Starnes Davis Florie


Starnes Davis Florie Granted Favorable Ruling by The Alabama Supreme Court

October 18, 2014

The Alabama Supreme Court issued an important and favorable ruling in this appeal on October 3, 2014. This wrongful death case filed in Dallas County arose out of defendant surgeon’s performance of a left inguinal hernia repair, and later a surgical closure of a perforated ulcer, on the decedent. Mike Wright, John McCall and Larry Fantroy successfully defended the case at trial and obtained a judgment as a matter of law at the close of the Plaintiff’s case. The appellate filings were handled by Sybil Newton.

The Plaintiff filed a Rule 59 Motion to Vacate the Judgment or for a New Trial, which was denied. Then, after a new judge took the bench, the Plaintiff filed a Rule 60(b)(3) Motion for Relief from Judgment asserting that the defendant committed perjury and perpetuated a a fraud on the court by testifying that he performed an ulcer repair when he had not actually done so. The new trial court granted the Rule 60(b)(3) motion and ordered a new trial of the case.

The firm filed both a Petition for Writ of Mandamus and a direct appeal from that Order. The Alabama Supreme Court consolidated the appeals, and ultimately issued an opinion in the mandamus proceeding, reversing the trial court and ruling that it had exceeded its discretion by granting the Plaintiff’s Rule 60(b) Motion. The Alabama Supreme Court adopted all of the arguments which the defendant raised on appeal, noting, “[T]he case law has repeatedly emphasized that a party is not prevented from fully and fairly presenting its case if it had access to the information at issue.” The Court disagreed with the plaintiff’s position that due diligence is only required with claims under Rule 60(b)(2). The Court agreed that the plaintiff’s counsel was aware long before trial of the purportedly “crucial information” regarding the supposed lack of an actual duodenal repair. The Court reasoned, “To allow the plaintiff to assert new claims based on either aspect of the defendant’s trial testimony at this juncture would be to allow her to piecemeal her claims and, indeed, to use Rule 60(b) to avoid the ‘free, deliberate, and calculated choices’ made by her in the management and presentation of her action.” The plaintiff could have presented her fraud argument in her Rule 59 Motion but, instead, waited another month and a half – and after a new trial judge had succeeded the trial judge – to present the argument in her Rule 60(b) Motion. The Court also pointed out that although the plaintiff filed a Rule 60(b)(3) Motion within the four month period, this does not excuse her failure to present her fraud argument sooner. The plaintiff also failed to demonstrate how the alleged fraud prevented her from fully and fairly presenting her claims at trial or in the post-trial Rule 59 Motion. The Court also noted that the plaintiff never pled the “fake surgery” allegation, holding that this failure of pleading, alone, is fatal to any attempt by the plaintiff to assert the supposed lack of a duodenal repair as an act of malpractice. The Court directed the trial court to reinstate its final Order of October 24, 2012.

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