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January 31, 2022

Withdrawal of Voluntary Dismissals

Case:   George Gary Ingram v. Dr. Michael Gallagher et al.

Facts:   In this healthcare liability action, the plaintiff initially sued the doctor and the hospital. The plaintiff voluntarily dismissed the action without prejudice against the hospital. The doctor subsequently filed an answer to the complaint, stating that the action should be dismissed under the GTLA because the hospital, a governmental hospital entity and the doctor’s employer, was not a party to the action. Shortly thereafter, the plaintiff filed a “Motion to Alter or Amend,” seeking to set aside the Trial Court’s order of dismissal in order to withdraw his voluntary dismissal of the hospital as a party. The Trial Court denied the plaintiff’s motion to alter or amend, determining that the voluntary dismissal order was a final order and that the plaintiff knew about the doctor’s employment with the hospital prior to the voluntary dismissal.

Appellate Decision:   The intermediate court reversed, holding that the Trial Court erred by treating the plaintiff’s motion as a Tennessee Rule of Civil  Procedure 60 motion,  instead of a motion to revise pursuant to Rule 54.02. The intermediate court further held the Trial Court erred by denying the plaintiff’s motion to revise the non-final order of voluntary dismissal.

Review Granted:   November 17, 2021.

Prediction:   Ben thinks the Supreme Court will affirm the intermediate court’s ruling for the reasons stated therein and reverse the Trial Court’s denial of the plaintiff’s motion to alter or amend.