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Mortality Table - Permanent Injury - Error Preservation

Hicks v. Allstate; Allstate v. Hicks, [Ms. 1170589; 1170632, June 19, 2020] __ So. 3d __ (Ala. 2020). The Court (Stewart, J.; Parker, C.J., and Wise, J., concur; Bolin and Sellers, JJ., concur in the result) reverses the Madison Circuit Court’s denial of plaintiff’s motion for new trial following a plaintiff’s verdict for $135,000 in a motor vehicle collision case. The circuit court refused to admit a mortality table into evidence because it determined that Hicks’s injuries were not permanent. Ms. *7. The Court reverses, holding

Although Dr. Murray [the plaintiff’s surgeon] did not specifically mention the words “permanent injury” he testified that the hardware inserted during the surgery – screws, rods, and “spacers” between Hicks’s vertebrae – is likely to remain permanently in Hicks’s body. He testified that, as a result of the surgery, the spinal bones that were involved in the operation no longer bend, which adds stress to the joints above those bones. When asked about the effect that the surgery he performed on Hicks in 2009 could have on the development of her spondylolisthesis, Dr. Murray responded: “[W]hen you operate on anyone, even the smallest operation, you do not strengthen the spine. In fact, you take a little bit of strength away from the spine.” He testified that Hicks had a “10 to 15 percent chance of developing adjacent level significant disease.” Finally, Dr. Murray testified that he was certain that there would be an impairment rating associated with the surgery he performed on Hicks.

Ms. **12-13.

On Allstate’s cross appeal, the Court (Stewart, J.; Parker, C.J., and Bolin and Wise, JJ., concur; Sellers, J., concurs in the result) affirms the circuit court’s denial of Allstate’s motion for partial judgment as a matter of law asserting that plaintiff failed to prove her spinal fusion surgery was necessitated by the accident. The Court explains

“Allstate did not make a postjudgment motion for a partial judgment as a matter of law on the issue of causation. Therefore, Allstate did not preserve its causation argument for appellate review.”

Ms. *10.

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