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Russell C. Buffkin

Helmsing, Leach, Herlong, Newman & Rouse, P.C.

Russell C. Buffkin - Helmsing Law

INTRODUCTION

With more than 20 years of experience as a litigator, Russell focuses on complex civil litigation with an emphasis on personal injury, product liability and medical malpractice defense. His practice encompasses a broad scope and includes defending product manufacturers, professional malpractice defense, construction related litigation, extra-contractual and bad faith insurance defense, and complex commercial litigation. Most of the cases Russell handles are catastrophic injury or wrongful death cases, but even small claims are defended with the same vigor and attention to detail. Russell has tried several cases to verdict in Alabama and has numerous reported decisions on issues decided by the appellate courts.

Russell is active in the Mobile community, serving as a Board member for St. Paul’s Episcopal School and the Cawthon Foundation. He is also a former Board member of the: Wilmer Hall Children’s Home, State of Alabama Prepaid Affordable College Tuition (PACT) Program, Alabama 529 Fund and MCS Real Estate Company. He has also served as a Vestry member at his church, St. Paul’s Episcopal Church.

Russell is married to Mollie (Smith) Buffkin, an interior decorator in Mobile, and they have three wonderful children. Beyond practicing law, Russell is an avid outdoorsman and enjoys supporting his children in their various activities, attending Alabama sporting events, playing golf, and spending time at the beach with his family.

PRACTICE AREAS AND FOCUS

A large component of Russell’s current practice is medical malpractice defense representing the largest healthcare system in South Alabama with multiple hospitals and facilities in Mobile and Baldwin counties. These high-stake cases typically involve significant catastrophic injuries or deaths, with complex discovery that often leads to contentious disputes. When necessary, appeals or writs of mandamus has been filed to preserve the rights of his clients. Russell’s recent trials have been in this area of practice.

Throughout his career, Russell has represented manufacturers, distributors, and retailers across many industries, including: pharmaceutical, medical device, aviation, railroad, watercraft, recreational vehicles, trucking, chainsaws, power tools, construction products, home appliances, exercise equipment, and other products that have led to injuries. These cases have been pending in state and federal court in Alabama and throughout the United States, but mainly in the Southeast.

In addition to personal injury, product liability, and medical malpractice defense, Russell has regularly handled construction-related matters. He has represented developers, general contractors, sub-contractors, engineers, architects, building product manufacturers and suppliers in all aspects of construction and real estate disputes. This has included enforcing or challenging construction (i.e., mechanics) liens.

Because of Mobile’s proximity to the Gulf of Mexico, Russell has considerable experience representing insurance companies related to the many challenges they face after hurricanes and other natural disasters. He has successfully defended numerous extra-contractual and bad faith cases for multiple insurance companies on these and other litigated issues.

Russell’s practice also involves counseling clients on employment matters, ranging from on-the-job injuries to enforcement of non-compete agreements. This has led to litigation involving preliminary and permanent injunctions as well as other equitable relief. He has also handled worker’s compensation matters before and after litigation.

During his career, Russell has had the privilege of being involved in numerous mass tort and multi-district litigation cases, serving on the national counsel team as well as being state or local counsel. The Helmsing Leach firm’s mass tort and MDL clients include several of the world’s largest drug and medical device manufacturers. Russell also served on the in-state litigation team representing one of the primary defendants in the Deepwater Horizon oil spill in the Gulf of Mexico litigation. These types of cases have been pending in some of the most challenging venues.

Russell is active in the: International Association of Defense Counsel, Trial Attorneys of America, Defense Research Institute, Alabama Defense Lawyers Association, Mobile Bar Association, and the Alabama State Bar. Russell is AV-rated by Martindale, and has been selected to Super Lawyers and Best Lawyers since 2012 and 2013, respectively.

SIGNIFICANT AND REPRESENTATIVE REPORTED CASES

Russell has handled several hundred cases of various types throughout his career. During this time, he has had numerous reported opinions or other significant decisions in cases where he represented one of the parties. Below are some of the reported decisions as well as some of the significant outcomes or representative cases in which he was involved.

Reported Cases:

  • Ex parte Mobile Infirmary Association, 278 So. 3d 1195 (Ala. 2018)(granting hospital Defendant’s petition for writ of mandamus and finding trial court exceeded its discretion when it ordered hospital to produce information unrelated to allegations in  Complaint that was protected from discovery by Alabama Code § 6-5-551 and quality assurance information exempt from discovery pursuant to Alabama Code § 22-21-8)
  • Ex parte Mobile Infirmary Association, 279 So. 3d 1129 (Ala. 2018)(in a different case than above, Alabama Supreme Court granted hospital’s petition for writ of mandamus and ordered trial court to vacate portion of protective order allowing discovery of other acts or omissions in violation of § 6-5-551; Court ruled that sharing provisions are inappropriate and prohibited by Alabama Medical Liability Act) 
  • DocRX, Inc. v. InforMD, 2015 WL 3503170 (S.D. Ala. June 2, 2015)(granting motion to stay proceedings in complex commercial dispute involving royalties and payments due under business agreements pending a decision by Louisiana court on the application of the first-filed rule to actions pending in Alabama and Louisiana) 
  • Whitney Bank v. Swearingen, 2012 WL 5303745 (S.D. Ala. October 24, 2012)(granting in part Plaintiff bank’s motion for summary judgment on claims related to foreclosure, violation of constitutional due process rights, and adequacy of purchase price of property at foreclosure)
  • Whitney Bank v. Marr, 2012 WL 13076709 (S.D. Ala. September 19, 2012)(granting Plaintiff bank’s motion for summary judgment on liability and damages in foreclosure action) 
  • Palm Beach Vacation Owners Association, Inc. v. Escapes!, Inc., 2012 WL 13059075 (S.D. Ala. September 17, 2012)(granting in part and denying in part Defendants’ motion to dismiss in complicated condominium timeshare case)  
  • Palm Beach Vacation Owners Association, Inc. v. Escapes!, Inc., 2012 WL 2368335 (S.D. Ala. June 21, 2012)(granting Defendants’ motion to compel arbitration) 
  • Palm Beach Vacation Owners Association, Inc. v. Escapes!, Inc., 2012 WL 13059074 (S.D. Ala. June 6, 2012)(granting Defendants’ motion to stay discovery in federal court on claims subject to arbitration)
  • Adamson v. Smithkline Beecham Corp., 2012 WL 526048 (Feb. 16, 2012)(denying Defendant’s motion to reconsider remand based on lack of jurisdiction of district court remand order and denying Plaintiff’s motion for attorney’s fees and costs)
  • In re Trinsic, Inc., 2010 WL 2712254 (S.D. Ala. July 6, 2010)(affirming decision of Bankruptcy Court denying Defendant’s motion to compel production of documents withheld based on attorney-client privilege and finding that there had been no waiver of privilege for documents at issue in complex commercial litigation) 
  • Ward v. Real Ships, Inc., 2009 WL 2783217 (S.D. Ala. Aug. 31, 2009)(dismissing Defendant/Counter-Plaintiff’s claims against Plaintiff/Counter-Defendants and ordering entry of default judgment against Defendant/Counter-Plaintiff as sanction for bad faith, unresponsiveness, contumacious and dilatory conduct)
  • Ward v. Real Ships, Inc., 2009 WL 3528365 (S.D. Ala. Oct. 22, 2009) (entering order granting Plaintiffs’ motion for default judgment against Defendant for $2,123,148.49, based on evidence of damages presented by Plaintiffs in commercial litigation involving construction of vessel)
  • Deborah Kerr v. Sunrise Village, 72 So. 3d 726 (Ala. 2009)(Defense verdict affirmed on appeal, motion for rehearing denied, 76 So. 3d 870 (Ala. 2010))
  • Marks v. Quicken Loans, Inc., 561 F. Supp. 2d 1259 (S.D. Ala. May 9, 2008)(granting Defendant’s motion to dismiss breach of contract and RESPA claims)
  • Wyatt v. Matrixx Initiatives, Inc., 2007 WL 7238402 (N.D. Ala. March 30, 2007)(granting Defendants’ motion to exclude Plaintiff’s expert testimony and finding that, absent expert testimony, Plaintiff could not prosecute claims against Defendants)
  • Sutherland v. Matrixx Initiatives, Inc., 2006 WL 6617000 (N.D. Ala. Nov. 7, 2006)(granting Defendant’s motion to exclude Plaintiff’s expert testimony based on proof of unsound methodology and granting Defendant’s motion for summary judgment since, in absence of expert to connect toxin to injury, a claim for toxic tort fails as a matter of law)
  • Benkwith v. Matrixx Initiatives, Inc., 467 F. Supp .2d 1316 (M.D. Ala. 2006) (granting Defendants’ motion to exclude Plaintiff’s expert witness based on Rule 702 of the Federal Rules of Evidence, Daubert v. Merrell Dow Pharm., Inc. and McClain v. Metabolife Int’l and granting Defendants’ motion for summary judgment)
  • Lee v. Mercury Marine, 823 So. 2d 694 (Ala. Civ. App. 2001)(affirming trial court’s order granting Defendant’s motion for summary judgment and denying award of mental anguish damages)

     

Significant Outcomes and Representative Cases:

  • Voshon Simpson v. Mobile Infirmary — personal injury — Trial of case where Plaintiff alleged that the ER physician was an agent of Mobile Infirmary and failed to diagnose testicular torsion in a child, resulting in surgical removal of the child’s testicle. Trial in Mobile County Circuit Court ended with a mistrial after three days of trial.
  • Voshon Simpson v. Mobile Infirmary — personal injury — Re-trial of earlier case that ended in a mistrial. Jury returned a verdict for Plaintiff, which was vacated when the trial judge granted Mobile Infirmary’s post-trial motion. Plaintiff appealed; however, the Alabama Supreme Court affirmed the finding by the trial court that Mobile Infirmary was not liable to the Plaintiff. A complete victory for Defendant hospital.  
  • Marjorie Cleveland v. Thomas Hospital — wrongful death — Trial ended with a jury verdict in favor of Defendant Thomas Hospital after a two-week trial. Plaintiff alleged that the hospitalist was an agent of Thomas Hospital and did not treat or refer a patient for immediate treatment of a brain aneurysm, which ruptured two days after the patient went home from the hospital.  The verdict was affirmed on appeal. 
  •  Sharon Juno v. Thomas Hospital — wrongful death — Trial in the most challenging of cases ended with a nine-figure verdict against all Defendants after a two-week trial.  The case involved a medical transcription error that resulted in a patient receiving too much medication, causing her death.  Discovery included two weeks of depositions in Mumbai and New Delhi of the corporate representatives of the India-based transcription companies.  The case was resolved favorably for the client post-trial, before an appeal was taken.     
  • Luvenia T. Lewis v. American National Property and Casualty Co. — bad faith — Trial of a fire claim where the Plaintiff claimed over $300,000 in damages to her home.  Mobile County jury awarded plaintiff $750.  The judgment was immediately satisfied after the verdict. 
  • Deborah Kerr v. Sunrise Village — breach of fiduciary duties/injunctive relief — Trial in Baldwin County related to hurricane damages and the Board’s decision to not rebuild 35-unit condominium complex in Gulf Shores.  Following three-day trial, a defense verdict rendered, which was affirmed on appeal.   
  • John Ladd v. Mobile Infirmary — wrongful death — Summary judgment granted, and Mobile Infirmary was dismissed from the case involving a patient who died from an infection that developed several weeks following spine surgery.  After the case was developed through discovery and the Defendants’ experts were identified, Mobile Infirmary filed a motion for summary judgment based on the argument that Plaintiff could not, through her experts, establish that any Mobile Infirmary agent or employee breached the standard of care. 
  • Shawn Todd v. Mobile Infirmary — personal injury — Summary judgment was granted, and Mobile Infirmary was dismissed from the case brought by Plaintiff who suffered damage to both ureters during a hysterectomy using a DaVinci robot. The case was featured on NBC national news and on CNBC Investigates. A total of ten depositions of current and former Mobile Infirmary employees were taken. Mobile Infirmary moved for summary judgment based on Plaintiff’s inability to demonstrate that the product made the basis of the alleged recall had been involved in the surgery; based on Plaintiff’s inability to provide expert testimony concerning alleged breaches of the standard of care; and based on its assertion that Plaintiff’s nursing experts were not qualified to testify as experts under Alabama law.
  • Colby Stewart v. Infirmary Health Urgent Care – Gulf Shores, P.C.  — personal injury — Summary judgment granted in case involving an IHS-affiliated urgent care clinic’s alleged failure to diagnose a 12-year-old boy’s testicular torsion, resulting in the loss of his testicle. After extensive discovery and depositions of experts, summary judgment was granted.  The case went to trial against the physician. 
  • Marcus Comalander v. Mobile Infirmary — wrongful death — Summary judgment was granted in Mobile Infirmary’s favor dismissing all claims against the hospital.  The case involved a post-surgery complication where the patient became unresponsive and suffered respiratory failure.  Plaintiff alleged breach of the standard of care by hospital nurses, and asserted claims against the physician who performed the surgery. Plaintiff, who had been appointed as administrator ad litem of the estate, was never properly appointed as the Personal Representative, and no motion to substitute a proper personal representative was filed before the statute of limitations expired.  Mobile Infirmary successfully defended against Plaintiff’s claim that appointment as administrator ad litem was sufficient to preserve claims and defeat summary judgment.
  • Connie Freeman Littlepage, III v. Stihl — personal injury — Summary judgment granted and claims of product liability against Stihl dismissed.  Plaintiff asserted claims under the Alabama Extended Manufacturers Liability Doctrine for personal injuries suffered as a result of alleged defects in a chainsaw.  Stihl filed a motion for summary judgment based on Plaintiff’s failure to establish a defect with the design, manufacture, or warnings for the chainsaw.  
  • Southern Group v. Sherwin Williams — property damage and lost profits — Developer claimed several million dollars in damages in four separate condominium complexes.  Summary judgment was granted and all claims against Sherwin Williams dismissed with no money contributed to global settlement.  Case involved over 75 depositions, several weeks of expert depositions and multiple days of mediation. 
  • Nickerson v. GEICO — bad faith — Full indemnity including attorneys’ fees obtained for client against co-Defendant after extensive discovery in the handling of a fire loss claim where damages were approaching seven-figures.  
  • Faye’s Used Auto v. Coachmen Recreational Vehicles — personal injury — Summary judgment in a claim alleging product liability defects in RV.  
  • Virgie McCord v. Mercury Marine — wrongful death — Summary judgment for manufacturer of boat motor granted in tragic case where Plaintiff alleged that prop strike killed passenger thrown from boat. Client proved there was no alternative feasible design and prevailed on AEMLD and other claims asserted by Plaintiff. 
  • Thomas Parker v. Sherwin Williams — property damage — Summary judgment in claim for property damage to residential home from allegedly defective product.  
  • Mercury Marine v. Edmund H. Smith — collection — Judgment obtained for client in connection with theft of multiple marine outboard motors.  
  • Ladd Supply Co. v. Huttig Building Products — property damage and lost profits—Building product client was dismissed as a party after extensive discovery in case where developer was seeking to recover damages from a failed project in the Panhandle of Florida and alleged defects in products used in the project.
  • Sherry Bell v. North Baldwin Infirmary — corporate negligence & medical negligence — Plaintiffs filed a motion to dismiss the claims against North Baldwin Infirmary, with prejudice, after extensive discovery was conducted. Plaintiffs’ case asserted claims of corporate negligence against North Baldwin Infirmary and medical negligence claims against the physician who performed a hip replacement surgery on Plaintiff. The claims against North Baldwin Infirmary were based on its decision to grant privileges to the physician. 
  • Denise Carroll v. Cook, Inc., — wrongful death — Following a complication during an interventional peripheral artery procedure where stent became entangled in vascular sheath, patient died, and family sued physician along with device manufacturers.  Case was settled favorably for client after lengthy discovery, expert depositions and multiple corporate representative depositions. 
  • Lesandra Jones v. Thomas Hospital — personal injury — Plaintiff’s claims against the hospital were settled for less than a quarter of the initial demand in this challenging case involving a 32-year-old female who suffered a permanent brain injury and total disability as a result of treatment by ED physician alleged to be agent of hospital. Over thirty depositions were taken, and the reasonableness of the life care plan damages (exceeding $25 million) were vigorously contested.  Ultimately, using a creative settlement package, the case was resolved with a favorable result for the client.   
  • Debra Dotson v. Mobile Infirmary — wrongful death — Plaintiff alleged the decedent suffered opioid induced respiratory depression following routine knee replacement surgery. Plaintiff’s initial demand was low eight-figures. Through vigorous investigation and numerous depositions, Mobile Infirmary established that the patient’s will was a forgery and that the Personal Representative/Plaintiff had perjured herself in Probate Court in connection with her appointment.  Mobile Infirmary filed several petitions and appeals with the Alabama Supreme Court related to the forgery issue, seeking a ruling that would lead to a dismissal of the case. The combined effect of the damaging facts uncovered during discovery and the possibility that the case could be dismissed led Plaintiff to aggressively seek settlement of the case and ultimately agree to a very favorable settlement for the client.
  • RWS Construction v. Louisiana Pacific — construction dispute — Prosecuted claims on behalf of structural steel erection contractor to collect several million dollars owed for work performed during the construction of a large industrial plant in Thomasville, Alabama.  After extensive discovery, case resolved satisfactorily for the client.  
  • Tameka James v. Mobile Infirmary — personal injury & wrongful death — This case involved an alleged wrongful procedure performed on a patient (gastric by-pass as opposed to gastric band). The case began as a personal injury claim, but a wrongful death claim was added after the patient died. After extensive discovery including the deposition of the surgeon and seven nurses, the case settled for low five figures.
  • James Louden v. Mobile Infirmary — personal injury — Plaintiffs alleged that Mobile Infirmary’s nurses failed to timely recognize changes in a patient’s neurological condition after cervical spine surgery and that the patient suffered severe permanent injuries because of complications resulting from the development of multiple post-surgical hematomas.  Plaintiffs’ initial demand was low eight-figures, but after extensive discovery involving investigation into the patient’s true residual injuries, the case was settled for low six-figures.
  • Evergreen Lumber and Truss v. Case Construction — construction dispute — Sub-contractor sought over $700,000 for alleged cost overruns.  General contractor client resolved the claim for five-figure settlement for only the work Plaintiff could document was performed according to the specifications of the contract. 
  • Gary Floyd Hall v. Mobile Infirmary — wrongful death —This case involved a patient who was transferred to Mobile Infirmary from a rural hospital after rapid deterioration in his condition.  The patient suffered a code event as care was being transferred from the ambulance to the ICU.  Plaintiff alleged that the patient was not properly managed or ventilated after he arrived at Mobile Infirmary, causing his respiratory and cardiac failure.  Extensive fact discovery was conducted, and it became clear that Plaintiff and co-Defendants were working to develop a theme involving EMTALA violations in addition to medical negligence.  Plaintiff’s initial demand exceeded a million dollars, with the claims against Mobile Infirmary ultimately being settled for low six-figures.  
  • Charles King v. Mobile Infirmary — wrongful death — This case involved a patient with multiple co-morbidities who developed a pressure sore while hospitalized for a leg amputation.   He was re-admitted with an infection, necrotizing fasciitis and later died.   After making an initial demand approaching seven-figures, the case settled for low six-figures.  
  • Ranger Environmental v. Smith Industrial Service, Inc. – employment/enforcement of noncompete — This case was filed to enforce the terms of an employment agreement between Ranger and one of its former employees, including a covenant not to compete.  Ranger also alleged that Smith Industrial was interfering with Ranger’s contractual relationship with its former employee.  Just before a hearing was held to decide the issues, the parties settled the case on terms favorable to Ranger, preserving its ability to enforce restrictive covenants against its current and former employees.
  • Angela Anthony v. Oschatz GmbH — personal injury & wrongful death — Very challenging case where decedent suffered burns over more than half his body as a result of an industrial accident at the Outokumpo steel plant in Calvert, Alabama.  The individual survived several weeks before succumbing to his injuries. The client was the architect of the industrial vent system at issue, and asserted defenses of contributory negligence and breaches in safety by the plant.  After discovery, which included depositions in Germany, settlement obtained for client in low six-figures.   
  • Tom Barrow & Co. v. MW Industrial — collection and lien — Obtained judgment and satisfaction for supplier on construction project after filing suit to enforce lien and under breach of contract theories. 
  • Homer Bumann v. DePuy — personal injury — Plaintiff alleged product defects in prosthetic hip implant.  After the parties filed expert disclosures and dispositive motions, Plaintiff settled case for nominal amount. 
  • McDonald v. Brunswick — wrongful death — Family filed suit against manufacturer of steering rod that failed while operator was driving boat at high rate of speed causing boat to jack-knife and eject driver, who drowned.  Client was able to prove the steering rod was an aftermarket product that had been altered by operator.  Case settled for nominal amount.