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Supreme Court Rules Expert Certification Not Required in Sex Assault Case Regarding Massage Therapist

Author: Po Waghalter

Guest Editor: Amy Chambers

November 2, 2020 3:00pm

In the recent Supreme Court case Lataisha M. Jackson v. Charles Anthony Burrell, et al. (“Jackson”), the Court reinforced the Common Knowledge Exception to mandatory Expert Certification pursuant to Tenn. Code § 29-26-122(a). (W2018-00057-SC-R11-CV; filed June 12, 2020.) This significant development ends a six-year legal battle, effectively removing a plaintiff’s additional burden to provide expert support when filing a complaint involving sexual assault against health care providers where there are allegations of prior misconduct.

Plaintiff Lataisha M. Jackson alleges she was sexually assaulted by a massage therapist, Charles Anthony Burrell, at Gould’s Day Spa & Salon (“Gould’s”) in April 2014. Plaintiff thereafter brought a lawsuit against both the massage therapist (Burrell) and Gould’s. In the complaint, plaintiff alleged Gould’s received prior complaints of the massage therapist’s misconduct prior to her alleged sexual assault. As against the salon, plaintiff alleged negligent hiring, training and supervision, and included supportive factual allegations of prior complaints made to the salon by third parties regarding inappropriate conduct by Burrell. Of significance, plaintiff’s complaint did not include a supportive expert declaration certifying the filing was made in good faith, following an expert’s review of information provided regarding the care and treatment of the plaintiff at issue, and confirmation of good faith, as mandated by Tenn. Code § 29-26-122.

The trial court therefore dismissed plaintiff’s action via summary judgment on the ground that plaintiff did not properly file the supportive expert declaration certifying the action was brought in good faith. The Court of Appeal reinforced the trial court’s summary dismissal against plaintiff, additionally noting a specific exception was available – the Common Knowledge Exception – but plaintiff failed to raise it. The Court of Appeal ultimately ruled plaintiff 1) failed to raise the Common Knowledge Exception, and thereby waived it; and 2) expert certification was required, the failure of which warranted summary dismissal. The matter was thereafter brought before the Tennessee Supreme Court.

The significant issue addressed before the Supreme Court in Jackson is whether Expert Certification (that a lawsuit is filed in good faith) is required for a lawsuit to move forward where there is a claim of negligent hiring, training, and supervision against a massage therapist’s employer who may have known of prior complaints of misconduct against the massage therapist. In other words, can laypersons determine whether a masseur’s employer was negligent where the employer was apprised of prior allegations of misconduct by the masseur? In brief, the Supreme Court ruled in this case that expert certification is not required, and laypersons do not need an expert to determine whether the (salon) employer was negligent in hiring, training, or supervision of a masseur where there were prior allegations of misconduct made regarding the same masseur.

Technically at issue here before the Supreme Court is: 1) whether plaintiff waived raising the Common Knowledge Exception in the lower court, and 2) whether the Common Knowledge Exception applies such that an Expert Declaration would not be required for the Complaint to be procedurally valid. The Supreme Court, reviewing the case de novo – without deference to the lower courts, and purely as a matter of law – ruled in favor of plaintiff: that 1) plaintiff did not waive the Common Knowledge Exception, and 2) the Common Knowledge Exception applied such that plaintiff’s complaint could not be dismissed for failure to include a supportive Expert Declaration regarding the masseur’s conduct.

The Rule: Expert Certification

A massage therapist is considered a health care provider pursuant to Tenn. Code § 29-26-101 (2014). Claims against health care providers, including massage therapists, are subject to specific and particular requirements, such as the strict 60-day notice statute pursuant to Tenn. Code § 29-26-121 (2014) and the critical Expert Certification filing pursuant to pursuant to Tenn. Code Ann. § 29-26-122.  Without these requirements, complaints are subject to dismissal with prejudice, unless excepted by the Common Knowledge Exception.

The Expert Certification is a filing by a plaintiff or plaintiff’s counsel that indicates an expert was consulted in the health care provider’s field, signed a written statement declaring their competence, and reviewed information concerning the care and treatment of the plaintiff at issue, concluding that based thereon, the lawsuit is filed in good faith. In other words, as a layperson would not know the applicable standard of care for that health care provider, another provider in the same industry can properly opine as to whether a plaintiff may have raised a viable issue to that end. This special requirement of certification effectively increases the burden of a plaintiff when bringing an action against a health care provider.

The Exception to the Rule: The Common Knowledge Exception

However, the Expert Certification requirement is not absolute: simply because a matter involves a health care provider does not automatically mean certification is required. Indeed, where the subject matter does not require expert knowledge and may be determined by the layperson, the Common Knowledge Exception applies. Where “the alleged misconduct is ‘within the understanding of lay members of the public’ [the Common Knowledge Exception applies.]”  Joseph H. King, The Common Knowledge Exception to the Expert Testimony Requirement for Establishing the Standard of Care in Medical Malpractice, 59 Ala. L. Rev. 51, 62–63 (2007).

Here, the Supreme Court clarifies that “[a] layperson could understand that a salon may be negligent in its training, supervision, and retention of a massage therapist who sexually assaults a disrobed customer in a private setting during a massage when the salon knew of the massage therapist’s prior inappropriate actions.” Essentially, and as the Supreme Court notes in its opinion citing plaintiff’s persuasive arguments, the common knowledge exception recognizes the distinction between ordinary negligence and professional negligence, which “turns on whether the acts or omissions complained of . . . can . . . be assessed on the basis of common everyday experience of the trier of fact.” The Supreme Court additionally noted plaintiff’s counsel’s persuasive arguments that the employer had a duty to protect customers from a sexual predator, and sexual battery is considered criminal conduct and not a healthcare act; therefore, expert proof is not required. The Court notes that the technical term “common knowledge exception” was not utilized; however, the arguments demonstrate reliance on the doctrine, and such was sufficient to preserve the exception.

In review of the undisputed facts as alleged in the complaint, the Supreme Court explained that “Ms. Jackson does not allege that Mr. Burrell negligently performed the massage, used improper technique or excessive force, or erred in decision-making as a massage therapist. Thus, there is no need for expert testimony about different types of massage, proper techniques for performing a type of massage, or other specialized knowledge that an expert in the massage industry would know and the average layperson likely would not. Instead, Ms. Jackson alleges that Mr. Burrell sexually assaulted her during a massage and that Gould’s knew or should have known that Mr. Burrell had previously acted inappropriately, making two other clients feel uncomfortable, and thus posed a risk of sexually assaulting Ms. Jackson.”

As the Common Knowledge Exception applied, the Supreme Court ruled that Expert Certification was therefore not required. The trial court’s summary judgment was therefore vacated, the Court of Appeal’s decision affirming the lower court was reversed, and the case was remanded such that plaintiff may proceed with her lawsuit.

Takeaway

This six-year legal battle culminated in a win for plaintiffs and consumers. Notably, this sex assault claim was shut down by the trial court, the Court of Appeals, and required attention by the Supreme Court for this case to simply survive the pleading stage of reviving it from a summary judgment dismissal. The matter here became arguably confusing by virtue of the fact that it involves a massage therapist, entitled to specific procedural protections granted by the Tennessee Code in favor of health care providers. Such protections assist in discouraging frivolous actions against health care providers; however, they somewhat blur the lines between which facts and what conduct comprises that within the realm of expert opinions, and that of the layperson.

In brief summary, the Supreme Court reinforces the Common Knowledge Exception to mandatory Expert Certification pursuant to Tenn. Code § 29-26-122(a), granting a win to plaintiffs and consumers by removing the burden of needing to provide expert support for claims involving sexual assault against health care providers, where there are allegations of prior misconduct. Massage therapists, health care providers in general, and their employers should therefore heed caution when in receipt of complaints of misconduct.

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