Day on Torts
Because an HCLA (Medical Malpractice) plaintiff is required to prove the elements of his claim through expert testimony, summary judgment was affirmed after the trial court applied the cancellation rule to plaintiff’s expert’s conflicting testimony regarding damages.
In Simmons v. Islam, No. M2023-01698-COA-R3-CV (Tenn. Ct. App. Dec. 3, 2024), the plaintiff filed an HCLA claim alleging that the defendant psychiatrist had engaged in improper, sexualized conduct directed toward the plaintiff. When his claim was filed, the plaintiff relied on Expert 1, but Expert 1 dropped out of the case after depositions.
The defendants filed a motion for summary judgment, asserting that without Expert 1 plaintiff could not prove his case. The plaintiff requested more time to identify a new expert, which the trial court granted. The plaintiff then disclosed Expert 2. In Expert 2’s affidavit, she stated that the plaintiff suffered damages as a result of the defendant’s conduct. During her deposition, however, she testified that you would expect damages and that they were possible, but that she “didn’t go into damages. I just basically put that you would expect damages, damages can be reignited.”
The defendant then filed a second motion for summary judgment, arguing that Expert 2’s “deposition testimony could not be reconciled with her prior written statements and that her testimony on the element of damages constituted a nullity.” The trial court agreed that the cancellation rule applied and granted summary judgment. This ruling was affirmed on appeal.
The primary issue on appeal was whether summary judgment based on the cancellation rule was appropriate. The elements of an HCLA claim must generally be established by expert testimony, and the plaintiff had not argued that any exception to that general rule applied here. The plaintiff, therefore, needed Expert 2’s testimony regarding damages to defeat summary judgment.
Pursuant to the cancellation rule, “when a witness makes contradictory statements about a single fact, those statements cancel each other out and are considered to be ‘no evidence’ of the fact.” (internal citation omitted). Expert 2’s affidavit stated that plaintiff did suffer damages, but in her deposition she only testified that damages were possible and that she “didn’t go into damages.” No admissible explanation for the contradiction was presented by plaintiff, so the Court of Appeals ruled that the cancellation rule applied and summary judgment was affirmed.
The Court also affirmed the trial court’s rulings on all other issues raised by plaintiff. The Court explained that the trial court did not err by failing to consider an unsigned supplemental declaration from Expert 2; that the trial court was not required to scour the record, but could instead base its decision on evidence cited by the parties; and that the trial court did not err in awarding defendant discretionary costs.
This opinion was released five months after oral arguments in this case.