Tennessee Statute of Repose Affirmative Defense is Waived if Not Timely Raised

Analysis:  The Tennessee Supreme Court recently decided an important case about the statute of repose that shows the importance of raising this defense in a timely manner.  The Tennessee Supreme Court in Eddie C. Pratcher, Jr. v. Methodist Healthcare Memphis Hospitals, 407 S.W.3d 727 (Tenn. 2013) discussed whether the Tennessee healthcare liability statute of repose (T.C.A. § 29-26-116(a)(3)) is an affirmative defense under Tennessee Rules of Civil Procedure 8.03 and whether it is waived if not raised in a timely manner. 

In the Pratcher case, the patient died following child birth cesarean section complications on December 4, 1999.  On December 1, 2000 her husband filed a Tennessee healthcare liability action (formerly medical malpractice action) against various parties.  There were several amendments to the complaint and the case ultimately proceeded to trial in September of 2006.  At no time throughout the pendency of the case did the defendant assert a statute of repose defense until April 2009 which was two and a half years after the first trial in this case.  At that point the defendant filed a motion to dismiss under the statute of repose defense but still did not attempt to amend its answer to actually add the defense in the answer.  Finally in October of 2010, four years after the trial, this defendant filed a motion to amend the answer to assert the statute of repose defense.  As a result, the Tennessee Supreme Court in this case addressed whether the statute of repose was waived in this context.

The Tennessee Supreme Court at length discussed the interaction between the statute of repose (for a healthcare liability action) and Tennessee Rule of Civil Procedure 8.03.  Specifically, T.C.A. § 29-26-116(a)(1-3) provides as follows:

(a)(1) The statute of limitations in health care liability actions shall be one (1) year as set forth in § 28-3-104.

(2) In the event the alleged injury is not discovered within such one-year period, the period of limitation shall be one (1) year from the date of such discovery.

(3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.

Tennessee Rule of Civil Procedure 8.03 provides a list of affirmative defenses and states how they must be raised.  This rule provides as follows:

In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption of risk, comparative fault (including the identity or description of any other alleged tortfeasors), discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver, workers' compensation immunity, and any other matter constituting an affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation.

The question raised in this case was basically whether the language at the beginning of T.C.A. § 29-26-116(a)(3) stating “In no event” trumps the requirement of Tennessee Rule of Civil Procedure 8.03 to actually raise the affirmative defense in the answer to the complaint.  The defendant tried to argue that this “In no event” language meant that it did not matter if the defense was raised timely or not, it would still apply to bar a claim if it was a proper defense.  Ultimately, the Tennessee Supreme Court found that even though this Tennessee statute of repose starts with the language “In no event”, the statute of repose is still be waived if not raised in a timely fashion.  The Tennessee Supreme Court specifically stated that,

The statute of repose is an affirmative defense that is generally waived if not timely raised.  A defendant must assert an affirmative defense in a timely manner to secure the ‘just’ and ‘speedy’ resolution of litigation.

In this particular case the court found the defendant did not raise the statute of repose in a timely manner and therefore it was waived.  The court noted that once an affirmative defense is waived, “it is waived” and not eligible to be revived at a later time.  Pratcher at 742.  Therefore, by the time the defendant attempted to raise this defense several years after the trial, it had been waived and was no longer a valid defense.

This case shows how important it is to raise appropriate affirmative defenses in a responsive pleading in a timely manner.  If this is not done timely, then affirmative defenses are at risk of being waived and your client could be greatly prejudiced.  There is a specific list of affirmative defenses in Tennessee Rule of Civil Procedure 8.03 that should be consulted whenever filing an answer to the complaint.  Additionally, there is a “catch all” at the end of this list which needs to be considered in addition to the specific defenses on the list. 

One thing is certain from this case, if you first raise an affirmative defense years after the trial, then it is almost certainly waived.  I would argue that once the trial occurs, all affirmative defenses that had not been previously asserted are waived unless there is a very good reason why they were not asserted before trial.  This case does not provide any real guidance on if an affirmative defense can be waived before trial, however I expect there are situations where it could be waived even before trial.  Although not addressed in this case, I propose that the rule in Tennessee should be that there is a rebuttable presumption a defense is waived as untimely if it is first presented during or after trial.  On the flip side, there should be a rebuttable presumption that a defense is not waived as untimely if it is first presented prior to trial.  There may be circumstances on either side of this rule that would allow the general rule to be rebutted, but I think this would be a clear rule that could be helpful to litigation attorneys all across Tennessee.