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Alabama Appellate Opinions Released
September 27, 2019
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Court Upholds Dismissal of Suit Where Original Complaint was Struck Because it was Unsigned, and Second Complaint was Untimely
Tim McKenzie and Sherrie McKenzie v. Janssen Biotech, Inc.
In this failure to warn case, Plaintiff-Appellant’s case was dismissed after their initial complaint, which was unsigned and was filled with errors, was struck, and their second complaint was untimely.
Until November 2014 when he developed severe neuropathy, Plaintiff received Remicade, a medicine manufactured by Janssen Biotech (Janssen). At that time Plaintiff stopped receiving Remicade, but Plaintiffs claim that they were not told that Remicade was the cause of the illness until December 2015. In October 2016, Plaintiffs filed a complaint alleging several claims, among them, fraudulent concealment that Plaintiff’s condition was caused by Defendant’s medicine. This complaint was unsigned and was filled with errors – it said that the Plaintiff was deceased when he was in fact alive, asserted Indiana state law claims, and included a Pennsylvania certification of service. This complaint was never served on the Defendant.
The trial court struck this complaint for failure to comply with Rule 11(a)’s requirement that every complaint be read and signed by the attorney who prepared it. Plaintiff then filed a properly signed second complaint in February 2017. The Defendant then moved, and the trial court granted, a motion to dismiss the complaint because it was filed after the two-year statute of limitations for tort claims. The trial court dismissed the complaint and Plaintiff appealed.
The Alabama Supreme Court first held that the trial court did not exceed its discretion in striking the original complaint. The Court noted that part of the purpose of Rule 11’s signature requirement is to avoid the type of errors that were present in the original complaint. The Court reemphasized that Rule 11 grants the trial court discretion in striking a complaint for failure to comply with the signing requirement. Because this case involved a statute of limitations issue created by the failure to sign and multiple significant errors were present in the complaint, the Court found that it was within the discretion of the trial court to strike the complaint.
Because the Court found that the trial court properly struck the initial complaint, the Court then turned to whether the complaint filed in February 2017 was timely. The Court found that the two-year limitation on tort claims expired prior to the filing and the fraud claims were not properly plead to toll the limitations period. While the trial court was willing to allow the Plaintiffs to provide more information as to their claim of fraudulent concealment, Plaintiff never provided more than generalized allegations of fraud. On these grounds the Court upheld the ruling of the trial court.
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Court Grants Writ of Mandamus Based on Immunity
Ex parte City of Tuskegee (In re: Nyasha Redd v. City of Tuskegee)
In this case, the Supreme Court of Alabama granted a petition for writ of mandamus and dismissed a suit against the City of Tuskegee for negligent inspection and negligent failure to provide hydrant and/or water pressure claims.
This case arises from a house fire in which Yvonne Redd passed away. The City of Tuskegee requires that houses be inspected to ensure that hard-wired smoke detectors are installed before utilities can be turned on. Redd’s house was inspected by the city prior to her moving in and noted that smoke detectors were present. However, investigation of the scene of the fire showed no evidence smoke detectors were present in the house. There was also an allegation that the water pressure in the lines used by the Tuskegee fire department had dropped during their attempts to fight the fire. This was caused by a second fire department that was assisting in the efforts and happened after multiple efforts were made to enter the home to find Redd, and after the efforts had been called off due to fear that the roof would collapse.
The Court first addressed whether Tuskegee was immune from claims related to inspection of the smoke detectors in the house. In finding that the city was immune, the Court emphasized that the benefit of smoke detector inspections was not intended to go to the individual, but rather to the community at large. Therefore, because the city was not providing a benefit to the individual, it did not owe the individual a duty. In Alabama, courts have avoided imposing liability in negligent inspection claims because it would discourage cities from engaging in inspections. While the inspections of electrical systems protect the public, they weren’t intended to provide a service or benefit to individuals.
Plaintiff’s allegations that the water pressure was insufficient to fight the fire and that two of the fire hydrants were inoperable were likewise rejected. Tuskegee relied on evidence that the water pressure did not drop until a second fire department caused a decrease in water pressure, and that at that time rescue efforts had already been called off. Because the city provided prima facie evidence that it was not negligent and was immune, the burden shifted to the Plaintiff to present substantial evidence that the City had been negligent. Plaintiff attempted to show that there were two inoperable fire hydrants that should have been available. One had not yet been installed at the time of the fire and the other was actually operable at the time of the fire, according to the testimony that Plaintiff cited to say that it was inoperable. There was no evidence provided by Plaintiff to show that rescue efforts could have been successful without the water pressure drop caused by the other fire department. The Court therefore held that the City had shown that summary judgment was warranted and granted the writ of mandamus.
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Alabama Court of Civil Appeals
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Court Dismisses Appeal of Workers’ Compensation Matter Due to Claimant’s Death
Lillie Billingsley v. City of Gadsden
In this matter, which involved a series of three appeals, Lillie Billingsley (“the employee”) sought an award of benefits pursuant to the Alabama Workers' Compensation Act against the City of Gadsden (“the employer”) for a work-related automobile crash occurring in August 2008. On remand, after the second appeal to the Alabama Court of Civil Appeals, counsel for the employee informed the trial court during a status conference that the employee died for causes unrelated to the crash.
Subsequently, the employer filed a motion to dismiss contending that her right to receive benefits under the Act terminated upon her death. The trial court agreed, and the employee appealed to the Alabama Court of Civil Appeals.
However, the Court of Appeals dismissed the appeal based on
McRae v. Johnson
, 845 So. 2d 784 (Ala. 2002), which held that “an attorney’s authority to act on behalf of a client ceases on the death of that client.” The Court further held the notice of appeal was a “nullity on the basis that the ‘appellant was deceased when the notice of appeal was filed’ and thus that the notice ‘had failed to invoke the appellate jurisdiction of that court.”
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