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Analysis: The recent Tennessee Supreme Court decision of Elliot H. Himmelfarb, M.D. et al. v. Tracy R. Allain, No. M2010-02401-SC-S10-CV, 2012 WL 3667440 (Tenn. 2012) discussed the elements for a malicious prosecution claim under Tennessee Law. This case also addressed whether a lawsuit that is terminated by a voluntary dismissal (nonsuit) without prejudice satisfies one of the requirements for a malicious prosecution claim.
In this case, Tracy Allain filed a lawsuit asserting a medical malpractice claim against Dr. Elliot Himmelfarb and Dr. Douglas York for an allegedly faulty heart catheterization procedure. Mr. Allain subsequently filed a notice of voluntary dismissal of the complaint, dismissing the case without prejudice under Tennessee Rule of Civil Procedure 41.01. One year later, Dr. Himmelfarb and Dr. York filed a complaint against Mr. Allain asserting the prior lawsuit against them constituted malicious prosecution under Tennessee law. Himmelfarb at 1.
In order to proceed with a claim for malicious prosecution the plaintiff must establish three elements. These elements are: (1) the prior lawsuit was initiated against the plaintiff without probable cause; (2) the prior lawsuit was brought with malice; and (3) the prior lawsuit was terminated in favor of the plaintiff. Himmelfarb at 2 (citing Christian v. Lapidus, 833 S.W.2d 71, 73 (Tenn. 1992)). Under element number (3), requiring the termination of the prior lawsuit in favor of the plaintiff, the termination of the lawsuit must “address the merits of the suit rather than terminating the suit on procedural or technical grounds”. Himmelfarb at 2 (citing Parrish v. Marquis, 172 S.W.3d 526, 531 (Tenn. 2005)). As a result, the Tennessee Supreme Court in this case addressed whether a voluntary nonsuit was a termination in favor of the plaintiff “on the merits” in order to support a malicious prosecution claim.
The Tennessee Supreme Court noted the majority of jurisdictions have found that a prior voluntary nonsuit should be deemed a termination “on the merits” in order to support a malicious prosecution claim. Himmelfarb at 3. Interestingly, the Tennessee Supreme Court in this case rejected the majority rule and instead concluded that "a voluntary nonsuit without prejudice is not a favorable termination for purposes of a malicious prosecution claim." Himmelfarb at 4.
As a result, the court found plaintiffs Dr. Himmelfarb and Dr. York, could not prove an essential element of their malicious prosecution claim. This was because the prior claim was dismissed by a voluntary dismissal under Tennessee Rule of Civil Procedure 41.01 and is not a termination “on the merits” for purposes of supporting a Tennessee malicious prosecution claim.
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