In Ex parte Capstone Building Corp., ___ So. 3d ___, 2011 WL 2164027 (Ala. June 3, 2011), the Supreme Court of Alabama made clear that the limitations period for wantonness claims in Alabama is two years.  In doing so, the Court overruled Ex parte McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004) and Carr v. International Refining & Manufacturing Co., 13 So. 3d 947 (Ala. 2009), in which the Court had disposed of wantonness claims by applying the six-year statute of limitations for actions alleging “trespass to person or liberty.”  After McKenzie was released, litigants and trial courts struggled with the issue, uncertain what McKenzie stood for.  Indeed, the highest court itself didn’t always follow what appeared to be McKenzie’s holding.  For example, in Boyce v. Cassese, 941 So. 2d 932, 946 (Ala. 2006), the Court “readily dispose[d]” of the plaintiffs’ wantonness claims based on a two year statute of limitations.  The confusion was cleared up somewhat in Carr, in which four justices concurred in a detailed opinion discussing McKenzie and applying the six-year limitations period to a wantonness claim.  But four other justices concurred only in the result in Carr and another dissented outright.  Capstone overrules McKenzie and Carr and expressly holds (at least on a going-forward basis) that the statute of limitations for wantonness claims in Alabama is two years.  Unfortunately for defendants in some cases (and fortunately for their adversaries), the Court in Capstone decided against applying its holding retroactively.

Recently, in Springhill Hospitals, Inc. v. Critopoulos, ___ So. 2d ___ 2011 WL 5607816 (Ala. Nov. 18, 2011), the Alabama Supreme Court reversed the trial court’s ruling that a plaintiff’s expert witness, a registered nurse, was qualified to testify as to the standard of care in the plaintiff’s medical malpractice claim.  The witness testified that nurses who had cared for the plaintiff after his bypass surgery breached the standard of care by allegedly failing to turn and reposition the plaintiff every two hours during his recovery.  The trial court denied the defendants’ motion to exclude the nurse’s testimony, and the jury returned a verdict in favor of the plaintiff.

On appeal, the Alabama Supreme Court held that the nurse was not a “similarly situated healthcare provider,” which would have qualified her to testify regarding the care of plaintiff while he was in the cardiac-recovery and cardiac-intervention units.  As a wound-care nurse, the witness had some experience performing clinical services typically performed by cardiac-recovery nurses, such as checking vital signs and blood pressure, but she had never provided direct, hands-on care as a staff nurse to patients who were in immediate post-recovery in the cardiac-recovery unit.  On cross-examination, the nurse admitted that she did not have the experience necessary to monitor various aspects of the plaintiff’s post-surgical recovery, such as cardiac output, cardiac index, systemic vascular resistance, and central venous pressure.  She also admitted that she was not qualified to provide overall care to a patient in post-operative cardiac recovery.

In reaching its conclusion, the Court relied on Dempsey v. Phelps, 700 So. 2d 1340 (Ala. 1997), which held that a witness experienced in orthopedics was not qualified to testify regarding the vascular complications and infection a patient had experienced after his orthopedic surgery.

Because the only evidence of breach of the standard of care offered by the plaintiff in Critopoulos was the nurse’s testimony, the Court not only reversed the trial court’s ruling that the referenced testimony was admissible but also remanded the case for entry of a judgment as a matter of law in favor of the defendants.

Helmsing Leach attorneys Joseph P. H. Babington and Andy Stivender co-authored an article discussing the Alabama Legislature’s recent tort-reform measures.  The new legislation decreases the period of repose for claims against architects, engineers, and builders, reduces the interest rate on money judgments, affects the venue of wrongful death cases, protects non-manufacturer sellers from product liability claims, and changes the standard for the admission of expert testimony.  The article appears in the Fall, 2011 issue of the Alabama Defense Lawyers Association Journal.  Click here to view the article.

 In Ex parte Thomasville Feed & Seed, Inc., ___ So. 3d ___, 2011 WL 2573049 (Ala. June 30,  2011), a cattle farmer sued Thomasville Feed & Seed, Inc., in the Wilcox Circuit Court, alleging that fertilizer the farmer purchased from Thomasville’s store in Clarke County was defective under the Alabama Extended Manufacturer’s Liability Doctrine and killed his grass.  Thomasville filed a petition for the writ of mandamus with the Supreme Court after the trial court denied its motion to transfer the action to Clarke County.  In granting the writ, the Court agreed with Thomasville, noting that § 6-3-7, Ala. Code 1975, requires civil actions against corporations to be brought in the county in which a substantial part of the events or omissions giving rise to the action occurred (or where a substantial part of real property that is the subject of the action is located), in the county of the corporation’s principal office in Alabama, or in the county in which the plaintiff resided at the time his claim accrued, but only if the corporate defendant does business in that county.  If none of these options applies, then the action may be commenced in any county in which the corporate defendant was doing business at the time the claim accrued.

 

Thomasville’s president submitted an affidavit showing that Thomasville did business only in Clarke County where its store is located, thereby shifting the burden to the plaintiff to show that Thomasville did indeed do business in Wilcox County.  The plaintiff submitted nothing in response and therefore failed to satisfy his burden.

 

The Court also concluded that the events giving rise to the plaintiff’s claim occurred in Clarke County where the sale of the allegedly defective fertilizer occurred, not in Wilcox County where the plaintiff’s grass was killed.  “The events or omissions giving rise to the claim” refers to the wrongful acts or omissions of the corporate defendant.  In this case, that was the sale of an allegedly defective product.  Finally, the Court held that the cattle farm where the grass died was not the subject of the plaintiff’s action and could not support venue in Wilcox County.  Because venue was not proper there, the Court issued the writ and directed the trial court to transfer the case to Clarke County.

In Ex parte Capstone Building Corp., ___ So. 3d ___, 2011 WL 2164027 (Ala. June 3, 2011), the Supreme Court of Alabama made clear that the limitations period for wantonness claims in Alabama is two years.  In doing so, the Court overruled Ex parte McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004) and Carr v. International Refining & Manufacturing Co., 13 So. 3d 947 (Ala. 2009), in which the Court had disposed of wantonness claims by applying the six-year statute of limitations for actions alleging “trespass to person or liberty.”  After McKenzie was released, litigants and trial courts struggled with the issue, uncertain what McKenzie stood for.  Indeed, the highest court itself didn’t always follow what appeared to be McKenzie’s holding.  For example, in Boyce v. Cassese, 941 So. 2d 932, 946 (Ala. 2006), the Court “readily dispose[d]” of the plaintiffs’ wantonness claims based on a two year statute of limitations.  The confusion was cleared up somewhat in Carr, in which four justices concurred in a detailed opinion discussing McKenzie and applying the six-year limitations period to a wantonness claim.  But four other justices concurred only in the result in Carr and another dissented outright.  Capstone overrules McKenzie and Carr and expressly holds (at least on a going-forward basis) that the statute of limitations for wantonness claims in Alabama is two years.  Unfortunately for defendants in some cases (and fortunately for their adversaries), the Court in Capstone decided against applying its holding retroactively.