Latest Alabama Supreme Court Ruling on Experts

On November 18, 2011, the Alabama Supreme Court issued an opinion in Springhill Hospitals, Inc. v. Critopoulos, No. 10909646.  After undergoing a cardiac-artery-bypass graft, Critopoulos was placed in the cardiac-recovery unit, where a nurse noticed that he had developed a decubitus ulcer.  A med-mal lawsuit was brought against several nurses and the hospital.  One contention was that the nurses allowed the development of the ulcer because they did not properly move or rotate him while he was bed-ridden.  The trial court rejected the defendants’ challenges that the plaintiff’s nursing expert was not “similarly situated.”  The jury found for the plaintiff as to all but one nurse and awarded $300,000 in damages.  The Supreme Court found that the expert did not qualify as “similarly situated.”  The expert was amply qualified in the area of wound-care management and pressure-ulcer prevention; she was a “big wig” at Duke Hospital. 

The Supreme Court concentrated on the fact that the care was rendered in a cardiac-recovery unit and involved the concerns and/or risks associated with a fresh post-CABG patient. They also honed in on the point that the expert, “had never seen an immediate post-CABG patient for preventive measures; that she had provided hands-on treatment to fresh postoperative patients only for would care; and that, at Duke, the cardiac-recovery nurses provided pressure-ulcer-prevention care for postoperative patients in the cardiac-recovery unit.”  The expert could not evaluate how unique factors in caring for this type of patient would influence decisions as to moving or rotating a patient.

This opinion demonstrates the need to have your expert look as much like the defendant healthcare provider as possible.  Critopoulos’s expert was clearly tops in the general field of pressure-ulcer prevention; still, the Supreme Court concluded that post-CABG patients are unique enough that the expert should be familiar with caring for such unique patients.  This opinion is consistent with a trend of opinions that hold that a generalist cannot qualify as a “similarly situated” healthcare provider when the defendant was practicing a specialized area of medicine.

Merck Wins Another Bellwether Fosamax Trial

Merck, manufacturer of the drug Fosamax, has declared itself the victor in the fifth bellwether trial concerning the product and a condition known as osteonecrosis of the jaw (“ONJ”). The Whitehouse, N.J., drug maker is facing hundreds of cases in state and federal courts, generally alleging that use of Fosamax can cause a jaw-destroying condition known as ONJ and that Merck failed to properly warn of this risk.

On October 3, Merck issued a press release announcing that “a federal court jury in New York found in its favor in the Secrest v. Merck case, rejecting the claim of a Florida woman who blamed her dental and jaw-related problems on her FOSAMAX use.” Secrest v. Merck (case no. 1:06-cv-06292)—a so-called bellwether lawsuit—is the fifth lawsuit involving claims that Fosamax caused a plaintiff to suffer ONJ to go to trial. Merck, the developer and manufacturer of the brand-name drug, is currently defending thousands of Fosamax cases, including cases alleging that the drug caused users to suffer femur fractures, as well as ONJ cases. The cases involving femur fractures were recently transferred to a separate MDL.

Merck won three of the first four bellwether trials in the ONJ MDL. The first case to be tried to a verdict, Maley v. Merck, resulted in a defense verdict for Merck in May 2010; the second case to be tried to a verdict, Boles v. Merck, initially resulted in a mistrial in September 2009 after the jury was unable to reach a unanimous verdict and a retrial of that case in June 2010 resulted in a plaintiff verdict-which was later reduced by Judge Keenan and which Merck intends to appeal after the damages portion of the case is retried; the third case to be tried to a verdict, Graves v. Merck, resulted in a defense verdict for Merck in November 2010; and the fourth case to go to trial, Rosenberg v. Merck, which was tried in the Superior Court for Atlantic County, New Jersey, resulted in a defense verdict for Merck in February 2011.

The outcome is significant because bellwether trials are used to assist attorneys to evaluate similar cases for determining settlement talks and strategies. As of June 30, 2011, there were about 1,650 lawsuits, including approximately 2,050 plaintiff groups, that have been filed in federal and state courts.

Recent Alabama Opinion Regarding Contributory Negligence

In Lafarge North Am., Inc. v. Nord, No. 109062, six justices found that Nord was contributorily negligent as a matter of law; Malone, Woodall and Main dissented.

The records shows that Nord regularly picked up loads of cement bags at Lafarge’s cement packhouse, which had two loading bays.  Drivers would park their trucks in one of two bays and walk to an office “to receive [a] load assignment.”  A Lafarge employee, using a forklift, would load pallets of bags onto the truck’s flatbed.  Nord had parked his truck in the second bay and walked to the office.  Upon leaving the office and as he was walking across the first bay, the forklift operator backed up and ran over Nord’s foot.  The jury awarded Nord $125,000 in compensatory damages and $75,000 in punitive damages. 

All nine justices agreed that there was not even “substantial” evidence of wantonness.  The six-justice majority relied on the following in finding that Nord was contributorily negligent as a matter of law:  (1) due to his frequently picking loads at this packhouse, Nord was well aware that forklifts operated in the loading zone; (2) Nord knew that forklifts were dangerous machines that could injure a pedestrian; (3) Nord testified that he knew that it was a good safety practice to get the attention of a forklift operator when entering an area where a forklift was in operation before attempting to walk through that area and (4) Nord indicated that he could have taken an alternative route. 

The six-justice majority concluded that, with appreciation of the danger, Nord voluntarily entered into a dangerous situation.  Arguably, the most germane fact was that Nord failed to get the forklift operator’s attention despite Nord’s appreciation that the operator might not have known of Nord’s presence.

I must presume that we will see defendants rely on this opinion in future summary-judgment motions.  There was evidence that the forklift operator was not looking backwards as he was backing up but the majority concentrated on Nord’s failure to get the operator’s attention, as opposed to taking an alternative route.