10/09/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
July 14, 2020 Session
DEBRA SMITH ET AL. v. RONNIE OUTEN M.D. ET AL.
Appeal from the Circuit Court for Benton County
No. 16-CV-8 Charles C. McGinley, Judge
___________________________________
No. W2019-01226-COA-R3-CV
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In this health care liability action, the defendant pharmacists were sued for dispensing the
wrong medication to the plaintiff. The defendants then alleged comparative fault against
Appellant doctor, who was treating the patient. The plaintiff amended her complaint to
allege fault against the doctor. However, the doctor was eventually granted summary
judgment when no expert was produced to support the claim. Appellant doctor then sought
sanctions pursuant to Tennessee Code Annotated section 29-26-122(d)(3) on the basis that,
inter alia, the defendants’ certificate of good faith was supported by the written statement
of an incompetent expert witness. The trial court denied the motion for sanctions. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY
ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.
Brigham Alexander Dixson and J. Eric Miles, Nashville, Tennessee, for the appellant,
Ronnie Outen, M.D.
Minton Philip Mayer and Colleen M. Schultz, Memphis, Tennessee, for the appellees,
Herndon Pharmacy, PLLC, and R. Stephen Herndon.
Suzanne G. Marsh, Daniel Lynch Nolan, Jr., Clarksville, Tennessee, for the appellees,
Leitner, Williams, Dooley & Napolitan, PLLC.
OPINION
BACKGROUND
Debra and Anthony Smith (“Plaintiffs”) filed a complaint in the Benton County
Circuit Court (“the circuit court”) in 2016 against Herndon Pharmacy, LLC and R. Stephen
Herndon (together, “Defendants”), alleging that Defendants had dispensed the wrong
medication, Mirtazapine, to Mrs. Smith, causing her injury.1 In her Complaint, Mrs. Smith
alleged that her prescribing physician, Ronnie Outen, M.D. (“Dr. Outen” or “Appellant”),
“immediately stopped [her] from taking Mirtazapine any further” when he realized she had
been given it erroneously. Defendants, by and through counsel, Bruce D. Gill of Leitner,
Williams, Dooley & Napolitan, PLLC (together with Mr. Gill, “Appellees”), filed an
answer alleging comparative fault as to Appellant.2 Specifically, based in part on Mrs.
Smith’s assertion in her complaint that Appellant ordered her to immediately stop taking
the Mirtazapine rather than taper off of it, Defendants alleged that Appellant breached his
duty of care to Mrs. Smith, resulting in her injuries.3 Pursuant to Tennessee Code
Annotated section 29-26-122, Mr. Gill filed a certificate of good faith to support
Defendants’ allegation of non-party comparative fault against Appellant in their answer.
The certificate stated in relevant part:
1. I have consulted with one (1) or more experts, which may include the
Defendant filing the Certificate of Good Faith, who have provided a signed
written statement confirming that upon information and belief they:
(A) Are competent under Tenn. Code Ann. § 29-26-115 to express opinion(s) in
the case; and
(B) Believe, based on the information reviewed concerning the care and
treatment of the Plaintiff for the incident(s) at issue, that there is a good faith
basis to allege such fault against another consistent with the requirements of
Tenn. Code Ann. § 29-26-115.
Plaintiffs thereafter amended their complaint to name Appellant as a defendant,
based on Appellees’ and Defendants’ allegations of comparative fault against Appellant.
Appellant denied fault in his answer to the amended complaint and ultimately moved for
1
Though Mr. Herndon owns Herndon Pharmacy and is a named defendant, he did not personally
dispense the prescriptions at issue to Mrs. Smith—rather, some of his employees did.
2
Defendants are on record as appellees in this appeal, but their brief states that they appear solely to
state that there are no remaining issues involving them, and they reserved their right to appear at oral
argument. Plaintiffs declined to file a brief and to participate in oral argument as appellants, given they
already settled.
3
It is undisputed that Appellant prescribed Mrs. Smith Mirapex, and that Herndon Pharmacy
erroneously dispensed Mirtazapine to her on multiple occasions. Further, while the record contains some
inconsistencies regarding the manner in which Mrs. Smith stopped taking the Mirtazapine, it seems
undisputed that Appellant advised Mrs. Smith to cease taking the Mirtazapine upon realizing she had been
given the wrong medication.
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summary judgment in the circuit court, after neither Plaintiffs nor Defendants disclosed
expert witnesses who would offer testimony against Appellant. Neither Defendants nor
Plaintiffs filed documents in opposition to Appellant’s motion for summary judgment, and
the circuit court granted the motion in an agreed order on November 19, 2018, dismissing
Appellant from the case with prejudice. Ultimately, Plaintiffs and Defendants settled, and
the case against Defendants was also dismissed with prejudice on or about May 21, 2019.
Prior to the dismissal, however, on December 13, 2018, Appellant filed a motion to
compel Defendants to disclose the signed written statement of the expert relied on in
executing Mr. Gill’s certificate of good faith, pursuant to section 29-26-122(d)(2).
Defendants disclosed their expert statement,4 which was signed by Mr. Herndon. Appellant
then filed a motion in the circuit court to deem the certificate of good faith insufficient and
impose sanctions on Appellees for violating sections 29-26-122(d)(2) and (3). Therein,
Appellant argued that Mr. Herndon’s statement was the sole and inadequate basis for Mr.
Gill’s certificate of good faith, because Mr. Herndon is unqualified to testify about the
standard of care applicable to a family physician such as Appellant or medical causation of
injuries, as admitted in his own deposition; Mr. Herndon lacked a factual basis for alleging
comparative fault against Appellant; and his written statement failed to meet the
requirements of section 29-26-122. Appellees responded, asking the circuit court to deem
the certificate of good faith sufficient and deny the motion for sanctions. According to
Appellees, Mr. Herndon was competent to provide the written statement underlying the
certificate of good faith, and both his written statement and the certificate of good faith
complied with the law.
The circuit court heard arguments on May 21, 2019 on Appellant’s motion for
sanctions, and entered an order denying the imposition of sanctions on June 10, 2019. The
trial court found that while it would have been better practice for Appellees to have sought
a medical professional’s opinion to support the certificate of good faith, the certificate
based on Mr. Herndon’s opinion nonetheless sufficiently complied with section 29-26-122
and exhibited no evidence of bad faith to support a finding that section 29-26-122 was
violated. The circuit court gave special weight to Mr. Gill’s affidavit in making its decision,
and noted that as soon as it was discovered that Appellant bore no responsibility in the
case, summary judgment was agreed to. Appellant then filed a notice of appeal.
While this appeal was pending, on September 18, 2019, Plaintiffs gave notice to the
circuit court of the filing of the demand package that Plaintiffs’ counsel sent to Defendants’
insurance company on November 13, 2015, and the insurance company’s response to the
demand package, sent to Plaintiffs’ counsel on December 4, 2015 (collectively, “the
Settlement Documents”). The cover page on the demand package states as follows:
This is a Demand Letter sent by Attorney David R. Grimmett of the Grimmett
4
At this point, Defendants had retained new counsel.
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Law Firm, PLLC. It is sent pursuant to Rule 408 of the Tennessee Rules of
Evidence. Under no circumstances should it be considered admissible as part
of the claim contained herein. The purpose of this Demand Letter is to resolve
litigation which is currently pending or about to begin.
Similarly, the insurance company’s response letter stated that its response was to be used
for settlement purposes only. The demand package also included a summary of the
healthcare services that Mrs. Smith received, which was labeled as created by Plaintiffs’
counsel. On September 23, 2019, Appellant filed a supplemental designation of the record,
designating the Settlement Documents for inclusion in the record on appeal. Appellees
responded with a Tennessee Rule of Civil Procedure Rule 12.06 motion to strike Plaintiffs’
notice of filing the Settlement Documents and a response to Appellant’s designation of the
Settlement Documents as part of the appellate record. Appellant attached an affidavit of
Plaintiffs’ counsel to his response, wherein Plaintiffs’ counsel swore that he had provided
Defendants’ insurance carrier with a complete copy of Appellant’s chart for Mrs. Smith.
Appellees then made another Rule 12.06 motion to strike Plaintiffs’ counsel’s affidavit.
The circuit court heard oral argument on the motions to strike on October 21, 2019, and
entered an order denying them on November 6, 2019. The court gave no reasoning for its
decision. The Settlement Documents are therefore included in the record on appeal.
ISSUES PRESENTED
Appellant and Appellees each raise issues on appeal, which we consolidate and
restate as follows.5
1. Whether the circuit court erred in denying Appellant’s motion to deem the
certificate of good faith insufficient and impose sanctions.
5
Appellant specifically raises the following issues:
1. Whether the circuit court erroneously interpreted Tennessee Code Annotated section
29-26-122 in ruling on Appellant’s motion to deem the certificate of good fair
insufficient and impose sanctions.
2. Whether the circuit court erroneously denied Appellant’s motion to deem the
certificate of good fair insufficient and impose sanctions.
Appellees raise the following three additional issues:
1. Whether the circuit court abused its discretion in denying Appellant’s motion to deem
the certificate of good fair insufficient and impose sanctions.
2. Whether the circuit court properly considered and relied on Mr. Gill’s affidavit and
other materials properly before the court in denying Appellant’s motion for sanctions.
3. Whether the circuit court properly included the Rule 408 settlement demand package
from the plaintiff patient and the response from the liability carrier in the record on
appeal.
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2. Whether the circuit court properly included the Settlement Documents in the record
on appeal.
DISCUSSION
This case provides this Court with one of the first opportunities to consider a motion
for sanctions under Tennessee Code Annotated section 29-26-122. See also Kerby v. Haws,
No. M2011-01943-COA-R3-CV, 2012 WL 6675097, at *7 (Tenn. Ct. App. Dec. 20, 2012)
(involving this issue; discussed in detail, infra); Jackson v. HCA Health Servs. of
Tennessee, Inc., 383 S.W.3d 497, 506 (Tenn. Ct. App. 2012) (same). The resolution of
this case therefore depends on the proper interpretation of section 29-26-122. Statutory
interpretation is a question of law, and we review it de novo without a presumption of
correctness. Kerby, 2012 WL 6675097, at *7 (citing Gleaves v. Checker Cab Transit
Corp., Inc., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co., 970 S.W.2d 920,
924 (Tenn. 1998)). In interpreting a statute, we must give effect to the legislature’s intent.
Id. (internal citations omitted). “The legislative intent and purpose are to be ascertained
primarily from the natural and ordinary meaning of the statutory language, without a forced
or subtle interpretation that would limit or extend the statute’s application.” Id. (citing State
v. Blackstock, 19 S.W.3d 200, 210 (Tenn. 2000)).
Our analysis therefore must begin with the language of the relevant statute. In
pertinent part, section 29-26-122(d) provides as follows:
(2) If a party in a health care liability action subject to this section prevails
on the basis of the failure of an opposing party to offer any competent expert
testimony as required by § 29-26-115, the court may, upon motion, compel
the opposing party or party’s counsel to provide to the court a copy of each
such expert’s signed written statement relied upon in executing the certificate
of good faith. The medical experts may be compelled to provide testimony
under oath, as determined by the court, for the purposes of determining that
party’s compliance with subsection (a) or (b).
(3) If the court, after hearing, determines that this section has been violated,
the court shall award appropriate sanctions against the attorney if the attorney
was a signatory to the action and against the party if the party was proceeding
pro se. The sanctions may include, but are not limited to, payment of some
or all of the attorney’s fees and costs incurred by a party in defending or
responding to a claim or defense supported by the non-complying certificate
of good faith. If the signatory was an attorney, the court shall forward the
order to the board of professional responsibility for appropriate action. Upon
proof that a party or party’s counsel has filed a certificate of good faith in
violation of this section in three (3) or more cases in any court of record in
this state, the court shall, upon motion, require the party or party’s counsel
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to post a bond in the amount of ten thousand dollars ($10,000) per adverse
party in any future health care liability case to secure payment of sanctions
for any violation of this section in such case.
Thus, section 29-26-122(d) provides a mechanism for a party to obtain the statement
underlying a certificate of good faith when the party prevails at the summary judgment
stage on the basis of the opposing party’s failure to offer competent expert proof. The
purpose of obtaining the written statement is to “determin[e] th[e] opposing party’s
compliance with subsection (a) or (b).” Tenn. Code Ann. § 29-26-122(d)(2). The dismissal
of the lawsuit at the summary judgment stage itself therefore provides no basis for
sanctions; it merely triggers a party’s ability to obtain additional information upon which
to determine if the good faith certificate requirement was violated.
Subsections (a) and (b) contain the good faith certificate requirement applicable in
healthcare liability actions. See Tenn. Code Ann. § 29-26-122(a) (involving the duty of
the plaintiff); (b) (involving the duty of the defendant raising the fault of a non-party).
Subsection (b) is the relevant provision in this case:
Within thirty (30) days after a defendant has alleged in an answer or amended
answer that a non-party is at fault for the injuries or death of the plaintiff and
expert testimony is required to prove fault as required by § 29-26-115, each
defendant or defendant’s counsel shall file a certificate of good faith stating
that:
(1) The defendant or defendant’s counsel has consulted with one (1) or more
experts, which may include the defendant filing the certificate of good
faith, who have provided a signed written statement confirming that upon
information and belief they:
(A) Are competent under § 29-26-115 to express an opinion or
opinions in the case; and
(B) Believe, based on the information reviewed concerning the care
and treatment of the plaintiff for the incident or incidents at issue, that
there is a good faith basis to allege such fault against another
consistent with the requirements of § 29-26-115; . . . .[6]
6
The statute goes on to provide an additional method of satisfying the good faith requirement:
(2) The defendant or defendant’s counsel has consulted with one (1) or more medical
experts, which may include the defendant filing the certificate of good faith, who have
provided a signed written statement confirming that upon information and belief they:
(A) Are competent under § 29-26-115 to express an opinions or opinions in the
case; and
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Tenn. Code Ann. § 29-26-122(b); see also Tenn. Code Ann. § 29-26-115 (providing rules
regarding the necessity and competency of experts in health care liability actions). Thus, if
“this section[,]” i.e., section 29-26-122, is violated, the court “shall” award sanctions,
which “may” include attorney’s fees. Tenn. Code Ann. § 29-26-122(d)(3).
Appellant contends that Appellees in this case violated section 29-26-122 in a
multitude of ways because the written statement relied on in support of the certificate of
good faith was insufficient. In particular, Appellant argues that unless Appellees acted in
“complete compliance” with section 29-26-122 (and by incorporation therein, section 29-
26-115), he is entitled to an award of sanctions. In contrast, Appellees assert that they met
both the letter and the spirit of section 29-26-122’s good faith requirement, as mandated
by the plain language of the statute and the caselaw interpreting it.
In order to decide the issues in this case, it is important that we consider section 29-
26-122(d)(3) as part and parcel of the good faith certificate requirement and the Tennessee
Healthcare Liability Act (“THCLA”) as a whole. Indeed, “[w]e do not read statutes in
isolation and are required to construe them ‘as a whole, read them in conjunction with their
surrounding parts, and view them consistently with the legislative purpose.’” Griffin v.
Campbell Clinic, P.A., 439 S.W.3d 899, 903 (Tenn. 2014) (quoting Kradel v. Piper Indus.,
Inc., 60 S.W.3d 744, 750 (Tenn. 2001)). As our high court explained,
The statute must be construed in its entirety, and it should be assumed that
the legislature used each word purposely and that those words convey some
intent and have a meaning and a purpose. The background, purpose, and
general circumstances under which words are used in a statute must be
considered, and it is improper to take a word or a few words from its context
and, with them isolated, attempt to determine their meaning.
Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004) (internal citations
omitted).
(B) Believe, based on the information reviewed concerning the care and treatment
of the plaintiff for the incident or incidents at issue, that there are facts material to the
resolution of the case that cannot be reasonably ascertained from the information
reasonably available to the defendant or defendant’s counsel; and that, despite the absence
of this information, there is a good faith basis for alleging such fault against another,
whether already a party to the action or not, consistent with the requirements of § 29-26-
115.
The certificate filed in this case did not specifically rely on this subsection and we therefore do not consider this
portion of the statute.
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The purpose of the THCLA generally and the certificate of good faith requirement
specifically has been previously discussed by this Court:
One of the purposes of the certificate of good faith is to weed out frivolous
lawsuits before any party incurs substantial litigation expenses. The filing of
a certificate of good faith indicating that an expert has reviewed the claims
and has certified that they are taken in good faith “satisfies the goal of
attempting to ensure that suits proceeding through litigation have some
merit.”
Hinkle v. Kindred Hosp., No. M2010-02499-COA-R3-CV, 2012 WL 3799215, at *8
(Tenn. Ct. App. Aug. 31, 2012), perm. app. denied (Tenn. Dec. 10, 2013) (internal citations
omitted) (citing Jenkins v. Marvel, 683 F. Supp. 2d 626, 639 (E. D. Tenn. 2010)). “The
filing of a certificate of good faith indicating that an expert has reviewed the claims and
has certified that they are taken in good faith ‘satisfies the goal of attempting to ensure that
suits proceeding through litigation have some merit.’” Kerby, 2012 WL 6675097, at *4
(quoting Jenkins, 683 F. Supp. 2d at 639). Indeed, the language of the statute itself
provides illumination into its purpose: to ensure that a good faith basis exists for the filing
of the lawsuit. In evaluating the written statement created in support of section 29-26-
122(b), we are expressly directed to consider the “good faith” of the party asserting the
cause of action. See also id. (stating that the purpose of making the written statement
discoverable is “in order to give the court the tools needed to determine whether the
certificate of good faith was itself executed in good faith”). A standard of “good faith”
therefore governs Appellees’ conduct in this case. Id.
The term “good faith” is not defined in section 29-26-122 or elsewhere in the
THCLA. Generally, “[t]he words used in a statute are to be given their natural and ordinary
meaning. If the language of the statute is clear and unambiguous, we apply its plain
meaning in its normal and accepted use.” Funk v. Scripps Media, Inc., 570 S.W.3d 205,
219 (Tenn. 2019) (internal citations omitted). “Good faith,” however, defies precise
definition:
The duty of good faith is not specifically defined by our courts. As explained
in the Tennessee Practice Series:
The term “good faith” resists an exact definition . . . because it
arises in various contexts and its meaning will vary
accordingly. Indeed, “good faith” is “a term frequently defined
in the negative,” i.e., it represents the absence of bad faith.
Another authority makes these helpful observations about the
“good faith” concept:
[G]ood faith is an “excluder.” It is a phrase
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without general meaning (or meanings) of its
own and serves to exclude a wide range of
heterogeneous forms of bad faith. In a particular
context the phrase takes on specific meaning, but
usually this is only by way of contrast with the
specific form of bad faith actually or
hypothetically ruled out.
Cadence Bank, N.A. v. The Alpha Tr., 473 S.W.3d 756, 769–70 (Tenn. Ct. App. 2015)
(quoting 21 Tenn. Prac. Contract Law & Practice § 8:33 (2014) (footnotes and internal
citations omitted)). In other contexts, good faith requirements have not mandated
perfection. See, e.g., Dry Creek Citizens Coal. v. Cty. of Tulare, 70 Cal. App. 4th 20, 26,
82 Cal. Rptr. 2d 398, 402 (1999) (“. . . [A] good faith effort . . . does not mandate perfection,
nor does it require an analysis to be exhaustive.”) (internal citations and quotation marks
omitted); State v. New, 331 Ga. App. 139, 146, 770 S.E.2d 239, 245 (2015) (contrasting
good faith with perfection); Crosby v. State, 241 S.C. 40, 44, 126 S.E.2d 843, 845 (1962)
(stating that effective representation requires the attorney to act in good faith, but does not
require perfection).
In the specific context of section 29-26-122, this Court has previously analogized
the good faith requirement to a due diligence requirement. In Jackson, the pro se plaintiff
filed a medical malpractice claim for injuries she allegedly sustained from a minimally
invasive surgery, but did not attach a certificate of good faith to her complaint. 383 S.W.3d.
at 499. She claimed that the good faith certificate requirement violated several
constitutional provisions. In addressing this argument, it was necessary for the Court to
discuss the duty actually imposed on plaintiffs7 under section 29-26-122:
[Tennessee Code Annotated § 29-26-122(a)(1)] merely requires proof of the
plaintiff’s due diligence, specifically that the plaintiff or his counsel
consulted with at least one competent medical expert who provided a written
statement confirming that the expert believes, based on the information
available from medical records concerning the care and treatment of the
plaintiff, that there is a good faith basis to maintain the action consistent with
the requirements of Tennessee Code Annotated § 29-26-115.
Id. at 506.
This due diligence standard, the court held, was generally consistent with Rule 11.02
of the Tennessee Rules of Civil Procedure. But see Kerby, 2012 WL 6675097, at *7 n.4
7
While Jackson was a case about a plaintiff’s certificate of good faith under section 29-26-122(a), its reasoning
is equally applicable to a defendant’s good faith certificate under section 29-26-122(b).
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(stating that Rule 11.02’s specific procedural requirements are inapplicable when sanctions
are sought under section 29-26-122(d)(3)). That rule provides that claims (1) cannot be
presented for any improper purpose; (2) “are warranted by existing law or by a
nonfrivolous argument for the extension, modification, or reversal of existing law or the
establishment of new law;” and (3) “have evidentiary support or, if specifically so
identified, are likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery[.]” Tenn. R. Civ. P. 11.02. Under Rule 11.02, “‘[s]anctions are
appropriate when an attorney submits a motion or other paper on grounds which he knows
or should know are without merit, and a showing of subjective bad faith is not required.’”
Brown v. Shappley, 290 S.W.3d 197, 203 (Tenn. Ct. App. 2008) (quoting Hooker v.
Sundquist, 107 S.W.3d 532, 536 (Tenn. Ct. App. 2002)). Thus, we held that in order to
meet the good faith standard required by section 29-26-122, there was no requirement “that
a plaintiff have, at the commencement of the action, all of the expert testimony that may
be needed on all issues,” or “‘conduct discovery and make a prima facie case prior to suit
being filed.’” Id. at 505–506.
Although the court in Jackson was the first to elucidate the proper standard under
which to judge a party’s exercise of good faith in this context, Kerby was the first case to
actually consider an appeal from the award of sanctions under section 29-26-122(d)(3).
2012 WL 6675097, at *1. In Kerby, the plaintiff filed a medical malpractice claim against
her surgeon when she suffered infections after an operation. Id. She attached a certificate
of good faith to her complaint, which certified that she had consulted with an expert who
had provided the requisite underlying written statement. Id. at *2. It was later revealed that
the cause of the plaintiff’s infection could not have been the defendant-surgeon’s conduct,
and thus the parties agreed to the defendant’s motion for summary judgment. Id. at *2–*3.
Like in this case, the defendant filed a motion to compel the plaintiff’s expert’s
statement underlying the certificate of good faith, and a motion for sanctions against the
plaintiff’s counsel. Id. at *3. The defendant alleged that the plaintiff’s counsel did not
provide sufficient information to the expert for the expert to make his statement underlying
the certificate of good faith. See id. The trial court awarded sanctions against the plaintiff’s
counsel. Id. This Court reversed because the plaintiff’s attorney had filed the required
certificate of good faith and underlying expert statement, and the attorney and the expert
had properly relied on the plaintiff’s medical records as the basis for the certificate of good
faith and underlying statement. Id. at *5–*6. Moreover, we explained that “[t]he filing of
a certificate of good faith with a malpractice complaint is not a guarantee that a claim will
ultimately prove to be meritorious. It is rather a necessary requirement that must be
satisfied before the claim can proceed further.” Id. at *6. We emphasized that “[t]he fact
that the medical expert’s opinion may ultimately not be accepted is not a basis for
concluding that the attorney violated the certificate of good faith statute.” Id. at *5. Rather,
whether the expert’s opinion should ultimately be accepted is for the trial court to decide
later in the litigation process. See id. at *6 (“The objections Dr. Haws raises as support for
sanctions[, including that the expert statement underlying the certificate of good faith was
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deficient,] are the type of issues that would normally be explored and resolved as the case
moved forward. While some may then have been decided in Dr. Haws’ favor, they do not
constitute grounds for sanctions for violation of the requirements of the certificate of good
faith statute.”).
Applying the foregoing principles to the case-at-bar, we cannot conclude that the
trial court erred in its decision to deny sanctions in this case. It is true that neither the plain
language of section 29-26-112(d) nor the analogous Rule 11.02 require bad faith at a
minimum in order to award sanctions. See Tenn. Code Ann. § 29-26-122(d)(2) & (3);
Shappley, 290 S.W.3d at 203. That is not to say, however, that bad faith is an entirely
irrelevant consideration. Cf. Truth v. Eskioglu, 781 F. Supp. 2d 630, 635 & n.8 (M.D.
Tenn. 2011) (considering whether to excuse failure to file a good faith certificate on the
basis of extraordinary cause and noting that “[n]othing indicates that [plaintiff’s counsel]
was acting in bad faith or employing procedural machinations to purposely delay the filing
of the certificate of good faith”). And while the trial court may have relied in part on its
finding that no bad faith was exhibited, we are often permitted to affirm the trial court’s
decision on other grounds. See Hill v. Lamberth, 73 S.W.3d 131, 136 (Tenn. Ct. App.
2001) (in the summary judgment context); White v. Dozier, No. M1999-02386-COA-R3-
CV, 2000 WL 244229, at *2 (Tenn. Ct. App. Mar. 6, 2000) (quoting Hooks v. Hooks, 771
F.2d 935, 945 (6th Cir.1985)) (“This appellate court ‘may examine the record and affirm
the [trial] court on other grounds if we determine that there exists no material controversy
regarding matters of fact or law.’”). Moreover, the trial court’s order makes clear that it
found that Appellees “sufficiently compli[ed]” with section 29-26-122 so as to constitute
a good faith effort.
Furthermore, although issues of statutory interpretation are reviewed de novo, as
discussed above, the statute in this case requires a party to exercise good faith. “What is
good faith depends, it is obvious, upon the facts and circumstances of each case.” Gulf Ins.
Co. v. Construx, Inc., No. M1999-02803-COA-R3-CV, 2001 WL 840240, at *19 (Tenn.
Ct. App. July 26, 2001) (internal quotations omitted). Whether a party acted in good faith
is therefore a factual question. Id. (“Good faith, or the lack thereof, as well as
reasonableness, should be determined in the context of the specific factual situation
involved.”). Factual findings on this issue are therefore entitled to a presumption of
correctness on appeal. See, e.g., Daugherty v. Doyle, No. M2013-02509-COA-R3-CV,
2014 WL 6453770, at *8 (Tenn. Ct. App. Nov. 17, 2014) (citing Dick Broad. Co., v. Oak
Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn.2013); Tenn. R. App. P. 13(d)) (“The question
of whether a party acted in good faith presents an issue of fact; issues of fact are entitled to
a presumption of correctness.”). Appellant must therefore show on appeal that the evidence
preponderates against the trial court’s finding that Appellees acted in good faith. See Spann
v. Am. Exp. Travel Related Servs. Co., 224 S.W.3d 698, 707 (Tenn. Ct. App. 2006)
(citation omitted) (“Because of the presumption, an appellate court is bound to leave a trial
court’s finding of fact undisturbed unless it determines that the aggregate weight of the
evidence demonstrates that a finding of fact other than the one found by the trial court is
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more probably true. Thus, for the evidence to preponderate against a trial court’s finding
of fact, it must support another finding of fact with greater convincing effect.”).
Importantly, both the certificate of good faith and the written statement in support
thereof in this case comply with the plain language of the statute on their face. Here, there
is no dispute that Appellees filed a certificate of good faith containing all of the necessary
requirements.8 See Tenn. Code Ann. § 29-26-122(b) (requiring a certificate attesting that
counsel consulted with an expert who signed a statement that he or she believed that he or
she was competent and that there was a good faith basis for the action). And when
compelled by Appellant, Appellees properly supplied the written statement that had been
obtained by Appellees in support of the certificate. Appellant asserts, however, that the
written statement was facially invalid because it does not state verbatim that Mr. Herndon
was “competent under § 29-26-115 to express an opinion or opinions in the case[.]” Tenn.
Code Ann. § 29-26-122(b)(1)(A). However, in a prior case, we held that an expert’s
affidavit that served as the basis for the certificate of good faith was compliant with the
statute even though it did not use the exact language from the statute, where the expert
otherwise appropriately attested to his competence. See Hinkle, 2012 WL 3799215, at *9
(“By testifying that he was licensed as a medical doctor in the State of Tennessee, and that
he is in active practice in the specialty of internal medicine in Madison County, Tennessee,
he has demonstrated that he is competent to testify in this case under § 29-26-115.”).
Similarly, Mr. Herndon’s letter lists his occupation, licensure, and familiarity related to the
pharmacological issues present in the case. Under these circumstances, the evidence does
not preponderate against the trial court’s implicit finding that this purported deficiency did
not rise to the level of a lack of good faith. Thus, Appellees appeared to comply with the
statute by obtaining a written statement in support of their certificate of good faith that
included the required information. Cf. Kerby, 2012 WL 6675097, at *5 (“[The attorney]
provided a good faith certificate that matched these requirements. The attorney’s
responsibility is to certify specific things, and that is what he did. The expert’s written
statement includes the required information.”).
Appellant asserts, however, that this Court should go further to evaluate the
correctness of Mr. Herndon’s assertions within the written statement. In particular,
Appellant asks this Court to consider whether Mr. Herndon was actually competent to
testify as to the necessary elements of any health care liability claim against Appellant.
Essentially, Appellant asserts that a certificate of good faith violates section 29-26-122
8
Appellant attacks the sufficiency of Defendants’ compliance with the good faith certificate
requirement not on the face of the certificate itself, but primarily on the ground that the underlying statement
by Mr. Herndon was insufficient. Questions regarding whether the contents of a section 29-26-122
certificate of good faith are facially valid under either a strict or substantial compliance standard are
therefore irrelevant to our analysis. See Eiswert v. United States, 619 F. App’x 483, 486–87 (6th Cir. 2015)
(Noting that “the Supreme Court of Tennessee has not expressly addressed whether substantial compliance
may suffice under section [29-26-]122” or “whether Tennessee law requires strict compliance under section
[29-26-]122 . . . .”).
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unless the expert or experts who signed the written statement in support thereof were
competent under section 29-26-115(b) to testify as to every necessary element contained
in section 29-26-115(a). See generally Tenn. Code Ann. § 29-26-115(a) (requiring expert
proof as to all the elements of a negligence claim in a health care liability context); § 29-
26-115(b) (listing the requirements for an expert to be competent to testify to establish the
elements in subsection (a)). If Mr. Herndon was not correct in his assertion of competence,
then Appellant asserts that Appellees did not “complete[ly]” comply with section 29-26-
122 and Appellant is entitled to sanctions. Although we have concluded above that
Appellees complied with the express requirements of section 29-26-122, we note that a
prior case involving this issue has considered whether the written statement provided in
support of the certificate of good faith suffered from other types of underlying deficiencies
that demonstrated a failure to exercise good faith. See generally Kerby, 2012 WL 6675097,
at *4–5 (rejecting each and every argument raised by the party seeking sanctions). As such,
we will proceed to consider Appellant’s arguments regarding the substance of the expert
statement in this case as well.
To begin, there is no dispute that Appellees did not ultimately utilize Mr. Herndon
as an expert to support their claim against Appellant at the summary judgment stage;
Appellant impliedly asserts that Appellees’ choice not to present Mr. Herndon at that time
was due to his purported admission in his deposition that he could not render a medical
diagnosis or opine on the standard of care applicable to physicians. We again note,
however, that sections 29-26-122(d)(2) and (3) do not condition sanctions on simply the
dismissal of the health care liability action based on a lack of expert proof; rather, this fact
is simply the triggering mechanism that allows a party to seek additional information to
determine if section 29-26-122 was violated. Had the Tennessee General Assembly wished
to award sanctions solely based on a lack of proof at the summary judgment stage, it could
have done so. See Chattanooga-Hamilton Cty. Hosp. Auth. v. UnitedHealthcare Plan of
the River Valley, Inc., 475 S.W.3d 746, 758 (Tenn. 2015) (“[T]he legislature says what it
means and means what it says.”). We will not interpret their statute at odds with its plain
language.
Moreover, controlling Tennessee caselaw has specifically held that a party may act
in good faith prior to the filing of their lawsuit even without all of the proof necessary to
ultimately prove their claim. See Jackson, 383 S.W.3d at 506. And again, the certificate of
good faith “is not a guarantee that a claim will ultimately prove to be meritorious,” as the
requirement occurs during the very initial stages of litigation. Kerby, 2012 WL 6675097,
at *6. Indeed, the plain language of section 29-26-122 defies such an interpretation. As
previously discussed, the certificate of good faith mandates that the expert provide a written
statement confirming his or her competency only “upon information and belief[.]” Thus,
the plain language of section 29-26-122 requires only that the expert believe that he or she
meets the competency requirement. See Black’s Law Dictionary 175 (9th ed. 2009)
(defining “belief” as “a state of mind that regards the existence of something as likely or
relatively certain”). As such, nothing in the express language of section 29-26-122 requires
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that a party asserting fault against another guarantee that his or her expert is competent or
that the claim will ultimately prevail. Indeed, the duty with regard to competency is placed
on the expert in section 29-26-122; neither the party asserting the fault of another nor his
or her attorney has an express, specific responsibility related to competency other than
obtaining the written statement and filing the certificate in compliance with the statute. In
our view, then, Appellant’s proposed standard would place a heavy burden on attorneys to
judge an expert’s belief in his or her own competency at an incredibly early stage of
litigation in order to avoid running afoul of section 29-26-122 and being liable for
sanctions. Such a burden, however, is a creation of Appellant’s own design rather than a
mandate of section 29-26-122.
Moreover, in the end, it is neither the expert nor the attorneys that decide
competence, but the trial court. See Shipley v. Williams, 350 S.W.3d 527, 551 (Tenn.
2011) (“In its role as a gatekeeper, the trial court is to determine (1) whether the witness
meets the competency requirements of Tennessee Code Annotated section 29-16-115(b)
and, (2) whether the witness’ testimony meets the admissibility requirements of Rules 702
and 703.”); Cox v. M.A. Primary & Urgent Care Clinic, 313 S.W.3d 240, 260 (Tenn.
2010) (“[B]efore a trial court will admit testimony by a proffered expert witness about the
standard of care applicable to a defendant, the trial court must be satisfied that the witness
is competent to testify.”). The purpose of the good faith certificate is not to usurp this
gatekeeping role by requiring an attorney to guarantee that the expert he or she consults
will ultimately be competent to opine as to every element of the cause of action. Rather, it
is intended only to be a barrier against the prosecution of frivolous lawsuits. See Hinkle,
2012 WL 3799215, at *8.
But a frivolous lawsuit is not one that simply does not achieve its end. Rather, “[a]
frivolous argument is one that is not only against the overwhelming weight of legal
authority but also entirely without any basis in law or fact or without any logic supporting
a change of law.” State v. Turner, No. W1999-01516-CCA-R3-CD, 2000 WL 298696, at
*2 (Tenn. Crim. App. Mar. 17, 2000). As the comments to our Rules of Professional
Responsibility explain:
The filing of an action or defense or similar action taken for a client is not
frivolous merely because the facts have not first been fully substantiated or
because the lawyer expects to develop vital evidence only by discovery.
What is required of lawyers, however, is that they act reasonably to inform
themselves about the facts of their client’s case and the law applicable to the
case and then act reasonably in determining that they can make good faith
arguments in support of their client’s position. Such an action is not frivolous
even though the lawyer believes that the client’s position ultimately will not
prevail. The action is frivolous, however, if the lawyer is unable either to
make a good faith argument on the merits of the action taken or to support
the action taken by a good faith argument for an extension, modification, or
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reversal of existing law.
Tenn. R. Sup. Ct. 8, RPC 3.1, cmt. (emphasis added). Thus, the only thing that Mr.
Herndon’s statement was required to state with respect to competency was that he believed
he was competent, which it did. And Defendants’ lawyer properly certified that Mr.
Herndon’s statement contained the necessary statements. The fact that the claim did not
ultimately prevail and questions regarding Mr. Herndon’s competency were raised but not
adjudicated does not necessitate a finding that section 29-26-122 was violated so as to
support an award of sanctions.
And while we make no decision with respect to Mr. Herndon’s ultimate competence
as an expert witness, we note that he is a pharmacist whose professional responsibility
includes counseling patients about medications and their side effects. See Pittman v.
Upjohn Co., 890 S.W.2d 425, 435 (Tenn. 1994) (quoting 7 Tenn. Comp. R. & Regs. 1140-
3-.03(13) (1991)) (“Pursuant to the authority of T.C.A. § 63-10-102, the Board of
Pharmacy of the State of Tennessee has promulgated certain rules and standards of
practice. These rules provide: A pharmacist should, on dispensing a new prescription,
explain to the patient or the patient’s agent the directions for the use and a warning of all
effects of the medication or device that are significant and/or potentially harmful. This
communication should be performed in such a manner that will assure the proper use of
the medication or device prescribed.”). The injuries in this case were directly connected to
the dispensation of medication. Under Tennessee Code Annotated section 29-26-115(b),
health care professionals may be competent to testify in health care liability cases so long
as they are licensed in a proper state for the appropriate amount of time and practice “a
profession or specialty which would make the person’s expert testimony relevant to the
issues in the case.” This is simply not a case where a party attempted to support its
allegation of medical negligence with the “expert” testimony of a person completely
outside of the medical profession. Mr. Herndon, as a licensed pharmacist specializing in
the taking and dispensation of drugs, certainly qualifies as a health care professional
practicing in a field “relevant to the issues in the case.” Id.; cf. Pittman, 890 S.W.2d at 435
(“A significant factor affecting the pharmacy’s duty was the knowledge that no warning
had been given by the physician. Under these circumstances, it was reasonably foreseeable
that [the patient] was at risk of injury. Consequently, the pharmacy, as well as the
physician, owed her the duty to warn.”); Kerby, 2012 WL 6675097, at *6 (“Although
registered nurses may not qualify as an expert in some malpractice cases, medical records[,
including those relied on in an expert’s statement underlying a certificate of good faith,]
typically include the observations of nurses and other health professionals who are not
competent to serve as expert witnesses in cases involving their patients.”). Therefore, the
record supports that Mr. Herndon had a good faith basis to believe he was competent to
assert fault against Appellant at the time the certificate of good faith was filed. Appellees
therefore did not commit sanctionable conduct in relying on the written statement.
Appellant also argues that Mr. Herndon did not review sufficient information
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concerning the care and treatment of Mrs. Smith in making his statement underlying the
certificate of good faith. Unlike other portions of section 29-26-122 which expressly
require that the expert consult the patient’s medical records prior to making his or her
written statement, the statute applicable in this case only requires Mr. Herndon to have
consulted information “concerning the care and treatment of the plaintiff for the inciden[t]
at issue” in writing his statement. Tenn. Code Ann. § 29-26-122(b)(1)(B); compare Tenn.
Code Ann. 29-26-122(b)(1)(B) (applying when the fault of the health care provider is
raised by the defendant in an answer or amended answer), with Tenn. Code Ann. § 29-26-
122(a)(1) (applying to the plaintiff’s allegation of fault against the defendant and expressly
requiring that the plaintiff’s expert base its opinion on “the information available from the
medical records”). The record shows that at the time he executed his written statement, he
had reviewed Mrs. Smith’s complaint, the pharmacy records (which included a notation
about the immediate cessation of Mirtazapine), and clinical information on Mirtazapine.
He had also been informed by his employee about his employee’s phone conversation with
Appellant regarding the circumstances surrounding Appellant’s discovery that Mrs. Smith
had been accidentally dispensed the Mirtazapine. Thus, the record supports that Mr.
Herndon sufficiently considered the information he had at the time regarding Mrs. Smith’s
care before executing his statement.
However, even if Mr. Herndon had also reviewed Mrs. Smith’s medical records,
there would still have been a good faith basis for him to allege fault against Appellant. As
a threshold matter, it appears that Mrs. Smith’s medical records are not actually in the
record. The only record relating to her treatment contained in the Settlement Documents is
a summary chart titled “Medical Summary,” which states on the first page, “Created by:
DAVID R. GRIMMET [i.e., Plaintiffs’ counsel].” Plaintiffs’ counsel’s affidavit states, “In
my November 13, 2015 Demand Package to Pharmacists Mutual Companies, I included a
complete copy of Dr. Outen’s chart for Debra Smith which I previously obtained from Dr.
Outen’s office.” Appellant’s brief likewise states, “Plaintiffs’ counsel sent a demand
package to the insurance carrier for Defendants, which included a complete copy of Dr.
Outen’s chart for Debra Smith.” The implication, therefore, is that there are true and
complete copies of Appellant’s records on Mrs. Smith in the record. That does not appear
to be the case. But assuming, arguendo, that the summary chart in the Settlement
Documents is a complete copy of Appellant’s chart for Mrs. Smith, based on our review of
it, it contains no detail regarding how Appellant treated Mrs. Smith with respect to ceasing
the Mirtazapine. Rather, it merely states, “[Mrs. Smith] has discontinued use of
[Mirtazapine], but continues to experience severe anxiety,” and goes on to list other
symptoms she was experiencing. This provides no additional information that Mr. Herndon
did not already have regarding how and why Mrs. Smith ceased taking the Mirtazapine
when he executed his written statement. And it does not directly contradict the allegation
in the complaint that Appellant directed Mrs. Smith to immediately cease taking the
medication. Because we determine that these purported medical records would therefore
not have impacted the outcome of the case, we need not decide whether it was error for the
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trial court to admit them in the appellate record.9
Finally, Appellant also takes issue with the information the circuit court considered
in making its findings, including Mr. Gill’s affidavit and the fact that the parties quickly
agreed to Appellant’s motion for summary judgment upon realizing Appellant was not
liable. First, Appellant did not ask for Mr. Gill’s affidavit to be stricken and any suggestion
on appeal that it could not be considered in any fashion is waived. It appears, however, that
Appellant does not suggest that the affidavit should have been stricken, but that it was
given too much weight by the trial court. The weight to be given to the evidence, however,
is peculiarly within the trial court’s domain. See Hoover Motor Exp. Co. v. R.R. & Pub.
Utilities Comm’n, 195 Tenn. 593, 607, 261 S.W.2d 233, 239 (Tenn. 1953) (“The weight
to be given particular evidence is a matter peculiarly within the province of the trier of the
facts, unhampered by mechanical rules governing the weight or effect of evidence.”). And
the trial court’s ultimate finding that Appellees acted in good faith is entitled to a
presumption of correctness on appeal. See Daugherty, 2014 WL 6453770, at *8. We have
thoroughly reviewed the record and have determined that Appellees acted in good faith in
raising allegations of fault against Appellant; the certificate of good faith and its underlying
written statement therefore violated neither the letter nor the spirit of section 29-26-122.
Consequently, the trial court did not err in denying Appellant’s request for attorney’s fees
as a sanction.
CONCLUSION
The judgment of the Benton County Circuit Court is affirmed and this cause is
remanded for all further proceedings as may be necessary and consistent with this Opinion.
Costs of this appeal are taxed to Appellant Ronnie Outen, M.D., for which execution may
issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
9
Furthermore, because Appellant designated the Settlement Documents for inclusion in the record
on appeal in an apparent attempt to prove that Appellees had access to Mrs. Smith’s medical records at the
time they filed the good faith certificate, the relevant portion of the Settlement Documents for purposes of
our review is only the purported medical records. Therefore, we need not address the other portions of the
Settlement Documents.
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