06/15/2020 - US Expert WItness News: Expert Witness 'Not Needed' in Lawsuit Alleging Sexual Assault By Massage Therapist

Expert testimony was not required because the Judge deemed laypersons relying on their own common knowledge could determine whether the employer was negligent. The Tennessee Supreme Court has held that a plaintiff who alleged that a massage therapist sexually assaulted her during a massage did not have to present expert testimony to support her claim against the therapist’s employer for negligent, 'training, supervision, and retention'.

Under the Tennessee Health Care Liability Act, a person who sues a health care provider—such as a salon that provides massage services—for negligence has to prove the standard of care, a deviation from the standard of care, and that the deviation caused the injury. If the testimony of an expert witness is necessary to determine the negligence of the health care provider, the person filing suit must also file a certificate of good faith certifying that the lawsuit is supported by an expert witness and that there is a good faith basis for the suit.

Lataisha Jackson sued Gould’s Day Spa & Salon in the Shelby County Circuit Court claiming that Charles Anthony Burrell, a massage therapist for Gould’s, sexually assaulted her during a massage. Gould’s had received prior complaints from customers that Mr. Burrell had acted inappropriately while performing massages and made them feel uncomfortable. Ms.Jackson claimed that Gould’s was negligent in training, supervising, and allowing Mr. Burrell to continue to perform massages. She supported her claim with evidence of her assault and the previous customer complaints. Ms. Jackson claimed that expert testimony was not necessary to prove her claims against Gould’s, and for that reason, she did not file a certificate of good faith with her lawsuit.

The circuit court dismissed Ms. Jackson’s lawsuit based on her failure to file a certificate of good faith. The Court of Appeals affirmed. The Supreme Court granted review of Ms. Jackson’s case.

In the unanimous opinion, authored by Justice Sharon G. Lee, the Tennessee Supreme Court vacated the circuit court’s ruling, concluding that an expert witness was not required because an ordinary layperson could understand that a salon may be negligent in its training, supervision, and retention of a massage therapist who sexually assaults a customer during a massage when the salon knew about
the massage therapist’s prior inappropriate actions. The Court held that because expert testimony was not necessary, Ms. Jackson did not need to file a certificate of good faith and her lawsuit should not have been dismissed on that basis.

To read the opinion of the Court in Jackson v. Burrell, authored by Justice Sharon G. Lee, please visit the Opinions section of tncourts.gov.