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Another Appellate Win for SDF – Affirmance of Defense Verdict at Trial

January 13, 2020 Another Appellate Win for SDF – Affirmance of Defense Verdict at Trial

Sybil Newton, Joe Miller, And Will Axon obtained an affirmance by the Alabama Supreme Court of a defense verdict in favor of an OB/GYN in a retained foreign body/surgical sponge case. At trial, the court charged the jury on the law applicable to a retained foreign body case using the APJI pattern charge crafted for such cases – APJI # 25.16. On appeal, the Plaintiffs asserted that the trial court erred by giving the pattern charge because, they contended, it was confusing and contrary to the holdings of Breaux v. Thurston and its progeny. The Plaintiffs argued the trial court was instead required to charge the jury regarding a “shifting burden of proof” in such a case and that the failure to do so prejudiced them. The Alabama Supreme Court disagreed and affirmed the verdict in favor of the Defendant, effectively rejecting the argument that the pattern charge was insufficient or confusing. Chief Justice Parker authored a dissent (joined by Justices Mendheim and Stewart) criticizing the pattern charge given and expressing agreement with the Plaintiffs that the jury instructions given failed to “accurately explain that a plaintiff’s showing of a retained object shifts the burden of disproving negligence to the physician.” Notably, Justice Bolin wrote a special concurrence disagreeing with the dissent and extolling the value and merits of Alabama’s Pattern Jury Instructions and the process by which those pattern charges are developed.

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