By Jane Salem, staff attorney, Nashville

Just in time for our upcoming continuing legal education session about summary judgment, the Appeals Board has released an opinion again emphasizing the importance of following the rules—specifically, Rule 56.03 about the statement of undisputed material facts.

The opinion, Craig Cable v. Conagra Foods Packaged Foods Company, Inc., also holds that where an employer seeks summary judgment based on the asserted lack of permanent impairment, part of the employer’s burden of production is to show, through specific references to the record, that the employee has been placed at maximum medical improvement for every condition that arose primarily out of the work accident. 

Facts

In 2021, Cable reported pain in his shoulder while working on an assembly line. He treated with several doctors, but mostly with Dr. Adam Smith, an orthopedic surgeon. Cable also saw a pain management physician and neurosurgeon. In August 2022, the neurosurgeon assigned no impairment and placed Cable at maximum medical improvement. 

After an expedited hearing, the trial court held Cable was likely to succeed at trial in proving his injury was primarily related to work. The court later entered a scheduling order with deadlines to identify expert witnesses and file expert proof.

Conagra filed a motion for summary judgment, alleging that Cable didn’t meet those deadlines and therefore couldn’t prove a compensable claim. Cable filed a response stating that he’d complied, since he stated an intent to rely on Dr. Smith at previous status hearings and was trying to get a C-32 from him. The Court granted Cable time to pursue that evidence and held the rest of the motion in abeyance. Conagra didn’t appeal.

The parties then deposed Dr. Smith, who testified that Cable’s injury arose primarily out of his employment and he needed continued medical care, but he retained no permanent impairment. Dr. Smith also said that he’d referred Cable for injections by the pain-management specialist and noted that if he had his way, Cable would return for more of them.

Conagra renewed its motion for summary judgment, asserting it was now a motion for partial summary judgment due to Dr. Smith’s testimony about compensability, but that it had negated an essential element, the lack of any evidence of permanent impairment. To support the renewed motion, Conagra filed an updated brief and Dr. Smith’s deposition transcript.

The court denied the motion, and Conagra appealed.

The Opinion

Conagra argued the judge erred because Cable was unable to prove an essential element of the case: any permanent impairment causally related to his compensable work injury. Conagra also contended that Cable reached maximum medical improvement in August 2022 and pointed out that Cable intended to rely on Dr. Smith’s opinion at trial.

The Board began by reviewing Conagra’s statement of undisputed material facts filed with the initial summary judgment motion. The statement listed three facts, all centered around whether Cable timely disclosed Dr. Smith.

The Board pointed out that Conagra hadn’t appealed the summary judgment denial about the disclosure, nor had it filed a new statement of undisputed material facts discussing impairment or maximum medical improvement.

The Board cited longstanding case law reminding that statements of undisputed material facts:

“[A]re not merely superfluous abstracts of the evidence. Rather, they are intended to alert the court to precisely what factual questions are in dispute and point the court to the specific evidence in the record that supports a party’s position on each of these questions. They are, in short, roadmaps, and without them the court should not have to proceed further, regardless of how readily it might be able to distill the relevant information from the record on its own.”

The Board reasoned that, although Conagra’s supplemental brief supporting its motion for partial summary judgment argued that Dr. Smith testified that Cable didn’t have a permanent impairment, Conagra didn’t file a supplemental statement of undisputed facts in compliance with Rule 56.03. Therefore, Conagra’s filings in support of its motion for summary judgment were deficient, and it neither negated an essential element of the claim nor did it demonstrate that Cable’s evidence at the summary judgment stage was insufficient to prove his claim.

Since Conagra agreed the claim was compensable based on Dr. Smith’s testimony, that mooted the statement of undisputed facts. If Conagra had wanted to pursue summary judgment based on another issue, “the onus was on Employer to file a motion (or amend its pending motion) in compliance with Rule 56.”

The Board concluded, “In the absence of a statement of material undisputed facts as required by Rule 56.03 of the Tennessee Rules of Civil Procedure, Employer was unable to meet its burden of production under Rule 56. Accordingly, the burden of proof did not shift to Employee to establish disputed issues of material facts.”

The Board reminded that Rule 56 allows some flexibility on procedural requirements, but deviating from them should be rare. Citing Bobo v. City of Jackson, they wrote, “Although the trial court may waive the requirements of Rule 56.03 in an appropriate case, we caution trial courts that the nonmoving party in a summary judgment proceeding should be sufficiently apprised of the moving party’s basis for summary judgment.” That wasn’t the case here.

Further, although Conagra argued Cable had reached maximum medical improvement, it hadn’t offered any statements of undisputed fact to that effect or included references to the record supporting that statement.

“[W]e conclude that in cases where an employer files a dispositive motion based on the asserted lack of permanent medical impairment, part of the employer’s burden of production at the summary judgment stage is to establish, through specific references to the record, that the employee has been placed at maximum medical improvement for every condition that arose primarily out of the work accident.”

Therefore, Conagra didn’t meet its initial burden of production at the summary judgment stage under Rule 56. The burden never shifted to Cable to prove the existence of disputed issues of material fact, and the denial was appropriate.

Takeaways

Remember, I’m a staff attorney, not a judge. These are just my impressions, in a blog post. Please read the case! But to me, three messages emerge.

First, the statement of undisputed material facts is a critical roadmap. Moving parties, take care when crafting them, and if it’s “supplemental,” update them. For defending parties, scrutinize them closely. If you’re not adequately apprised of the alleged basis for summary judgment, reflect that in your response.

Second, when seeking summary judgment based on the lack of permanent impairment, part of the employer’s burden of production is to show through specific references to the record that the employee is at maximum medical improvement for every condition that arose primarily out of the work accident.

Third, summary judgment motions are complicated! Prevailing on them requires close adherence to Rule 56 and the appropriate facts and law.

For help on this last point, remember to attend the November 13 session, hosted by Judges Dale Tipps and Lisa Lowe. Here’s the link to register.

Radnor Lake in Nashville is always beautiful, but’s magical in the fall. Photo by the author.