                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  October 11, 2007 Session

     STATE OF TENNESSEE v. BILLY L. COUCH, M.D. a/k/a Dr. B. L.
                        COUCH, ET AL.

                  Direct Appeal from the Circuit Court for Gibson County
                          No. H3536     Clayburn Peeples, Judge



                 No. W2007-01059-COA-R3-CV - Filed December 7, 2007


Defendant doctor appeals an award of summary judgment to the State in this action brought pursuant
to the Tennessee Consumer Protection Act (TCPA) in connection with the sale and administration
of flu vaccine. The trial court found the defendant doctor guilty of two hundred seventy (270)
violations of the TCPA for vaccinating fifty-four (54) patients with serum manufactured for the
previous flu season while representing it would protect them in the upcoming flu season; awarded
restitution to the patients, imposed a civil penalty of $50 per violation, and awarded $10,500 in
attorney’s fees and costs for investigation; and issued permanent injunction prohibiting doctor from
selling or administering a flu vaccine manufactured for a previous flu season. On appeal, defendant
doctor contends he established that two material facts were in dispute. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S., and
HOLLY M. KIRBY , J., joined.

Harold R. Gunn, Humboldt, Tennessee, for the appellant, Billy L. Couch, M.D.

Robert E. Cooper, Jr., Attorney General and Reporter, and Brant Harrell, Assistant Attorney General,
for the appellee, State of Tennessee.

                                            OPINION


       Relying on the provisions of the Tennessee Consumer Protection Act (TCPA), the State of
Tennessee filed suit against Billy L. Couch, M.D. (Dr. Couch) and his assistant, Frances Bailey (Ms.
Bailey), on February 10, 2005. It alleged TCPA violations in connection with Dr. Couch’s sale and
administration of a vaccine manufactured for the 2003-2004 flu season between August and
November of 2004. Dr. Couch vaccinated as many as seventy-two (72) individuals during that
period of time, and between fifty-four (54) and sixty (60) of those vaccinated had purchased the
vaccination for themselves or had it purchased for them.

        In January of 2006, the State moved for summary judgment against Dr. Couch, who generally
denied the facts enumerated in the State’s attached list of material facts. Along with its motion for
summary judgment and its memorandum in support of the motion, the State included ten
attachments: the State’s Request for Admissions in the instant suit, the transcript from a hearing
before the Board of Medical Examiners,1 the State’s Request for Admissions from the Board of
Medical Examiners proceedings, two affidavits of employees from flu vaccine manufacturers,
affidavits from two of Dr. Couch’s patients, the product insert for the vaccine administered by Dr.
Couch, the State’s interrogatories from the instant suit and from the Board of Medical Examiners
proceedings, and, finally, the State’s “Separate Concise Statement of Material Facts.” The State
supported its factual assertions with citations to these materials. In response, as noted below, Dr.
Couch relied upon general denials or upon statements that were unresponsive to their corresponding
allegations.

       The trial court conducted a summary judgment hearing on May 15, 2006, and a hearing on
monetary relief on July 17, 2006. The first hearing addressed the issue of liability. In that hearing,
Dr. Couch argued that the State’s case turned on whether or not the vaccine had expired, but that it
had not proven that fact. The State argued that the fact of expiration was not material to its case
because even negligent misrepresentations could constitute TCPA violations. After finding that Dr.
Couch had violated the TCPA, the court directed the parties to attempt to reach an agreement on
monetary relief. Because the parties could not do so, the trial court conducted a hearing on the
matter on July 17, 2006.

       On July 28, 2006, the trial court entered findings of fact, conclusions of law, and an order
granting summary judgment in favor of the State and finding Dr. Couch guilty of two hundred
seventy (270) violations2 of the TCPA; awarding restitution to consumers, imposing a civil penalty
of $50 per violation, and awarding $10,500 in attorney’s fees and costs for investigation; and
permanently enjoining Dr. Couch from selling or administering a flu vaccine manufactured for a
previous flu season.

        In its written findings of fact and conclusions of law, the trial court expressly found the
following facts: that the flu season runs from the Fall of one year through the Spring of the next
year; that flu vaccine for a current season is usually administered during the first part of the flu
season in the Fall but can be administered anytime during the season which, in the case of the subject

         1
         During the discovery phase of this suit, Dr. Couch also appeared and testified in a separate proceeding before
the Tennessee Board of Medical Examiners regarding these vaccinations.

         2
           The record reveals that the trial court considered each administration of the vaccine to constitute five separate
violations of the TCPA. Even though Dr. Couch administered fifty-four (54) vaccinations subject to the strictures of the
TCPA, the trial court penalized him for two hundred seventy (270) independent violations of the TCPA. Dr. Couch does
not raise this issue on appeal, so we decline to address it here.

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vaccine, lasted from Fall of 2003 through Spring of 2004; that Dr. Couch had administered a flu
vaccine manufactured for the 2003-2004 flu season to seventy-two (72) individuals between August
2004 and November 2004; that Dr. Couch received payment for vaccinating at least fifty four (54)
of those individuals; that the flu vaccine administered by Dr. Couch did not protect against new flu
strains likely to surface in the upcoming 2004-2005 flu season; and that Dr. Couch did not disclose
to his patients the fact that the subject vaccine would not protect against the strains anticipated to
appear in the 2004-2005 season. The trial court concluded:

       Based upon a review of the record and information presented to this Court,
       Defendant Dr. Couch’s misrepresentations, silence or omissions relating to
       administering a prior season’s flu vaccine, violated five (5) provisions of the TCPA
       with each individual person who paid for the flu vaccine manufactured for the
       2003/2004 flu seasons for a total of two hundred and seventy (270) separate
       violations of the TCPA.

        Dr. Couch sought an appeal but was at first unsuccessful, in part, because the order did not
adjudicate the State’s claim against Ms. Bailey. Following entry of the voluntary dismissal of the
State’s claims against Ms. Bailey, Dr. Couch then pursued this appeal.

                                         Issues Presented

       On appeal, Dr. Couch presents the following issues for our review:

       (1)     Plaintiff contends defendant represented flu vaccine as being for the
               2004-2005 flu season. This was denied in the Answers to the
               Complaint stating that he gave vaccine for the 2003-2004 flu season
               in 2004. . . . Did the Judge err in stating that [this fact] was
               undisputable?

       (2)     Plaintiffs contend that the flu vaccine had an expiration date of June
               2004. Defendant demanded strict proof of this since the box and
               [vial] state “flu season 2003-2004" without any expiration date. . . .
               Did the Judge err in stating that this fact was undisputable?

                                        Standard of Review

       We review an award of summary judgment de novo, with no presumption of correctness
afforded to the conclusions of the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534
(Tenn. 2002). An award of summary judgment is appropriate if

       the pleadings, depositions, answers to interrogatories, and admissions on file,
       together with the affidavits, if any, show that there is no genuine issue as to any
       material fact and that the moving party is entitled to a judgment as a matter of law.


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Tenn. R. Civ. P. 56.04. The party moving for summary judgment must provide a separate statement
of the undisputed material facts upon which it relies, and a supporting citation to the record must
accompany each fact. Tenn. R. Civ. P. 56.03. When a party has submitted a properly supported
motion for summary judgment, the burden shifts to the nonmoving party to establish the existence
of disputed material facts. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.
1998).

        The party opposing the motion must file a response addressing each fact and either agree that
the fact is undisputed3 or demonstrate that it is in dispute. Tenn. R. Civ. P. 56.03. To demonstrate
a dispute, the non-movant must cite to support in the record. Id. Further, if the moving party has
supported its motion for summary judgment with affidavits, the non-movant

        may not rest upon the mere allegations or denials of [its] pleading, but his or her
        response, by affidavits or as otherwise provided in this rule, must set forth specific
        facts showing that there is a genuine issue for trial. If the [non-movant] does not so
        respond, summary judgment, if appropriate, shall be entered against the [non-
        movant].

Tenn. R. Civ. P. 56.06. The material facts set forth in the statement of the moving party may be
deemed admitted if the opposing party has failed to controvert them in a responsive statement. See
Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure, § 9-4(i) (2d ed. 2004)(quoting
Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 n.1 (7th Cir. 1995)).

         In determining whether to award summary judgment, the trial court must view the evidence
in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's
favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). The court should award summary
judgment only when a reasonable person could reach only one conclusion based on the facts and the
inferences drawn from those facts. Id. Summary judgment is not appropriate if there is any doubt
about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at 588.

                                                    Analysis

        On appeal, Dr. Couch limits his challenge of the trial court’s judgment to two points. He
contends that he demonstrated a genuine dispute regarding the following two facts: that he
represented the flu vaccine as being for the 2004-2005 flu season, and that the flu vaccine had an
expiration date of June 2004.




        3
        The non-movant’s response may state that the fact is undisputed or concede thus only for the limited purpose
of summary judgment. Tenn. R. Civ. P. 56.03.

                                                        -4-
                                    Dr. Couch’s Representations

        Dr. Couch first argues that he successfully disputed the State’s allegation that he represented
to his patients that the flu vaccine was for the 2004-2005 flu season. In its order, the trial court
found that Dr. Couch failed to disclose to his patients that the vaccine he was administering would
not protect against the strains anticipated to appear in the 2004-2005 season. It concluded that his
“misrepresentations, silence or omissions relating to administering a prior season’s flu vaccine,
violated . . . the TCPA.”

        We look first to four (4) pertinent allegations, represented below in italics, set forth in the
State’s statement of material facts to determine if it met its burden in showing that Dr. Couch had
misrepresented, either affirmatively or by omission, the efficacy of the serum he administered to his
patients. We then turn to Dr. Couch’s response to each allegation to determine if he sufficiently
controverted it.

        State’s Material Fact #1: Dr. Couch did not tell at least half of the . . . patients to
        whom he administered flu vaccine to in the early to late fall of 2004 that he was
        giving them the 2003/2004 vaccine.

        The State supported this allegation by citing to Dr. Couch’s own testimony before the Board
of Medical Examiners. In that proceeding, when asked if he told “all of the patients who received
this vaccine that it was the 2003/2004,” Dr. Couch replied as follows:

        Only if they asked. Not all of them asked. I would say probably about half of them
        asked and the others didn’t seem to care one way or the other.

In response to this factual allegation on summary judgment, Dr. Couch merely replied, “Denies;
since I gave the shots in the 2004 year as set forth on the vaccine.”

        State’s Material Fact #2: Dr. Couch told the customers who asked him either that the
        vaccine was the “2003/2004" without any further explanation, that “it was still
        good” through the duration of the calendar year 2004, or that the Fall of 2004 was
        included in the 2003/2004 flu season. He told customers this only if the customer
        asked about the 2003/2004 labeling.

To support this fact, the State cited first to the affidavit of a patient, “N.R.,” who stated as follows:

        I asked Dr. Couch if this vaccine covered the new strains of the flu. He informed me
        that the vaccine was good through 2004.

Additionally, the State relied on the portion of Dr. Couch’s Board of Medical Examiners testimony
noted above. To controvert the State’s allegation on summary judgment, Dr. Couch responded as



                                                  -5-
follows: “Denies; Affidavit of [N.R.] is denied in that there was no expiration date on the box or
vaccine bottle.”

       State’s Material Fact #3: [A]ll consumers, even those who asked about the 2003/2004
       label, were not told that it was created for the previous year’s flu season which ended
       several months before, in the Spring, and was not formulated for the strains likely to
       surface in the 2004/2005 flu season.

The State cited, again, to Dr. Couch’s own testimony in support of this fact. At the proceeding
before the Board of Medical Examiners, when asked whether he explained to “all of these patients
that the vaccine they were receiving was designed for the 2003/2004 flu season and not for the
2004/2005 flu season and what that meant,” Dr. Couch responded that he “didn’t explain to them
anything.” Further, when asked if he felt it would have been proper to inform his patients that the
serum was not “recommended for this year[, that] this is last year’s vaccine[, that this serum] is what
they thought would be okay for last year according to the strains of virus that they thought were
going to hit . . . last year,” Dr. Couch responded, “Yes, sir. I guess it would have been.”

        In his response to the State’s motion for summary judgment, Dr. Couch countered this factual
allegation with “Denies.”

       State’s Material Fact #4: [O]n at least one occasion Dr. Couch expressly
       represented that the flu shot for the 2003/2004 season would protect against the flu
       strains circulating during the 2004/2005 flu season.

The State supported this fact by citing to the affidavit of “N.R.,” in which the patient stated that
when she asked Dr. Couch if the vaccine would protect against the new flu strains, he responded that
the vaccine was good through 2004. Dr. Couch attempted to controvert this allegation in his
response to the State’s motion for summary judgment in the following manner: “Denies; The vaccine
was good through 2004; the affidavit is denied.”

         The State sufficiently supported each of the above allegations. Dr. Couch, on the other hand,
failed to controvert them because he merely issued general denials or gave unresponsive explanations
to well-supported statements. When viewed together, these facts amply support the trial court’s
findings regarding Dr. Couch’s omissions and misrepresentations regarding the subject flu vaccine.
 We find no error in the trial court’s determination that these facts were undisputed.

                                  Expiration Date of the Vaccine

         In raising the issue of the vaccine’s expiration date on appeal, Dr. Couch contends that
the trial court erred in finding that the serum had an expiration date of June 2004. This argument
lacks merit for two fundamental reasons. First, nowhere in the trial court’s findings or order is an
expiration date mentioned. We cannot find error in a factual finding the trial court never made.
Second, the expiration date of the serum is immaterial to the State’s case and to the trial court’s


                                                 -6-
judgment. The gravamen of the State’s claim is that Dr. Couch’s representations, omissions,
and/or actions misled his patients to believe that the vaccinations would protect them against the
new flu strains likely to surface in the upcoming flu season. Even assuming the serum had not
expired at the time Dr. Couch vaccinated these patients, the State’s case and the trial court’s
judgment would remain unaffected. We cannot concur in Dr. Couch’s conclusions on this point.

        For the foregoing reasons, we affirm the trial court’s judgment. Costs of this appeal are
taxed to Billy L. Couch, M.D., and his surety, for which execution shall issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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