DEFENDANTS= RESPONSE IN OPPOSITION TO PLAINTIFFS= MOTION TO ALTER, VACATE OR AMEND AND NEW TRIAL PURSUANT TO RULE 59, ALABAMA RULES OF CIVIL PROCEDURE

Transcription

1 ELECTRONICALLY FILED 9/20/2018 4:07 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, ) ) CIVIL ACTION NO. v. ) ) CV ALABAMA MEN=S CLINIC; ) DR. JOHN JUSTIN CAULFIELD, et al ) ) Defendants. ) DEFENDANTS= RESPONSE IN OPPOSITION TO PLAINTIFFS= MOTION TO ALTER, VACATE OR AMEND AND NEW TRIAL PURSUANT TO RULE 59, ALABAMA RULES OF CIVIL PROCEDURE Come now the Defendants, AMMC, P.C., d/b/a Alabama Men=s Clinic (AAMC@), Dr. John Justin Caulfield, (ACaulfield ), and for Response in Opposition to Plaintiffs= Motion to Alter, Vacate or Amend and New Trial pursuant to Rule 59, Alabama Rules of Civil Procedure, hereby show unto the Court the following: GENERAL OBSERVATIONS Plaintiff filed a Motion pursuant to Rule 59, Alabama Rules of Civil Procedure, to Alter, Vacate, or Amend the jury=s verdict rendered in this case in favor of the Defendants on July 19, 2018, with judgment entered thereon by the Court on July 20, While stating several grounds for their Motion, Plaintiffs offer no legal authority to support their position other than the general proposition that if a jury verdict is based on prejudice, passion or improper motives of members of the jury, it should be set aside. Other than the alleged failure of some seven (7) jurors, including the alternate, to appropriately respond to one question presented during voir dire, no evidence admitted or

2 excluded, rulings by the Court, or other proceedings during trial are cited as the basis for Plaintiffs= contention the jury=s verdict was based on prejudice, passion or improper motives. While stating they are supporting their Motion with Arecently discovered additional evidence to support a new trial,@ there is no Aevidence@ presented which could have been admitted as evidence in the trial of this case, nor which would, in any way, be deemed relevant to the issues litigated involving the standard of care of medical treatment rendered by the Defendants to the Plaintiff, Robert Snell, or the proximate relationship between such alleged deviations of the standard of care and the injury complained of by the Plaintiffs. The only Aevidence@ submitted is unverified records pertaining to prior legal proceedings in which the seven (7) named jurors were involved. Therefore, Plaintiffs= Motion cannot be based upon Anewly discovered evidence@ as would be used to support a Motion for New Trial under Rule 60(b)(2), Alabama Rules of Civil Procedure. In their Motion, Plaintiffs point out some 16 prior legal proceedings involving the seven (7) identified jurors, including the alternate, which Plaintiffs claim the jurors Aneglected and/or intentionally omitted@ to identify in response to a single question stated by Plaintiffs to be Awhether any juror had been a defendant in a lawsuit claiming damages.@ The actual question presented by Plaintiffs= attorney to the jurors which would supposedly have elicited responses is not provided. There is no evidentiary showing or argument presented by Plaintiffs to support any of the seven (7) potential jurors Aintentionally@ failed to provide a response. In fact, of the total enumerated omitted facts, ten (10) relate to a prior judgment against a juror, or family member, and three (3) relate to bankruptcies, neither of which being claimed topics of examination by Plaintiffs= counsel to the perspective jurors. Additionally, the time frame for these prior proceedings range from 1988 to 2

3 2016, with a vast majority being at least eight (8) years old and only three (3) being within three (3) years of the date of trial. To the extent Plaintiffs Motion relies upon some alleged misconduct by the alternate juror, such reliance is greatly misplaced as the alternate did not participate in any deliberations, nor the rendering of a verdict. It goes without saying, the alternate could not have had any influence on the verdict rendered by a unanimous jury in favor of the Defendants. It is also interesting to note all of the alleged non-disclosures relate to small claims matters, either a suit or judgment, or bankruptcies. The seven (7) identified jurors supposedly failed to respond to whatever question was posed by Plaintiffs= counsel identifying these past claims or proceedings. With seven (7) perspective jurors allegedly not responding to the alleged posed question and revealing the exact same prior proceedings in which they were involved, one would wonder if there was confusion in the minds of the jurors as to what information was being elicited through the question posed by Plaintiffs= counsel since they all are alleged to have failed to respond providing identical information about their past. Certainly, it would not be logical to assume, nor is there any evidentiary support the notion, that somehow these seven (7) jurors conspired not to give complete responses to a particular voir dire question which Plaintiffs contend would have elicited the very historical information upon which Plaintiffs rely to support their Motion. In other words, only an extreme conspiracy theorist would somehow jump to the conclusion that seven (7) jurors somehow conspired not to provide responses to a single question which would have elicited the same information about each of their past financial dealings. Furthermore, to assume Plaintiffs= attorney would have struck each of these seven (7) jurors had it been made known they were involved in small claims proceedings and/or a bankruptcy (a question not asked) in the ancient past is pure 3

4 speculation, especially given the fact Plaintiffs= counsel only had six (6) strikes and now claims he would have struck seven (7) jurors. For the legal reasons stated below, Plaintiffs= counsel has not demonstrated the alleged failure of these jurors to respond to his single question with the alleged omitted information, assuming the jurors had a present recollection of such ancient events, is sufficient either legally or factually to overturn the jury=s verdict in this case. LEGAL ARGUMENT We begin our analysis with the general proposition, which has been reaffirmed by appellate courts for decades, that jury verdicts are presumed correct and should not be set aside unless shown to be the product of passion, prejudice or improper motive on the part of the jury. Merrill v. Badgett, 385 So. 2d 1316 (Ala. Civ. App.), cert. denied, 385 So. 2d 1319 (Ala. 1980); Grimes v. Dodge, 816 So. 2d 53 (Ala. Civ. App. 2001). The power to set aside the verdict of a jury should be exercised only when it affirmatively appears that the substantial ends of justice require the examination of facts by another jury. Golden v. Valesquez, 233 So. 3d 370 (Ala. Civ. App. 2017). AA jury=s verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust.@ Ayres v. Lakeshore Comm. Hosp., 689 So. 2d 39, 40 (Ala. 1997), citing Alpine Bay Resorts v. Wyatt, 539 So. 2d 160, 162 (Ala. 1988). The seminal case discussing the granting or refusal of a new trial based upon juror responses to voir dire questions is Freeman v. Hall, 238 So. 2d 330 (Ala. 1970). The Freeman court set the standard of review when it held as follows: AWe hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by perspective jurors on voir dire, is whether this has resulted in 4

5 probable prejudice to the movant. This appears to be the general rule throughout the country. Id. at 335 (citations omitted.) Further, in setting the factors upon which the trial court=s determination of prejudice should be made, while noting they may necessarily vary from case to case, set out the following considerations: Although the factors upon which the trial court=s determination of prejudice is made must necessarily vary from case to case, some of the factors which others courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the perspective jurors= inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about. Id. at 336. While acknowledging parties have a right to truthful answers to questions propounded on voir dire, and the failure of prospective jurors to respond to questions properly propounded may provide the basis for a new trial, the court declined to accept the proposition that on voir dire any failure of any prospective juror to respond properly to any question regardless of the excuse or circumstance automatically entitles a party to a new trial or reversal of the cause on appeal. Id. In the Freeman case, it was alleged that three (3) jurors did not respond to a question whether they had been plaintiffs or defendants in lawsuits. On motion for new trial, certificates of judgment were introduced to show that persons with the same name had been parties to lawsuits. Upon remand, it was determined that one of the jurors did not consider a collection suit for rent to be a lawsuit and that he never went to court, but settled the case. Another juror denied being sued and one of the jurors confirmed the name on the certificate was that of her father=s. The trial court found that the two jurors whose names were on the certificate of judgments did not influence the deliberations of the jurors based upon the fact they have been parties to collections suits filed against them. Therefore, the appellate court affirmed the trial court=s refusal to grant a new trial. 5

6 Similarly, in Land & Associates, Inc. v. Simmons, 562 So. 2d 140 (Ala. 1989), the court reviewed a failure of the trial court to grant a new trial on the grounds that three (3) members of the jury panel, who were eventually selected as jurors, failed to disclose on voir dire they had been involved in previous litigation. After trial, as is supposedly the case at issue, an investigation revealed three (3) of the jurors had been involved in events that may have called for an affirmative response to a question regarding whether any member of the panel, or their immediate family, had been a plaintiff or a defendant in a lawsuit. One of the jurors failed to disclose that five years before she sued an individual for personal injuries arising out of an automobile accident, and another juror failed to disclose that he and his wife had been defendants in an action in district court on a promissory note. They had also filed a petition for bankruptcy, although that was not the subject of the inquiry. The third juror failed to disclose he had been sued in district court in a subrogation action brought by an insurer arising out of an automobile accident approximately four years prior. After applying the Freeman rule of review and examining the factors set forth therein, the Supreme Court found the trial court correctly denied the motion for new trial and accepted the trial court=s finding that Asubstantial temporal remoteness of the previous litigation to the present case, inadvertence on the part of these venire persons, or a misunderstanding - at least on their part - of the question as they related to them personally@ (citing Ensor v. Wilson, 519 So. 2d 1244 (Ala. 1978)) was the basis for the Court=s ruling. Id at 147. The appellate court further made note of the trial court=s finding that A[J]urors make substantial sacrifices to perform their duty, and the Court is not disposed to further impose on them where, as here, there has been no showing of probable prejudice.@ Id. at 148. The decision in Land, being based on substantially identical allegations as 6

7 asserted herein, is highly instructive as to whether or not the Plaintiffs are entitled to the relief requested. Another example of omitted juror responses which were determined not to be probable prejudice to the complaining party so as to warrant the granting of a new trial includes the failure of a juror to disclose in response to a voir dire question that her husband had been represented by one of the defense attorneys in a personal injury action seven (7) years prior to being questioned as a potential juror. While acknowledging the general proposition that counsel and parties are entitled to true and correct answers from prospective jurors, the appellate court applied the Freeman test and factors and agreed with the trial court there was no showing of probable prejudice which would warrant reversing the jury verdict. Martin v. Mansell, 357 So. 2d 964 (Ala. 1978). In a medical malpractice action brought against an emergency room physician and the hospital, the appellate court affirmed the denial of plaintiff=s motion for new trial based upon the failure of a juror to state during voir dire that both her brother and sister-in-law had worked at some point at the defendant hospital. The question to which she failed to respond directly inquired if anybody on the venire or their Aspouse, husband or wife, children, brother or sister, parents, members of the immediate family@ had worked for, either in the past or present, the defendant hospital. It was later determined the subject juror=s brother had worked part-time at the hospital, as had her sister-inlaw, but she had not remembered that at the time of voir dire. The trial court, and affirmed by the appellate court, decided there was no probable prejudice to the party as a result of this inadvertent omission. Ayres v. Lakeshore Community Hosp., 689 So. 2d 39, 42 (Ala. 1997). In Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d. 1 (Ala. 2007), the failure of a potential juror to disclose he had previously filed a lawsuit for personal injury after being struck by a 7

8 vehicle while on a bicycle was not properly responsive to a question injuring if any venireman had ever sued anyone. The case involved a motorcyclist who had been struck by a pickup truck resulting in significant personal injury. The juror=s lawsuit had been filed in 1997 and the trial of the instant case was in The trial court denied the defendant=s motion for new trial based upon the omitted response by the juror and, after applying the Freeman test and factors, the Supreme Court affirmed. The Court noted the proper inquiry as set forth in Freeman on a motion for new trial is whether the improper or non-existent response to a voir dire question resulted in probable prejudice and noted not every failure of a prospective juror to respond to a question entitled the losing party to a new trial. Id. at 4. Examples of failures of jurors to respond to questions which were determined to be sufficient evidence of probable prejudice include the failure of jurors to respond to questions in a medical malpractice action which would have revealed a relative had been represented by a member of the same law firm defending the hospital in the instant case, and failure of another juror in that same case to reveal her sister had been employed by the defendant hospital as an emergency medical technician. She also failed to mention her sister=s husband had worked for a volunteer ambulance service. The question presented to them was whether or not they or any of their relatives had worked as health care providers, or worked for the defendant hospital. Both the trial court and the appellate court found this omission to be indicative of the probable prejudice required by Freeman in order to grant a new trial. Colbert Co. - Northwest Ala. Health Care Authority v. Nix, 678 So. 2d 719 (Ala. 1995). Another example was the failure of two jurors, husband and wife, to disclose on voir dire they had been represented in a similar action against an insurance company within the past two years by the same law firm representing the plaintiff in the instant action. The appellate court found the 8

9 trial court did abuse its discretion in not granting the defendant=s motion for new trial since it was apparent there was probable prejudice to the defendant insurance company when two jurors failed to answer up that they had been involved in an identical lawsuit with the same law firm as the one in which they could be potential jurors. Cavalier Ins. Corp. v. Faulk, 368 So. 2d 6 (Ala. 1979). These examples certainly do not lend support to Plaintiffs= position they are entitled to a new trial in this case. A very recent case, one in which Plaintiffs = counsel was involved, is remarkably similar to the claims being asserted in Plaintiffs= new trial motion in this action. In Hood v. McElroy, 127 So. 3d 325 (Ala. 2011), r=hrg denied, the Court was faced with a similar claim by Plaintiff=s counsel that she was entitled to a new trial because one of the prospective jurors had been a defendant in two lawsuits, but did not respond to the question whether any of the prospective jurors had been defendants in lawsuits or had someone sue them for personal injury. The trial court granted the Plaintiff=s motion for new trial finding the failure of this juror to disclose being a defendant in two collection actions in small claims court to which a consent or a default judgment had been entered resulted in probable prejudice to the movant. However, after analyzing the facts in accordance with the Freeman factors, the Supreme Court reversed stating [w]e are hard-pressed in this case to conclude that any of the Freeman factors provide meaningful support for such a result. Id. at 333. The Court was of the opinion that two apparently uncontested small-claims-court collection actions did not provide adequate support for a finding of probable prejudice so as to grant a new trial. The Court contrasted the facts of the Hood case with those in the Nix case cited above, and others, concluding the materiality factor set forth in Freeman was not met by the failure to disclose small claims collection cases. Id. at

10 It is noted in this case Plaintiffs counsel makes the assertion that had the information about the seven (7) jurors past collection cases and/or judgments been disclosed, he would have struck them. The fact that he did not have enough strikes to strike all seven (7) notwithstanding, the Court examined this same assertion by Plaintiffs counsel in Hood and held that neither the trial court, nor the appellate court, must accept the subject of a voir dire question a jury fails to answer as material just because the attorney who seeks a new trial claims it was material to him or her. Instead, the Court stated it was an objective standard such that the non-disclosure by the juror must be material in an objective sense, as well as a subjective sense. Id. at 335. In other words, just because an attorney claims the omitted information was material to his or her decision to accept or strike the juror, is not determinative of the issue of materiality. Rather, both the trial court and appellate court must objectively look at the omitted fact to determine whether it is one which an attorney acting as a reasonably competent attorney, would consider important in making the decision whether or not to excuse a perspective juror. Id., citing Goldkist, Inc. v. Brown, 495 So. 2d 540 (Ala. 1986). It was also noted the materiality analysis included considering whether or not the omitted fact had the obvious tendency of the true facts to bias the jury... Id., citing Jimmy Day Plumbing & Heating, Inc. v. Smith, Supra. The Court finally addressed the inadvertence or willfulness element set forth in Freeman and did not find sufficient facts to support finding that the juror at issue was guilty of willfully or falsely failing to answer the question posed due to the wording of the question at issue and the nature of the judicial proceeding in which the juror was involved. Id. at 336. Basically, this recent decision examined a failure to respond concerning a small claims collection suit and/or judgment, the same as asserted as the basis for juror misconduct in this case, and when analyzed according to the Freeman 10

11 test and factors found such to be not material, not objectively likely to cause a preemptory challenge, not temporally related and not the subject of any willful intent by the juror to mislead counsel. The Court found the trial court abused its discretion in granting a new trial based upon this omitted answer. Plaintiffs cite no case supportive of the proposition that when analyzed according to the Freeman factors, the failure of these seven (7) jurors to provide responses concerning small claims matters and/or bankruptcies and/or judgments warrant the granting of a new trial. If one looks at the temporal remoteness of the matter inquired about, it is clear that most of the events omitted occurred many years ago with only one being within the past two years. Two years has been considered temporally remote. The ambiguity of the question posed may also be an issue. Given the fact seven (7) jurors failed to provide what, in essence, is the same type of information would certainly lead one to believe there was confusion in the minds of the jurors as to the information requested and whether or not these omitted events required disclosure. There is certainly no allegation or evidence that any of the jurors failure to provide responses with the omitted information was anything but inadvertent, or the result of the failure of the juror to recollect these remote events. As far as materiality, the Hood decision answers that inquiry in the negative. When analyzed using the Freeman factors, Plaintiffs are not entitled to disturb the jury s verdict based on basically speculation and conjecture, as well as the subjective assertion by Plaintiffs counsel he would have struck these seven (7) jurors had he known this omitted information, even though he only had six (6) strikes and would have been unable to strike any of the six (6) jurors he did strike, one of which being a physician. 11

12 WHEREFORE, Defendants respectfully requests this Honorable Court to deny Plaintiffs Motion to Alter, Vacate or Amend and New Trial, pursuant to Rule 59, Alabama Rules of Civil Procedure. Respectfully submitted, OF COUNSEL FOR DEFENDANTS: AMMC, P.C., d/b/a Alabama Men=s Clinic and Dr. John Justin Caulfield TAYLOR RITTER, P.C Canal Road P. O. Box 489 Orange Beach, AL Phone: (251) Fax: (251) CERTIFICATE OF SERVICE /s/ Bert P. Taylor Bert P. Taylor (TAY 004) I hereby certify that I have served a true and correct copy of the above pleading on all counsel and/or parties listed below, either electronically, through Ala-filing, or by placing a copy in the United States Mail and placing proper postage upon same, this 20 th day of September, 2018: Counsel for Plaintiffs: J. Gusty Yearout (YEA 002) William A. Yearout (YEA 010) YEAROUT & TRAYLOR 3300 Cahaba Road, Ste. Ste. 300 Birmingham, AL T: F: Gyearout@yearout.net Byearout@yearout.net /s/ Bert P. Taylor Bert P. Taylor (TAY004) 12