Kelly on Malpractice

What happens when the defendant in a medical malpractice case raises a comparative fault defense for the first time after the scheduling order deadline for amending pleadings has passed? Rule 8.03 requires a defendant to identify or describe other alleged tortfeasors who should share fault, or else the defendant is barred from shifting blame to others at trial. The defense of comparative fault is among the enumerated affirmative defenses in Rule 8.03. The Advisory Commission Comment to Rule 8.03 provides that the party relying upon a matter constituting an avoidance or affirmative defense “must set forth the facts constituting such defenses in short and plain terms.” The Advisory Commission Comment to the 1993 Amendments provides that in light of McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992), “the defendant must identify or describe other alleged tortfeasors who should share fault, or else the defendant normally would be barred from shifting blame to others at trial.” The rules drafters borrowed this language directly from the Supreme Court in George v. Alexander, 931 S.W.2d 517 (Tenn.1996). The Supreme Court held in George that “the defendant in negligence action who wishes to introduce evidence that person other than defendant caused plaintiff’s injury must affirmatively plead comparative fault.” Id.

A party waives all defenses not present in the party’s answer. TENN. R. CIV. P. 12.08. Comparative fault is an affirmative defense which the defendant must raise “in a timely manner.” TENN. R. CIV. P. 8.03. Courts interpreting Rule 8.03 have consistently held that an affirmative defense is waived when not raised “in a timely manner.” Estate of Baker v. King, 207 S.W.3d 254 (Tenn.Ct.App.2006); see also Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 300 (Tenn.Ct.App.2001). Thus, the issue is whether the defendant raises the comparative fault affirmative defenses against an identified person “in a timely manner.” When it is undisputed that the defendant amends its pleadings by adding affirmative defenses for the first time days after the Court-imposed deadline for amending pleadings, then it may be struck. There is no authority that allows a defendant to relate an amended comparative fault defense, when the original comparative fault defense is naked. Furthermore, Rule 8.03 mandates that every defendant “identify or describe other alleged tortfeasors who should share fault.” Otherwise, “the defendant normally would be barred from shifting blame to others at trial.” This means that a naked comparative fault defense is insufficient as a matter of law. It is likely void ab initio.

The remedy is a Rule 12.06 motion to strike. These affirmative defenses are “insufficient” because the defendant did not raise them “in a timely manner.” A Rule 12.06 motion to strike is the approved method for striking an affirmative defense. See Fowler v. Henderson, 2003 WL 23099686 (Tenn.Ct.App) (affirming summary judgment after the trial court granted plaintiffs’ motion to strike the defense of comparative fault, thus prohibiting the remaining defendants from presenting evidence of the alleged comparative fault as an affirmative defense). Therefore, the Court may strike the defendant’s comparative fault defenses as “insufficient” because they were not raised “in a timely manner.” Enforcing a scheduling order may be the only means to protect your client.