(251) 299-0101
David G. Wirtes Jr.

David G. Wirtes Jr.

David G. Wirtes, Jr. works behind the scenes on strategic planning, legal issues, and appeals.

Dave’s efforts over the past thirty years have helped protect working men and women in Alabama and throughout the country in ways most will never know: he has won many battles against unfair “tort reform” laws such as indiscriminate caps on recoverable damages, special immunity statutes, and other unfair laws intended to deprive people of their constitutional rights to trial by jury and an adequate remedy for their injuries and losses.

Dave is admitted to practice before all state and federal courts serving Alabama and Mississippi, the Fifth and Eleventh Circuit Courts of Appeals, and the Supreme Court of the United States. He has been rated by his peers as “AV” (preeminent for ethical standards and legal abilities) as shown at www.martindale.com. Colleagues have commented, “Dave is the premier appellate lawyer in Alabama.” “He has more experience and success than any lawyer in the state.”

Dave helps his colleagues through service in numerous professional organizations. He is a member of the Alabama State Bar Association and has served on its Ethics Committee, its Long-Range Planning Committee and presently serves as an editor of The Alabama Lawyer.

Dave is a long-time member of the Alabama Supreme Court’s Standing Committee on the Rules of Appellate Procedure.

Dave is a member of the Mobile County Bar Association and has served on many of its committees, including as Chairman, Ethics Committee; Chairman, Bench, and Bar Conference Committee; Co-chairman, Alternative Dispute Resolution Committee; and Member, Grievance Committee.

Dave is a Sustaining Member of the Alabama Association for Justice and has served as a Member of its Board of Governors and Executive Committee (1990-present); Member and/or Chairman of its Amicus Curiae Committee (1990-present); and Co-editor of the Alabama Association for Justice Journal (1996-present).

Dave is also actively involved with the American Association for Justice where he previously served as Alabama’s Representative and as a Member of the Board of Governors and continues as a Member of its Amicus Curiae Committee (1999-present).

Dave was nominated by colleagues for appointment as a Fellow of Litigation Counsel of America and is now a Senior Fellow. He was the founder of The American Institute of Appellate Practice ("AIAP"), its Executive Director (2015-16), and one of just thirteen persons certified nationwide by AIAP as an Appellate Specialist. Dave is a Sustaining Fellow of the Pound Civil Justice Institute and was appointed as one of its Trustees in 2016. Dave is also a Sustaining Member and the former Alabama Representative for Public Justice.

Dave also helps his colleagues by frequently sharing his knowledge and experiences through speaking at continuing legal education seminars. He has spoken across the country on such topics as Defeating Unlawful Discrimination in Jury Selection, Appellate Practice, Perfecting the Appeal, HIPAA and Ex parte Contacts, Recent Updates on the Law, Electronic Discovery, Arbitration, and Immunity.

Dave is recognized by his peers as worthy of recognition for his service and successes. He is listed in Benchmark Appellate as a “Litigation Star.” He is listed in Best Lawyers in America. And he is listed as an Alabama Super Lawyer.

Outside the courtroom, Dave enjoys photography and restoring antique automobiles.

RECOGNITION & AWARDS

  • Certified as an Appellate Specialist by The American Institute of Appellate Practice
  • Benchmark Plaintiff named him a "Litigation Star" in its national rankings of Appellate Attorneys
  • Listed in Best Lawyers in America® (2011-present)
  • Named "Lawyer of the Year - Appellate Practice" in Mobile, Alabama by Best Lawyers in America® (2016)
  • Listed in Super Lawyers magazine as one of the top plaintiff attorneys in Alabama / Mid-South Region (2012-present)
  • AV® Preeminent 5.0/5.0 Peer Rating

Frequently invited to present at continuing legal education seminars and has spoken on topics such as:

  • Defeating Unlawful Discrimination in Jury Selection
  • Appellate Practice
  • Perfecting the Appeal
  • HIPAA and Ex parte Contacts
  • Recent Updates on the Law
  • Electronic Discovery
  • Arbitration
  • Immunity

Education

  • Admitted to the Bar in Alabama in 1985
  • Cumberland School of Law at Samford University, Birmingham, Alabama, J.D., 1985
  • University of the South, Sewanee, Tennessee, B.A., 1981

Affiliations

  • Member, Alabama and Mississippi State Bar Associations
  • Fellow, Litigation Counsel of America
  • Founding member and Chairman, American Institute of Appellate Practice
  • Member, Alabama Association of Justice, 1985-present (Board of Governors; Executive Committee; Amicus Curiae Committee (1990-present/Chairman or Co-chairman, 1995-present)
  • Member, American Association for Justice, 1985-present (State Delegate; Board of Governors; Member, Amicus Curiae Committee, 1999-present)
  • Member, Mobile County Bar Association, 1980-present (Chairman, Ethics Committee; Chairman, Bench and Bar Conference Committee; Co-chairman, Alternative Dispute Resolution Committee; and Member, Grievance Committee)
  • Member, Alabama Supreme Court's Standing Committee on Rules of Appellate Procedure
  • Co-Editor, The Alabama Lawyer
  • Co-Editor, Alabama Association of Justice Journal
  • Sustaining Member and the former Alabama Representative for Public Justice
  • Sustaining Fellow, Roscoe Pound Institute
  • Founding Director, National Board of Appellate Lawyers (a division of the National Board of Trial Advocacy)

Related News

Reported Decisions

  • Ex parte Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center

    Alabama Supreme Court Case No. 1170993 (Aug. 16, 2018). The Court unanimously (Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, Bryan, Sellers, and Mendheim, JJ., concur) denies without opinion the fourth petition for a writ of mandamus arising from the death of Debra Weldon Dotson at Mobile Infirmary in 2016 (see Case Nos. 1170825 (Infirmary's petition denied July 27, 2018; 1160769 (Infirmary's petition denied September 12, 2017); and 1160645 (Infirmary's petition dismissed June 2, 2017)). In this petition, the Infirmary sought dismissal of the wrongful death complaint under authority of § 6-5-440, Ala. Code 1975 (Alabama's "abatement" or "prior pending action" statute). Plaintiff demonstrated that the issues presented by the petition were moot, that there was no identity of parties between the two medical negligence wrongful death actions as required for invocation of § 6-5-440, and that the Infirmary should be judicially estopped from invoking § 6-5-440 under the doctrine prohibiting inconsistent positions.

  • Thomas Jones, on Behalf of Themselves and Others Similarly Situated, etc. v. Singing River Health Services Foundation, et al.

    Thomas Jones, on Behalf of Themselves and Others Similarly Situated, etc. v. Singing River Health Services Foundation, et al., [Ms. 18-60130, Aug. 6, 2018] __ Fed. Appx. __ (5th Cir. 2018) (unpublished pursuant to 5th Cir. R. 47.5). The Fifth Circuit panel unanimously affirms this $149,950,000 class action settlement agreement for members of the Singing River Health System Employees Retirement Plan and Trust for claims arising from the hospital system's failure to make annual required contributions to the Plan from 2009 to 2014 needed to maintain the Plan's fiscal integrity. The court holds that the district court, upon remand from Jones v. Singing River Health Servs. Found., 865 F.3d 285 (5th Cir. 2017), had properly addressed four questions concerning the propriety of the settlement.

  • Oasis Legal Finance, LLC v. James Marquez and Kennedy Dixon, et al.

    In Oasis Legal Finance, LLC v. James Marquez and Kennedy Dixon, et al., No. 17-90024-Q, (11th Cir. July 26, 2018), the Eleventh Circuit Court of Appeals denied without opinion the defendant’s petition for permission to appeal an order entered by the United States District Court for the Southern District of Alabama remanding this class action case to the Mobile County Circuit Court. The district court found that 28 U.S.C. § 1445(c) rendered this case non-removable despite a claim of federal subject matter jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). In their response to Oasis’s Petition, plaintiffs argued that the questions Oasis presented to the Eleventh Circuit did not present an unsettled CAFA-related question likely to arise in future cases, as is required to obtain appellate review of a remand order involving a class action case.

  • Ex parte Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center

    [Ms. 1170825, July 27, 2018] __ So. 3d __ (Ala. 2018). The Supreme Court (Stuart, C.J., and Bolin, Parker, Shaw, Main, Bryan, Sellers, and Mendheim, J.J., concur) denies yet another petition for writ of mandamus (the third petition filed in the case concerning Debra Dotson's death at Mobile Infirmary in July 2016), contending the Mobile Circuit Court erred in granting plaintiff's motion to permit substitution of a successor personal representative and in denying the Infirmary's motion to dismiss the wrongful death action premised upon an alleged want of capacity by the original personal representative to file the action.

  • Ex parte FedEx Ground Package System, Inc., Alabama Supreme Court Case No. 1170648, May 1, 2018, __ So. 3d __ (Ala. 2018 The Supreme Court of Alabama on May 1, 2018, dismissed a petition for writ of mandamus filed by FedEx Ground Package System, Inc., in which FedEx contended the Circuit Court of Mobile County exceeded its discretion when it ordered production of documents responsive to plaintiff's discovery requests in a personal injury action. The Court rejected FedEx's contentions that its discovery obligations would be unduly burdensome.
  • Ex parte Oasis Legal Finance, LLC In re: James Marquez v. GNS & Associates, Inc., Oasis Legal Finance, LLC, et al, [Ms. 1170431, Ala. Mar. 22, 2018]. The Supreme Court denies a petition for writ of mandamus filed by Oasis Legal Finance, LLC, a foreign limited liability corporation not qualified to do business in the State of Alabama, which sought an order directing the Mobile Circuit Court to enforce an outbound forum selection clause. Plaintiffs alleged Oasis's so-called "purchase agreements," whereby it offered cash advances to financially vulnerable Alabamians with workers' compensation claims, were prohibited by §§ 25-5-231 and 25-5-86(2), Ala. Code 1975, parts of the Alabama Workers' Compensation Act which characterize such activities as a crime. Plaintiffs invoked § 10A-1-7.21(a), Alabama's "door-closing statute," which commands that a non-qualified foreign corporation "may not maintain any action, suit, or proceeding in any court of this State...." The Court (Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur; Sellers and Mendheim, JJ, dissent) denied the petition for writ of mandamus, without opinion, and dismissed Oasis's emergency motion for stay as moot. On May 1, 2018, Oasis Legal Finance, LLC’s application for rehearing was denied.
  • McCallan v. Wilkins 2018 WL 1384107, __ F.Supp.3d __ (M.D. Ala. Mar. 19, 2018) (W. Keith Watkins, Chief U.S. District Judge). The U.S. District Court for the Middle District of Alabama dismisses McCallan's appeal from a U.S. Bankruptcy Court for the Middle District of Alabama order continuing McCallan's incarceration based on an earlier finding of civil contempt of court for McCallan's willful failure to comply with previous orders compelling post-judgment discovery. Having been incarcerated for contempt on October 23, 2017, McCallan sought review by the district court contending the order of continuing incarceration was a final appealable order or that he should be granted a permissive emergency appeal from an interlocutory order. The district court granted the bankruptcy trustee's motion to dismiss for lack of jurisdiction, denied McCallan's motion for leave to file an interlocutory appeal, and denied McCallan's emergency motion to expedite the appeal.
  • Dolgencorp, LLC, d/b/a Dollar General v. Deborah Revette, [Ms. 1160361, Ala. Jan. 12, 2018] __ So. 3d __ (Ala. 2018) The Supreme Court unanimously affirms a $1,725,000 verdict arising from a slip-and-fall at a Dollar General store in Mobile County. The jury found that Dollar General's inadequate inspection policies led to Ms. Revette's severe injuries. The evidence showed that while Dollar General stores are open 14 hours a day, Dollar General corporate policy only requires employees to devote 10 minutes each day to safety inspections. Those safety inspections are informal, undocumented, and not verified by a supervisor. Expert testimony comparing the method by which and how often the retailers in and around Mobile County conduct safety inspections made clear that Dollar General's informal policy of "visual safety checks" for 10 minutes each day was below the safety standard of care.
  • Marquez v. D.N.S. & Associates, Inc. 2017 WL 4479365, __ F.Supp.3d __ (S.D. Ala. June 27, 2017) (Katherine P. Nelson, U.S. Magistrate Judge), affm'd 2017 WL 4477297, __ F.Supp.3d __ (S.D. Ala. Oct. 5, 2017) (Callie V.S.Granade, Senior U.S. District Judge). United States Magistrate Katherine P. Nelson enters Report and Recommendation, subsequently adopted as the Opinion of the court by Senior United States District Judge Callie V.S. Granade, remanding this class action case to the Circuit Court of Mobile County, Alabama, which alleges that Oasis Financial, LLC, enters purchase agreements with Alabama Workers' Compensation claimants whereby it advances sums of money to injured workers in exchange for the right to receive an amount determined by a formula from the proceeds that the customers received as a result of their workers' compensation claims in violation of Ala. Code §§ 25-5-231 and 25-5-86(2). The district court found that 28 U.S.C. § 1445(c) rendered this case non-removable despite a claim of federal subject matter jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2).
  • Jones v. Singing River Health System, 2017 WL 4099500, __ F.Supp.3d __ (S.D. Miss., Sept. 15, 2017) Upon remand from the Fifth Circuit Court of Appeals for further consideration of issues related to the terms and conditions of the proposed class action settlement, Chief U.S. District Judge Louis Guirola, Jr., enters order denying the settlement objectors' motion to stay proceedings upon concluding that the objectors' motion failed to meet the requirement required for staying an appeal court's mandates specified in Rule 41(d)(2)(A), Fed. R. App. P., or 28 U.S.C. § 2101(f).
  • Deutsche Bank National Trust Company, as Trustee for the Registered Holders of Morgan Stanley ABS Capital 1 Inc., et al. v. Wilmer B. Caldwell and Sonya L. Caldwell, [Ms. 1150793, Ala. Sept. 12, 2017] __ So. 3d __ (Ala. 2017) (Table) The Supreme Court of Alabama on August 25, 2017 (Sellers, J., and Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, and Bryan, J.J., concur) affirm a judgment entered upon a Mobile Circuit Court jury's verdict in favor of Wilmer and Sonya Caldwell against Deutsche Bank and Ocwen Loan Servicing arising from allegations of mortgage re-financing fraud.
  • Jones v. Singing River Health Servs. Found., 865 F.3d 285 (5th Cir. July 27, 2017)., reh'g denied (No. 16-60550 (Sept. 6, 2017)) The Fifth Circuit Court of Appeals vacates the decision of the United States District Court for the Southern District of Mississippi (Louis Guirola, Jr., Chief U.S. District Judge), approving a proposed class action settlement in consolidated lawsuits alleging that Singing River Health System underfunded its self-administered retirement plan when it stopped making actuarial­determined contributions to the Plan in 2009. After proper notice and hearing on plaintiff's motion for preliminary approval of class settlement agreement, the district court conditionally certified the proposed class as a mandatory Rule 23(b)(1), Fed. R. Civ. P., class. The district court then, after a two-day fairness hearing in May 2016 concluded on June 2, 2016, that the settlement was fair, reasonable, and adequate and not a product of collusion. The Fifth Circuit vacated the settlement and remanded the matter for consideration of four additional issues having to do with the terms and conditions of the settlement. The court held (865 F.3d at 303) "We do not hold that the settlement should not be approved, or cannot be approved as modified...."
  • Ex parte Mobile Infirmary Association d/b/a Infirmary Medical Center

    (In re: Cynthia W. Godwin, as Personal Representative of the Estate of Debra Weldon Dotson, deceased, v. Mobile Infirmary Association d/b/a Infirmary Medical Center, [Ms. 1160645, Ala. June 2, 2017]). Mobile Infirmary hospital files another petition for writ of mandamus seeking an order directing the Circuit Court of Mobile County to vacate a protective order contending that the protective order's provision for information sharing in other Mobile Infirmary cases violated Ala. Code § 6-5-551. The Supreme Court on June 2, 2017 (Stuart, C.J., and Bolin, Parker, Shaw, Main, Wise, Bryan, and Sellers, J.J., concur) grants plaintiff's motion to dismiss the petition as untimely.

  • Mays v. General Motors, LLC, 2017 WL 1398471, __ F.Supp.3d __ (N.D. Ala. Apr. 19, 2017) United States District Judge Virginia Emerson Hopkins grants plaintiffs' motion to remand wrongful death and personal injury action removed by General Motors from the Circuit Court of Talladega County, Alabama, which contended plaintiffs had fraudulently misjoined the Talladega dealership from which the allegedly defective pickup truck was purchased.
  • Ex parte Mobile Infirmary Association d/b/a Infirmary Medical Center (In re: Cynthia W. Godwin, as Personal Representative of the Estate of Debra Weldon Dotson, deceased v. Mobile Infirmary Association d/b/a Infirmary Medical Center), [Ms. 1160769, Ala., Nov. 15, 2017] __ So. 3d __ (Ala. 2017 (Unpublished). Mobile Infirmary Hospital files a petition for writ of mandamus seeking an order directing the circuit court to vacate discovery orders compelling discovery of hospital policies and procedures, incident reporting, personnel records, and education modules over objections asserting the documents were exempt from discovery pursuant to Ala. Code §§ 22-21-8, 6-5-551, and 6-5-333(d). After extensive briefing, the Supreme Court on September 12, 2017, dismisses the petition as untimely pursuant to the rule established in Ex parte Horton Homes, Inc., 774 So. 2d 536 (Ala. 2000). On November 15, 2017, Mobile Infirmary's application for rehearing was denied. To read the opinion, click here.
  • Ex parte Austal USA, LLC, [Ms. 1151138, 1151244, Mar. 3, 2017], 2017 WL 836567, __ So. 3d __ (Ala. 2017)

    The Court, in this Cunningham Bounds case, denies petitions for writs of mandamus by Austal USA, LLC, a shipbuilder in Mobile, which sought dismissal of complaints by eight of its employees who alleged Austal intentionally injured them by requiring each to work with an improperly modified hand-held rotary saw that had previously injured dozens of Austal’s employees. Citing Rodriguez-Flores v. U.S. Coatings, Inc., 133 So. 3d 874 (Ala. 2013), the Court rejected Austal’s claim of immunity under the Longshore Act upon concluding that Plaintiffs’ amended complaint stated potentially viable claim that Austal had intentionally injured its employees. Rejecting arguments from Austal’s amici curiae, The Business Council of Alabama, the Mobile Area Chamber of Commerce, the Alabama Defense Lawyers Association, and the Shipbuilders’ Council of America, the Court concluded that Austal had not demonstrated a clear legal right to an order granting its Rule 12(b)(6) Ala. R. Civ. P. motions to dismiss because it was indeed possible that Plaintiffs could prevail with their claims.

    In considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true, Ussery v. Terry, 201 So. 3d 544, 546 (Ala. 2016); we do not consider “‘whether the pleader will ultimately prevail but whether the pleader may possibly prevail,’” Daniel v. Moye, [Ms. 1140819, November 10, 2016] ___ So. 3d ___, ___ (Ala. 2016) (quoting Newman v. Savas, 878 So. 2d 1147, 1149 (Ala. 2003) (emphasis added)); and “[w]e construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.” Daniel, ___So. 3d at ___. Furthermore, a Rule 12(b)(6) dismissal is proper “‘only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’” Knox v. Western World Ins. Co., 893 So. 2d 321, 322 (Ala. 2004) (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)).

    Ms. *14-15.

  • FARMERS INS. EXCHANGE V. MORRIS, [MS. 1121091, ALA., FEB. 12, 2016] 2016 WL 661671, __ SO.3D __ (ALA. 2016), REH'G DENIED, FEB. 24, 2017.

    Kyle Morris sued Farmers Insurance for fraudulently inducing him to become a Farmers agent. Kyle was already an agent in his father's insurance agency, and Farmers agents assured him that continuing this relationship was not prohibited by any Farmers rules. After he worked successfully for Farmers for more than two years, Farmers terminated him because of an alleged conflict of interest from working with his father's agency. The termination caused him to lose the value of the work he did over that time.

    Despite amicus support from the Business Council of Alabama; Alfa Insurance Corporation, Alfa Mutual Fire Insurance Company, Alfa Mutual General Insurance Corporation, Alfa Life Insurance Corporation, Alfa Mutual Insurance; The Alabama Civil Justice Reform Committee; Automobile Dealers Association of Alabama, Inc.; National Federation of Independent Business; Alabama Road Builders Association; Alabama Retail Association; Home Builders Association of Alabama; Alabama Associated General Contractors of America; Alabama Rural Electric Association of Cooperatives; Alabama Bankers Association; Association of Alabama Life Insurance Companies; and the Alabama Defense Lawyers Association, the Supreme Court of Alabama affirmed the $2.4 million fraud judgment and on February 24, 2017, denied rehearing.

    The Supreme Court rejected Farmers' three arguments for judgment as a matter of law on the fraud claim. First, it argued that Morris was only an employee at will and so could not have any injury from reasonable reliance on the misrepresentation that he could become a Farmers agent while continuing in his father's agency. The Court held that Morris's status as an employee at will did not prevent him from asserting that he reasonably relied by altering his relationship with his father's business (i.e., by concentrating instead on selling Farmers policies). Second, the Court rejected an argument that the merger and integration clause precluded reliance on earlier oral misrepresentations – a statement in a contract that no other representations have been made does not bar a fraud action alleging that oral misrepresentations fraudulently induced the plaintiff to enter into the contract. Third, the Court rejected Farmers' argument that a statement available to Mr. Morris in its training materials should have alerted him to a Farmers rule against maintaining an office in another insurance agency; that rule was buried deep within training materials and both Mr. Morris and the Farmers agents who trained him testified that they had never seen it and were not aware of it, so a jury question was presented on whether it precluded reasonable reliance.

  • Jones v. Singing River Health System, 2016 WL 3248449, __ F.Supp.3d __ (S.D. Miss. June 10, 2016) Chief U.S. District Judge Louis Guirola, Jr., enters Memorandum Opinion and Order granting plaintiff's motion for attorneys' fees, costs, and incentive fee in this $150 million class action settlement arising from Singing River Health System's underfunding of its employees' retirement plan and trust.
  • Clark v. Bamberger, 2016 WL 1183180 (M.D. Ala. 2016). The United States District Court for the Middle District of Alabama, Myron H. Thompson, United States District Judge, approves wrongful-death settlement against Rolls-Royce Corporation, its employee Joey Bamberger, Army Fleet Support, LLC, and L-3 Communications Corporation in case arising from crash of civilian helicopter-training pilot employed by the Army during a training exercise at Fort Rucker, Alabama. The read the opinion, click here. Court approves terms and conditions of the settlement and proposed distribution of settlement proceeds in a separately reported decision, 2016 WL 211335. To read the opinion, click here.
  • THE NINETEENTH STREET INVESTMENTS, INC. V. ROBERTSON, [MS. 1131285, NOV. 20, 2015] __ SO.3D __ (ALA. 2015). Cunningham Bounds participated in an a micus curiae brief filed on behalf of the plaintiffs by the Alabama Association for Justice in this Dram Shop action where the Supreme Court affirms a judgment of $15,150,000 in favor of four plaintiffs – one wrongful death claim ($7 million) and three personal-injury claims ($8.15 million total).
  • PANHANDLE PLUMBING, INC. V. MICHAEL C. BLANCHARD, AS PERSONAL REPRESENTATIVE OF AND FOR THE ESTATE OF MICHAEL R. BLANCHARD, ET AL., 175 SO.3D 290 (FLA. 1ST DCA, OCT. 14, 2015 (TABLE). Florida First District Court of Appeal affirms per curiam jury verdict for wrongful death and severe personal injuries attributable to residential gas explosion from improper installation of gas service line for clothes dryer. Cunningham Bounds, along with Emmanuel, Sheppard & Condon and Louis K. Rosenbloum, represented the family at trial and on appeal.
  • Keshock v. Metabowerke GMBH, 2016 WL 917947 (S.D. Ala. 2016). United States District Court for the Southern District of Alabama, Callie V.S. Granade, Senior United States District Judge, adopts the Report and Recommendation of the Magistrate Judge (2015 WL 10458544, Sept. 25, 2015), click here to read, granting Plaintiffs' Motion to Remand in this case where multiple employees at Austal USA, LLC's shipyard in Mobile, Alabama, were severely injured through use of dangerously defective Miller saws. The district court finds that plaintiffs stated viable causes of action against Austal for the tort of outrage such that there was no fraudulent joinder of this non-diverse defendant. To read the opinion, click here.
  • YAMAHA MOTOR CORP. V. MCMAHON, 183 SO.3D 145 (ALA. 2015), REH'G DENIED MAY 22, 2015. Cunningham Bounds files amicus curiae brief on behalf of the Alabama Association of Justice, arguing in favor of an affirmance of the jury's verdict and judgment against Yamaha in a Rhino rollover case, and urging a rejection of Yamaha's request the Supreme Court impose a new common law rule that product manufacturers must have knowledge of likely or probable harm shown by evidence of prior incidences of injuries or deaths with the same product before they could be found liable for wantonness as a matter of law. The Supreme Court of Alabama affirmed the judgment without opinion and denied Yamaha's application for rehearing, thereby rejecting this latest effort to change Alabama's long-settled law of wantonness.
  • FRANK KRUSE, ADMINISTRATOR AD LITEM FOR THE ESTATE OF DANSBY W. SANDERS V. VANDERBILT MINERALS, LLC, F/K/A R.T. VANDERBILT COMPANY, INC., 189 SO.3D 42 (ALA.2015) Cunningham Bounds appears (along with Ned Miltenberg of the National Legal Scholars Law Firm) as amicus curiae for wrongful death victim who died from mesothelioma after being exposed during his working lifetime to asbestos-containing talc, seeking reversal of summary judgment entered in favor of talc supplier. The Supreme Court of Alabama reverses the summary judgment with key holding that a trial court should not grant a summary judgment, and an appellate court will not affirm one, on the basis of an absence of substantial evidence to support an essential element of a claim for affirmative defense unless the motion for summary judgment has properly raised that absence of evidence and has thereby shifted to the non-moving party the burden of producing substantial supporting evidence in opposition. To read the opinion, click here.
  • SUELL V. UNITED STATES OF AMERICA, CASE 13-0252-WS-B, 2014 WL 5023388, __F.SUPP.3D __ (S.D. ALA. OCT. 8, 2014). Federal Tort Claims Act case where district court denies Government's motion for summary judgment concerning respondeat superior liability for acts of United States Department of Agriculture veterinarian traveling home in personal automobile from temporary work assignment, who caused vehicular wreck resulting in serious bodily injury to plaintiff. To read the opinion, click here.
  • WYETH, INC. V. WEEKS, 159 SO.3D 649 (ALA. 2014)

    The Supreme Court of Alabama held that the manufacturer of a brand-name prescription drug may be held liable for misrepresentation under Alabama law to a person who has been injured by the equivalent generic drug as a result of his physician’s reliance on the brand-name manufacturer’s misrepresentations. The opinion reaffirmed an earlier decision which had been challenged on rehearing by Wyeth, Inc., and numerous amici (Products Liability Council, United States Chamber of Commerce, Business Council of Alabama, and others).

    Cunningham Bounds (along with Center for Constitutional Litigation Counsel’s Chief Litigation Counsel Louis Bograd ) appeared asamicus curiae on behalf of the American Association for Justice in support of reaffirmance.

    The Alabama Supreme Court began its analysis by noting that plaintiff Weeks' claim was for misrepresentation, not products liability: "This is not a claim that the drug ingested by Danny was defective; instead, it is a claim that Wyeth fraudulently misrepresented or suppressed information about the manner in which (i.e., the duration) the drug was to be taken." The Court then concluded that Weeks' claim satisfied all of the traditional elements of fraudulent misrepresentation under Alabama law.

    The Court first determined that it was reasonably foreseeable that Weeks' physician would rely on Wyeth's representations in prescribing the generic equivalent:

    the labeling for a generic drug is required by federal regulations to be the same as the labeling for the brand-name drug. Therefore, an omission or defect in the labeling for the brand-name drug would necessarily be repeated in the generic labeling, foreseeably causing harm to a patient who ingested the generic product. A brand-name manufacturer is well aware of the expiration of its patent and well aware that a generic version of the drug will be made when that patent expires. It is recognized that generic substitutions are allowed in all 50 states. A brand name manufacturer could reasonably foresee that a physician prescribing a brand-name drug (or a generic drug) to a patient would rely on the warning drafted by the brand-name manufacturer even if the patient ultimately consumed the generic version of the drug.

    The Court next rejected Wyeth's argument that it could not be liable because it made no representations directly to the plaintiff:

    Wyeth's argument completely ignores the nature of prescription medication. The Weekses cannot obtain Reglan or any other prescription medication directly from a prescription-drug manufacturer. The only way for a consumer to obtain a prescription medication is for a physician or other medical professional authorized to write prescriptions (i.e., a learned intermediary) to prescribe the medication to his or her patient. This Court has adopted the learned intermediary doctrine, which provides that a prescription-drug manufacturer fulfills its duty to warn users of the risk associated with its product by providing adequate warnings to the learned intermediaries who prescribe the drug and that, once that duty is fulfilled, the manufacturer owes no further duty to the ultimate consumer. When the warning to the prescribing health-care professional is inadequate, however, the manufacturer is directly liable to the patient for damage resulting from that failure.

    Finally, the Alabama Supreme Court rejected the argument that Wyeth owed no duty to the user of a generic drug. Under Alabama law, the Court declared:

    there is a duty not to make a false representation (1) to those to whom a defendant intends, for his own purposes, to reach and influence by the representation; (2) to those to whom the defendant has a public duty created by statute or pursuant to a statute; and (3) to those members of a group or class that the defendant has special reason to expect will be influenced by the representation.

    To read the opinion, click here.
  • QBE INS. CORP. V. WHISPERING PINES CEMETERY, LLC, 2014 WL 2921908 (S.D. ALA. JUNE 27, 2014) District court refuses to vacate summary judgment orders holding that QBE Insurance's funeral service's policy exclusions did not apply to allegations of misplaced burials in an insured cemetery.
  • IN RE CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION, 753 F.3D 521 (5TH CIR. 2014) Cunningham Bounds and other law firms represent homeowners and homebuilders who brought class actions against manufacturers of Chinese drywall after defective drywall installed in homes caused personal injuries and property damages. Cases were transferred pursuant to multi-district litigation rules to the United States District Court for the Eastern District of Louisiana and hundreds of other actions were consolidated. The Fifth Circuit Court of Appeals holds that courts of Florida, Virginia, and Louisiana properly exercised personal jurisdiction over Chinese drywall manufacturers and that MDL court properly refused to set aside a default judgment entered against one such Chinese drywall manufacturer. To read the Fifth Circuit's Opinion, click here. To read the opinion, click here.
  • MORROW V. CALDWELL, 153 SO.3D 764 (ALA. 2014) Addressing an issue of first impression, the Supreme Court holds that the $100,000 cap on damages against a municipality does not apply to an action against a municipal employee in his or her individual capacity.
  • EX PARTE U.S. INNOVATIONS GROUP, INC., 141 SO.3D 459 (ALA. 2013) Jerry A. Grimes was killed on May 5, 2010, while working for Amtec Corporation at Redstone Arsenal reclaiming rocket fuel (ammonium perchlorate), when a decanter centrifuge provided by U.S. Innovations Group caused a devastating chemical explosion. Jerry’s widow sued Amtech, U.S. Innovations Group, and others for their roles in causing the explosion. U.S. Innovations Group and its managerial employees removed the case to federal court contending the state court was without personal jurisdiction, as Jerry’s death had occurred at the Redstone Arsenal, a federal enclave. The federal court rejected this argument and remanded the case to state court, whereupon U.S. Innovations Group and its employees filed a motion to dismiss, contending the state circuit court was without personal jurisdiction because the death occurred upon the federal enclave. When the motion to dismiss was denied, U.S. Innovations Group and its employees petitioned for a writ of mandamus. On rehearing, the Supreme Court of Alabama unanimously held that the exclusive legislative jurisdiction conferred by Art. I, § 8, clause 17, of the United States Constitution does not deprive state courts of jurisdiction to adjudicate transitory causes of action just because they arise upon an enclave. To read the opinion, click here.
  • HEALTH CARE AUTHORITY FOR BAPTIST HEALTH, AN AFFILIATE OF UAB HEALTH SYSTEM, D/B/A BAPTIST MEDICAL CENTER EAST V. DAVIS, 158 SO.3D 397 (ALA. 2013)

    (Appeal from Montgomery Circuit Court) (On Application for Rehearing) (Application for Rehearing Granted; Opinion of January 14, 2011, Withdrawn; Opinion Substituted; Affirmed) (Murdock, J.; Parker, Main, and Wise, JJ., concur; Bryan, J., concurs in part and concurs in the result in part; Moore, C.J., concurs in the result; Stuart, Bolin, and Shaw, JJ., dissent).

    Cunningham Bounds files an amicus brief on rehearing urging the Supreme Court of Alabama to withdraw its original opinion and to substitute an opinion holding that state health care authorities are not immune from liability. (To read the Motion for Leave To Appear As Amici Curiae, click here; To read the Brief Of Amici Curiae, Unaffiliated Alabama Educators, Lawyers, and Retired Judges In Support Of Application For Rehearing, click here.

    On May 17, 2013, the Supreme Court withdrew its original January 14, 2011, Opinion (holding state health care authorities immune from medical negligence liability as agencies of the State of Alabama), holding instead on rehearing that such health care authorities are NOT immune and that the $100,000 statutory cap on damages applicable to governmental entities does NOT apply. The Montgomery County jury’s $3.2 million medical malpractice wrongful death verdict is therefore affirmed.

    To read the opinion, click here.
  • GRIMES V. AMTECH CORP., 2012 WL 3772508 (N.D. ALA. AUG. 28, 2012) Federal District Court adopts Report and Recommendation of Magistrate Judge ( Grimes v. Amtech Corp., 2012 WL 3773397 (N.D. Ala. July 30, 2012)), ordering remand of wrongful death lawsuit to the Circuit Court of Madison County, Alabama, upon determination that case was improperly removed under contention of exclusive federal enclave jurisdiction pursuant to Art. I, section 8, cl. 17, U.S. CONST., and 16 U.S.C. section 457. Following Gulf Offshore Co. Mobil Oil Corp., 453 U.S. 473 (1981), the District Court and Magistrate Judge noted that there is concurrent state and federal subject matter jurisdiction for injuries and deaths occurring upon federal enclaves such as the Redstone Arsenal in Huntsville. To read the opinion, click here.
  • BOUDREAUX V. PETTAWAY, 108 SO.3D 486 (ALA. 2012) Supreme Court affirms a $4 million judgment from a wrongful-death/medical-malpractice case. The victim, Ms. Hall, was a 32-year-old mother who presented to Springhill Memorial Hospital in Mobile in January 2006 with complaints of nausea, vomiting, and abdominal pain, thus undergoing an exploratory laparotomy during which Boudreaux and CRNA Ortego administered anesthesia. Hall presented with numerous risk factors for aspiration during routine induction; however, despite those risk factors, Boudreaux and Ortego, who failed to physically examine Hall before administering the anesthesia, employed a routine induction instead of a rapid-sequence induction as required for patients with such risk factors. In the course of the routine induction, Hall aspirated bile into her lungs which led to her death. To read the opinion, click here.
  • BURROWES V. SWIFT TRANSPORTATION CO., INC., 2010 WL 2976102 (S.D. ALA. JUNE 29, 2010), AFFM'D, 2010 WL 2978408 (S.D. ALA., JULY 23, 2010) Granting plaintiffs' motion to remand for defects in removal procedures.
  • WARD V. UOP, LLC, 2010 WL 892063, (S.D. ALA. 2010) Granting plaintiff's motion to remand upon demonstration that defendant had not proven requisite jurisdictional amount in controversy.
  • WARD V. UOP LLC, ET AL., 2010 WL 891912 (S.D. ALA. MARCH 9, 2010) Granting plaintiff's motion to remand a wrongful death action upon demonstration that named party-defendant was not fraudulently joined.
  • ATWOOD V. WEYERHAEUSER USA, INC., 2010 WL 749337 (S.D. ALA. 2010) Granting plaintiffs' motion to remand upon demonstration that named party-defendant was not fraudulently joined.
  • MARK V. WOOD HAULERS, INC., 2009 WL 5218030 (S.D. ALA. 2009) Granting plaintiffs' motion to remand upon demonstration that removing party failed to prove requisite amount in controversy for diversity jurisdiction.
  • ELGIE V. BIC USA, INC., ET AL., 2009 WL 3526702 (S.D. ALA. 2009) Granting plaintiffs' motion to remand upon demonstration that removing party failed to prove the requisite amount in controversy for diversity.
  • EX PARTE DBI, INC. F/K/A DUCK BOO INTERNATIONAL CO., LTD., 23 SO.3D 635 (ALA. 2009) The Court returns Alabama to a pure "Stream-of-Commerce" test for personal jurisdiction in conformance with World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), and overrules the so-called "stream-of-commerce 'plus' " test adopted in Ex parte Alloy Wheels International, Ltd., 882 So.2d 819, 827 (Ala. 2003)
  • MOBILE GAS SERVICE CORPORATION V. ROBINSON, 20 SO.3D 770 (ALA. 2009) The Court holds that gas company breached its duty of care to Mobile County family who suffered asphyxiation injuries and one death when the company restored gas service to their home knowing of the presence of defective natural gas appliances.
  • AMERICAN NATIONAL PROPERTY & CASUALTY CO. V. HOLSTEN, 2009 WL 1097783 (S.D. ALA. APR. 22, 2009), 2008 WL 4809196 (S.D. ALA. OCT. 27, 2008) District court grants plaintiffs' motion for summary judgment regarding insurance coverage for automobile accident and denies insurer's motion to dismiss in action brought to determine scope of such insurance coverage.
  • YATES V. MEDTRONIC, INC., 2008 WL 4016599 (S.D. ALA. AUG. 26, 2008) District court adopts Report and Recommendation of Magistrate Judge recommending plaintiff's motion to remand products liability and medical negligence case arising from malfunction and defects with cardiac pacemaker leads.
  • ALABAMA DEPARTMENT OF ENVIRONMENTAL MGM'T V. ALABAMA RIVERS ALLIANCE, INC. 14 SO.3D 853 (ALA. CIV. APP. 2007) Cunningham Bounds assists the Alabama Rivers Alliance, Inc. and Friends of Hurricane Creek in opposing issuance by the Alabama Department of Environmental Management to Tuscaloosa Resources, Inc. of a National Pollutant Discharge Elimination System Permit that would have facilitated mining operations in Tuscaloosa County. The Alabama Court of Civil Appeals affirms Montgomery Circuit Judge Truman Hobbs, Jr.'s reversal of ADEM's issuance of the pollution discharge permit
  • EX PARTE PARTNERS IN CARE, INC., 986 SO.2D 1145 (ALA. 2007) Cunningham Bounds appears as amicus curiae on behalf of the Alabama Association for Justice in opposing petitions for writs of mandamus by manufacturer of allegedly defective drug that injured consumers. The Alabama Supreme Court concludes that the drug manufacturer was not a "health care provider" within the meaning of the Alabama Medical Liability Act, and therefore was not entitled to issuance of the writ that would have transferred venue and entered protective orders against discovery.
  • EX PARTE DUCK BOO INTERNATIONAL CO., LTD., 985 SO.2D 900 (ALA. 2007) Denial of petition for writ of mandamus by Korean manufacturer of allegedly defective passenger restraint system, contending that Alabama circuit court could not assert personal jurisdiction under Alabama's long-arm statute
  • EXXON MOBIL CORP. V. ALABAMA DEPT. OF CONSERVATION AND NATURAL RESOURCES, 986 SO.2D 1093 (ALA. 2007) Exxon Mobil brought declaratory judgment action against State to determine the rights of the parties under natural gas leases, and State counterclaimed, alleging breach of contract and fraud in connection with unpaid royalties. The Montgomery Circuit Court, No. CV-99-2368, McCooey, J., entered judgment on a jury verdict awarding $87.7 million in compensatory damages and $3.42 billion in punitive damages to State. Oil company appealed. The Supreme Court, reversed and remanded. On remand after a three-week trial the Circuit Court entered a judgment on a jury verdict awarding the State $100 million in compensatory damages and $11.9 Billion in punitive damages. The Circuit Court remitted the punitive damages award to $3.5 billion. ExxonMobil appealed. The Supreme Court affirmed in part, and reversed in part, holding that ExxonMobil owed royalties on gas that it retained to operate its facilities; that it was not entitled to deduct from its gross proceeds the expenses of extraction and processing before computing royalties; that the company owed royalties on its net proceeds from the sale of slop oil, which was produced when diesel fuel was used to extract heavy hydrocarbons from the natural gas; and that the evidence did not support the jury's finding of fraud.
  • LOUDERMILK SERVS, INC. V. MARATHON PETROLEUM CO., LLC

    623 F.Supp.2d 713 (S.D. W. Va. 2009; Loudermilk Servs, Inc. v. Marathon Petroleum Co., LLC, 2008 WL 3049898 (S.D. W. Va. Aug. 1, 2008; Loudermilk Servs, Inc. v. Marathon Petroleum Co., LLC, 2007 WL 4730655 (S.D. W.Va. Sept. 25, 2007)

    Miscellaneous orders granting class certification, shaping the order of trial, and managing discovery disputes in claims by service station owners against petroleum product supplier for sale and distribution of adulterated petroleum products resulting in damage to underground storage tanks.

  • BOUDIN V. RESIDENTIAL ESSENTIALS, LLC, 2007 WL 2609510 (S.D. ALA. SEPT. 6, 2007) (NOT REPORTED IN FED.SUPP.2D) District court declines residential mortgage lenders’ request for expedited consideration of its motion to dismiss before acceptance of plaintiffs’ claims by the Judicial Panel on Multidistrict Litigation.
  • MOBILE INFIRMARY ASS’N V. TYLER, 981 SO.2D 1077 (ALA. 2007) Affirmance of wrongful death action against hospital upon conclusion that nurse breached duty of care to adequately and accurately communicate to medical group the nature and severity of patient’s abdominal pain.
  • HOWELL V. J&J WOOD, INC., 2007 WL 2012820 (M.D. ALA., JULY 6, 2007) Ruling on motion for summary judgment in severe automobile collision case where plaintiff’s decedent was killed when his automobile struck a log truck that crossed a four-lane US highway near Phenix City, Alabama at nighttime.
  • DEESE V. KLEINE, 2007 WL 162677 (S.D. ALA. 2007) District court grants plaintiff’s motion to remand personal injury case upon showing by plaintiff that claim did not meet criteria for removal to federal court.
  • REDMOND HOME BUILDERS CO. V. LEWIS, 513 F.SUPP.2D 1299 (S.D. ALA. 2007) District court dismisses complaint by mobile home manufacturer that was calculated to upset plaintiffs’ class action allegations asserted in nationwide arbitration proceeding against manufacturer of defective mobile homes.
  • U.S. EX REL WRIGHT V. AGIP PETROLEUM CO., 2006 WL 3813709 (E.D. TEX., DEC. 27, 2006) Denial of defendant’s motion to dismiss in claims alleging violations of the False Claims Act, 31 U.S.C. § 3729, et seq., from transactions concerning payment to the Government of royalties for gas leases on federal and Indian lands.
  • SLATE V. SHELL OIL CO., 444 F.SUPP.2D 1210 (S.D. ALA. 2006) Remand order following demonstration by plaintiffs that non-diverse defendant resided within Alabama.
  • MANNSFELD V. PHENOLCHEMIE, INC., 466 F.SUPP.2D 1266 (S.D. ALA. 2006) Plaintiff’s motion to remand granted upon holding by district court that inventor’s claims and right to relief did not necessarily depend on the resolution of a substantial question of federal patent law.
  • LEXINGTON INS. CO. V. ROLISON, 434 F.SUPP.2D 1228 (S.D. ALA. 2006) Grant of motion to dismiss or abstain under authority of Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328 (11th Cir. 2005)’s “heart of the action” factors.
  • BROWN V. GREATER MOBILE-WASHINGTON COUNTY MENTAL HEALTH-MENTAL RETARDATION BD., INC., 944 SO.2D 954 (ALA. 2006) Reversal of summary judgment in favor of public mental health corporation upon finding that it was not entitled to state immunity.
  • CLARK V. U.S., 69 FED. CL., 443 (FED. CL. 2006) United States Court of Federal Claims concludes in nationwide class action brought on behalf of members of the Army National Guard and Air National Guard that Guard members are entitled to compensation for taking correspondence courses which meet the requirements of the statute authorizing compensation for regular periods of compensation.
  • EX PARTE MENDEL, 942 SO.2D 829 (ALA. 2006) Seminal opinion concerning scope of discovery under Alabama Medical Liability Act when plaintiff claims a failure by the defendant healthcare provider to obtain informed consent.
  • CHAMBERLAN V. FORD MOTOR, 314 F. SUPP2D 953 (N.D.CAL. 2005) Consumers brought class action in state court against automobile manufacturer, alleging that manufacturer violated California Consumers Legal Remedies Act (CLRA) when it knowingly manufactured, sold, and distributed automobiles containing a defective engine part. The Court denied Ford's motion for summary judgment and held that plaintiffs adequately stated claims under the CLRA.
  • EX PARTE WILLIAMS, 895 SO.2D 924 (ALA. 2004) Amicus curiae brief on behalf of injured worker concerning whether settlements were subject to apportionment for future medical expenses.
  • BLUE CROSS AND BLUE SHIELD OF ALABAMA V. HODURSKI, 899 SO.2D 949 (ALA. 2004) Class action on behalf of Alabama physicians and physician assistants against insurer to compel payment for physician assistants’ services.
  • CHAMBERLAN V. FORD MOTOR CO., 314 F.SUPP. 2D 953 (N.D.CAL 2004) District court denies Ford's motion to dismiss plaintiffs' class action complaint alleging that Ford sold automobiles equipped with defective plastic intake manifolds.
  • MACK TRUCK, INC. V. MARY WITHERSPOON, AS ADMINISTRATRIX OF THE ESTATE OF TONNIE RAY WITHERSPOON, DECEASED, 867 SO. 2D 307 (ALA. 2003) Administratrix of deceased driver's estate brought action against truck manufacturer, alleging liability under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). The Clarke Circuit Court, No. CV-97-172, entered judgment for administratrix, Manufacturer appealed. The Supreme Court held that: (1) evidence showed that truck was defective, and (2) punitive damages were to be reduced from $25 million to $6 million. Conditionally affirmed.
  • THOMAS J. MCGETTIGAN, CATHY S. MCGETTIGAN, AND PAULINE C. LANGHAM, ON BEHALF OF THEMSELVES AND A PUNITIVE CLASS OF ALL OTHERS SIMILARLY PLAINTIFFS, V. FORD MOTOR COMPANY, DEFENDANT, 265 F.SUPP. 2D 1291 (S.D. ALA. 2003) Putative class action was brought in state court, alleging that automobile manufacturer breached warranties made pursuant to Magnuson-Moss Warranty Act when it produced automobiles with defective intake manifolds. Manufacturer removed and named plaintiffs moved for remand. The District Court, Butler, Jr., J., held that: (1) proceeds from proposed common fund, comprising disgorged profits, could not be aggregated to satisfy amount in controversy requirement for diversity jurisdiction; (2) proceeds expended in notifying public of problem could not be aggregated; (3) Warranty Act barred class action suits in federal court, when as in present case only three named plaintiffs were involved; (4) Warranty Act was not preempted by National Traffic and Motor Safety Act; and (5) named plaintiffs would not be awarded fees and costs, for successfully obtaining remand. Case remanded.
  • DR. JUAN RONDEROS AND COASTAL NEUROLOGICAL INSTITUTE, P.A. V. MYRTLE ROWELL, AS ADMINISTRATRIX OF THE ESTATE OF RICHARD LARRY ROWELL, DECEASED, 868 SO. 2D 422 (ALA. 2003) Administratrix of estate of patient brought medical malpractice action against neurosurgeon and his employer. The Mobile Circuit Court, No. CV-98-3909, denied motion for summary judgment brought by neurosurgeon and his employer, and they appealed. The Supreme Court, Stuart, J., held that: (1) it is the defendant health care provider's credentials on the date of the alleged breach that must be considered in determining who may testify against the defendant as a similarly situated health-care provider; (2) neurosurgeon who was not a board-certified neurosurgeon at time he performed surgery on patient, but who became board-certified in neurosurgery three months after patient's surgeries could not be considered a "specialist" at the time he allegedly breached the applicable standard of care; and (3) physician, who was proffered expert of patient's estate, was a "similarly situated health care provider" and, thus, was qualified to testify as an expert. Affirmed.
  • WILLIAM A. CLARK, PLAINTIFF-APPELLANT, V. UNITED STATES, DEFENDANT-APPELLEE., 322 F.3D 1358, NO. 02-5062 (UNITED STATES COURT OF APPEALS, FEDERAL CIRCUIT, MARCH 18, 2003) Member of state National Guard sued United States, seeking compensation for time spent completing mandatory correspondence courses. The United States Court of Federal Claims, Edward J. Damich, Chief Judge, 50 Fed.Cl. 727, dismissed complaint for failure to state claim. Member appealed. The Court of Appeals, Schall, Circuit Judge, held that: (1) jurisdiction existed over member's claim under Tucker Act, and (2) statute did not preclude member from seeking compensation for time spent in completing mandatory correspondence courses while member was in service to state National Guard and not the National Guard of the United States. Reversed and remanded.
  • AARON L. OSBORNE AND BONITA R. OSBORNE, HUSBAND AND WIFE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, V. BANK OF AMERICA, NATIONAL ASSOCIATION , DEFENDANT, 234 F. SUPP.2D 804, NO. 3:02-0364 (M.D. TN. SEPT. 23, 2002) African-American car buyers brought class action against bank upon whose behalf automobile loans were made, and to which loans were assigned, for alleged violations of the Equal Credit Opportunity Act (ECOA) in connection with markups allegedly applied on loans to African-American customers. On motion to dismiss for failure to state claim, the District Court, Trauger, J., held that: (1) bank to which automobile loans were assigned by dealerships could be deemed the "originating creditor," in ECOA action arising out of dealerships' application of markups to these loans in alleged racially discriminatory manner; (2) allegations in automobile buyers' complaint, that dealerships, in extending car loans on bank's behalf, applied markups to loans in racially discriminatory manner pursuant to bank policy of encouraging subjective markups unrelated to creditworthiness of buyers, sufficiently averred agency relationships between dealerships and bank to hold bank liable, on agency theory, for any violation of the ECOA by dealerships; (3) bank could not avoid liability simply by delegating aspects of financing transactions to dealerships; and (4) buyers sufficiently alleged requisite causal connection between bank policy and racially discriminatory effect to state disparate impact claim against bank. Motion denied.
  • EX PARTE WILSON, 854 SO. 2D 1106 (ALA. 2002) Administrator of deceased wife's estate brought medical malpractice action against doctors and others, alleging acts of negligent treatment and care in various counties. Doctors and others filed change of venue motion to transfer case from county where decedent resided to other county, and the Circuit Court, Wilcox County, No. CV-01-61, granted the motion. Administrator petitioned for writ of mandamus. The Supreme Court, Lyons, J., held that action had to be brought in county where decedent resided. Petition granted; writ issued.
  • EX PARTE MCINNIS, 820 SO.2D 795 (ALA. 2001), CERT. DENIED, 122 S.CT. 1961, 152 L.ED.2D 1021 (2002) Decedent's estate brought products liability action against three nonresident officers of manufacturer following fatal explosion of tire-inflation product. Officers moved to dismiss for lack of personal jurisdiction. The Baldwin Circuit Court, No. CV-98-1113, Jacquelyn L. Stuart, J., denied motions. Officers petitioned for writ of mandate. Estate petitioned for writ of mandamus to direct trial judge to vacate an order granting motions to strike certain evidentiary materials submitted in opposition to motions to dismiss. The Supreme Court, Johnstone, J., held that: (1) two officers had sufficient minimum contacts with forum to warrant exercise of personal jurisdiction; but (2) third officer lacked sufficient minimum contacts with forum to permit exercise of personal jurisdiction. Writ denied as to two defendants and granted as to one defendant; plaintiffs petition dismissed as moot in part and denied in part.
  • HORNADY TRUCK LINES, INC. V. MEADOWS, 847 SO. 2D 908 (ALA. 2002) Accident victims who were injured in a collision that occurred on interstate after northbound automobile first collided with northbound tractor-trailer, then crossed over grass median into path of southbound vehicle, sued driver of northbound automobile, his employer, and tractor-trailer owner on theories of wantonness and negligence. The Baldwin Circuit Court, Nos. CV-00-638, CV-00-926, entered judgments for accidents victims pursuant to jury verdicts. Defendants appealed. The Supreme Court, Houston, J., held that: (1) alleged negligence and wantonness on part of both northbound drivers were questions for jury; (2) whether employer negligently entrusted automobile to employee was question for jury; (3) compensatory damage awards of $2,000,000 for operator of southbound vehicle, and of $1,000,000 and $1,500,000, respectively, for wife and son who were injured, were not excessive; and (4) compensatory damages award of $1,750,000 for passenger in northbound automobile was not excessive. Affirmed.
  • PETTIBONE V. TYSON, 794 SO.2D 377 (ALA. 2001) Van driver sued employer's lead maintenance technician, alleging that technician's failure to repair van's brakes was a willful removal of a safety device. The Baldwin Circuit Court, No. CV-97-871, Jacquelyn L. Stuart, J., entered judgment on jury verdict for technician. Driver appealed. The Supreme Court, Johnstone, J., held that greater scienter requirement of "intent to injure" should not have been incorporated into jury charge. Reversed and remanded.
  • EX PARTE WISCONSIN PHYSICIANS SERVICE INS. CORP., 800 SO.2D 588 (ALA. 2001) ln two fraud actions against various defendants, defendants filed petitions for writs of mandamus directing the Choctaw Circuit Court, Nos. CV-99-008 and CV-2000-010, Harold L. Crow, J., to permit videotaping of depositions of plaintiffs and child of one plaintiff. The Supreme Court, Lyons, J., held that in absence of any objective guidelines to assist trial court in making decision, grant of plaintiffs' motion to disallow videotaping of depositions was not clearly abuse of discretion. Writs denied.
  • IN RE LOUISIANA DOCK CO., L.L.C., 157 F.SUPP.2D 1267 (S.D. ALA. 2001) Vessel owner filed petition for exoneration from or limitation of liability for death of seaman who fell overboard and drowned while inspecting a barge tied to vessel. On claimant's motion to lift stay to allow her to proceed in state court, the District Court, Howard, Senior District Judge, held that: (1) claimant was not required to stipulate that the limitation fund that vessel owner unilaterally offered the court represented the value of the vessels involved, and (2) claimant who stipulated to limitation of liability was not required to also stipulate to exoneration in order to lift stay. Motion granted.
  • LUCIA V. TELEDYNE CONTINENTAL MOTORS, 173 F.SUPP.2D 1253 (S.D. ALA., JUN 22, 2001) (NO. CIV. 99-468-RV-S) Owner of general-aviation aircraft brought state-court class action against manufacturer of crankshafts used in owner's planes' engines, asserting state- law claims for misrepresentation, negligence, strict liability, and breach of warranty, and seeking injunctive relief and damages. Manufacturer removed action on both federal question and diversity grounds. On motion to remand, the District Court, Vollmer, Senior District Judge, held that: (1) potential attorney fee award from common fund could not satisfy amount-in-controversy minimum; (2) proper measure of amount in controversy in claim for injunctive relief was monetary value of services that would be rendered by manufacturer; (3) value of injunctive relief to all class members could not be aggregated to reach jurisdictional amount; (4) owner's claims were not field-preempted by Federal Aviation Act; and (5) action was not rendered removable by mere fact that requested relief allegedly conflicted with Federal Aviation Administration's (FAA) Airworthiness Directive. Motion granted.
  • IN RE AMERICAN COMMERCIAL LINES, L.L.C., 158 F.SUPP.2D 1312 (S.D. ALA. 2001) Claimant filed motion to lift stay order issued pursuant to action filed under Limitation of Vessel Owner's Liability Act and permit claimant to proceed in state court. The District Court, Howard, Senior District Judge, held that claimant, which stipulated that federal court had exclusive jurisdiction over the limitation proceeding and further waived the related defense of issue preclusion as to any judgement rendered by any other court with respect to the issue of shipowner's and charterer's right to limit their liability, was not required to stipulate to exoneration in order to lift stay order. Motion granted.
  • EX PARTE CRANMAN, 792 SO.2D 392 (ALA. 2000) University student brought medical malpractice action against physicians who worked at university's health center, among others. The Tuscaloosa Circuit Court, No. CV-96-1014, John H. England, Jr., J., entered summary judgment for physicians. After student died and his father was substituted as plaintiff, father appealed. The Court of Civil Appeals, 792 So.2d 386, affirmed. Father filed petition for certiorari review. On rehearing, the Supreme Court, Lyons, J., held that physicians were not entitled to State-agent immunity. Reversed and remanded.
  • WIMPEE EX REL. JOHNSTON V. STELLA, 791 SO.2D 915 (ALA. 2000) Mother and child brought medical malpractice action against residents in training employed by state university hospital, alleging that they were negligent in delivering child. The Mobile Circuit Court, No. CV-96-157, Joseph S. Johnston, J., entered summary judgment for residents. Plaintiffs appealed. On grant of rehearing, the Supreme Court, Brown, J., held that residents were not entitled to discretionary-function immunity. Reversed and remanded.
  • EX PARTE RIZK, 791 SO.2D 911 (ALA. 2000) Administratrix of estate of patient filed wrongful death action on theory of medical malpractice against medical resident employed by state university hospital and other defendants, based on emergency caesarean-section delivery and provision of aftercare. The Mobile Circuit Court, No. CV-96-161, Chris N. Galanos, J., denied medical resident's motion for summary judgment. Medical resident petitioned for writ of mandamus. On rehearing, the Supreme Court, Johnstone, J., held that medical resident was not entitled to State- agent immunity. Writ denied.
  • MUTUAL ASSUR., INC. V. CHANCEY, 781 SO.2D 172 (ALA. 2000) Liability insurer sought to intervene for purpose of requesting interrogatories or special verdict forms in suit by patient against insured physician and medical practice. The Montgomery Circuit Court, No. CV-98-2355, Eugene W. Reese, J., denied insurer's motion to intervene, and insurer appealed. The Supreme Court, Cook, J., held that: (1) insurer was not entitled to intervention as of right, and (2) trial court did not abuse its discretion in denying insurer's request for permissive intervention. Affirmed.
  • MILLER V. JACKSON HOSP. AND CLINIC, 776 SO.2D 122 (ALA. 2000). Patient's uncle brought medical malpractice action against hospital and physicians. The Montgomery Circuit Court, No. CV-99-148, Sarah M. Greenhaw, J., denied motion to add patient as a named plaintiff and granted summary judgment to defendants. Patient and uncle appealed. The Supreme Court, Lyons, J., held that: (1) power of attorney did not have to specifically give the authority to bring personal injury action on behalf of patient; (2) durable power of attorney was not dormant until patient became incompetent; (3) uncle as attorney-in- fact was not a real party in interest; and (4) patient was entitled to be substituted as the real party in interest. Reversed and remanded.
  • EX PARTE MASTER BOAT BUILDERS, INC., 779 SO.2D 192 (ALA. 2000) Partner sued copartners for damages, alleging suppression, breach of fiduciary duty, conversion, and misrepresentation, and alleged accounting malpractice as to one copartner in his capacity as partner's personal accountant. The Mobile Circuit Court, No. CV-97- 1471, Ferrill D. McRae, J., denied copartners' motions for summary judgment and alternative motions to strike partner's jury demand. Copartners petitioned for writ of mandamus. The Supreme Court, Maddox, J., held that: (1) Alabama Uniform Partnership Act (AUPA) did not apply to partnerships formed before January 1, 1997; (2) under the Alabama Partnership Act (APA), partner was not entitled to a jury for claims arising out of the partnership business; but (3) accounting malpractice claim was not subject to equitable accounting requirement. Petitions granted in part and writs issued.
  • BELLANDE V. TERRY, 775 SO.2D 225 (ALA. CIV.APP. 2000) In May 1998, Charles D. Terry sued Sharon Blair Bellande, alleging that Bellande had negligently and/or wantonly caused her motor vehicle to collide with his vehicle. He requested compensatory and punitive damages. The case proceeded to a jury trial. The jury returned a verdict for Terry, awarding him $2,500 damages. Terry moved for a new trial, arguing that the jury verdict was inadequate. The trial court granted the motion. Bellande appealed from the order granting a new trial. Order granting new trial affirmed.
  • LANCE, INC. V. RAMANAUSKAS, 731 SO.2D 1204 (ALA. 1999). Parents brought wrongful death action against distributor of vending machines, hotel where machine was located, and machine owner, after their child was electrocuted while attempting to purchase snack from machine. The Mobile Circuit Court, No. CV-95-4253, Chris N. Galanos, J., entered judgment on jury verdict against distributor in the amount of $13,000,000, and denied distributor's post-trial motion for a new trial, for a judgment as a matter of law, for a remittitur, or to alter, amend, or vacate the judgment. Distributor appealed. The Supreme Court, Lyons, J., held that: (1) evidence supporting submission of the question of foreseeability to the jury; (2) issue of whether distributor was guilty of conduct which was carried on with a reckless or conscious disregard of the rights or safety of others, was question for jury; (3) distributor was not entitled to new trial on the basis of lack of a unanimous verdict; (4) counsel's comments during opening and closing statement were improper comment on the value of a particular life; and (5) excessive jury award was subject to remittitur. Affirmed conditionally.
  • IN RE AMTRAK SUNSET LTD. TRAIN CRASH IN BAYOU CANOT, ALA. ON SEPT. 22, 1993, 121 F.3D 1421 (11TH CIR. 1997), CERT. DENIED, 522 U.S. 1110, 118 S.CT. 1041, 140 L.ED.2D 106 (1998). Personal injury and wrongful death actions were brought against owner of commercial vessel, vessel's pilot and captain, owner of railroad bridge, and operator of passenger train, after train derailed due to damage caused when vessel's tow struck bridge support. The United States District Court for the Southern District of Alabama, No. 945000-RV-C, Richard W. Vollmer, Jr., J., made certain rulings regarding applicable law, and Court of Appeals granted interlocutory review. The Court of Appeals, Howard, Senior District Judge, sitting by designation, held that: (1) wrongful death claims were to be governed by federal maritime law, not Alabama wrongful death statute, and (2) nonseamen plaintiffs were not entitled to seek nonpecuniary damages upon personal injury claims.
  • IN RE THE MATTER OF THOMAS DALE HINOTE AND CHRISTOPHER EARL CONWAY, 179 F.R.D. 335 (S.D. ALA. 1998) Former employees filed petition in state court for discovery before action, alleging that they expected to be plaintiffs in an action for injuries and damages sustained by them resulting from alleged misrepresentations by their former employer regarding participation in a retirement plan. They sought leave to depose agent of life insurance company and another individual. After removal by the prospective deponents, petitioners moved to remand. The District Court, Butler, Chief Judge, held that state court proceeding pursuant to Alabama Rule of Civil Procedure permitting a party to obtain discovery before an action is commenced by filing a verified petition in circuit court is not a "civil action" within meaning of removal statutes, and thus is not subject to removal. Motion granted.
  • WHATABURGER, INC. V. ROCKWELL, 706 SO.2D 1220 (ALA.CIV.APP. 1997) Patron sued restaurant to recover for injuries sustained in a fight there. Following jury trial, the Mobile Circuit Court, No. CV-95-541, J. Richmond Pearson, J., entered judgment for patron in the amount of $50,000 in compensatory damages. Restaurant appealed denials of its motions for summary judgment and directed verdict. The Court of Civil Appeals, Monroe, J., held that: (1) restaurant could not be held liable merely based on fact that fight occurred on its premises; (2) jury questions existed as to whether restaurant manager knew that a fight was about to break out and that plaintiff was in imminent danger, and as to whether restaurant owed duty to protect plaintiff from harm; (3) issues of whether restaurant was negligent and whether any such negligence proximately caused plaintiffs injuries were questions for jury; and (4) issue of whether plaintiff was contributorily negligent was likewise a jury question. Affirmed.
  • AMERICAN LEGION POST NO. 57 V. LEAHEY, 681 SO.2D 1337 (ALA. 1996) Patron who was injured in fall at American Legion post brought action against post, and moved for declaration that statute allowing introduction in personal injury actions of evidence that plaintiffs medical or hospital expenses have been or will be paid or reimbursed by collateral source is unconstitutional. The Calhoun Circuit Court, No. CV-93-395, Samuel H. Monk 11, J., entered order holding statute unconstitutional, and post appealed. The Supreme Court, Almon, J., held that statute allowing admission of such evidence violated due process and equal protection guarantees of State Constitution. Affirmed.
  • SMITH V. SCHULTE, 671 SO.2D 1334 (ALA. 1995), CERT. DENIED, 517 U.S. 1220,116 S.CT. 1849, 134 L.ED.2D 950 (1996) Administrator of estate of patient who died after physician, while treating patient following automobile accident, administered drug which made all voluntary muscular activity, including breathing, impossible brought wrongful death action based on medical malpractice against physician and his professional association. After jury returned verdict awarding $4.5 million in punitive damages, the Mobile Circuit Court, No. CV-90-001334, Douglas 1. Johnstone, J., determined that award was not excessive, but reduced verdict to $1 million, with consumer price index adjustments, pursuant to statutory cap on damages in actions against health care providers. Both parties appealed, and the Supreme Court held that: (1) statutory cap impermissibly limits recovery in certain wrongful death actions and violates State Constitution; (2) statute violates right to trial by jury in wrongful death action based on medical malpractice guaranteed by State Constitution; and (3) award of $4.5 million in punitive damages was excessive and would be remitted to $2.5 million. Reversed in part and affirmed conditionally in part, and application for rehearing overruled.
  • RAY V. ANESTHESIA ASSOCIATES OF MOBILE, P.C., 674 SO.2D 525 (ALA. 1995) Widow of patient who died while undergoing coronary bypass surgery brought wrongful death action against hospital, treating physician, nurse anesthetist, respiratory therapist, and health care corporation which provided anesthesia. After jury returned verdict which found against nurse, corporation, and physician and in favor of hospital and respiratory therapist and awarded damages of $1.75 million, the Mobile Circuit Court, No. CV-91-2042, Douglas 1. Johnstone, J., granted defendants' motion to reduce verdict to damages cap under Alabama Medical Liability Act. Widow appealed, and the Supreme Court held that trial court erred in reducing award as damages cap of Act violates right to trial by jury and right to equal protection of laws provided by State Constitution. Reversed and remanded.
  • CAMPBELL V. WILLIAMS, 638 SO.2D 804 (ALA. 1994), CERT. DENIED, 513 U.S. 868, 115 S.CT. 188, 130 L.ED.2D 121 (1994). Judgment was entered against doctor in medical malpractice case for damages from wrongful death of burn victim following jury trial by the Circuit Court, Etowah County, No. CV-89-124, Donald W. Stewart, J. Doctor appealed. The Supreme Court, Shores, J., held that: (1) non-apportionment of punitive damages among multiple defendants in wrongful death case was not unconstitutional; (2) failure to advise jury of pro tanto settlement between hospital and plaintiff did not entitle doctor to new trial; (3) allowing expert who had previously been contacted by defendant's attorneys to testify as plaintiffs expert on standard of care was not abuse of discretion; (4) mention of insurance during closing argument did not entitle doctor to new trial; and (5) doctor was not entitled to remittitur of $4 million punitive damages award. Affirmed.
  • FRANTZ V. BRUNSWICK CORP., 866 F.SUPP. 527 (S.D. ALA., FEB 18,1994) Owner of outboard motor boat brought action against boat manufacturer, steering system manufacturer and seller following accident in which owner was injured when he took both hands off of the steering wheel and the boat veered to the right. On defendants' motions to strike and for summary judgment, the District Court, Hand, Senior District Judge, held that: (1) actions could be maintained under federal maritime law, but not under both federal maritime and Alabama tort law; (2) owner was not entitled to punitive damages; (3) fact question as to whether alternative design was available to boat manufacturer precluded summary judgment in design defect products liability action; (4) fact question as to whether risks involved in taking hands off steering wheel of boat were truly open and obvious precluded summary judgment regarding warning defect claims; (5) general maritime law would be applied to products liability action against seller; (6) owner was not required to show fault in pursuing strict products liability cause of action against seller; and (7) fact question as to whether seller was liable to owner in no fault strict products liability action precluded summary judgment based upon seller's defenses. So ordered.
  • MOORE V. MOBILE INFIRMARY ASSN, 592 SO.2D 156 (ALA. 1991) Patient appealed from judgment of the Circuit Court, Mobile County, No. CV-89-1030, Braxton L. Kittrell, J., reducing amount of damages awarded to her in medical malpractice case. The Supreme Court, Adams, J., held that: (1) statute setting a $400,000 limit on noneconomic damages in medical malpractice cases violated right to trial by jury under Alabama Constitution, and (2) statute violated equal protection guarantees of Alabama Constitution. Reversed and remanded with directions.

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