A Recent Alabama Federal Court Opinion

Here is a good pleading lesson from Abercrombie v. Lowe’s Home Centers, Inc., 2012 WL 2383503 (M.D. Ala. June 25, 2012). 

Abercrombie sued Countertop Visions with the intention of holding Countertop Visions vicariously liable for the acts of its employees in the course of their work, namely, the employees taking her jewelry while doing remodeling work at her home.  Yet, in the factual allegations in her complaint, Abercrombie did not specifically allege that the theives were Countertop Visions’ employees acting within the line and scope of their employment or for the benefit of their employer. 

The Senior District Judge dismissed Countertop Visions but gave Abercrombie time to amend her complaint to allege the required facts.  The lesson is that, in federal court, you need to make exact factual allegations that correspond to the elements of the asserted cause of action because simple notice pleading is no longer allowed.

ASR Total Hip Replacement: A Painful Fail?

Trainee Orthopedic Surgeon David Langton from Newcastle University in the UK has dedicated the last three years of his life studying metal on metal hip replacements, specifically the ASR model, in an effort to attain his PHD. He believes that there is a problem with the configuration of the metal on metal hip replacement, namely the size of the cup. This causes wear to take in the "ring of the cup". "Chromium Cobalt ions concentrate in the hip fluid" and are also released into the blood. This subsequent accumulation of metal ions is "directly related to soft tissue damage and bony damage around the joints". His study has found that hip pain and groin pain are often noted side effects from these metal on metal hip replacements.
Site: David Langton on Metal on Metal Hips
Site: David Langton on Metal on Metal Hips

Recent Alabama Rulings on Removal

In Freeman’s 66 v. Scottsdale Ins. Co., 2012 WL 1747973 (N.D. Ala. May 15, 2012)(Coogler), after Freeman’s 66’s gasoline station sustained some structural damages in a vehicle accident, its insurer failed to pay a claim.  Freeman’s 66 sued Scottsdale for breach of contract and bad faith, and sought $12,400 to replace a metal awning, $12,600 for replacing three gas pumps and unspecified punitive damages.  After the removal, Freeman’s 66 moved for remand contending a failure to satisfy the amount-in-controversy requirement.  Obviously, Freeman’s 66 specifically demanded just $25,000 in compensatory damages.  Referencing three earlier opinions, Scottsdale unsuccessfully argued that the request for punitive damages was for at least $50,000.  Correctly, Coogler differentiated the three opinions and noted that the range of possible punitive-damages awards was far less than $50,000 to some figure in excess of $50,000.

In Lambeth v. Peterbilt Motors Co., 2012 WL 1712692 (N.D. Ala. May 15, 2012)(Steele), as he was attempting to enter the cab of his Peterbilt truck, a step collapsed, causing Lambeth to fall to the ground and hurt his back.  He brought a products-liability lawsuit in which he alleged that he suffered a “serious injury to his back” and included the typical “boilerplate” language in his complaint. 

In removing the matter, the defendants relied solely on the complaint and, more particularly, on the allegation of a “serious injury” and asked the federal court to find that Lambeth must be seeking more than $75,000.  Judge Steele found that using the word “serious” does not make it “facially apparent” from the complaint that Lambeth was seeking more than $75,000 – “While the back injury is characterized as ‘serious,’ nothing in the Complaint elaborates on the nature or severity of that injury, or otherwise lends substance or meaning to it.  We simply do not know – or have any basis for inferring from the pleadings – anything about how severe, permanent, debilitating or painful the injury might be; how extensive, costly, or traumatic the course of treatment was, is or might be; or whether and to what extent the injury did, does or will constrain Lambeth’s work or life activities.” 

Judge Steele essentially chastised the defendants for relying merely on the complaint and not proffering evidence as to the true nature of Lambeth’s injury, that is, he truly suffered a severe injury that resulted in high medical costs, a lot of pain, significant disability, etc., as opposed to Lambeth’s attorney merely overhyping the injury. 

When the defendants argued that Lambeth’s attorney was “playing a game” by not being more specific in the complaint, Judge Steele wrote:  “These sentiments are an oft-heard refrain voiced by members of the defense bar who feel aggrieved by the manner in which Eleventh Circuit amount-in-controversy jurisprudence has developed in recent years.  Their lament is understandable.  It is true enough that defendants who wish to remove an action to federal court on diversity grounds may face daunting proof obstacles and difficult strategic choices, particularly as to whether to remove the case right away or to develop additional evidence on damages via discovery before pulling the removal trigger.  Contrary to defendants’ insinuation, however, Lambeth neither created this state of affairs nor engaged in impropriety, trickery or skullduggery in proceeding as he has.  For better or worse, the harrowing Scylla-and-Charybdis scenario described by PACCAR is a natural, inevitable consequence of the interaction among liberal pleading rules that do not require a plaintiff to plead injuries and damages with specificity, strict removal statutes that place both the burden of proof and temporal constraints on removing defendants, and appellate evolution of a substantial, subjective gray area in which defense counsel cannot discern for sure whether the “facially apparent” criterion will be deemed to be satisfied in a particular case.  …  A perception of unfairness or hardship is not a valid reason to excuse removing defendants from their strict jurisdictional burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000.”

The Freeman’s 66 opinion will be useful in situations where there was just property damage to a business and/or where the insurance claim was for significantly less than $75,000.

The Lambeth opinion is a good counter to those opinions where a federal judge uses the “facial apparent” approach and holds that alleging a “serious injury” equates to seeking more than $75,000.  Chief Judge Steele correctly notes that more should be required when the complaint is so general in his description of the injury and its consequences.