Alabama Supreme Court Ruling on Rule 27

In Ex parte Ferrari, 2015 Ala. LEXIS 13 (Ala. Feb. 6, 2015), Ferrari was employed by DR Horton as a land-acquisition manager for its Gulf Coast division.  DR Horton began to suspect that Ferrari was supplying confidential information to third parties and was receiving, through his wife and/or LLCs created by the couple, monetary compensation.  DR Horton conducted interviews of Ferrari and a third party which conferred what was suspected.  Instead of immediately suing Ferrari, DR Horton filed a petition pursuant to Rule 27(a) of the Alabama Rules of Civil Procedure seeking to depose Ferrari and his wife, to propound written interrogatories and to request production of documents, including tax returns.  DR Horton acknowledged that it had justification to commence a lawsuit but needed the requested discovery in order to determine all of the causes of action which might be asserted.

In the opinion, the Alabama Supreme Court held that a trial court must conduct a hearing before permitting any pre-suit discovery and that Rule 27(a) did not permit the propounding of written interrogatories.  Instead, the rule allows for depositions, independent medical examinations and production of documents.

More significantly, the Alabama Supreme Court overruled the holding in Ex parte Anderson, 644 So. 2d 961 (Ala. 1994), that Alabama’s Rule 27(a) does not limit pre-action discovery to perpetuating evidence.  This overruling “returns” Alabama law to the law in other jurisdictions.  The purpose of Rule 27(a) is to preserve or perpetuate testimony or evidence which might be lost before a lawsuit may be commenced, for example, when a party or witness is near death, requiring the conducting of a deposition prior to such death, or when there is a “real” fear that documents or physical things might be destroyed.  Rule 27(a) should not be used as an “investigative” tool to determine (or verify) if there is a viable cause of action or a device to help determine what causes of actions to assert.  As noted in the opinion:  “DR Horton did not offer in its petition, and it does not attempt to offer in response to the Ferrari defendants’ mandamus petition, any reason to perpetuate the testimony of the Ferrari defendants.  Instead, DR Horton openly stated in its Rule 27(a) petition and at the March 25, 2014, hearing that it sought preaction discovery to determine what other causes of action it may have against the Ferrari defendants besides breach of fiduciary duty against Peter Ferrari.”

The Alabama Supreme Court gave no significance to DR Horton’s suggestion that allowing such discovery would save time and resources in a litigation.  Obviously, the Alabama Supreme Court determined that Rule 27(a) has a very specific purpose, namely, perpetuating testimony or evidence which is in real danger of being lost, and that Rule 27(a).  Rule 27(a) was never intended as a device by which a party may obtain information in order to decide whether to institute a lawsuit.

What the opinion leaves as unclear, however, is if Rule 27 can be used to issue a subpoena to obtain documents that may only be obtained via subpoena. For example, a law enforcement agency will not produce a traffic homicide report without a subpoena and the Alabama Department of Forensic Sciences will not release an autopsy without a subpoena. Rule 27 subpoenas are oftentimes a vital tool in helping to determine, unlike in Ex Parte Ferrari where the party wanted to know how many causes of action they could claim in their Complaint, but if there is even a cause of action.

Major Victory for Plaintiffs Against Generics Out of Alabama Supreme Court

               On January 11, 2013, the Alabama Supreme Court issued an opinion in Weeks v. Wyeth, a matter pending in the Middle District of Alabama.  Wyeth filed an application for rehearing.  On August 15, 2014, the Supreme Court overruled the rehearing application but substituted a new opinion.  In other words, the January 11, 2013 “outcome” remained unchanged.

            The Middle District posed the following certified question:  “Under Alabama law, may a drug company be held liable for fraud or misrepresentation (by misstatement or omission), based on statements it made in connection with the manufacture or distribution of a brand-name drug, by a plaintiff claiming physical injury from a generic drug manufactured and distributed by a different company?”.  In an opinion written by Justice Bolin, the Supreme Court answered in the affirmative.  This “outcome” is contrary to similar rulings in other jurisdictions.

            Weeks’s treating physician wrote a prescription for Reglan but did not specify that the pharmacist must fill the prescription with “brand-name” Reglan.  As permitted by a state statute and encouraged by medical insurers, Weeks’s pharmacist provided him with a generic version of Reglan, which Weeks ingested.

            Chief Justice Moore, who was not on the Court on January 11, 2013, wrote a dissent in which he advocated that the Court should not have accepted the invitation to answer the posed certify question because there was an insignificantly developed factual record.

            Wyeth’s position appeared to be that Weeks was seeking to prosecute AEMLD claims in a situation where he was injured after taking a drug which was not manufactured by Wyeth.  Justice Bolin wrote that, as to Wyeth, Weeks was not prosecuting any AEMLD claim, predicated on the prescribed drug being defectively.  Instead, Weeks’s theory was that Wyeth’s fraudulent conduct lead to Reglan being prescribed in the manner that it was.

            Justice Bolin noted (a) that, like many states, the Alabama Legislature enacted a law which allowed pharmacists to substitute a generic version of a prescribed “brand name” drug unless the physician mandates that the prescription be filled with the “brand name” manufacturer’s drug and (b) that health insurers and others prefer filling prescriptions with generics and there are economic reasons why a patient may be willing to accept a generic over a brand name.  Justice Bolin also outlined the FDA rules and regulations which prevent generic manufacturers from providing information and warnings different from those approved for dissemination by the brand-name manufacturer.  In other words, the brand-name maker, and not the generic company, controls the information upon which physicians rely in choosing to prescribe the subject drug. 

            The opinion expressly stated that the Court was not ruling on the ultimate merits of the case.  The Court merely found that Weeks could pursue this theory despite having not ingested Wyeth’s product.  [This may explain Chief Justice Moore’s dissent because there were no facts developed as to whether the prescribing physician relied on Wyeth-supplied information in deciding to prescribe Reglan in the manner in which he did.]

            This opinion appears to promote the notion that brand-name drug manufacturers should be held legally accountable if they made misrepresentations or omissions which resulted in physicians “mis-prescribing” a drug.  Brand-name manufacturers know that, when a physician prescribes a drug by its brand name, the prescription may be filled with a generic version and that physicians may rely on the information which can only come from the brand-name manufacturer because the generic manufacturer typically cannot provide any differing information.

Alabama Supreme Court Opinion On Service By Publication

            Volcano Enterprises, Inc. v. Rush, No. 1121185, provides a cautionary tale about serving a defendant by publication. 

           Plaintiffs sued an allegedly intoxicated driver for causing an accident and Volcano Enterprises, a bar licensee, under the Dram Shop Act.  Initially, the plaintiffs sought to serve Volcano Enterprises’ designated registered agent for service by certified mail.  When the certified mail was returned, the plaintiffs engaged a private process server.  The server discovered that the agent’s listed address had been destroyed by a tornado.  (Unfortunately, it turned out that the agent was still receiving mail at that address; additionally, there was no indication that the process server investigated where the agent was living.)  On three or four occasions, the process server went to the bar looking for the agent/operator.  (Unfortunately, the Supreme Court found that the process server’s efforts were quite minimal.) 

            The trial court granted the plaintiffs’ request to serve Volcano Enterprises by publication; the plaintiffs complied with the formalities of service by publication.  Volcano Enterprises filed no answer.  A trial resulted in the entries of a $3.25 judgment against the driver, despite his defense, and a $37 million judgment against Volcano Enterprises.  Within 30 days of the entry of the judgment, Volcano Enterprises filed a Rule 59(e) motion in which it contended that the judgment should be vacated because it was not properly served with process.  (Volcano Enterprises alternatively requested a remittuter of the judgment.) 

            The Supreme Court held that the plaintiffs failed to meet their burden of demonstrating that Volcano Enterprises’ registered agent had avoided service, a requirement for being permitted to serve by publication.  The process server’s efforts were extremely minimal and did not show that the agent was actively hiding or endeavoring to avoid being served.  The Supreme Court discounted that there was some indication that Volcano Enterprises may have received some of the pleadings filed prior to the trial. 

            The lesson is clear that, before requesting to serve a defendant by publication, a plaintiff must exhaust all reasonable attempts at perfecting “normal” service, including searching for new addresses for the defendant, and must be able to proffer sufficient evidence that the defendant is actively avoiding service, as opposed to, just being difficult to track down.  

Alabama Supreme Court Recent Decision on Bad-Faith Leaves Little Left

            In what was a major decision by the Alabama Supreme Court, the tort of bad-faith has almost been cut to the bone in Alabama. The case is State Farm Fire & Cas. Co. v. Brechbill, No. 111117 (Ala. Sept. 27, 2013), and the holding will adversely affect bad-faith-failure-to-investigate claims when the insurer obtained a report from an engineer prior to its denial of the claim. They basically have given every insurance company a plausible denial defense.

            The facts of the case are as such: Brechbill claimed that his home suffered interior damage due to a windstorm event.  State Farm’s retained engineer generated reports stating that the interior damage was due to other non-covered causes, for example, settling and poor construction.  Brechbill sued State Farm claiming both normal bad faith and abnormal bad faith.  When State Farm sought a summary judgment as to the normal bad-faith claim, Brechbill offered no “serious” opposition and the trial court granted the requested summary judgment because there was “no genuine issue of material fact about whether or not State Farm had a reasonably legitimate or arguable reason for refusing to pay the claim.”  The trial court denied State Farm’s request for a summary judgment as to the abnormal bad-faith claim, as well as, State Farm’s JML motions during the trial.  The jury found abnormal bad faith and awarded Brechbill $150,000 as to that claim.

            On appeal, the Alabama Supreme Court held that, if the insured could not prove “the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason),” then, the insured cannot prevail on a failure-to-properly-investigate claim.  “State Farm may or may not have perfectly investigated (or reinvestigated) Brechbill’s claim to his satisfaction, but perfection is not the standard here.  ‘Alabama law is clear:  … regardless of the imperfections of the insurer’s investigation, the existence of a debatable reason for denying the claim at the time the claim was denied defeats a bad faith failure to pay the claim.’”

            A failure-to-investigate claim is apparently limited to situations where the insurer conducts no investigation prior to its denial of the claim.  An insurer cannot create a debatable reason post-denial.

 

 

 

In Admiral Ins. Co. v. Price-Williams, No. 1110993, Price-Williams was attacked and beaten at the Kappa Nu house (Kappa Nu being the local chapter of Kappa Sigma) at the University of South Alabama.  His attackers were Howard, Dean and Baber.  Howard was not a Kappa Nu member, Dean was the chapter president and Baber was the chapter vice-president. 

In addition to suing Dean and Baber because of their involvement in the actual attack, Price-Williams asserted that both were liable for wrongfully failing “to implement the risk-management program Kappa Sigma required of local chapters, which program, Price-Williams alleged, would have either prevented the assault entirely or, at a minimum, limited its duration and intensity.” 

After a judgment was obtained against Dean and Baber and Admiral Insurance refused to indemnify them as to the judgment, Price-Williams brought a “direct-action” against the insurer.  The subject Admiral CGL policy contained the typical “assault and/or battery” exclusion. 

The Alabama Supreme Court held that this exclusion applied not only to claims predicated on Dean and Baber’s participation in the actual attack despite non-insured Howard’s participation but also applied to the claims that Dean and Baber were remiss in failing to implement the risk-management program.  As to the latter, the Supreme Court observed that Price-Williams suffered a “single indivisible injury” because it was impossible to “segregate” an injury suffered as a result of the attack and an injury suffered because there was no risk-management program.  Therefore, the exclusion applied and Admiral had no obligation to indemnify or pay the judgment.

 

Recent U.S. Supreme Court Opinion on Alabama Case

                In 2010, in Weatherspoon v. Tillery Body Shop, Inc., 44 So. 3d 447 (Ala. 2010), Weatherspoon’s vehicle was towed from a restaurant parking lot by Tillery as an abandoned vehicle.  Without making any effort to contact Weatherspoon, Tillery sold the vehicle.  Weatherspoon sued Tillery, not for anything related to the towing but for conduct occurring after the towing was completed.  The Alabama Supreme Court held that all of Weatherspoon’s claims were preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) and the ICC Termination Act of 1995 (“ICCTA”). 

 

                On May 13, 2013, in Dan’s City Used Cars, Inc. v. Pelkey, 2013 WL 1942398, the United States Supreme Court specifically abrogated the Weatherspoon opinion.  Like Weatherspoon, Pelkey was towed away and Pelkey’s claims against Dan’s City did not involve the towing but Dan’s City’s conduct in selling the vehicle.  There was federal preemption as to state law provisions “related to a price, route, or service of any motor carrier … with respect to the transportation of property.”  Yet, “state-law claims stemming from the storage and disposal of a car, once towing has ended, are not sufficiently connected to a motor carrier’s service with respect to the transportation of property to warrant preemption ….”  2013 WL 1942398 at *4 (emphasis in original).

 

               Obviously, the United States Supreme Court, with no dissenters, concluded that the Alabama Supreme Court had over-extended the preemptive effect of the FAAAA and ICCTA to cover matters totally unrelated with the actual towing, the transportation of property.

In Alabama, a Pre-Filing Settlement Agreement Can Survive Death

In Nationwide Mutual Ins. Co. v. Wood, No. 1111486 (Ala. Feb. 22, 2013), the Alabama Supreme Court ruled on an interesting fact scenario and I believe ruled correctly.

On March 16, 2011, D.V.G., a minor, was injured while a passenger in a vehicle being driven by K.C.T.  Apparently, the accident was due to K.C.T.’s negligence.  K.C.T.’s liability carrier was Nationwide and D.V.G. was entitled to UM/UIM benefits under a policy issued by State Farm.  As D.V.G’s attorney, Stan Brobston contacted both insurers.  Nationwide agreed to pay policy limits ($50,000), as did State Farm ($50,000).  While no lawsuit was filed, everyone agreed that, through a pro ami hearing, a court would have to approve the settlement since D.V.G. was minor.

On September 15, 2011, before any pro ami hearing, D.V.G. died as a result of injuries sustained in an unrelated motor vehicle accident.

Nationwide and State Farm instituted a dec action in federal court asking the federal court to determine the status of the settlement agreement.

The Alabama Supreme Court answered the following certified question in the affirmative:  “Under Alabama law, is an insurance company bound to a settlement agreement negotiated on behalf of an injured minor, if that minor dies before the scheduling of a pro ami hearing which was intended by both sides to obtain approval of the settlement?”

The Alabama Supreme Court held that the settlement created a contract and any contract claim survived D.V.G.’s death. They reasoned that as long as D.V.G or her representative did not disavow the settlement, the settlement was enforceable against the two insurers.

D.V.G.’s death did not make it impossible to conduct the pro ami hearing.  The opinion noted that, while D.V.G’s mother wanted to have a pro ami hearing, the two insurers refused to cooperate.  The Alabama Supreme Court was not going to allow the insurers to prevent the conducting of a pro ami hearing and, then, argue that the settlement could not be enforced until a pro ami hearing was held.

The Alabama Supreme Court declared that the two insurers could not avoid the settlement simply because D.V.G. died before the pro ami hearing was held. 

 

Suprising Result From Alabama Supreme Court on Generic Drug Warnings

              Last month, the Supreme Court of Alabama issued a suprising opinion related to generic drug manufacturers' warnings. In Wyeth, Inc. v. Weeks, ___ So. 3d ___, 2013 WL 135753 (Ala. Jan. 11, 2013), Weeks alleged that he suffered injuries as a result of his long-term use of the prescription drug metoclopramide, which is the generic form of the brand-name drug Reglan.  It was undisputed that Weeks ingested the generic form of the drug.  In this opinion, the Alabama Supreme Court addressed the following certified question:

            Under Alabama law, may a drug company be held liable for fraud or misrepresentation (by misstatement or omission), based on statements it made in connection with the manufacture or distribution of a brand-name drug, by a plaintiff claiming physical injury from a generic drug manufactured and distributed by a different company?

 

            In an 8 to 1 decision, the Alabama Supreme Court answered:

            …  Under Alabama law, a brand-name drug company may be held liable for fraud or misrepresentation (by misstatement or omission, based on statements it made in connection with the manufacture of a brand-name prescription drug, by a plaintiff claiming physical injury caused by a generic drug manufactured by a different company.  Unlike other consumer products, prescription drugs are highly regulated by the FDA.  Before a prescription drug may be sold to a consumer, a physician or other qualified health-care provider must write a prescription.  The United States Supreme Court in Wyeth v. Levine recognized that Congress did not preempt common-law tort suits, and it appears that the FDA traditionally regarded state law as a complementary form of drug regulation.  The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge; state-law tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly and serve a distinct compensatory function that may motivate injured persons to come forward with information.  Wyeth v. Levine, 555 U.S. at 578-79.

 

            FDA regulations provide that a generic-drug manufacturer’s labeling for a prescription drug must be exactly the same as the brand-name-drug manufacturer’s labeling.  The Supreme Court in PLIVA held that it would have been impossible for the generic-drug manufacturers to change their warning labels without violating the federal requirement that the warning on the brand-name version, preempting failure-to-warn claims against generic manufacturers.

 

            In the context of inadequate warnings by the brand-name manufacturer placed on a prescription drug manufactured by a generic-drug manufacturer, it is not fundamentally unfair to hold the brand-name manufacturer liable for warnings on a product it did not produce because the manufacturing process is irrelevant to misrepresentation theories based, not on manufacturing defects in the product itself, but on information and warning deficiencies, when those alleged misrepresentations were drafted by the brand-name manufacturer and merely repeated by the generic manufacturer.

 

            This opinion includes discussions of (a) Alabama’s Pharmacy Act which permits a pharmacist to select in place of a brand-name drug a less expensive generic version and insurance plans’ promoting of using generics; (b) FDA’s regulations; (c) prior conflicting opinions on this question; and (d) the learned-intermediary doctrine.  As to the last item, the Alabama Supreme Court observed that Weeks “must show that the manufacturer failed to warn the physician of a risk not otherwise known to the physician and that the failure to warn was the actual and proximate cause of the patient’s injury,” that is, “but for the false representation made in the warning, the prescribing physician would not have prescribed the medication to his patent.”

Latest Alabama Supreme Court Ruling on Nursing Home Care

On Friday, October 19, 2012, the Alabama Supreme Court issued Hill v. Fairfield Nursing & Rehabilitation Center, LLC.  Hill suffered a broken leg while being helped out of bed by a nursing assistant at the Fairfield Nursing Home.  Hill was 85 at the time of the fall and had been a Fairfield patient since 1992.

In addition to suing Fairfield, Hill sued a number of other entities seeking to “pierce the corporate veil.”  Prior to trial, the trial court granted summary judgments to these other entities.  At the close of Hill’s case-in-chief, the trial court granted Fairfield’s JML motion.  The Supreme Court reversed both the JML and the summary judgment.

Hill’s designated standard-of-care expert was Nelson, “a registered nurse since 1997, who had worked in skilled-nursing facilities and who had supervised both certified nursing assistants and licensed practical nurses.”  Fairfield contended that its physical-therapy department assessed or determined the measures to take when getting Hill out of bed and that because Nelson was not licensed, trained, or experienced in the field of physical therapy, she was not a similarly situated health-care provider.  The Supreme Court declared that Fairfield could not rely on its delegating “to its physical-therapy department responsibility for making patient-transfer assessments” because, “[u]ltimately, [Fairfield’s] position would allow any institutional medical provider to control the standard of care for which it will be held responsible simply by having some department within its corporate structure, rather than the law, select the standard of care applicable to various activities undertaken by its individual medical-provider employees.”   (Emphasis in original.)   Thus, Nelson could testify as to the standard of care applicable to the “certified nursing assistant in effecting a transfer of a patient such as Hill and as to whether [the assistant] met that standard in this case.”

Hill’s designated causation expert was Dr. Volgas, a board-certified orthopedic surgeon who treated Hill following the fall.  Fairfield contended that the broken leg could have been caused by her osteoporosis.  In responding to a question, Dr. Volgas acknowledged that “this fracture [could] have occurred prior to … falling at the nursing home” but proceeded to declare that this was not likely “because of the fracture pattern and because of where the fracture is.”  The Supreme Court held that Dr. Volgas’s testimony was sufficient to create a jury question as to whether the fall was the probable cause of this broken leg.

The opinion extensively discusses Alabama law regarding piercing the corporate veil and details the extensive evidence proffered by Hill.  Among other things, Fairfield owned no real property or significant personal property and carried only $25,000 in liability insurance.   The Supreme Court held that genuine questions were created as to whether Fairfield was the “alter ego” of the other entities.   

 

Alabama Supreme Court Ruling on Common-Fund Doctrine

In Ex parte State Farm Mut. Auto. Ins. Co., 2012 WL 4238631, Mitchell, a State Farm insured, was injured in an accident caused by Kirk, a Cotton States insured.   Mitchell retained an attorney who investigated the accident and wrote Cotton States seeking to settle for policy limits.  State Farm paid Mitchell (a) $5,000 in medical payments and (b) $7,992.90 in non-medical payments.  State Farm contacted Cotton States seeking reimbursement of the full $12.992.20 paid Mitchell; Cotton States acceded as to $7,992.90 of the demand but, as to the $5,000, declared that “the balance of the subrogation remains outstanding pending the settlement of the Bodily Injury claim with the insured and her attorney.”  State Farm wrote Mitchell’s attorney that State Farm did not him to assist in protecting its subrogation rights as to the $5,000.  Mitchell sued Kirk and State Farm.  When Mitchell and Cotton States reached a tentative settlement for $35,000, State Farm consented to the settlement but requested full reimbursement of the $5,000 payment for medical expenses.  On behalf of Kirk, Cotton States paid $30,000 to Mitchell and interpleaded $5,000 into court.  The trial court ruled that, the common-fund doctrine did not apply and that State Farm was entitled to the entire $5,000.  The Alabama Court of Civil Appeals reversed the trial court and held that the common-fund doctrine fund did apply and that Mitchell was entitled to a deduction for attorney fees and expenses.  The Alabama Supreme Court affirmed the Court of Civil Appeals.

 

The Supreme Court noted that Cotton States declined to meet State Farm’s direct subrogation demand for repayment of the subject $5,000.  Thus, Mitchell’s filed lawsuit would create a common fund from which State Farm’s subrogation right would be satisfied.

 

The Supreme Court rejected State Farm’s contention of “active participation,” an exception to applying the common-fund doctrine.  This exception arises if the insurer “actively assist its insured in the creation, discovery, increase or preservation of the common fund.”  The Supreme Court declared that “an insurance company’s limited appearance to protect its subrogation interest and no more will not shield the insurance company from the application of the common-fund doctrine.”  In other words, the insurer must do more than inform the insured’s attorney that his assistance is not wanted; instead, the insurer must actually do something that helps create the common fund.

 

The Supreme Court further found that there was no policy language that abrogated the application of the common-fund doctrine.

Alabama Supreme Court Ruling on Wrongful Death

In Boudreaux v. Pettaway, No. 1100281, deceased’s medical records clearly showed that she had numerous risk factors placing her in the category of patients with a high risk of pulmonary aspiration during the administration of anesthesia via routine intubation.  Despite those risk factors, a board-certified anesthesiologist and certified registered nurse anesthetist failed to review the medical records or physically examine the patient for the presence of aspiration risks.  The pair failed to employ the rapid-sequence induction process required for patients at risk for aspiration.  Patient aspirated bile into her lungs and died as a result of aspiration pneumonitis.

 

The jury awarded $20,000,000 in damages.  The plaintiff accepted the trial court’s remittance of $16 million, leaving a $4 million judgment.

 

Defendants appealed the denial of their motion for new trial.

 

Defendants suggested that they were entitled to a new trial because prospective jurors failed to answer questions asked during voir dire.   The Supreme Court agreed with the trial court’s determination that the questions were unclear and confusing.  The Supreme Court noted that the information the defendants claim was not disclosed were matters of public record.  The Supreme Court observed that the defendants had allowed individuals to sit on the jury who had disclosed information similar to what the subject jurors allegedly failed to disclose.

 

Defendants also sought a further remittitur.  The opinion addresses how Alabama wrongful-death cases are different from non-death cases.  In assessing the impact of the judgment on the defendants’ net worth, the trial court considered the defendants’ “bad-faith” action against their insurer.  Only Justice Murdock dissented to the other justices’ finding that the trial court properly considered the “bad faith” action in assessing the impact.

 

From reading the opinion, it is evident that the justices concluded that the anesthesiologist and nurse anesthetist were medically negligent and acted reprehensibly.  The anesthesiologist arrived at the hospital only minutes before the surgery.  At trial, the nurse anesthetist repeatedly admitted that he breached the applicable standard of care.

Alabama Supreme Court Ruling on Immunity

In Ex parte Walker, No. 1110436, Harris sued Walker, a Macon County Deputy Sheriff, following a motor-vehicle accident.  In his complaint, Harris factually alleged that, at the time of the accident, Walker “was engaged in the regular course and scope of his employment for the Macon County Sheriff’s Department.”  Because Harris was bound by this factual allegation in his complaint, the Supreme Court held that Walker enjoyed Sec. 14 immunity.

The Supreme Court rejected Harris’s attempted reliance on Ex parte Haralson, 853 So. 2d 928 (Ala. 2003), where the court concluded that a deputy sheriff would not enjoy Sec. 14 immunity if, at the time of the accident, he was not acting within the line and scope of his employment as a deputy sheriff.

Harris’s problem was that he had specifically alleged that Walker was acting within the line and scope of his employment as a deputy sheriff.

The Haralson opinion would be helpful if, at the time of the accident, while operating a “sheriff” vehicle, the deputy had deviated from his work to perform a personal errand or was not working or engaged in some policing activity.  If you are confronted with that scenario, the key would be to not factually allege that the defendant “was engaged in the regular course and scope of his employment as a deputy sheriff.”

Alabama Supreme Court Affirms Jury Award in Med-Mal Case

Today, in Hrynkiw v. Trammell, No. 1101099, the Alabama Supreme Court affirmed a judgment entered in a med-mal case. The jury awarded $1,650,000 to the injured patient and $500,000 as to wife’s loss-of-consortium claim.

Following a fusion surgery, Trammell experienced symptoms of cauda equine syndrome (“CES”).  Dr. Hrynkiw was immediately informed of the symptoms but waited ten days to perform a second surgery.  The second surgery provided no relief. Trammell was permanently partially disabled – “He has very limited mobility because of severe weakness in his hips and legs, and he is impotent and suffers from urinary and fecal incontinence.”

Trammell asserted both medical negligence in performing the initial surgery and post-operative medical negligence in not timely addressing the CES symptoms.  As to both assertions, Dr. Hash was Trammel’s expert witness.  On appeal, Hrynkiw argued that the post-operative claim should not have been presented to the jury because, as to the issue of causation, Dr. Hash’s testimony was pure speculation.  Apparently, Hrynkiw was making a good count/bad count argument in order to secure a new trial.

At trial, Dr. Hash detailed that timely addressing CES symptoms most often eliminated permanent CES or reduced the severity of the CES; that, by waiting more than 48 hours to perform the second surgery, Hrynkiw breached the standard of care; and that the breach probably caused harm to Trammell by worsening his outcome.  Dr. Hash relied on statistics that with timely care, 80% of patients make either a complete or partial recovery. 

Hrynkiw argued that, in his pre-trial deposition, Dr. Hash acknowledged that he could not guarantee the Trammel’s ultimate outcome would have been different if the second surgery had been done with 48 hours.  The Supreme Court rejected Hrynkiw’s argument in detail. 

Also, Hrynkiw argued that the trial court erred in allowing hearsay testimony under the learned-treatise exception.  Dr. Hash testified that he based his opinions on his professional experience and on the medical records, and did not rely on medical treatises.  Hrynkiw argued that the exception applies only if the expert relied on them in reaching his opinions.  The Alabama Supreme Court disagreed and found that, under Rule 803(18), medical treatises could be used to bolster the expert’s opinions.

The Birmingham News wrote an excellent piece on the jury trial about two months ago which was subsequently published on al.com. Click on the link below to read:

http://blog.al.com/businessnews/2011/03/22_million_jury_award_against.html

Alabama Supreme Court Opinion on Rule 56(c)(2) and the 10 Day Rule

In Tucker v. Scrushy, the plaintiffs filed a garnishment against Richard M. Scrushy Charitable Foundation. Among other things, the plaintiffs alleged that the Foundation was Scrushy’s alter ego. The Foundation filed an answer and the plaintiffs contested the answer. 

In a separate action, the plaintiffs sued the Foundation, asserting claims under the Alabama Uniform Fraudulent Transfer Act (“AUFTA”); no “alter ego” claim was made.  The Foundation moved for a partial summary judgment, asserting that the AUFTA claims were not timely brought.  Following being allowed to conduct additional discovery, the plaintiffs conceded that the AUFTA claims were not timely brought. 

On November 19, 2010, the plaintiffs filed a pleading (1) acknowledging that the AUFTA claims were timed barred and (2) requesting a trial as to the garnishment contest.  On December 1, 2010, on the eve of a hearing on the partial summary judgment motion, the Foundation requested a summary judgment in the garnishment contest.  After conducting a hearing, in which the plaintiffs objected to hearing any summary judgment motion in the garnishment contest, the trial court granted the Foundation a summary judgment in both matters. 

On appeal, the Supreme Court reversed, holding that the plaintiffs were deprived the required 10-day notice and had not waived the right to such notice.  The Supreme Court declared that the plaintiffs were prejudiced because they were deprived the ability to file a response within two days of the hearing.  The Supreme Court rejected the Foundation’s argument that there was no prejudice because, between the hearing and the entry of an order, the plaintiffs could have filed an opposition. The Supreme Court noted that the procedural rules do not provide for the filing of an opposition after a hearing.

Alabama Supreme Court Ruling on Supersedeas Bonds

In Ex parte Mohabbat, No. 1110503, a monetary judgment of $630,000 was entered for the Singhs and against the Mohabbats.  After the Mohabbats’ new-trial motion was denied by operation of law, the Mohabbats appealed.  In the trial court, the Mohabbats filed a motion to allow them to post a supersedeas bond of $100,000, as opposed to $787,500, the amount required by Ala. R. App. P. 8(a)(1), alleging that they did not have the resources to execute a $787,500 bond. The trial court granted the motion. 

In the Alabama Supreme Court, the Singhs filed a mandamus petition.  The Alabama Supreme Court granted the mandamus writ, holding that any motion seeking relief from the requirements of Rule 8(a)(1) must be first filed with the appellate court and that, on its own, a trial court lacks the authority to reduce the amount of the supersedeas bond. 

Thus, an appellant must move the Supreme Court to allow a reduced bond in order to stay execution on the judgment.  The Supreme Court may instruct the trial court to conduct a hearing to determine what the amount of the bond sought be but the initial request must be made to the Supreme Court.

Alabama Court Opinion Regarding Motions to Strike

In Ex parte Secretary of Veterans Affairs, No. 1101171 (Ala. Mar. 20, 2012), in support of his summary-judgment motion, the Secretary proffered an affidavit executed by Hiatt to which were attached a number of unsworn, uncertified, and unauthenticated documents.  In his opposing memorandum brief, Smith pointed out why Hiatt’s affidavit and the documents were inadmissible and should not be considered.  Smith was correct.  Yet, Smith never filed a motion to strike the affidavit and documents. 

Bolin wrote a majority opinion to which Woodall, Stuart, Main and Wise concurred.  The majority held that Smith waived his objection to the affidavit and documents when he failed to contemporaneously file a motion to strike. It was not sufficient to argue that the affidavit and documents were inadmissible in Smith's opposing memorandum brief. 

Murdock, with Parker and Shaw concurring, wrote a strong dissent. Murdock pointed out that, having to file a motion to strike along with objecting to the affidavit and documents in the opposing memorandum brief was redundant and placed “form” over “substance.” 

THEREFORE, IN THE FUTURE, IF THE MOVANT PROFFERS INADMISSIBLE EVIDENCE IN SUPPORT OF A MOTION, YOU MUST FORMALLY FILE A MOTION TO STRIKE IN ADDITION TO OBJECTING TO THE INADMISSIBLE EVIDENCE IN AN OPPOSING BRIEF. 

ALABAMA SUPREME COURT SHORTENS STATUTE OF LIMITATIONS FOR WANTONNESS CLAIMS

In a move that is more symbolic than practical, the Alabama Supreme Court issued an opinion earlier this month effectively holding that the statute of limitations for a wantonness claim is two years and not six years. The case, Ex parte Capstone Building Corporation, No. 10900966, overruled the holding in McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004). The Court found that McKenzie was wrongly decided and that there should be a return to the historical position of the two-year period. Chief Justice Cobb was the lone dissentor.

The Court’s ruling will be prospective only and will apply to any existing claims that would expire more than two years from the date of the decision. The Court ruled that, “litigants whose causes of action have accrued on or before [June 3, 2011] shall have two years from today’s date [June 3, 2011] to bring their action unless and to the extent that the time for filing their action under the six-year limitations period announced in McKenzie would expire sooner.” For example, if someone was injured in Alabama on June 3, 2006, they would only have until June 3, 2012, and not June 3, 2013, to file a claim.

The change has little practical effect because almost all wantonness claims are paired with negligence claims. The statute of limitations for a negligence claim in Alabama is currently two years.