

3. Whether the trial court erred in sanctioning Hagh as “punishment”?

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4. Whether the trial court erred in awarding Defendants $68,617.28 in attorneys’ fees

and costs?

Mr. Manookian also appeals, raising similar issues to Ms. Hagh as well as the following

additional issues:

1. Whether Judge Kelvin Jones erred in refusing to disqualify himself?

2. Whether the court abused its discretion in sanctioning Mr. Manookian?

3. Whether the Trial Court erred in ordering that records of the attorney’s fees awarded

against Plaintiff which were filed in the Appellate Court be “sealed” and

“destroyed.”

4. Whether the Trial Court erred in itself disclosing, and requiring Plaintiff to disclose,

Dr. Kent Higdon as her Certificate of Good Faith Expert?

STANDARD OF REVIEW

Appellate review of a trial court’s imposition of discovery sanctions and its

determination of the appropriate sanction is under an abuse of discretion standard. Pegues

v. Ill. Cent. R.R. Co., 288 S.W.3d 350, 353 (Tenn. Ct. App. 2008) (citing Alexander v.

Jackson Radiology Assocs., P.A., 156 S.W.3d 11, 14 (Tenn. Ct. App. 2004)). “An abuse

of discretion occurs where the trial court has applied an incorrect legal standard or where

its decision is illogical or unreasoned and causes an injustice to the complaining party.” Id.

(citing Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004)).

ANALYSIS

A. Independent judgment of the trial court

Plaintiff’s attorneys first assert that the trial court’s order for sanctions against them

should be vacated because the order does not reflect the trial court’s independent judgment.

In support of this argument, Plaintiff’s attorneys cite Smith v. UHS of Lakeside, Inc., 439

S.W.3d 303 (Tenn. 2014). In response, Defendants assert that the judge extensively revised

the proposed order before entering it, which confirms that the order is a product of the trial

court’s independent judgment and, therefore, Smith is inapposite.

Our Supreme Court emphasized the importance of a trial court’s exercise of

independent judgment when arriving at its decisions in Smith v. UHS of Lakeside, Inc., 439

S.W.3d at 312 . Indeed, the obligation of judges to “arrive at their decisions by applying

the relevant law to the facts of the case” is a “‘high judicial function,’” and “a court’s

decision must be, and must appear to be, the result of the exercise of the trial court’s own

judgment.” Smith, 439 S.W.3d at 312-13. With respect to party-prepared orders, the Smith

Court held:

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[M]ost courts have approved, but not recommended, the practice of trial

courts receiving and using party-prepared findings of fact, conclusions of

law, and orders as long as two conditions are satisfied. First, the findings and

conclusions must accurately reflect the decision of the trial court. Second,

the record must not create doubt that the decision represents the trial court’s

own deliberations and decision.

Id. at 315-16.

In this case, the trial judge announced that it would not dismiss the underlying health

care liability case with prejudice and took the case under advisement to rule on the details

of the sanctions issue, requesting the parties to submit proposed findings of fact and

conclusions of law.

Although the court relied heavily on Defendants’ proposed order, the court did not

adopt Defendants’ submission wholesale. Rather, the court made multiple additions, edits,

revisions, and deletions to the draft order. Some revisions were substantive and others

were stylistic. As for the substantive revisions, the court declined to adopt all of the

sanctions Defendants requested. Specifically, the court struck Defendants’ proposed

sanction of suspending Plaintiff’s attorneys from the practice of law and drafted an entirely

new procedural history section for the order adding rulings to address a “late-filed

affidavit.” In addition to the substantive revisions, the trial court made numerous stylistic

revisions. The trial court’s revisions, additions, and deletions to the order lead us to

conclude that the final order entered by the trial court reflected the judge’s independent

judgment, deliberation, and decision. See Dalrymple v. Dalrymple, No. M2016-01905-

COA-R3-CV, 2017 WL 5462188, at *4 (Tenn. Ct. App. Nov. 14, 2017) (concluding that

the trial court exercised independent judgment because, despite “[t]he court adopt[ing] the

format of Mother’s findings, the court made many edits to them”).

We have reviewed the hearing transcript, the proposed orders, and the final order,

and conclude that the final order reflects the trial court’s exercise of its own independent

judgment. Therefore, we decline to vacate the trial court’s order as Plaintiff’s attorneys

request.

B. Award of sanctions

Plaintiff’s attorneys next argue that the trial court abused its discretion when it imposed

sanctions on them for the following areas of misconduct identified in the trial court’s order:

 Submitting false discovery responses (Mr. Manookian and Ms. Hagh);

 Eliciting false testimony from Dr. Higdon (Mr. Manookian and Ms.

Hagh);

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 Withholding properly-requested and discoverable evidence when initially

requested in discovery (Mr. Manookian and Ms. Hagh);

 Making false statements to the Court in writing and orally, and then

doubling down on those false statements even after the fraud was

uncovered (Mr. Manookian and Ms. Hagh);

 Convincing the Court to sanction the Defendants based upon fraudulent

misrepresentations (Mr. Manookian);

 Violating the Court’s Order from the January 10, 2020 hearing to produce

all correspondence with Dr. Higdon by producing nothing (Ms. Hagh);

 Violating the Show Cause Order issued January 28, 2020 to produce all

correspondence with Dr. Higdon by withholding the two documents from

the May 2018 meeting with Dr. Higdon (Ms. Hagh);

 Falsely telling the Court the document prepared by Dr. Higdon and

provided to Ms. Hagh at the May 2018 meeting did not exist (Ms. Hagh);

and

 Acquiescing in the misconduct of co-counsel (Mr. Manookian and Ms.

Hagh).

Defendants assert the trial court’s imposition of sanctions was appropriate pursuant to

Tenn. R. Civ. P. 37 and “the [c]ourt’s inherent authority to sanction.”

Our Supreme Court has long recognized the “inherent power” and “broad

discretion” of trial judges “in imposing procedural sanctions in order to preserve the

integrity of the discovery process.” Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d

734, 742 (Tenn. 2015); see also Mansfield v. Mansfield, No. 01A019412CH0058, 1995

WL 643329, at *5 (Tenn. Ct. App. Nov. 3, 1995) (“The authority to impose sanctions for

abuse of the discovery process derives from the rules and the court’s inherent powers.”).

In particular, “[t]he trial courts of Tennessee must and do have the discretion to impose

sanctions . . . in order to penalize those who fail to comply with the Rules and, further, to

deter others from flouting and disregarding discovery orders.” Holt v. Webster, 638 S.W.2d

391, 394 (Tenn. Ct. App. 1982). Sanctions are one tool the trial court can employ to

preserve “the effectiveness of discovery and procedural rules.” Langlois v. Energy

Automation Sys., Inc., 332 S.W.3d 353, 357 (Tenn. Ct. App. 2009). Reviewing courts are

instructed to “allow discretionary decisions [such as a trial court’s decisions regarding

sanctions] to stand even though reasonable judicial minds can differ concerning their

soundness.” Mercer, 134 S.W.3d at 133 (citing White v. Vanderbilt Univ., 21 S.W.3d 215,

223 (Tenn. Ct. App. 1999); Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App.

1999)).

Plaintiff’s attorneys urge this Court to conclude that they were not required to

provide a Tenn. R. Civ. P. 26 expert disclosure for Dr. Higdon and, therefore, none of their

conduct before the trial court was sanctionable. We do not view this dispute so narrowly.

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We have performed a review of Plaintiff’s attorneys’ conduct throughout the case,

including a review of the hearing transcripts, email correspondence between counsel,

discovery responses, depositions, and the entire technical record and cannot say that the

trial court abused its discretion in deciding sanctions were warranted under the totality of

the circumstances. See Alexander, 156 S.W.3d at 15, 17 (reviewing the “totality of the

circumstances presented” in determining that sanctions were warranted pursuant to the trial

court’s “inherent authority to take actions to prevent abuse of the discovery process”).

Specifically, we find that the evidence does not preponderate against the trial court’s

determination that Plaintiff’s attorneys knew of Dr. Higdon’s opinion on the care Dr.

Rosdeutscher provided to Plaintiff and, yet, Plaintiff’s attorneys repeatedly and

unequivocally stated that they did not know Dr. Higdon’s opinions. When questioned on

this issue, Dr. Higdon testified as follows:

Q: It’s a pretty narrow issue of did they pay you to review records?

A: Yes.

...

Q: Did they pay you to form opinions as part of that review?

A: Yes, sir.

...

Q: And when you talked to Ms. Hagh, did you talk to her about concerns you

had about the care Dr. Rosdeutscher provided to Ms. Salas?

A: I did.

Despite the fact that Plaintiffs’ attorneys knew Dr. Higdon’s opinions on the care Plaintiff

received from Dr. Rosdeutshcer, Mr. Manookian repeatedly denied that he knew Dr.

Higdon’s opinions, stating to the trial court: “I don’t know what his opinions are,” “I don’t

know his opinions either,” and “I don’t know what his opinions are going to be.”

Regardless of whether Plaintiffs’ attorneys had specifically retained Dr. Higdon as

their Tenn. R. Civ. P. 26 expert to testify at trial, the record shows that Plaintiff’s attorneys

provided Dr. Higdon with Dr. Rosdeutscher’s medical records, paid Dr. Higdon for his

time reviewing the records (noting that the $1,500 check was for “expert review”), asked

Dr. Higdon to “complete[] [a] review of the records and form[] resulting opinions[,]” and

met with Dr. Higdon in person to discuss his opinions regarding the anticipated litigation

and Dr. Rosdeutscher’s care and treatment of Plaintiff. Dr. Higdon testified that he

discussed his opinion on Dr. Rosdeutscher’s care with Ms. Hagh, and he “believed” he

provided Ms. Hagh with a document commenting “on things that [he] felt that Dr.

Rosdeutscher should or should not have done[.]”3 The evidence shows that Plaintiff’s

3

In the bulleted list of misconduct, the trial court stated that Ms. Hagh, “Falsely t[old] the Court the

document prepared by Dr. Higdon and provided to Ms. Hagh at the May 2018 meeting did not exist.” We

have reviewed Dr. Higdon’s deposition testimony, the letter Ms. Hagh provided to Dr. Higdon, and the

certificate of good faith materials and find the evidence preponderates against the trial court’s finding that

Ms. Hagh falsely told the court that a document Dr. Higdon “believed” he prepared did not exist. Dr.

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attorneys knew Dr. Higdon’s opinions on the care and treatment Plaintiff received from

Dr. Rosdeutshcer, and we agree with the trial court that it was disingenuous for Mr.

Manookian to repeatedly state that Dr. Higdon had not provided Plaintiff’s attorneys with

his opinions, whether orally or in writing.

Moreover, Ms. Hagh failed to produce all of her communications with Dr. Higdon

in her discovery responses. Regardless of whether Ms. Hagh’s failure to disclose relevant

communications with Dr. Higdon was an effort to conceal that she was aware of Dr.

Higdon’s opinions or simply an oversight, her failure to produce all of the communications

with Dr. Higdon constituted a discovery violation.4

In our view, this case does not require us to go into depth on the distinctions and

comparisons between an expert for purposes of the good faith certificate and a treating

physician and a testifying expert. The failure of Plaintiff’s attorneys to be forthright in

their communications with the trial court regarding their knowledge of Dr. Higdon’s

opinions, which led the court to sanction defense counsel and further led to years of judicial

resources spent untangling the discovery issues, along with the withholding of their

properly discoverable communications with Dr. Higdon, are the bases for the sanctioned

conduct in this case. The case escalated and lenghtened unnecessarily because of

Plaintiff’s attorneys’ lack of candor with opposing counsel and the trial court, as well as

Plaintiff’s attorneys’ failure to provide documents requested in discovery. Under the facts

before us, and keeping our deferential standard of review at the forefront, we find that

reasonable judicial minds could differ concerning the soundness of the trial court’s decision

to impose sanctions on Plaintiff’s attorneys and, therefore, the trial court’s discretionary

decision to impose monetary sanctions on Plaintiff’s attorneys must stand. See Mercer,

134 S.W.3d at 133.5

Higdon was equivocal about whether he prepared a document in advance of the May 10, 2018 meeting and

provided the same to Ms. Hagh. His testimony was replete with the equivocal qualifier “I believe,” and he

was never able to locate or produce the document he believed he created. Plaintiff’s attorneys were resolute

that no such document existed, and in their initial letter to Dr. Higdon they specifically asked him not to

create a written document. Therefore, the evidence preponderates against the trial court’s finding that Ms.

Hagh was untruthful in her disclosure that she did not have the purported document Dr. Higdon believed

he may have created. Nevertheless, this finding is not a basis to undo the imposition of sanctions for the

other conduct discussed in the body of this opinion.

4

Ms. Hagh did not provide a privilege log or assert a privilege that would prevent the withheld

documents from being produced.

5

We have also considered Mr. Manookian’s argument that the trial court erred in compelling Ms. Hagh

to produce Dr. Higdon’s signed statement supporting the certificate of good faith. Tennessee Code

Annotated section 29-26-122(d)(1)-(2) states as follows:

(d)(1) Subject only to subdivision (d)(2), the written statement of an expert relied upon in

executing the certificate of good faith is not discoverable in the course of litigation.

(2) If a party in a health care liability action subject to this section prevails on the basis of

the failure of an opposing party to offer any competent expert testimony as required by §

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C. Amount of monetary sanctions

We next consider how the trial court arrived at the amount of monetary sanctions to

impose against Plaintiff’s attorneys. With respect to the amount of the sanctions imposed,

the trial court stated as follows:

The Court hereby Orders Mr. Manookian and Ms. Hagh to pay the

Defendants monetary sanctions for reasonable attorney’s fees and expenses

incurred in litigating issues surrounding the Motion for Sanctions. The Court

has reviewed the Declaration of Dixie Cooper and supporting documentation

filed under seal.[] The Court finds that the attorney’s fees and expenses set

forth in the Declaration are reasonable and were necessarily incurred as a

result of the misconduct of Mr. Manookian and Ms. Hagh. Accordingly, the

Court hereby Orders that Mr. Manookian, Ms. Hagh, and Hagh Law, PLLC,

are jointly and severally liable for attorney’s fees in the amount of

$65,387.50 and expenses in the amount of $3,229.78.

Plaintiff’s attorneys assert that the trial court improperly awarded the full amount of

attorney’s fees Defendants requested without giving Plaintiff’s attorneys an opportunity to

contest the amount of fees requested. Defendants assert, inter alia, that Plaintiff’s attorneys

waived their ability to contest the reasonableness of the award by failing to raise it in the

court below.

Defendants submitted their request for $65,387.50 in attorney’s fees along with a

supporting affidavit on April 23, 2021. Defendants requested 249.1 hours of attorney,

paralegal and IT support time; they submitted their time sheet(s) under seal. Five days

later, the trial court entered its order granting the full amount of attorney’s fees Defendants

requested. Defendants contend that, by failing to file a motion to alter or amend or to raise

the issue of attorney’s fees before the trial court, Plaintiff’s attorneys waived their right to

raise this issue on appeal. This contention is incorrect. “[O]ur rules do not require that

parties file motions to alter or amend judgments in order to preserve their appellate rights

29-26-115, the court may, upon motion, compel the opposing party or party’s counsel to

provide to the court a copy of each such expert’s signed written statement relied upon in

executing the certificate of good faith. The medical experts may be compelled to provide

testimony under oath, as determined by the court, for the purposes of determining that

party’s compliance with subsection (a) or (b).

At the time Ms. Hagh was asked to produce the certificate of good faith, the underlying litigation had been

voluntarily dismissed, and the court was working to resolve the sanctions issue. As the court was

considering whether sanctions were warranted and attempting to determine whether Plaintiff’s attorneys

had been truthful in their disclosure to the court that they were unaware of Dr. Higdon’s opinions, it was

appropriate under those circumstances to compel production of all documents in Plaintiff’s attorneys’

possession that concerned Dr. Higdon.

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in non-jury cases.” Fulmer v. SARCO, GP, No. M2022-01479-COA-R3-CV, 2023 WL

5787082, at *5 (Tenn. Ct. App. Sept. 7, 2023); see also Eastman Credit Union v. Bennett,

No. E2015-01339-COA-R3-CV, 2016 WL 1276275, at *11 (Tenn. Ct. App. Mar. 31, 2016)

(“[H]aving raised the issue on appeal of attorney’s fees for work completed at trial,

Eastman was not required to file a motion to alter or amend the judgment or motion for

new trial in order to avoid waiving the issue.”) (citing Tenn. R. App. P. 3(e), which provides

that, except for certain issues arising from a jury trial not applicable here, “[a]n appeal as

of right may be taken without moving in arrest of judgment, praying for an appeal, entry

of an order permitting an appeal or compliance with any other similar procedure.”). The

trial court entered the final order only five days after Defendants filed their request for fees

and supporting affidavit. Therefore, we conclude that Plaintiff’s attorneys have not waived

the right of appellate review of the amount of monetary sanctions awarded against them.

Monetary sanctions serve the purpose of “providing compensation for the expenses

caused by the inappropriate conduct” and are “the most common sanction for discovery

abuse” Mansfield, 1995 WL 643329, at *5. Tennessee Rules of Civil Procedure 37.01(4)

and 37.02 permit a court to impose monetary sanctions, including reasonable expenses and

attorney’s fees, on a lawyer who is non-compliant with a court order. In addition to the

authority provided in these procedural rules, we have held that “trial courts possess the

inherent authority to take actions to prevent abuse of the discovery process” which includes

the authority to impose monetary sanctions. Alexander, 156 S.W.3d at 15 (affirming award

of sanctions even when non-compliance with an order was not at issue). “When monetary

sanctions include legal expenses, the appropriate amount of legal expenses should be

determined using the relevant portions of Tenn. S. Ct. R. 8, . . . the rule generally used by

courts when they are required to award reasonable attorneys’ fees.” Mansfield, 1995 WL

643329, at *5.

Tennessee Supreme Court Rule 8, Rule of Professional Conduct (“RPC”) 1.5(a)

provides guidance for courts in determining reasonable fees:

The factors to be considered in determining the reasonableness of a fee

include the following:

(1) the time and labor required, the novelty and difficulty of the questions

involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the

particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers

performing the services;

(8) whether the fee is fixed or contingent;

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(9) prior advertisements or statements by the lawyer with respect to the fees

the lawyer charges; and

(10) whether the fee agreement is in writing.

The Tennessee Supreme Court has explained the appropriate procedure to be

followed by the trial court when determining the amount of an attorney’s fee award:

In terms of procedure, the trial court should develop an evidentiary record,

make findings concerning each of the factors, and then determine a

reasonable fee that depends upon the particular circumstances of the

individual case. To enable appellate review, trial courts should clearly and

thoroughly explain the particular circumstances and factors supporting their

determination of a reasonable fee in a given case.

Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 185-86 (Tenn. 2011) (internal quotation

marks, alterations, and citations omitted). Moreover, this Court has stated:

When the trial court’s order provides no indication that it considered the

reasonableness of the fee or any of the RPC factors, the appropriate remedy

is to vacate and remand for the trial court to make an express determination

as to the reasonableness of the fees. See, e.g., Ferguson Harbour Inc. v. Flash

Mkt., Inc., 124 S.W.3d 541, 552-53 (Tenn. Ct. App. 2003) (remanding fee

award for reconsideration where the trial court made “no specific findings as

to the factors which justify this amount in fees”); Southwind Residential

Properties Ass’n, Inc. v. Ford, No. W2016-01169-COA-R3-CV, 2017 WL

991108, at *13 (Tenn. Ct. App. Mar. 14, 2017) (remanding where “the trial

court’s ruling makes no mention of many of the factors outlined under Rule

1.5” and “neither the trial court’s oral ruling, nor its written order, contains

any finding that the award is reasonable under the circumstances”).

Smith v. All Nations Church of God, No. W2019-02184-COA-R3-CV, 2020 WL 6940703,

at *5 (Tenn. Ct. App. Nov. 25, 2020).

Here, the trial court did not cite to RPC 1.5, nor did it specifically analyze its factors

when imposing monetary sanctions in the form of attorney’s fees against Plaintiff’s

attorneys. Moreover, the court did not provide an opportunity for Plaintiff’s attorneys to

respond to Defendants’ affidavit to contest the amount of fees requested. Therefore, we

remand the case to the trial court to determine a reasonable fee based on RPC 1.5 and the

procedures outlined above.6

6

We decline to find that the trial court’s failure to allow Plaintiff’s attorneys an opportunity to

contest the amount of attorney’s fees Defendants requested was harmless error under Tenn. R. App. P.

36(e), as Defendants urge. In addition, our holding vacating the award of monetary sanctions and

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D. Plaintiff’s attorneys second motion to recuse the trial judge

Plaintiff’s attorneys assert that the trial court erred in denying Mr. Manookian’s

revised motion to recuse the trial judge. During the pendency of this case, Mr. Manookian

filed two separate motions to recuse Judge Jones. The first motion was filed in January

2021 and was denied by the trial court. Mr. Manookian appealed to this Court, and this

Court affirmed the trial court’s decision to deny the motion in March 2021, holding:

As our Supreme Court has explained, the judicial disqualification standards

do not require recusal simply because the person seeking recusal has filed

some type of complaint against the judge. See Moncier v. Bd. of Prof’l

Responsibility, 406 S.W.3d 139, 162 (Tenn. 2013) (collecting cases). For

example, in one of the cases cited favorably by our Supreme Court in

Moncier, the Court of Appeals of Ohio held that a disciplinary complaint

filed against a judge will not by itself warrant the judge’s recusal. State v.

Blankenship, 115 Ohio App.3d 512, 685 N.E.2d 831, 833 (1996). The

concern with strictly requiring recusal in such circumstances, of course, is

that it could foster abuse of the judicial system by encouraging people to

judge-shop and manufacture recusals. As a general matter, absent some

additional showing of bias or prejudice resulting from the complaint against

the judge, the complaint standing alone will not ordinarily require recusal.

Farm Credit Bank of St. Paul v. Brakke, 512 N.W.2d 718, 722 (N.D. 1994).

Salas, 2021 WL 830009, at *3.

Mr. Manookian filed his second motion to recuse Judge Jones on April 26, 2021,

and the trial court denied the motion, holding: “This Court has no doubt as to its ability to

preside impartially in this case. This Court has no personal bias or prejudice concerning

either party or their attorneys. The Court finds there to be no reasonable appearance of bias

to question the Court’s impartiality.” Mr. Manookian appeals the trial court’s ruling.

This Court has taken judicial notice7 of the fact that Judge Jones is no longer

presiding as a judge in the Davidson County Circuit Court. In light of our ruling upholding

remanding the case for the trial court to determine a reasonable fee pretermits Plaintiff’s attorneys’ issue

regarding the trial court’s order placing Defendants’ attorneys’ billing invoices under seal in the appellate

record.

7

Tennessee Rule of Evidence 201(b)(2) allows this court to take judicial notice of facts that are “not

subject to reasonable dispute” and “capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned.” See Counts v. Bryan, 182 S.W.3d 288, 293 (Tenn. Ct. App.

2005) (taking judicial notice of dates readily accessible in the court’s record). “The result of

taking judicial notice of a fact is the establishment of the admission of that fact into evidence.” Counts, 182

S.W.3d at 291.

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the trial court’s imposition of sanctions against Plaintiff’s attorneys, and due to the fact that

Judge Jones will not preside over this case on remand, we find this issue has been rendered

moot. See Norma Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty, 301 S.W.3d

196, 204 (Tenn. 2009) (“A case will be considered moot if it no longer serves as a means

to provide some sort of judicial relief to the prevailing party.”).

E. Attorney’s fees on appeal

Defendants seek an award of attorney’s fees incurred in this appeal. An award of

fees on appeal is discretionary, and we must consider a number of factors, including

success on appeal, the financial condition of the parties, and whether the appeal was taken

in good faith. Cooley v. Cooley, 543 S.W.3d 674, 688 (Tenn. Ct. App. 2016) (citing Chaffin

v. Ellis, 211 S.W.3d 264, 194 (Tenn. Ct. App. 2006)). Given our holdings on the issues

presented on appeal, we exercise our discretion and decline to award attorney’s fees under

these circumstances.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s imposition of sanctions against

Plaintiff’s attorneys, vacate the award of attorney’s fees, and remand for further

proceedings consistent with this opinion. We decline to award Defendants their attorney’s

fees on appeal. The matter is remanded for further proceedings consistent with this

opinion. Costs of this appeal are assessed against the appellants, Brian Manookian and

Afsoon Hagh, for which execution may issue if necessary.

_/s/ Andy D. Bennett_______________

ANDY D. BENNETT, JUDGE

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