Michelle RYE Et Al. v. WOMEN’S CARE CENTER OF MEMPHIS, MPLLC Et Al.
Michelle Rye v. Women Center of Memphis, MPLLC - Concurring in Part, Dissenting in Part
Attorneys
William H. Haltom, Jr., Margaret F. Cooper, and James D. Duckworth, Memphis, Tennessee, for the appellants, Women’s Care Center of Memphis, MPLLC, d/b/a Ruch Clinic, and Diane Long, M.D., Gary K. Smith and C. Philip M. Campbell, Memphis, Tennessee, for the appel-lees, Michelle Rye and Ronald Rye., W. Bryan Smith, Memphis, Tennessee, John Vail, Washington, D.C., and Brian G. Brooks, Greenbrier, Arkansas, for the ami-cus curiae, Tennessee Association for Justice.
Full Opinion (html_with_citations)
OPINION
delivered the opinion of the Court, in which
We granted perinission to appeal in this healthcare liability action to reconsider the summary judgment standard adopted in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008). The Court of Appeals' concluded that the Hannan standard requires reversal of the trial court’s decision granting summary'judgment to the defendants on certain of the plaintiffs’ claims. We hereby overrule Hannan and return to a summary judgment standard consistent with Rule 56 of the Federal Rules of Civil Procedure. We hold, therefore, that a moving party may satisfy its initial burden of production and shift the burden of production to the nonmoving party by demonstrating that the nonmov-ing party’s evidence is insufficient as a matter of law at the summary judgment stage to establish the nonmoving party’s claim or defense. Applying our holding to the record in this case, we conclude that the defendants are entitled to summary judgment on all the plaintiffs’ claims at issue in this appeal. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals and remand this matter to the trial court for entry of summary judgment on these issues and for any other proceedings that may be necessary.
I. Factual and Procedural History
On February 24, 2009, Michelle Rye and her husband Ronald Rye (collectively “the Ryes” and individually “Mrs. Rye” and “Mr. Rye”) filed this health care liability action against Women’s Care Center of Memphis, MPLLC d/b/a Ruch Clinic (“Ruch Clinic”) and Diane Long, M.D., (collectively “Defendants”). The Ryes’ lawsuit arises out of obstetrical services Dr. Long and employees of Ruch Clinic rendered to Michelle Rye in 2007' and 2008, during her pregnancy with her third child, born in early January 2008.
It is undisputed that Mrs. Rye has Rh negative blood and that, as a result, she should have received a RhoGAM injection at or near the twenty-eighth week of her third pregnancy to avoid possible medical complications and risks in future pregnancies.
In their complaint the Ryes alleged that they are “practicing Roman Catholics,” and prior to learning of Mrs. Rye’s Rh-sensitization and the potential risks it entails, they “had intended to have additional children.” After learning of Mrs. Rye’s Rh-sensitization, the Ryes inquired “about the possibility of a dispensation from the Catholic Church’s traditional prohibition on sterilization procedures” but' were “advised that a dispensation would not be given unless Mrs. Rye’s life were in danger.” Although the Ryes have since “leaned toward taking steps to prevent future pregnancies,” their religious beliefs have prevented them from undergoing voluntary sterilization procedures or using other artificial means of birth control; The Ryes alleged that they have been placed in a state of emotional distress due to Mrs. Rye’s Rh-serisitization and the severe risks it presents for any future pregnancies. The Ryes requested.compensatory damages for (1) physical injuries to Mrs. Rye, such as the “disruption of the normal functioning of [Mrs. Rye’s] capability to conceive unimpaired, healthy children, free from an abnormally high risk of birth defects or premature fetal death”; (2) the disruption of their family plans; (3) the infliction of emotional distress; and (4) medical expenses that may become necessary in the future to treat complications resulting from Mrs. Rye’s Rh-sensitization.
As already noted, the Defendants admitted that their failure to administer a Rho-GAM injection at the appropriate time during Mrs. Rye’s third pregnancy amounted to a deviation from the recognized standard of acceptable professional practice and that this deviation has resulted in Mrs. Rye becoming Rh-sensitized. Nevertheless, the Defendants asserted in their answer to the Ryes’ complaint, and continue to contend in this Court, that the Ryes have no existing actual injuries or damages resulting from this deviation.
On July 13, 2010, after the Ryes and Dr, Long-were deposed, the Defendants filed a motion to dismiss the Ryes’ complaint, or in the alternative, for summary judgment. Specifically, the Defendants alleged that the Ryes have failed to establish any- existing injuries, have failed to allege future injuries to a reasonable medical certainty, have alleged future damages that are “mere .possibilities and speculative,” have failed to allege an actual injury sufficient to support a claim for negligent infliction, of emotional distress (“NIED”), and have failed to allege or -to provide expert medical or scientific proof of a serious or severe emotional injury sufficient to support a “stand-alone” NIED claim.
As support for their motion, and in the statement of undisputed material facts filed along with their motion as required by Rule 56.03 of thé Tennessee Rules of Civil Procedure, the Defendants relied upon the Ryes’ deposition testimony admitting that Mrs. Rye “has had no medical complications as a result of not receiving a RhoGAM injection,” that she “has not seen any doctor or healthcare provider or received any medical treatment whatsoever as a result of not receiving a RhoGAM injection,” that although the Ryes “have been advised that there are possible complications that could occur because she did not receive a RhoGAM injection[ ], none of these complications have occurred at this time,” that although the Ryes “are concerned about possible complications that might develop, they have had no emotional
The Defendants also relied upon the affidavit of their expert, Dr. Thomas G. Sto-vall, a specialist in obstetrics and gynecology, to support their motion. Dr. Stovall, who has over twenty-five-years’ experience in his specialty, opined that the health risks to an Rh-sensitized woman are “extremely remote.” Dr. Stovall thus opined “within a reasonable degree of medical certainty that it is more likely than not that an Rh-sensitized' individual will never sustain any injuries or damages whatsoever.” Dr. Stovall also opined that “the risks to a child in a future pregnancy of an Rh-sensitized mother are remote” and that “it cannot be said with any reasonable degree of medical certainty that if an Rh-sensitized woman conceives a child, there will be any injury to the child.” Additionally, Dr. Stovall opined, “within a reasonable degree of medical certainty that while Mrs. Rye [has become] Rh-sensitized, she has incurred no physical injuries.” Dr. Stovall additionally opined that “[t]he risks of any future injuries to [Mrs. Rye] or to a child in a future pregnancy, if such a child is conceived, are so remote that it cannot be stated with any reasonable degree of medical certainty that such injuries would in fact occur.”
In a memorandum of law filed on September 2, 2010, in response to the Defendants’ motion, the Ryes stated that the Defendants’ negligence had injured them by causing Mrs. Rye to become Rh-sensitized, which disrupted their family plans, increased the risks to any future children they may conceive, increased the risk to Mrs. Rye should she need a blood transfusion in the future, and caused them emotional distress, which need not be proven by expert testimony because it results from Mrs. Rye’s physical injury—Rh-sensitization. Along with their legal response, the Ryes submitted the affidavit of Dr. Joseph Bruner, a specialist in perinatolo-gy, which is “a subspecialty of obstetrics,” involving “maternal-fetal” care in “complicated, high-risk pregnancies.” Dr. Bruner opined that the Defendants’ failure to administer a RhoGAM injection to Mrs. Rye amounted to a deviation from the recognized standard of acceptable professional practice and caused Mrs. Rye to become Rh-sensitized. Dr. Bruner characterized Rh-sensitization as an injury, explaining that, “[biologically, [Mrs. Rye] is not the same person she was before she became Rh-sensitized.” According to Dr. Bruner, “[w]hen [Mrs. Rye] began her third pregnancy, she had normal blood, without the antibodies she now has in her system for life.” Dr. Bruner stated that Mrs. Rye “now possesses diseased blood with antibodies introduced into her bloodstream through no fault of her own, a situation which would not have occurred had she been given a timely RhoGAM injection.” Dr. Bruner stated that Mrs. Rye’s Rh-sensitization has created “two areas of concern going forward”—the risks of harm to Mrs. Rye and the risks of harm to the Ryes’ unborn children.
With regard to the risks of harm to Mrs. Rye, Dr. Bruner testified as follows:
[I]f Mrs. Rye is involved in a medical emergency henceforth in which she will require a blood transfusion, she is at an increased risk of life-threatening problems. This is directly attributable to the fact that she has antibodies present in her blood which were not present before she became Rh-sensitized. Ordinarily, in an average hospital emergency treatment setting, it takes an average of 20 to 30 minutes for a blood typing and cross matching to occur. A shorter procedure, a blood type and screen, can be done approximately 10 minutes faster.*241 The presence of Rh antibodies in Mrs. Rye’s blood will double or even triple the time necessary to identify compatible units of blood for transfusions. This time difference is likely to be life threatening in an emergency situation in which blood transfusions are required. This is of particular significance because major accidents and traumatic events often occur in situations in which sophisticated medical care is not immediately physically available and time is typically of the essence to save a patient who needs an emergency transfusion or multiple transfusions.
With regard to the risks of harm to any future children the Ryes may conceive, Dr. Bruner opined:
[Rh-sensitization] can have severe consequences because of -the destruction it involves of the baby’s blood cells. The baby’s body tries to compensate for the anemia caused by the attack from the mother’s antibodies by releasing immature red blood cells, called erythroblasts. The overproduction of erythroblasts can cause the liver and spleen to become enlarged, potentially causing liver damage or á ruptured spleen. Excess eryth-roblast production means that fewer of other types of blood cells are produced, such as platelets and other factors important for blood clotting. Therefore, excessive bleeding can be another complication. The destroyed red blood cells release the blood’s red pigment (hemoglobin) which degrades into a yellow substance called bilirubin. Bilirubin is normally produced as red blood cells die, but the body can only handle a low level of bilirubin. In erythroblastosis fetalis, high levels of bilirubin accumulate and cause hyperbilirubinemia, a condition in which the baby becomes jaundiced before birth, developing a yellowish tone of the eyes and skin. If hyperbilirubine-mia cannot be controlled in the newborn, the baby develops kernicterus after birth, in which bilirubin is deposited in the brain and may cause permanent damage. Other symptoms include high levels of insulin and low blood sugar, as well as a condition called hydrops fetalis. Hydrops fetalis causes fluids to accumulate within the baby’s body, causing swelling before birth which can even cause fetal death. ■ Hydrops fetalis inhibits normal breathing after birth and can interfere with lung growth if it continues for an extended period. Hydrops fetalis and anemia can also contribute to heart problems.
Babies of Rh-sensitized mothers who survive pregnancy may develop kernic-terus, which can lead to deafness, speech problems, cerebral palsy, or mental retardation. Extended hydrops fetalis can inhibit lung growth and contribute to heart failure. These serious complications are life threatening, but with good modern medical treatment, most babies can be saved.
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I have been made aware that Mr. and Mrs. Rye are Roman Catholics and, because of their religious views, cannot undergo voluntary sterilization and do not practice birth control other than through attempted timing of sexual relations since Mrs. Rye became Rh-sensitized.. However, I am also aware that pregnancies can and do occur for couples in such circumstances despite their best efforts to avoid a pregnancy, and I have been made aware that the Ryes are opposed to abortion and do not plan to have an abortion in the event of a subsequent pregnancy.
I have reviewed the Affidavit of Dr, Thomas Stovall in this case. Contrary to the opinions of Dr. Stovall, it is my opinion that it is more probable than not*242 that unborn children of Mr. and Mrs. Rye will experience complications in a subsequent pregnancy or in subsequent pregnancies, and the degree of severity of those complications will be ejected to increase with successive pregnancies because of the nature of Rh-sensitization as a condition. This is an impairment of the ability of Mrs. Rye to bear children in the future free from a series of risks the family more than likely would not have had otherwise. .
Based upon my experience, education and training as a perinatologist, the usual course of treatment for. the first pregnancy in a woman known to be Rh-sensitized is an amniocentesis (aspiration of fluid by needle) at 15 weeks gestation to determine the fetal blood type and confirm whether the baby is in fact Rh-po'sitive. Assuming the baby is Rh-positive, which is more likely than not given Mrs. Rye’s history, starting at 24 weeks gestation, serial amniocenteses would be expected to be conducted approximately every 3 weeks at 27, 30, 33, 36 and possibly 39 weeks gestation. Each amniocentesis carries a 1 to 2 % risk of bleeding, infection, leakage of fluid, preterm labor, and loss of the fetus, and with each amniocentesis there are expenses, discomfort to the mother because of the insertion of a needle in the abdomen, and the emotional toil, and the risk of a baby having to be delivered preterm, with accompanying risks of cerebral palsy.
A potential alternative to serial amniocenteses, or an adjunct to amniocenteses, would be one or more ultrasounds. Ultrasounds can enable the practitioner to measure fetal blood velocity effectively. Babies with a normal blood count will have blood moving at a certain speed, which is a normal velocity. The presence of anemia in a developing fetus can therefore be detected through the observation of abnormal- blood velocity at approximately 22 to 24 weeks gestation, and in a developing child of an Rh-sensitized mother where anemia has been observed. A practitioner who uses ultrasounds as the principle means of monitoring such a child should conduct those ultrasounds every one to two weeks prior to delivery. The factors that influence the decision of the practitioner as to whether to do ultrasound or amniocentesis include individual risk factors as identified by the practitioner, the family’s geographic access to available care, the facilities and equipment available and the level of experience and training of the doctor.
In a subsequent pregnancy, Michelle Rye’s unborn child will, at a minimum, require monitoring as described above to a reasonable medical certainty. In later pregnancies, because of the nature of Rh-sensitization and the immune system’s response in an Rh-sensitized patient, the risks to the babies will magnify significantly with successive pregnancies.
Based upon my education, training and experience as a perinatologist specializing in the treatment of high risk maternal-fetal patients, including treatment of many pregnant women who have been Rh-sensitized and their developing babies, the pregnancies of Rh-sensitized patients can be grouped into three broad risk categories: (1) “mild disease,” in which the child will be born with minimal jaundice expected to resolve, with conventional treatment short ly after birth and no need for blood transfusions, (2) “moderate disease,” which will tend to involve prematurity and some degree of anemia and will require a prolonged stay in a- neonatal treatment facility and blood transfusions and. the use of light therapy to improve*243 the babies’ bilirubin, and (3) “severe disease,” which will require aggressive treatment of the baby in 'útero, including monitoring of hematocrit which will fall below a level of 15-20, and will likely be accompanied by erythroblastosis fetalis and hydrops fetalis, a very serious condition .in which excess fluid accumulates around the baby’s lungs, heart, and organs. Developing babies in this “severe disease” category are considered high risk, and I am often called upon in my practice as a perinatologist to provide consultation and aggressive treatment and intervention for such patients. Aggressive treatment for such babies includes, many invasive, diagnostic procedures and blood transfusions while the babies are still in útero. Despite the best care, such affected babies have a significantly higher risk of prematurity and temporary and permanent complications,' including respiratory and central nervous system deficits, and even death.
Based upon my education, training and experience as a perinatologist specializing in the treatment of high risk maternal-fetal patients, including treatment of many pregnant women who have been Rh-sensitized and their developing babies, I have observed certain percentages of disease and'risk classification. Generally, many of the children born in the first pregnancy of women after they have been Rh-sensitized will fall into the first category (mild disease), while approximately 25 to 30% of those children.will fall into the second category (moderate disease), and approximately 20 to 25% of those children will fall into the third category (severe disease). However, it is my opinion that it is more .probable than.not that the unborn children of Mr. and Mrs. Rye will be at a greater-than average statistical risk for the reasons set forth below.
Fortunately, Mr. and Mrs. Rye’s third child ... was born healthy and without adverse events.. However, because of Mrs. Rye’s comparatively quick Rh-sensitization (from the 28th week of her third pregnancy up until the confirmation of her Rh-sensitive status shortly after the delivery of her third child), it is my opinion to a reasonable degree of •medical certainty that Mrs. Rye is a comparatively “fast responder” biologically to the changes brought about by Rh-sensitization among Rh-sensitized patients. This temporal pathway for her Rh-sensitization was prompt and the condition is now irreversible. The antibodies now contained in her body, which were not present before her Rh-sensitization, will never go away during her lifetime. It is therefore my opinion that it is moi;e probable than not that Mrs. Rye’s next pregnancy will involve a baby with moderate to severe disease in ute- . ro.
The Defendants deposed Dr.: Bruner on November 29, 20Í0. During his deposition, Dr. Bruner elaborated on his affidavit testimony concerning the risks to Mrs. Rye and to any unborn children the Ryes may conceive in the future. Excerpts of his deposition testimony appear below.
,Q. Okay. You and I are communicating. Let me, .make it clear. I’ve asked you if you’re called as an expert in this case what opinions you will render, and you’ve told me that your testimony—tell me if I state this correctly—your testimony would be about the risk that Mrs. Rye has and any unborn child of her[s] would have if another child were conceived. Did I make that statement correctly: That’s the sub- . ject matter of your testimony?
A. -That’s correct.
*244 Q. All right. And, specifically, I hear you say three points. Number one, that Mrs. Rye became R[h-]sensitized in her third trimester of her last pregnancy because of the failure to receive a RhoGAM injection; number two, she now has lifetime risks, whether she becomes pregnant again or not; and number three, if she becomes pregnant again, she and her fetus will have risks.
A. That’s correct.
Q. Did I state those correctly?
A. Yes, you did.
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Q. All right. Now, I want to give you every opportunity before we leave here today to tell me the basis in each of those "areas, so go ahead.
A. Okay. As far as the sensitization, itself, everything I’ve read so far, there appears to be general agreement that she was sensitized in her last pregnancy because of her doctor’s failure to administer RhoGAM, so I don’t think we need to spend much time on that.
Her lifetime risk is because of the fact that the R[h] disease she now has, that she has circulating antibodies to the R[h] factor. If she ever requires a blood transfusion or requires a blood product in the future, it will be necessary for her to be administered blood or blood products that do not have the R[h]factor, or else it would provoke a response in her body.
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So this is only a risk if she is in an emergency situation, for example, if she’s in a motor vehicle accident, or if she falls down the stairs or has some sort of injury, perhaps even during a childbirth that would result in a large acute blood loss that requires an urgent or emergent blood transfusion as a life-saving procedure. Then the risk for her is that the turnaround time to produce compatible blood may not be fast enough to prevent injury or even death.
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Q. And I’m not—when I say this, I’m just trying to nail it down. You’re not going to testify at this trial that "she has any—if you’re called as a witness at this trial, that she has currently any other risk in her current, nonpregnant situation, any other risks than the risk, if she had blood loss, of the transfusion process being prolonged, correct?
A. That’s the only medical risk that she has, yes, sir.
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Q, On the current risk that she has, the only risk that she has right now in her current situation, is this risk that it might take longer to process her blood in the case of—or blood products in the case of a transfusion?
A. It would take longer to process a unit of blood.
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Q. Fair enough. Let’s go to your third opinion. You say if she becomes pregnant, she and her fetus both have risks. Tell me specifically what your opinions are in this regard.
A. Well, there are risks from the disease, and there are risks from the treatment of the disease. The risk of the disease centers mainly on the fetus. With her next R[h] incompatible pregnancy, her immune response will be stronger than it was in her last pregnancy, so she will produce antibodies that will cross*245 the placenta, and they -will attach to the fetal red blood cells. And these red blood cells will be destroyed, and the fetus will experience some degree of anemia.
Q. Okay. Anything else?
A. Depending on the degree of anemia, the fetus may be required—in order to replace the blood cells that are being destroyed, the fetus ma[y] be required to convert other organs that do not normally produce blood into blood-producing organs, specifically, the liver, the spleen, under severe circumstances, even the lining of the bowel. The conversion of these cells being forced to do something they were not normally programmed to do is injurious.
Q. Injurious to the fetus?
A. Yes, injurious to the cells, injurious to the organ and injurious to the entire fetus. And this injury can lead to an accumulation of fluid within the fetus because of impaired blood flow and eventually to a condition known as hydrops fetalis....
Q. What is that?
A. It’s a collection of fluid in more than one body space in a fetus as a result of severe anemia, provoked by an immune response.
Q. Okay.
A. Left untreated, this may lead to fetal death.
Q. Left untreated?
A. Yes.
Q. What if it’s treated?
A. Then a variety of outcomes are possible. Left untreated, and even if treated, it can lead to maternal illness. The way this happens is, if the fetus develops hydrops fetalis, the placenta does, also, because the placenta belongs to the fetus. And in descriptions—in pathological descriptions of fetuses that have been sick with hydrops fetalis or have died, one common- feature is a very thick placenta, a placenta that’s also hydropic. The placenta produces many basal-active substances, not only for the fetus, but ones that affect the mother, as well. So when the placenta becomes thick and ede-matous, the mother commonly develops high blood pressure, fluid retention and proteinuria, something very closely akin to preeclampsia, and so the mother becomes sick, as well.
Q. Go ahead. What else?
A. Well, if left untreated, this will typically result in death of the fetus if it’s that severe.
Q. If left untreated?
A. Yes.
Q. Okay.
A. So those are the risks to the fetus from the disease process. So this can result in an early loss, it can result in a loss after viability, it can result in an emergency delivery that, unfortunately, may result in the loss of the baby, in spite of the emergency delivery.
And so the mother may secondarily be injured because of the disease process that the fetus has or because of the treatment of the disease....
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A. Finally, as I mentioned, all of these procedures, all of these invasive procedures have complications. And although it’s probably not worthwhile going through every scenario, just by way of illustration, it’s possible that an amniocentesis or blood sampling could be performed at 23 weeks, 24 weeks, a*246 complication could occur, the baby would deliver and survive but then be severely affected by prematurity, which is not a result of the disease process, but a complication of the treatment of the disease. And the baby could survive and be severely affected with cerebral palsy or even • mental retardation and then live for [forty] years- after that.
So. that pretty much sums up the risks of the fetus and the mother, both from the - disease and from • the treatment. ...
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Q. Okay. So you can’t say it’s more likely than not that if she becomes pregnant again, and if the—and if the baby has blood incompatible with her R[h] [negative] status that the baby is not going to be treated for this?
A. No.
Q. You’re not saying that?
A. In this country, more than likely, she would get treatment.
Q. All right.
A. But the interlude until treatment begins may result in a pregnancy loss.
Q. But that’s not a risk that you’re prepared to testify that more likely , than not is going to occur?
A. No, I don’t think so.
Q. Can you say that any of these things you’ve told us about today are more likely than not going to occur to her in the future?
A.' Yes.
Q. What? How can you say that?
A. It’s more likely than not that she will become pregnant with another . . sensitized pregnancy.
Q. Okay. And what is the basis for your statement that this lady, it’s more likely than not that she’s going to become pregnant again with a child that will have blood not compatible with her R[h] [negative] status?
A. Because of her religious beliefs, .she’s not allowed to practice contraception, so she and her husband are still having unprotected intercourse.
Q.‘ How do you know-that?
A. Because she testified to that in her deposition. So at least—
Q. And you’re working on the assumption that there’s unprotected intercourse going on now. You're working on that assumption?
A. Well, she testified under oath that there was unprotected—
Q. But you’re testifying that’s an accu- ■ rate statement?
A. Yeah, I am.
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Q. And she’s—more likely than not, it’s going to be a child whose blood is not compatible, with her R[h] [sensitized] status. You’re saying that’s more likely .than not, more than a 50[%] chance of that?
A. That’s correct.
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A. So more likely than not, she will become pregnant again, because she’s already become pregnant three times, having unprotected intercourse. More likely than not, the fetus will be affected in at least one or more future pregnancies be- . cause of the' simple fact that R[h-]positive men, 40[%] are homozygous, 60[%] are heterozygous. Over all, .there’s a 70[%] chance her pregnancy will be affected....
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*247 Q. But that’s as far as you can go. It’s more likely than not that she’ll get , pregnant, and it’s more likely than not that the baby will have blood incompatible, and it’s more likely than not that that will mean that the baby will have some—some what?
A. Let me try to be more specific.
Q. Thank you.
A. Okay. So it’s more likely than not, she’ll become pregnant. It’s more likely than not, the baby will be incompatible. It’s more likely than not, the disease will be moderate to severe, which means that more likely than not, invasive procedures will begin in. the late second trimester, ■ between 24 and 28 weeks, and these invasive procedures will occur every seven to ten days, more or less, for the- remainder of the pregnancy, each-of those events with a one-to-two percent risk.
Dr. Stovall was deposed on February 24, 2011. Düring his deposition, Dr. Stovall reiterated the opinion he had previously expressed in his affidavit, that, while Mrs. Rye has become Rh-sensitized, she has not incurred physical injury or sustained damages as a result of the Rh-sensitization. Dr. Stovall testified that unless she becomes pregnant again, there is no risk at all to -Mrs. Rye from the Rh-sensitization. Dr. Stovall agreed that, if Mrs. Rye becomes pregnant in the future and the fetus dies or suffers from cerebral palsy or some other serious complication from the Rh-sensitization, the Ryes would, at that point, have suffered harm from the Defendants’ failure to administer a RhoGAM injection. Dr. Stovall further testified that if Mrs. Rye becomes pregnant in the future, there is a 40% chance “that she will develop enough antibodies that those antibodies will cross the placenta and cause the baby to have or to require the baby to have additional monitoring.” Even if additional monitoring is required, however, Dr. Sto-vall testified that “more likely than not, like overwhelmingly—overwhelmingly, more likely than not, [Mrs. Rye] would not have any complications.”
On July 15, 2011, the trial court held a hearing on the Defendants’ motion to dismiss, or in the alternative, for summary judgment. At.the conclusion of the hearing, the trial court announced its decision to grant the Defendants’ motion as to all claims for future damages to Mrs. Rye arising from blood transfusions or future pregnancies. On August 10, 2011, the trial court, consistent with its bench ruling, entered an order granting the Defendants’ motion as to “all claims for future damages for injuries to [Mrs,] Rye that relatero prospective injury relating to blood transfusions or future pregnancies.” The trial court found that such damages had yet to be sustained and that “it is a matter of speculation whether they will ever be sustained.” The trial court denied the .Defendants’ motion oh the issues of whether the Ryes “ha[d] suffered emotional distress and [whether Mrs.] Rye has R[h] disease because of the claimed negligence of,the [D]efendants.” However, during the July 15, 2011 hearing, the trial court invited the Defendants to renew their motion for summary judgment, after discovery had been completed. A scheduling order the-trial court entered on March 10, 2011, provided the following 2011 discovery deadlines: April 1—written discovery; May 1—disclo-sures of the Ryes’ expert witnesses; June 1—disclosures . of the Defendants’ expert witnesses;- July 1—-fact witness depositions and discovery depositions of the Ryes’ expert witnesses; August I-amended pleadings; September 1—discovery depositions of defense experts;
The trial court heard arguments on the Defendants’ renewed motion on the morning of February 6, 2012—the date trial was scheduled to begin. The trial court reaffirmed its earlier ruling that a genuine dispute of material fact existed as to whether Mrs. Rye’s Rh-sensitization constituted a physical injury for purposes of her NIED claim, citing Dr. Bruner’s testimony that there had “been a change in her blood.” However, the trial court concluded that the undisputed facts showed that Mr. Rye had sustained no physical injury. As a result, the trial court ruled that Mr. Rye has no independent cause of action and dismissed Mr. Rye’s NIED claim. Counsel for the Ryes then orally moved the trial court to grant an interlocutory appeal. The trial court agreed to do so and indicated that it would permit the pai'ties to seek an interlocutory appeal on all issues that had been addressed in its rulings on the Defendants’ motion.
On November '28, 2012, the trial court entered an order consistent with its bench ruling. Specifically, the trial court denied the Defendants’ summary judgment on the issue of whether Mrs. Rye had suffered a physical injury for purposes of her- NIED claim. The trial court clarified that Mrs. Rye would not be precluded “from presenting evidence of how her family plans [had] changed as an element of damages going to emotional distress.” The trial court granted the Defendants summary judgment with regard to: (1) Mr. Rye’s “stand-alone” NIED claim that was not supported by the required expert testimony; and (2) the Ryes’ independent cause of action for disruption of family planning.
On December 26, 2012, the Ryes filed a motion in the trial court seeking permission to pursue an interlocutory appeal on six issues. Two days later, the Defendants filed their own motion seeking the trial court’s permission for an interlocutory appeal on two issues. On March 22, 2013, the trial court entered separate orders granting both motions and listing five of the six issues requested by the Ryes and both of the issues-requested by the Defendants. Thereafter, the Ryes and the Defendants filed separate Tennessee Rule of Appellate Procedure 9 applications for permission to appeal.
On May 24, 2013, the Court of Appeals granted both applications and limited its review to the following issues:.
1. Since the Defendants have admitted that the failure to provide a RhoGAM injection to [Mrs.] Rye was a deviation from the recognized standard of acceptable professional obstetric and gynecological practice, whether the trial court properly granted partial summary judgment to the Defendants as to the [Ryes’] claims that the Ryes’ future children are at risk for complications and [Mrs.] Rye •is at risk for harm in the event of future*249 blood transfusions as set forth in the Affidavit and deposition testimony of [Dr.] Bruner [ ], based upon the court’s findings that such risks are too speculative to be submitted to the jury;
2. Whether the trial [c]ourt properly denied summary judgment to the Defendants as to claims that [Mrs.] Rye has “diseased blood” or Rh disease and therefore has an injury in the form of an altered bodily status; -
3. Whether the trial [c]ourt properly denied summary judgment to the Defendants as to the claim that [Mrs.] Rye has suffered emotional distress, as such claim is not a “stand-alone” [NIED] claim under Tennessee law;
4. Whether the trial [c]ourt properly granted summary judgment to the Defendants as to the claim that [Mr.] Rye has suffered emotional distress, as such claim is a “stand[-]alone” [NIED] claim under Tennessee law; and,
5. Whether the fundamental right of procreation in Tennessee articulated in Tennessee case law, e.g, Davis v. Davis, 842 S.W.2d 588, 600-01 (Tenn. 1992), confers any right of action or remedial damages for disruption of family planning due to impairment of reproductive capacity, and whether the right belongs only to a woman or also to a man. ■ •
Because this lawsuit was filed in 2009, the Court of Appeals evaluated the trial court’s ruling on the Defendants’ summary judgment motion pursuant to the standards adopted in Hannan v. Alltel Publ'g Co., 270 S.W.3d 1 (Tenn. 2008), rather than the standards in Tennessee Code Annotated section 20-16-101 (Supp. 2014), which applies to actions filed on or after July 1, 2011.
The Defendants filed an application for permission to appeal from the Court of Appeals’ decision, pursuant to Tennessee Rule of Appellate Procedure 11. This Court granted the Defendants’ application, and, in addition to the issues raised in the application, directed the parties to address the question of whether the summary judgment standard articulated in Hannan should be reconsidered. Rye v, Women’s Care Ctr. of Memphis, MPLLC, No. W2013-00804-SC-R11-CV (Tenn. Sept. 19, 2014) (order directing the parties to brief whether Hannan should be reconsidered).
II. Analysis
A. Standard of Review
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with'the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for summary judgment de novo, without a presumption of correctness. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 471 (Tenn. 2012)). Before making a fresh determination in this appeal, we must first identify the standards that guide our de novo review. To do so, we will review the history of.summary judgment, including the adoption of Rule 56- of the Tennessee Rules of Civil Procedure (“Tennessee Rule .56”), the three seminal decisions of the United States Supreme Court
B. History of Summary Judgment in Tennessee
1. Adoption of Tennessee Rule of Civil Procedure 56
The comprehensive history of summary judgment practice in Tennessee has been provided in prior decisions of this Court and in law review articles. See, e.g., Byrd v. Hall, 847 SW.2d 208 (Tenn. 1993); Judy M. Cornett, Trick or Treat? -Summary Judgment in Tennessee after Hannan v. Alltel Publishing Co., 77 Tenn. L.Rev. 305 (2010) [hereinafter Cornett’s Summary Judgment in Tennessee]. For purposes of this appeal, the following historical overview will suffice.
. Summary judgment in the modern sense first became available in Tennessee on January 1,1971, with the adoption of Tennessee Rule 56. Allstate Ins. Co. v. Hart
2. The Celotex Trilogy
Tennessee Rule 56 remained essentially identical to its federal progenitor in 1986, when the United States 'Supreme Court issued the Celotex trilogy addressing summary judgment practice under Federal Rule 56. In Matsushita Electric Industrial Company v. Zenith Radio Corporation, decided first, the Supreme Court elaborated on the showing required for a plaintiff to survive a summary judgment motion. The Court observed that, when the moving party carries its “burden under Rule 56(c),” then “the nonmoving party must come forward with ‘specific facts showing that there is- a genuine issue,for trial.’” 475 U.S. at 586, 106 S.Ct. 1348 (quoting Fed. Rule Civ. Proc. 56(e)). To satisfy this burden, the nonmoving party must do “something more than simply show that there is some metaphysical doubt as to the material facts.” Id. Further, the Court explained that, “where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Id. at 587, 106 S.Ct.. 1348 (quoting First Nat'l Bank of Ariz v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
In Anderson, the Court explained the role the burden of proof at trial plays in summary judgment practice and how the substantive law regarding a claim or defense affects the determination of which facts are “material” and which factual disputes are “genuine” for purposes of Rule 56. 477 U.S. at 247-48, 106 S.Ct.' 2505. The Court stated that “the substantive-law will identify which facts áre material” and clarified that “[ó]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. 2505. Materiality, the Court explained, is “only a criterion for categorizing factual disputes in their relation to the legal .-elements of the claim, and not a criterion for evaluating the evidentiary underpinnings of those, disputes.” Id. The Court emphasized that disputes of material fact are “genuine”—and therefore preclude the entry of summary judgment— only if the evidence -produced-at the summary judgment stage “is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The- Court held
The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict—“whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.”
Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)).
In these first two cases of the Celotex trilogy, the Court assumed without deciding that the moving defendants had met their initial burdens under Federal Rule 56. Anderson, 477 U.S. at 250 n.4, 106 S.Ct. 2505; Matsushita Elect. Indus. Co., 475 U.S. at 586 n.10, 106 S.Ct. 1348. In Celotex, decided the same day as Anderson, the Supreme Court had the opportunity to address the burden of production a moving party bears in summary judgment practice.
Mrs. Catrett sued in September 1980, alleging that her husband’s death had resulted from his exposure to products containing asbestos manufactured or distributed by Celotex and ’ other named corporations. Celotex, 477 U.S. at 319, 106 S.Ct. 2548. A year after the suit was filed, Celotex moved for - summary judgment, contending that Mrs. Catrett had “failed to produce evidence” showing that any Celotex product “was the proximate cause” of -her husband’s wrongful death. Id. -Celotex did not support its motion with affidavits but instead based its motion 'on Mrs. Catrett’s “failure to identify, when answering interrogatories specifically requesting such information, any witnesses who could testify about the decedent’s exposure to [Celotex’s] asbestos products.” Id. at 320, 106 S.Ct. 2548. Mrs. • Catrett responded to Celo-tex’s summary judgment motion with three documents, including a transcript of her husband’s deposition, a letter from an official of one of her husband’s former employers whom Mrs. Catrett planned to call as a trial witness, and a letter from an insurance company to Cel-otex’s attorney. Id. According to Mrs. Catrett, all of these documents suggested that her husband had been exposed in 1970 and’ 1971 to asbestos products that were manufactured by Celotex. • Id. Celotex asked the federal district court not to consider Mrs. Catrett’s response because the’ three documents she supplied amounted'to inadmissible hearsay. Id. In July 1982, the federal district court granted Celotex’s motion for summary judgment, and Mrs. Catrett appealed. Id. at 321-22, 106 S.Ct. 2548. The Circuit Court of Appeals for the District of Columbia reversed and held that the summary judgment motion was fatally defective because Celotex had “ ‘made no effort to -adduce any evidence, in the form of’ affidavits or otherwise, to sup
The Supreme Court granted certiorari and ultimately reversed the Circuit Court of Appeals’ judgment and remanded to that court for further proceedings. Id. at 328, 106 S.Ct. 2548. Although the Court was split five-to-four on the decision to reverse the Court of Appeals, eight of the nine justices agreed on how the burdens of production and persuasion should function in summary judgment practice. See Id. at 322-27, 106 S.Ct. 2548 (Rehnquist, J., majority opinion); Id. at 328, 106 S.Ct. 2548 (White, J., concurring); Id. at 329, 334,106 S.Ct. 2548 (Brennan, J., dissenting).
Justice Rehnquist, writing for the majority, stated:
We think that the position taken by the majority of the Court of Appeals is inconsistent with the standard for summary judgment set fortli in Rule 56(c) of the Federal Rules of Civil Procedure. Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment-as a matter of law.” In our view, the plain language of Rule. 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as ■ to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmov-ing party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
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Of course, a party seeking summary judgment always béars the initial responsibility ' of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim. On the contrary, Rule 56(c), which refers to “the affidavits, if any” (emphasis added), suggests the absence of such a requirement. And if there were any doubt about the meaning of Rule 56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that claimants and defendants, respectively, may move for summary judgment “with or without supporting affidavits” (emphasis added). The import of these subsections is that, regardless of whether the moving party accompanies its sum*254 mary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry *of summary judgment, as set. forth in Rule 56(c), is satisfied.
477 U.S. at 322-23, 106 S.Ct. 2548 (first emphasis added) (footnote omitted) (quoting Fed. R. Civ. P. 56). The Celotex majority emphasized that “the burden on the moving party, may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. Where the moving party, satisfies this burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(e)). However, a nonmoving party need not “produce evidence in a form that would be admissible at trial” or “depose her own witnesses” to survive a summary judgment motion. Id. “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing” required to avoid summary judgment. Id. The majority also pointed out that a non-moving party confronted with a “premature motion for summary judgment” may invoke Federal Rule 56(f), which, at that time, “allowe[d] a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party ha[d] not had an opportunity to make full discovery.” Id. at 326,106 S.Ct. 2548. A summary judgment motion “may, and should, be granted,” the Celotex Court reiterated, “so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323, 106 S.Ct. 2548. The Celotex Court emphasized that “[sjummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the federal rules as a whole, which are designed to ‘secure the just, speedy and inexpensive determination of every action.’” Id. at 327, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 1). Accordingly, the Celotex majority declared that Federal Rule 56 should “be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to dem.onstrate in the manner-provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Id. The Supreme Court remanded the case to the Circuit Court of Appeals to consider the adequacy of the three documents Mrs. Ca-trett had submitted in response to Celo-tex’s motion. Id.
Justice "White, who supplied the fifth vote for the majority decision, also filed a short concurring opinion, in which he agreed that “the Court of Appeals was wrong in holding that the moving defendant must always support [its] motion with evidence or affidavits showing the absence of a genuine dispute about a material fact.” 477 U.S. at 328, 106 S.Ct. 2548 (White, J., concurring). Justice "White also concurred with the majority that a defendant moving for summary judgment “may rely on depositions, answers to interrogatories, and the like, to demonstrate that the plaintiff has no evidence to prove his case and hence that there can be no factual dispute.” Id. Justice "White emphasized, however, that “[i]t is not enough to move for summary
Justice Brennan filed a dissenting opinion in Celotex, which Chief Justice Burger and Justice Blackmun joined. Id. at 329, 106 S.Ct. 2548 (Brennan J., dissenting). Although Justice Brennan did “not disagree with the Court’s legal analysis,” he dissented from “the Court’s judgment” because he believed that Celotex had not met “its burden of production under Federal Rule of Civil Procedure 56.” 477 U.S. at 329, 106 S.Ct. 2548 (Brennan, J., dissent-^ ing) (emphasis added): Justice Brennan also faulted the Court for -“not clearly explaining] what is required of a moving party seeking summary judgment on the ground that the nonmoving party cannot prove its case.” Id. Justice Brennan used his dissenting opinion “to explain more clearly” what is, required in such circumstances, stating as follows:
' If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56’s burden of production in -either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim. Second, the moving party may demonstrate to the [cjourt that the nonmoving party’s evidence is insufficient to establish an essential element bf the nonmoving party’s claim. If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law.
Where the moving party adopts this second option and seeks summary judgment on the ground that the norimoving party—who will bear the burden of persuasion at trial—has no evidence, the mechanics of discharging Rule 56’s burden of production are somewhat trickier. Plainly, a conclusory assertion thát the nonmoving party has no evidence is insufficient. Such a “burden” of production is no burden at all and would simply permit summary judgment procedure to be converted into a tool for harassment. Rather, as the Court confirms, a party who moves for summary judgment on the ground that the nonmoving .party has no evidence must affirmatively show the absence of evidence in the record. This may require the moving party to depose the nonmoving' party’s witnesses or to establish the inadequacy of documentary evidence. If there is literally no evidence in the record, ’the moving party may demonstrate this by review*256 ing for the court the admissions, interrogatories, and other exchanges between the parties that are in the record. Either way, however, the moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party.
If the moving party has not fully discharged this initial burden of production, its motion for summary judgment must be denied, and the Court need not consider whether the moving party has met its ultimate, burden of persuasion. Accordingly, the nonmoving party may defeat a motion for summary judgment that asserts that the nonmoving party has no evidence by calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the moving party. In that event, the moving party must respond by making an attempt to demonstrate the inadequacy of this evidence, for it is only by attacking all the record evidence allegedly supporting the nonmoving party that a party seeking summary judgment satisfies Rule 56’s burden of production. Thus, if the record disclosed that the moving party had overlooked a witness who would provide relevant testimony for the nonmoving party at trial, the Court could not find that the moving party had discharged its initial burden of production unless the moving party sought to demonstrate the inadequacy of this witness’ testimony. Absent such a demonstration, summary judgment would have to be denied on the ground that the moving party had failed to meet its burden of production under Rule 56.
477 U.S. at 331-33, 106 S.Ct. 2548 (Brennan, J., dissenting) (footnote and citations omitted) (emphasis added).
Justice Brennan explained that, “once the moving party has attacked whatever record evidence—if any—the nonmoving party purports to rely upon, the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332, 106 S.Ct. 2548 n.3. According to Justice Brennan, “[sjummary judgment should be granted if the non-moving party fails to respond in one or more of these ways, or if, after the non-moving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial.” Id. After providing this explication of his view of the law, Justice Brennan declared that he did “not read the Court’s opinion to say anything inconsistent with or different than the preceding discussion” and reiterated that his “disagreement with the Court concern[ed] the application of these principles to the facts” of the Celotex case. Id. at 334, 106 S.Ct. 2548.
3. Byrd v. Hall
Seven years after the Celotex trilogy, this Court set out in Byrd “to establish a clearer and more coherent summary judgment jurisprudence” under Tennessee Rule 56. 847 S.W.2d at 209. The Byrd Court stated, after examining prior Tennessee decisions and the Celotex trilogy, that “[cjomparison of the state and federal caselaw construing [Federal and Tennessee] Rule[s] 56 to date reveals no striking differences.” Id. at 214. The Court observed that “[t]his similarity of construction is not remarkable since [Federal Rule] 56 served as the blueprint for our own [Tennessee] Rule 56, and the language of both rules is virtually identical.” Id. The
Unfortunately, however, the Byrd Court followed up this pronouncement with several “observations” intended “to place a finer point on the proper use of the summary judgment process in this [S]tate.” Id. As for the burdens of production placed on moving and nonmoving parties, the Court stated:
,[T]he party seeking summary judgment has the burden of demonstrating to the court that there are, no disputed, materi-. al facts creating a genuine issue for trial, as we have defined those terms, and that he is entitled to judgment as a matter of law. A conclusory assertion that the nonmoving party has no evidence is clearly insufficient. When the party seeking summary judgment makes a properly supported motion, the burden then shifts to the nonmoving party to set forth specific facts, not legal conclusions, by using affidavits or the discovery'materials listed in Rule 56.03, establishing that there are indeed disputed, material facts creating a genuine issue that needs to.be resolved by the trier of fact and that a trial is therefore necessary. The nonmoving party may not rely upon the allegations or denials of his pleadings in carrying out this burden as mandated by Rule 56.05. The evidence offered by the nonmoving party must be taken as true'. Moreover, the facts on which the non-movant relies must be admissible at the trial but need not be in admissible form as presented in the motion (otherwise an affidavit, for example, would be excluded as hearsay). To- permit an opposition to ■be based on evidence that would not be admissible at trial would undermine the goal of the summary judgment process to prevent unnecessary trials since inadmissible evidence could not- be used .to support a. jury verdict.
Byrd, 847 S.W.2d at 215-16 (footnotes omitted).
Although the Byrd Court stated that a moving party may satisfy “this required showing in several ways,” it provided only two examples. Id. at 215 n.5. As the first example, the Byrd Court stated that a moving party may carry its burden by “affirmatively negating] an essential element of the nonmoving party’s claim.” Id. As for the second example, the Court'stated that “the moving party could conclusively establish an affirmative defense that defeats the nonmoving partyls claim, i.e., a defendant would be entitled to summary judgment if he demonstrated that the non-moving party cannot establish an essential element of his case.” Id. (citing Celotex, 477 U.S. at 331, 106 S,Ct. 2548 (Brennan, J., dissenting)). The Byrd Court also turned to Justice Brennan’s Celotex dissent for examples of how a nonmoving party may satisfy its burden when faced with a properly supported motion for summary judgment, explaining that in such circumstances a nonmoving party may: (1)
k. The Confusion Byrd Engendered
Although Byrd quickly became Tennessee’s summary judgment bible, “it also quickly drew criticism” and spawned confusion. Andrée Sophia Blums'tein, Bye, Bye Byrd?, 45 Tenn. B.J. 23, 23 (Feb. 2009); see also June F. Entman, Flawed Activism: The Tennessee Supreme Court’s Advisory Opinions on Joint Tort Liability and Summary Judgment, 24 Mem. St. U.L.Rev. 193, 216 (1994) [hereinafter Flawed Activism]. One commentator stated that although Byrd had “purported] to adopt the federal standard for evaluating the movant’s burden when the nonmovant bears the burden of proof on an issue, [Byrd] actually established a more rigorous standard for movants in Tennessee courts.” Judy M. Cornett, The Legacy of Byrd v. Hall: Gossiping, about Summary Judgment in Tennessee, 69 Tenn. L.Rev. 175, 175 (2001) [hereinafter Gossiping about Summary Judgment], The confusion centered on “whether the party seeking summary judgment must itself affirmatively negate an essential element of the nonmovant’s claim or whether it can just point, to the nonmovant’s failure to have come forward with evidence supporting its claim.” Bye, Bye Byrd?, 45 Tenn. B.J. at 23. Those on one .side of the debate, interpreted Byrd as following the Celotex trilogy and allowing a movant to satisfy its burden of production by demonstrating that the nonmovánt’s evidence was insufficient to establish an essential element of the nonmovant’s claim. See Denton v. Hahn, No. M2003-00342-COA-R3-CV, 2004 WL 2083711, at *10-11 (Tenn. Ct. App. May 4, 2004) (Koch, J., majority opinion). This reading was based on the Byrd Court having embraced the interpretation of Federal Rule 56 in the Celótex trilogy and having quoted with apparent approval the Sixth Circuit’s interpretation of Celótex. Andrée Sophia Blumstein, Bye Bye Hannan?, 47 Tenn. B.J. 14, 15 (Aug. 2011). Those on the other side of the debate read Byrd, particularly ' in light of subsequent summary judgment decisions of this Court,
5. Hannan and its Aftermath ■
We granted permission to appeal in Hannan to settle the debate and resolve the confusion about the proper interpretation of Byrd. Hannan, 270 S.W.3d at 1. After examining Byrd, McCarley, and other summary judgment decisions applying Byrd, the majority in Hannan, which included the undersigned, declared:
These cases clearly show that a moving party’s burden of production in Tennessee differs from the federal burden. It is not enough for the moving party to challenge the nonmoving party to “put up or shut up” or even to cast doubt on a party’s ability to prove an element at trial. ,
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In summary,. in Tennessee, a moving party who seeks to shift the burden of production to the nonmoving party who bears the burden of proof at trial must either: (1) affirmatively negate an essential element of the nonmoving'party’s claim; or (2) show that the non-moving party cannot prove an essential element of the claim at trial.
These are the two burden-shifting methods available to the moving party when the moving party does not bear the burden of proof at trial. The burden-shifting analysis differs, however, if the party bearing ,the burden at trial is the moving party. For example, a plaintiff who files a motion for partial summary judgment on an element of his or her claim shifts the burden by alleging undisputed facts that show the existence of that element and entitle the plaintiff ■ to summary judgment as a matter of law. Similarly, a defendant asserting an .affirmative . defense, such as laches, shifts the burden of production by alleging undisputed facts that show the existence of the affirmative defense.
Id. at 8-9 & n.6 (emphasis added). Although the majority in Hannan acknowledged that no prior decision had explicitly rejected the Celotex standard, we explained that our “departure” from the federal standard actually began in Byrd and merely continued in McCarley and subsequent decisions. Hannan, 270 S.W.3d at 7 (citing Blair, 130 S.W.3d at 768; Staples, 15 S.W.3d at 88; McCarley, 960 S.W.2d at 588); see also Hannan, 270 S.W.3d at 7 n.4 (stating that at least one legal commentator had interpreted Byrd ’as departing from the Celotex standard and citing Gossiping about Summary Judgment in Tennessee, 69 Tenn. L.Rev. at 220). The Hannan majority did not, however, base its rejection of the Celotex standard on historical differences' between federal and Tennessee summary judgment practice or textual differences between thé state and federal versions of' Rule 56. The Hannan majority also failed to acknowledge that only eight other states applied standards different from Celotex. Cornett’s Summary Judgment in Tennessee, 77 Tenn. L.Rev. at 44 & nn. 266-273. Rather, the Hannan majority focused on settling the dispute over the proper interpretation of Byrd. See Cornett’s Summary Judgment in Tennessee, 77 Tenn. L.Rev. at 337 (“The real tragedy of Hannan is ... that
Justice William C. Koch, Jr. dissented in Hannan. Hannan, 270 S.W.3d at 11 (Koch, J., dissenting). Justice Koch efri-phasized that Tennessee Rule 56 was patterned upon, and remained essentially identical to, Federal Rule 56. Id. at 12. Justice Koch noted as well that in the years after its adoption, this Court had interpreted Tennessee Rule 56 in a manner that “mirrored the federal courts’ application of [Federal Rule 56].” Id. at 12-13. Justice Koch disagreed that Byrd departed from the federal standard, and he quoted the language of Byrd that purported to “embrace” the Celotex trilogy—including the portion of Celotex which permitted a moving party to, satisfy its burden of production by demonstrating that the nonmoving party’s evidence is insufficient at the summary judgment stage to establish an essential element of the nonmoving party’s claim or defense. Id. at 16 (citing Byrd, 847 S.W.2d at 213, 215 n.5). Justice Koch predicted that Hannan would ultimately “undermine, rather than enhance, the utility of summary judgment proceedings as opportunities to weed out frivolous lawsuits and to avoid the time and expense of unnecessary trials.” Id. at 12.
Justice Koch was not alone in his view that Hannan had significantly altered Tennessee summary judgment practice. According to one author, “most commentators believed that Hannan ha[d] driven a stake through the heart of summary judgment in Tennessee,” and “[t]he predominant reaction to Hannan by the trial bench and the bar” was “trepidation.” Cornett’s Summary Judgment in Tennessee, 77 Tenn. L.Rev. at 306. Another commentator noted that by including the words “at trial” in the second example of how a movant may satisfy its burden of production, Hannan had shifted the bur-* den of production away from the -party who would bear the burden of proof at trial and “saddled” the defendant “with the burden of proof, a burden that requires the defendant to prove the negative of plaintiffs claim.”- Bye, Bye Byrd?, 45 Tenn. B.J. at 26. However, others, including the undersigned, viewed Hannan as merely reaffirming the summary judgment standards that had been applied since Byrd. See Cornett’s Summary Judgment in Tennessee, 77 Tenn. L.Rev. at 332 (stating that in Hannan the majority had “stuck to its guns and reaffirmed the Byrdr-McCarley-Blair standard”).
Two years later it became clear that others in the Hannan majority viewed it as having fundamentally changed summary judgment practice when this Court, in a three-to-two decision, abandoned the burden-shifting mechanics set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for use at the summary judgment stage of employment discrimination and retaliation cases, as incompatible with the Hannan summary judgment standard. Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777, 785 (Tenn. 2010); see also Kinsler v. Berkline, LLC, 320 S.W.3d 796, 801 (Tenn. 2010).
6. Hannan Reconsidered
Having reexamined the Celotex trilogy, Byrd, and the majority and dissenting opinions in Hannan, as well as the cases that have followed it, we conclude that the standard adopted in Hannan is incompatible with the history and text of Tennessee Rule 56 and has functioned in practice to frustrate the purposes for which summary judgment was intended—a rapid and inexpensive means of resolving issues and cases about which there is no genuine issue regarding material facts. Bowman, 547 S.W.2d at 529; Evco Corp., 528 S.W.2d at 24. Whether the standard began with Byrd or originated in Hannan, we conclude that the standard has shifted the balance too far and imposed on parties seeking summary judgment an almost insurmountable burden of production, as the Court of Appeals’ decision in this case illustrates. See also Boals v. Murphy, No. W2013-00310-COA-R3-CV, 2013 WL 5872225, at *15 (Tenn. Ct. App. Oct. 30, 2013) (Kirby, J., author) (‘“Under Han-nan, as we perceive the ruling in that case, it is not enough to rely on the nonmoving party’s lack of proof even where, as here, the trial court entered a scheduling order and ruled on the summary judgment motion after the deadline for discovery had passed. Under Hannan, we are required to assume that the nonmoving party may still, by the time of trial, somehow come up with evidence to support her claim.’” (quoting White v. Target Corp., No. W2010-02372-COA-R3-CV, 2012 WL 6599814, at *7 n.3 (Tenn. Ct. App. Dec. 18, 2012) (Kirby, J., author))).
Like Federal Rule 56, Tennessee Rule 56 does not require the moving party to present affidavits.. Instead, it expressly dispenses with that requirement, stating that “a party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment” and “(a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought” may move for summary judgment “with or without supporting affidavits.” Tenn. R. Civ. P. 56.01, 56.02 (emphasis added); see also Tenn. R. Civ. P. 56.04 (directing the court to consider “affidavits, if any,” in determining whether summary judgment should be granted (emphasis added)). - Tennessee Rule 56 requires both'-the movant and the nonmovant to submit statements of undisputed facts, supported by citations to the record, “[i]n order to assist the Court in ascertaining whether there are any material facts in dispute,” Tenn. R. Civ. P. 56.03, and provides that, “[sjubject to the moving part/s compliance with Rule 56.03, the judgment sought shall be rendered forth
Instead, like Federal Rule 56, Tennessee Rule 56 authorizes courts to order continuances on summary judgment motions to allow a party opposing summary judgment to obtain affidavits, take depositions, o.r engage in other forms of discovery as ,may be ordered. Tenn. R. Civ. P. 56.07. Because Tennessee Rule 56 provides trial courts with authority to grant continuances to nonmoving parties when summary judgment motions are made before adequate time for discovery has been provided, any differences between discovery in the federal system and discovery under the Tennessee Rules of Civil Procedure do not warrant rejection of the standards enunciated.in the Celotex trilogy.
There is simply nothing in the history or text of Tennessee Rule 56 which necessitates rejecting the-standards enunciated in the Celotex trilogy. Despite the dissent’s assertions to the contrary, the principle in Tennessee law that cases should be' decided on the merits does not require rejection of the Celotex trilogy. When a court determines, consistent with the standards in Tennessee Rule 56, that no genuine issue of material-fact exists and grants summary judgment, the case has been decided on the merits.
We are mindful that the power of this Court to overrule former decisions “is very sparingly exercised and only when the reason is compelling.” Edingbourgh v. Sears, Roebuck & Co., 206 Tenn. 660, 337 S.W.2d 13, 14 (1960). Adhering to prior decisions is generally “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes, to the actual and perceived integrity of the judi
Nevertheless,' “[o]ur oath is to do justice, not to perpetuate error.” Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 599 (Tenn. 1999) (quoting Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227, 229 (I960)). As a result, we are not constrained to follow “unworkable” or “badly reasoned” precedent. Payne, 501 U.S. at 827, 111 S.Ct. 2597 (citing Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 88 L.Ed. 987 (1944)); see also In re Estate of McFarland, 167 S.W.3d at 306 (stating that “obvious error or unreasonableness in the precedent, changes in conditions which render the precedent obsolete, the likelihood that adherence to precedence would cause greater harm to the community than would disregarding stare.decisis, or an inconsistency between precedent and a constitutional provision” justify overturning well-settled rules of law). Thus, “if an error has been committed, and becomes plain and palpable, th[is] [C]ourt will not decline to correct it, even though it may have been reasserted and acquiesced in for a long number of years.” Arnold v. City of Knoxville, 115 Tenn. 195, 90 S.W., 469, 470 (1905); see, e.g., State v. Watkins, 362 S.W.3d 530, 556 (Tenn. 2012) (overruling a sixteen-year-old decision because the state constitutional test it adopted was unworkable and because there was no textual or historical basis for interpreting the state constitutional provision as requiring a test distinct from the federal constitutional provision); Mercer v. Vanderbilt Univ., 134 S.W.3d 121, 129-30 (Tenn. 2004) (overruling an eight-year-old decision that had adopted a minority rule and adopting instead the “better-reasoned” majority rule); Jordan, 984 S.W.2d at 600 (abrogating a ninety-six-year-old • decision- even though the statutory language it had interpreted remained the same).
Indeed, we have “a special duty” to correct erroneous rules that have been “recognized and nurtured” by this Court. Hanover v. Ruch, 809 S.W.2d 893, 896 (Tenn. 1991) (abolishing the common law tort of criminal conversation for all eases filed prior to the effective date of a statute prospectively abolishing it); see also Dupuis v. Hand, 814 S.W.2d 340, 345 (Tenn. 1991) (abolishing the'common law tort of alienation of affections for all cases filed prior to the effective date of a statute prospectively abolishing it). We would “abdicate our own function” were we to refuse to correct unworkable or erroneous
Because the standard articulated in Hannan is unworkable and inconsistent with the history and text of Tennessee Rule 56, we take this opportunity to correct course, overrule Hannan, and fully embrace the standards articulated in the Celotex trilogy.
7. Recap of Tennessee Summary Judgment Standards
Our overruling of Hannan means that in Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either (1) by affirmatively negating an essential element of the nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the summary judgment stage is insufficient to establish the nonmoving party’s claim or defense. We reiterate that a moving party seeking summary judgment by attacking the nonmoving party’s evidence must do more than make a conclusory assertion that summary judgment is appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving party to support its motion with “a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. “Each
C. Application of Summary Judgment Standards
1. Future Medical Expenses Arising from Mrs. Rye’s Rh-sensitization
The Defendants argue, that they are entitled to summary judgment because, even assuming Mrs. Rye’s Rh-sensitization is considered a presently existing physical injury, the undisputed facts demonstrate that Mrs. Rye has not sustained any damages related to this injury and that no such damages are reasonably certain to occur.
(1) The recognized standard of acceptable professional practice in the profes■'•sion and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
Tenn. Code Ann. § 29-26-115(a) (2012). A legal injury “signifies an act or omission against [a] person’s rights that results in some damage.” Church v. Perales, 39 S.W.3d 149, 171 (Tenn. Ct. App. 2000) (citing Barnes v. Kyle, 202 Tenn. 529, 306 S.W.2d 1, 4 (1957)). “Any want of skillful care or diligence on a physician’s part that sets back a patient’s recovery, prolongs the patient’s illness, increases the plaintiffs suffering, or, in short, makes the patient’s condition worse than if due skill, care,-and diligence had been used, constitutes injury for the purpose of a [health care liability action].” Church, 39 S.W.3d at 171.
In this case, the defense expert, Dr. Stovall, testified “within a reasonable degree of medical certainty that, while Mrs. Rye [has- become] Rh-sensitized, she has incurred no physical injuries.” The Ryes’ expert, Dr. Bruner, stated that, “[biologically; [Mrs.’ Rye] -is not the same person she was before she became Rh-sensitized” and “now possesses diseased blood” for life because of the Defendants’ negligence. The facts are undisputed that Mrs. Rye’s blood now contains antibodies that it would not have contained but for the Defendants’ negligence.
Although the experts disagree as to whether the undisputed facts amount to a physical injury, this difference-of opinion is not material. As.noted above, a legal injury “signifies an act or omission against [a] person’s rights that results' in some damage.” Church, 39 S.W.3d at 171. Thus, even assuming Mrs. Rye’s Rh-sensitization amounts to a physical injury, the disposi-tive question is .whether genuine issues of material fact exist as to the third factor: whether Mrs. Rye is reasonably certain to sustain damages for future medical expenses as a result of her Rh-sensitization.
After careful review, we answer this question in the negative. “The existence of damages cannot be uncertain,
A person who is injured by another’s negligence may recover damages from the other person for all past, present, and prospective harm. .Included in the prospective harm for which damages may be recovered is the reasonable cost of the medical services that will probably be incurred because of the lingering effects of the injuries caused by the negligent person. To remove awards for future medical expenses from the realm of speculation, persons seeking future medical expenses must present evidence (1) [showing] that additional medical treatment is reasonably certain to be1 required in the future and (2) [enabling] the trier-of-fact to reasonably estimate the cost of the expected treatment.
The first component of a claim for future médical expenses is, in the language of the Tennessee Pattern Jury Instructions, evidence that additional medical treatment is “reasonably certain to be required in the future.” This “reasonable certainty” standard requires more than a mere likelihood or possibility. It requires the plaintiff to establish with some degree of certainty that he or she will undergo future medical treatment for the injuries caused by the defendant’s negligence. It does not, however, require proof of future medical , treatment to an absolute or metaphysical certainty. -Rather, the “reasonable , certainty” standard requires the plaintiff to prove that he or she will, mere proba-, bly than not, need these medical services in the future.
Singh v. Larry Fowler Trucking, Inc., 390 S.W.3d 280, 287-88 (Tenn. Ct. App. 2012) (quoting Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *13-14 (Tenn. Ct. App. Jan. 28, 2002)); see also 8 Tenn. Prac. Pattern Jury Instr. T.P.I.-Civil 14,50 (2014 ed.) (“If you are to determine a party’s damages, you must compensate that party for loss or harm that is reasonably certain to be suffered in the future as a result of the injury in question; You may not include speculative damages, which is' compensation for future loss or harm- that, although possible, is conjectural or not'reasonably certain.”)
In his affidavit, Dr. Stovall opined that any future risks to Mrs. Rye as a result of a future pregnancy are “extremely remote” arid that “it cannot be said with any reasónable degree of medical certainty that an Rh-sensitized patient will ever sustain any irijuries or damages.” In his deposition, Dr. Stovall reiterated his opinion that, unless Mrs. Rye becomes pregnant again, the Rh-sensitization presents no risk at all to'her. Even if Mrs.. Rye be-’ comes pregnant in the future With an Rh-positive child, Dr. Stovall opined that there is only a 40% chance “she will develop enough antibodies that those antibodies will cross the placenta and cause the baby to have or to require the baby to have additional monitoring.” Even if additional monitoring is required, however, Dr. Sto-vall opined that-it is “more likely than not, like overwhelmingly—overwhelmingly, more likely than not, [that Mrs. Rye] would not have any complications.”
Dr. Bruner also opined that Mrs. Rye will suffer future medical expenses and damages from her Rh-sensitization should she be involved in a future medical emergency involving an acute blood loss that requires an emergent blood transfusion. According to Dr. Bruner, these damages will be incurred because “[t]he presence of Rh antibodies in Mrs. Rye’s blood will double or even triple the time necessary to identify compatible units of blood for transfusions” and “[tjhis time difference is likely to be life threatening in an emergency situation in which blood transfusions are required.”
Having reviewed the record, including the motion, response, affidavits and depositions, under the applicable summary judgment standards, we agree with the trial court that the Defendants are entitled to summary judgment on Mrs. Rye’s claim for future medical expenses associated with future pregnancies and future blood transfusions. Mrs. Ryes’ evidence is insufficient as a matter of law to demonstrate that future medical expenses are reasonably certain to occur and demonstrates instead that future medical expenses depend entirely upon contingencies that have not occurred and may never occur.
Although Dr. Bruner opined that Mrs. Rye is more likely than not to become pregnant again, his testimony referred only to Mrs. Rye’s deposition testimony that she and Mr. Rye had engaged in unprotected sex since her Rh-sensitization and his understanding that Mrs. Rye had become pregnant three times before when the couple had engaged in sexual relations without using birth control. Mrs. Rye’s deposition testimony actually includes a great deal of additional information that Dr. Bruner did not mention. Specifically, Mrs. Rye testified that prior to her Rh-sensitization the couple had not only declined to use birth control measures while engaging in unprotected sexual relations, they had planned to conceive children by determining when Mrs. Rye was “ovulating, things like that” and engaging in sexual relations during those times. Mrs. Rye stated that this planning had “worked” for them in conceiving children. After her Rh-sensitization, Mrs. Rye stated that the couple had used these same measures, along with the “rhythm” method, to prevent a fourth pregnancy. Mrs. Rye stated that the couple had abstained from sexual relations during times when Mrs. Rye “could be ovulating” and the likelihood of conception would have been greater. She also stated that the couple had “bought a bunch of tests” to assist them in determining when ovulation had occurred.
Moreover, even if the first contingency occurs and Mrs. Rye becomes pregnant in the future, the medical experts agree that neither Mrs. Rye nor her unborn child will suffer any risks at all from her Rh-sensitization unless the unborn future child’s blood is Rh positive. Thus, the undisputed facts establish that two contingencies must occur before Mrs. Rye’s Rh-sensitization poses even a risk of damages to either Mrs. Rye or her future unborn children. The undisputed facts are thus insufficient to establish a genuine issue of material fact for trial as to the reasonable certainty of future medical expenses associated with future pregnancies.
Mrs. Rye’s proof also falls short of establishing a genuine issue of material fact for trial with regard to the reasonable certainty of damages for future medical expenses associated with future blood transfusions. At least three contingencies must occur before Mrs. Rye will ever incur damages of this sort. First, she must experience a future medical emergency involving an acute blood loss. Second, the medical emergency must have created an immediate need for a blood transfusion. Third, the blood typing required as a result of Mrs. Rye’s Rh-sensitization must have caused delay that prevented Mrs. Rye from immediately receiving the needed blood transfusion. The Ryes have offered no proof at all that any of these future contingencies will ever occur. Thus, the Ryes’ request for future medical expenses arising from blood transfusions is based on possibilities and speculation, not reasonable certainty.
The record taken as a whole could not lead a rational trier of fact to find that the Ryes are reasonably certain to incur future medical expenses associated with Mrs. Rye’s future pregnancies or blood transfusions. Thus, there is no genuine issue for trial. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. Because the Defendants have demonstrated, after adequate time for discovery, that Mrs. Rye lacks proof of an essential element of her claim and Mrs: Rye’s response fails to identify proof supporting her claim, the Defendants are entitled to summary judgment. Accordingly, we reverse the Court of Appeals and reinstate the trial court’s judgment granting the Defendants’ summary judgment on Mrs. Rye’s requests for damages for future medical expenses associated with future pregnancies and future potential blood transfusions.
2. The Ryes’ NIED Claims
In Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996), this Court held that a plaintiff who asserts an NIED claim need not prove an accompanying physical injury. Id. at 446. Instead, we held that such claims should be analyzed under a “general negligence approach.” Id. However, the Camper Court imposed safeguards designed not only to compensate persons who sustain serious emotional injuries but also to avoid compensating trivial and non-meritorious claims. Id. To these ends, a plaintiff bringing a stand-alone NIED
In Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133, 134 (Tenn. 2001), this Court considered whether the Camper requirement of expert medical or scientific evidence of a serious or severe injury extends to all negligence claims resulting in emotional injury. The Estate. of Amos Court held that the Camper requirement applies only to stand-alone NIED claims and does not apply to cases in which the alleged emotional injury is “parasitic” to . other types of claims or injuries. Id. at 137. The Court explained:
The special proof requirements in Camper are a unique safeguard, to ensure the reliability of “stand-alone” negligent infliction ■ of emotional distress claims. The subjective nature of “standalone” emotional injuries creates a risk for fraudulent claims. The risk of a fraudulent claim is less, however, in a ease in which a claim for emotional injury damages is one of multiple claims for damages. When emotional damages are a “parasitic” consequence of negligent conduct that results in multiple types of damages, there is no need to impose special pleading or proof requirements that apply to “stand-alone” emotional distress, claims.
Id. at 136-37.
More recently, in Rogers, this Court reaffirmed that the “expert proof’ requirement applies only to “stand-alone” NIED claims and does not apply when a plaintiffs emotional injuries are “a ‘parasitic’ consequence of negligent conduct that results in multiple types of damages.” Rogers, 367 S.W.3d at 206 n. 10. Nevertheless, we also stated that actions for “negligent infliction of emotional distress (including all three “subspecies” of negligent infliction: ‘stand-alone,’ ‘parasitic,’ and ‘bystander’) require an identical element: a shomng that the plaintiff suffered a serious mental injury resulting from the defendant’s conduct.” Rogers, 367 S.W.3d at 206 (emphasis added).’ A serious or severe mental injury occurs, we stated, if the plaintiff shows that “a reasonable person, normally constituted, would [have been] unable to adequately cope with .the mental -stress engendered by the circumstances of the case.” Id. at 210. We explained that “[u]nable to cope with the mental stress engendered” requires a plaintiff to demonstrate, by way of six enumerated, non-exclusive factors or by other pertinent evidence, “that he or she has suffered significant impairment in his or her daily life.” Id. . The “nonexclusive factors” Rogers enumerated are as follows:
(1) Evidence of physiological manifestations of emotional distress, including but not limited to nausea, vomiting, headaches, severe weight loss or gain, and the like;
(2) Evidence of psychological manifestations of emotional distress, including but not limited to sleeplessness, depression, anxiety, crying spells or emotional outbursts, nightmares, drug and/or alcohol abuse, and unpleasant mental reactions*271 such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and worry;
(3) Evidence that the plaintiff sought medical treatment, was diagnosed with a medical or psychiatric disorder such as post-traumatic stress disorder, clinical depression, traumatically induced neurosis or psychosis, or phobia, and/or was prescribed medication;
' (4) Evidence regarding the duration and intensity of the claimant’s physiological symptoms, psychological symptoms, and medical treatment;
(5) Other evidence that the defendant’s conduct caused the plaintiff to suffer significant impairment in his or her daily functioning; and
(6) In certain instances, [evidence of] the extreme and outrageous character of the defendant’s conduct..... . .
Rogers, 367. S.W.3d at 209-10. Having summarized the governing legal principles, we must evaluate whether genuine issues of material fact exist as to the Ryes’ emotional distress claims.
We agree with the courts below that the undisputed facts establish that Mr. Rye has not suffered any physical injury. Although Mr. Rye argues that he has sustained an actual injury in the nature of a disruption of his family planning, we conclude, as will be explained more fully hereinafter, that Tennessee law does not recognize disruption of family planning as either an independent cause of action or an element of damages. Accordingly, Mr. Ryé has alleged only a stand-alone NIED claim. We agree with the Defendants that summary judgment is appropriate because, despite having adequate time for discovery, and indeed despite expiration of all discovery deadlines, Mr. Rye has failed to submit any expert proof to establish a severe emotional injury—an essential element of his stand-alone NIED claim. Having demonstrated that Mr. Rye lacks proof of an essential element of his claim, the Defendants are entitled to summary judgment on this claim. Thus, we reverse the Court of Appeals’ decision and reinstate the judgment of the trial court granting summary judgment on this issue.
We agree with the courts below that Mrs. Rye’s claim for emotional distress damages is “parasitic” to her health care liability claim. However, >we agree with the Defendants that summary judgment on this claim is- appropriate because, although expert proof, is not required, Mrs. Rye has offered no proof at all to demonstrate that she has suffered a severe or serious mental injury. Mrs; Rye testified in her deposition that she was “scared” and “so upset” when told of the risks her Rh-sensitization could pose to any future pregnancy, that she remains “.very concerned” about the risks that could arise should she need a blood transfusion or become pregnant in the future. Mrs. Rye testified that she thinks about the risks associated with her Rh-sensitization “every day” and that she is more careful in her sexual relations with her husband because of the risks that could arise should she become pregnant in the future. However, Mrs. Rye stated that she has not sought emotional or psychiatric counseling or mental health treatment from a psychiatrist, a psychologist, a counselor, or anyone else as a result of her concerns. Mrs. Rye also testified that her concerns have not caused her to lose any time from work or business activities and that she has continued her parenting responsibilities without disruption.
3. The Ryes’ Claims for Disruption of Family Planning
The Ryes argue that the courts below erred in granting summary judgment on their claims for disruption of family planning. The Ryes assert that this Court should hold, based' on Davis v. Davis, 842 S.W.2d 588, 600-601 (Tenn. 1992), that Tennessee law recognizes disruption of family planning as either an independent cause of action or as an element of damages for other negligence based claims. We agree with the Defendants that neither Davis nor any other Tennessee decision recognizes disruption of family planning as an independent cause of action or an element of damages.
Indeed, Davis is entirely distinguishable on its facts from this case. Davis began as a divorce action. Davis, 842 S.W.2d at 589. The divorcing couple could not agree as to the disposition of the cryogenically preserved product of their in vitro fertilization, which the Davis Court referred to as “frozen embryos.” Id. Mrs. Davis originally sought custody of the frozen embryos and expressed her intent to use them to become pregnant once the divorce was final, but Mr. Davis objected to becoming a parent after the divorce and without his consent. Id. The trial court determined that the frozen embryos were “human beings” and awarded Mrs. Davis custody of them. Id. The Court of Appeals reversed and remanded to the trial court for entry of an order vesting Mr. and Mrs. Davis with “joint control ... and equal voice over their disposition.” Id. This Court granted review, adopted a balancing test to determine which potential parent should receive control of the frozen embryos, and after applying the balancing test, affirmed the Court of Appeals. Id. at 590, 598-602.
It is true that, in devising the balancing test, the Davis Court referenced decisions of the United States Supreme Court discussing (1) the individual constitutional right to “be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child”; (2) procreational autonomy; (3) and parental rights and responsibilities regarding children. Id. at 598-602. However, the Davis Court neither held, nor implied, nor even suggested that Tennessee law recognizes disruption of family planning as either an independent action or an element of damages in negligence cases. Accordingly, we affirm the decisions of the courts below granting the Defendants summary judgment on the Ryes’ claim for disruption of family planning as an independent action. Having already concluded, on a separate basis, that summary judgment is appropriate on Mrs. Rye’s parasitic claim for
IY. Conclusion
Having overruled Hannan and adopted and applied the summary judgment standards articulated in the Celotex trilogy and in Tennessee Rule 56, we conclude that the Defendants are entitled to summary judgment on all claims the Ryes raised in this appeal. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals and remand this case to the trial court for entry of summary judgment on these claims and any further necessary proceedings consistent with this decision. Costs of this appeal are taxed to the Ryes, for which execution may issue if necessary.
. Act of May 20, 2011, ch. 498, 2011 Tenn. Pub. Acts § 3 at 471.
. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). These three decisions are known collectively as "the trilogy.” Adam N. Steinman, . The. .Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After the Trilogy, 63 Wash. & Lee L.Rev. 81, 82 (2006). We will refer to these decisions as the Celotex trilogy in this opinion.
. Justice Stevens also dissented in Celotex, but he did not discuss in detail summary judgment practice under Federal Rule 56. See 477 U.S. at 337, 106 S:Ct. 2548 (Stevens, J„ dissenting).
. See Blair v. West Town Mall, 130 S.W.3d 761, 767 (Tenn. 2004); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998).
. The undersigned, joined by Justice Koch, dissented in Gossett and Kinsler from the majority's decisions to abandon the McDonnell Douglas framework and argued that it was not incompatible with Hannan. Gossett, 320 S.W.3d at 789 (Clark, J., dissenting in part and concurring in the judgment); Kinsler, 320 S.W.3d at 802 (Clark, J., concurring in part and concurring in the judgment).
. Tennessee Code Annotated section 20-16-101 provides as follows:
In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:
(1) Submits affirmative evidence that negates an essential element of the nonmov-ing party’s claim; or
(2) Demonstrates to the court that the nonmoving party’s evidence is insufficient to establish an essential element of 'the nonmoving party’s claim.
Tenn. Code Ann. § 20-16-101 (Supp. 2014) (effective July 1, 2011). This statute does not apply in this appeal because the Ryes filed this action before the statute's July 1, 2011 effective date.
. Indeed, although the dissent views Hannan as the better standard, by forcing parties to proceed to trial even when no genuine issues of material fact exist at the summary judgment stage, the Hannan standard actually is antithetical to the principle favoring "the just, speedy, and inexpensive determination” of actions on the merits. Tenn. R. Civ. P. 1.
. The Ryes’ suggestion that any decision overruling Hannan and adopting the standards of the Celotex trilogy amounts to an impermissible retroactive application of Tennessee Code Annotated section 20-16-101, which violates article I, section 20 of the Tennessee Constitution, is simply incorrect. See Tenn. Cons. art. 1, § 20 ("[N]o retrospective law, or law impairing the obligations of contracts, shall be made.”). That statute' is irrelevant to this appeal. Thus, we are not retroactively applying the statute. Our decision overruling the manner in which Hannan interpreted Tennessee Rule 56 amounts instead to a proper exercise of our authority to reconsider, and when appropriate, abandon-rules Of law previously articulated in judicial decisions. In civil cases, judicial decisions' overruling prior cases generally are applied retrospectively. Hill v. City of Germantown, 31 S.W.3d 234, 239 (Tenn. 2000).
. The dissent either overlooks our obligation to correct erroneous court-made rules or fundamentally misunderstands it. By abandoning the Hannan standard, we are not, as the dissent asserts, "surrendering the constitutional authority of this Supreme Court to establish summary judgment standards for the judiciary.” To the contrary, we are accepting responsibility for creating an unworkable standard and exercising our constitutional authority to correct the error and establish a workable summary judgment standard. The dissent’s disagreement with our decision to abandon Hannan is understandable, as the dissenting justice, like the undersigned, joined the majority decision in Hannan. However, the dissent's suggestions that our decision somehow compromises judicial independence and disregards the doctrine of separation of powers are unfathomable and lack legal or factual foundation. By our decision in this appeal we cannot preempt a constitutional challenge to a statute that does not apply in this appeal. Our determination that the Han-nan standard is unworkable is independent of and unrelated to legislative action. Furthermore, the fact that our decision comes after the Legislature has already enacted a statute aimed at changing the Hannan standard is not at all unusual. See, e.g., Dupuis, 814 S.W.2d at 345 (deciding to abolish a tort after it had already been prospectively abolished by the Legislature); Hanover, 809 S.W.2d at 896 (same). Indeed, over twenty years ago, we recognized that “it would be anomalous” for this Court to refuse to consider abolishing common law torts in cases arising before statutes were enacted prospectively abolishing those same common law torts, and we noted that "the Legislature may not constitutionally preclude such consideration.” Hanover, 809 S.W.2d at 896. These observations apply with equal force to the resolution of this appeal. Despite the dissent's doubts, we do not take lightly our oaths to uphold the United States and Tennessee Constitutions and understand fully the function and importance of the doctrine of separation of powers. Nevertheless, nothing requires us to maintain an unworkable court-made rule simply because another branch of government has arguably invaded the province of the judiciary.
. We recognize that our decision to overrule Hannan calls into question the continued viability of Gossett and Kinsler, in which the majority rejected the McDonnell Douglas burden-shifting framework based on its incompatibility with Hannan. See Williams v. City of Burns, 465 S.W.3d 96, 112 n.15 (Tenn. 2015); Sykes, 343 S.W.3d at 26. Nevertheless, neither the continued viability of Gossett and Kinsler, nor the 2011 law amending Tennessee Code Annotated sections 4-21311, 50-1-304, and 50-1-701 as to "causes of action accruing on or after” its effective date of June 10, 2011, are at issue in this interlocutory appeal. See Act of June 10, -2011, ch. 461, 2011 Tenn. Pub. Acts 1227, We decline to address these questions unless and until they are presented in an appropriate case.
. The dissent mischaracterizes our holding as concluding that Rh-sensitization does not under any circumstances qualify as a com-pensable injury and asserts that, in so holding, we are out of step with "several federal and state courts,” which have recognized the cause of action. Actually, we are assuining for purposes of this appeal, that Rh-sensitization may qualify as a compensable injury so long, as damages are proven to a reasonable certainty. Furthermore, the dissent's assertion that “several federal and state courts” have recognized the viability of such a cause of action is questionable, at best, given that the assertion is supported by citations to a single state supreme court decision arid three federal district court decisions. Some of these decisions aré also factually distinct from this case. For example, in the Arizona- Supreme Court decision, the lawsuit was brought after the Rh-sensitized mother’s second child had been stillborn as a result of her undiscovered Rh-sensitization. Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961, 963 (1984), One of the federal district court decisions involved beryllium sensitization, not Rh-sensitization. Harris v. Brush Wellman Inc., No. CIVA1:04CV598HSORHW, 2007 WL 5960181, at *12 (S.D. Miss. Oct. 30, 2007). Another of the cited federal district court decisions involved a woman who sued the manufacturer of RhoGAM, alleging that the dosage she. received was defective and failed to prevent her Rh-sensitization. Alberg v. Ortho-Clinical Diagnostics, Inc., No. 98-CV-2006, 2000 WL 306701, at *1 (N.D.N.Y. Mar. 24, 2000). She alleged causes of action for negligence, breach of warranty, and strict products
. The Ryes did not request damages for past medical expenses in their complaint, although /'die memorandum of law the Ryes filed in the trial court mentioned that Mrs. Rye had been billed $343.00 for a medical evaluation/consultation with Dr. Michael Schneider. According to the Ryes’ deposition testimony, Dr. Schneider met with them after Mrs. Rye’s Rh-sensitizatiop. was discovered and explained the risks it posed for future pregnancies.
. Mrs. Rye also testified that she had previ - ously used birth control pills to treat certain
. We have not weighed the evidence, as the dissent contends. Rather, we have considered all of the undisputed facts in the record, unlike.the dissent, which has harvested from the record only those facts supporting its favored result.
. The dissent’s conclusion that a genuine issue of material fact exists is flawed because the dissent fails to apply correctly the factors articulated in Rogers.
. More to the point, I would not have granted the Defendants permission to appeal in the first place. Because section 20-16-101 does not apply to the Ryes’ claim, the Court of • Appeals applied the correct standard for summary judgment, and neither of the parties raised on appeal the continued vitality or wisdom of the Byrd/Hannan standard.