Tennessee Nurse Practitioners Are Now Exempt from Subpoena to Trial

Analysis:  T.C.A. § 24-9-101 provides a list of individuals who are exempt from subpoena to trial in Tennessee.  These individuals are still subject to give a deposition by subpoena but they cannot be subpoenaed to trial.  Tennessee Public Chapter No. 590, was passed in the 2014 Tennessee Legislative session and it added “advanced practice nurses”, commonly referred to as “nurse practitioners” to the list of those who are exempt from subpoena to trial.  As a result, T.C.A. § 24-9-101 now provides the following list of individuals who are exempt from subpoena to trial:

(a) Deponents exempt from subpoena to trial but subject to subpoena to a deposition are:

(1) An officer of the United States;

(2) An officer of this state;

(3) An officer of any court or municipality within the state;

(4) The clerk of any court of record other than that in which the suit is pending;

(5) A member of the general assembly while in session, or clerk or officer thereof;

(6) A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney;

(7) A jailer or keeper of a public prison in any county other than that in which the suit is pending; and

Protective Orders - What is a party required to establish in order to obtain a protective order under Tennessee Rule of Civil Procedure § 26.03?

Analysis:  Tennessee Rule of Civil Procedure § 26.03 allows a party to file a motion for a protective order preventing or limiting discovery that is requested by the opposing party under certain circumstances.  Rule 26.03 provides that the party requesting the protective order must show "good cause" and the specifically listed circumstances that allow a party to obtain a protective order include when "justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."  Tennessee Rule of Civil Procedure § 26.03

Tennessee Rule of Civil Procedure § 26.03 provides a list of things the court can do in a protective order.  This list includes the following

(1) that the discovery not be had;

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition after being sealed be opened only by order of the court;

(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

In Ballard v. Herzke, 924 S.W.2d 652 (Tenn. 1996) the Tennes...

Comparative fault – Under Tennessee law can a plaintiff sue an entity outside of the statute of limitations when a defendant names that entity as a potential at-fault party in discovery responses?

Brief Summary:  The identification of a potential non-party tortfeasor by a defendant in discovery responses (as opposed to in an answer) is not sufficient to trigger the extension of the statute of limitations that is allowed under T.C.A. § 20-1-119 for assertions of comparative fault. 

Analysis:  The Tennessee Court of Appeals recently decided an interesting case involving T.C.A. § 20-1-119 and its application in the context of discovery responses.  The Tennessee Court of Appeals decision of Rev. J.M. Shaffer v. Memphis Airport Authority et. al., No. W2012-00237-COA-R9-CV, 2013 WL 209309 (Tenn. Ct. App. January 18, 2013) discussed whether the ninety day statutory period, (under T.C.A. § 20-1-119) that allows a plaintiff to bring in a new defendant outside of the statute of limitations, was triggered when a defendant answered discovery identifying a potential tortfeasor.  Normally this statute is used when a defendant asserts comparative fault in an answer to the complaint outside of the statute of limitation time period for the cause of action. 

In this case, the plaintiff was allegedly injured in a slip and fall on April 29, 2009.  Shaffer at 1.  One year later on April 29, 2010, Shaffer filed a lawsuit in Circuit Court. Shaffer at 1.  The defendant filed an answer to the complaint on September 1, 2010 and asserted comparative fault against "other parties or non-parties" without identifying them by name.  Shaffer at 1,2.  On February 25, 2011, the defendant provided discovery responses identifying a potential third-party that was responsible under Tennessee comparative fault principles. Shaffer at 2.  On May 4, 2011, 245 days after the defendant filed the answer, the plaintiff filed an amended complaint against this newly identified entity. Shaffer at 2.  This new defendant filed a motion to dismiss citing the applicable one year statute of limitation and the assertion that T.C.A. § 20-1-119 did not apply to extend the statute of limitation in this circumstance based on the plain language in the statute.

Subpoena Exemption – Physician assistants are now exempt from subpoena to trial in Tennessee under new 2012 legislation

T.C.A. § 24-9-101 provides a list of individuals who are exempt from subpoena to trial in Tennessee.  All of these individuals are still subject to subpoena for a deposition in Tennessee but they can not be compelled to appear at trial by subpoena.  T.C.A. § 24-9-101 provides as follows: 

(a) Deponents exempt from subpoena to trial but subject to subpoena to a deposition are:

(1) An officer of the United States;

(2) An officer of this state;

(3) An officer of any court or municipality within the state;

(4) The clerk of any court of record other than that in which the suit is pending;

(5) A member of the general assembly while in session, or clerk or officer thereof;

(6) A practicing physician, physician assistant, psychologist, senior psychological examiner, chiropractor, dentist or attorney;

(7) A jailer or keeper of a public prison in any county other than that in which the suit is pending; and

(8) A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided in title 68, chapter 11, part 4, for the production of hospital records pursuant to a subpoena duces tecum.

(b) If the court grants a motion to quash a subpoena issued pursuant to subsection (a), the court may award the party subpoenaed its reasonable attorney's fees and expenses incurred in defending against the subpoena.

On April 4, 2012 a new bill was passed and signed into law by Governor Haslam that modified this statute.  Tennessee Public Chapter No. 678 added...