Starnes Davis Florie


Appellate Win for Starnes Davis Florie

November 30, 2019

Mike Wright, Sybil Newton, and Michael Scivley obtained a favorable ruling from the Alabama Supreme Court affirming a judgment rendered in favor of the defendant surgeon in a medical malpractice, cholecystectomy/common bile duct injury case. At trial, the jury returned a defense verdict in favor of the surgeon. On appeal, the Plaintiff argued the trial court erred by keeping out testimony from an expert regarding his own personal practice. The Plaintiff sought to overturn longstanding Alabama law (including the case of K.P. v. Reed) holding that whether a particular individual physician would have acted differently from the defendant is not the correct inquiry in a medical malpractice case. The Alabama Supreme Court affirmed the trial court’s exclusion of this testimony and, through its affirmance, effectively refused to overturn long-standing Alabama law holding that: (1) a physician expert’s own personal practice is not admissible as evidence of a breach of the standard of care by the defendant, and (2) the fact that an expert’s personal practice happens to differ from an alternative approach utilized by the defendant which the expert testifies was likewise reasonable and within the standard of care in no way impeaches the validity of that expert’s opinion. The Alabama Supreme Court also granted the Defendant’s Motion to Strike portions of the Plaintiff’s Brief which cited to portions of the expert’s testimony which were not properly part of the Plaintiff’s offer of proof at trial.


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