                 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




D. MICHAEL SWINEY , J., dissenting.


               I respectfully dissent from the majority’s decision in this case. I do, however, agree
with the majority’s statement in its Opinion that “[o]bviously, we are bound by the Calaway
decision.” I likewise agree with the majority that this Court has neither the prerogative nor the
power to disregard, amend, or reverse decisions of the Tennessee Supreme Court.

                For better or for worse, I believe the Tennessee Supreme Court’s decision in Calaway
ex rel. Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005) resolves this appeal and requires this
Court to affirm the decision of the Trial Court. Our Supreme Court specifically and clearly held that
“[f]or 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 514. In the case now before
us, Plaintiffs’ case was commenced after December 9, 2005. Because Plaintiffs’ case was
commenced after December 9, 2005, Laura Crespo’s minority did not toll the medical malpractice
statute of repose. Therefore, applying Calaway, the statute of repose ran before Plaintiffs’ lawsuit
was commenced.

                 That our Supreme Court in Calaway meant exactly what it said is underscored by its
denial in that case of the plaintiffs’/appellants’ motion for rehearing which, basically, requested the
same relief requested in the appeal now before us.

               In their petition, the appellants request that the Court 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.
                       Upon due consideration, we conclude that the appellants’
               petition is not well taken and should be denied.

Id. at 522 (emphasis in the original).

                Under the clear holding of Calaway, Plaintiffs’ lawsuit, which was commenced after
December 9, 2005, is barred by the statute of repose. Whether we agree or disagree with the holding
of Calaway is immaterial. While our Supreme Court certainly has the authority to clarify, modify,
or even reverse its holding in Calaway, this Court does not. The effect of the majority’s Opinion is
to hold that the Tennessee Supreme Court’s holding in Calaway is unconstitutional. This Court
simply does not have the power to hold a decision of the Tennessee Supreme Court to be
unconstitutional.

               For these reasons, I, respectfully, dissent from the majority Opinion. I would affirm
the decision of the Trial Court.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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