In Lively v. Kilgore, [Ms. 2090188, June 11, 2010], __ So. 3d __ (Ala. Civ. App. 2010), the Alabama Court of Civil Appeals reversed a trial court's denial of a motion for judgment as a matter of law in an action brought pursuant to the Alabama Legal Services Liability Act. Plaintiff Kilgore sued Defendant Lively in regards to legal representation Lively provided in an underlying medical malpractice action. Lively performed minimal discovery in the case and failed to retain an expert witness. The trial court in the underlying action granted a motion for summary judgment in favor of the doctors. Kilgore then filed a legal malpractice action against Lively. Lively filed a motion for judgment as a matter of law, arguing that Kilgore failed to offer legally sufficient evidence that he would have prevailed in the underlying medical malpractice action D primarily because he did not offer expert medical testimony regarding the breach of the standard of care. The motion was denied. The jury returned a verdict in favor of Kilgore. Lively appealed. The Alabama Court of Civil Appeals held that even assuming Kilgore was not required to present expert medical testimony, he still failed to meet his burden of showing that he would have prevailed in the medical malpractice action because he only showed that it was possible, not probable, that his injuries were caused by the negligence of the doctor in the underlying action. Therefore, the Court reversed and remanded the case for entry of the JML.
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