Rule 56(F) Motion - State-Agent Immunity: Austill V. Krolikowski


Austill v. Krolikowski, [Ms. 1160820, Jan. 12, 2018] __ So. 3d __ (Ala. 2018). This decision by Justice Sellers, (Stuart, C.J., and Wise, J., concur; Parker and Shaw, JJ., concur in the result), affirms the Mobile Circuit Court’s summary judgment dismissing a claim by decedent’s survivors alleging that Dr. Krolikowski, a Senior Medical Examiner with the Alabama Department of Forensic Sciences (ADFS), “without any compelling legitimate reason ‘harvested the decedent’s entire brain without the family’s permission and preserved it in his office for his own use.’” Ms. *3. The circuit court granted Dr. Krolikowski’s motion for summary judgment based on State-agent immunity.

The plaintiffs appealed challenging the circuit court’s ruling denying their request pursuant to Rule 56(f), Ala. R. Civ. P., to delay disposition of the motion for summary judgment until defendant responded to outstanding discovery. The Supreme Court affirmed the circuit court’s ruling concluding “that the trial court did not exceed its discretion in denying the plaintiffs’ motion to compel discovery of items it concluded were irrelevant to the issue of State-agent immunity.” Ms. *18, citing Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). The Court noted that the plaintiffs had conceded at trial that they were not challenging the procedures and methods employed by Dr. Krolikowski in performing the autopsy, but rather were challenging his retention of the decedent’s brain. The Court noted that the discovery which formed the basis of the plaintiffs’ Rule 56(f) motion did not relate to Dr. Krolikowski’s retention of the brain and the ADFS’s policies related to same but rather Dr. Krolikowski’s performance of the autopsy. Ms. *16.

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