                    IN THE SUPREME COURT OF TENNESSEE
                                AT JACKSON
                                      March 4, 2015 Session

                    MICHELLE RYE ET AL. v. WOMEN’S CARE
                     CENTER OF MEMPHIS, MPLLC ET AL.

             Appeal by Permission from the Court of Appeals, Western Section
                            Circuit Court for Shelby County
                     No. CT00092009      Gina C. Higgins, Judge
                          _____________________________

                 No. W2013-00804-SC-R11-CV – Filed October 26, 2015
                          _____________________________


GARY R. WADE, J., concurring in part and dissenting in part.

       The majority opinion accurately recounts the development of this area of the law
but ultimately concludes that the summary judgment standard first articulated in Byrd v.
Hall, 847 S.W.2d 208 (Tenn. 1993), and later refined in Hannan v. Alltel Publishing Co.,
270 S.W.3d 1 (Tenn. 2008), and other decisions of this Court, must now be overruled. In
my view, the principles articulated in Hannan, when interpreted in light of the history of
summary judgment in Tennessee, set forth the preferable standard for shifting the burden
of proof at summary judgment—one that is fully consistent with Tennessee Rule of Civil
Procedure 56. By granting Rule 11 review in a case which pre-dated the passage of a
statute purporting to set a new standard for summary judgment, by rejecting the well-
established doctrine of stare decisis, and by acquiescing to the standard proposed by the
General Assembly, my colleagues have preempted the future consideration of an
important constitutional issue—whether the General Assembly, by its enactment of
Tennessee Code Annotated section 20-16-101 (Supp. 2014), has violated the separation-
of-powers doctrine.1 In the interest of consistent, predictable procedural guidelines of
adjudication, I would hold that Byrd, Hannan, and their progeny should be reaffirmed as
the standard for summary judgment in Tennessee and should be applied to the facts
before us. Moreover, in my assessment, even the federal standard, as adopted in Celotex
Corp. v. Catrett, 477 U.S. 317 (1986), does not warrant dismissal on all of the claims. I
must, therefore, respectfully dissent.
        1
          More to the point, I would not have granted the Defendants permission to appeal in the first
place. Because section 20-16-101 does not apply to the Ryes‟ claim, the Court of Appeals applied the
correct standard for summary judgment, and neither of the parties raised on appeal the continued vitality
or wisdom of the Byrd/Hannan standard.
                        I. Summary Judgment in Tennessee
       The summary judgment standard articulated by this Court in Hannan has been
accurately summarized as follows:

                When a motion for summary judgment is made, the moving party
        has the burden of showing that there is no genuine issue as to any material
        fact and the moving party is entitled to judgment as a matter of law. The
        moving party may accomplish this by either: (1) affirmatively negating an
        essential element of the non-moving party‟s claim; or (2) showing that the
        non-moving party will not be able to prove an essential element at trial.
        However, it is not enough for the moving party to challenge the non-
        moving party to ―put up or shut up‖ or even to cast doubt on a party’s
        ability to prove an element at trial. If the moving party‟s motion is
        properly supported, the burden of production then shifts to the non-moving
        party to show that a genuine issue of material fact exists. The non-moving
        party may accomplish this by: (1) pointing to evidence establishing material
        factual disputes that were overlooked or ignored by the moving party;
        (2) rehabilitating the evidence attacked by the moving party; (3) producing
        additional evidence establishing the existence of a genuine issue for the
        trial; or (4) submitting an affidavit explaining the necessity for further
        discovery. . . .

Rye v. Women‟s Care Ctr. of Memphis, MPLLC, No. W2013-00804-COA-R9-CV, 2014
WL 903142, at *5 (Tenn. Ct. App. Mar. 10, 2014) (emphasis added) (alterations,
citations, and internal quotation marks omitted). These principles of summary judgment
have a long-standing foundation in Tennessee jurisprudence, as confirmed in 1993 with
this Court‟s ruling in Byrd, as reaffirmed in 1998 by McCarley v. West Quality Food
Service, 960 S.W.2d 585 (Tenn. 1998), and as refined in 2008 by our decision in Hannan,
as well as other more recent cases.2 Today, less than seven years after the Hannan
decision and more than twenty years since Byrd, my colleagues have reversed field,
observing that our summary judgment standard is “incompatible with the history and text

        2
          Contrary to the majority‟s assertion, Hannan did not “fundamentally change[] summary
judgment practice.” In Byrd, this Court “reaffirm[ed] the summary judgment principles found in . . .
Tennessee cases[,] . . . embrace[d] the construction of Rule 56 in [the Celotex line of federal cases] to
[some] extent,” and made several “observations to place a finer point on the proper use of the summary
judgment process in this state.” Byrd, 847 S.W.2d at 214. While Hannan later served to clarify Byrd‟s
use of the term “affirmative defense,” the standard otherwise remained unchanged. See Hannan, 270
S.W.3d at 6-7.


                                                  -2-
of Tennessee Rule [of Civil Procedure] 56” and “frustrate[s] the purposes for which
summary judgment was intended.” The majority opinion suggests that by adding the
words “at trial” to the second prong of the Byrd/Hannan standard, the Court improperly
moved the focus away from the evidence adduced at the summary judgment stage and
onto “hypothetical evidence that theoretically could be adduced, despite the passage of
discovery deadlines, at a future trial.” (Emphasis added.) Ultimately, the majority has
concluded that the Byrd/Hannan standard “has shifted the balance too far and imposed on
parties seeking summary judgment an almost insurmountable burden of production.” I
disagree on all counts.

       In my view, the majority opinion is based upon an erroneous premise—a faulty
interpretation of Hannan that appears to have originated in an unpublished decision by
our Court of Appeals, in which there was no application for permission to appeal to this
Court. In White v. Target Corp., the Western Section of the Court of Appeals criticized
by footnote the Hannan ruling, speculating that the standard requires trial courts to
assume future hypothetical facts at the summary judgment stage. No. W2010-02372-
COA-R3-CV, 2012 WL 6599814, at *7 n.3 (Tenn. Ct. App. Dec. 18, 2012). The
footnote, which failed to include any authority supportive of its interpretation, provides as
follows:

                Under Hannan, as we perceive the ruling in that case, it is not
        enough to rely on the nonmoving party‟s lack of proof even where, as
        here, the trial court entered a scheduling order and ruled on the
        summary judgment motion after the deadline for discovery had passed.
        Under Hannan, we are required to assume that the nonmoving party may
        still, by the time of trial, somehow come up with evidence to support her
        claim.

Id. (emphasis added); see also Boals v. Murphy, No. W2013-00310-COA-R3-CV, 2013
WL 5872225, at *5 (Tenn. Ct. App. Oct. 30, 2013). Until now, this Court has never
endorsed the correctness of the Target footnote.3 In my view, the better course would
have been to simply reject the interpretation advanced by the Target footnote, reaffirm



        3
          Since that footnote was written, this interpretation of Hannan has been cited by seventeen Court
of Appeals opinions, including Rye, all of which are unpublished. In eleven of those cases, neither party
sought permission to appeal to this Court. See Tenn. R. App. P. 11. In one of those cases, a Rule 11
application was filed but the appeal was withdrawn and dismissed before this Court reviewed it. In
another, a Rule 11 application was filed but the Target court‟s interpretation of Hannan was not raised as
an issue on appeal. Finally, three of the cases have Rule 11 applications pending our decision in this case.


                                                   -3-
the Byrd/Hannan standard, and capitalize upon this opportunity to clarify the rationale for
the differences between Tennessee and federal summary judgment jurisprudence.4

          Even if it is true, as the majority concludes, that “nothing in the history or text of
Tennessee Rule [of Civil Procedure] 56 . . . necessitates rejecting the [federal]
standard[]” for summary judgment, neither does anything in the history or text of our
Rule 56 require adopting the federal standard. (Emphasis added.)5 We have
consistently rejected federal rules that are contrary to “the strong preference embodied in
the Tennessee Rules of Civil Procedure that cases . . . be decided on their merits,” and
have afforded appropriate recognition to “the Tennessee constitutional mandate that „the
right of trial by jury shall remain inviolate.‟” Webb v. Nashville Area Habitat for
Humanity, Inc., 346 S.W.3d 422, 432 (Tenn. 2011) (quoting Tenn. Const. art. I, § 6)
(citing Jones v. Prof‟l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 572 (Tenn.
2006)); cf. State v. Bennett, No. 01C01-9607-CC-00139, 1998 WL 909487, at *11 (Tenn.
Crim. App. Dec. 31, 1998) (Wade, J., concurring) (“Because the right to trial by jury is
too precious to abridge, . . . I would tend to trust a well-informed jury, which has seen
and heard firsthand of the quantity and quality of the evidence, rather than an impartial
tribunal of judges exposed only to the written record of the trial. . . . I am unwilling to
denigrate the importance of the right to a jury of peers[;] . . . [t]hat is too great a sacrifice
. . . .”).6 As stated, this Court first rejected the federal standard in Byrd and continued to


        4
          In fact, at oral argument before this Court, counsel for the Defendants conceded that the Target
footnote was an erroneous interpretation of Hannan and that the Court would not need to overrule Hannan
in order to render a judgment in favor of the Defendants.
        5
          Contrary to the assertion by the majority, I do not mean to imply that Tennessee law requires
the rejection of the federal Celotex standard. The fact remains, however, that we have consistently
applied our own summary judgment standard for the last twenty-two years, and the majority has not
articulated any principled reason to suddenly abandon that practice now in favor of the federal standard.
        6
           While I recognize that civil cases may be technically decided “on the merits” before going to
trial, such as where there are no material facts in dispute and the issues can be resolved by a trial judge as
a matter of law, the Tennessee Constitution and the Tennessee Rules of Civil Procedure clearly favor the
right to trial by jury and, therefore, fully support the adoption of a summary judgment standard which
places a heavier burden on parties who “want out of [a] lawsuit on the merits short of a trial.” Judy M.
Cornett, Trick or Treat? Summary Judgment in Tennessee After Hannan v. Alltel Publishing Co., 77
Tenn. L. Rev. 305, 343-44 (2010) [hereinafter Cornett, 77 Tenn. L. Rev.]; see also id. at 338 (“Tennessee
has traditionally favored merits-based determinations over efficiency. As we have seen, even in its
limited precursors to summary judgment, Tennessee jurisprudence was highly skeptical of deciding any
issue on the papers alone.”); id. at 349 (“Tennessee‟s long-standing tradition of preferring merits-based
determinations to efficiency considerations would probably loom large in the [Supreme C]ourt‟s
reasoning [for rejecting the federal standard]. Given Tennessee‟s strong constitutionally based right to

                                                    -4-
do so in numerous cases thereafter. See Cornett, 77 Tenn. L. Rev. at 317 (“[I]n the
almost fifteen years between Byrd and the trial court‟s decision in Hannan, the Tennessee
Court of Appeals generally interpreted Byrd correctly as rejecting the [federal] „put up or
shut up‟ standard.”).7 In Hannan, we confirmed that “we began our departure from the
federal standard” in Byrd, explaining the distinction between the two interpretations as
follows:

              Th[e] second method of shifting the burden of production outlined in
        the Byrd opinion . . . differs significantly from [the federal standard‟s]


trial by jury in civil cases, the [Supreme C]ourt might also be concerned not to adopt a procedure that
would encroach on the province of the jury.”).
        7
          In the twenty-two years since Byrd was decided, that decision has been cited with approval in
over 100 opinions by this Court, many of which were joined or authored by a majority of the current
members of this Court. Since Hannan was decided in October of 2008, a majority of our current members
has approved of the summary judgment standard in over twenty of our own opinions. See Dick Broad.
Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653 (Tenn. 2013); Himmelfarb v. Allain, 380 S.W.3d 35
(Tenn. 2012); Perkins v. Metro. Gov‟t of Nashville & Davidson Cnty., 380 S.W.3d 73 (Tenn. 2012); Fed.
Ins. Co. v. Winters, 354 S.W.3d 287 (Tenn. 2011); Starr v. Hill, 353 S.W.3d 478 (Tenn. 2011); Kiser v.
Wolfe, 353 S.W.3d 741 (Tenn. 2011); Kiser, 353 S.W.3d at 750 (Lee, J., concurring in part & dissenting
in part); Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011); Sykes v. Chattanooga Hous. Auth., 343
S.W.3d 18 (Tenn. 2011); Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011); Sherrill v.
Souder, 325 S.W.3d 584 (Tenn. 2010); Davis v. McGuigan, 325 S.W.3d 149 (Tenn. 2010); Davis, 325
S.W.3d at 167 (Koch, J., dissenting); Shelby Cnty. Health Care Corp. v. Nationwide Mut. Ins. Co., 325
S.W.3d 88 (Tenn. 2010); Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010); Gossett, 320
S.W.3d at 789 (Clark, J., concurring in part & dissenting in part); Kinsler v. Berkline, LLC, 320 S.W.3d
796 (Tenn. 2010); Kinsler, 320 S.W.3d at 802 (Clark, J., concurring in part & concurring in the
judgment); Cox v. M.A. Primary & Urgent Care Clinic, 313 S.W.3d 240 (Tenn. 2010); In re Estate of
Davis, 308 S.W.3d 832 (Tenn. 2010); Home Builders Ass‟n of Middle Tenn. v. Williamson Cnty., 304
S.W.3d 812 (Tenn. 2010); Mills v. CSX Transp., Inc., 300 S.W.3d 627 (Tenn. 2009); Stanfill v.
Mountain, 301 S.W.3d 179 (Tenn. 2009); Giggers v. Memphis Hous. Auth., 277 S.W.3d 359 (Tenn.
2009); Martin v. Norfolk S. Ry., 271 S.W.3d 76 (Tenn. 2008).

        The U.S. Supreme Court has explained the importance of adherence to precedent:

        Stare decisis is the preferred course because it promotes the evenhanded, predictable, and
        consistent development of legal principles, fosters reliance on judicial decisions, and
        contributes to the actual and perceived integrity of the judicial process. Adhering to
        precedent “is usually the wise policy, because in most matters it is more important that
        the applicable rule of law be settled than it be settled right.” Burnet v. Coronado Oil &
        Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).

Payne v. Tennessee, 501 U.S. 808, 827 (1991) (citation omitted).


                                                  -5-
      second method of burden-shifting. The opinion in Byrd requires a moving
      party to demonstrate that the nonmoving party cannot establish an
      essential element of the claim at trial. [The federal standard], however,
      would give the moving party the easier burden of demonstrating that the
      nonmoving party‟s evidence—at the summary judgment stage—is
      insufficient to establish an essential element. Therefore, the standard we
      adopted in Byrd clearly differs from [the federal] standard and poses a
      heavier burden for the moving party.

Hannan, 270 S.W.3d at 7 (citations omitted). Importantly, the emphasis of the Court in
Hannan was not on the difference between the phrases “at trial,” as used in the Tennessee
standard, and “at the summary judgment stage,” as used in the federal standard. Instead,
the Hannan Court embraced the concept of adjudication on the merits, pointing out that in
Tennessee the moving party cannot shift the burden to the non-moving party by merely
asserting that the non-moving party “lacks evidence to prove an essential element of its
claim.” See id. at 8 (emphasis added).

      One law review article has offered the following explanation:

              Clearly, in articulating th[e] [second method for] shifting the burden
      to the nonmovant, the Tennessee Supreme Court rejected the federal
      approach to summary judgment as a way of testing the sufficiency of
      the nonmovant’s evidence pre-trial. In Tennessee, the movant has to
      produce negative evidence or has to somehow show that, at the time of
      trial, the nonmovant will be unable to prove an essential element of the
      claim. It is utterly insufficient in Tennessee for a movant to merely allege
      that the plaintiffs‟ evidence at that stage is insufficient to prove an
      essential element of its case.

Cornett, 77 Tenn. L. Rev. at 334 (emphasis added) (footnotes omitted). As suggested by
several commentators, the second prong of Hannan requires the moving party to do more
than point to omissions in the non-moving party‟s proof or cast doubt on the non-moving
party‟s evidence; instead, the moving party must affirmatively “show [at the summary
judgment stage] that something is impossible [at trial].” Id. at 334 n.198 (emphasis
added). One of our esteemed trial judges “has suggested [to moving parties] that this
alternative could be satisfied by showing that the pretrial order prohibits presentation of
certain evidence at trial, usually because evidence was obtained too late.” Id. (citing
Notes by Judy Cornett from presentation by Chancellor Daryl Fansler, Knox County
Chancery Court, Hannan v. Alltel-Is Summary Judgment Dead?, Continuing Legal
Education program at East Tennessee Lawyers Association for Women, Knoxville,
Tennessee (Sept. 16, 2009) (on file with the Tennessee Law Review)); accord McDaniel
                                           -6-
v. Rustom, No. W2008-00674-COA-R3-CV, 2009 WL 1211335, at *13-15 (Tenn. Ct.
App. May 5, 2009). Commentators have agreed that the second prong of Hannan
encourages defendants in civil cases to “strive for greater use of pretrial orders with firm
cut-off dates for completion of discovery and exchange of evidence.” Cornett, 77 Tenn.
L. Rev. at 334 n.198.8 In my view, this interpretation of the Byrd/Hannan standard fully
comports with Tennessee Rule of Civil Procedure 56—on the one hand providing the
opportunity for a summary dismissal of a baseless claim, and, on the other, protecting the
right to a jury trial on the merits when there are material facts in dispute.9

       Finally, Hannan should not have been read to require courts “to assume that the
nonmoving party may still, by the time of trial, somehow come up with evidence to
support her claim.” Target Corp., 2012 WL 6599814, at *7 n.3. Otherwise, literally
every summary judgment motion would be denied under the second prong of Hannan.
Of course, that has not been the case since the Hannan ruling. Summary judgment
continues to be regularly granted in favor of the party which does not bear the burden of
proof at trial. The case before us illustrates that very point. The trial court and our Court
of Appeals applied the Byrd/Hannan standard and yet still granted partial summary
judgment to the Defendants.10
        8
          Proceeding under the second prong may require a moving party to delay the filing of a motion
for summary judgment until discovery has been completed or the discovery deadlines have passed, unlike
instances in which a moving party is able to file a motion for summary judgment earlier in the
proceedings by affirmatively negating an essential element of the claim; nevertheless, the burden can
easily be shifted under the second prong of Hannan by the use of strict discovery deadlines.
        9
           The majority criticizes this interpretation of the Byrd/Hannan standard, observing that
“[c]onspicuously absent from Tennessee Rule [of Civil Procedure] 56 is any language requiring the
moving party to seek, obtain, and comply with a scheduling order before moving for summary judgment,
although, according to the dissent, Hannan imposed this obligation.” In my assessment, this statement by
the majority is both misleading and irrelevant. First, the use of scheduling, planning, and pre-trial orders
is already governed by Tennessee Rule of Civil Procedure 16, so there would be no need for Rule 56 to
reiterate these procedures. Second, I have not suggested that Hannan “imposed” a scheduling order
“obligation.” Our summary judgment standard allows the moving party to shift the burden by
demonstrating that, for whatever reason, the non-moving party “will not be able to prove an essential
element at trial.” Rye, 2014 WL 903142, at *5. Failure to comply with a scheduling order is simply one
way to meet this standard. Third, while I recognize that our opinion in Hannan did not clearly articulate
with precision just how the second prong was intended to work in practice, the nature of the common law
is development on a case-by-case basis. It is not at all unusual for one decision to leave room for later
interpretation. Just as this Court used the Hannan decision to clarify the term “affirmative defense” from
Byrd, I would take this opportunity to clarify the application of the second prong of Hannan.
        10
          I do not take lightly “our obligation to correct erroneous court-made rules,” if the
circumstances are appropriate to do so. See, e.g., State v. Collier, 411 S.W.3d 886, 899-900 (Tenn. 2013)
(Wade, C.J.) (overruling more than twenty years of common law which embraced the minority rule that

                                                   -7-
               II. Application of the Byrd/Hannan Standard in this Case
       On February 24, 2009, Mr. and Mrs. Rye filed a health care liability action against
the Defendants, alleging various injuries as a result of the Defendants‟ failure to
administer a timely RhoGAM injection to Mrs. Rye during the third trimester of her third
pregnancy. In a health care liability action, a plaintiff is required to prove each of the
following elements:

        (1) The recognized standard of acceptable professional practice in the
        profession and the specialty thereof, if any, that the defendant practices in
        the community in which the defendant practices or in a similar community
        at the time the alleged injury or wrongful action occurred;

        (2) That the defendant acted with less than or failed to act with ordinary and
        reasonable care in accordance with such standard; and

        (3) As a proximate result of the defendant‟s negligent act or omission, the
        plaintiff suffered injuries which would not otherwise have occurred.

Tenn. Code Ann. § 29-26-115(a) (2012).11 In this instance, the first two elements are
present. As to the third element, it is undisputed that the Defendants‟ negligence in
failing to administer a timely RhoGAM injection resulted in Mrs. Rye‟s becoming Rh-
sensitized, which is an irreversible condition that affects the antibodies present in Mrs.


the victim of a statutory rape qualifies as an accomplice to the crime). It is well established, however, that
the principle of stare decisis dictates that we only change the law when absolutely necessary. In my view,
the summary judgment standard in Tennessee does not require correction, except to the extent that it has
been misinterpreted by the unfortunate footnote in Target. Moreover, aside from the purely anecdotal
account of Justice Bivins covering a day in his tenure as a trial judge, neither the majority opinion nor the
separate opinions have produced any data whatsoever indicating a significant decrease in the percentage
of summary judgments granted after Hannan. In consequence, my colleagues have failed to substantiate
their assertion that the Tennessee summary judgment standard has proved to be “unworkable.” Simply
put, any confusion as to the application of the Hannan standard is the result of a fundamental
misunderstanding of that decision—a misunderstanding now perpetuated, rather than corrected, by the
majority.
        11
          At the time the Ryes filed their complaint, “health care liability” actions were still referred to as
“medical malpractice” actions. In 2012, section 29-26-115(a), along with numerous other sections in the
Code, was amended to replace the term “malpractice” with “health care liability.” See Act of Apr. 23,
2012, ch. 798, § 7, 2012-2 Tenn. Code Ann. Adv. Legis. Serv. 274, 274 (LexisNexis). The substantive
elements of the statute remained unchanged.


                                                    -8-
Rye‟s blood.12 The only issue is whether the Ryes have suffered or will suffer injury
“which would not otherwise have occurred.” Tenn. Code Ann. § 29-26-115(a)(3). In
support of their claims, the Ryes classified their injuries as follows: (1) physical injuries
to Mrs. Rye, “including disruption of the normal functioning of [Mrs. Rye‟s] capability to
conceive unimpaired, healthy children, free from an abnormally high risk of birth defects
or premature fetal death”; (2) disruption of family planning; (3) infliction of emotional
distress upon Mrs. Rye; (4) infliction of emotional distress upon Mr. Rye; (5) future
medical expenses likely to be incurred by Mrs. Rye for any future pregnancies; and (6)
future medical expenses likely to be incurred by Mrs. Rye for any future blood
transfusions.

        On March 10, 2011, the trial court entered a scheduling order pursuant to
Tennessee Rule of Civil Procedure 16. As is relevant to this appeal, the scheduling order
required the Ryes to disclose their expert witnesses by May 1, 2011; all discovery
depositions were to be completed by September 1, 2011; dispositive motions were to be
filed by December 1, 2011; and trial was scheduled for February 6, 2012. On July 15,
2011, prior to the completion of discovery, the trial court held a hearing on the
Defendants‟ motion to dismiss or, in the alternative, for summary judgment. At that time,
the trial court was provided with the depositions of the Ryes and the Defendants, as well
as competing affidavits from expert witnesses to support each side. On August 10, 2011,
the trial court entered a written order granting the Defendants a partial summary
judgment; in particular, the trial court granted the Defendants‟ motion as to “all claims
for future damages for injuries to [Mrs.] Rye that relate to prospective injury relating to
blood transfusions or future pregnancies.”

       On January 24, 2012, almost four months after the discovery deadlines had passed,
the Defendants renewed their request for summary judgment on the Ryes‟ remaining
claims for damages. On the morning of the trial, the trial court granted partial summary
judgment for the Defendants as to Mr. Rye‟s stand-alone claim for negligent infliction of
emotional distress and as to the Ryes‟ stand-alone claim for disruption of family
planning. The trial was postponed. In an order entered several months later, the trial
court ruled that the Ryes could proceed to trial on only two disputed issues of material

       12
            If an individual with Rh-negative blood becomes sensitized to Rh-positive blood, this
individual will develop antibodies to Rh-positive blood. The exposure to Rh-positive blood in an Rh-
negative woman most commonly occurs during blood transfusions and pregnancies. If an Rh-sensitized
woman becomes pregnant with an Rh-positive fetus, the antibodies in the woman‟s Rh-negative blood
will attack and destroy the fetus‟ red blood cells. Dr. Linda Burke-Galloway, RhoGAM Shot During
Pregnancy,        Pregnancy        Corner,      http://www.pregnancycorner.com/being-pregnant/health-
nutrition/rhogam.html (last updated June 2014).


                                                -9-
fact: (1) whether Mrs. Rye had sustained a compensable physical injury as a result of the
Defendants‟ failure to administer a timely RhoGAM injection, and (2) whether Mrs. Rye
had suffered emotional distress as a result of the Defendants‟ conduct. The trial court
also ruled that the Ryes would be allowed to present evidence of the disruption of their
family planning as an element of damages related to Mrs. Rye‟s claim of emotional
distress.

       On interlocutory appeal, the Court of Appeals, Western Section, reversed in part
and affirmed in part. Rye, 2014 WL 903142, at *1. Specifically, the Court of Appeals
affirmed the trial court‟s grant of summary judgment to the Defendants on the Ryes‟
stand-alone claim for disruption of family planning and Mrs. Rye‟s claim for future
medical expenses associated with any future blood transfusions, but reversed the trial
court‟s grant of summary judgment on Mrs. Rye‟s claim for future medical expenses
associated with any future pregnancies. Id. at *9, *16. Further, applying the literal
interpretation of “at trial” as expressed in the Target footnote and despite the fact that
discovery had come to an end, the Court of Appeals reversed the grant of summary
judgment for the Defendants on Mr. Rye‟s stand-alone claim for emotional distress, a
determination which was based on the theory that he might be able to produce supportive
expert testimony by the time of trial. Id. at *23-24. The effect of the ruling was that the
Ryes could proceed to trial on four disputed issues: (1) whether Mrs. Rye had sustained a
compensable physical injury as a result of the Defendants‟ failure to administer a timely
RhoGAM injection; (2) whether Mrs. Rye had suffered emotional distress as a result of
the Defendants‟ conduct; (3) whether Mr. Rye had suffered emotional distress as a result
of the Defendants‟ conduct; and (4) whether Mrs. Rye was entitled to future medical
expenses related to any future pregnancies. Id. at *1, *24.

       Pursuant to the Celotex/federal standard for burden-shifting at the summary
judgment stage, my colleagues have concluded that the Defendants are entitled to
summary judgment on each of the Ryes‟ claims. In my view, however, application of
either the Byrd/Hannan standard or the federal standard would warrant summary
judgment on only three of the six injuries alleged in the original complaint: (1) disruption
of family planning as a stand-alone claim; (2) Mr. Rye‟s stand-alone claim for emotional
distress; and (3) Mrs. Rye‟s future medical expenses related to future blood transfusions.
I believe that there exist genuine issues of material fact as to the three remaining claims,
all of which should proceed to a trial on the merits: (1) whether Mrs. Rye‟s condition of
Rh-sensitization has caused her harm in the form of a present physical injury; (2) whether
Mrs. Rye‟s Rh-sensitization has caused her harm in the form of emotional distress; and
(3) whether Mrs. Rye‟s Rh-sensitization is reasonably certain to cause her prospective
harm related to future pregnancies.

                   A. Rh-Sensitization as a Present Physical Injury
                                           - 10 -
       Although several federal and state courts have already recognized the viability of
such a claim, the question of whether Rh-sensitization qualifies as a compensable injury
is a matter of first impression in Tennessee. The record in this case includes conflicting
affidavits and deposition testimony from medical experts as to whether Mrs. Rye has
suffered a compensable physical injury in the form of Rh-sensitization, irrespective of
any future medical expenses related to future pregnancies or blood transfusions. My
colleagues, however, have narrowed the scope of this issue to the hypothetical,
determining that “even [if] Mrs. Rye‟s Rh-sensitization amounts to a physical injury, the
dispositive question is . . . whether Mrs. Rye is reasonably certain to sustain damages for
future medical expenses as a result of her Rh-sensitization.”13 Focusing only upon future
medical expenses and prospective harm to Mrs. Rye, the majority answers this question
in the negative and, therefore, grants summary judgment. I cannot agree. In my view,
this Court, as federal courts and the courts of other states have done, should recognize the
cause of action, and a jury should be permitted to resolve the disputed issue of whether
Mrs. Rye has a compensable physical injury as a result of her altered blood status and
decreased ability to bear children without serious medical complications—an irreversible
condition from which Mrs. Rye would not suffer but for the failure of the Defendants to
administer a timely RhoGAM injection.

       Other jurisdictions have already considered whether this condition qualifies as an
injury justifying the recovery of physical damages. In Kenyon v. Hammer, for example,
Sharon Kenyon filed a medical malpractice action against a physician who had failed to
administer a necessary RhoGAM injection after the birth of her first child in 1972. 688
P.2d 961, 963 (Ariz. 1984). After the trial court granted summary judgment for the
physician, Mrs. Kenyon argued on appeal that her injury did not arise—and, therefore,
did not trigger the applicable statute of limitations—until the conception of her second
child, who “was stillborn [in 1978] as a result of the destruction of its blood cells by
[Mrs. Kenyon‟s] Rh antibodies.” Id. at 963-64, 967. The Arizona Supreme Court
recognized the cause of action but held that Mrs. Kenyon had sustained her injury in 1972
and, therefore, her claim was barred by the statute of limitations:



        13
            The majority insists that it has not foreclosed the possibility of a claim based on Rh-
sensitization as a present physical injury, under certain circumstances, because it is “assuming for
purposes of this appeal that Rh-sensitization may qualify as a compensable injury so long as damages are
proven to a reasonable certainty.” Nowhere in the majority‟s analysis, however, is there a discussion of
presently existing damages in the form of an altered bodily status or a decreased ability to bear children.
Instead, the majority focuses solely on “whether Mrs. Rye is reasonably certain to sustain damages for
future medical expenses as a result of her Rh-sensitization.” (Emphasis added.)


                                                  - 11 -
      When her doctor failed to administer RhoGAM within seventy-two
      hours of the birth of her first child, Mrs. Kenyon’s physical condition
      changed for the worse because her ability to bear other children was
      significantly impaired. She became more susceptible to just those
      problems which later occurred in the case at bench. If the [defendant] had
      realized the error four days after the birth of the first child . . . , he would
      have been bound to advise Mrs. Kenyon of the error and to have warned
      her of the risk of future pregnancy. Greater susceptibility to physical harm
      has been recognized as an element of damage in Arizona. Certainly, if
      Mrs. Kenyon had known of her condition and consulted counsel
      shortly after the birth of her first child, an action could have been
      brought to recover damages for the decreased ability to bear children
      or increased risk of fetal fatality. That decreased ability or increased
      susceptibility is damage which will sustain a cause of action in tort.

Id. at 967 (emphasis added) (citations omitted); see also DeStories v. City of Phoenix,
744 P.2d 705, 709 (Ariz. Ct. App. 1987) (“Mrs. Kenyon‟s „greater susceptibility‟ was an
identifiable, fully developed, present medical condition.”). Likewise, in Harms v.
Laboratory Corp. of America, the plaintiff‟s Rh-sensitization injury was described as
follows:

      [Ms.] Harms suffers from Rh sensitization. Whether this condition causes
      her actual physical pain and suffering, [she] has been permanently
      altered by this sensitization. . . . Thus, the court disagrees with
      Labcorp’s characterization that [she] has not suffered a present
      physical injury. . . . While injuries to a fetus—or emotional injuries
      suffered by [Ms.] Harms as a result of those injuries to a fetus—may not be
      recoverable at this time, the court finds that [Ms.] Harms may still be
      entitled to recovery on injury—either physical or emotional—to
      herself.

155 F. Supp. 2d 891, 910 (N.D. Ill. 2001) (emphasis added); see also Harris v. Brush
Wellman Inc., No. 1:04cv598HSO-RHW, 2007 WL 5960181, at *12 (S.D. Miss. Oct. 30,
2007) (citing the holding in Harms that a “plaintiff suffering from Rh sensitization . . .
has an actual injury regardless of the absence of current physical symptoms”); Alberg v.
Ortho-Clinical Diagnostics, Inc., No. 98-CV-2006, 2000 WL 306701, at *3 (N.D.N.Y.




                                           - 12 -
Mar. 24, 2000) (describing Rh-sensitization as an irreversible, undesired change in a
person‟s physiology that “was designed to be prevented by RhoGam”).14

       In this instance, Mrs. Rye now suffers from Rh-sensitization as a result of the
Defendants‟ negligent failure to administer a timely RhoGAM injection. Although the
Defendants contend that Rh-sensitization is not a compensable injury, the Ryes have
properly asserted this condition as a present physical injury in the form of an altered
bodily status, despite the lack of current physical symptoms. The Ryes further contend
that impairment to a woman‟s childbearing capability should be a recognized element of
damages. As indicated, other jurisdictions have acknowledged the cause of action
advanced by the Ryes and have recognized Rh-sensitization as a physical injury, entitling
a claimant to recover for both physical and emotional damages if a claim is filed within
the statute of limitations. In this instance, both the trial court and Court of Appeals
recognized the viability of this claim. I agree. In my view, summary judgment for the
Defendants is inappropriate pursuant to either the Celotex/federal standard or the
Byrd/Hannan standard.

                            B. Emotional Distress of Mrs. Rye
       Because Mrs. Rye has alleged that she suffers from emotional distress as a
“parasitic” consequence of her Rh-sensitization, she has not presented a stand-alone
claim for negligent infliction of emotional distress and, under our law, is not required to
prove the existence of emotional damages through expert medical testimony. See Estate
of Amos v. Vanderbilt Univ., 62 S.W.3d 133, 136-37 (Tenn. 2001). Nevertheless, in
order to succeed on this theory of damages, she must establish that she has “suffered a
serious mental injury resulting from the [Defendants‟] conduct.” Rogers v. Louisville
Land Co., 367 S.W.3d 196, 206 (Tenn. 2012). Our case law suggests that she may do so
by presenting evidence of “unpleasant mental reactions such as . . . anger, chagrin,
disappointment, and worry,” along with “[e]vidence regarding the duration and intensity”
of these symptoms, or by presenting “[o]ther evidence that the [Defendants‟] conduct
caused [her] to suffer significant impairment in . . . her daily functioning.” Id. at 209-
10.15 Contrary to the assertion by the majority, such evidence may be established by the

        14
            The factual differences in these cases, as pointed out by the majority in an attempt to
undermine their applicability to the Ryes‟ circumstances, are completely irrelevant to the legal conclusion
reached by each of these jurisdictions—that Rh-sensitization is an existing physical injury in and of itself,
which gives rise to a cause of action at the time a physician fails to administer the necessary RhoGAM
injection, irrespective of (although not exclusive to) any future harm that may be caused to the mother or
the fetus.
        15
          Other “nonexclusive factors” that may be considered in a claim for emotional distress include
“[e]vidence of physiological manifestations of emotional distress” and “[e]vidence that the [claimant]

                                                   - 13 -
Ryes‟ own testimony and does not require proof that Mrs. Rye “sought emotional or
psychiatric counseling or mental health treatment from a psychiatrist, a psychologist, a
counselor, or anyone else.” Cf. id. at 210; see also Miller v. Willbanks, 8 S.W.3d 607,
615 (Tenn. 1999).16

        The deposition testimony of Mr. and Mrs. Rye fully supports the existence of Mrs.
Rye‟s damages in the form of emotional distress and, in consequence, this issue should
survive summary judgment, whether under the Byrd/Hannan standard or that adopted for
the federal courts in Celotex. Mrs. Rye testified that immediately upon learning of her
sensitized condition, which was clearly caused by the Defendants‟ conduct, she was
simply “scared . . . to death.” She described her painful reaction when one of her
daughters, who had overheard the conversation with Mrs. Rye‟s physician, informed her
grandmother that “mommy can‟t have any more babies or they‟ll die.” Throughout her
deposition, Mrs. Rye repeatedly described the level of her “concern” and “anxiety” upon
learning of the serious risks to herself and her future children. She contended that she
and her husband worry about the effects of Rh-sensitization “every single day,” a
condition that has affected her ability to have more children, as both she and her husband
had planned throughout their marriage. As practicing Catholics, the Ryes cannot use any
form of birth control for contraceptive purposes; in consequence, they must refrain
altogether from sexual relations during ovulation because of the risks involved. Mrs. Rye
described her relationship with her husband as “completely different” now that she is Rh-
sensitized. She attested to daily anxiety, spelling out in some detail their concerns in the
context of their religious beliefs, and their meetings with their priest. All of this evidence
establishes a factual basis for an award of damages based on Mrs. Rye‟s emotional
distress.

        Under the Byrd/Hannan standard for summary judgment, the Defendants have
failed to either negate Mrs. Rye‟s claim of emotional distress or otherwise establish that
Mrs. Rye will be unable to prove her damages. Moreover, even by the federal standard,
the Ryes‟ testimony creates a genuine issue of material fact as to whether Mrs. Rye
suffered compensable emotional distress. See Rogers, 367 S.W.3d at 209-10. Her Rh-
sensitization has adversely affected her fundamental right to bear and raise children. See

sought medical treatment, was diagnosed with a medical or psychiatric disorder . . . , and/or was
prescribed medication.” Id. at 210. “In certain instances, the extreme and outrageous character of the
defendant‟s conduct is itself important evidence of serious mental injury.” Id.
        16
           Even if this were a requirement for proving an emotional distress claim, the Ryes both testified
that they had sought advice and counseling from their priest, who surely would qualify as “anyone else”
providing support services.


                                                  - 14 -
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (describing “the decision whether to bear
or beget a child” as “fundamental”); Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535, 541 (1942) (“Marriage and procreation are fundamental to the very existence and
survival of the [human] race.”). None of the Ryes‟ concerns would exist but for the
failure of the Defendants to have administered a routine RhoGAM injection during Mrs.
Rye‟s third pregnancy. Under either summary judgment standard, the evidence must be
viewed in a light most favorable to the claims of the non-moving party, with all
reasonable inferences drawn in favor of those claims. Celotex Corp., 477 U.S. at 330-31
& n.2 (Brennan, J., dissenting); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.
2000). In my view, a reasonable juror could easily conclude that Mrs. Rye has suffered
genuine and profound emotional distress. By granting summary judgment, however, my
colleagues have precluded any consideration of the merits of this claim.

              C. Future Medical Expenses Related to Future Pregnancies
       In Tennessee, a claimant may recover damages for future medical expenses related
to a present injury if “the future effects [are] shown to be reasonably certain and not a
mere likelihood or possibility.” Potts v. Celotex Corp., 796 S.W.2d 678, 681 (Tenn.
1990). This means that “before a [claimant] may recover for potential injuries, there
must be a reasonable degree of medical certainty that the [claimant] will develop a
disease in the future as a result of an injury.” Id. The terms “reasonably certain” and
“reasonable degree of medical certainty” “require[] the [claimant] to prove that he or she
will, more probably than not, need . . . medical services in the future.” Singh v. Larry
Fowler Trucking, Inc., 390 S.W.3d 280, 287 (Tenn. Ct. App. 2012) (emphasis added)
(quoting Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *13-
14 (Tenn. Ct. App. Jan. 28, 2002)). While the amount of future damages is necessarily
“speculative and imprecise” to some degree, “this imprecision is not grounds for
excluding” evidence of the existence of future medical expenses that may be incurred.
Overstreet v. Shoney‟s, Inc., 4 S.W.3d 694, 704 (Tenn. Ct. App. 1999).

        In this instance, the Defendants have supported their motion for summary
judgment with the affidavit and deposition of their expert witness, Dr. Thomas G.
Stovall, who testified “within a reasonable degree of medical certainty that it is more
likely than not that an Rh-sensitized individual will never sustain any injuries or damages
whatsoever.” Dr. Stovall further testified that “[t]he risks of any future injuries to [Mrs.
Rye] or to a child in a future pregnancy, if such a child is conceived, are so remote that it
cannot be stated with any reasonable degree of medical certainty that such injuries would
in fact occur.” In response, the Ryes submitted the affidavit and deposition of their
expert witness, Dr. Joseph Bruner, who testified that “[c]ontrary to the opinions of Dr.
Stovall, it is my opinion that it is more probable than not that unborn children of Mr. and
Mrs. Rye will experience complications,” including the “severe consequences” of Rh-
sensitization such as a ruptured liver or spleen, excessive bleeding, permanent brain
                                           - 15 -
damage, anemia, heart problems, and even fetal death. According to Dr. Bruner, if the
child of an Rh-sensitized mother survives the pregnancy, it can develop “deafness, speech
problems, cerebral palsy, or mental retardation.” Dr. Bruner further testified that “it is
more probable than not that Mrs. Rye‟s next pregnancy will involve a baby with
moderate to severe disease in utero.” More specifically, Dr. Bruner explained that
“[w]ith [Mrs. Rye‟s] next R[h] incompatible pregnancy, . . . she will produce antibodies
that will cross the placenta, and they will attach to the fetal red blood cells. And these red
blood cells will be destroyed, and the fetus will experience some degree of anemia.”
(Emphasis added.) Finally, when asked by defense counsel during the deposition if he
could “say that any of these things . . . are more likely than not going to occur to [Mrs.
Rye] in the future,” Dr. Bruner responded as follows:

       [Dr. Bruner:] It‟s more likely than not that she will become pregnant with
       another sensitized pregnancy.

              ....

       [Defense counsel:] And . . . more likely than not, it‟s going to be a child
       whose blood is not compatible with [Mrs. Rye‟s] R[h-sensitized] status.
       You‟re saying that‟s more likely than not, more than a 50 percent chance of
       that?

       [Dr. Bruner:] That‟s correct.

              ....

              So more likely than not, she will become pregnant again . . . . More
       likely than not, the fetus will be affected in at least one or more future
       pregnancies . . . . Over all, there‟s a 70 percent chance her pregnancy will
       be affected.

              ....

             It‟s more likely than not that she will become pregnant again. If she
       becomes pregnant again, based on what we know today, there‟s a 70
       percent risk that the baby will be incompatible. It‟s more likely than not
       that baby will have moderate to severe disease and require invasive
       procedures.

              ....

                                            - 16 -
               Okay. So it‟s more likely than not, she‟ll become pregnant. It‟s
        more likely than not, the baby will be incompatible. It‟s more likely than
        not, the disease will be moderate to severe . . . .

        My colleagues conclude that the Defendants are entitled to summary judgment on
this issue because Mrs. Rye‟s “future medical expenses depend entirely upon
contingencies that have not occurred and may never occur.” Again, this is not the
standard for the review of evidence at the summary judgment stage. See Staples, 15
S.W.3d at 89 (“[At the summary judgment stage,] [c]ourts must view the evidence in the
light most favorable to the nonmoving party and must also draw all reasonable inferences
in the nonmoving party‟s favor.”). Our case law requires only that the claimant introduce
expert testimony that future damages will “more probably than not” occur. Singh, 390
S.W.3d at 287. Because the Ryes have expert proof that Mrs. Rye‟s Rh-sensitization is
more likely than not to result in future medical expenses, the Defendants have neither
affirmatively negated an element of the Ryes‟ claim nor otherwise demonstrated that
Mrs. Rye will be unable to prove future damages at trial.17 Even under the federal
standard for summary judgment, the Defendants have not shown that the Ryes‟ evidence
is insufficient to prove the existence of future harm to Mrs. Rye during any future
pregnancies.

        As stated, the jurisdictions recognizing a claim based on Rh-sensitization agree
that the injury accrues at the time a RhoGAM injection should have been administered,
even when the amount of future damages is uncertain. See Dahl v. St. John‟s Hosp., No.
89-1784, 1990 WL 96045, at *4 & n.3 (Wis. Ct. App. Apr. 24, 1990) (holding that the
plaintiff‟s injury and cause of action accrued at the time of the defendant‟s alleged
“failure to administer a RhoGAM injection within approximately three days of the first
child‟s birth[, which] began the process of Rh factor sensitization that impaired [the
plaintiff‟s] ability to have healthy children in the future”); accord Ford v. Guaranty Nat‟l
Ins. Co., No. 1:93CV213-S-D, 1997 WL 786767, at *6 (N.D. Miss. Nov. 26, 1997);
Kenyon, 688 P.2d at 967; Simmons v. Riverside Methodist Hosp., 336 N.E.2d 460, 461,
464 (Ohio Ct. App. 1975). Because an Rh-sensitized claimant who fails to file suit until
a future pregnancy actually causes complications would likely be barred by the statute of
limitations, these other jurisdictions have recognized that the suit must be filed as soon as

        17
          Contrary to the assertion by the majority, I have not “harvested from the record only those facts
supporting [my] favored result.” A thorough review of the deposition testimony and affidavits by the
competing medical experts, when properly viewed in the light most favorable to the Ryes, leads to only
one plausible conclusion—the Defendants have not disproven the opinion of Mrs. Rye‟s expert that she is
more likely than not, as a result of her Rh-sensitized condition, to incur medical expenses related to a
future pregnancy.


                                                  - 17 -
the claimant learns that the medical provider failed to administer the necessary RhoGAM
injection. See, e.g., Dahl, 1990 WL 96045, at *4-5 (recognizing that despite “the
inequity and potentially significant social effects of a decision that requires litigation of
claims before the ultimate damage is known,” the plaintiff‟s “claim . . . existed . . . when
the RhoGAM was not administered,” and “[a] claim for damages for future complications
is recognized at law if the jury can adequately assess the probability of future damages”).
This Court should follow the lead of the other states and recognize the viability of this
claim. If Mrs. Rye does become pregnant in the future and suffers the very complications
Dr. Bruner has identified as more than likely to occur, those responsible for her injury
will escape accountability by virtue of our one-year statute of limitations in health care
liability actions. Under these circumstances, I cannot agree that summary judgment is
appropriate on this issue.

          D. Future Medical Expenses Related to Future Blood Transfusions
        Unlike Mrs. Rye‟s claim for medical expenses related to future pregnancies, the
existence of future expenses related to any future blood transfusions is too remote and
uncertain to survive summary judgment. In support of their motion for summary
judgment, the Defendants offered the affidavit of their expert witness, Dr. Stovall, who
opined “within a reasonable degree of medical certainty that it is more likely than not that
an Rh-sensitized individual will never sustain any injuries or damages whatsoever.” In
response, the Ryes offered the affidavit and deposition testimony of their expert, Dr.
Bruner, who stated only that Mrs. Rye was at an “increased risk of life-threatening
problems” if she were to be involved in some “medical emergency” that would “require[]
an urgent or emergent blood transfusion as a life-saving procedure.” Testimony by Dr.
Bruner that Mrs. Rye‟s condition “is likely to be life threatening in an emergency
situation in which blood transfusions are required” does not establish the degree of
probability required to support a claim for future damages. See Singh, 390 S.W.3d at
287. In fact, Dr. Bruner conceded that he could not testify that Mrs. Rye would more
probably than not require a blood transfusion in the future. Thus, the Defendants have
affirmatively negated the Ryes‟ claim that future medical expenses related to blood
transfusions are reasonably certain to occur, and the Ryes have been unable to respond
with any evidence establishing the existence of a genuine issue for trial. I agree,
therefore, that summary judgment, under either the Byrd/Hannan standard or the
Celotex/federal standard, should be granted in favor of the Defendants on this issue.


                              E. Emotional Distress of Mr. Rye
        Initially, I agree with the assessment by my colleagues and the Court of Appeals
that “[t]he trial court properly concluded that Mr. Rye‟s claim for negligent infliction of
emotional distress is a „stand alone‟ claim, requiring expert proof to prevail at trial.”
Rye, 2014 WL 903142, at *24; see Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996).
                                           - 18 -
Recognizing that Mr. Rye has failed to identify any expert who would testify at trial that
he has suffered a severe emotional injury, the majority concludes that summary judgment
for the Defendants is appropriate because “Mr. Rye lacks proof of an essential element of
his claim.” As indicated, the Court of Appeals reversed the trial court‟s grant of
summary judgment on this issue, relying solely upon the interpretation of Hannan as
expressed in the Target footnote. Rye, 2014 WL 903142, at *23-24; see also Boals, 2013
WL 5872225, at *5. In my view, even under the Byrd/Hannan standard, the Defendants
are entitled to summary judgment because they have affirmatively demonstrated that Mr.
Rye will be unable to prove his emotional distress claim at trial. This issue presents the
perfect opportunity to clarify how the second prong of Hannan should work in practice.

        Applying an interpretation of Hannan as expressed by the Court of Appeals and
the majority of this Court, summary judgment is not appropriate even where, as here, a
claimant has failed to identify a requisite expert witness within the established discovery
deadlines. In my view, however, the phrase “at trial,” as used in Hannan, was never
intended to relieve claimants from the responsibility to comply with discovery deadlines.
In this instance, the Defendants did well to obtain a scheduling order from the trial court
which established “firm cut-off dates for completion of discovery and exchange of
evidence.” Cornett, 77 Tenn. L. Rev. at 334 n.198. Expert proof is required to support a
stand-alone claim for emotional distress, but Mr. Rye failed to identify, within the
discovery deadlines set by the trial court, an expert witness who could corroborate the
viability of his claim. In consequence, the Defendants have satisfied the second prong of
the Hannan standard by showing at the summary judgment stage, after the discovery
deadlines, that Mr. Rye cannot prove his claim at trial. See id.; see also McDaniel, 2009
WL 1211335, at *13-15 (explaining that the defendant was entitled to summary judgment
because the plaintiffs had failed to identify a qualified expert witness within the time
established by the trial court‟s scheduling order). Thus, while I would apply the standard
articulated in Byrd, Hannan, and their progeny, rather than the newly adopted federal
standard, I agree with the majority that on this issue, summary judgment should be
granted in favor of the Defendants.

                            F. Disruption of Family Planning
       Finally, I agree with the majority that Tennessee does not recognize a stand-alone
claim for “disruption of family planning.” See Rye, 2014 WL 903142, at *13-16. As
both the trial court and Court of Appeals correctly concluded, however, the Ryes should
be allowed to present evidence of the disruption of their family plans as a part of the
physical and emotional damages associated with Mrs. Rye‟s Rh-sensitization. As stated,
the Ryes have alleged physical injuries in the form of Mrs. Rye‟s altered blood status and
the “disruption of the normal functioning of [her] capability to conceive unimpaired,
healthy children, free from an abnormally high risk of birth defects or premature fetal
death.” They have also alleged emotional injuries in the form of Mrs. Rye‟s daily
                                          - 19 -
concerns and anxiety about the significant impairment of her ability to engage in regular
sexual activity with her husband or to conceive more children. As indicated, courts in
other jurisdictions have recognized these theories of recovery for claimants who have
become Rh-sensitized due to the negligence of a medical provider. In consequence, I
would reinstate the ruling of the trial court on this issue and allow Mrs. Rye to present
evidence at trial of the disruption of her family planning, but only as a part of her claim
of physical and emotional damages.

        In summary, I believe that the Ryes should be able to proceed to trial on three of
their claims: (1) whether Mrs. Rye‟s condition of Rh-sensitization has caused her harm in
the form of a present physical injury; (2) whether Mrs. Rye‟s Rh-sensitization has caused
her harm in the form of emotional distress; and (3) whether Mrs. Rye‟s Rh-sensitization
is reasonably certain to cause her prospective harm related to future pregnancies. I would
allow the Ryes to present evidence of the disruption of their family planning, but only as
a part of their alleged physical and emotional damages. By granting summary judgment
on these three issues, my colleagues have deprived the Ryes of any opportunity to have
their claims resolved on the merits by a jury of their peers. In consequence, the
Defendants responsible for failing to comply with the recognized standard of care in the
profession cannot be held accountable.

                                III. Separation of Powers
       Because I would have upheld the principles established in Byrd and refined in
Hannan, I have chosen to generally address, without attempting to resolve, the
constitutional issue which has been preempted by the decision of my colleagues to
overrule the Byrd/Hannan standard in this case, a case which pre-dated the passage of
Tennessee Code Annotated section 20-16-101 purporting to change the summary
judgment standard in Tennessee. See Matthew R. Lyon & Judy M. Cornett, Hannan, The
“Zombie Case”: Will the Tennessee Supreme Court Drive a Stake Through Its Heart?,
Dicta, Dec. 2014, at 13 (questioning why the Court would grant review in Rye, other than
to “moot any constitutional challenge to [section 20-16-101],” because “the Hannan
standard is already on its way out” and “[t]he lower courts seem to be applying both
Hannan and the statute appropriately”).18


        18
           In his separate opinion, Justice Bivins attempts to minimize the separation-of-powers issue by
asserting that if the underlying motive of the majority really is to acquiesce to the summary judgment
standard adopted by the General Assembly, it would “have been much easier to avoid this case and
simply affirm the constitutionality of . . . section 20-16-101 in an ultimate constitutional challenge.” That
statement is troubling. Initially, it is always easier to avoid a constitutional challenge than to address the
claim on the merits. Secondly, his assertion that the Court could “simply affirm the constitutionality of . .
. section 20-16-101” is indicative of the belief that this Court can reach whatever result it desires in any

                                                   - 20 -
       The Federalist Papers, a collection of eighty-five essays authored by Alexander
Hamilton, James Madison, and John Jay, were designed to influence the states‟ adoption
of the U.S. Constitution. Federalist Paper No. 78, far and away the most cited of the
papers by the U.S. Supreme Court, lays the groundwork for the powers granted to the
judiciary and broadly addresses the powers of each of the three branches of government:

               Whoever attentively considers the different departments of power
       must perceive, that, in a government in which they are separated from each
       other, the judiciary, from the nature of its functions, will always be the least
       dangerous to the political rights of the Constitution; because it will be least
       in a capacity to annoy or injure them. The Executive not only dispenses the
       honors, but holds the sword of the community. The legislature not only
       commands the purse, but prescribes the rules by which the duties and rights
       of every citizen are to be regulated. The judiciary, on the contrary, has no
       influence over either the sword or the purse; no direction either of the
       strength or of the wealth of the society; and can take no active resolution
       whatever. It may truly be said to have neither FORCE nor WILL, but
       merely judgment; and must ultimately depend upon the aid of the executive
       arm even for the efficacy of its judgments.

               This simple view . . . proves incontestably, that the judiciary is
       beyond comparison the weakest of the three departments of power; that it
       can never attack with success either of the other two; and that all possible
       care is requisite to enable it to defend itself against their attacks. It equally
       proves, that though individual oppression may now and then proceed from
       the courts of justice, the general liberty of the people can never be
       endangered from that quarter . . . so long as the judiciary remains truly
       distinct from both the legislature and the Executive. . . . “[T]here is no
       liberty, if the power of judging be not separated from the legislative and
       executive powers.” . . . [F]rom the natural feebleness of the judiciary, it is
       in continual jeopardy of being overpowered, awed, or influenced by its co-
       ordinate branches . . . .

              The complete independence of the courts of justice is peculiarly
       essential in a limited Constitution[,] . . . one which contains certain


given case—a notion disconcerting to anyone who believes that a fundamental obligation of this Court is
to apply the established rule of law.


                                                - 21 -
        specified exceptions to the legislative authority; such, for instance, as that it
        shall pass no bills of attainder, no ex-post-facto laws, and the like.
        Limitations of this kind can be preserved in practice no other way than
        through the medium of courts of justice, whose duty it must be to declare
        all acts contrary to the manifest tenor of the Constitution void. Without
        this, all the reservations of particular rights or privileges would amount to
        nothing.

The Federalist No. 78 (Alexander Hamilton).19

       The U.S. Constitution served as a model for the founders of the Tennessee
Constitution, which even more specifically contemplates a balance of powers among our
three branches of government. Article II, section 1 provides, “The powers of the
Government shall be divided into three distinct departments: the Legislative, Executive,
and Judicial.” Article II, section 2 elaborates, “No person or persons belonging to one of
these departments shall exercise any of the powers properly belonging to either of the
others, except in the cases herein directed or permitted.” While there are no precise lines
of demarcation in the respective roles of our three branches of government, the traditional
rule is that “the legislative [branch has] the authority to make, order, and repeal [the
laws], the executive . . . to administer and enforce, and the judicial . . . to interpret and
apply.” Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975) (quoting Richardson v.
Young, 125 S.W. 664, 668 (Tenn. 1910)). By the terms of our constitution, “[o]nly the
Supreme Court has the inherent power to promulgate rules governing the practice and
procedure of the courts of this state, and this inherent power „exists by virtue of the
[Constitution‟s] establishment of a Court and not by largess of the legislature.‟” State v.
Mallard, 40 S.W.3d 473, 480-81 (Tenn. 2001) (citation omitted) (quoting Haynes v.
McKenzie Mem‟l Hosp., 667 S.W.2d 497, 498 (Tenn. Ct. App. 1984)). In this context,
this “[C]ourt is supreme in fact as well as in name.” Barger v. Brock, 535 S.W.2d 337,
341 (Tenn. 1976).

       Based upon these principles, but taking into account considerations of comity
among the three branches of government, this Court has exercised measured restraint by
repeatedly holding that “[a] legislative enactment which does not frustrate or interfere
with the adjudicative function of the courts does not constitute an impermissible

        19
          “The dignity and stability of government in all its branches, the morals of the people, and every
blessing of society depend so much upon an upright and skillful administration of justice, that the judicial
power ought to be distinct from both the legislative and executive, and independent upon both . . . .” John
Adams, Thoughts on Government (1776), reprinted in 4 The Works of John Adams 198 (Charles Francis
Adams ed., 1851), available at http://oll.libertyfund.org/titles/2102.


                                                  - 22 -
encroachment upon the judicial branch of government.” Lynch v. City of Jellico, 205
S.W.3d 384, 393 (Tenn. 2006) (alteration in original) (quoting Underwood, 529 S.W.2d
at 47). “It is only by remembering the limits of the power confided to the judicial
department of the government, and respecting the independence of the other departments,
that the judiciary can maintain its own independence in the proper sense of the term[.]”
State ex rel. Robinson v. Lindsay, 53 S.W. 950, 952 (Tenn. 1899). Thus, this Court will
typically consent to rules of procedure that are promulgated by the legislature as long as
they “(1) are reasonable and workable within the framework already adopted by the
judiciary, and (2) work to supplement the rules already promulgated by the Supreme
Court.” Mallard, 40 S.W.3d at 481.

       If the majority had maintained the viability of the Byrd/Hannan standard, this
Court would have eventually been called upon to determine whether Tennessee Code
Annotated section 20-16-101 is reasonable and workable within the burden-shifting
framework articulated in Byrd, Hannan, and the many other opinions of this Court over
the last twenty-two years, and whether the statute works to supplement those summary
judgment rules already promulgated by this Court. See, e.g., Cooper v. Robert Ledford
Funeral Home, Inc., No. E2013-00261-COA-R10-CV, 2013 WL 3947758, at *3 n.5
(Tenn. Ct. App. July 29, 2013) (applying section 20-16-101 but noting the “unraised
question as to the constitutionality of [the statute]”). By using the Ryes‟ case to overrule
Hannan and adopt the federal standard, my colleagues have preempted any future
consideration of this important constitutional question. In consequence, we are unable to
address the issue of whether the General Assembly has created or amended a rule of
procedure in such a way that “strike[s] at the very heart of [this] [C]ourt‟s exercise of
judicial power.” Mallard, 40 S.W.3d at 483.20

       “The same rule that teaches the propriety of a partition between the various
branches of power, teaches us likewise that this partition ought to be so contrived as to
render the one independent of the other.” The Federalist No. 71 (Alexander Hamilton). I
fear that today my colleagues have preempted our consideration of this important
principle by surrendering the constitutional authority of this Supreme Court to establish
summary judgment standards for the judiciary. See Judy M. Cornett & Matthew R.

        20
           Although the majority insists that “[b]y our decision in this appeal we cannot preempt a
constitutional challenge to a statute that does not apply in this appeal,” this is precisely what has occurred,
regardless of whether that was the intended result. By granting review in this case, overruling the
common law as relied upon by the parties and the courts, and retroactively applying the federal standard
as adopted by the General Assembly years after the events underlying the Ryes‟ claim, the majority has
indeed sidestepped consideration of whether the legislature‟s enactment of this procedural rule would
pass constitutional scrutiny.


                                                    - 23 -
Lyon, Contested Elections as Secret Weapon: Legislative Control over Judicial Decision-
making, 75 Alb. L. Rev. 2091, 2095-98 & n.33 (2012) (describing “an inter-branch game
of „chicken‟” being played out between the General Assembly and the Tennessee
Supreme Court over the issue of who has the power to determine the summary judgment
standard for Tennessee). The fundamental responsibility of an independent judiciary is to
protect against the unwarranted intrusion of the legislative branch. I would reaffirm the
ruling in Hannan and, if raised in a future case, confront head-on the separation-of-
powers issue.21

                                    IV. Conclusion
        Because the Byrd/Hannan standard embraces the basic principle of resolution of
disputes on the merits and the constitutional right to trial by jury, the Tennessee rule is
preferable to that adopted by our federal courts in Celotex. Under either standard,
however, I believe that three components of the Ryes‟ complaint should proceed to trial.
Through inadvertence or otherwise, the majority has inappropriately weighed the
evidence at the summary judgment stage and deprived the Ryes of a trial on the merits of
their claims.



                                                             ____________________________
                                                             GARY R. WADE, JUSTICE




       21
           Contrary to the assertions in the separate opinion filed by Chief Justice Lee, I have not
suggested that the Court maintain the Byrd/Hannan standard for the purpose of manufacturing a
separation-of-powers issue. In my view, the General Assembly created the separation-of-powers issue,
and the majority‟s abandonment of a workable summary judgment standard compromises, rather than
upholds, the independence of the judiciary.


                                              - 24 -
