Alabama Appellate Opinions Released February 15, 2019
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Alabama Appellate Opinions Released 
February 15, 2019
Alabama Supreme Court
Rule 54(b) Certifications Are Appropriate Only in Exceptional Cases 

Clifford Goodman Wright, as administrator of the Estate of Mary Evelyn Wright,
deceased v. Phyllis Harris, et al.

Clifford Wright ("Wright") was appointed as administrator of the estate of Mary Evelyn Wright in a personal injury action against Cleburne County Hospital and Nursing Home, Inc. ("the Hospital Board") and the nurses. The amended complaint asserted claims against the nurses, the Hospital Board and various fictitiously named parties under the Alabama Medical Liability Act. The trial court granted summary judgment in favor of the nurses, finding that Wright failed to establish a duty owed by the nurses as well as a causal connection between any alleged breach in the standard of care and Mary’s injury and death. The Hospital Board also filed a motion partially joining the nurses’ summary judgment as to the issue of causation. The trial court granted Wright’s motion to stay all proceedings in the trial court. On appeal, Wright challenged the trial court's order granting summary judgment in favor of the nurses. Since the trial court resolved only the claims against the nurses, the claims against the Hospital Board were still pending in the trial court. Further, the Court's order granting summary judgment included a certification of finality pursuant to Rule 54(b). Thus, the issue in front of the Alabama Supreme Court was whether this was an exceptional case that warranted piecemeal appellate consideration of its constituent issues and, as to which, there is no just reason for delay.

The Alabama Supreme Court stated that the issues in the claims being certified and the claim that will remain pending in the trial court are so closely intertwined that separate adjudication would present an unreasonable risk of inconsistent results. In their discussion, the Court found that causation was an integral component of the claim still pending in the trial court against the Hospital Board and that piecemeal appellate review on the issue of causation would be unwarranted. The Court noted that because the underlying facts of the claims against both the nurses and the Hospital Board were substantially the same, judicial economy would best be served by singular appellate review of all evidence. The Court reiterated that Rule 54(b) certifications should be entered only in exceptional cases. Thus, the Alabama Supreme Court held that the trial court's Rule 54(b) certification was invalid and that the appeal was from a non-final judgment. Accordingly, the Court dismissed the appeal. 
Court Discusses Admissibility of Expert Testimony of Historical Cell-Site Analysis for the First Time 

Hinkle Metals & Supply Company, Inc. v. Diane Brown Feltman

Hinkle Metals & Supply Company (“Hinkle”) appealed from a judgment based on a jury verdict in favor of Diane Brown Feltman. On September 11, 2015, Butterfield struck a pedestrian, Diane Feltman, while driving his pickup truck in downtown Birmingham. Feltman sued Butterfield and Hinkle, Butterfield's employer, alleging that Butterfield, while acting within the line and scope of his employment, had been negligent and wanton in causing the accident and that Hinkle was vicariously liable based on a theory of respondeat superior. The trial court entered a judgment in favor of Feltman, finding Hinkle vicariously liable for Butterfield’s negligence. Hinkle filed a renewed motion for a JML.

At trial, Butterfield’s call records from the date of the accident were admitted into evidence. Among other witnesses, Draper was called to provide expert opinion based on historical cell-site analysis of the call records. Among other arguments, Hinkle asserted that the jury’s verdict was impermissibly based on an inference upon an inference. Specifically, Hinkle challenged the reliability of Draper’s historical cell-site methodology and the inference made by the jury as to whether Butterfield was acting within the line and scope of his employment based on Draper's testimony.

In addition to discussion regarding whether Butterfield was acting within the line and scope of his employment at the time of the accident, the Alabama Supreme Court discussed the admissibility of expert testimony of historical cell-site analysis in light of Rule 702. The Alabama Supreme Court had not previously addressed this issue. The Court found that the admission of such evidence did not overpromise the technique's precision because the expert witness acknowledged the limitations in its application. Additionally, the Court recognized it was the responsibility of the jury to determine the weight to accord to the expert testimony. Thus, this expert testimony was admissible. The Alabama Supreme Court would not examine the expert testimony under Rule 703 since this issue was not preserved for the Court's review. The Alabama Supreme Court ultimately held the trial court did not err in denying Hinkle’s motion for a JML or his motion to exclude Draper's expert testimony. Thus, the Court affirmed the trial court’s judgment. 
Alabama Court of Civil Appeals
Court Emphasizes Conflicting or Contradictory Testimony Is Not a Basis for Entering a Judgment as a Matter of Law

Fazzingo v. Orange and Keim TS, Inc.

In Fazzingo , the plaintiff, Rebecca M. Fazzingo, brought claims of negligence and wantonness against defendant Carl D. Orange and negligent entrustment against his employer Keim TS, Inc. (“KTSI”) alleging that Orange struck the rear of her vehicle. At trial, the defendants moved for a motion for a judgment as a matter of law on all claims after the plaintiff testified to the nature of her injuries and provided the deposition testimony of her chiropractor. The trial court granted the defendants’ motion for a judgment as a matter of law, stating that the plaintiff failed to establish credible evidence of causation and specific injuries or damages that she allegedly suffered as a result of the automobile accident. The plaintiff appealed the trial court’s decision, arguing that she presented substantial evidence to survive a motion for a judgment as a matter of law. 

The main issue before the Alabama Court of Civil Appeals was whether the trial court erred in granting the defendants’ motion for a judgment as a matter of law. The Court noted that the plaintiff’s testimony had certain inconsistencies and was not always clear. It noted further that the plaintiff’s testimony regarding her previous and existing medical condition may have been incomplete. However, citing to Semmes Nurseries, Inc. v. McVay , 181 So. 2d 331, 333 (1965), the Court emphasized that “conflicting or contradictory [testimony] is not a basis for entering a judgment as a matter of law.” Because the weight to be assigned to the plaintiff and her chiropractor’s testimony was a function of the jury and not the trial court, the Court held that the plaintiff presented substantial evidence regarding the cause of her injuries. Thus, the Court reversed the trial court’s decision. 
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