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SHERRILL v. SOUDER
MICHAEL REAGAN, District Judge
A. INTRODUCTION
Before the Court is an August 2010 suppression motion — thoroughly briefed and persuasively argued by counsel — involving the admissibility of a firearm discovered during a vehicle search and a statement made to officers following that discovery. Having conducted a suppression hearing, heard the testimony, and carefully reviewed the evidence, the undersigned Judge finds that an illegal seizure occurred and, although the law enforcement officers were well-intentioned, their conduct was sufficiently deliberate and culpable that suppression is warranted.
B. PROCEDURAL OVERVIEW AND FACTUAL SUMMARY
An April 2010 one-count indictment charges Isaac Windom with being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). Windom was arraigned before Magistrate Judge Donald Wilkerson and released on bond pending trial, which is set to commence on January 10, 2011.
On August 3, 2010, Windom moved to suppress "all evidence obtained as a result of the illegal seizure on January 4, 2010" (Doc. 19, p. 1). Drawing the facts from the testimony and exhibits introduced at the evidentiary hearing on October 7, 2010, the Court summarizes the events of January 4th.
On that day, Illinois State Police Officer Scott Boothe was working as part of the "WAVE" (Working Against Violent Elements) task force patrolling in Washington Park, Illinois. Around 5:15 pm, Boothe was patrolling in the 5600 block of Warren Street. Extensive evidence was submitted to demonstrate, and indeed it is undisputed, that this is an area plagued by crime.
WAVE is a collaboration of law enforcement officers from the Illinois State Police, MEGSI, the St. Clair County (Illinois) Sheriff's Department, the East St. Louis Police Department, the F.B.I., the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the U.S. Marshals Service.
Boothe's police vehicle was a Black Chevy Tahoe, equipped with interior emergency red and blue flashing lights. In Boothe's vehicle that night were four law enforcement officers: (1) Scott Boothe driving the Tahoe; (2) Chris Lutz, a Monroe County, Illinois Sheriff's Deputy assigned to the Metropolitan Enforcement Group of Southern Illinois ("MEGSI"), sitting in the front passenger seat of the Tahoe; and (3) F.B.I. Agent John Kelly and (4) F.B.I. Agent Brian Yingling, both riding in the back seat of the Tahoe. All four officers wore clothing identifying them as police officers, and the Tahoe (though unmarked) was known to local residents as a police vehicle.
When Boothe turned the corner on Warren Street, he saw a white Ford Crown Victoria parked in front of an abandoned house at 5613 Warren. The car had its headlights off, and the engine was idling. The latter fact could be determined because the car exhaust was visible in the chilly evening air. Boothe immediately activated the police lights on his Tahoe, pulled up, and parked at an angle directly in front of Windom's idling Crown Victoria. According to Agent Lutz, Boothe parked the Tahoe (angled toward the curb, facing east) with his front bumper 8 to 10 feet from the front bumper of Windom's car (which was facing west), positioning the Tahoe so that Windom could not pull straight away (i.e., the Tahoe at least partially blocked Windom's path).
Several significant details merit mention here. Prior to activating the emergency lights and pulling in front of Windom's car that night, the officers: (a) had no reports or complaints regarding suspicious persons or activity in the area; (b) had no information that a white Crown Victoria was involved in any criminal activity; (c) had no reports or anonymous calls regarding a crime at 5613 Warren; (d) had no idea who the driver of the Crown Vic was; and (e) had no idea how long he had been parked in that spot. No traffic offense was being committed, and sitting in a running car parked by the side of the road is not illegal. All Officer Boothe knew at this point was that an African-American male was sitting in an idling car with his headlights off in front of an abandoned house in a high-crime area of Washington Park, Illinois. After the lights were activated and after the Tahoe was parked, as two of the officers made their way to the idling Crown Victoria, Officer Boothe saw the driver (later identified as Windom) "moving around in the front seat" seemingly "determined to put something down." Boothe's impression was that the driver probably had a "bag of weed" he was trying to hide.
Boothe and Lutz exited the Tahoe and approached Windom's vehicle; the FBI agents remained in the Tahoe at this time. Boothe walked up to the driver's side of Windom's car while Lutz walked around to the passenger side of Windom's vehicle.
Boothe asked Windom for his driver's license, and Windom politely complied, producing identification. At this point, Agent Lutz (who, from his position, had a view of the Crown Victoria's ignition) indicated to Officer Boothe that the ignition had been popped or "punched," and a screwdriver was lying on the front seat.
Boothe directed Lutz to step out of the vehicle, based on a concern that the car was stolen (due to the condition of the steering column/ignition). Windom did so, remaining cordial and compliant. Once he was out of the vehicle and asked about the ignition, Windom explained that he purchased the car in that condition and used the screwdriver to start the car. Windom was respectful and responsive throughout the exchange with officers.
Lutz's report (Doc. 24-7) suggests a different chronology of events, i.e., Boothe asked Windom to step out of the car and produce his driver's license before Lutz saw the popped ignition or screwdriver. But Boothe testified at the hearing that, to his best recollection, he asked Windom to exit the car after learning about the ignition.
A records check subsequently confirmed that Windom owned the car, and the license plates were registered in his name.
After querying Windom regarding the ignition, Officer Boothe asked Windom if he had any drugs or guns on his person or in his vehicle. Windom said no. Officer Boothe asked if Windom would mind consenting to a search of his vehicle. Windom agreed to the search.
After Windom consented to the search, Boothe "felt very at ease with Mr. Windom," who was polite, maintained good eye contact, and gave no indication he "was thinking about running." In fact, Boothe felt so comfortable that he turned and walked to his vehicle while Agent Lutz searched the Crown Vic.
As he sat in his patrol vehicle running the license and registration check, Boothe looked up and saw Agent Lutz placing Windom in handcuffs. Lutz walked over to the Tahoe and advised Boothe that Lutz had found a .25-caliber Beretta in the passenger compartment of Windom's car. Boothe obtained a box from his Tahoe in which to secure the firearm. The agents finished searching the Crown Victoria, read Windom his Miranda rights, and then conducted an on-scene interview of Windom in their vehicle. Boothe's impression from the interview was that Windom had forgotten the firearm was in the vehicle.
During this questioning, Windom told the officers that he bought the gun from a "crackhead on the street" for $30 and that although the seller had test-fired it to prove that the gun worked, Windom himself had never fired it or cleaned it. Windom told the officers he did not remember leaving it in the car, but he worked a 24-hour "on call" job and was quite tired. He also referenced the fact he would rather be caught with the gun than without it.
When asked why he was parked on Warren with his engine running and lights off, Windom said he was using his cell phone to make a call. He offered that he used to live nearby (just down the street), and he sometimes parks on Warren, drinks beer, and talks to his girlfriend on the phone.
One of the photographs admitted into evidence at the suppression hearing (Government Exhibit 5, taken just after the search of the Crown Victoria) plainly shows a brown paper sack containing what appears to be a beer bottle sitting on top of Windom's car.
In moving to suppress, Windom claims that his initial detention was illegal, thus his consent to search the vehicle was tainted, and the evidence discovered both during the search (the Beretta) and after the search (the "confession") must be excluded. The Government counters that no Fourth Amendment violation occurred, because the officers lawfully approached Boothe's vehicle, Boothe consented to the car search, and no seizure occurred until after the agents secured Windom's consent to search the car and found the gun.
C. ANALYSIS
The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Fourth Amendment "guarantees the privacy, dignity, and security of persons against arbitrary and invasive acts by officers of the Government." City of Ontario, California v. Quon , ___ U.S. ___, 130 S. Ct. 2619, 2627 (2010). Put simply, the Fourth Amendment "requires searches and seizures to be reasonable." United States v. Jennings, 544 F.3d 815, 818 (7th Cir. 2008), citing Illinois v. McArthur, 531 U.S. 326, 330 (2001).
"Any Fourth Amendment inquiry necessarily begins with a determination of whether a search or seizure actually occurred." Carlson v. Bukovic , ___ F.3d ___, 2010 WL 3432218 (7th Cir. Sept. 2, 2010), citing Scott v. Harris, 550 U.S. 372, 381 (2007). The traditional approach to deciding whether a seizure occurred is to ask whether the individual believed he was "free to leave" — an objective standard. Carlson at *6, citing United States v. Jerez, 108 F.3d 684, 590 (7th Cir. 1997), and Florida v. Bostick, 501 U.S. 429, 437 (1991).
Pertinent to the case at bar is the line separating a wholly consensual encounter between a police officer and an individual (such as when an officer merely approaches a person in a public place and asks if he is willing to answer a few questions, see Bostick, 501 U.S. at 434) from an encounter in which the officer in some way restrains the liberty of the citizen (resulting in a seizure). An entirely consensual exchange between a law enforcement officer and a private citizen does not trigger the Fourth Amendment at all. United States v. Hendricks, 319 F.3d 993, 999-1000 (7th Cir. 2003). But a consensual encounter "becomes a seizure when a reasonable person in those circumstances would not feel free to leave." United States v. Clements, 522 F.3d 790, 794 (7th Cir. 2008), quoting Brendlin v. California, 551 U.S. 249, 254 (2007).
As the United States Court of Appeals for the Seventh Circuit declared earlier this year:
An officer executes a Fourth Amendment seizure when "by means of physical force or show of authority, [he] in some way restrain[s] the liberty of a citizen." Shell v. United States, 448 F.3d 951, 955 (7 th Cir. 2006). . . . The test for assessing whether a seizure for Fourth Amendment purposes has occurred is whether "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573 (1988). . . .Gentry v. Sevier, 597 F.3d 838, 844-45 (7th Cir. 2010). Accord United States v. Adebayo, 985 F.2d 1333, 1338 (7th Cir. 1993) (a person has been seized within the meaning of the Fourth Amendment if, given all the circumstances, he would not have believed himself free to go).
A law enforcement officer can execute an investigatory stop, consistent with Terry v. Ohio, 392 U.S. 1 (1968), if he has reasonable suspicion that a crime may be afoot. Gentry, 597 F.3d at 845, quoting United States v. Hampton, 585 F.3d 1033, 1038 (7th Cir. 2009), and Terry, 392 U.S. at 30. But for the investigatory stop to be lawful, the officer "must be aware of specific and articulable facts giving rise to a reasonable suspicion that there may be criminal activity occurring." Jewett v. Anders, 521 F.3d 818, 823-25 (7th Cir. 2009).
In our case, the parties disagree as to whether Windom was seized, when the seizure occurred, and whether the seizure comported with constitutional requirements. In its brief opposing suppression, the Government suggests that no seizure occurred at all but alternatively (and more vigorously) argues that a seizure occurred which did not violate Windom's rights, because the seizure "occurred only after the agents saw the jimmied ignition switch, got Windom's consent to search the vehicle, and found the gun" (Doc. 24, p. 8).
So the Government (relying on Clements ) urges the undersigned Judge to hold that "no Terry stop occurred here," but if the Court concludes that a Terry stop did take place to find the stop "reasonable under the circumstances" (Doc. 24, p. 12). The latter argument was pressed at the hearing. Specifically, the Government asserts that reasonable suspicion supported a Terry stop, because: "this was a high-crime area; the car was idling in front of an abandoned house; [and] abandoned houses in the area are known as places where illegal drug and gun activity occurs" (Doc. 24, p. 8).
First, the record reveals that Windom was seized within the meaning of the Fourth Amendment. That conclusion is not altered in any way by the fact he was parked in a running car, as opposed to being pulled over by the police while driving down the road. Windom's freedom of movement was restrained by the officers' show of authority "through means intentionally applied." Brendlin, 551 U.S. at 254. A seizure occurred.
Next, the Court must decide when the seizure took place. Borrowing from the test first articulated by Justice Stewart in United States v. Mendenhall, 446 U.S. 544, 554 (1980), we look to the moment in time when, "in view of all of the circumstances surrounding the incident, a reasonable person would have believe that he was not free to leave." The inescapable conclusion here is that a reasonable person in Windom's position — who saw a police car pull up with lights flashing and park in front of his vehicle, effectively blocking the path before him, and immediately saw two officers in police attire hastening to either side of his vehicle — would not have believed that he was free to leave at that point.
The Illinois Rules of the Road do not permit motorists to disregard police lights or emergency vehicles. See 625 ILCS 5/11-907. And the testimony at the suppression hearing from both Agent Lutz and Officer Boothe confirmed that if Windom had attempted to drive off at that point, they would have attempted to stop him. In fact, Officer Boothe candidly stated that he likely would have pulled a firearm on Windom, if needed to effect a stop.
When the Tahoe (lights ablaze) zipped up and parked in front of Windom's car (with the law enforcement vehicle parked at an angle facing Windom's car on the "wrong side of the street," partially blocking the street) and two officers hopped out and approached Windom's vehicle, a reasonable person in Windom's shoes would not have felt free to ignore the officers, drive off, "decline the officers' requests or otherwise terminate the encounter." Bostick, 501 U.S. at 435-36; United States v. Drayton, 536 U.S. 194, 202 (2002).
Officer Boothe characterized the encounter as an investigative stop, and the Government devoted the lion's share of its argument to this theory. As noted above, such stops are permissible if founded on reasonable suspicion of criminal activity. As the United States Supreme Court reiterated in Illinois v. Ward low, 528 U.S. 119, 123-24 (2000), a police officer may, "consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." While reasonable suspicion is a "less demanding standard than probable cause," the Fourth Amendment requires "at least a minimal level of objective justification," and the "officer must be able to articulate" specific facts that reveal more than a general suspicion or a "hunch" that a crime is occurring or about to occur. Id.
In assessing whether an officer had reasonable suspicion for an investigatory stop, the district court should consider "the totality of the circumstances" and make common-sense "judgments and inferences about human behavior." United States v. Oglesby, 597 F.3d 891, 894 (7th Cir. 2010), quoting United States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005). It is important to note that the officer's action must be justified at its inception. Jewett, 521 U.S. at 824.
Officers may rely on their experience and training in evaluating the significance of the suspect's conduct. United States v. Carlisle, 614 F.3d 750, 755 (7th Cir. 2010), citing Baskin, 401 F.3d at 791; Oglesby, 597 F.3d at 894. Accord United States v. Odum, 72 F.3d 1279, 1284 (7th Cir. 1995). Additionally, a suspect's nervous or evasive behavior is a pertinent factor to the reasonable suspicion inquiry. See Cady v. Sheahan, 467 F.3d 1057, 1061-62 (7th Cir. 2006), cert. denied, 551 U.S. 1119 (2007).
An officer also may consider the characteristics of the location when sizing up the situation. Oglesby, 597 F.3d at 894, citing Wardlow, 528 U.S. at 124; United States v. Brewer, 561 F.3d 676, 679 (7th Cir. 2009). In other words, presence in a high-crime location is one relevant circumstance. United States v. Jackson, 300 F.3d 740, 746 (7th Cir. 2002). Clearly, though, an individual's presence in a high-crime area cannot, in and of itself, support a particularized suspicion that a subject is committing a crime. Oglesby, 597 F.3d at 894, citing Wardlow, 528 U.S. at 124.
And it is on this point in the case at bar that the prosecution's argument founders. In its memorandum opposing suppression and in the evidence adduced at the hearing, Government counsel emphasized the heightened level of crime in the village of Washington Park, Illinois. A sizeable portion of the memo (and the testimony from David Clark, Washington Park's Chief of Police) focused on the crime rate in this small, fiscally-strapped, low-income community. Some of the facts highlighted by the prosecution, such as the April 2010 murder of the Mayor of Washington Park and the June 2010 shooting at the home of his successor, took place after the January 2010 incident at issue here and, thus, were not known to officers at the time they observed Windom's idling Crown Victoria. However, it is undisputed that Washington Park is rife with gang and narcotics problems and a surplus of abandoned houses which are targeted by copper thieves and used by drug dealers. Washington Park, Illinois, without doubt, is a high-crime area.
However, Supreme Court and Seventh Circuit caselaw instruct that an individual's presence in a high-crime area does not, by itself, create a particularized suspicion of criminal activity supporting an investigatory stop. See Oglesby, 597 F.3d at 894; Wardlow, 528 U.S. at 124; Baskin, 401 F.3d at 791-92. So the critical question here is what else supported the officers' actions before the seizure on January 4, 2010?
The Government maintains (Doc. 24, p. 9): "we have more than mere presence in a high crime area — we have the defendant, sitting in the driver's seat of a car idling in front of an abandoned house for no apparent reason, and we have abandoned houses in the area serving as opportune places for illegal drug and gun crime to occur." The undersigned Judge finds this insufficient to constitute the requisite reasonable suspicion of criminality, "supported by articulable facts" known to the officer at the time of the stop or exchange. Baskin, 401 F.3d at 791, citing United States v. Swift, 220 F.3d 502, 506 (7th Cir. 2000).
In the case at bar, at the time of the seizure, the officers had no report of suspicious activity or crime in the area of 5600 Warren. The police had received no anonymous call with concerns about a Crown Victoria. The officers had observed no traffic infraction or other violation by the driver of the vehicle. They simply turned a corner and saw an idling car parked in front of an abandoned house at 5:15 pm. The officers could see that the driver was African-American, but they conceded in their testimony that there was nothing out of place or suspicious about a black man being present on Warren Avenue in Washington Park. They had no idea how long the car had been at that location; for all they knew, the driver had just pulled the car over before they arrived.
Officer Boothe, the driver of the Tahoe (it was his assigned patrol vehicle), shouldered primary responsibility among the officers in the vehicle that night. He alone made the decision to pull over, park in front of the Crown Victoria, and approach Windom. When pointedly asked on cross-examination whether it was fair to say that his decision to pull over and investigate the white Crown Victoria parked in front of 5613 Warren "was not based on any specific information that you had," Officer Boothe acknowledged: "That's correct. It was just past knowledge."
Boothe's experience with and knowledge of the abandoned houses and crime problems in Washington Park is relevant, but it is akin to a hunch that something criminal might be occurring involving the Crown Victoria. Lacking here were specific and articulable facts indicating that Windom was committing (had committed, or was about to commit) a crime, warranting the limited intrusion permitted via Terry stop. See Baskin, 401 F.3d at 791.
Officer Boothe did recall seeing a gesture by Windom, described as reaching around possibly to hide something like "a bag of weed," but that happened after Boothe activated the lights, parked to block Windom's exit, and was already walking up to Boothe's window. That observation came post-seizure.
Morevoer, Boothe did not claim to have relied on that gesture, and he never suggested that it alarmed him. Indeed, as noted above, Boothe turned away from Windom and returned to the Tahoe without any fear or concern engendered by the gesture.
While questioning the compliant non-threatening Windom (who maintained eye contact and exhibited no evasive or nervous behavior), Boothe learned about the punched ignition and the screwdriver on the front seat. But, like the gesture, those observations occurred just after the seizure and cannot be factored in when deciding whether the officers had reasonable suspicion to support the seizure in the first place — i.e., whether the officers' decision was justified at its inception.
Certain key facts of this case parallel the facts noted by the Seventh Circuit eight months ago in Gentry. In Gentry, police officers had received a report of a suspicious black male wearing dark clothing, pushing a wheelbarrow through a residential neighborhood of Indianapolis at 2:30 a.m. Responding to that report, they came upon Kenneth Gentry trotting down the street with a wheelbarrow full of items partially covered by a yellow raincoat. The officers pulled up in their patrol car without activating their emergency lights. Gentry began waving to them. One officer exited the car and asked Gentry to keep his hands up; the other officer patted Gentry down and felt what turned out to be a garage door opener. Asked what he was doing, Gentry said he was headed home. Activation of the garage door opener and a search of the wheelbarrow ultimately revealed that certain items contained therein had been stolen from a garage nearby, and Gentry was charged with burglary and theft.
In scrutinizing Gentry's encounter with the police officers, the Seventh Circuit held that a seizure had occurred "[w]hen the officers pulled up in their patrol car and one officer exited the car and told Gentry to `keep his hands up,'" because at that point a reasonable person "would not believe that he was free to leave." Gentry, 597 F.3d at 844.
The seizure resulted immediately after the officer in question arrived at the scene, and the seizure was not an investigatory stop consistent with Terry, because:
The officer who initially approached Gentry lacked any articulable facts at that point to justify a Terry stop. The officer was acting solely upon a general report of a "suspicious person," . . . which did not provide any articulable facts that would suggest the person was committing a crime or was armed. . . .
[T]he officer who initially approached Gentry was not provided with sufficient information in the police dispatch to warrant a Terry stop. . . .
The undisputed record also makes clear that Gentry himself did not give the officers a reason to suspect that he had been engaged in any wrongdoing.Gentry, 597 F.3d at 845-46, citing United States v. Packer, 15 F.3d 654 (7th Cir. 1994).
Like the officers in Gentry and Packer, prior to the seizure the officers in the case sub judice had "no articulable facts that would suggest the person was committing a crime or was armed." Id. Like the suspect in Gentry, Windom did not attempt to flee, did not exhibit any evasive behavior, did not appear to pose a threat to the officers, and gave the officers no reason to suspect that he had engaged in any wrongdoing. Shortly after the seizure, the officers saw the punched ignition in Windom's car, which obviously could indicate that the vehicle was stolen. But post-seizure observations cannot supply the reasonable suspicion needed to justify the seizure in the first instance.
As the Seventh Circuit declared in Gentry, 597 F.3d at 848, nothing about the suspect's demeanor or actions indicated that he was engaged in criminal activity or presented a threat, and "[a]lthough the officers ultimately uncovered Gentry's burglary and theft, such discoveries cannot be used in retrospect to justify the initial search." By the same logic, the post-seizure discovery of the punched ignition and screwdriver cannot be factored in when assessing whether reasonable suspicion supported the seizure at its inception.
The undersigned Judge in no way downplays the dangers that the officers on the WAVE detail confront in patrolling the Village of Washington Park. Indeed, the weapon stuffed between the seat cushions in Windom's car was loaded with the hammer cocked and a round in the chamber. The Seventh Circuit repeatedly has recognized the demanding work of law enforcement officers who must make split-second decisions in less than ideal circumstances.
For instance, in Packer, 15 F.3d at 658, officers had responded to a citizen's call of a suspicious vehicle parked on a Milwaukee street at 1:00 a.m. The Court of Appeals acknowledged the reality of the "mean streets that police officers face every day in their struggle with the criminal element of our society" and lauded the police officers' willingness to "regularly risk their lives in the interests of public safety." Id.
The Court summarized several cases involving investigatory stops, remarking: "In cases where Terry stops were found to be justified by reasonable suspicion, the law enforcement officer generally has observed or has received a report of more suspicious activities than four men sitting together in a parked car at the wee hours of the morning," and "in the instant case, the officers were not aware of any specific crime being committed in the area." Based on this conclusion, the Seventh Circuit held:
In order to protect the constitutionally guaranteed rights of us all, the minimum threshold of "specific and articulable facts" sufficient to give rise to reasonable suspicion must be higher, albeit marginally, than those presented here. The Government must justify its intrusions according to the Fourth Amendment. . . .
Therefore, because the officers' investigatory stop was not fully justified by a reasonable and articulable suspicion as required by Terry, the evidence seized during the encounter should have been suppressed by the district court.Packer, 15 F.3d at 659 (emphasis supplied).
This Court similarly concludes that the facts needed to justify this seizure fall just short. Considering all the circumstances known to the officers at the time of the encounter (including Officer Boothe's experience, the time of day, the abandoned house, the idling car, and the high-crime location, etc.), the undersigned Judge finds that the officers lacked a "reasonable suspicion based on articulable facts that a crime [was] about to be or [had] been committed." Carlisle, 614 F.3d at 754.
D. CONCLUSION
The Fourth Amendment prevents police from seizing a person without a reasonable suspicion of criminal activity. No specific and articulable facts known to the officers at the time of their initial encounter with Windom furnished reasonable suspicion that he had committed a crime or was about to commit a crime. Accordingly, the seizure runs afoul of the Fourth Amendment. Although counsel did not address this in their briefs or arguments, one last point must be discussed.
As Chief Justice Roberts reminded last year, the Fourth Amendment does not expressly preclude the use of evidence obtained in violation of its commands, and the fact a Fourth Amendment violation occurred does not necessarily mean that the evidence must be excluded. Herring v. United States , ___ U.S. ___, 129 S. Ct. 695, 699 (2009). But, subject to clearly defined exceptions delineated in Supreme Court precedent (e.g., "good faith" objectively reasonable reliance on a subsequently invalidated search warrant, see United States v. Leon, 468 U.S. 897 (1984)), the exclusionary rule "forbids the use of improperly obtained evidence at trial." Herring, 129 S. Ct. at 699-700. As Justice Roberts explained, this judicially created rule applies where the police conduct was "sufficiently deliberate that exclusion can meaningfully deter it," and the deterrence "is worth the price paid by the justice system." Id. at 702.
Mindful that exclusion is not a "necessary component of a Fourth Amendment violation," Herring, 129 S. Ct. at 700, and having carefully examined the officers' conduct and weighed the benefits of deterrence against the costs of exclusion, the undersigned Judge concludes that the evidence here must be excluded.
For all these reasons, the Court GRANTS Defendant Windom's motion (Doc. 19) and SUPPRESSES the firearm retrieved in the search of the vehicle plus Windom's statement to officers following that discovery.
IT IS SO ORDERED.
DATED October 28, 2010.
The medical notes from the January 16, 2003 appointment with Dr. Applegate indicate that while Ms. Sherrill had "clear speech and full comprehension," a test administered to determine [her] mental status resulted in "a total score of 21/30, which is moderate to severe Alzheimer's." Ms. Pigg stated at her deposition that while she had "[n]ot really" noticed any changes in her mother's mental status by the January 16 appointment, P.A. Lenihan informed her at the appointment that Ms. Sherrill had failed a test for Alzheimer's and had a form of dementia. Ms. Sherrill continued to live alone during this period, although her in-home care increased during 2003 and into early 2004. By April of 2004, a home health agency stayed with Ms. Sherrill ten hours per week, her meals were being prepared for her, and her daughter paid her bills. In June of 2004, Ms. Pigg described her mother's mental status as "fair."
On January 8, 2004, Ms. Sherrill and Ms. Pigg filed a medical malpractice claim against the Defendants in the Circuit Court for Madison County. The complaint alleged that the Defendants had breached the professional standard of care by pre-scribing to Ms. Sherrill a high dose of Reglan over several months, failing to warn her of the potential side effects of the drug, and failing to properly follow up with her after the initial prescription. In answering the complaint, the Defendants alleged as an affirmative defense that the cause of action was barred by the one-year limitations period for medical malpractice actions in Tennessee. See Tenn. Code Ann. § 29-26-116(a)(1) (2000). Afterward, the Defendants filed a motion for summary judgment contending that the suit was not timely filed and arguing that "both Ms. Sherrill and Ms. Pigg knew or should have known [on December 18, 2002] that Ms. Sherrill's movement disorder was tardive dyskinesia that was caused by Ms. Sherrill taking the drug Reglan . . . prescribed by the defendants." In opposition to the motion, Ms. Pigg submitted an affidavit asserting that she was absent from the December 18, 2002 appointment, which was significant "in light of Ms. Sherrill's memory loss." Moreover, although Ms. Pigg acknowledged that Dr. Applegate's P.A. had told her on January 16, 2003 "that her mother should discontinue ingesting Reglan/[m]etoclopramid[e] and that her use of this medication may be causally related to the neurological symptoms he described as tardive dyskinesia," "[a]t no time did P.A. Lenihan or Dr. Applegate inform [her], or suggest, that Dr. Bob Souder's long[-]term prescription of Reglan/[m]etoclopramid[e] to [Ms.] Sherrill constituted a breach of the professional standard of care." Ms. Pigg claimed that she did not discover the possible negligence "until she conducted her own internet research on tardive dyskinesia months later in the late spring or early summer of 2003."
On January 8, 2007, the trial court granted a motion to dismiss all of Ms. Pigg's individual claims. Subsequently, on September 26, 2007, Ms. Sherrill died. As a result, Ms. Pigg filed a motion to amend the complaint to substitute herself as the plaintiff. The trial court did not act upon the motion to amend prior to granting the Defendants' motion for summary judgment. The order granting the summary judgment motion contained the following findings:
Such motions are contemplated by Tennessee Rule of Civil Procedure 25.01(1), which states that "[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by . . . the successors or representatives of the deceased party. . . ."
[T]hat Ms. Sherrill's cause of action accrued and the one year statute of limitations commenced to run on December 18, 2002; that the Complaint was filed more than one year later on January 8, 2004; and, that Ms. Sherrill was not suffering from any disability at the time the cause of action accrued which would justify a tolling of the statute of limitations.
Ms. Pigg filed a notice of appeal, and the Court of Appeals affirmed, citing her deposition testimony that Ms. Sherrill knew about the diagnosis of tardive dyskinesia on January 6, 2003, the date that the durable power of attorney was executed. Sher[r]ill v. Souder, No. W2008-00741-COA-R3-CV, 2009 WL 499337, at *5 (Tenn.Ct.App. Feb. 27, 2009). The Court of Appeals determined that "[g]iving every inference in favor of . . . the non-moving party, at latest, [Ms. Sherrill] knew about the diagnosis on January 6, 2003," making untimely the complaint filed on January 8, 2004. Id. We granted this appeal to determine if there is a genuine issue of material fact regarding whether this medical malpractice action was timely filed.
We are not the first state court to construe our jurisdiction's discovery rule in a medical malpractice suit including allegations that a prescription violated the standard of care and led to the development of tardive dyskinesia. See, e.g., Sutherland v. Estate of Ritter, 959 So.2d 1004 (Miss. 2007) (affirming dismissal of complaint alleging that psychiatrist's prescription of Zyprexa caused patient to develop tardive dyskinesia); Fjetland v. State, No. 52150-1-I, 2004 WL 1966042 (Wash.Ct.App. Sept. 7, 2004) (affirming dismissal of complaint alleging that prescription of neuroleptic medications by doctors at state hospital facility led to development of tardive dyskinesia).
Analysis I. The Discovery Rule in Medical Malpractice Actions A. Applicable LawThis lawsuit was filed pursuant to Tennessee's medical malpractice statute. See Tenn. Code Ann. § 29-26-115 to -122 (2000 Supp. 2010). Medical malpractice actions are subject to a one-year limitations period, which begins on the date the cause of action accrues. Tenn. Code Ann. § 29-26-116(a)(1) (referring to Tenn. Code Ann. § 28-3-104 (2000)). In Teeters v. Currey, 518 S.W.2d 512, 517 (Tenn. 1974), this Court adopted the majority rule among the states that a medical malpractice action does not accrue until "the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury." The Court concluded that no rule of law should require "that a plaintiff file suit prior to knowledge of his injury or . . . sue to vindicate a nonexistent wrong, at a time when [the] injury is unknown and unknowable." Id. at 515; see also Foster v. Harris, 633 S.W.2d 304, 305 (Tenn. 1982) ("The so-called `discovery doctrine' Was fashioned to alleviate the intolerable result of barring a cause of action by holding that it `accrued' before the discovery of the injury or the wrong.").
One year after our opinion in Teeters, the General Assembly codified the discovery rule as part of the Medical Malpractice Review Board and Claims Act of 1975, ch. 299, § 15(a), 1975 Tenn. Pub. Acts 662, 671, which instituted both the one-year statute of limitations and a three-year statute of repose in medical malpractice actions. The language enacted in 1975 is nearly identical to the current form of the discovery rule: "In the event the alleged injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the date of such discovery." Tenn. Code Ann. § 29-26-116(a)(2). The application of this seemingly innocuous provision has been the focus of voluminous litigation in Tennessee since its enactment.
Section 15(a) of the Medical Malpractice Review Board and Claims Act of 1975 states as follows:
The statute of limitations in malpractice actions shall be one year as set forth in TCA Section 28-304; provided, however, that in the event the alleged injury is not discovered within the said one year period, the period of limitation shall be one year from the date of such discovery; provided further, however, that in no event shall any such action be brought more than three 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 year after discovery that the cause of action exists; and provided still further that the time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient's body in which case the action shall be commenced within one year after the alleged injury or wrongful act is discovered or should have been discovered.
1975 Tenn. Pub. Acts 662, 671 (emphasis added).
This Court first interpreted the scope of the discovery rule in medical malpractice cases in Foster v. Harris. In Foster, a dentist lacerated both his own finger and his patient's lip during an October 1975 examination, which caused their blood to intermingle. 633 S.W.2d at 304. The patient was diagnosed with serum hepatitis three months later, but he did not discover until July of 1976 that his dentist was the likely source of the disease. Id. This Court concluded that the patient's complaint filed in February of 1977 was timely because the limitations period started not with the diagnosis, but when the patient discovered the connection between the disease and his dentist. Id. at 304-05. In so holding, the Court observed that "[i]t is axiomatic that no judicial remedy was available . . . until [the patient] discovered, or reasonably should have discovered, (1) the occasion, the manner and means by which a breach of duty occurred that produced his injury; and (2) the identity of the [individual] who breached the duty." Id. at 305.
The two-part test adopted in Foster has produced divergent results based upon the facts of the cases in which it has been applied. For example, in Roe v. Jefferson, 875 S.W.2d 653, 658 (Tenn. 1994), the Court held that a suit filed against a psychologist by a former patient was barred by the statute of limitations. Roe had engaged in a sexual relationship with her therapist for over a year when she learned that the therapist was being investigated by the Tennessee Board of Examiners in Psychology in connection with a sexual relationship he had with another patient. Id. at 654. As part of her inquiry into the potential ramifications of the affair, Roe attended a Board meeting in October of 1988 involving a different psychologist who was accused of engaging in a sexual relationship with a patient. Id. At this meeting, the patient learned that sexual contact in a patient-therapist relationship was unethical, violated Board regulations, and could result in the loss of a therapist's license. Id. at 658. Because she had discovered or should have discovered the breach of duty at the October 1988 Board meeting, the statute of limitations barred her complaint filed in February of 1990. Id.
In Roe, the Court referred to the concept of "inquiry notice" as part of our discovery rule, observing that "`the statute is tolled only during the period when the plaintiff has no knowledge at all that a wrong has occurred, and, as a reasonable person is not put on inquiry.'" Id. at 656-57 (quoting Hoffman v. Hosp. Affiliates, 652 S.W.2d 341, 344 (Tenn. 1983)). "It is not required that the plaintiff actually know that the injury constitutes a breach of the appropriate legal standard in order to discover that he has a `right of action.'" Roe, 875 S.W.2d at 657. Rather, "the plaintiff is deemed to have discovered the right of action if he is aware of facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct." Id. Because it was undisputed that the Board meeting Roe attended provided her with information that was sufficient, as a matter of law, to put her on notice, her complaint was untimely.
The Iowa Supreme Court has described "inquiry notice" with respect to its state's discovery rule in medical malpractice cases as follows:
Inquiry notice plays a role in the medical malpractice statute due to the implied knowledge ("should have known") component of the statute. This component charges a plaintiff with knowledge of those facts that a reasonable investigation would have disclosed. Under the statute, once a plaintiff gains information sufficient to alert a reasonable person of the need to investigate "the injury," the limitation period begins to run. The acquisition of this information is notice that imposes a duty to make a factual inquiry into the existence of the injury.Rathje v. Mercy Hosp., 745 N.W.2d 443, 461 (Iowa 2008) (citations omitted).
In Stanbury v. Bacardi, 953 S.W.2d 671, 673 (Tenn. 1997), a podiatrist, who had received permission from Stanbury to perform surgery on only one foot, operated on both of her feet. Stanbury, who expressed "complete and utter shock" at the extent of the procedure, nevertheless continued under the care of the same podiatrist for a period of five months, until he told her "that there was nothing more he could do for her." Id. Confirming that under the discovery rule, the limitations period "begins to run when the plaintiff knows or in the exercise of reasonable care and diligence should know, that an injury has been sustained," Id. at 678, this Court concluded that Stanbury's suit for medical malpractice filed eleven months after she was discharged as a patient was untimely because
shortly after the surgery, [she] was aware of facts sufficient to put a reasonable person on notice that she had suffered an injury as a result of wrongful conduct. Not only was she aware of the occasion, manner, and means by which the breach of duty producing her injuries occurred, she also knew the identity of the person who breached the duty.Id. at 677. The Court rejected Stanbury's contention that the inquiry notice begins only upon advice from another health care professional that a medical malpractice action may exist. Id. at 678.
Applying the same standard, the Court reached a different outcome in Shadrick v. Coker, 963 S.W.2d 726, 728 (Tenn. 1998), a case involving an orthopedic surgeon who had inserted "pedicle screws" into his patient's back without first obtaining his consent. Six months after the surgery, one of the screws broke, and afterward, all of the screws were removed. Id. at 729. Shadrick continued to experience pain in his back for years following the surgery, but the surgeon, when asked for an explanation, described the insertion of the screws as "routine treatment." Id. at 728-29. In December of 1993, nearly four years after the surgery, Shadrick saw a television program on pedicle screws, learning for the first time that they "were experimental, . . . had not been approved by the Food and Drug Administration for use in the spine, and . . . had been found to cause a number of problems in patients." Id. at 729. Almost one year after seeing the television program, Shadrick filed suit. Id. Observing that "[i]t is knowledge of facts sufficient to put a plaintiff on notice that an injury has been sustained which is crucial," Id. at 734 (quoting Stanbury, 953 S.W.2d at 678), and that "[s]uch knowledge includes not only an awareness of the injury, but also the tortious origin or wrongful nature of that injury," Shadrick, 963 S.W.2d at 734, this Court held that there was "a question of fact regarding whether Shadrick could have discovered the wrong . . . through the exercise of reasonable care and diligence." Id. at 737. Because "a jury could find that Shadrick had no reason to suspect that he sustained an injury resulting from Dr. Coker's wrongful or tortious conduct until December 1993," Id. at 735, "disputed issues of material fact exist[ed] regarding when the statute of limitations began to run," making summary judgment inappropriate. Id. at 737.
Most recently, in Terry v. Niblack, 979 S.W.2d 583, 585 (Tenn. 1998), a laboratory negligently performed a blood test that erroneously excluded a child's biological father as a paternity candidate. The mother learned the results of the test in May of 1994. Id. at 585. A second test, the results of which were reported in June of 1995, identified the biological father accurately, a fact confirmed by separate court proceedings in October of 1995. Id. Because the mother's cause of action for negligence against the laboratory accrued when she learned the results of the second blood test, this Court rejected the laboratory's argument that the limitations period began when the mother's attorney was informed that there had been a "problem" with the first blood test. Id. at 586-87.
Although the Court in Terry applied the one-year medical malpractice statute to the plaintiff's claim, we have since held that a claim regarding blood testing to determine paternity does not sound in medical malpractice, but rather in ordinary negligence. Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 641 (Tenn. 2003). Where the alleged injuries from negligent testing are economic, the three-year limitations period for injuries to property applies. Id. at 642; see Tenn. Code. Ann. § 28-3-105 (2000).
In summary, a medical malpractice cause of action accrues when one discovers, or in the exercise of reasonable diligence should have discovered, both (1) that he or she has been injured by wrongful or tortious conduct and (2) the identity of the person or persons whose wrongful conduct caused the injury. A claimant need not actually know of the commission of a wrongful action in order for the limitations period to begin, but need only be aware of facts sufficient to place a reasonable person on notice that the injury was the result of the wrongful conduct of another. If enough information exists for discovery of the wrongful act through reasonable care and diligence, then the cause of action accrues and the tolling of the limitations period ceases. Neither actual knowledge of a breach of the relevant legal standard nor diagnosis of the injury by another medical professional is a prerequisite to the accrual of a medical malpractice cause of action.
B. Application of the Law
As a matter of policy, our discovery rule stakes out a sensible middle ground that protects both those making claims, by ensuring that the period during which a malpractice suit can be filed does not expire before discovery, and those against whom claims are made, by preventing the prosecution of stale medical malpractice claims. The cause of action accrues on inquiry notice of a wrongful act. See, e.g., Rathje, 745 N.W.2d at 452-53 ("Most state courts, as we did . . . triggered the discovery rule upon knowledge of the cause of action, including at least some knowledge that the conduct of the physician was negligent or wrongful."). In this case, Ms. Pigg claims that "[i]t is only when the plaintiff learns that the injury is due to tortious or wrongful conduct [that] the statute of limitations begin[s] to run," citing our statement in Shadrick that the knowledge of facts sufficient to constitute inquiry notice "includes . . . the tortious origin or wrongful nature of that injury." 963 S.W.2d at 734. In our view, however, this statement means only that the knowledge of a wrongful act is enough to trigger the limitations period. Actual knowledge of tortious conduct is not required before a medical malpractice claim accrues.
See also Bussineau v. President Dirs. of Georgetown Coll., 518 A.2d 423, 430-35 (D.C. 1986) (citing several state supreme courts that "have concluded that at least some knowledge of `wrongdoing' (i.e., actionable harm), on the part of a defendant is necessary to commence the running of the statute of limitation in a negligence action"); Sutherland, 959 So.2d at 1008 ("[I]n medical negligence cases, we must focus our inquiry on when a plaintiff, exercising reasonable diligence, should have first discovered the negligence, rather than the injury."). But see United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (determining that the limitations period under the Federal Tort Claims Act begins to run when the plaintiff merely knows of the injury and its cause, because with that knowledge comes the responsibility to determine "if the defendant has failed to live up to minimum standards of medical proficiency"); Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354, 364 (2009) (observing that "Pennsylvania's formulation of the discovery rule reflects the narrower of the two overarching approaches to determining accrual for limitations purposes," which requires "actual or constructive knowledge of at least some form of significant harm and of a factual cause linked to another's conduct, without the necessity of notice of the full extent of the injury, the fact of actual negligence, or precise cause").
This medical malpractice action was filed on January 8, 2004. Applying Tennessee Code Annotated section 29-26-116(a)(1) and (2) and the case law interpreting those provisions, the suit is time-barred if, by January 8, 2003, Ms. Sherrill knew or reasonably should have known that the Defendants breached the duty of care and thereby caused her to develop tardive dyskinesia. In other words, if by January 8, 2003, Ms. Sherrill was aware of facts sufficient to place a reasonable person on notice that her tardive dyskinesia was the result of the Defendants' actions such that she could have discovered the breach of the standard of care through reasonable care and diligence, then barring a tolling of the limitations period, her suit is untimely. Because the failure to comply with a statute of limitations is an affirmative defense, see Tenn. R. Civ. P. 8.03, the Defendants bear the burden of proof on the issue. Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677, 684 (Tenn.Ct.App. 1999); Carr v. Borchers, 815 S.W.2d 528, 532 (Tenn.Ct.App. 1991).
The trial court granted the Defendants' motion for summary judgment on the statute of limitations issue. Our review of a trial court's entry of summary judgment is a question of law. As such, we attach no presumption of correctness to the trial court's decision, and we must review the record de novo to determine whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied. In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010). A court should grant a party's motion for summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The movant bears the ultimate burden of persuading the court "that there are no disputed, material facts creating a genuine issue for trial . . . and that he is entitled to judgment as a matter of law." Byrd, 847 S.W.2d at 215. If the motion for summary judgment is properly supported, then the burden shifts to the non-moving party to show that a genuine issue of material fact exists. Id. At the summary judgment phase, "it is not the role of a trial or appellate court to weigh the evidence or substitute its judgment for that of the trier of fact." Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 87 (Tenn. 2008) (citing Byrd, 847 S.W.2d at 211).
The procedural status of this case is of particular relevance given the issue before us, because "[w]hether the plaintiff exercised reasonable care and diligence in discovering the injury or wrong is usually a question of fact." Shadrick, 963 S.W.2d at 737 (quoting Wyatt v. A-Best Co., 910 S.W.2d 851, 854 (Tenn. 1995)); see also McIntosh v. Blanton, 164 S.W.3d 584, 586 (Tenn.Ct.App. 2004) ("The determination of when a reasonable person should know that his injury was caused by some wrongful or negligent act is generally a question for the trier of fact."). Indeed, our Court of Appeals has stated that "where the resolution of the issue depends upon the question of whether due diligence was exercised under the circumstances, and where differing inferences might reasonably be drawn from the uncontroverted facts, the issue is not appropriate for summary judgment." Hathaway v. Middle Tenn. Anesthesiology, P.C., 724 S.W.2d 355, 360 (Tenn.Ct.App. 1986). Similarly, courts in other jurisdictions have determined that the fact-dependent nature of the discovery rule's application makes it an unlikely candidate for disposition on summary judgment in both medical malpractice cases, see Walk v. Ring, 202 Ariz. 310, 44 P.3d 990, 996 (2002) ("[S]ummary judgment is warranted only if the [plaintiff's] failure to go forward and investigate is not reasonably justified."), and other contexts, see Soutiere v. Betzdearborn, Inc., 189 F.Supp.2d 183, 191 (D.Vt. 2002) (stating in toxic tort case that "[o]nly if reasonable minds cannot differ on the question of knowledge should the issue be determined as a matter of law"). Nevertheless, we may affirm the grant of summary judgment if the facts in the record and all reasonable inferences demonstrate that Ms. Sherrill's cause of action accrued on or prior to January 8, 2003.
As stated, Ms. Pigg testified by deposition that her mother executed a durable power of attorney on January 6, 2003, and that this event took place after Ms. Sherrill had been diagnosed with tardive dyskinesia. While this testimony suggests that Ms. Sherrill may have known about her condition as early as January 6, this knowledge alone does not trigger the accrual of her cause of action against the Defendants. Mere awareness of an injury does not necessarily include knowledge that the injury was caused by a breach of the standard of care by a particular defendant. Ms. Sherrill's awareness of her condition is, by itself, insufficient to have placed a reasonable person on inquiry notice regarding any wrongful actions by the Defendants. As such, the Court of Appeals erred by affirming the grant of summary judgment on grounds that Ms. Sherrill was aware of her condition on January 6, 2003.
The trial court determined "that Ms. Sherrill's cause of action accrued and the one year statute of limitations commenced to run" not on January 6, 2003, but rather on December 18, 2002, the date of her initial visit to the Ozarks Medical Center's Neurosciences Center. In support of their summary judgment motion, the Defendants point to the information that the medical professionals conveyed to Ms. Sherrill at that appointment. Dr. Applegate testified by deposition that both Ms. Sherrill and her daughter were present at the initial appointment. While Dr. Applegate was unable to recall her exact words on that day, she stated that she "would have told them that I thought [Ms. Sherrill] had a movement disorder that might have been triggered by the medication and that stopping the medication might take care of it." Dr. Applegate testified further that she "explained that any exposure to these medications can trigger such a disorder and that the side effects look like Parkinson's Disease in many cases and I felt that was what was wrong with her." The physician's notes of the December 18 visit corroborate Dr. Applegate's testimony. They indicate that she "shared with the patient that stopping this medication is important," and instructed her staff to "contact[] the nursing agency to stop the [m]etoclopramide."
The Defendants have proffered uncontroverted evidence that Dr. Applegate and P.A. Lenihan informed Ms. Sherrill on December 18, 2002 that Reglan was the likely cause of her tardive dyskinesia. In our view, this information is sufficient to have placed a reasonable person on notice that the injury was the result of Dr. Souder's conduct, such that his wrongful action could have been discovered through reasonable care and diligence. Because the Defendants have established an affirmative defense, the burden of production now shifts to Ms. Pigg to demonstrate a disputed issue of material fact regarding when the cause of the action accrued. See Hannan, 270 S.W.3d at 6 (citing Byrd, 847 S.W.2d at 215 n. 5). In response to the motion for summary judgment, Ms. Pigg submitted an affidavit asserting: (1) that she was not present at the December 18, 2002 appointment, and (2) that neither Dr. Applegate nor her P.A. informed her that the long-term prescription of Reglan by Dr. Souder constituted a breach of the professional standard of care.
In Hannan, we discuss how we "misused the term `affirmative defense'" in Byrd while attempting to "describ[e] a different, yet valid, method of burden shifting." 270 S.W.3d at 7. The Hannan/Byrd burden shifting analysis still applies, however, when, as here, the summary judgment motion relies upon a traditional affirmative defense set forth in Rule 8.03.
Ms. Pigg's second contention in her opposition to the summary judgment motion — that the cause of action did not accrue prior to January 8, 2003 because neither Dr. Applegate nor the P.A. informed her that the Reglan prescription constituted a breach of the professional standard of care — misstates the standard for our discovery rule. As an initial matter, because Ms. Pigg's individual claims were dismissed on January 8, 2007, and the trial court never acted upon her motion to be substituted as a plaintiff after her mother's death, Ms. Sherrill is the only plaintiff in this case at this time. In consequence, whatever the medical professionals told or failed to tell Ms. Pigg regarding her mother's tardive dyskinesia and the potential cause of that condition is not dispositive. Moreover, even assuming that Dr. Applegate and P.A. Lenihan never informed Ms. Sherrill that the long-term Reglan prescription constituted a breach of the professional standard of care, such an omission would not preclude a statute of limitations defense. As stated, a plaintiff need not actually know that the injury constitutes a breach of the appropriate legal standard in order for the limitations period to begin, Roe, 875 S.W.2d at 657, and advice from another health care professional that a cause of action exists is not a prerequisite to the accrual of that cause of action, Stanbury, 953 S.W.2d at 678.
Ms. Pigg's other claim — that she was not present at the December 18, 2002 appointment — is a fact in dispute. Dr. Applegate claimed that Ms. Pigg attended the appointment along with her mother, but the doctor's own records do not support that testimony. The physician's notes do not mention Ms. Pigg, while the notes from all of Ms. Sherrill's subsequent appointments, in contrast, document Ms. Pigg's presence. Further, Dr. Applegate, upon additional questioning, testified that Ms. Sherrill made her own notes at the appointment and that her daughter did not become involved until afterward. A factual dispute will not necessarily preclude summary judgment, however, unless the fact in question is material, i.e., one the court must decide in order to adjudicate the affirmative defense of the statute of limitations. Although the question of Ms. Pigg's presence at the December 18, 2002 appointment is disputed, it is not material to the determination of whether the cause of action accrued on that date. Even presuming the truth of her contention that she was not present on December 18, Ms. Pigg has failed to refute the Defendants' evidence that Ms. Sherrill was placed on notice of her cause of action that day. To the contrary, if Ms. Pigg was not present at the appointment, it stands to reason that she is unable to contradict Dr. Applegate's firsthand account of what she told Ms. Sherrill regarding her use of Reglan and the connection between the drug and tardive dyskinesia. Because Ms. Pigg has failed to establish a genuine issue of material fact regarding whether Ms. Sherrill was placed on inquiry notice of her medical malpractice claim during her first appointment with Dr. Applegate, we affirm the trial court's finding "that Ms. Sherrill's cause of action accrued and the one year statute of limitations commenced to run on December 18, 2002."
II. The Tolling of the One-Year Limitations Period
Although we have determined that the trial court correctly held that, under our discovery rule, the limitations period began on December 18, 2002, our inquiry does not end there. Ms. Pigg argues in her brief that Dr. Applegate's instructions regarding the connection between the Reglan and the tardive dyskinesia at the December 2002 appointment "either were not clear or misunderstood by Ms. Sherrill, or she simply forgot them." The Defendants respond that "there are no facts in the record to support this contention." The trial court apparently agreed with this assertion, determining as a matter of law "that Ms. Sherrill was not suffering from any disability at the time the cause of action accrued which would justify a tolling of the statute of limitations."
A. Applicable Law
The tolling statute for all civil actions, including medical malpractice actions, states as follows:
If the person entitled to commence an action is, at the time the cause of action accrued, either under the age of eighteen (18) years, or of unsound mind, such person, or such person's representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.
Tenn. Code Ann. § 28-1-106 (2000) (emphasis added). In the medical malpractice context, this means that if the person who received treatment was of unsound mind at the time the cause of action accrued, the limitations period is tolled until the disability is removed. From the date of the removal of the disability, the person who received treatment (or the representative) has one year — the period of limitations for medical malpractice actions — in which to bring the suit. Whether an individual was of unsound mind on the date the cause of action accrued, thus tolling the statute of limitations, is a question to be resolved by the trier of fact. Burk v. RHA/Sullivan, Inc., 220 S.W.3d 896, 904 (Tenn.Ct.App. 2006); see also Foster v. Allbright, 631 S.W.2d 147, 150 (Tenn.Ct.App. 1982); Smith v. Grumman-Olsen Corp., 913 F.Supp. 1077, 1086 (E.D.Tenn. 1995). If there is a genuine issue of material fact regarding whether Ms. Sherrill was of unsound mind on December 18, 2002, the date her cause of action accrued, the one-year limitations period is tolled, and her suit was timely filed.
While the period of limitations for the filing of a medical malpractice action under Tennessee Code Annotated section 29-26-116(a)(1) (2) may be tolled pursuant to the "unsound mind" exception in section 28-1-106, the three-year period of repose set forth in section 29-26-116(a)(3) cannot be tolled for mental incompetency. Mills v. Wong, 155 S.W.3d 916, 920-21 (Tenn. 2005) (citing Penley v. Honda Motor Co., 31 S.W.3d 181, 186-89 (Tenn. 2000)). Given the timing of the filing of the lawsuit in this case, the statute of repose is not implicated.
Although the term "unsound mind," as it appears in section 28-1-106, has been left undefined by the General Assembly, our courts have considered the meaning of the term on several occasions. For example, in a case concerning the application of the unsound mind provision of the tolling statute to individuals allegedly suffering from post-traumatic stress from childhood sexual abuse, the Court of Appeals cited as authority an early case of this Court that interpreted the tolling statute's predecessor. Doe v. Coffee Cnty. Bd. of Educ., 852 S.W.2d 899, 905 (Tenn.Ct.App. 1992) (quoting Porter v. Porter, 22 Tenn. (3 Hum.) 586, 589 (1842)). The Court held in Porter that the statute of limitations on adverse possession of personal property had been tolled by the exception for persons non compos mentis because Elizabeth Duffill, a ninety-year-old slave owner, was, due to "her extreme old age and mental imbecility, . . . incapable of attending to any business, or of taking care of herself, and had to break up keeping house and remove to the house of a relative to be taken care of by her friends." 22 Tenn. at 589 (emphasis added). The language from Porter and Doe has been cited repeatedly in medical malpractice cases by courts considering the term "unsound mind" as it appears in section 28-1-106. See Range v. Sowell, No. M2006-02009-COA-R3-CV, 2009 WL 3518176, at *6 (Tenn.Ct.App. Oct. 29, 2009); Burk, 220 S.W.3d at 904; Crawford v. Beatty, 108 S.W.3d 877, 880 (Tenn.Ct.App. 2003).
Literally, "not master of one's mind." Black's Law Dictionary 1151 (9th ed. 2009).
Setting aside Porter's archaic and obviously distinguishable facts, the Porter standard is still relevant to determining whether the limitations period for a cause of action is subject to tolling. This Court held in Porter that because of her age and infirmity, Ms. Duffill fell within the constructs of the tolling statute, a predecessor to Tennessee Code Annotated section 28-1-106. Our interpretation of the holding is that Ms. Duffill, because of her inability to attend to her business or take care of herself, was among those entitled to the benefit of the tolling statute. The Court did not, however, as some subsequent cases have suggested, establish a baseline requirement for all individuals seeking the protections of the statute. The physical infirmity component, which the Porter language ostensibly requires, has little bearing on whether an individual understands his or her legal rights and responsibilities at the time a cause of action accrues. Cf. In re Conservatorship of Groves, 109 S.W.3d 317, 334-36 (Tenn.Ct.App. 2003) (differentiating between "functional capacity" and "decision-making capacity" with regard to the standard for granting a conservatorship petition).
See, e.g., Crawford, 108 S.W.3d at 880 ("Our courts have held that the term `unsound mind' in Tenn. Code Ann. § 28-1-106 means the person relying on this exception must show that she was `incapable of attending to any business, or of taking care of herself.'"); Grumman-Olsen Corp., 913 F.Supp. at 1085 (stating that the unsound mind standard in Tennessee "has two components; one, is the person alleged to be of unsound mind incapable of attending to any business, or two, is the person . . . incapable of taking care of himself or herself"); see also Jacobs v. Baylor Sch., 957 F.Supp. 1002, 1010 (E.D.Tenn. 1996) (same).
While the language from Porter still serves as a guide in the determination of whether an individual is of unsound mind, the modern test for determining whether an individual is of "unsound mind" for purposes of section 28-1-106 is whether that individual was unable to manage his or her day-to-day affairs at the time the cause of action accrued. This standard comports more fully with the test used in other jurisdictions at this time. 54 C.J.S. Limitations of Actions § 172 (2010) ("The general test that is applied in determining whether a mental condition is of the type that will toll a statute of limitations, is whether a person could know or understand his or her legal rights sufficiently well to manage his or her personal affairs. . . ."); see, e.g., Doe v. Roe, 191 Ariz. 313, 955 P.2d 951, 964 (1998); Sheats v. Tri-Cities Hosp. Auth., 167 Ga.App. 122, 306 S.E.2d 75, 76 (1983); Roe v. Gelineau, 794 A.2d 476, 486 (R.I. 2002). In our efforts to clarify the meaning of "unsound mind," we are persuaded by the extensive analysis of the Supreme Court of Rhode Island, which traced the history of its tolling statute and ultimately concluded as follows:
Indeed, this Court cited language from Porter approvingly in State v. Nix, 40 S.W.3d 459, 463 (Tenn. 2001). We note that the Court was not called upon in Nix to construe Tennessee Code Annotated section 28-1-106. It did not, in fact, even cite the tolling statute. Rather, it merely looked to the standard for competency in civil actions for assistance in determining when due process requires tolling of the one-year limitations period for filing a post-conviction petition in Tennessee. The standard it ultimately settled upon in such cases — that the petitioner must show "that he is unable either to manage his personal affairs or to understand his legal rights and liabilities" — is consistent with the standard we adopt in this opinion. See Id. at 463.
[T]he legal history of the term "unsound mind" makes clear that the designation is intended to apply to the incapacity to carry out legal functions. . . .
In our opinion, "the inability to manage one's day-to-day affairs" provides a practical, operational definition of unsound mind. This definition accords with the historical attributes of legal disability and comports with the traditional use of the term as a form of legal incapacity. . . . At the same time, this definition of unsound mind can be applied readily by trial justices and fact-finders and refines the term by requiring objectively ascertainable actions or inaction. . . . We believe that defining unsoundness of mind in terms of the concrete, objective standard of inability to manage one's day-to-day affairs complies with the statutory intent of the term. . . .Roe, 794 A.2d at 486-87 (citations omitted). The focus of the inquiry under section 28-1-106 should be on a plaintiff's mental capacity to understand his or her legal rights and responsibilities, including the cause of action that has accrued.
B. Application of the Law
The determinative question, as stated, is whether there is a genuine issue of material fact regarding Ms. Sherrill's ability to manage her day-to-day affairs on December 18, 2002, when otherwise her cause of action accrued. Because we must assess Ms. Sherrill's competence without the benefit of her testimony, our task is more difficult. Moreover, because Ms. Pigg claims that she was not present at Ms. Sherrill's initial neurologist appointment on December 18, 2002, her testimony with regard to her mother's ability to understand her legal rights and liabilities on that date is not particularly helpful. Considering the evidence in the light most favorable to the non-moving party, however, we conclude that the grant of summary judgment in favor of the Defendants was erroneous.
The Defendants argue that on December 18, 2002, Ms. Sherrill did not suffer from a disability that would toll the statute of limitations. As support for the argument, the Defendants point to Dr. Applegate's description of Ms. Sherrill as "a pretty sharp individual [with] a good sense of humor." Further, according to Dr. Applegate, Ms. Sherrill took her own notes at the December 18 appointment and had "clear speech and full comprehension" at the January 16, 2003 appointment. Ms. Pigg acknowledged that she had not really noticed changes in her mother's mental status by January 16, 2003. Other evidence supports the Defendants' claims that Ms. Sherrill lived alone both prior to and for an extended period after the December 18 appointment and took her own medications. Although her in-home care increased during 2003 and 2004, Ms. Pigg described her mother's mental status as "fair" as late as June of 2004.
In contrast, Dr. Applegate diagnosed Ms. Sherrill with "early senile dementia of Alzheimer's type" on December 18, 2002. Further, Dr. Applegate testified that she had the impression that Ms. Sherrill was suffering from Alzheimer's disease and "that she was having problems with her memory [which] was starting to fail." Dr. Applegate described Ms. Sherrill as "demented," an observation corroborated by P.A. Lenihan's statement to Ms. Pigg that her mother had a form of dementia. The physician's notes of the January 16 appointment indicate that a test administered to determine Ms. Sherrill's mental status resulted in "a total score of 21/30, which is moderate to severe Alzheimer's." Moreover, although Ms. Sherrill was informed on December 18, 2002 that her tardive dyskinesia condition was caused by Reglan, a medication she had been taking for several months, she did not stop taking the drug after the December 18 appointment. That she continued to ingest Reglan until the follow-up appointment on January 16, 2003 is of significance. Ms. Sherrill's continued use of Reglan despite clear warnings that the drug was the cause of her neurological condition suggests an inability to manage her day-to-day affairs during this period.
Although Ms. Sherrill executed a durable power of attorney in her daughter's name on January 6, 2003, we recently held "that the granting of a durable power of attorney does not remove a disability for the purpose of" section 28-1-106. Sullivan ex rel. Wrongful Death Beneficiaries of Sullivan v. Chattanooga Med. Investors, LP, 221 S.W.3d 506, 513 (Tenn. 2007). As such, the fact that Ms. Sherrill exercised the power of attorney on January 6 does not constitute a removal of her disability that would have caused the limitations period to expire before the date the lawsuit was filed. See Tenn. Code Ann. § 28-1-106.
During the summary judgment stage of a proceeding, all reasonable inferences must be resolved in favor of the non-moving party. In our view, a trier of fact could legitimately resolve the question of competence in favor of Ms. Sherrill. Because disputed issues of material fact exist regarding whether Ms. Sherrill was of unsound mind on the date the cause of action accrued, the grant of summary judgment in favor of the Defendants was error. Whether the one-year limitations period for medical malpractice actions should be tolled due to a lack of mental competence is a question of fact. Because Ms. Sherrill has sought the application of the tolling statute to a suit otherwise untimely filed, she, or her representative, bears the burden of proving at trial that she was of unsound mind at the time the cause of action accrued. See Jacobs, 957 F.Supp. at 1010.
The Defendants argue that Ms. Pigg is precluded from raising the issue of her mother's mental competency on appeal because she failed to do so in the trial court. Ms. Pigg's response in opposition to the Defendants' motion for summary judgment, however, states that her absence from her mother's initial appointment with Dr. Applegate was significant "in light of Ms. Sherrill's memory loss." Moreover, there is ample evidence in the record from which a trier of fact could determine that Ms. Sherrill was of unsound mind on the date her cause of action accrued. We, therefore, decline the Defendants' invitation to hold that the issue is waived.
Conclusion
The discovery rule is an objective standard. Because the information provided to Ms. Sherrill on December 18, 2002, was sufficient to place a reasonable person on notice that her tardive dyskinesia condition was the result of the Defendants' wrongful conduct, Ms. Sherrill's complaint filed on January 8, 2004, was untimely. Because, however, there is a genuine issue of material fact regarding whether the one-year limitations period should be tolled because of Ms. Sherrill's inability to manage her day-to-day affairs on the date the cause of action accrued, the judgment of the Court of Appeals affirming the dismissal of the suit is reversed. The cause is remanded for the trial court to consider Ms. Pigg's motion to amend the complaint by her substitution as plaintiff, and for a trier of fact to determine whether Ms. Sherrill was of unsound mind on December 18, 2002. The costs of this appeal are taxed to the Defendants, Bob T. Souder, M.D. and TransSouth Healthcare Center, P.C., for which execution may issue if necessary.
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