IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA MOTION TO ALTER, VACATE OR AMEND AND NEW TRIAL PURSUANT TO RULE 59 ALABAMA RULES OF CIVIL PROCEDURE

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1 ELECTRONICALLY FILED 8/17/2018 3:44 PM 01-CV CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ROBERT SNELL, TABITHA SNELL, Plaintiffs, vs. CV ALABAMA MEN S CLINIC; DR. JOHN JUSTIN CAULFIELD, et al., Defendants. MOTION TO ALTER, VACATE OR AMEND AND NEW TRIAL PURSUANT TO RULE 59 ALABAMA RULES OF CIVIL PROCEDURE COME NOW the Plaintiffs in the above-styled cause, by and through their respective counsel, and move this Court to grant the Plaintiffs a new trial and/or alter, vacate or amend pursuant to Rule 59 of the Alabama Rules of Civil Procedure. As grounds in support of this Motion, Plaintiffs show unto the Court the following separate and several grounds: 1. The jury verdict was based on prejudice, passion or improper motives of members of the jury and, therefore, should be set aside. See, Grinds v. Dodge, 816 So.2d 53 (Ala. Civ. App The jury verdict and judgment are against the great weight of evidence and the preponderance of evidence and, therefore, a new trial is warranted. 3. The jury verdict is so opposed to the clear and convincing weight of the evidence as to clearly fail to do substantial justice and to give substantial relief to the Plaintiffs. 4. The overwhelming weight of the evidence supports a verdict for the Plaintiffs. This verdict was a result of jury prejudice, passion or improper motives. 5. In the interest of justice, the Plaintiffs should be granted a new trial under Rule 59 the Alabama Rules of Civil Procedure. 6. In support of the Motion under Rule 59, the Plaintiffs' offer recently discovered additional evidence to support a new trial. 7. The new evidence presented to the Court in this motion includes misconduct on the part of several jurors in failing to give correct and truthful answers to the Plaintiffs' attorneys' questions in voir dire. 1

2 8. The Plaintiffs' attorneys made it clear to the jury that when questions were asked of "you", this meant you and your immediate relatives, mother, father, daughter, son, brother, sister, wife and husband. The question was presented to the jury by Plaintiffs' attorneys whether any juror had been a defendant in a lawsuit claiming damages. After substantial research by the investigator, Plaintiffs show unto the Court the lack of truthfulness by several individual jurors. The following jurors neglected and/or intentionally omitted information. This information was discovered within the last two weeks: Attached hereto as Exhibit "A" as incorporated herein; a. Juror, Ruben G. Hendley did not disclose that a judgment on April 20, 2007 against him and his wife, Elonda Hendley, for $4, filed by "Affinity Realtor and Lawn Care Service LLC"; b. Juror, Ruben G. Hendley, did not disclose a judgment on August 11, 2008 against his wife, Elonda Hendley, for $1,239.00, court case number SM ; c. Juror, Ruben G. Hendley, did not disclose a judgment on July 12, 2010 against him for $2,188.07;, court case number SM ; d. Juror, Ruben G. Hendley, did not disclose a judgment on December 8, 2010 against for $1,597.00, court case number SM ; and e. Juror, Ruben G. Hendley, did not disclose a bankruptcy which was filed on May 24, 1996, case number BGC7. Attached hereto as Exhibit "B" as incorporated herein; a. Juror, Calvin A. Haire (Calvin A. Polk was sued for damages in the District Court of Jefferson County for $10,000.00, case number DV ; and b. Juror, Calvin A. Haire did not disclose a judgment on December 20, 2012 against her for $226.00, court case number SM Attached hereto as Exhibit "C" as incorporated herein; a. Juror, Cynthia D. Childress, did not disclose that a bankruptcy was filed on July 24, 2002, case number BGC7; b. Juror, Cynthia D. Childress, did not disclose a judgment against her on January 8, 2015, for $5,860.91, case number SM ; c. Juror, Cynthia D. Childress, did not disclose a judgment against her on April 5, 2016, in Jefferson County for $2,118.71, case number SM ; and d. Juror, Cynthia D. Childress, did not disclose a judgment against her on May 20, 2016, in Jefferson County for $1,387.31, case number SM Attached hereto as Exhibit "D" as incorporated herein; a. Juror, Pamela D. Burns, forewoman of the jury, has been known under aliases, Pamela Diane Fletcher, Pamela Diane Gamble and Pamela D. Fletcher. This is a result of more than one marriage. Our investigation 2

3 indicates that Pamela D. Burns, the forewoman, is the same person as Pamela Diane Fletcher; and b. Juror, Pamela D. Burns, did not disclose that she was sued under the name of Pamela Fletcher on February 15, 2006, for $677.07, plus interest, case number SM ; a consent judgment was entered and executed by Pamela Fletcher in the amount of $ Attached hereto as Exhibit "E" as incorporated herein; a. Juror, Willie Avery, did not disclose that a complaint was filed on March 14, 1988, against him for $ Mr. Avery allowed a consent judgment to be entered against him for $262.66, case number SM ; Attached hereto as Exhibit "F" as incorporated herein; a. Juror, Markesha Handley, did not disclose that a complaint was filed on October 16, 2015, against her. A judgment was entered on the 26th day of January, 2016 against Markesha Handley in the amount of $3,879.33, case number DV ; Attached hereto as Exhibit "G" as incorporated herein; a. Juror, Rashida N. Johnson, did not disclose that a complaint was filed on August 27, 2010, against her for $ work and labor; b. Juror, Rashida N. Johnson, did not disclose that bankruptcies were filed on September 1, 2015, case number TOM13 and January 13, 2012, case number TOM13; and c. Juror, Rashida N. Johnson, was the alternate on this jury but she participated in the entire trial even though she did not deliberate with the jurors for a verdict. Had any of the jurors listed above been excused, she would have more than likely been on the jury. In further support of Plaintiffs' Motion, Plaintiffs has attached the Affidavit of David Eskridge as Exhibit "H". 9. Plaintiffs' attorneys affirm that had this information been made available, each of these jurors would have been struck from the jury by the Plaintiffs attorneys. If even one juror misrepresents or gives a false answer to the question asked in voir dire on the subject of whether the juror had ever been a defendant in a lawsuit, it is enough for the Court, in its discretion, to grant a new trial. In this instance, we have seven (7 jurors that refused, intentional or otherwise to disclose important information. This overwhelming number of untrue responses of whether the jurors had been defendants in a lawsuit more than justifies a new trial for the Plaintiffs and supports the conclusion that this verdict was based on prejudice, passion or improper motives. 10. The overwhelming evidence of juror misconduct, particularly the failure to provide truthful answers to voir dire questions prevented the Plaintiffs from fully questioning these jurors and in turn, denied the Plaintiffs the opportunity to exclude these jurors from the jury. For example, several jurors concealed that they were defendants in lawsuits. That alone is sufficient evidence to warrant a new trail under Alabama Rule of Civil Procedure 59. 3

4 11. This case is important to the Plaintiffs. The Court heard the evidence and saw the witnesses on both side. Under the circumstances, Plaintiffs did not get a fair trial and should be allowed to try the case again with a jury that is honest in the answers to questions on voir dire. 12. Should the Court need further evidence to support the evidence already submitted in this motion, Plaintiffs are more than prepared to issue the necessary subpoenas to the jurors to let them explain why they gave false information. The Plaintiffs respectfully request that the Court set this matter for hearing and oral testimony in support of the request for the Motion to Alter, Vacate or Amend and New Trial. DATED: August 17, 2018 Respectfully submitted, /s/ J. Gusty Yearout J. Gusty Yearout (YEA 002 gyearout@yearout.net OF COUNSEL: Yearout & Traylor, P.C Cahaba Road, Ste. 300 Birmingham, AL ( /s/ William A. Yearout William A. Yearout (YEA 010 byearout@yearout.net Attorneys for Plaintiffs PLAINTIFFS REQUEST ORAL ARGUMENT 4

5 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing Motion to Alter, Vacate or Amend and New Trial Pursuant to Rule 59 Alabama Rules of Civil Procedure has been served via Alafile, USPS regular mail and/or via facsimile on this the 17th day of August, 2018 on all counsel of record as follows: Bert P. Taylor TAYLOR RITTER, P.C Canal Road P. O. Box 489 Orange Beach, AL /s/ J. Gusty Yearout Of Counsel 5