Pursuant to Rule 50(b), Ala. R. Civ. Proc., Defendant, Mobile Infirmary Association,

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1 ELECTRONICALLY FILED 2/9/2017 1:30 PM 02-CV CIRCUIT COURT OF MOBILE COUNTY, ALABAMA JOJO SCHWARZAUER, CLERK IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA VOSHON SIMPSON, a Minor, by and ) Through his mother and next friend, ALISA SIMPSON, and ALISA ) SIMPSON, Individually, CASE NO: CV ) Plaintiffs, ) vs. ) MOBILE INFIRMARY ASSOCIATION d/b/a MOBILE INFIRMARY MEDICAL ) CENTER, and INFIRMARY HEALTH SYSTEM, INC., ) Defendants. ) DEFENDANT MOBILE INFIRMARY ASSOCIATION d/b/a MOBILE INFIRMARY MEDICAL CENTER S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR IN THE ALTERNATIVE FOR NEW TRIAL OR IN THE ALTERNATIVE FOR A REMITTITUR OF DAMAGES Pursuant to Rule 50(b), Ala. R. Civ. Proc., Defendant, Mobile Infirmary Association, d/b/a Mobile Infirmary Medical Center ( Mobile Infirmary ) renews its motion for judgment as a matter of law in its favor after entry of judgment, or in the alternative, pursuant to Rule 59(a), Ala. R. Civ. Proc., Defendant Mobile Infirmary moves this court for a new trial or in the alternative, and as a condition to the overruling of a motion for new trial, pursuant to Rule 59(f), Ala. R. Civ. Proc., Mobile Infirmary moves for a remittitur of the damages in this case. As grounds for said motions, Mobile Infirmary would show this honorable Court as follows: RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW 1. Plaintiffs have failed to prove by substantial evidence that Mobile Infirmary breached the standard of care in its treatment and care of Voshon Simpson. 1

2 2. Plaintiffs have presented no evidence that Mobile Infirmary breached the standard of care in its treatment and care of Voshon Simpson. 3. Plaintiffs have failed to prove by substantial evidence that Voshon Simpson s injury was caused by any breach of the standard of care by Mobile Infirmary in its treatment and care of Voshon Simpson. 4. Plaintiffs have presented no evidence that Voshon Simpson s injury was caused by any breach of the standard of care by Mobile Infirmary in its treatment and care of Voshon Simpson. 5. Plaintiffs have failed to present substantial evidence that any agent, servant or employee of Mobile Infirmary breached the applicable standard of care in rendering treatment and care to Voshon Simpson. 6. Plaintiffs have presented no evidence that any agent, servant or employee of Mobile Infirmary breached the applicable standard of care in rendering treatment and care to Voshon Simpson. 7. Plaintiffs have failed to present substantial evidence that Mobile Infirmary exercised or reserved the right to exercise sufficient control over Dr. William Admire to make him an agent, servant or employee of Mobile Infirmary. 8. Plaintiffs have presented no evidence that Mobile Infirmary exercised or reserved the right to exercise sufficient control over Dr. William Admire to make him an agent, servant or employee of Mobile Infirmary. 9. Plaintiffs have failed to present substantial evidence that Mobile Infirmary is vicariously liable for the care and treatment rendered to Voshon Simpson by Dr. William Admire. 2

3 10. Plaintiffs have presented no evidence that Mobile Infirmary is vicariously liable for the care and treatment rendered to Voshon Simpson by Dr. William Admire. 11. Plaintiffs have failed to present substantial evidence to show Dr. William Admire was not acting as an independent contractor at the time of his care and treatment of Voshon Simpson on June 8, Plaintiffs have presented no evidence to show Dr. William Admire was not acting as an independent contractor at the time of his care and treatment of Voshon Simpson on June 8, Plaintiffs have failed to present substantial evidence that Dr. William Admire was acting as the actual agent of Mobile Infirmary when he treated Voshon Simpson on June 8, Plaintiffs have presented no evidence that Dr. William Admire was acting as actual or apparent agent of Mobile Infirmary when he treated Voshon Simpson on June 8, Plaintiffs have failed to present substantial evidence that Mobile Infirmary or any of its alleged agents violated the standard of care, as stated in paragraphs 75(a) through 75(j) of the Plaintiffs First Amended Complaint as follows: a. Dr. William Admire, acting as the actual or apparent agent or borrowed exercise such reasonable care, skill and diligence as physicians in the same general neighborhood and in the same general line of practice, ordinarily have and exercise in like cases. b. Dr. William Admire, acting as the actual or apparent agent or borrowed properly perform a differential diagnosis in that he failed to order ultrasound or other radiological imaging of Voshon s testicles to rule out testicular torsion. c. Dr. William Admire, acting as the actual or apparent agent or borrowed order an ultrasound of Voshon s testicles, or other appropriate imaging study, and/or other reasonable and appropriate diagnostic tests and studies to rule out testicular torsion and arrive at a reasonable and accurate diagnosis. 3

4 d. Dr. William Admire, acting as the actual or apparent agent or borrowed recognize that a complaint and presentation of abrupt onset of periumbilical abdominal pain, nausea, and vomiting in a twelve-year-old male patient is consistent with and can be caused by testicular torsion, and that it is necessary to rule out torsion as soon as possible by ordering appropriate imaging studies. e. Dr. William Admire, acting as the actual or apparent agent or borrowed recognize that a complaint and presentation of abrupt onset of lower abdominal pain and pain in the private area of a twelve-year-old male patient is consistent with and can be caused by testicular torsion, and that it is necessary to rule out torsion as soon as possible by ordering appropriate imaging studies. f. Dr. William Admire, acting as the actual or apparent agent or borrowed consult with and have Voshon evaluated by a urologist. g. Dr. William Admire, acting as the actual or apparent agent or borrowed arrange to have Voshon admitted to the Hospital as an inpatient for observation and appropriate diagnostic tests so that Voshon would be provided with appropriate care, treatment, and procedures as indicated. h. Dr. William Admire, acting as the actual or apparent agent or borrowed perform and document a reasonable and appropriate physical examination of Voshon s testicles after determining that testicular torsion was on his differential diagnosis. i. Dr. William Admire, acting as the actual or apparent agent or borrowed properly perform a differential diagnosis in that he determined that testicular torsion was on his diagnosis, but he failed to perform and document a reasonable and appropriate physical examination of Voshon s testicles, and he failed to order an ultrasound or other radiological imaging of Voshon s testicles to rule out testicular torsion. j. Dr. William Admire, acting as the actual or apparent agent or borrowed servant of Mobile Infirmary, breached the duty he owed to Voshon by otherwise failing to provide reasonable and appropriate medical care and treatment to Voshon that was required by the standard of care as shown by discovery and the testimony of expert witnesses. 4

5 16. Plaintiffs have presented no evidence that Mobile Infirmary or any of its alleged agents violated the standard of care, as stated in paragraphs 75(a) through 75(j) of the Plaintiffs First Amended Complaint as follows: a. Dr. William Admire, acting as the actual or apparent agent or borrowed exercise such reasonable care, skill and diligence as physicians in the same general neighborhood and in the same general line of practice, ordinarily have and exercise in like cases. b. Dr. William Admire, acting as the actual or apparent agent or borrowed properly perform a differential diagnosis in that he failed to order ultrasound or other radiological imaging of Voshon s testicles to rule out testicular torsion. c. Dr. William Admire, acting as the actual or apparent agent or borrowed order an ultrasound of Voshon s testicles, or other appropriate imaging study, and/or other reasonable and appropriate diagnostic tests and studies to rule out testicular torsion and arrive at a reasonable and accurate diagnosis. d. Dr. William Admire, acting as the actual or apparent agent or borrowed recognize that a complaint and presentation of abrupt onset of periumbilical abdominal pain, nausea, and vomiting in a twelve-year-old male patient is consistent with and can be caused by testicular torsion, and that it is necessary to rule out torsion as soon as possible by ordering appropriate imaging studies. e. Dr. William Admire, acting as the actual or apparent agent or borrowed recognize that a complaint and presentation of abrupt onset of lower abdominal pain and pain in the private area of a twelve-year-old male patient is consistent with and can be caused by testicular torsion, and that it is necessary to rule out torsion as soon as possible by ordering appropriate imaging studies. f. Dr. William Admire, acting as the actual or apparent agent or borrowed consult with and have Voshon evaluated by a urologist. g. Dr. William Admire, acting as the actual or apparent agent or borrowed arrange to have Voshon admitted to the Hospital as an inpatient for observation and appropriate diagnostic tests so that Voshon would be provided with appropriate care, treatment, and procedures as indicated. 5

6 h. Dr. William Admire, acting as the actual or apparent agent or borrowed perform and document a reasonable and appropriate physical examination of Voshon s testicles after determining that testicular torsion was on his differential diagnosis. i. Dr. William Admire, acting as the actual or apparent agent or borrowed properly perform a differential diagnosis in that he determined that testicular torsion was on his diagnosis, but he failed to perform and document a reasonable and appropriate physical examination of Voshon s testicles, and he failed to order an ultrasound or other radiological imaging of Voshon s testicles to rule out testicular torsion. j. Dr. William Admire, acting as the actual or apparent agent or borrowed servant of Mobile Infirmary, breached the duty he owed to Voshon by otherwise failing to provide reasonable and appropriate medical care and treatment to Voshon that was required by the standard of care as shown by discovery and the testimony of expert witnesses. 17. Plaintiffs have failed to present substantial evidence that Mobile Infirmary or any of its alleged agents proximately caused Voshon Simpson s injury, based upon the alleged violations of the standard of care contained in paragraphs 75 of Plaintiffs First Amended Complaint above, separately and severally. 18. Plaintiffs have presented no evidence that Mobile Infirmary or any of its alleged agents proximately caused Voshon Simpson s injury, based upon the alleged violations of the standard of care contained in paragraphs 75 of Plaintiffs First Amended Complaint above, separately and severally. 19. Plaintiffs have failed to present sufficient, competent medical testimony that Voshon Simpson s injury was proximately caused by any negligence of Mobile Infirmary or any of its alleged agents. 6

7 20. Plaintiffs have presented no competent medical testimony that Voshon Simpson s injury was proximately caused by any negligence of Mobile Infirmary or any of its alleged agents. 21. Plaintiffs have failed to present sufficient, competent medical testimony to show any deviation by Mobile Infirmary or any of its alleged agents from the standard of care applicable to Voshon Simpson. 22. Plaintiffs have presented no competent medical testimony to show any deviation by Mobile Infirmary or any of its alleged agents from the standard of care applicable to Voshon Simpson. 23. Plaintiffs have presented insufficient testimony in this case by a medical expert qualified to testify under the law of Alabama that any act or acts, either of commission or omission, by Mobile Infirmary or any of its alleged agents were a proximate cause of Voshon Simpson s injury. 24. Plaintiffs have failed to present any testimony in this case by a medical expert qualified to testify under the law of Alabama that any act or acts, either of commission or omission, by Mobile Infirmary or any of its alleged agents were a proximate cause of Voshon Simpson s injury. 25. Plaintiffs have failed to present sufficient evidence that Voshon Simpson was suffering from testicular torsion on June 8, Plaintiffs have presented no evidence that Voshon Simpson was suffering from testicular torsion on June 8, Plaintiffs have failed to present substantial evidence to show that the applicable standard of care required diagnosis of testicular torsion on June 8,

8 28. Plaintiffs have presented no evidence to show that the applicable standard of care required diagnosis of testicular torsion on June 8, Plaintiffs have failed to present substantial evidence to show Dr. Admire failed to include testicular torsion in his differential diagnosis for Voshon Simpson on June 8, 2010 and that he failed to sufficiently rule it out. 30. Plaintiffs have presented no evidence to show Dr. Admire failed to include testicular torsion in his differential diagnosis for Voshon Simpson on June 8, 2010 and that he failed to sufficiently rule it out. 31. Plaintiffs have failed to present substantial evidence to show that Dr. Admire failed to arrive at a reasonable and accurate diagnosis of Voshon Simpson on June 8, Plaintiffs have presented no evidence to show that Dr. Admire failed to arrive at a reasonable and accurate diagnosis of Voshon Simpson on June 8, Plaintiffs have failed to present substantial evidence that the standard of care required Dr. Admire to order imaging studies of Voshon Simpson s testicles on June 8, 2010 based on his presentation of abrupt onset periumbilical abdominal pain, nausea, and vomiting. 34. Plaintiffs have presented no evidence that the standard of care required Dr. Admire to order imaging studies of Voshon Simpson s testicles on June 8, 2010 based on his presentation of abrupt onset periumbilical abdominal pain, nausea and vomiting. 35. Plaintiffs have failed to present substantial evidence that the standard of care required Dr. Admire to consult with and have Voshon Simpson evaluated by a urologist on June 8, 2010 based on his presentation of abrupt onset periumbilical abdominal pain, nausea and vomiting. 8

9 36. Plaintiffs have presented no evidence that the standard of care required Dr. Admire to consult with and have Voshon Simpson evaluated by a urologist on June 8, 2010 based on his presentation of abrupt onset periumbilical abdominal pain, nausea and vomiting. 37. Plaintiffs have failed to present substantial evidence that the standard of care required Dr. Admire to arrange to have Voshon Simpson admitted to the Hospital on June 8, 2010, as an inpatient for observation and appropriate diagnostic tests so that Voshon Simpson would be provided with appropriate care, treatment and procedures as indicated. 38. Plaintiffs have presented no evidence that the standard of care required Dr. Admire to arrange to have Voshon Simpson admitted to the Hospital on June 8, 2010, as an inpatient for observation and appropriate diagnostic tests so that Voshon Simpson would be provided with appropriate care, treatment and procedures as indicated. 39. Plaintiffs have failed to present substantial evidence of a breach of the standard of care related to Dr. Admire s performance and documentation of a reasonable and appropriate physical examination of Voshon Simpson s testicles on June 8, Plaintiffs have presented no evidence of a breach of the standard of care related to Dr. Admire s performance and documentation of a reasonable and appropriate physical examination of Voshon Simpson s testicles on June 8, Plaintiffs have failed to present substantial evidence to show diagnosis and treatment of testicular torsion in Voshon Simpson on June 8, 2010 could have prevented his injury. 42. Plaintiffs have presented no evidence to show diagnosis and treatment of testicular torsion in Voshon Simpson on June 8, 2010 could have prevented his injury. 9

10 43. Plaintiffs have failed to present substantial evidence in the form of expert testimony to show that had Voshon Simpson been diagnosed with testicular torsion on June 8, 2010, he would not have been injured. 44. Plaintiffs have presented no evidence in the form of expert testimony to show that had Voshon Simpson been diagnosed with testicular torsion on June 8, 2010 that he would have not been injured. 45. Plaintiffs have failed to present substantial evidence in the form of expert testimony from a urologist that even had Voshon Simpson been diagnosed with testicular torsion on June 8, 2010, the decision would have been made for him to undergo surgery and that the surgery could have prevented his injury. 46. Plaintiffs have presented no evidence in the form of expert testimony from a urologist that even had Voshon Simpson been diagnosed with testicular torsion on June 8, 2010, the decision would have been made for him to undergo surgery and that the surgery could have prevented his injury. 47. Plaintiffs have failed to present substantial evidence to show Voshon Simpson s injury was preventable. 48. Plaintiffs have presented no evidence to show Voshon Simpson s injury was preventable. 49. Plaintiffs have failed to produce competent medical evidence from a similarly situated expert as required by Ala. Code , that Mobile Infirmary or any of its alleged agents deviated from the standard of care in its care and treatment of Voshon Simpson. 10

11 50. Plaintiffs have failed to present any medical evidence from a similarly situated expert as required by Ala. Code , that Mobile Infirmary or any of its alleged agents deviated from the standard of care in its care and treatment of Voshon Simpson. 51. Plaintiffs evidence as to standard of care and to proximate cause of Voshon Simpson s injury is speculative, conjectural and insufficient as a matter of law. 52. Plaintiffs evidence as to proximate cause regarding Voshon Simpson s injury is not based on any reliable scientific evidence and is speculative, conjectural and insufficient as a matter of law. 53. Plaintiffs evidence as to proximate cause regarding Voshon Simpson s injury does not meet the requirements of Frye v. United States, 293 F. 1012, 1014 (D.C. Cir. 1923), Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), and related cases. 54. Plaintiffs evidence as to the standard of care regarding Voshon Simpson s injury does not meet the requirements of Frye v. United States, 293 F. 1012, 1014 (D.C. Cir. 1923), Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), and related cases. 55. Plaintiffs have no standard of care expert or a causation expert witness to support the allegations in their First Amended Complaint. Accordingly, Plaintiffs failure to provide expert witness testimony on the standard of care and any breach thereof which proximately caused Voshon Simpson s injury is insufficient as a matter of law and fails to comply with the statutory requirements of Ala. Code This Defendant claims the benefits and limitations of the Alabama Medical Liability Act of 1987, 1996, including through

12 57. Plaintiffs causes of actions set forth in Plaintiffs First Amended Complaint are barred by the doctrine of informed consent and informed risk of outcome. 58. Plaintiffs causes of action set forth in Plaintiffs First Amended Complaint are barred by the applicable statute of limitations. 59. Plaintiffs causes of actions set forth in Plaintiffs First Amended Complaint are barred by the affirmative defense of the assumption of risk. 60. Plaintiffs causes of actions set forth in Plaintiffs First Amended Complaint are barred by the affirmative defense of contributory negligence. 61. Plaintiffs causes of actions set forth in Plaintiffs First Amended Complaint are barred by the affirmative defense of intervening or superseding cause. 62. Plaintiffs causes of actions set forth in Plaintiffs First Amended Complaint are barred because the sole proximate cause of Voshon Simpson s injury was events, physiology, reactions and conditions which could not have been anticipated by Mobile Infirmary or any of its alleged agents in the exercise of reasonable care applicable to healthcare practitioners. 63. Plaintiff s causes of action set forth in Plaintiffs First Amended Complaint are barred by the medical releases executed or given with the medical treatment at issue. 64. Plaintiff s causes of action set forth in Plaintiff s First Amended Complaint are barred because to the extent Plaintiffs suffered any damages, such damages were caused by, and are the responsibility of persons, parties, and/or entities other than this Defendant. 65. Plaintiffs causes of action set forth in Plaintiffs First Amended Complaint are barred because Voshon Simpson s injuries were not the proximate result of any care or treatment rendered by this Defendant at the times and places set forth in Plaintiffs First Amended Complaint. 12

13 66. Plaintiffs causes of action set forth in Plaintiffs First Amended Complaint are barred because Plaintiffs have failed to comply with the Alabama Medical Liability Act. 67. Plaintiffs causes of action set forth in Plaintiffs First Amended Complaint are barred by the doctrines of judicial estoppel, res judicata, claim preclusion, issue preclusion and/or collateral estoppel. 68. Any claims against this Defendant based on the conduct of Dr. William Admire are barred because Dr. Admire is a necessary party to this proceeding pursuant to Rule 19 of the Alabama Rules of Civil Procedure, yet Plaintiffs failed to name him as a Defendant. 69. Any claims against this Defendant predicated on an agency theory are barred because Plaintiffs have failed to name Dr. William Admire as a party to this action. 70. Any claims against this Defendant are barred because complete relief cannot be afforded in this matter in Dr. William Admire s absence because Plaintiffs failure to name him as a party will impede and/or impair both Dr. Admire and this Defendant s respective abilities to protect their interests in this matter. 71. Any claims against this Defendant are barred because complete relief cannot be afforded in this matter in Dr. William Admire s absence because it may result in conflicting or inconsistent factual findings or obligations. 72. Any claims against this Defendant predicated on an agency theory are barred because Plaintiffs have failed to name Dr. William Admire as a party to this action. 73. Any damages against this Defendant based on Plaintiffs claims for mental and emotional distress violate the Alabama and United States Constitutions because they are unconstitutionally vague, arbitrary and capricious. 13

14 74. Any damages against this Defendant based on Plaintiffs claims for compensatory damages for pain and suffering, mental anguish or emotional distress would violate this Defendant s guarantee of due process and equal protection under the laws as established by the United States Constitution and the Alabama Constitution as the standards for assessing the propriety of an amount of such damages violate Constitutional prohibitions against vague and overbroad laws. 75. Any award of damages against this Defendant based on Plaintiffs claims for mental pain and suffering, emotional distress or similar damages, if any, would violate this Defendant s Fifth and Fourteenth Amendment rights under the United States Constitution and Article I, Section 6 of the Alabama Constitution, which prohibit deprivation of life, liberty or property except by due process of law, because there is no fixed, objective and/or clear and consistent standard under Alabama law for ascertaining the amount thereof. 76. Any award of damages against this Defendant based on Plaintiffs claims of mental pain and suffering would violate this Defendant s due process rights under the United States Constitution and similar provisions of the Alabama Constitution because the rules of evidence as applied by Alabama courts permit the admission of improper evidence. 77. Any award of damages against this Defendant is subject to any statutory cap, whether still in effect or having been previously declared unconstitutional. 78. Plaintiffs have failed to present substantial evidence from which a jury could reasonably conclude that they are entitled to recover from Mobile Infirmary for the injury to Voshon Simpson. 14

15 79. Plaintiffs have presented no evidence from which a jury could reasonably conclude that they are entitled to recover from Mobile Infirmary for the injury to Voshon Simpson. 80. This Defendant incorporates by reference as if fully set out herein all affirmative defenses raised in its Answer to Plaintiffs First Amended Complaint. 81. Plaintiffs have failed to prove through substantial evidence that Mobile Infirmary breached the standard of care and proximately caused Voshon Simpson s injuries by negligently failing to follow recognized standards and procedures regarding treatment of Voshon Simpson s condition. 82. Plaintiffs have presented no evidence that Mobile Infirmary breached the standard of care and proximately caused Voshon Simpson s injuries by negligently failing to follow recognized standards and procedures regarding treatment of Voshon Simpson s condition. 83. Plaintiffs have failed to prove through substantial evidence that Mobile Infirmary breached the standard of care and proximately caused injuries to Voshon Simpson by negligently failing to properly diagnose his alleged testicular torsion. 84. Plaintiffs have presented no evidence that Mobile Infirmary breached the standard of care and proximately caused injuries to Voshon Simpson by negligently failing to properly diagnose his alleged testicular torsion. 85. Plaintiffs have failed to prove through substantial evidence that Mobile Infirmary breached the standard of care and proximately caused Voshon Simpson s injuries by negligently failing to otherwise exercise due care with respect to the care and treatment of Voshon Simpson. 15

16 86. Plaintiffs have presented no evidence that Mobile Infirmary breached the standard of care and proximately caused Voshon Simpson s injuries by negligently failing to otherwise exercise due care with respect to the care and treatment of Voshon Simpson. 87. Plaintiffs have failed to prove through substantial evidence that Mobile Infirmary s alleged violation of the standard of care probably caused the injuries and damages contained in their First Amended Complaint. 88. Plaintiffs have presented no evidence that Mobile Infirmary s alleged violation of the standard of care probably caused the injuries and damages alleged in their First Amended Complaint. 89. Plaintiffs have failed to present any evidence that this Defendant breached the standard of care and proximately caused Voshon Simpson s injuries. 90. Plaintiffs have failed to present substantial evidence that Mobile Infirmary and/or its agents alleged failure to diagnose and treat Voshon Simpson s alleged testicular torsion was a breach of the standard of care. 91. Plaintiffs have presented no evidence that Mobile Infirmary and/or its agents alleged failure to diagnose and treat Voshon Simpson s alleged testicular torsion was a breach of the standard of care. 92. Plaintiffs have failed to present substantial evidence that Mobile Infirmary and/or any of its alleged agents alleged failure to diagnose and/or treat Voshon Simpson s alleged testicular torsion proximately caused his injuries. 93. Plaintiffs have presented no evidence that Mobile Infirmary and/or any of its alleged agents alleged failure to diagnose and/or treat Voshon Simpson s alleged testicular torsion proximately caused his injuries. 16

17 94. Plaintiffs have failed present substantial evidence that Alisa Simpson was caused to incur hospital, medical, physician, and pharmaceutical expenses as a result of any breach of the standard of care by this Defendant. 95. Plaintiffs have failed to present any evidence that Alisa Simpson was caused to incur hospital, medical, physician, and pharmaceutical expenses as a result of any breach of the standard of care by this Defendant. 96. Plaintiffs have failed to present substantial evidence that Alisa Simpson was caused to incur hospital, medical, physician, and pharmaceutical expenses as a result of any breach of the standard of care by any individual for whose actions this Defendant is liable. 97. Plaintiffs have failed to present any evidence that Alisa Simpson was caused to incur hospital, medical, physician, and pharmaceutical expenses as a result of any act or failure to act by any individual for whose actions this Defendant is liable. ALTERNATIVE MOTION FOR NEW TRIAL Mobile Infirmary adopts and incorporates, as if expressly set forth herein, all grounds set forth in its Renewed Motion for Judgment as a Matter of Law, as grounds for a Motion for New Trial and further shows that it is entitled to a new trial for the following additional reasons: 1. The jury verdict of $2,000,000 is so excessive as to indicate it was the result of bias, passion, prejudice, or other improper motive or some mistaken view of the merits of the case. 2. The jury verdict of $2,000,000 is so excessive as to shock the conscience of this Court. 17

18 3. To the degree it awarded damages for mental anguish, the jury verdict is excessive and not supported by the testimony at trial which provided little or no direct evidence concerning the degree of mental suffering experienced by the Plaintiff. 4. The jury s finding that Dr. Admire was acting as the agent of Mobile Infirmary is contrary to the great weight and preponderance of the evidence. 5. The jury s finding that Dr. Admire breached the standard of care is against the great weight and preponderance of the evidence. 6. The jury s finding that any breach of the standard of care by Dr. Admire proximately caused Plaintiff s injuries or damages is against the great weight and preponderance of the evidence. 7. The jury verdict in this case was against the great weight and preponderance of the evidence. 8. The Court committed prejudicial error by admitting into evidence opinion testimony by Dr. Mellick, who is not a urologist, on the issue of proximate causation for Plaintiff s injuries. 9. The Court committed prejudicial error by admitting into evidence mortality tables where the Plaintiff presented no evidence of permanent injury and the jury was not charged as to any permanent injury. 10. The Court exceeded its discretion in reopening the case, after both parties had rested, to allow Plaintiff to introduce the mortality tables as additional evidence. By this late admission of evidence, after both sides had rested, Mobile Infirmary was prejudicially deprived of the opportunity to cross-examine witnesses on the impact of the injury upon the Plaintiff, if any, over his lifetime. 18

19 11. The Court committed prejudicial error in charging the jury as to an award of damages for any permanent disfigurement. No evidence was introduced that the Plaintiff s loss of a testicle resulted in any disfigurement of Plaintiff s appearance. 12. The Court committed prejudicial error, in requiring the jury to answer a special interrogatory, on verdict number 1, relating to whether Dr. Admire was acting as an agent of Mobile Infirmary or as an independent contractor. No such special finding was necessary to the verdict, as required under Rule 49(c), in order to justify the giving of a general verdict accompanied by special interrogatories. The special interrogatory forced the jury to first address an issue that was unnecessary to address in this medical malpractice action if the jury had concluded that Dr. Admire had not violated the standard of care or that any breach of the standard of care did not proximately cause any injuries or damages to the Plaintiff. The special interrogatory unnecessarily and prejudicially restricted the freedom of the jury to address itself first to the issues most easily resolved by the jurors as a whole, in the interests of efficiency and economy. 13. The Court committed prejudicial error in failing to provide the verdict form with special interrogatory to defense counsel within a reasonable time before arguments made to the jury, as required under Rule 49(d), Ala. R. Civ. Proc. REQUEST FOR CONDITIONAL REMITTITUR 1. Pursuant to Rule 59(f), Ala. R. Civ. Proc., and Alabama Code and in the event this Court determines not to enter judgment as a matter of law for Mobile Infirmary or to grant its motion for new trial, Mobile Infirmary would seek a remittitur of the damages awarded against it as a condition of the overruling of the motion for new trial. 19

20 s/ A. Edwin Stuardi, III A. EDWIN STUARDI, III (STU018) RUSSELL C. BUFFKIN (BUF008) Attorneys for Defendant Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center OF COUNSEL: HELMSING, LEACH, HERLONG, NEWMAN & ROUSE, P.C. Post Office Box 2767 Mobile, Alabama Telephone: (251) Facsimile: (251) CERTIFICATE OF SERVICE I hereby certify that I have on this the 8th day of February, 2017, served a copy of the foregoing pleading by hand delivery and by electronic filing with the Clerk of Court using the AlaFile system, which will send notification of such filing to the following: Charles A. Bentley, Jr., Esq. BENTLEY LAW OFFICES, P.A. Post Office Box Durham, North Carolina J. Allan Brown, Esq. Joseph F. McGowin, IV, Esq. LAW OFFICE OF J. ALLAN BROWN, L.L.C Dauphin Street Mobile, Alabama Doc /s/ A. Edwin Stuardi, III OF COUNSEL