                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                      November 8, 2012 Session Heard at Memphis

 EDDIE C. PRATCHER, JR. v. METHODIST HEALTHCARE MEMPHIS
                      HOSPITALS ET AL.

           Appeal by Permission from the Circuit Court for Shelby County
                     No. CT-0070011-00    Donna Fields, Judge


                   No. W2011-01576-SC-S09-CV - Filed June 28, 2013




W ILLIAM C. K OCH, J R., J., dissenting.

       This case has gone unresolved for far too long. It was finally tried more than six years
after Ms. Pratcher’s death and after the filing of four amended complaints. After the jury
returned a defendant’s verdict, the trial court granted a new trial because of a perceived
shortcoming in the verdict form and because of its disagreement with the jury’s verdict. With
the second trial pending, one of the defendants sought to amend its answer to include a
substantively meritorious defense based on the statute of repose in Tenn. Code Ann. § 29-26-
116(a)(3) (2012). With little explanation or analysis, the trial court denied the motion to
amend on the ground of waiver.

        The controlling question before us is whether the trial court abused its discretion when
it denied the defendant’s motion to amend its answer. While the Court appears to believe
that the answer to this question is open and shut, I believe it is a very close call in light of the
unique facts of this case.

        Under the Tennessee Rules of Civil Procedure, pleadings are no longer technical traps
that ensnare unwitting lawyers. However, they are more than mere procedural niceties.
Their purpose is (1) to inform the opposing party and the court of the nature of the claims and
defenses being asserted by the parties, Webb v. Nashville Area Habitat for Humanity, Inc.,
346 S.W.3d 422, 426 (Tenn. 2011); see also 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1182, at 17-18 (3d ed. 2004), and (2) to enable opposing
parties to prepare for trial. Sanford v. Waugh & Co., 328 S.W.3d 836, 848 (Tenn. 2010).

      All parties – both plaintiffs and defendants alike – occasionally find it appropriate or
necessary to amend their pleadings. Prior to the adoption of the Tennessee Rules of Civil
Procedure, such amendments were hard to come by. However, after the “new” rules became
effective in 1971, Tenn. R. Civ. P. 15.01 stated that when an amendment to a party’s
pleading requires judicial consent, “leave [to amend the pleading] shall be freely given when
justice so requires.” While trial courts retained discretion with regard to granting or denying
motions to amend a pleading, the effect of Tenn. R. Civ. P. 15.01 was to “substantially
lessen” the court’s discretion to deny a motion to amend. Gardiner v. Word, 731 S.W.2d
889, 891 (Tenn. 1987); Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975). Trial courts
were also required to provide a “reasoned explanation” for their decisions to deny a motion
to amend. Henderson v. Bush Bros. & Co., 868 S.W.2d 236, 238 (Tenn. Workers’ Comp.
Panel 1993).

       Not surprisingly, most of the cases construing and applying Tenn. R. Civ. P. 15.01
have involved plaintiffs who desire to amend their complaint to include additional claims or
parties. In these circumstances, the courts have embraced the “liberal policy” in Tenn. R.
Civ. P. 15.01 that favors amendments and have routinely permitted plaintiffs to amend their
complaints. See, e.g., Jones v. Professional Motorcycle Escort Serv., L.L.C., 193 S.W.3d
564, 573 (Tenn. 2006); Branch v. Warren, 527 S.W.2d at 91-92. That is as it should be.

        However, borrowing the words of Tenn. R. Civ. P. 15.01, occasions will arise when
“justice . . . requires” allowing a defendant to amend its answer to assert an affirmative
defense. In those circumstances, the same “liberal policy” that enables plaintiffs to amend
their complaints to add new claims should also enable defendants to amend their answers to
add additional meritorious defenses. Justice, as we understand it here in Tennessee, must be
administered “without respect of persons.” Tenn. Code Ann. § 17-1-104 (Supp. 2012).
Thus, the same liberality with regard to amending pleadings must be made available to
widows, orphans, physicians, and insurance companies.

       The trial court in this case did not provide a reasoned explanation for its conclusion
that Consultants in Anesthesia, Inc. (“Consultants”) had waived its right to assert a statute
of repose defense in this case. This Court has not questioned the legal soundness of the
defense. Rather, relying on George v. Building Materials Corp. of Am., 44 S.W.3d 481, 487
(Tenn. 2001), it has decided that the trial court reached the correct result because
Consultants’s delay in asserting this affirmative defense was “undue.” This is a close call.

       When the original complaint in this case was filed in 2000, Tenn. R. Civ. P. 8.03 did
not explicitly require defenses predicated on the statute of repose to be pleaded as an
affirmative defense. When the first three of the plaintiff’s four amended complaints were
filed, Tenn. R. Civ. P. 8.03 did not require the statute of repose to be pleaded as an
affirmative defense. The explicit requirement that defenses based on the statute of repose
be pleaded as an affirmative defense took effect only two days before the plaintiff filed its

                                              -2-
fourth amended complaint. Consultants filed its answer to the fourth amended complaint
approximately six weeks later, and the case went to trial approximately four weeks after
Consultants filed its answer.

        Trial lawyers should keep abreast of the amendments to the Tennessee Rules of Civil
Procedure. However, it is understandable that busy trial lawyers preparing for a trial that is
two months away might overlook an intervening change in the rules that affects their
pleadings. Based on the factors discussed in George v. Building Materials Corp., I am loathe
to conclude that Consultants unduly delayed in asserting its affirmative defense based on the
statute of limitations. The explicit requirement that a statute of repose defense be pleaded
as an affirmative defense became effective after most of the pleadings had been filed. There
is no evidence of bad faith on Consultants’s part. Consultants’s failure to include a statute
of repose defense in its answer to the fourth amended complaint was, at most, an
understandable oversight.

         Following a defendant’s verdict, the trial court exercised its prerogative to grant a new
trial, thereby placing both the plaintiff and the defendant back at square one. With the parties
in this posture, why does justice require preventing Consultants from asserting a meritorious
defense that would, if granted, spare it the time and expense of a second trial? It cannot
reasonably be said that Consultants’s “delay” in pleading the defense was tactical or that it
prejudices the plaintiff’s ability to respond to the defense.1 No discovery of the facts relevant
to the defense is needed because the relevant facts have been known to the parties for quite
some time. Under the circumstances of this case, the plaintiff can be accorded a full and fair
opportunity to respond to the defense.2

        Accordingly, I respectfully disagree with the Court’s conclusion that Consultants
should be denied the opportunity to amend its complaint because it unduly delayed asserting
its statute of repose defense.

                                                 ______________________________
                                                 WILLIAM C. KOCH, JR., JUSTICE




        1
        See Ennis v. Ring, 353 P.2d 465, 470 (Wash. 1959) ( holding that the plaintiffs were not prejudiced
by permitting the defendants to amend their answer two months before the retrial).
        2
        See Brown v. Little, 489 S.E.2d 596, 598 (Ga. Ct. App. 1997) and Stewart v. Citizens Cas. Co., 308
N.Y.S.2d 513, 514 (N.Y. App. Div. 1970) recognizing the ability of defendants to amend their answer to add
a new defense after a case has been remanded for a new trial.

                                                   -3-
