                                                                                        07/23/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               January 11, 2018 Session

               JAMES JONES v. RAYMOND M. HARGREAVES

                 Appeal from the Circuit Court for Davidson County
                 No. 15C3668        Hamilton V. Gayden, Jr., Judge
                      ___________________________________

                           No. M2017-01271-COA-R3-CV
                       ___________________________________


In this health care liability action, the defendant doctor filed an unopposed motion for
summary judgment. After the motion was granted, he filed a motion pursuant to
Tennessee Code Annotated section 29-26-122, requesting the court to compel the
plaintiff or his counsel to provide the court with a copy of the expert’s signed written
statement that was relied upon in executing the certificate of good faith that accompanied
the complaint. The trial court denied the motion, holding that the matter should have
been raised in the Defendant’s motion for summary judgment or a motion for
discretionary costs. Upon our review of the statute, we do not find a requirement that the
request for the expert witness’ statement be made in the manner held by the trial court;
accordingly, we reverse the judgment of the trial court and remand for further
consideration of the defendant’s motion.


Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                 Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

C. Bennett Harrison, Jr. and Eileen M. Forsythe, Nashville, Tennessee, for the appellant,
Raymond M. Hargreaves, M.D.

Luvell L. Glanton and G. Wayne Davis, Nashville, Tennessee, for the appellee, James
Jones.
                                      MEMORANDUM OPINION1

I. FACTUAL AND PROCEDURAL HISTORY

       Mr. James Jones underwent a laparoscopic cholecystectomy on June 17, 2014,
during which he suffered injuries to his portal vein, common hepatic duct, and right and
left hepatic ducts. On October 5, 2015, Mr. Jones filed a healthcare liability action
against the surgeon, Dr. Raymond Hargreaves, alleging that during the surgical
procedure, Dr. Hargreaves breached the standard of care, causing Mr. Jones’ injuries.
The complaint included a certificate of good faith required by Tennessee Code Annotated
section 29-26-122(a), signed by Mr. Jones’ counsel.

       Dr. Hargreaves answered, denying liability, and subsequently moved for summary
judgment on November 18, 2016, with an accompanying statement of undisputed facts,
supported by his affidavit; a hearing on the motion was set for January 13, 2017. Mr.
Jones did not respond to the motion or file any responses to the statement of undisputed
facts. Three days before the hearing, a notice was filed by Dr. Hargreaves’ counsel,
continuing the hearing to January 27 at the request of Plaintiff’s counsel.

       On January 13, Mr. Jones’ attorneys moved to withdraw and set the motion for
hearing on January 27. The court granted the motion to withdraw, ordering Plaintiff to
have new counsel enter an appearance or elect to proceed pro se within 30 days. No
notice of appearance of new counsel for Plaintiff was entered. The trial court
subsequently held a hearing on the summary judgment motion and granted it, holding that
Dr. Hargreaves had submitted undisputed evidence that he complied with the standard of
care and that Mr. Jones failed to produce competent expert testimony, as required by
Tennessee Code Annotated section 29-26-115.

     Dr. Hargreaves thereafter filed a motion pursuant to section 29-26-122(d)(2)2 to
compel Mr. Jones to produce the expert’s signed written statement relied upon in

1
    Rule 10 of the Rules of the Court of Appeals states:

          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.
2
    Tennessee Code Annotated section 29-26-122(d)(2) reads:

          (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 §
          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
                                                         2
executing the certificate of good faith filed with the complaint and requesting the court to
determine if Mr. Jones’ attorneys complied with section 29-26-122 in executing and
filing the certificate of good faith. Mr. Jones, proceeding pro se, filed no response. His
former counsel, Mr. Glanton, filed a response and affidavit, in which he stated that he
retained an expert who would testify that Dr. Hargreaves’ conduct was a breach of the
standard of care and caused the injuries to Mr. Jones and that “Plaintiff’s counsel decided
not to pursue the case due to the lack of a permanent injury and the expense of pursuing
this matter with lack of significant damages.”

       The trial court held a hearing on the motion; Mr. Jones did not appear, though Mr.
Glanton did. The court denied the motion to compel, holding that Dr. Hargreaves
“should have raised any issues with the Plaintiff’s certificate of good faith in his motion
for summary judgment or in a motion for discretionary costs.” Dr. Hargreaves appeals,
stating the issue for our review as whether “the trial court committed reversible error in
denying Dr. Hargreaves’ Motion to Compel and for Hearing pursuant to Tennessee Code
Annotated section 29-26-122(d)(2).”

II. ANALYSIS

        At issue in this case is the requirement at Tennessee Code Annotated section 29-
26-122 that a plaintiff in a health care liability action requiring expert testimony file a
certificate of good faith, and specifically, subsection (d), which “creates additional
consequences” and “give[s] the court the tools needed to determine whether the
certificate of good faith was itself executed in good faith, and to punish the certifying
attorney if it was not[.]” Kerby v. Haws, No. M2011-01943-COA-R3CV, 2012 WL
6675097, at *4 (Tenn. Ct. App. Dec. 20, 2012). The statute provides a means by which a
party who has prevailed on the basis of the plaintiff’s failure to provide expert testimony
can have the court examine the expert’s statement and determine whether the plaintiff or
his/her counsel violated the requirements of the statute. If the court determines that the
requirements were violated, subsection 29-26-122(d)(3) sets forth a non-inclusive list of
sanctions the court may impose.3

          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).
3
    In Kerby, this Court observed:

          [S]anctions are authorized only where ‘this section has been violated.’ The referenced
          section requires the plaintiff’s attorney to certify that (1) he or she has consulted with an
          expert, (2) the expert has provided a written statement confirming he or she is competent
          to express an opinion in the case, and (3) the expert’s written statement includes the
          expert’s belief, “based on the information available from the medical records concerning
          the care and treatment of the plaintiff for the incident or incidents at issue,” that there is a
          good faith basis to maintain the action consistent with statutory requirements.
                                                         3
       The trial court interpreted section 29-26-122(d)(2) as requiring Dr. Hargreaves to
raise the Plaintiff’s compliance with subsections (a) or (b) in his motion for summary
judgment or in a motion for discretionary costs. Thus, we review the ruling under the
statutory construction standard, i.e., as a “question[] of law which we review de novo,
with no presumption of correctness.” Davis ex rel. Davis v. Ibach, 465 S.W.3d 570, 573
(Tenn. 2015) (citing Thurmond v. Mid–Cumberland Infectious Disease Consultants,
PLC, 433 S.W.3d 512, 516-17 (Tenn. 2014); Pratcher v. Methodist Healthcare Memphis
Hosps., 407 S.W.3d 727, 734 (Tenn. 2013)).

        The statute does not require the prevailing party to raise the issue in any certain
motion; the only prerequisite is that the party prevail on the basis of the failure of an
opposing party to offer any competent expert testimony. There is no prohibition on the
defendant deciding to wait until he or she has prevailed on this basis before filing the
motion contemplated in the statute. Dr. Hargreaves prevailed on the basis of Mr. Jones’
failure to offer competent expert testimony and was thus permitted to petition the court to
have the court compel the Plaintiff to produce the signed written statement on which he
relied in executing the Certificate of Good Faith so that the court could examine the
expert’s statement to determine Mr. Jones’ compliance with section 29-26-122. The trial
court erred in its interpretation and application of the statute and read a requirement into
the statute that does not exist.

III. CONCLUSION

       For the foregoing reasons, we reverse the decision of the trial court and remand
the case for further proceedings in accordance with this opinion.




                                                 RICHARD H. DINKINS, JUDGE




2012 WL 6675097, at *5.


                                             4
