By David Marsh

In this issue, we look at a variety of decisions from our Alabama Supreme Court that were released in the past few months. We remind you that if you wish to read a full-text copy of any of these decision, you simply may use the "Ms." or case number as an easy word-search term in Lexis or WestLaw.

Springhill Hospitals, Inc. v. Larrimore, Ms. 1051748 (Ala. Feb. 29, 2008) – Luther Larrimore went to the Springhill Memorial Hospital ("SMH") emergency room in Mobile, complaining of severe knee pain. Luther was accompanied by his wife, Sharon. Dr. John McMahon, who had performed ER services for SMH since 1988, diagnosed gout in Luther's knee and discussed three different treatment options. Luther rejected the first two options and accepted the third option, which consisted of taking colchicine, a drug he had taken in small doses in the past. Dr. McMahon had prescribed colchicine 17 years earlier. After consulting a Physicians Desk Reference in his office, Dr. McMahon sent a prescription for a "loading dose" of two milligrams of colchicine taken orally to the SMH pharmacy for Luther. The SMH pharmacist, Gregory Weeks, telephoned Dr. McMahon after he received the prescription to advise Dr. McMahon that a loading dose of two milligrams of colchicine was proper if the drug were taken intravenously, but not if taken orally. After Weeks also informed Dr. McMahon that SMH only stocked the drug in tablet form and not for intravenous application, Dr. McMahon asked Weeks what the proper oral loading dose was and Weeks informed Dr. McMahon that it would be 0.5 to 1.2 milligram and that a prescription dose would be a 0.5 to 0.6 tablet taken every hour until the symptoms lessened.

Dr. McMahon and Weeks did not exchange any information about Luther's medical history. Dr. McMahon prescribed a loading dose of one 0.6 milligram tablet of colchicine, which the SMH pharmacy sent to Dr. McMahon, who had Luther take it while at SMH. Dr. McMahon then wrote a separate prescription for sixteen 0.6 milligram colchicine tablets, which Luther had filled at a local drugstore. Luther then went home and began taking the colchicine tablets hourly throughout the night – taking a total of 7.2 milligrams of colchicine.

Luther returned to the SMH emergency room the next day, where a different physician, Dr. Michael Mahoney, diagnosed a viral syndrome and a drug reaction to colchicine, and sent Luther home. Luther's symptoms worsened and he was admitted the next day to the Mobile Infirmary, where he died two days later.

Sharon Larrimore brought a wrongful death action against several defendants, including SMH and Drs. McMahon and Weeks, alleging that they failed to provide reasonably proper medical treatment to Luther. The trial court entered summary judgments for all defendants except Dr. McMahon and SMH. On the second day of trial, Dr. McMahon entered into a pro tanto settlement agreement for $200,000. The first trial ended in a mistrial due to a hung jury. On the second trial, the jury returned a $4 million verdict against SMH. The trial court denied SMH's post-trial motions and SMH appealed.

On appeal, SMH argued that the trial court erred in denying SMH's motion for a judgment as a matter of law by refusing to apply the learned intermediary doctrine that SMH said cut off any duty owed to Luther by Weeks and, thus, any vicarious liability on the part of SMH.

Justice See's opinion for all nine members of the Supreme Court agreed with SMH and then reversed and rendered judgment in favor of SMH. The Supreme Court rejected Larrimore's argument that Alabama's learned intermediary doctrine exists only as a defense in a product liability action and could not apply in this "simple medical negligence case." The opinion then noted that, in Walls v. Alpharma USPD, Inc., 887 So. 2d 881 (Ala. 2004), the court found that neither a manufacturer nor a pharmacist possessed the medical education or medical history of a patient that would justify imposing a duty to intrude into the physicianpatient relationship; and that requiring a pharmacist to warn of potential risks associated with a drug would interfere with that relationship. Therefore, the Walls decision said, the duty and any liability arising from such duty was best left with the physician.

The Supreme Court said that the duty at issue in this case was not a duty to warn Luther "as a customer" of potential risks or side effects of colchicine, but, rather, "a duty of care, allegedly breached by Weeks when he gave Dr. McMahon allegedly incomplete prescribing information for colchicine. The learned-intermediary doctrine is more than just a narrow rule of law regarding a manufacturer's or pharmacist's limited duty to warn. It addresses questions of liability in light of the relationships between the parties involved in the distribution, prescribing, and use of prescription drugs."

Applying the rationale and policies stated in Walls to the facts of this case, the Supreme Court found that "the physician, not the pharmacist, has the medical education and training and the knowledge of a patient's individual medical history necessary for properly prescribing medication; therefore, it is the physician, and not the pharmacist, who should bear the liability for mistakes in prescribing or dosing the medication." The court then went on to reject Larrimore's argument that Weeks (and SMH) could be found to have owed a duty to Luther under the voluntary undertaking doctrine, because in the cases relied on by Larrimore the defendant pharmacist had voluntarily undertaken a duty directly to the customer, whereas here, Larrimore claimed a voluntary-undertaking duty based upon the pharmacist's interaction with the customer's physician. Concluding that the learned intermediary doctrine foreclosed any duty owed to Luther by Weeks, the court held that SMH was entitled to a judgment as a matter of law.


Ex parte Safeway Ins. Co. of Alabama, Inc., Ms. 1061613 (Ala. Feb. 29, 2008) – Michelle Galvin's automobile was struck by an automobile driven by Clifford Monday. Galvin sued Monday for negligence and wantonness. Galvin also sued her own insurance carrier, Safeway, for bad-faith failure to pay her claim and for uninsured motorist benefits under her Safeway policy. Galvin alleged in her complaint that she was injured in the collision, which occurred while Monday was uninsured and intoxicated, and that Safeway refused to negotiate in good faith to pay her UM benefits for her injuries.

Safeway filed a Rule 12(b)(1) motion to dismiss, alleging that the trial court lacked subject-matter jurisdiction because Galvin's bad-faith claim was not ripe due to the fact that the amount of Galvin's damages had not been fixed. (Safeway did not dispute Galvin's allegation that Monday was uninsured.) The trial court denied Safeway's motion Safeway petitioned for a writ of mandamus ordering the trial court to dismiss the bad-faith claim.

Justice Stuart's opinion for the Court, in which Chief Justice Cobb and Justices See, Lyons, Woodall, Smith, Bolin and Parker concurred (Justice Murdock concurred in the result), granted the petition and issued the writ. The Supreme Court noted that a defendant may present two types of challenges to subject-matter jurisdiction: (1) facial challenges, such as lack of standing, which attack the factual allegations of the complain; and (2) factual challenges, which address the underlying facts contained in the complaint. Where a defendant disputes the factual allegations of the complaint, the opinion found, a trial court may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant. Instead, the trial court deciding a motion asserting a factual challenge "'"must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss."'"

The Ex parte Safeway decision found that, in Pontius v. State Farm Mut. Auto. Ins. Co., 915 So. 2d 557 (Ala. 2005), "this Court provided a well-reasoned analysis of a facial challenge to a trial court's subject-matter jurisdiction over a bad-faith claim." In this case, although Galvin's complaint appeared to be facially sufficient to withstand the motion to dismiss, the fact that Safeway offered the affidavit of its claims manager, Mizell, as evidence that Galvin's damages were not fixed but contested presented a factual challenge to the court's subject-matter jurisdiction. Because Galvin did not offer any evidence to refute Mizell's affidavit, the Supreme Court held that Safeway had established a clear legal right to a dismissal without prejudice of Galvin's un-ripe bad-faith claim.


Ex parte Nationwide Mut. Ins. Co., Ms. 1051502 (Ala. March 7, 2008) – Jureda Windham, Derek Duffy and Laura Duffy filed separate actions against Alan Mortgage Company. Alan Mortgage obtained counsel to represent it, then notified its insurance carrier, Nationwide, of the actions and requested it defend and indemnify Alan Mortgage. An exchange of letters, beginning May 17, 2004, ensued and Nationwide's claims adjuster finally notified Alan Mortgage, on July 2, 2004, that it would neither defend nor indemnify. On July 8, 2004, Alan Mortgage filed a third-party claim (in the action brought by Windham and the Duffys) against Nationwide, alleging breach of the insurance contract and bad faith.

On March 23, 2005, the trial court entered a partial summary judgment in favor of Alan Mortgage on its breach of contract and duty-to-defend claims. Later, Alan Mortgage served a request for production of documents upon Nationwide that sought communications and documents relating to the relationship between Nationwide and its defense counsel that had rendered the coverage opinion, as well as other (including electronic, e-mail) communications between Nationwide and its defense counsel. The trial court granted Alan Mortgage's motion to compel production and later denied Nationwide's motion for a protective order with respect to the discovery requests. Nationwide then petitioned for a writ of mandamus directing the trial court to vacate its order.

Justice Bolin authored an opinion, in which Justices See, Lyons, Stuart, Smith and Parker concurred, Chief Justice Cobb and Justice Woodall concurred in the result, and Justice Murdock concurred in part and dissented in part, that granted the writ in part and denied it in part.

The Supreme Court found that Nationwide was entitled to a protective order with respect to any documents that were created on or after July 2, 2004, the date on which Nationwide denied coverage, but that Nationwide was not entitled to a protective order with respect to any documents that were created before Nationwide denied coverage.

Furthermore, even though the trial court had entered an order striking Nationwide's "advice of counsel" defense, the Supreme Court found that Nationwide had failed to meet its burden for obtaining a writ for a protective order with respect to Alan Mortgage's request for "contracts, agreements, list of case assignments and requests for coverage opinions, and information regarding the amounts paid in compensation" to Nationwide's defense counsel. In this regard, the Supreme Court's opinion said:

"The materials before us on this petition for the writ of mandamus establish that Nationwide has not met its burden of demonstrating that the requested discovery is 'patently irrelevant,' [ . . . ] and that the production of the discovery is far out of proportion to the benefit received by Alan Mortgage. Although it appears that the requested discovery may not be relevant and admissible at trial, we cannot conclude that the documents are 'patently irrelevant' and, consequently, not discoverable. Such a determination of relevance and admissibility is proper for review on appeal, not by an extraordinary writ. [ . . . ] Nationwide has not demonstrated that the requested discovery is not easily accessible through its counsel of record and, therefore, readily available upon Nationwide's request that counsel produce the documents."


Ex parte Kennedy, Ms. 1061377 (Ala. April 25, 2008) – On an autumn afternoon, 83-year-old Pete Thompson – who was suffering from some form of mental illness – apparently got angry about the cars speeding past his home in Escambia County and fired a shotgun at a passing automobile, striking the windshield. Pete's brother, Burl Thompson, was mowing the grass near the home where both men lived. When Burl tried to retrieve the gun from Pete, Pete went into the house. Shortly thereafter, a number of Escambia County law enforcement officers came to an area 200 yards from the Thompsons' home, contacted Burl by telephone and asked him to convince Pete to speak with them. Pete refused and Burl then left the home and went to talk with the officers. An Alabama State Trooper tactical unit was called in to deal with the situation. Among the members of the tactical unit were Lt. Charles Ward, Sgt. Marty Griffin and Trooper Matthew Kennedy.

The standoff at the Thompsons' home continued until some time around midnight, when the officers determined that Pete might have gone to bed and the officers decided to enter the home from the front in an attempt to apprehend Pete. When the officers entered, the found Pete's bed was empty and they began to leave. As they did so, Pete fired on the officers without injuring anyone. The tactical unit then moved its van to the front of the home. Around 3:30 a.m., the tactical unit fired tear gas into the home, but Pete failed to leave, and they fired more tear gas into the home. After the last salvo of tear gas was fired, Pete walked out of the house and began firing at the officers. He reloaded his shotgun and fired some more.

Trooper Kennedy swore in his affidavit that he heard Sgt. Griffin say, "If you have a shot, take it," and that he then fired one shot and hit Pete. Pete died from the single gunshot wound. Burl then brought a wrongful death and outrage action against Kennedy and numerous fictitious party defendants. Burl later substituted Ward and Griffin for two of the fictitious defendants.

Kennedy, Ward and Griffin moved for summary judgment on the bases of state-agent immunity and the provisions of Ala. Code § 6-5-338(a), which with few exceptions affords immunity from liability to peace officers for their performance of discretionary functions within the line and scope of their law enforcement duties. Burl argued that the defendants were not entitled to immunity, because they failed to follow established guidelines while attempting to arrest Pete. The trial court granted the summary judgment, but only as to Burl's outrage claim, and denied it as to the wrongful death claim. The defendants then filed a petition for a writ of mandamus directing the trial court to enter summary judgment as to the wrongful death claim.

Justice Murdock's opinion, in which Justices Lyons, Stuart, Bolin and Parker concurred (Chief Justice Cobb recused herself), granted the petition and entered the writ directing the trial court to enter the summary judgment as to Burl's wrongful death claim. The court had "no difficulty concluding" that Kennedy, Ward and Griffin had met their burden of showing that they were engaged in law enforcement functions for which statutory and state-agent immunity would be available, then turned to the question of whether Burl had met his burden of showing that one of the exceptions to such immunity applied.

Burl argued on appeal, as he had in the trial court, that the officers acted beyond their authority (and thus were not due immunity) with regard to the incident in question because "they violated binding rules and regulations." Those rules and regulations, Burl contended, were found in a training manual (known as the "Nighthawk manual") for tactical units used in the Department of Public Safety's academy for law-enforcement officers.

Burl's evidence included the deposition of Captain Herman Wright, the Department of Public Safety's designated Rule 30(b)(6) deponent, in which he testified that the Nighthawk manual gave the trooper defendants "guidance or guidelines on what to do about certain situations," including "guidelines" that troopers in the defendants' positions should not aggravate the subject with whom they were negotiating. Kennedy, Ward and Griffin argued that the Nighthawk manual did not constitute "binding rules or regulations" that could fit the requirement for showing that a state-agent acted beyond his authority. In Giambrone v. Douglas, 874 So. 2d 1046 (Ala. 2003), the court had stated that a state-agent could be found to have acted beyond his authority if he failed "to discharge duties pursuant to detailed rules or guidelines, such as those stated on a checklist."

The Court agreed with Kennedy, Ward and Griffin, finding that "Capt. Wright's testimony that the training manual set forth 'guidelines' and 'procedures' and that it indicated what the tactical team members 'should do' in particular circumstances does not mean that the training manual was adopted as a set of binding rules and regulations strictly governing the tactical unit. [ . . . ] [E]ach of those provisions is either aspirational in nature or leaves the actor with discretion as to whether the guidance should be followed in a given situation."


Wright Therapy Equipment, LLC v. Blue Cross Blue Shield of Alabama, Ms. 1061074 (Ala. April 11, 2008) – Justice See's opinion for a 9-0 court held that it was an abuse of discretion for the trial court to refuse to grant a continuance of the trial after the defendants' counsel was permitted to withdraw thirty-three days before trial. The opinion noted that the same trial court had granted continuances to allow the plaintiff to amend its complaint five times during the course of two years of litigation.


Ex parte Alabama Department of Finance, Ms. 1061639 (Ala. April 11, 2008) – Justice Murdock's opinion for a 5-0 court held that the Alabama Department of Finance is an agency of the state and, therefore, entitled to sovereign immunity from suit, even this suit where the department refused to pay for equipment delivered to the state's "supercomputer" center in Huntsville. This decision should remind us that, whether your client plans to deliver a supercomputer to Huntsville or a load of bricks for the next addition to Jordan-Hare Stadium, he should get his money in advance.


Gallagher Bassett Services, Inc. v. Phillips, Ms. 1070416 (Ala. April 11, 2008) – Justice Woodall's opinion for a 5-0 court dismissed the appeal of a worker's compensation carrier that did not seek to intervene in the lawsuit until after the parties had filed a joint stipulation of dismissal. The opinion noted that, after a stipulation of dismissal is filed, the trial court lacked authority to either grant or deny the motion to intervene, because "there ceased to be a justiciable controversy over which the [trial court] had 'continuing power.'"


Chris Myers Pontiac-GMC, Inc. v. Perot, Ms. 1061090 (Ala. April 18, 2008) – Justice Stuart's opinion for four members of the court (Justice Murdock concurred in the result) found that a plaintiff who was compelled to arbitrate the claims alleged in his lawsuit could not then sit back, wait and demand that the defendant file an arbitration proceeding. Although the language of the arbitration provision stated that "either party may demand arbitration," the rules of the American Arbitration Association that were adopted by the contract state that a "claimant" has the burden of initiating arbitration.


Little Narrows, LLC v. Scott, Ms. 1061624 (Ala. March 7, 2008) – Justice Stuart's opinion for a 5-0 court held that a counterclaim that arises out of the same set of facts and circumstances is a "compulsory" counterclaim that must be brought in the existing action (if at all) if the claims can be made against a party with a "functional identity of interests."


Ex parte Madison County Board of Education, Ms. 1061715 (Ala. March 14, 2008) – Justice Stuart's opinion for eight members of the court (Justice Murdock concurred in part and concurred in the result) held that plain old negligent supervision did not amount to "deliberate indifference" for purposes of maintaining a Section 1983 claim.


Welch v. Wachovia Bank, N.A., Ms. 1041765 (Ala. April 25, 2008) – Justice Parker's opinion for four members of the court (Justice Woodall concurred in the result) found that venue was proper for a bank's suit on a note against a corporate borrower that did not do business in the county where the suit was brought, because the suit was brought in the county where the loan was executed, consistent with Ala. Code § 6-3-7(a)(1).


Ex parte Norfolk Southern Railway Co., Ms. 1060374 (Ala. April 25, 2008) – Justice Smith's opinion for a 9-0 court held that, if a federal court declines jurisdiction over the state claims in another action under the Colorado River Doctrine, the remaining federal action is not considered one of two actions for purposes of Alabama's "two suit rule" set out in Ala. Code § 6-5-440.