Day on Torts
This case is an example of when it is best to leave well enough alone. Along the tortured path of this case, the parties switched positions i.e, plaintiff became defendant and vice versa. To keep it simple, I am going to refer to Ms. Allain by her last name and the two doctors as simply "the doctors".
While undergoing a procedure at Vanderbilt University Medical Center, Ms. Allain was told by the treating physician that a guide wire had been left in a vein leading to her heart. The treating physician opined the guide wire had been left during a prior procedure at Williamson Medical Center. Thereafter, Ms. Allain filed suit against Williamson Medical Center and the doctors. Several months after filing suit, Ms. Allain learned the guide wire was actually left by another Vanderbilt Medical Center physician. As such, she took a voluntary nonsuit against Williamson County Medical Center and the doctors.
Rather than being satisfied with the dismissal of the case against them, the doctors waited exactly one year and then filed suit against Ms. Allain for malicious prosecution and abuse of process. Summary judgment was denied on the malicious prosecution case and the trial court denied interlocutory appeal. The Court of Appeals granted a Rule 10 application but ultimately affirmed the denial of the motion for summary judgment. Next, the Tennessee Supreme Court reached down and took the case. Ultimately, the Tennessee Supreme Court, in a case of first impression, ruled a voluntary nonsuit pursuant to Rule 41 of the Tennessee Rules of Civil Procedure is not a favorable termination on the merits for purposes of a malicious prosecution case. Therefore, the doctors could not prove an essential element of their case. The Tennessee Supreme Court remanded the case to the trial court with instructions to enter summary judgment in favor of Ms. Allain on the malicious prosecution case and for a final determination on the abuse of process case.
Apparently, at this point, the doctors had enough of this mud wrestling contest and voluntary nonsuited their case against Ms. Allain. Ms. Allain then moved for attorney fees (as a discovery sanction), expenses and discretionary costs. After considering the motion, the trial court held that since the issue had been one of first impression in the Tennessee Supreme Court that the doctors had reasonable grounds to deny Ms. Allain’s request for admission on the issue of whether the underlying action had been terminated on the merits. Nonetheless, the court awarded Ms. Allain $26,900 in attorney fees, expenses and discretionary costs. The doctors appealed.
On appeal, the Court of Appeals agreed that the doctors’ response to the request for admission was done in good faith given case law that existed at the time the response was made. Given that finding, the Court of Appeals concluded it would be inconsistent to uphold the award of attorney fees as a discovery sanction pursuant to Tenn. R. Civ. P. 37.03(2). While the attorney fees were reversed, the discretionary cost award of $2400.90 was upheld. And with that, this case appears to have finally been concluded.
This decision is correctly decided. The underlying legal issue was one of first impression, and the doctors had a right to deny the request while seeking appellate review to expand or at least define the law of whether a voluntary dismissal is a termination on the merits. While I think the doctors lawsuit was ill-advised and mean-spirited, I don’t think they should face financial sanctions for taking the position they did on the request to admit. People should be allowed to push the envelope and develop new law without facing an obligation to pay the opponent’s attorneys’ fees.
Himmelfarb, M.D. v. Allain, No. M2013-00455-COA-R3-CV (Tenn. Ct App. Jan. 31, 2014).