News
Hines & MacKenzie obtain Summary
Judgment in wrongful death case
On December 14, 2007, the Alabama Supreme Court released a 27 page opinion affirming a summary judgment to Christian Hines and Bob MacKenzie on behalf of a family practitioner who had been charged with the death of a nursing home patient. Three issues were outlined by the Court in Its review of the judgment. First, the Court held that the defendant physician's affidavit was sufficient to pass the burden of proof to the plaintiff, because the defendant denied a breach of the standard of care. Consequently, the defendant negated an essential allegation of the plaintiff's claim and shifted the burden to the plaintiff. Next, the plaintiff claimed the trial court erred in failing to allow sufficient discovery before ruling on the motion for summary judgment, in violation of Alabama Rule Rule of Civil Procedure 56. The Court noted, however, that the plaintiff was given an extension after the initial hearing to file an affidavit from his expert. Since the plaintiff now argued said affidavit was sufficient, this necessarily meant that the expert had sufficient discovery to render an opinion. Moreover, Rule 56 does not require that all discovery be completed before a motion for summary judgment is ripe for ruling. Finally, the plaintiff argued that his expert's affidavits were sufficient to rebut the motion. The Court, however, found neither affidavit admissible because: (1) both affidavits failed to attach certified copies of the materials reviewed, in violation of Rule 56(e); (2) the first affidavit failed to affirmatively demonstrate the competency and qualifications of the expert, also in violation of Rule 56(e); and the second affidavit was served after the last hearing, in violation of Rule 56(b)'s requirement that such materials be served at least two days prior to the hearing.
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