                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  September 8, 2008 Session

          KAREN CRESPO, ET AL. v. CAROL MCCULLOUGH, ET AL.

                      Appeal from the Circuit Court for Davidson County
                       No. 07C2193     Hamilton V. Gayden, Jr., Judge



                    No. M2007-02601-COA-R3-CV - Filed October 29, 2008


Karen Crespo and Freddie Crespo filed this medical malpractice action in August 2007, alleging
negligence preceding the birth of their daughter, Laura Crespo, in December 2001. The defendants
– OB/GYN physician Carol McCullough, OB/GYN nurse Jerilyn H. Boles, Tennessee Women’s
Care, P.C., and Women’s Health Alliance, P.C. – moved for dismissal, claiming the suit is barred
by this state’s three-year statute of repose for medical malpractice claims, Tenn. Code Ann. § 29-26-
116(a) (2000), as interpreted by the Tennessee Supreme Court in Calaway v. Schucker, 193 S.W.3d
509 (Tenn. 2005). The plaintiffs allege that the statute is unconstitutional as applied to their case.
The State of Tennessee intervened to defend the statute’s constitutionality. The trial court dismissed
the case, but stated in its order that “Plaintiffs’ constitutional arguments are important [and] worthy
of review” and “would be best addressed by the appellate courts.” The plaintiffs appeal. We hold
that Calaway’s interpretation of § 29-26-116(a) – extending the statute of repose to minors –
effectively overturned a body of law that the plaintiffs had reasonably relied upon, and that the
sudden reversal of those precedents, without any opportunity for the plaintiffs to pursue their vested
claims, worked a violation of these plaintiffs’ due process and equal protection rights. Accordingly,
we reverse and remand for further proceedings.

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
joined. D. MICHAEL SWINEY , J., dissented and filed a separate opinion.

David Randolph Smith and Edmund J. Schmidt III, Nashville, Tennessee, for the appellants, Karen
Crespo and Freddie Crespo as natural parents and guardians of Laura Elizabeth Crespo, a Minor.

Noel F. Stahl and Jeffrey Zager, Nashville, Tennessee, for the appellees, Carol McCullough, M.D.,
Tennessee Women’s Care, P.C., and Jerilyn Boles, R.N.
Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and P.
Robin Dixon, Jr., Assistant Attorney General, Civil Rights and Claims Division, Nashville,
Tennessee, for the intervening appellee, the State of Tennessee.

                                              OPINION

                                                   I.

        For ease of understanding, we will discuss the timeline of events in the instant case alongside
the chronology of legal developments affecting the issue before us. The first relevant event occurred
in 1975, with the passage of the Tennessee Medical Malpractice Review Board and Claim Act. The
pertinent portion of this act, now codified at Tenn. Code Ann. § 29-26-116(a), states as follows:

               (1) The statute of limitations in malpractice actions shall be one (1)
               year as set forth in § 28-3-104.

               (2) In the event the alleged injury is not discovered within such one
               (1) year period, the period of limitation shall be one (1) year from the
               date of such discovery.

               (3) In no event shall any such action be brought more than three (3)
               years after the date on which the negligent act or omission occurred
               except where there is fraudulent concealment on the part of the
               defendant, in which case the action shall be commenced within one
               (1) year after discovery that the cause of action exists.

               (4) The time limitation herein set forth shall not apply in cases where
               a foreign object has been negligently left in a patient’s body, in which
               case the action shall be commenced within one (1) year after the
               alleged injury or wrongful act is discovered or should have been
               discovered.

(Emphasis added.)

        As can be seen, the statute indicates that no malpractice claim will be allowed after the three-
year repose period has expired, regardless of when the facts underlying the claim were discovered.
The statute mentions only two exceptions, for fraudulent concealment and for foreign objects left
in the patient’s body, neither of which are applicable in this case. However, in the wake of the
statute’s passage, a question arose as to whether it left open an implied exception for minors and
persons of unsound mind, in accordance with the long-standing disability tolling statute, Tenn. Code
Ann. § 28-1-106 (2000), which states in pertinent part:




                                                  -2-
                 If the person entitled to commence an action is, at the time the cause
                 of action accrued, either within the age of eighteen (18) years, or of
                 unsound mind, such person, or such person’s representatives and
                 privies, as the case may be, may commence the action, after the
                 removal of such disability, within the time of limitation for the
                 particular cause of action[.]

§ 28-1-106 is a statute of general applicability; it is not specifically tailored to medical malpractice
cases. Nevertheless, in the case of a minor who suffers an injury due to alleged medical negligence
during his minority, § 28-1-106 clearly tolls the one-year medical malpractice statute of limitations,
set forth in Tenn. Code Ann. § 28-3-104 (2000), until the minor’s 19th birthday. The question
created by the passage of the Medical Malpractice Review Board and Claim Act (sometimes called
simply the “Medical Malpractice Act”) was whether § 28-1-106 also tolls § 29-26-116(a)’s three-
year statute of repose for medical malpractice actions, or whether the “in no event” language of §
29-26-116(a) prevents such tolling.

         The courts first grappled with this issue in a federal case, Parlato v. Howe, 470 F.Supp. 996
(E.D. Tenn. 1979), which – much like the instant case – involved a child who was severely injured
at birth. The federal district court summarized the issue and ruled as follows:

                 [T]he question presented to the Court is whether Section [§
                 29-26-116(a)] supersedes the operation of Section [§ 28-1-106]1.

                 Section [§ 29-26-116(a)] has been characterized as “an absolute
                 three-year limit on the time within which actions could be brought.”
                 Harrison v. Schrader, 569 S.W.2d 822, 826 (Tenn. 1978). One of
                 the major purposes of the statute was to reduce the “extended period
                 during which a physician could be subject to potential liability”
                 because of the rule that causes of action for medical malpractice
                 accrue when the patient discovers, or in the exercise of reasonable
                 care, should have discovered the resulting injury. Harrison v.
                 Schrader, supra; see Teeters v. Currey, 518 S.W.2d 512, 517 (Tenn.
                 1974).

                 Defendants argue that the words “in no event shall any such action be
                 brought more than three (3) years after the date on which the
                 negligent act or omission occurred” are to be taken literally. This
                 action was filed February 28, 1979, much more than three years after
                 the alleged negligence [which occurred on September 30, 1971].
                 Thus, the strict application of Section [§ 29-26-116(a)] would bar the


        1
          The statutes have been renumbered since the Parlato decision, but without substantive changes. For ease of
understanding, we have replaced the old statutory citations with the new ones.

                                                        -3-
               action. Defendants argue that Section [§ 29-26-116(a)], as more
               specific and later in enactment, than Section [§ 28-1-106], is entitled
               to precedence. Defendants also point out that s 22 of the Malpractice
               Act provides that:

                       All laws or parts of laws inconsistent with the
                       provisions of this Act be and the same are hereby
                       repealed to the extent of such inconsistency.

               In the Court’s view, Section [§ 29-26-116(a)] was not intended to
               interfere with the operation of the legal disability statute. . . . The
               legal disability statute represents a long-standing policy of the State
               of Tennessee to protect potential causes of actions by minors during
               the period of their minority. See Gaugh v. Henderson, 39 Tenn. 628,
               634 (1859). Unlike the discovery rule itself, the legal disability
               statute does not represent a recent alteration in procedure and is not
               in any way associated with the “medical malpractice insurance crises”
               that concerned the legislature in passing Section [§ 29-26-116(a)].
               Harrison v. Schrader, 569 S.W.2d at 826. Before acknowledging the
               elimination of such an established policy, this Court would require
               more evidence of legislative intent than mere silence.

               The Court is strengthened in its view by the particularly onerous
               burden operation of Section [§ 29-26-116(a)] would have upon
               minors without the legal disability statute. In its normal operation,
               Section [§ 29-26-116(a)] may have the effect of eliminating a cause
               of action before it accrues, that is, prior to the discovery of any injury.
               Harrison v. Schrader, 569 S.W.2d at 827-28. The impact upon
               minors argued for by defendants, however, would be even harsher
               than that considered by the Tennessee Supreme Court in Schrader.
               Under Section [§ 29-26-116(a)], if an injury is discovered within the
               three-year period, an adult is at least in a position to protect himself
               by bringing his action promptly. A minor, especially one who, like
               plaintiff here, is injured at a very early age, is helpless to protect
               himself. If Section [§ 29-26-116(a)] is held to eliminate the legal
               disability statute in medical malpractice cases, the minor could
               forever lose his cause of action strictly through the neglect of others.
               This burden upon minors would be so oppressive that the Court
               cannot reasonably so construe Section [§ 29-26-116(a)] unless clear
               legislative intent appears.

Id. at 998-99 (footnote omitted).



                                                  -4-
        Approximately one month later, the same issue arose in state court when we ruled on Braden
v. Yoder, 592 S.W.2d 896 (Tenn. Ct. App. 1979). In that case, involving alleged negligent treatment
of a seven-year-old’s broken arm, we reversed a trial court order dismissing a malpractice action that
was filed more than 11 years after the injury occurred, but “approximately two weeks prior to the
plaintiff’s nineteenth birthday.” Id. at 897. We initially noted that the key events of that case long
pre-dated the passage of the 1975 malpractice statute, and thus the statute “is not applicable to this
suit.” However, we also stated:

               In Parlato v. Howe, U.S. District Court, Knoxville, filed April 20,
               1979, and designated for publication, Judge Taylor held that T.C.A.
               [§ 29-26-116(a)] did not eliminate the special rights of minors under
               T.C.A. [§ 28-1-106]. We agree completely. There is no legislative
               intent that such rights be eliminated and to do so would cause harsh
               results to parties injured at an early age who are helpless to protect
               their rights.

               For the reasons above, we hold that this suit is not barred by the
               maximum limitation period of T.C.A. [§ 29-26-116(a)].

Id. (emphasis added).

        The rule adopted by Braden remained undisturbed for more than twenty years. It was
specifically affirmed by this court in Bowers by Bowers v. Hammond, 954 S.W.2d 752 (Tenn. Ct.
App. 1997), another case involving birth-related injuries giving rise to a lawsuit filed more than three
years after the child’s birth, but while the child was still a minor. Our opinion in Bowers extensively
quotes from both Parlato and Braden, as well as from an unpublished 1983 opinion cited as Adkins
v. Martin, slip op. at 6-9 (Tenn. Ct. App., filed March 28, 1983), which had applied the logic of
Parlato and Braden to cases involving mentally incompetent plaintiffs. In Bowers, we extensively
analyzed all three cases, among others, and then held

               that the trial court erred in entering summary judgment in favor of the
               Defendants based on the Medical Malpractice Act’s three-year statute
               of repose. Although the Defendants skillfully advance several
               arguments for why this court should reexamine its holding in Adkins,
               after doing so, we remain unconvinced that recent developments in
               this area of the law require us to depart from prior precedent of this
               court.

Id. at 758. Our holding in Bowers, like the previous holdings, interpreted Tenn. Code Ann. §
29-26-116(a) as implicitly including an exception for minors during their minority, in accordance
with Tenn. Code Ann. § 28-1-106.




                                                  -5-
         The Tennessee Supreme Court first touched upon the interplay of § 29-26-116(a) and §
28-1-106 in Penley v. Honda Motor Co., Ltd., 31 S.W.3d 181 (Tenn. 2000). Penley was a products
liability case, not a medical malpractice case, but the plaintiffs therein cited Bowers in support of
their argument that the similar Tennessee Products Liability Act statute of repose, Tenn. Code Ann.
§ 29-28-103(a) (2000), should be tolled during a period of mental incompetency. The High Court
opined:

               [The] plaintiff urges this Court to follow the approach taken by
               Bowers by Bowers v. Hammond, 954 S.W.2d 752 (Tenn. Ct. App.
               1997), in which the Court of Appeals held that the legal disability
               statute tolled the three-year medical malpractice statute of repose,
               Tenn. Code Ann. § 29-26-116, during the minority of the plaintiff.
               In dicta, the Bowers court expressed the belief that minority status
               was synonymous with mental incompetency, and that section
               28-1-106 permitted tolling of the statute of repose for mental
               incompetency as well.

               We disagree with the rationale used by the Bowers court to find
               implied exceptions for minority and mental incompetence to the
               three-year medical malpractice statute of repose. The Bowers holding
               is in stark contrast to the plain language of the statute, which admits
               of no tolling other than for fraudulent concealment, and the holding
               fails to recognize the policies underlying the statute of repose itself.
               In addition, the Bowers court seems to have ignored that the plain
               language of the legal disability statute applies only to toll statutes of
               limitations rather than statutes of repose.

               Despite its imperfect reasoning, though, we note that the actual
               holding of the Bowers court does little structural damage to the
               medical malpractice statute of repose. As we stated earlier, not all
               types of legal disability affect the running of a statute of repose in the
               same manner, and an exception for minority [as opposed to an
               exception for mental incompetency, which is potentially indefinite]
               merely extends – but does not practically eliminate – the repose
               period. Because Bowers has been the law in this state since 1997,
               and because the General Assembly has made no effort to amend the
               three-year statute of repose since Bowers to remove the implied
               exception for minority, we recognize that the bench, bar, and the
               public in general may have various reliance interests in its holding.
               Accordingly, we limit the precedential weight of that opinion to its
               explicit holding that the three-year medical malpractice statute of
               repose is tolled during the minority of the plaintiff. To the extent that
               the Bowers dicta can be read to toll any statute of repose for mental


                                                  -6-
               incompetency under Tennessee Code Annotated section 28-1-106,
               however, it is overruled.

Penley, 31 S.W.3d at 188 (emphasis added). It bears repeating that Penley was a products liability
case, not a medical malpractice case, and thus the last paragraph quoted above is technically dicta.
Nevertheless, that Penley dicta, even while criticizing the “imperfect reasoning” of Bowers,
explicitly endorsed Bowers’s core holding: that, in the Supreme Court’s words, “the three-year
medical malpractice statute of repose is tolled during the minority of the plaintiff.” The Penley
opinion was released on August 25, 2000.

         On December 24, 2001, Laura Crespo was born. According to the plaintiffs’ complaint, she
sustained severe injuries at birth due to “oxygen deprivation at and near birth associated with an
abruption of Mrs. [Karen] Crespo’s placenta [several hours before Laura Crespo’s birth]. Laura
sustained ‘hypoxic ischemic encephalopathy’ as a result of a concealed placental abruption.” The
plaintiffs claim that the defendants committed negligence in failing to promptly recognize the
emergency situation and tell the Crespos to go immediately to the hospital. Their complaint states
that this negligence caused “a failure to timely diagnose” the problem, which “has left Laura Crespo
with major life-altering disabilities.”

        At some point “more than one year” after Laura Crespo’s birth, her parents retained legal
counsel. Various steps were taken in preparation for a possible lawsuit. The parties exchanged
information and corresponded about various medical records that the prospective plaintiffs sought
to obtain. The Crespos say they hoped to settle the case, and proceeded in part with that goal in
mind. In accordance with the courts’ then-operative interpretation of the law of this state – under
Penley, Bowers and the earlier cases – there was no apparent hurry to file suit, as Tenn. Code Ann.
§ 28-1-106 would toll both the statute of limitations and the statute of repose during the period of
Laura Crespo’s minority, allowing the Crespos to file suit at any time before Laura Crespo’s
nineteenth birthday.

        Then, on December 9, 2005, the legal situation changed suddenly and dramatically with the
release of the Tennessee Supreme Court’s opinion in Calaway ex rel. Calaway v. Schucker, 193
S.W.3d 509 (Tenn. 2005). That case had begun in federal court in September 2002, when a minor
plaintiff and her mother filed a medical malpractice claim relating to injuries sustained at birth in
February 1996. The federal district court certified a series of questions to the Tennessee Supreme
Court, including: “Is the three-year statute of repose for medical malpractice in Tennessee Code
Annotated section 29-26-116, which contains no exception for minority, tolled during a plaintiff's
minority?” In its Calaway opinion, the Supreme Court, by a 3-2 vote, answered this question in the
negative, overruling the identical Braden and Bowers holdings and casting aside the Penley dicta.
The Court explained its ruling thusly:

               This case presents us with our first direct opportunity to address the
               question whether the minority provisions of Tennessee’s legal
               disability statute, Tennessee Code Annotated section 28-1-106, toll


                                                -7-
the medical malpractice statute of repose, Tennessee Code Annotated
Section 29-26-116(a)(3).

                                 * * *

We recognize that the Legislature may, in some instances, allow
plaintiffs to commence a lawsuit despite the absolute nature of
applicable statutes of repose. For example, we find a clearly stated
exception in the medical malpractice statute of repose for fraudulent
concealment. See Tenn.Code Ann. § 29-26-116(a)(3). The plaintiff’s
amicus here argues that the legal disability statute, Tennessee Code
Annotated section 28-1-106, was intended by the Legislature to serve
as an exception to the medical malpractice statute of repose, citing in
support a string of cases from lower state courts and one federal
court. See, e.g., Parlato v. Howe, 470 F.Supp. 996 (E.D. Tenn.
1979); Braden v. Yoder, 592 S.W.2d 896 (Tenn. Ct. App. 1979),
Bowers v. Hammond, 954 S.W.2d 752 (Tenn. Ct. App. 1997).

We respectfully disagree with the plaintiff’s amicus’ argument. As we
have stated above, the medical malpractice statute of repose imposes
an absolute three-year bar on such actions, with the exception of the
exemptions in the statute itself. In Penley, we stated that “when the
General Assembly has desired that exceptions apply to a statute of
repose, ... the exception is either found with the language of the
statute itself, or in another part of the code specifically referencing the
particular statute of repose.” Penley, 31 S.W.3d at 184-85. We find
neither requirement satisfied in this case for minority. The medical
malpractice statute of repose contains no express exception for
minors. Neither does any other part of the Code, including the legal
disability statute, reference the statute of repose with respect to
minors.

                                 * * *

Although it is true that we did, in Penley, acquiesce in the Bowers
holding by “limit[ing] the precedential weight of [the Bowers]
opinion to its explicit holding that the three-year medical malpractice
statute of repose is tolled during the minority of the plaintiff,” 31
S.W.3d at 185, we chose not to overrule Bowers because the issue
was not squarely presented in that case, as it is here. Moreover, the
plaintiff’s reliance on this statement is misplaced because our
acquiescence was clearly in dicta. Not only did the two cases come
to differing conclusions – Penley declining to find an exemption for


                                   -8-
               mental incompetents to Tennessee’s products liability statute of
               repose, and Bowers implicitly finding an implied exemption for
               minors to the medical malpractice statute of repose – the respective
               bases upon which the two holdings rested were entirely different as
               well. In fact, we expressed our total disagreement with the reasoning
               employed by the Bowers court to reach its holding.

                       We disagree with the rationale used by the Bowers
                       court to find implied exceptions for minority and
                       mental incompetence to the three-year medical
                       malpractice statute of repose. The Bowers holding is
                       in stark contrast to the plain language of the statute,
                       which admits of no tolling other than for fraudulent
                       concealment, and the holding fails to recognize the
                       policies underlying the statute of repose itself.

               Id., 31 S.W.3d at 188.

               We now expressly overrule the Bowers and Braden courts and hold
               that the plaintiff’s minority does not toll the medical malpractice
               statute of repose.

Calaway, 193 S.W.3d at 514-17.

        The Calaway decision did not recite or specifically address the Court’s previous statement,
in Penley, that “[b]ecause Bowers has been the law in this state since 1997, and because the General
Assembly has made no effort to amend the three-year statute of repose since Bowers to remove the
implied exception for minority, we recognize that the bench, bar, and the public in general may have
various reliance interests in its holding.” Penley, 31 S.W.3d at 188. However, in response to a
petition to rehear filed by the plaintiffs in that case, the Court did amend its Calaway opinion on
February 21, 2006, to limit its holding as follows:

               In order to avoid undue hardship to potential plaintiffs who have
               relied upon the Bowers rule, the new rule we announce today is to
               have prospective application only. Therefore, for cases commenced
               on or before December 9, 2005, we hold that the plaintiff’s minority
               tolls the medical malpractice statute of repose. For cases commenced
               after December 9, 2005, we hold that the plaintiff’s minority does not
               toll the medical malpractice statute of repose.

Calaway, 193 S.W.3d at 518 (emphasis added). As noted earlier, December 9, 2005, was the date
the original Calaway opinion was released. Thus, although the February 21, 2006, order on petition
to rehear made Calaway “prospective” in the sense that it did not change the rules for any lawsuits


                                                -9-
filed before its release date, Calaway still retrospectively barred any as-yet unfiled claims relating
to injuries that occurred more than three years before the release of the original opinion. Thus, the
amended Calaway opinion still does not address the “reliance interests” of potential plaintiffs, like
the Crespos, who waited more than three years to file suit and were still waiting when Calaway was
released.

        The Crespos attempted to intervene in Calaway, filing a motion on December 19, 2005,
requesting leave to appear as amicus curiae in the Calaway case upon rehearing. They also filed a
proposed amicus brief with the Court. The Court rejected the Crespos’ motions on February 21,
2006, in the same order that announced the amended opinion. Accordingly, the Crespos’ arguments
were never actually before the Court in Calaway.

       Although the plaintiffs in Calaway had filed suit in September 2002, well before the
December 2005 deadline, they nevertheless filed a second motion to rehear, asking the Court to “give
prospective application of the newly announced rule to cases involving injuries occurring after
December 9, 2005, rather than to cases commenced after this date.” Calaway, 193 S.W.3d at 522
(emphasis in original). This motion was denied on September 13, 2007, with a simple statement:
“Upon due consideration, we conclude that the appellants’ petition is not well-taken and should be
denied.” Id. The High Court did not elaborate further on its reasoning.

         The Crespos filed their lawsuit in the instant case on August 2, 2007. The first page of their
complaint describes the case as “a medical malpractice lawsuit and constitutional challenge.” The
constitutional grounds are listed as “[d]ue process, equal protection and improper retroactive
application of law.” As we interpret the Crespos’ argument, their constitutional arguments actually
fall into two distinct, overarching categories: 1) that Calaway’s interpretation of § 29-26-116(a) is
unconstitutional, on both due process and equal protection grounds, as applied to all minors (or at
least all minors injured at birth); and 2) that Calaway’s partially retroactive application is
unconstitutional, on both due process and equal protection grounds, insofar as it bars the claims of
minors injured before Calaway who were unable to file suit within three years of their injuries
because of the abrupt change in the law worked by the Calaway decision. As will be seen, we do
not reach the first set of arguments, but rather base our decision entirely on the second set, relating
to Calaway’s retroactivity.

        The defendants filed a motion to dismiss on September 7, 2007. The trial court heard oral
arguments on the motion to dismiss, and on November 8, 2007, the court dismissed the case.
However, as noted earlier, the court declared the plaintiffs’ constitutional arguments “important
[and] worthy of review” by the appellate courts. The trial court also stated that the plaintiffs’ claims
are “supported by record evidence to provide a factual and legal basis for the as-applied challenge.”
Specifically, the court wrote that the plaintiffs “have presented affidavit proof from experts
establishing that Laura Crespo received severe brain injuries at birth,” and added that evidence in
the record shows that “medical records and films were still being gathered at the time the three-year
statute of repose had expired.” The plaintiffs timely appealed.



                                                 -10-
                                                            II.

                                                            A.

        This case presents a pure question of law, which we review de novo with no presumption of
correctness. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997). Our decision turns
upon the question of whether the Supreme Court’s decision in Calaway, which effectively “ran out
the clock” on the Crespos’ claim with no prior warning, worked a deprivation of these plaintiffs’ due
process or equal protection rights under the state and federal constitutions.2

        Obviously, we are bound by the Calaway decision. “This court does not have the prerogative
to disregard decisions of the Tennessee Supreme Court.” In re Estate of Greenamyre, 219 S.W.3d
877, 883 (Tenn. Ct. App. 2005). On the contrary, “we are obliged to follow the directions of the
Tennessee Supreme Court, particularly after the ‘court has given definite expression to its views in
a case after careful consideration.’ ” Id. (quoting Holder v. Tenn. Judicial Selection Comm’n, 937
S.W.2d 877, 881 (Tenn. 1996)). However, the constitutional issues raised herein were not before
the Court in Calaway, nor were these plaintiffs and their rights at issue in that case. The only
constitutional claims adjudicated in Calaway were a pair of equal protection and due process
arguments by the defendant doctor.3 The Crespos’ attempt to raise their constitutional claims in
Calaway was thwarted when the Court declined their request to intervene in the case, and the Court’s
denial of the Calaway plaintiffs’ second motion for rehearing does not spell out the rationale of that
decision. Certainly, that denial of a second rehearing did not “give[] definite expression to [the
Court’s] views” on these constitutional questions. Holder, 937 S.W.2d at 881. In short, the Court’s
opinion in Calaway simply does not answer the constitutional questions raised by the plaintiffs in
this case. Accordingly, we conclude that this case presents a matter of first impression with regard
to the impact of Calaway on the constitutional rights of plaintiffs in the Crespos’ position, and we
proceed on that basis.



         2
            Our holding for the plaintiffs on this issue pretermits consideration of their broader claim that Calaway’s
interpretation of Tenn. Code Ann. § 29-26-116(a) is unconstitutional as applied to all minors, or all minors injured at
birth.

         3
            The first equal protection argument by the doctor in Calaway challenged the application of the old Bowers
rule to her pre-December 2005 case. That issue is relevant, if at all, only to the Crespos’ broader constitutional argument
regarding “all minors,” which we do not reach here. The Calaway doctor’s second equal protection argument asserted
that the prospective aspect of the Calaway ruling unfairly favors those lucky defendants whose alleged malpractice
victims did not sue them prior to the release of the Calaway decision. This is essentially the mirror image of the
plaintiffs’ equal protection argument that we will address later in this opinion: that the retrospective aspect of the
Calaway ruling unfairly disadvantages those unlucky would-be plaintiffs who did not happen to sue their alleged
tortfeasors prior to the release of the Calaway decision. Although these arguments are structurally similar, the equities
and considerations involved in adjudicating them are so different that we cannot draw any meaningful conclusions from
the Supreme Court’s rejection of the defendant doctor’s argument in Calaway. As for the due process arguments raised
by the doctor in Calaway after the motion for rehearing by the plaintiffs in that case, one was rendered moot by the
Court’s rejection of that motion, and the other requests a balancing of interests that has no applicability to this case.

                                                          -11-
        We believe that the abrupt change in the law created by the Calaway decision deprived the
plaintiffs of both their due process rights and their equal protection rights. We will discuss due
process first, then proceed to equal protection.

         Before discussing either issue in detail, however, we wish to emphasize that our conclusion
does not imply any criticism of – still less any attempt to overturn the binding dictates of – the
Supreme Court of this state. As we have already pointed out, the High Court did not have these
plaintiffs or these facts before it when Calaway was argued. By limiting Calaway’s holding to
“cases commenced after December 9, 2005,” the High Court protected the rights of the parties in that
case, in the situation presented by that record. The Court also ensured that other plaintiffs with
active cases, filed before Calaway, would not suffer a “hardship” because they “justifiably relied
upon the old precedent.” Marshall v. Marshall, 670 S.W.2d 213, 215 (Tenn. 1984). However,
Calaway did not address – and did not purport to address – the plight of plaintiffs like the Crespos,
who had been preparing their case for several years, secure in the knowledge that they would not be
penalized for their delay – until Calaway suddenly, in essence, pulled the rug out from under them.
It is that situation, quite different from the one Calaway presented to the Supreme Court, which, we
now hold, created constitutional violations.

         We recognize that it is somewhat unusual to find that the due process and equal protection
guarantees were violated by the application and timing of a judicial decision, rather than by the
application of a statute. The Marshall case just cited, in discussing the issue of retroactive versus
prospective application of judicial decisions overturning previously relied-upon precedents, does not
mention either due process or equal protection, nor does Hill v. City of Germantown, 31 S.W.3d 234
(Tenn. 2000), which is cited by the plaintiffs for the proposition that Calaway’s application to this
case is impermissibly retroactive. Both of these opinions state that new precedents will be denied
retroactive effect “only if such an application would work a hardship upon those who have justifiably
relied upon the old precedent,” Hill, 31 S.W.2d at 239 (quoting Marshall, 670 S.W.2d at 215), but
this rule is not explicitly framed in constitutional terms. In the instant case, however, we believe that
not just “hardship,” but constitutional violations, are manifest – every bit as much as if a newly
enacted statute had violated an individual’s due process or equal protection rights. We now proceed
to explain why this is so.

                                                   B.

        The Fourteenth Amendment to the United States Constitution provides that no state shall
“deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV, § 1. The Law of the Land Clause of the Tennessee Constitution states that no person “shall be
taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or
in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers
or the law of the land.” Art. I, § 8. These constitutional provisions are “synonymous.” Daugherty
v. State, 393 S.W.2d 739, 743 (Tenn. 1965).




                                                  -12-
        Both provisions recognize a substantive due process interest in an vested, existing cause of
action. “It is well settled that a vested right of action is as much property as are tangible things and
is protected from arbitrary legislation.” Morris v. Gross, 572 S.W.2d 902, 905 (Tenn. 1978). “Such
a vested right of action enjoys the full protection of the due process clauses of the Federal and State
Constitutions.” Id. Furthermore, notwithstanding the “the general rule that no one has a vested right
in a particular remedy for the enforcement of a right of action,” and thus “the legislature ordinarily
may change existing remedies for the enforcement of rights, including those which have already
vested,” such a change may work a violation of due process rights if it fails to provide “a substantial
remedy to redress that right by some effective procedure.” Id. As the Supreme Court stated in a
post-Calaway case, in which the plaintiffs challenged the application of the three-year statute of
repose to cases of mental incompetency,

                   [i]t is correct to say that the plaintiffs’ vested right of action for
                   medical malpractice in this case enjoys constitutional protection.
                   Mr. Mills’ cause of action accrued in February 1997, when the
                   plaintiffs first discovered that he had Wilson’s Disease. A vested
                   right of action in tort is a cause of action which has accrued, thereby
                   becoming presently enforceable. See Jones v. Morristown-Hamblen
                   Hosp. Assoc., Inc., 595 S.W.2d 816, 820-21 (Tenn. Ct. App. 1979).
                   Vested rights of action in tort may be classified as
                   constitutionally-protected property interests. “[A] vested right of
                   action is as much property as are tangible things ... and enjoys the full
                   protection of the due process clauses of the Federal and State
                   Constitutions.” Morris v. Gross, 572 S.W.2d 902, 905 (Tenn. 1978);
                   see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102
                   S.Ct. 1148, 71 L.Ed.2d 265 (1982) (“[A] cause of action is a species
                   of property protected by the Fourteenth Amendment's Due Process
                   Clause.”).

Mills v. Wong, 155 S.W.3d 916, 921 (Tenn. 2005) (emphasis added).4

        Of course, as Mills also states, “a rationally-based statute of repose validly extinguishes not
only unaccrued causes of action, but also causes of action which have already accrued and vested
as rights.” Id. at 922. However, in accordance with the language of Mills, and more generally with
simple common sense, we hold that the Crespos’ right to sue was vested at the time the Calaway
opinion was released, and that their vested right had not yet been extinguished at that time. Under


         4
            It should also be noted that the Court in Mills specifically did not address the retroactivity issue that is present
in the instant case. Indeed, a footnote in Mills explicitly points out that “[t]he disturbance of vested rights through
retroactive legislation . . . implicates a different constitutional question which is not at issue in this case.” Mills, 155
S.W .3d at 922, n.5. That “different constitutional question” is essentially what is at issue here: whether the effective
change in the law worked by Calaway, which suddenly and unexpectedly eliminated plaintiff’s ability to pursue their
existing legal claim, constitutes an impermissible “disturbance of vested rights through retroactive legislation”– or rather,
in this case, retroactive judicial interpretation of legislation.

                                                             -13-
the law of this state as it was understood to exist prior to Calaway, there was no applicable statute
of repose, rationally based or otherwise, that could have extinguished it. Thus, it was the sudden
change in the law caused by Calaway, rather than the natural running of a pre-existing statute of
repose, that effectively cut off the Crespos’ vested rights. This fact gives rise to the Crespos’ due
process claim, and distinguishes this case from others in which statutes of repose have been upheld.

         The defendants contend that Calaway did not work a change in the law, but rather
“interpreted the Act as originally enacted,” Murvin v. Cofer, 968 S.W.2d 304, 310 (Tenn. Ct. App.
1997). Thus, they argue, the Crespos’ vested right to sue expired not on December 9, 2005,
when Calaway was released, but rather on December 25, 2004, when the statute of repose – as
interpreted by Calaway, almost a year later – ran. “The Supreme Court’s . . . decision in Calaway
did not strip away her cause of action,” the defendants argue. Rather, they say, the Court “simply
interpreted that statute and set forth what always has been the law; namely, that the statute of repose
is not tolled by a plaintiff’s minority.” Although we follow the defendants’ logic, we think such a
conclusion would be monumentally unjust on these facts. Whether or not it is technically defined
as “new law,” Calaway completely altered the legal situation facing these parties. Neither party in
this case had any reason to believe, on December 25, 2004, that there was an applicable statute of
repose. The courts, including the Supreme Court, were unanimous that § 29-26-116(a) did not apply.

        Nevertheless, the defendants argue that we cannot consider Calaway to have “changed” the
law. In support of this conclusion, they cite our language in Murvin, a Consumer Protection Act
case in which we reversed the trial court’s ruling because the Supreme Court had announced a new
interpretation of the governing statute during the intervening period between trial and appeal. In
declining to limit the subject Supreme Court opinion, Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn.
1997), to prospective application only, we wrote that

               the Supreme Court [in Ganzevoort] held, in effect, that the Act has
               never been applicable to [facts such as those in the case at issue]. The
               fact that there was a [previous] holding of a federal district court and
               a decision of the Court of Appeals to the contrary does not change
               this fact. This is not a case where the Supreme Court changes the law
               and specifically limits the cases to which it is applicable. See, e.g.,
               McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn. 1992). The
               Supreme Court interpreted the Act as originally enacted. This means
               that the inapplicability of the Act to [facts such as these] has always
               been the law even though it was only recently pronounced
               authoritatively by the Supreme Court.

968 S.W.2d at 309-10. There are at least three key differences between Murvin and the instant case.
First, that case simply did not involve the sort of extensive “reliance interests,” in Penley’s words,
that are present here. The level of fundamental unfairness that would be implicated by a contrary
ruling in this case is therefore far higher. Secondly, the ruling in Ganzevoort, which dictated the
result in Murvin, involved the construction of a single, specific statute; the ruling in Calaway, by


                                                 -14-
contrast, involves the interpretation of the interplay between two separate statutes, Tenn. Code Ann.
§ 29-26-116(a) and Tenn. Code Ann. § 28-1-106. Thus, as the plaintiffs write in their reply brief,
“[a]lthough the 1975 statute may have always meant what it meant (as pronounced in Calaway in
2005), [the plain language of that statute] did not answer what . . . the 1975 statute did vis-a-vis the
1858 disability statute that had always protected minors.”

        Thirdly, and perhaps most importantly, Ganzevoort did not alter a precedent that the Supreme
Court itself had previously endorsed. It merely overruled an interpretation by the Court of Appeals
and a federal court. By contrast, in this case, the Court in Calaway effectively reversed its own prior
statements in Penley. The Supreme Court overruled a Court of Appeals precedent that it had
announced, five years earlier in Penley, that it would let stand. The plaintiffs in the instant case, by
waiting more than three years to file suit, were relying upon a body of apparently settled law that had
been given the explicit imprimatur of the Supreme Court. This creates a far different situation than
a case, like Murvin, in which the parties had assumed that prior lower court interpretations of a
statute were valid. It is very difficult to fault the bench, bar and public for conducting themselves
in a manner that presumes a clearly stated Supreme Court opinion is valid and operative.

       We are not unmindful of the fact that the Court’s statement in Penley was technically dicta.
However, it would be unreasonable to expect the parties in this case to have simply ignored it.
Indeed, such an expectation would be not just unreasonable, but contrary to law, as the Supreme
Court made clear in Holder:

               [T]rial courts must follow the directives of superior courts,
               particularly when the superior court has given definite expression to
               its views in a case after careful consideration. Accordingly, inferior
               courts are not free to disregard, on the basis that the statement is
               obiter dictum, the pronouncement of a superior court when it speaks
               directly on the matter before it, particularly when the superior court
               seeks to give guidance to the bench and bar. To do otherwise invites
               chaos into the system of justice.

937 S.W.2d at 881-82 (Tenn. 1996) (citations omitted). It could hardly be more clear that the
Court’s statement in Penley was intended to “give guidance to the bench and bar,” in light of the
language that straightforwardly premises its conclusion on the fact that “the bench, bar, and the
public in general may have various reliance interests in [Bowers’s] holding.” Penley, 31 S.W.3d at
188. It is equally apparent that Penley’s dicta “speaks directly on the matter” at issue in the instant
case: it announced the continuing validity of the “holding that the three-year medical malpractice
statute of repose is tolled during the minority of the plaintiff,” precisely the issue in this case. Id.
Accordingly, “inferior courts [were] not free to disregard” Penley prior to the release of Calaway
– nor, presumably, were members of the bar and the public, whose “reliance interests” the Court
premised its conclusion upon.




                                                 -15-
        Having concluded that the plaintiffs’ right to sue was vested and existing on the date of
Calaway’s release, the conclusion that Calaway violated the plaintiffs’ due process rights follows
naturally. The United States Supreme Court articulated the relevant principle in Terry v. Anderson,
95 U.S. 628, 632-33 (1877), stating: “This court has often decided that statutes of limitation affecting
existing rights are not unconstitutional, if a reasonable time is given for the commencement of an
action before the bar takes effect.” (Emphasis added.) Although this case involves a statute of
repose, rather than a statute of limitations, the underlying principle is the same. A “reasonable time”
is what is missing here. The Calaway decision allowed no time for plaintiffs in the Crespos’
position to file suit – unless one considers whatever brief period of hours may have existed between
the release of the opinion on December 9, 2005, and the stroke of midnight on December 10. This
minuscule period is obviously insufficient to give prospective plaintiffs like the Crespos a
“reasonable” opportunity to adjust to the new precedent and file their long-planned lawsuits – and
in any case, the significance of this extremely brief window did not become apparent until Calaway
was amended more than two months later.

         The need for a “reasonable time” in such circumstances was more recently noted by a court
of this state in State v. Sumlin, No. 02C01-9204-CR-00095, 1993 WL 15177, at *2 (Tenn. Cr. App.,
filed January 27, 1993) (quoting 51 Am.Jur.2d Limitation of Actions § 27), which stated that existing
time limitations on civil actions may be shortened “without violating constitutional guaranties . . .
provided a reasonable time is allowed for the enforcement of existing causes of action,” and that new
limitations may be imposed, provided that the new limitation is “not made applicable to an existing
cause of action in such a way as to preclude any opportunity to bring suit.” (Emphasis added.)
Here, the abrupt change in parties’ legal situation, caused by Calaway, did indeed preclude any
opportunity for the Crespos to bring suit.

         To summarize: because of Calaway’s immediate applicability, the plaintiffs were denied any
process by which to vindicate their vested legal rights, through absolutely no fault of their own.
They had every reason to rely on Bowers and the other related cases – especially after the Supreme
Court in Penley explicitly stated, albeit in dicta, that the Bowers precedent was valid in situations
like this one. So they bided their time, gathering information and communicating with the
defendants at a relatively leisurely pace, which was perfectly reasonable given the clearly stated law
at the time. Then, nearly four years after Laura Crespo’s birth, at a time when the plaintiffs were still
awaiting responses from the defendants on various requests for medical records, Calaway suddenly
and instantly invalidated the Crespos’ cause of action and gave them no recourse to salvage it. If
Calaway had created, for example, a one- or two-year window for plaintiffs in the Crespos’ position
to file suit, that would have been an entirely different situation. But, as things transpired, no window
at all was announced, and the Crespos’ due process rights were clearly violated.

        For all of the reasons stated above, we find that Calaway worked a violation of these
plaintiffs’ due process rights, and accordingly, we reverse the trial court’s dismissal of their case.
In so holding, we do not alter the general rule that revised judicial interpretations of statutes usually
apply retrospectively, Hill v. City of Germantown, 31 S.W.3d 234, 239 (Tenn. 2000), nor do we
suggest that a constitutional violation occurs in each and every case where retroactive application


                                                  -16-
would lead to some hardship, or where some degree of reliance on prior rulings can be shown. Our
holding is limited to these facts, which we believe present an unusually stark example of clear
reliance on apparently settled law that, after being endorsed by the Supreme Court, is upended by
a swift and sudden reversal that completely changes the parties’ legal situation and leaves the
plaintiffs with no recourse to pursue their rights. Most retrospective applications of judicial
decisions do not violate anyone’s due process. This one, however, does.

                                                           C.

        In addition to the due process violation, there is another constitutional problem here, which
constitutes a separate, independent ground for reversal of the result below. As we have already
stated, this case has an equal protection dimension as well. “The concept of equal protection
espoused by the federal and our state constitutions guarantees that ‘all persons similarly
circumstanced shall be treated alike.’ ” Tennessee Small School Systems v. McWherter, 851
S.W.2d 139, 153 (Tenn. 1993) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415
(1920)). For purposes of our analysis, the “persons similarly circumstanced” are a real person –
Laura Crespo, the primary plaintiff herein – and a hypothetical person, a plaintiff who was injured
on the same day as Laura Crespo, and who (like Laura Crespo) waited more than three years to file
suit, but (unlike Laura Crespo) filed suit prior to the Calaway decision.5

       The Fourteenth Amendment to the United States Constitution provides that no state shall
“deny to any person within its jurisdiction the equal protection of the laws,” U.S. Const. amend.
XIV, § 1, while the Tennessee Constitution states that the

                  Legislature shall have no power to suspend any general law for the
                  benefit of any particular individual, nor to pass any law for the benefit
                  of individuals inconsistent with the general laws of the land; nor to
                  pass any law granting to any individual or individuals, rights,
                  privileges, immunitie[s] or exemptions other than such as may be, by
                  the same law extended to any member of the community, who may
                  be able to bring himself within the provisions of such law.

Tenn. Const. art. XI, § 8. In addition, the earlier-quoted Law of the Land Clause of the Tennessee
Constitution, Tenn. Const. art. I, § 8, has been interpreted as guaranteeing not just due process, but
equal protection as well. State v. Tester, 879 S.W.2d 823, 827 (Tenn. 1994). As with due process,
the federal and state equal protection guarantees are essentially synonymous. As Calaway itself
noted, the Supreme Court of this state has “consistently held that the state equal protection guarantee
is co-extensive with the equal protection provisions of the Fifth and Fourteenth Amendments of the

         5
           It is worth noting that the defendants’ argument that Calaway did not change the law, but merely clarified what
the law has always said, has no applicability to the equal protection issue. As the plaintiffs note in their reply brief,
“[o]bviously Calaway created new law on February 21, 2006 when, on rehearing, the Court ruled that minors who sued
before December 9, 2005 may rely on tolling and Bowers whereas those who filed afterwards are time-barred and get
no tolling. The statute as passed by the Tennessee legislature in 1975 makes no such distinction[.]”

                                                          -17-
U.S. Constitution.” Calaway, 193 S.W.3d at 518. While acknowledging the “linguistic and
historical differences” between the federal and state equal protection provisions, the Tennessee
Supreme Court has “generally used an analytical framework similar to that used by the United States
Supreme Court” in analyzing both guarantees. State v. Robinson, 29 S.W.3d 476, 480-81. “[W]e
apply one of three standards of scrutiny: (1) strict scrutiny, (2) heightened scrutiny, and (3) reduced
scrutiny, applying the rational basis test.” Id. In the instant case, wherein the “persons similarly
circumstanced” are differentiated in the law not by their membership in any protected class, but
rather by the timing of their lawsuits, rational basis scrutiny applies.

         Although rational basis scrutiny is the least exacting form of equal protection scrutiny, it is
exacting enough to reveal the constitutional infirmity of Calaway’s application to these plaintiffs.
It is simply irrational for the law to make such a pivotal distinction between these plaintiffs and
plaintiffs who may have suffered injury on the same day as these plaintiffs, or even before, but who
happened – by pure luck – to file suit just before Calaway was released. The defendants contend
otherwise, arguing that

               the fallacy of plaintiffs’ suggestion that the Supreme Court lacked a
               rational basis for any retroactive application is readily apparent.
               Excluding from the application of Calaway those medical malpractice
               claims of minors for whom suit already had been filed resulted in no
               further tolling or extension of the statute of repose and no unknown,
               unquantifiable inventory of unfiled minor’s medical malpractice
               claims as to which the statute of repose would not run for up to
               eighteen more years. In contrast, the further exclusion from the
               application of Calaway of those medical malpractice claims of
               minors, such as Laura Crespo, for whom suit had not yet been filed
               would have forestalled the proper application of the statute of repose
               in an unknown number of claims for potentially in excess of eighteen
               years. The Supreme Court had a rational basis for seeking to avoid
               such a circumstance.

We do not agree. The defendants’ argument might well make out a rational basis for creating only
a brief, narrow post-Calaway time window in which new plaintiffs, like the Crespos, could file suit
– certainly a shorter period than “eighteen more years.” However, we do not believe the alarmist
specter of an “unknown, unquantifiable inventory of unfiled . . . claims” can rationally justify such
stark discrimination between similarly situated plaintiffs differentiated only by pure luck.

        As we have already stated, there was no valid reason for anyone to presume, before Calaway,
that the statute of repose might be applicable to minors: the Supreme Court had plainly stated
otherwise, as had the other courts of this state that had passed on the question. Thus, it cannot be
said that disadvantaging these plaintiffs because they failed to file suit before Calaway is a rational
penalty for their delay. There was simply no reason for them to believe that time was of the essence.
Nor was there any reason for our hypothetical plaintiffs, who waited more than three years but then


                                                 -18-
filed suit just before Calaway, to believe that this earlier filing was particularly beneficial under the
law as it then existed. It is pure happenstance that distinguishes between these two classes of
individuals, and happenstance is not a rational basis for treating “persons similarly circumstanced”
differently – especially when the difference is such that one party has full legal recourse, and the
other has no recourse whatsoever.

         While the federal and state constitutions require that “all persons similarly circumstanced
shall be treated alike,” they of course do not require equal treatment of “things which are different
in fact or opinion.” Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988). Normally, “[t]he initial
discretion to determine what is ‘different’ and what is ‘the same’ resides in the legislature[].” Id.
(quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). However, in the instant case, because a judicial
decision rather than a statute caused the change in the law that triggers our equal protection analysis,
that initial determination resides in the courts. Nevertheless, we would not hold that a constitutional
violation had occurred if we could find a rational basis for the distinction between plaintiffs who,
relying on prior precedents, filed suit after three years but before Calaway, and plaintiffs who,
relying on prior precedents, waited more than three years and were still waiting when Calaway was
released. However, as we have already stated, we can find no such rational basis. Therefore, we
must conclude that the plaintiffs’ equal protection rights were violated, and accordingly reverse the
trial court’s dismissal of the case.

                                                  III.

       The judgment of the trial court is reversed. Costs on appeal are taxed to the appellees, Carol
McCullough, M.D.; Tennessee Women’s Care, P.C.; Jerilyn Boles, R.N.; and the State of Tennessee.
This case is remanded to the trial court for further proceedings.



                                                               _______________________________
                                                               CHARLES D. SUSANO, JR., JUDGE




                                                  -19-
