Douglas E. Samuelson and Kevin L. Samuelson v.Cecil E. McMurtry, M.D. - Dissenting

Citation: Not availableDocket: 01-A-01-9602-CV-00060

Court: Court of Appeals of Tennessee; September 6, 1996; Tennessee; State Appellate Court

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Douglas E. Samuelson, as the natural father and personal representative of Kevin L. Samuelson, appeals the summary dismissal of his malpractice claim against Dr. Mark S. Totty, among others, in a wrongful death action following Kevin's death from pneumonia on August 2, 1988. The case involves allegations against Drs. Cecil E. McMurtry and William A. Holland for misdiagnosing Kevin's condition, an employee of H.C.A. Health Services for wrongful refusal of treatment, and Dr. Totty for failing to refer Kevin to a physician.

Dr. Totty sought summary judgment in June 1992, claiming he acted with reasonable care and his actions did not cause Kevin's death. Samuelson opposed this with depositions and affidavits from other medical professionals. The trial court initially denied summary judgment on negligence but granted it on proximate cause, concluding that undisputed facts showed Dr. Totty's conduct was not a proximate cause of death. Samuelson requested reconsideration with additional evidence, but the court maintained its decision, certifying it as final.

Samuelson appealed, and on September 8, 1993, the appellate court reversed the summary judgment, determining that the affidavits presented sufficient evidence of negligence and causation issues, thus allowing the case against Dr. Totty to proceed. No application for further appeal was filed.

Dr. Totty initially did not contest Dr. Cunningham’s qualifications as an expert witness. However, after the case was remanded, he sought to discredit Dr. Cunningham before the trial set for April 17, 1995. On March 1, 1995, Mr. Samuelson served interrogatories to determine if Dr. Totty would challenge Dr. Cunningham’s qualifications. In response, Dr. Totty filed a motion in limine on March 28, 1995, arguing Dr. Cunningham did not meet the criteria under Tenn. Code Ann. 29-26-115(b) (1980). The trial court deferred ruling on this motion until the trial date, ultimately deciding on the morning of the trial that Dr. Cunningham could not testify due to failure to meet the statutory requirements and lack of assistance to the trier-of-fact.

Following this ruling, Dr. Totty threatened sanctions against Mr. Samuelson for requiring him to stay involved in the case. The court suggested severing the claims against Dr. Totty from the other defendants, but when the parties disagreed, Dr. Totty sought to reopen his previous motion for summary judgment or dismissal based on Mr. Samuelson's failure to state a claim. Mr. Samuelson opposed this, emphasizing the lateness of the motions and his intent to prove his case without Dr. Cunningham's testimony. Despite objections, the court severed the claims against Dr. Totty and granted his motions for summary judgment and dismissal, reasoning it did not foresee a benefit in requiring Dr. Totty to remain when a directed verdict was likely.

Mr. Samuelson proceeded to trial against Drs. McMurtry and Holland and H.C.A. Health Services, where neither he nor the remaining defendants argued Dr. Totty's responsibility for Kevin Samuelson’s death. The jury was tasked with determining negligence and fault among the parties involved. The verdict concluded that Dr. McMurtry and H.C.A. Health Services were not negligent, while Dr. Holland was found negligent and a proximate cause of Kevin Samuelson’s death, leading to a 51% fault allocation to Dr. Holland and 49% to Kevin Samuelson. The jury awarded Mr. Samuelson $255,000 in damages from Dr. Holland, based on a total damage assessment of $500,000.

Dr. Holland filed a motion for judgment notwithstanding the verdict and for a new trial, while Mr. Samuelson sought to vacate the dismissal of his claims against Dr. Totty. The trial court denied both post-trial motions but reduced the judgment against Dr. Holland to $204,000, which Mr. Samuelson confirmed was fully satisfied. Samuelson appealed, contesting the trial court's decision to disqualify Dr. Cunningham as an expert witness and to dismiss his claims against Dr. Totty, arguing these decisions should be reviewed. The majority opinion, despite doubting the validity of these decisions, concluded that Samuelson's acceptance of the judgment against Dr. Holland precluded any further claims against Dr. Totty due to res judicata and collateral estoppel principles. The dissenting opinion disagreed, asserting that these doctrines were misapplied in a comparative fault context and advocated for reviewing the trial court's decisions on Dr. Cunningham and Dr. Totty before determining their impact on the jury's verdict.

The excerpt also discusses the Tennessee Supreme Court's adoption of a comparative fault system, aimed at replacing the outdated contributory negligence doctrine. This system allows for fairer compensation for plaintiffs, proportional to their fault, and ensures culpable parties only pay their fair share. The Court has acknowledged many unresolved issues within this system, particularly regarding the fault of non-parties and the inclusion of other potentially liable parties. Key principles established include that fault can only be assigned to parties with a cause of action against them, that fault can be attributed to both parties and non-parties, that plaintiffs risk not joining liable tortfeasors, and that failure to identify non-parties as required by law limits defendants' ability to attribute fault to them.

The Court emphasizes the importance of efficiency and fairness in joining all potentially liable defendants in a single action, as supported by Tenn. R. Civ. P. 8.03 and Tenn. Code Ann. 20-1-119. While this approach aligns with modern trends in litigation, Tennessee has not adopted the 'one-action rule' that prevents subsequent claims against parties not included in the original suit. Some jurisdictions that have adopted this rule rely on preclusion doctrines like res judicata and collateral estoppel to limit further trials in comparative negligence cases, asserting that total fault allocation in the first trial precludes subsequent actions. However, other jurisdictions have chosen not to apply these doctrines to prevent later trials in comparative fault cases, particularly when a plaintiff was unable to sue a culpable party initially.

In this case, Mr. Samuelson did not engage in strategic inefficiency; he sued all parties potentially responsible for his son’s death, making it inappropriate to use this case to assess Tennessee's stance on the 'one-action rule.' The majority opinion holds that res judicata and collateral estoppel bar Mr. Samuelson from pursuing a claim against Dr. Totty after securing a judgment against Dr. Holland, a position that the dissent disagrees with. Res judicata prevents a second suit on the same cause of action between the same parties or their privies, while collateral estoppel prohibits relitigating issues already determined in a prior suit. Both doctrines require identity of parties, and privity is determined by the subject matter. For instance, a verdict against a dealer can bar claims against a manufacturer due to privity, while a judgment favoring one physician does not prevent claims against a hospital or other physicians involved.

Res judicata and collateral estoppel do not prevent Mr. Samuelson from pursuing claims against Dr. Totty, as Dr. Totty was dismissed as a party before trial and was not in privity with the other defendants. The allegations against Dr. Totty pertain to different actions that did not occur in the same context as those against Drs. Holland, McMurtry, and H.C.A. Health Services, requiring distinct proof. The issues in Mr. Samuelson's first suit were solely related to the negligence of the other doctors and did not address his claims against Dr. Totty, which therefore were not adjudicated. The comparison drawn to the Cantrell v. Burnett case is inappropriate, as that case involved a direct relationship and the same issues, which is not the case here. The judgment against Dr. Holland does not impede the court's ability to review the dismissal of claims against Dr. Totty. Should it be determined that the dismissal was erroneous, Mr. Samuelson would be entitled to a new trial against Dr. Totty and the jury would need to apportion negligence among all relevant parties. The trial court's error not only denied Mr. Samuelson a trial against Dr. Totty but also obstructed the jury from properly assessing comparative negligence.

The erroneous exclusion of a defendant from trial may have prejudiced the remaining defendants by limiting their ability to allocate fault and potentially exposing them to excessive liability. The exclusion undermines the principle of conducting single trials for all relevant parties in comparative fault cases. Most jurisdictions agree that such an exclusion impacts the verdict against the remaining defendants, necessitating a new trial for the plaintiff when a defendant is improperly dismissed. There is a split among courts regarding whether the new trial should include all defendants or only those not exonerated in the initial trial. However, the law mandates that relief should be granted when a trial court's error likely affected the judgment. If the dismissal of claims against Dr. Totty is deemed reversible error, a new trial would be awarded against Dr. Totty and Dr. Holland, the remaining at-fault defendant. Should the new trial yield a higher judgment against Dr. Holland, he would receive a credit for damages already paid. Conversely, if the judgment is lower, Mr. Samuelson must repay the difference. Mr. Samuelson's right to pursue claims against all potentially liable parties should be upheld, as the trial court's error should not prejudice his ability to have liability determined in a single proceeding.