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Miller and Axon Granted JMOL by Alabama Supreme Court
On September 18, 2009, The Alabama Supreme Court issued an opinion affirming judgment as a matter of law in behalf of a defendant surgeon in a retained foreign body case. Joe Miller and Will Axon represented the surgeon at trial in June 2006. The allegation was that the surgeon was below the standard of care in failing to detect and remove a ten foot long piece of Kerlix gauze which had been used to pack an open wound, and apparently left in the patient by other health care providers. The surgeon performed three irrigation and debridement procedures and then a skin graft procedure. The surgeon did not notice and remove the gauze in any of these procedures. It was later identified and removed by another surgeon. The Alabama Supreme Court held that the trial court properly granted judgment as a matter of law in behalf of the surgeon at trial, as the plaintiff had failed to present the required expert testimony under the circumstances.
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