Frank Gillis, M.D. v. Joey Frazier, as of the Estate of Florine Bryant

Rel: 08/01/2014

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014

_________________________

1120292
_________________________

Frank Gillis, M.D.

v.

Joey Frazier, as executor of the Estate of Florine Bryant,
deceased

____________________

1121205
____________________

Frank Gillis, M.D.

v.

Joey Frazier, as executor of the Estate of Florine Bryant,
deceased

Appeals from Colbert Circuit Court
(CV-07-900030)

MAIN, Justice.
1120292 and 1121205

Frank Gillis, M.D., appeals from a $5,000,000 judgment

entered on a jury verdict against him in favor of Joey

Frazier, as executor of the estate of his mother, Florine

Bryant, in this wrongful-death/medical-malpractice case. We

affirm the judgment in case no. 1121205; we reverse and remand

in case no. 1120292.

I. Facts and Procedural History

Bryant died on November 17, 2005. On April 19, 2007,

Frazier, on behalf of his mother's estate, sued Dr. Gillis, a

family practitioner, and Carol Davis, a certified nurse

practitioner, 1 alleging wrongful death/medical malpractice

stemming from care rendered to his mother while she was taking

the drug Coumadin. Dr. George A. Evans, who had treated

Bryant while she was hospitalized in the days before her death

because Dr. Gillis was out of town, was subsequently named as

a defendant. 2

1
Frazier and Davis entered into a pro tanto settlement in
September 2009.
2
Frazier added Dr. Evans as a defendant in February 2009.
Dr. Evans filed a motion for a summary judgment, asserting
that the claims against him were barred by the statute of
limitations for medical malpractice. The trial court granted
Dr. Evans's summary-judgment motion.

2
1120292 and 1121205

The case against Dr. Gillis was first tried in October

2010. At the close of Frazier's case, Dr. Gillis moved for a

judgment as a matter of law ("JML"), arguing that his alleged

negligence was not the proximate cause of Bryant's death. In

particular, Dr. Gillis argued that the deficient medical

treatment Bryant received at the hands of other health-care

providers was the proximate cause of Bryant's death and that,

but for that intervening cause, Bryant would have survived.

The trial court entered a JML in Dr. Gillis's favor. Frazier

appealed to this Court, and we transferred the appeal to the

Court of Civil Appeals pursuant to § 12–2–7(6), Ala. Code

1975.

The Court of Civil Appeals reversed the trial court's

judgment and remanded the case for a new trial, holding that

the trial court had erred in entering a JML for Dr. Gillis

because, the court reasoned, although the treatment provided

Bryant by other health-care providers was an "intervening

cause," it did not absolve Dr. Gillis of liability. Frazier

v. Gillis, 85 So. 3d 443, 453 (Ala. Civ. App. 2011). Dr.

Gillis filed a petition for a writ of certiorari with this

Court, which was denied on December 9, 2011.

3
1120292 and 1121205

The case was retried in June 2012. The evidence showed

that on August 29, 2005, Dr. Gillis diagnosed Bryant with

atrial fibrillation and prescribed a blood thinner, Coumadin.

At trial, Dr. Gillis explained that Coumadin requires that

patients be monitored to ensure that their blood does not

become too thin. The evidence showed that on August 31, 2005,

Bryant's international normalized ratio ("INR") level was 1.9,

which was within the normal therapeutic range.

On September 7, 2005, Bryant returned to the lab to have

her INR level checked. Bryant's blood was drawn that day;

however, no INR test was administered. Instead, Bryant's INR

was not checked again by Dr. Gillis's office until November

14, 2005.

On November 14, 2005, Bryant's blood was drawn, and her

INR level was 34.2. Because Dr. Gillis was out of town, his

nurse practitioner, Davis, instructed Bryant to discontinue

the Coumadin. Davis told Bryant to return on November 18,

2005, to have her INR level checked.

Bryant returned to Dr. Gillis's office the next day,

November 15, 2005, complaining of nausea, a headache, and

bleeding from the site where her blood had been drawn the day

4
1120292 and 1121205

before. Davis ordered another INR test. The results

indicated that Bryant's INR level was 44.77. 3 Davis took the

INR test results to Dr. Evans, who was handling Dr. Gillis's

patients while Dr. Gillis was out of town. Dr. Evans

instructed Davis to refer Bryant to a hematologist. Davis did

so and told Bryant that if she had any problems she was to go

to the hospital.

Bryant suffered a massive brain hemorrhage and was found

unresponsive on the morning of November 16, 2005. Bryant was

transported to the hospital, where it was noted that

laboratory studies revealed profound abnormalities and a large

subdural hematoma. Bryant was removed from life support on

November 17, 2005.

At the conclusion of the retrial of the case, the jury

awarded Frazier $5,000,000 in damages for the wrongful death

of his mother. Dr. Gillis filed a motion seeking,

alternatively, a JML, a new trial, or a remittitur of the

damages award. Dr. Gillis argued that the jury's verdict was

unsupported by the evidence and that it was motivated by

3
There was a note attached to the results of the INR test
indicating that Bryant's INR level was actually .89 because a
"mixing study" had been done. The record does not explain the
term "mixing study."

5
1120292 and 1121205

sympathy or bias. He contended that, in the absence of a new

trial, he was due, under the guideposts set forth in BMW of

North America, Inc. v. Gore, 517 U.S. 559 (1996), and the

factors set out in Hammond v. City of Gadsden, 493 So. 2d 1374

(Ala. 1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218

(Ala. 1989), a remittitur of the jury's punitive-damages award

based on its alleged excessiveness. Dr. Gillis argued that

his age, 76, and his inability to pay $3,000,000 of the

judgment –- the amount above his liability-insurance coverage

of $2,000,000 -- supported a remittitur of the damages award.

Dr. Gillis also filed a renewed motion to revive § 6-5-547,

Ala. Code 1975, which this Court has held to be

unconstitutional, see Smith v. Schulte, 671 So. 2d 1334 (Ala.

1995), and a motion seeking an order striking any damages

awarded in excess of the $1,000,000 cap proscribed in §

6-5-547.

The parties engaged in posttrial discovery. Frazier

sought information regarding Dr. Gillis's financial condition.

Specifically, Frazier requested the production of evidence

related to a potential bad-faith claim by Dr. Gillis against

his liability-insurance carrier, ProAssurance Indemnity

6
1120292 and 1121205

Company, Inc. ("ProAssurance"). ProAssurance produced certain

documents from its claim file for in camera review by the

trial court. ProAssurance withheld certain other documents

and filed a privilege log of documents not disclosed. The

trial court conducted an evidentiary hearing and subsequently

denied Dr. Gillis's postjudgment motions. On December 7,

2012, Dr. Gillis appealed.

After Dr. Gillis filed his appeal from the trial court's

denial of his postjudgment motions (case no. 1120292), Dr.

Gillis asked this Court for permission to file a motion with

the trial court for relief from the trial court's judgment

under Rule 60(b), Ala. R. Civ. P. Frazier opposed Dr.

Gillis's motion. On March 5, 2013, this Court entered an

order staying the appeal and allowing Dr. Gillis to file a

Rule 60(b) motion in the trial court. On June 4, 2013, this

Court remanded the case to the trial court for the limited

purpose of conducting a Hammond/Green Oil hearing concerning

the jury's punitive-damages award.

On June 20, 2013, the trial court denied Dr. Gillis's

Rule 60(b) motion as time-barred under Rule 60(b)(2) and,

under Rule 60(b)(6), as lacking a showing that Dr. Gillis "did

7
1120292 and 1121205

everything within his power" to discover the information

supporting his motion before the judgment became final.

Specifically, the trial court held:

"2. Gillis is not entitled to any relief from
the judgment under Rule 60(b)(2) because: (1) Gillis
has failed to establish that, through the exercise
of due diligence, he could not have discovered the
information upon which his motion is based in time
to file a Rule 59 motion; and (2) Gillis is time-
barred from obtaining relief under this subsection
because he failed to request any relief pursuant
thereto within four months of the initial entry of
judgment.

"3. Gillis is not entitled to any relief under
Rule 60(b)(6) because he has not established that he
did everything reasonably within his power to
discover the information upon which his motion is
based and obtain relief from the verdict before the
judgment entered thereon became final.

"4. Gillis's motion also represented an
impermissibly remote attack on the jury...[because
he] continued to investigate the private lives, and
apparently the private medical records, of the
jurors and their families for more than nine months
following their verdict."

On July 11, 2013, Dr. Gillis filed a second notice of

appeal to this Court, appealing the trial court's denial of

8
1120292 and 1121205

his Rule 60(b) motion (case no. 1121205). 4 On October 1,

2013, this Court consolidated the two appeals. 5

II. Analysis

A. Case no. 1121205 -- Rule 60(b) Order

Dr. Gillis, in case no. 1121205, appeals from the trial

court's denial of his motion for relief from judgment under

Rule 60(b), Ala. R. Civ. P. Dr. Gillis sought leave from this

Court to seek relief under Rule 60(b) from the trial court's

judgment. See Rule 60(b), Ala. R. Civ. P. ("Leave to make the

motion need not be obtained from any appellate court except

during such time as an appeal from the judgment is actually

pending before such court."). This Court granted Dr. Gillis's

motion. Rule 60(b), Ala. R. Civ. P., provides:

"On motion and upon such terms as are just, the
court may relieve a party or a party's legal
representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence which by due diligence
could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment

4
We note that the trial court filed a return to remand in
case no. 1120292 following the Hammond/Green Oil hearing.
5
This case was assigned to Justice Main on March 25, 2014.

9
1120292 and 1121205

has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying
relief from the operation of the judgment. The
motion shall be made within a reasonable time, and
for reasons (1), (2), and (3) not more than four (4)
months after the judgment, order, or proceeding was
entered or taken."

A Rule 60(b)(2) motion must be brought within four months

of the judgment that it seeks to have set aside. "'Newly

discovered evidence' means evidence in existence at the time

of trial of which the movant was unaware. ... And for a

litigant to obtain a new trial on the ground of newly

discovered evidence, it must appear that his reasonable

diligence before trial would not have revealed this evidence

which he failed to discover." Moody v. State ex rel. Payne,

344 So. 2d 160, 163 (Ala. 1977). Under Rule 60(b)(2),

"'the burden is on the moving party to show that he
has such "newly discovered" evidence and why through
due diligence it was not discovered in time to seek
a new trial under Rule 59, [Ala. R. Civ. P.].'
Gallups v. United States Steel Corporation, 353 So.
2d 1169 at 1172 (Ala. Civ. App. 1978), citing Plisco
v. Union R.R., 379 F.2d 15 (3d Cir. 1967). 'Motions
to set aside judgments on the basis of newly
discovered evidence are not favored.' Garland v.
Garland, 406 So. 2d 415 (Ala. Civ. App. 1981);
Hudson v. Hudson, 404 So. 2d 82 (Ala. Civ. App.
1981); Pace v. Jordan, 348 So. 2d 1061 (Ala. Civ.
App. 1978). The grant or denial of a motion under

10
1120292 and 1121205

Rule 60(b), [Ala. R. Civ. P.], is discretionary with
the trial court and we will not disturb its judgment
on appeal absent an abuse of that discretion. City
of Daphne v. Caffey, 410 So. 2d 8 (Ala. 1981);
Pierson v. Pierson, 347 So. 2d 985 (Ala. 1977);
Garland v. Garland, supra; Hudson v. Hudson, supra."

Beaty v. Head Springs Cemetery Ass'n, Inc., 413 So. 2d 1126,

1128 (Ala. 1982).

Under Rule 60(b)(6), a party may seek relief from a

judgment for any reason justifying relief other than those

reasons enumerated in subsections (1) through (5). In R.E.

Grills, Inc. v. Davison, 641 So. 2d 225 (Ala. 1994), this

Court stated:

"The 'catch all' provision of clause (6) of Rule
60(b) allows a trial court to grant relief from a
judgment for 'any other reason justifying relief.'
Barnett v. Ivey, 559 So. 2d 1082, 1084 (Ala. 1990).
'"Relief under Rule 60(b)(6) is reserved for
extraordinary circumstances, and is available only
in cases of extreme hardship or injustice."'
Chambers County Comm'rs v. Walker, 459 So. 2d 861,
866 (Ala. 1984) (quoting Douglass v. Capital City
Church of the Nazarene, 443 So. 2d 917, 920 (Ala.
1983)). Clause (6), however, is mutually exclusive
of the specific grounds of clauses (1) through (5),
and a party may not obtain relief under clause (6)
if it would have been available under clauses (1)
through (5). See, e.g., Insurance Management &
Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209
(Ala. 1991); Barnett, 559 So. 2d at 1084; Smith v.
Clark, 468 So. 2d 138, 140 (Ala. 1985); Chambers
County Comm'rs v. Walker, 459 So. 2d 861 (Ala.
1984); Ex parte Hartford Ins. Co., 394 So. 2d 933,
935-36 (Ala. 1981); Rebel Oil Co. v. Pike, 473 So.

11
1120292 and 1121205

2d 529 (Ala. Civ. App. 1985); Charles Townsend Ford,
Inc. v. Edwards, 374 So. 2d 900, 902 (Ala. Civ. App.
1979)."

641 So. 2d at 229.

"'Rule 60(b)(6) is an extreme remedy
and relief under Rule 60(b)(6) will be
granted only "in unique situations where a
party can show exceptional circumstances
sufficient to entitle him to relief."
Nowlin v. Druid City Hosp. Bd., 475 So. 2d
469, 471 (Ala. 1985). The purpose of Rule
60(b)(6) is not to relieve a party from a
free and deliberate choice the party has
previously made. City of Daphne v. Caffey,
410 So. 2d 8, 10 (Ala. 1982).'"

Ex parte Phillips, 900 So. 2d 412, 419 (Ala. 2004) (quoting

Wood v. Wade, 853 So. 2d 909, 912-13 (Ala. 2002)). A motion

under Rule 60(b)(6) must be brought "within a reasonable time"

after the entry of the judgment. Rule 60(b).

"'"What constitutes a 'reasonable
time' depends on the facts of
each case, taking i nto
consideration the interest of
finality, the reason for the
delay, the practical ability to
learn earlier of the grounds
relied upon, and the prejudice to
other parties. Adams v. Farlow,
516 So. 2d 528 (Ala. 1987), cert.
denied, 485 U.S. 1010, 108 S.Ct.
1477, 99 L.Ed.2d 705 (1988). In
addition, the doctrine of laches,
which denies equitable relief to
one guilty of unconscionable
delay in asserting a claim,

12
1120292 and 1121205

applies to Rule 60(b) motions.
Waldrop v. Waldrop, 395 So. 2d 62
(Ala. 1981)."

"'Ex parte W.J., 622 So. 2d 358, 361 (Ala.
1993).'

"[Ex parte] Hicks, 67 So. 3d [877,] 880 [(Ala.
2011)]."

Bates v. Stewart, 99 So. 3d 837, 853 (Ala. 2012).

In his motion seeking leave from this Court to seek Rule

60(b) relief in the trial court, Dr. Gillis claimed that he

was seeking relief alternatively under Rule 60(b)(2) and Rule

60(b)(6). When he filed his motion in the trial court, he

requested relief under Rule 60(b); he did not specify the

subsection under which he sought consideration. The trial

court determined that Dr. Gillis was not entitled to relief

under either Rule 60(b)(2) or Rule 60(b)(6).

Because Dr. Gillis's motion in the trial court does not

specify any Rule 60(b) ground for relief, we must determine

the nature of Dr. Gillis's motion. In his motion, Dr. Gillis

alleged that he was entitled to relief from the judgment

because a juror failed to reveal that her husband had been a

former patient of Dr. Gillis's. In particular, Dr. Gillis

claimed that the juror did not reveal: (1) that her husband

13
1120292 and 1121205

was a former patient of Dr. Gillis's and (2) that, as a result

of that experience, she held a negative opinion of Dr. Gillis,

did not like Dr. Gillis, and did not consider him to be a good

doctor.

Initially, as the trial court concluded, if considered a

Rule 60(b)(2) motion based on newly discovered evidence, Dr.

Gillis's motion would be untimely because it was not filed

within four months of the entry of judgment. Consequently,

the motion would have to fall within Rule 60(b)(6) to be

timely. Therefore, our inquiry is whether the motion can

properly be considered a Rule 60(b)(6) motion asserting as a

ground "any other reason justifying relief from the operation

of the judgment."

We must consider whether Dr. Gillis had access to the

information on the juror before the judgment became final so

that, if Dr. Gillis had done everything reasonably within his

power, he could have discovered the information at that time.

"[R]elief [pursuant to Rule 60(b)] should not be granted to a

party who has failed to do everything reasonably within his

power to achieve a favorable result before the judgment

becomes final; otherwise, a motion for such relief from a

14
1120292 and 1121205

final judgment would likely become a mere substitute for

appeal and would subvert the principle of finality of

judgments." Osbom v. Roche, 813 So. 2d 811, 818 (Ala. 2001).

The record reflects that the trial court considered

conflicting affidavits concerning the extent of Dr. Gillis's

treatment of the juror's husband and whether the juror had

ever spoken disparagingly about Dr. Gillis at any time.

"'Without question, a movant must both allege and prove one of

the grounds set forth in Rule 60 in order to be granted relief

under that rule.'" Ex parte A&B Transp., Inc., 8 So. 3d 924,

932 (Ala. 2007) (quoting Ex parte Baker, 459 So. 2d 873, 876

(Ala. 1984)(emphasis added)). Given the conflicting evidence,

we must conclude that Dr. Gillis failed to meet his "'burden

of proving extraordinary circumstances and/or extreme hardship

or injustice sufficient to entitle him to relief under Rule

60(b)(6).'" Id. Therefore, we affirm the judgment of the

trial court in case no. 1121205.

B. Case no. 1120292

1. Remittitur Issue

Dr. Gillis next challenges, in case no. 1120292, the

trial court's order denying his motion for a remittitur

because, he says, in calculating Dr. Gillis's assets, the

15
1120292 and 1121205

trial court improperly included among his assets a potential

bad-faith claim against his liability-insurance carrier,

ProAssurance. Dr. Gillis asks this Court to overrule

Boudreaux v. Pettaway, 108 So. 3d 486 (Ala. 2012), to the

extent that it held that a potential bad-faith claim and/or

negligent-failure-to-settle claim against a liability-

insurance carrier may be considered as an asset for purposes

of a Hammond/Green Oil review and a remittitur analysis.

We accept Dr. Gillis's invitation to overrule Boudreaux

to the extent that it held that, in calculating a defendant's

assets, the trial court may consider the contents of the claim

file compiled by a defendant's liability-insurance carrier and

include among the defendant's assets a potential bad-faith

and/or negligent-failure-to-settle claim against the

defendant's liability-insurance carrier. We conclude that

allowing a trial court to consider a defendant's potential

third-party claim against its liability-insurance carrier as

an asset for purposes of a Hammond/Green Oil review and a

remittitur analysis is subjective rather than objective. In

a remittitur analysis, the actual assets and liabilities of

the defendant are determinative of the defendant's net worth.

A cause of action against a defendant's liability-insurance

16
1120292 and 1121205

carrier does not accrue until a final judgment has been

entered against the defendant. Because at the time of a

Hammond/Green Oil hearing the third-party action has not yet

accrued and is speculative in nature, it cannot be considered

as part of the defendant's net worth in determining a

defendant's assets for purposes of Hammond/Green Oil and the

remittitur analysis. Accordingly, we reverse the judgment as

to this issue and remand this case for the trial court to

conduct a Hammond/Green Oil hearing without taking into

consideration Dr. Gillis's potential bad-faith and/or

negligent-failure-to-settle claim against his

liability-insurance carrier. We further direct that the trial

court, in calculating Dr. Gillis's assets under Hammond/Green

Oil, should not consider Dr. Gillis's wife's portion of their

jointly owned assets.

2. Section 6-5-547, Ala. Code 1975

Dr. Gillis urges this Court to revive § 6–5–547, Ala.

Code 1975, which limited a judgment in a medical-malpractice

action against a health-care provider to $1,000,000, and to

overrule Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995), which

held that the cap on damages in § 6–5–547, Ala. Code 1975, was

unconstitutional. In support of his argument, Dr. Gillis

17
1120292 and 1121205

cites Ex parte Apicella, 809 So. 2d 865 (Ala. 2001), and Ex

parte Melof, 735 So. 2d 1172 (Ala. 1999).

This Court revisited the Schulte decision in Mobile

Infirmary Ass'n v. Tyler, 981 So. 2d 1077 (Ala. 2007), and

declined to revive § 6-5-547. After considering Schulte and

its progeny and the cases cited by Dr. Gillis, we are not

persuaded to overrule Schulte.

III. Conclusion

We affirm the judgment of the trial court denying Dr.

Gillis relief under Rule 60(b), Ala. R. Civ. P., in case no.

1121205. In case no. 1120292, we reverse the judgment insofar

as it considered the potential bad-faith and/or

negligent-failure-to-settle claim against Dr. Gillis's

liability-insurance carrier and remand the cause. We decline

to overrule Schulte and revive the statutory cap on damages in

medical-malpractice actions. On remand, the trial court is

to conduct a Hammond/Green Oil hearing without consideration

of the potential bad-faith claim and without consideration of

Dr. Gillis's wife's portion of jointly owned assets. We

instruct the trial court to make a return to remand within 90

days.

18
1120292 and 1121205

1121205--AFFIRMED.

Moore, C.J., and Stuart, Bolin, Parker, and Wise, JJ.,
concur.

Shaw, J., concurs in the result.

Murdock, J., dissents.

Bryan, J., recuses himself.

1120292--REVERSED AND REMANDED WITH INSTRUCTIONS.

Moore, C.J., and Stuart, Bolin, and Wise, JJ., concur.

Murdock, J., concurs specially.

Parker and Shaw, JJ., concur in part and dissent in part.

Bryan, J., recuses himself.

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1120292 and 1121205

PARKER, Justice (concurring in part and dissenting in part as
to case no. 1120292).

In case no. 1120292, I concur in part and dissent in

part; I join Justice Shaw's writing insofar as he dissents

from Part II.B.1 of the main opinion. I concur fully in Part

II.B.2 of the main opinion, refusing to revive § 6-5-547, Ala.

Code 1975.

20
1120292 and 1121205

MURDOCK, Justice (dissenting as to case no. 1121205 and
concurring specially as to case no. 1120292).

I. Case No. 1121205:
Dr. Gillis's Rule 60(b), Ala. R. Civ. P., Motion

Dr. Gillis filed a motion seeking relief under Rule

60(b)(6), Ala. R. Civ. P., from the liability aspect of the

trial court's judgment on the ground that a juror had prior

knowledge of, and a bias against, Dr. Gillis not disclosed by

her during voir dire. I respectfully disagree with the

reasons voiced in Part II.A. of the main opinion for rejecting

what I consider to be Dr. Gillis's compelling position on this

issue. 6

6
Although the main opinion ultimately denies relief to Dr.
Gillis in relation to his Rule 60(b), Ala. R. Civ. P., motion
(a decision with which I disagree as discussed below), the
main opinion, correctly in my view, does determine that Dr.
Gillis's motion is properly reviewed as a Rule 60(b)(6)
motion. In so doing, the main opinion notes that the motion
was not filed within the four-month window prescribed for a
motion filed under Rule 60(b)(2).

Unlike Rule 59, Ala. R. Civ. P., the express office of a
Rule 60(b) motion is to relieve a party from a judgment that
has become "final" and enforceable (see, e.g., Smith v.
Cowart, 68 So. 3d 802, 809 (Ala. 2011) (explaining that a
judgment "'"became 'final' within the contemplation of Rule
60(b)"'" only upon the disposition of an intervening
postjudgment motion under Rule 59 (quoting Ex parte Haynes, 58
So. 3d 761, 764 (Ala. 2010))); Arnold v. Sullivan, 131 F.R.D.
129, 131 (N.D. Ind. 1990)(noting that "a Rule 60(b) motion can
only relieve a party from a 'final judgment'")), a condition
that does not come into being until 30 days after the entry of

21
1120292 and 1121205

The main opinion appears to reference two separate

reasons for upholding the trial court's denial of Dr. Gillis's

Rule 60(b)(6) motion. It begins its analysis with the

a judgment (see, e.g., Crisco v. Crisco, 294 Ala. 168, 313 So.
2d 529 (1975) (noting that a judgment remained within the
breast of the court for 30 days, during which it could be set
aside on the court's own motion)). Further, a timely filed
Rule 59(e) motion, which by definition is one filed within
that 30-day period, suspends the finality of the judgment for
purposes of both the availability of, and the time limitations
upon, relief under various provisions of Rule 60(b). E.g.,
Arnold v. Sullivan, supra.

The trial court entered a judgment on June 18, 2012.
Within 30 days thereafter, Dr. Gillis filed a postjudgment
motion under Rule 59. The trial court ruled on that motion on
October 30, 2012. Dr. Gillis's Rule 60(b) motion was filed on
March 15, 2013, approximately four and one-half months after
October 30. Given the particular procedural history of this
case, including the lack of any basis for suspending the
finality of the trial court's October 30 judgment, the main
opinion is correct to the extent it indicates that Dr.
Gillis's motion was not filed within four months of the date
of that judgment.

Irrespective of the timing of its filing, however, I
question whether Dr. Gillis's motion goes to the issue of
"newly discovered evidence" within the meaning of Rule
60(b)(2), given that it speaks to the procedural unfairness of
the proceeding and not to evidence relating to the merits of
the action. See § 12-13-11(a), Ala. Code 1975 (identifying as
separate grounds for postjudgment relief "newly discovered
evidence," on the one hand, and "irregularity in the
proceedings" and "[m]isconduct of the jury," on the other
hand); cf. Ex parte Pierce, 851 So. 2d 606 (Ala. 2000)
(holding that a claim of juror misconduct raised in a
postconviction petition shall not be treated as a claim of
newly discovered evidence under Rule 32.1(e), Ala. R. Crim.
P.).

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1120292 and 1121205

following statement describing the issue that must be decided

in this appeal:

"We must consider whether Dr. Gillis had access
to the information on the juror before the judgment
became final so that, if Dr. Gillis had done
everything reasonably within his power, he could
have discovered the information at that time.
'[R]elief [pursuant to Rule 60(b)] should not be
granted to a party who has failed to do everything
reasonably within his power to achieve a favorable
result before the judgment becomes final; otherwise,
a motion for such relief from a final judgment would
likely become a mere substitute for appeal and would
subvert the principle of finality of judgments.'
Osbom v. Roche, 814 So. 2d 811, 818 (Ala. 2001)."

__ So. 3d at __.

After framing the above-stated procedural and timing

issue, however, the main opinion proceeds to address, not the

timeliness of Dr. Gillis's discovery and presentation of

evidence of the juror's bias, but the substantive merits of

the bias issue raised by that evidence. In the same paragraph

quoted above, the main opinion suggests that this Court must

defer to a conclusion by the trial court as to the substantive

issue of the juror's bias, stating: "The record reflects that

the trial court considered conflicting affidavits concerning

the extent of Dr. Gillis's treatment of the juror's husband

and whether the juror had ever spoken disparagingly about Dr.

23
1120292 and 1121205

Gillis at any time." ___ So. 3d at ___. Apparently on this

basis, the main opinion then concludes that Dr. Gillis has

failed to meet his burden of proof.

My problem with the rationale upon which the main opinion

ultimately rests its affirmance of the trial court's judgment

is simply this: The trial court actually did not consider the

conflicting affidavits referenced. That is, the trial court

did not decide which of those affidavits was more persuasive

or, in turn, reach the substantive issue of bias by the juror

as to which those affidavits "conflict." Instead, the trial

court's reason for rejecting Dr. Gillis's motion for relief

under Rule 60(b)(6) was in fact the procedural/timing issue

initially noted above. The trial court explained its own

reasoning as being that Dr. Gillis had "'not established that

he did everything reasonably within his power to discover the

information upon which his motion is based and obtain relief

from the verdict before the judgment entered thereon became

final.'" __ So. 3d at __ (quoting trial court's order). In

other words, the trial court did not consider or decide

between the dueling versions of the facts relating to whether

the juror did in fact have an undisclosed foreknowledge of and

24
1120292 and 1121205

a bias against Dr. Gillis. Instead, the trial court merely

concluded that Dr. Gillis did not seek out and discover the

facts alleged in his Rule 60(b)(6) motion in a timely manner

and, in turn, did not file that motion in a timely manner (a

ground I will address further below).

As to the merits of the substantive issue of

nondisclosure and bias, the "evidence" is not ore tenus

evidence that would prevent its initial consideration by this

Court. First, it is plain on the face of the trial transcript

-- indeed it is undisputed by the plaintiff -- that the juror

made no disclosures during voir dire in response to multiple

questions that should have elicited any foreknowledge by her

of Dr. Gillis. The question whether those nondisclosures

represent any impropriety, then, turns only on whether there

was anything to disclose. As to this issue, the only evidence

either party chose to present to the trial court was in the

form of written affidavits. Because this Court is as capable

as the trial court of reading those affidavits, I question why

we should not proceed to do so and decide the issue. 7

7
It is true that a trial judge generally is in a better
position to judge the likelihood of prejudice resulting from
juror misconduct during voir dire. This is true, however,
largely because of the need in most cases for the judge to

25
1120292 and 1121205

assess the ore tenus answers given by jurors in response to
questions posed during voir dire:

"'The trial court was able to observe the
mannerisms, inflections in voice, and other
characteristics of the jurors whose answers
were at issue -- in other words, things
that could reflect upon the jurors'
credibility but that are beyond this
Court's inherently limited ability to
review by appellate transcript ....'"

Hood v. McElroy, 127 So. 3d 325, 340 (Ala. 2011) (quoting
Colbert Cnty.-Northwest Alabama Healthcare Auth. v. Nix, 678
So. 2d 719, 723 (Ala. 1995)).

There are two aspects of this case that make this general
rule inapplicable here. First, as noted above, the trial
court did not make any findings of probable prejudice; it did
not consider the substance of the affidavits or compare the
"facts" in them to the answers given by the juror during voir
dire. It instead decided the matter on a procedural basis,
finding that Dr. Gillis had failed to prove that his motion
was timely.

Second, and as also noted, the voir dire questions and
lack of responses in this case are undisputed, there are no
assessments to be made of the juror's answers, and the
"probable prejudice" is undeniable if the "facts" in the
affidavits submitted by Dr. Gillis are to be taken as true.
Because ore tenus testimony would not be involved in assessing
those affidavits, I see no reason why the trial court would be
better positioned than this Court to discern the credibility
of the competing testimony as it now exists in this case.

Of course, nothing would prevent us from remanding the
case with instructions for the trial court to conduct a
hearing for the purpose of receiving and considering live
testimony from available witnesses. On the record currently
before us, however, and given the particular manner in which
the issue is presented in this case, I see no basis for giving

26
1120292 and 1121205

In the absence of a hearing and the receipt of live

testimony from the witnesses, it appears to me that the detail

presented, and the employment risks faced by the affiants who

testified on behalf of Dr. Gillis, make for a compelling

conclusion in his favor. Dr. Gillis submitted affidavit

testimony from two women who were work-place subordinates of

the juror's and whose affidavits corroborated one another. One

of these affiants testified as follows:

"5. I would estimate that on at least twenty
occasions between 2007 and June 11, 2012, it [was]
necessary for me to leave my work during a work day
to go to an appointment at Dr. Gillis' office. On
most of these occasions, I would tell [the juror]
that I had an appointment at Dr. Gillis' office and
that I would need to be off from work to attend
those appointments. On other of these occasions, I
would tell [the juror] that I needed to be away from
work for a short time for personal reasons.

"6. I would estimate that on at least fifty percent
of the occasions prior to June 11, 2012, when I told
[the juror] that I needed to attend an appointment
at Dr. Gillis' office, [the juror] has made negative
comments about Dr. Gillis. The last such occasion
that I remember occurred in 2012, before June 11,
2012.

"7. An example of the kind of negative comment [the
juror] made about Dr. Gillis was calling him a
'quack.' On one occasion, when I was discussing with

deference to the trial court.

27
1120292 and 1121205

[the juror] my being treated by Dr. Gillis, [the
juror] said that the only thing wrong with me was
the doctor I was seeing. On at least five other
occasions, [the juror] told me that I needed to get
a different doctor.

"8. In or around 2007,I was having problems with my
heart. Dr. Gillis ordered a stress test for me. I
mentioned this to [the juror]. [The juror] then
explained to me why she did not like Dr. Gillis.
Specifically, [the juror] told me that years before,
her husband had been to see Dr. Gillis and had
complained to Dr. Gillis that he ... was having pain
in his stomach or abdominal area. [The juror] told
me that Dr. Gillis had sent [her husband] home, and
that shortly thereafter, [her husband] had to be
seen by another doctor and had to have surgery to
remove his gallbladder. [The juror] said Dr. Gillis
had failed to timely and properly diagnose [her
husband's] condition.

"9. I cannot remember the exact dates of the
occasions on which [the juror] made all of the
comments, but I do recall that [the juror] made
these kinds of negative comments about Dr. Gillis so
many times that eventually, instead of telling [the
juror] that I needed to be away from work to attend
an appointment at Dr. Gillis' office, I began
telling [the juror] that I needed to be away from
work for personal reasons, I do not recall the
specific date of the last time that [the juror] made
negative comments about Dr. Gillis prior to June 11,
2012, but I do recall that [the juror] did ma[k]e
negative comments about Dr. Gillis in 2012 prior to
June of 2012."

Turning now to the trial court's stated reason for

denying Dr. Gillis Rule 60(b)(6) relief, I am not sure what it

is that Dr. Gillis should have done differently. Neither the

28
1120292 and 1121205

trial court nor the main opinion tell us specifically what

more would have been needed for Dr. Gillis to "'establish[]

that he did everything reasonably within his power to discover

the information upon which his motion is based and obtain

relief from the verdict before the judgment entered thereon

became final.'" 8 __ So. 3d at __.

First and foremost, it is undisputed that the attorneys

for both parties engaged in ample voir dire questioning

designed to ferret out any foreknowledge by the juror of Dr.

Gillis. Among other questions, the venire was asked: "Do you

know Dr. Gillis?"; "Have any of you, or your immediate family

members been a patient at any time of Dr. Gillis?"; "Any of

you, any member of your immediate family or any of the

providers at Lister Healthcare where you felt they did

something wrong or caused you or members of your family

harm?"; and " Is there anyone that feels as though you have

8
The trial court's approach appears to assume incorrectly
that the plaintiff bears no burden to support his assertion
that Dr. Gillis did not timely move for postjudgment relief.
Dr. Gillis made an adequate showing that he acted timely; it
does not fall to him to disprove all other possibilities of
ways in which he might have been able to acquire the
information at issue even sooner than he did, especially since
neither the plaintiff nor the trial court is able to
articulate or to make any showing as to what more Dr. Gillis
should have done.

29
1120292 and 1121205

some information that you need to give knowing what type of

case this is that you have not been able to give because [the

attorney for the opposing party] and I did not ask the right

question?" The juror did not respond affirmatively to any of

these questions.

This Court has been clear: a litigant must be able to

rely upon the information the members of the venire provide in

voir dire. "' [T]he parties in a case are entitled to true and

honest answers to their questions on voir dire, so that they

may exercise their peremptory strikes wisely.'" Ex parte

Dixon, 55 So. 3d 1257, 1260 (Ala. 2010) (quoting Ex parte

Dobyne, 805 So. 2d 763, 771 (Ala. 2001)). "The fairness of

our jury system ... depends on such answers." Dunaway v.

State, [Ms. 1090697, April 18, 2014] __ So. 3d __, __ (Ala.

2014).

The observations made by this Court in Ex parte Harrison,

61 So. 3d 986, 990-91 (Ala. 2010), a criminal case, are

equally applicable here:

"The State contends ... that Harrison failed to
explain in his Rule 32[, Ala. R. Crim. P.,] petition
why he could not have reasonably discovered the
alleged juror misconduct in time to assert that
claim in his motion for a new trial or on appeal.

30
1120292 and 1121205

"As we indicated in [Ex parte] Burgess, [21 So.
3d 746 (Ala. 2008),] however, the very nature of
juror misconduct is such that a defendant typically
will not be aware that there is any misconduct to be
discovered. Placing a requirement on a defendant to
uncover any and all possible juror misconduct
without reason to know what type of misconduct the
defendant might be looking for or, in fact, whether
any misconduct occurred, would require criminal
defendants to embark on a broad-ranging fishing
expedition at the conclusion of every criminal trial
or waive the right to complain of any juror
misconduct the defendant might ultimately discover.
Moreover, when it comes to voir dire examination of
jurors, the defendant has every right to expect
that jurors will provide truthful and accurate
responses. ... As in Burgess, there is no evidence
in the record indicating that Harrison should have
been aware before he filed his motion for a new
trial or his direct appeal that some jurors had
provided untruthful or inaccurate answers during
voir dire examination."

Of course, the foregoing is not to say that upon being

put on notice after trial of the possibility that a juror had

not been forthcoming in response to voir dire questioning, a

litigant such as Dr. Gillis has no obligation to act

reasonably promptly to investigate the issue and to bring it

to the court's attention once the investigation reveals a

sufficient basis for doing so. Again, however, neither the

trial court nor the main opinion explains what Dr. Gillis

should have done differently in this regard. Dr. Gillis gave

undisputed testimony in his affidavit that he became aware of

31
1120292 and 1121205

the juror's foreknowledge of him and her alleged bias toward

him only after he had filed his first appeal in case no.

1120292 on December 7, 2012. Dr. Gillis also gave undisputed

testimony by affidavit that he had no access to the medical

records from his prior practice that would have revealed his

treatment of the juror's husband. It is apparent that, after

being made aware of the juror's alleged bias, Dr. Gillis's

attorneys proceeded to investigate what Dr. Gillis had been

told pertaining to the juror. Over the next several weeks,

they obtained affidavits from two of the juror's subordinates

that, if given credence, would present a compelling case of

juror bias. Armed with these affidavits, the attorneys then

filed a motion for Rule 60(b)(6) relief on March 15, 2013.

That is, the record appears to reflect that Dr. Gillis took

reasonable and prompt steps to learn of juror bias and filed

his motion reasonably promptly after learning of evidence that

the juror was biased against him and had not been forthcoming

in her answers to voir dire questions and then conducting a

reasonable investigation into the same. 9

9
"'What constitutes a "reasonable time" depends on the
facts of each case, taking into consideration the interest of
finality, the reason for the delay, the practical ability to
learn earlier of the grounds relied upon, and the prejudice to

32
1120292 and 1121205

Given the foregoing, I find no basis for the trial

court's conclusion that Dr. Gillis failed to prove that he

could not have discovered the information that was the basis

for his motion before the judgment became final. At the very

least, given the nature of the issue presented and the lack of

any evidence indicating that Dr. Gillis had cause to look

behind the juror's voir dire answers, Dr. Gillis proved all he

needed to prove to make out a prima facie case of timeliness

on his part. The plaintiff cannot simply contend that there

is some unidentified further, or sooner, action for which Dr.

Gillis should be held responsible. In the face of the "case"

made by Dr. Gillis, the position taken by the plaintiff (and

the trial court) amounts to expecting someone in Dr. Gillis's

position to disprove all other possibilities, i.e., to prove

a negative. The plaintiff (and the trial court) must at least

articulate for us what further action should have been taken

by Dr. Gillis and present evidence thereof sufficient to have

shifted the ultimate burden of proof as to that issue to Dr.

Gillis. They did neither here.

other parties.'" Ex parte Hicks, 67 So. 3d 877, 880 (Ala.
2011) (quoting Ex parte W.J., 622 So. 2d 358, 361 (Ala.
1993)).

33
1120292 and 1121205

II. Case No. 1120292

A. Preliminary Matters

Although I disagree for the reasons stated above with the

main opinion's decision to deny Dr. Gillis relief in the form

of a new trial as to the issue of liability, I agree with the

main opinion in the separate appeal as to the need for the

trial court to reassess the award of punitive damages if a new

trial on liability is not to be had. I agree with the main

opinion that only Dr. Gillis's assets and his portion of the

assets he holds jointly with his wife should be considered on

remand. I would add that I find problematic as a basis for

the award made here the trial court's statement that Dr.

Gillis "has a significant net worth." The ambiguous nature of

this finding deprives it of any significance as a basis for

appellate review of the specific award actually made. One

million dollars undoubtedly would be considered by many as a

"significant net worth," but it presumably would not provide

a basis for a $5 million punitive-damages award.

B. Overruling Boudreaux

34
1120292 and 1121205

Consistent with my concurrence in case no. 1120292, I

fully agree that Boudreaux v. Pettaway, 108 So. 3d 486 (Ala.

2012), should be overruled. In his special writing, Justice

Shaw disagrees with overruling Boudreaux, stating that he

finds the reasons given in the main opinion for doing so

insufficient. I write to further explain my reasons for

concurring in this portion of the main opinion.

Deciding on an amount of punitive damages to be awarded

based on what a defendant might or might not be able to

collect some day from a third party as a result of some

future, yet unfiled and unlitigated lawsuit –- a lawsuit that

may never be filed or survive to a judgment or settlement –-

requires improper speculation by the court. As noted below,

especially problematic is the fact that following such an

approach necessarily injects a circularity of reasoning that

logically would support an award of any amount a judge might

select.

The decision in Boudreaux was based on this Court's 1993

decision in Mutual Assurance, Inc. v. Madden, 627 So. 2d 865

(Ala. 1993), a case that did indeed reference the possibility

35
1120292 and 1121205

of assessing a physician's wealth (for purposes of setting a

punitive-damages award) on a possible future recovery by the

physician against his liability insurer on a bad-faith claim.

The statement in Madden referencing such an approach, however,

was expressly recognized therein as dictum. Other than this

Court in Boudreaux, no court -- federal or state -- has

allowed such an approach in the 21 years since Madden was

decided. In their amicus curiae brief filed in this Court,

the Medical Association of the State of Alabama offers the

following common-sense arguments against the approach

referenced in Madden:

"[The physician's insurer] ProAssurance was not
a party to this matter and the issue of whether it
acted negligently and/or in bad faith in failing to
settle this case has not been properly presented to
any court. Nonetheless, based on the trial court's
ruling, Dr. Gillis' hypothetical claims against
ProAssurance have essentially been reviewed and
predetermined without ever having been filed or
litigated. ProAssurance has not had any opportunity
to present evidence in defense of such claims, nor
has there been any enforceable ruling on this issue
-- just the speculative and preliminary finding of
the trial court."

After noting that the foregoing approach raises due-process

concerns, the amicus brief continues:

36
1120292 and 1121205

"Second, the trial court's preemptive
determination on this issue will now essentially
force Dr. Gillis to file a lawsuit against his
insurer, regardless of whether he wants to or not.
...

"....

"Another flaw in the reasoning of the trial
court is that it failed to consider litigation
expenses that the physician must bear in a bad faith
action. As an example, Dr. Gillis likely would
recover $3,000,000 in his hypothetical bad faith
action against his insurer if he prevails. Assuming
he retains counsel on a contingency basis [and pays
necessary expenses] ... the physician [ultimately]
could be short as much as $1,000,000 to $1,300,000.

"Even more troubling, Dr. Gillis would have to
take [a] position ... contrary to the position taken
heretofore by Dr. Gillis, who maintained throughout
the litigation (with ample evidentiary support and
expert testimony) that he did not breach the
standard of care as alleged by the Plaintiff. ...

"Indeed, Dr. Gillis[] ... would be acting at the
behest of the Plaintiff[, who] has essentially
forced his hand to pursue additional litigation in
hopes that the trial court's post-judgment
determination was correct and that the factfinder
who ultimately reviews his future bad faith lawsuit
agrees so that he can one day satisfy the judgment
against him.

"[Finally], the Medical Association believes
that the trial court's ruling should be reversed
because it will continue to stand (along with the
$5,000,000 judgment) even if Dr. Gillis does not
prevail in his hypothetical bad faith lawsuit,
leaving him no recourse or way to 'correct' the

37
1120292 and 1121205

trial court's erroneous presumption that he would
prevail and that he would 'never personally feel any
adverse financial effects of the verdict rendered
against him.'"

In Boudreaux, I dissented and wrote specially to

elaborate upon concerns of the nature identified above:

"Despite [a] holding [on other grounds], and
simply because 'the parties request[ed] that we also
address' the issue, 627 So. 2d at 866, the Court [in
Madden] went further and addressed whether, in a
remittitur proceeding, it was proper for a trial
court to consider a physician's potential for
recovering from his liability insurer the amount of
the judgment against him that exceeds the amount of
his insurance coverage. Id. Thus, the conclusion
from Madden relied upon by the main opinion is
dictum and, therefore, it is not binding upon this
Court in the present case....

"In asking this Court to overrule the dictum in
Madden, the defendants do not ask us to dispense
with a persuasive holding of this Court. Indeed, in
the only other case in which this Court has
addressed this issue -- Tillis Trucking Co. v.
Moses, 748 So. 2d 874 (Ala. 1999) –- the Court
distinguished Madden on the ground that the
potential bad-faith claim in Tillis Trucking Co. was
'too speculative' to affect remittitur. 748 So. 2d
at 887. I have been unable to locate a court in any
other jurisdiction -- state or federal -- that has
decided as the Madden Court did on this issue since
Madden was decided."

Boudreaux, 108 So. 3d at 511-12 (Murdock, J., dissenting). I

also made note of a strongly critical dissent written by

38
1120292 and 1121205

Justice Maddox in Madden and offered some additional

observations:

"'[T]he trial court cannot determine the
value of a potential bad faith claim for
purposes of the Hammond–Green Oil Co.
hearing without engaging in rank
speculation as to the value of such an
asset and thereby depriving Dr. Evans of
his constitutional right to a post-verdict
assessment of the jury's award of punitive
damages.'

"627 So. 2d at 867 (Maddox, J., concurring in part
and dissenting in part) (emphasis added).

"... Without conducting a separate trial on the
physician's third-party claim, there is simply no
way to know how much worth, if any, should be placed
on a potential bad-faith claim by the defendants
against their liability-insurance carrier. As any
plaintiff's lawyer can attest, the road from the
accrual of a potential cause of action to the entry
of a judgment and, eventually, collection of that
judgment, can be a long one full of pitfalls and
potential 'exits.' A great many obstacles –- at
least some of which would not become apparent until
litigation actually commences –- could prevent any
recovery on such a claim, or at least prevent the
amount of the recovery speculated to be 'in the
offing' by a trial court in some prior, collateral
proceeding. Including a potential claim as part of
a defendant's assets requires a trial court to
transform itself from a fact-finder into something
more akin to a fortune teller.

"Aside from the speculative nature of such a
claim in itself, there is a problem of timing. A
punitive-damages award, like the award in any final

39
1120292 and 1121205

judgment, is due as soon as the judgment becomes
final. If the defendant cannot or does not
voluntarily pay the award from its liquid assets,
the plaintiff may seek immediately to execute upon
the defendant's assets, both liquid and illiquid.
On the other hand, any judgment to be obtained by
the defendant upon a potential claim against its
liability-insurance carrier would come a long time
-- perhaps years -– after the current judgment is
enforceable. Thus is raised the very real specter
that a judgment intended by the law to 'sting' a
physician or other defendant will instead have the
effect of financially destroying that physician or
defendant. See Ex parte Vulcan Materials Co., 992
So. 2d 1252, 1260 (Ala. 2008) (noting that
'[s]ociety's goal [in permitting punitive damages]
is to deter –- not to destroy –- the wrongdoer' and
that '[t]o effectuate that purpose, a
punitive-damages award "'ought to sting in order to
deter.'"' (quoting Green Oil Co. v. Hornsby, 539 So.
2d 218, 222 (Ala. 1989), quoting in turn
Ridout's–Brown Serv., Inc. v. Holloway, 397 So. 2d
125, 127 (Ala. 1981) (Jones, J., concurring
specially))).

"On an even more fundamental plane, I offer two
additional observations. First, any potential
bad-faith claim the defendants may have against
their liability insurer did not even exist until the
judgment in this case was made. See Evans v. Mutual
Assurance, Inc., 727 So. 2d 66, 67 (Ala. 1999)
(stating that 'a cause of action arising out of a
failure to settle a third-party claim made against
the insured does not accrue unless and until the
claimant obtains a final judgment in excess of the
policy limits'). As a corollary, the consideration
of such a potential recovery creates a circularity
of reasoning in which the court can, for all
practical purposes, consider the availability of a
third party to pay damages in whatever amount might

40
1120292 and 1121205

be set. As one court has put it, because the
potential claim 'was not in existence before the
jury entered its verdict, it could not be considered
as part of [the defendants'] net worth in
determining the amount of the award. Otherwise, the
size of the punitive award could be unlimited....'
Wransky v. Dalfo, 801 So. 2d 239, 242 (Fla. Dist.
Ct. App. 2001) (emphasis omitted). As another court
has explained, a potential claim against an insurer
should not be considered in establishing a
punitive-damages award because such an asset would
make the insurer 'responsible to pay damages in an
amount that would never have been considered by the
parties were the insurance company not the
responsible entity.' Battista v. Western World Ins.
Co., 227 N.J.Super. 135, 151, 545 A.2d 841, 849
(N.J.Super.Law Div. 1988), rev'd in part on other
grounds sub nom., Battista v. Olson, 250 N.J.Super.
330, 594 A.2d 260 (N.J. Super. App. Div. 1991)."

Id. at 512-13 (final emphasis added).

It is for the reasons stated above that I concur today in

overruling Boudreaux.

C. The Inapplicability of
Normal Punitive-Damages Remittitur Factors to the
"Punitive Damages" Awarded in Wrongful-Death Cases

In addition to the foregoing, my vote today is consistent

with concerns on my part as to whether we can apply

traditional Hammond/Green Oil 10 and BMW/Gore 11 factors, or at

10
Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986),
and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989).
11
BMW of North American v. Gore, 517 U.S. 559 (1996).

41
1120292 and 1121205

least many of them, to review that brand of "punitive damages"

awarded in Alabama wrongful-death cases, given (1) that such

damages can be, and often are, awarded for mere negligence,

(2) that there is no separate, underlying compensatory-damages

award against which to make any comparative review of those

damages, see, e.g., Mobile Infirmary Ass'n v. Tyler, 981 So.

2d 1077, 1107 (Ala. 2007) (Lyons, J., dissenting and

rethinking the propriety of attempting to apply the second

BMW/Gore factor (comparison of punitive-damages award to the

compensatory-damages award) to Alabama wrongful-death awards)

and (3) that such damages often serve as a practical matter as

a substitute for de jure compensatory damages.

Alabama stands alone among all the states in the union in

telling its juries in wrongful-death actions that they may

award only what are referred to as "punitive damages." Our

precedents indicate that this approach is grounded in the

notion, to which I offer no objection, that it is impossible

to place a dollar value on a human life. The result, however,

is largely a legal fiction in which, as a practical matter,

juries do in fact award damages not based solely on the

traditional punitive-damage factors but that, in many cases,

42
1120292 and 1121205

de facto serve as compensatory damages (sometimes in

combination with an element of punishment). Thus it is that

"punitive damages" can be awarded against defendants whose

mere negligence causes a death. See, e.g., Cherokee Elec.

Coop. v. Cochran, 706 So. 2d 1188, 1194 (Ala. 1997) (holding

that death is a great harm and that Alabama can "'attempt to

preserve life by making homicide expensive'" (quoting Louis

Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 116 (1927))).

See also, e.g., McKowan v. Bentley, 773 So. 2d 990 (Ala. 1999)

(affirming a verdict of $2,000,000 in a wrongful-death

medical-malpractice case, even though the trial court stated

that it disagreed with the jury's verdict of negligence). For

that matter, we long have held that mere vicarious liability,

involving no actual culpability on the part of the defendant,

will support an award of punitive damages for a wrongful

death. See Louis Pizitz Dry Goods Co., 274 U.S. at 116; Ala.

Code 1975, § 6-11-27 & -29 (the rule that a principal is not

ordinarily liable for punitive damages based merely on the

conduct of an agent or employee does not apply in wrongful-

death cases).

43
1120292 and 1121205

Alabama has chosen to treat wrongful-death actions

differently -- i.e., to allow the award of what we refer to in

these cases as "punitive damages," despite the absence of some

of or all the normal factors required for doing so -- as a way

to recognize the enormity and finality of the loss of a life

and the public interest in deterring conduct that causes this

loss, while simultaneously continuing to give an

understandable "nod" to the principle that we cannot place a

compensatory dollar value on this loss. See Campbell v.

Williams, 638 So. 2d 804, 810-11 (Ala. 1994); McKowan, 773 So.

2d at 992, 998. Thus it is that, in Tillis Trucking Co. v.

Moses, 748 So. 2d 874, 889 (Ala. 1999), this Court reaffirmed

the principle that "punitive damages" are appropriate in

wrongful-death cases without respect to the level of

culpability on the part of the defendant that normally plays

such an important role in the assessment of such damages:

"'Participation in actions causing the death of a
human being, even if slight, can result in liability
without regard to the degree of culpability, and
this result, the legislature believes, will lead to
greater diligence in avoiding the loss of life.'"

748 So. 2d at 889 (quoting Campbell, 638 So. 2d at 810-11).

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Another criterion used to assess the appropriateness of

a traditional punitive-damages award is the relationship of

the punitive-damages award to the harm caused, as measured by

the underlying compensatory-damages award. Obviously,

however, because Alabama does not allow the recovery of

compensatory damages per se in a wrongful-death action, this

factor cannot not be utilized in wrongful-death actions; there

is no mathematical ratio for us to consider. Tillis Trucking

Co., 748 So. 2d at 890.

Yet another discordant note in our attempt to apply

normal punitive-damages/remittitur factors to awards in

wrongful-death actions, at least in medical-malpractice cases,

is this: Green Oil contemplates consideration of "the

existence and frequency of similar past conduct" by the

defendant, Green Oil, 539 So. 2d at 223; however, § 6-5-551

of the Alabama Medical Liability Act of 1987 expressly

prohibits the discovery, or introduction at trial, of any

evidence concerning other acts or omissions of a defendant

health-care provider in a medical-malpractice action. See Ex

parte Anderson, 780 So. 2d 190 (Ala. 2000).

D. Concerns Regarding De Novo Review

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Not only does the unique nature of the "punitive damages"

available in Alabama wrongful-death jurisprudence raise

serious questions as to whether the traditional remittitur

factors "work" in that context, it concomitantly calls into

question the use of a de novo standard of review. It is true

that the United States Supreme Court has adopted a de novo

standard for assessing the BMW/Gore factors. See Robbins v.

Sanders, 927 So. 2d 777, 789 (Ala. 2005). The BMW/Gore

factors, however, apply only to federal court consideration of

whether an award passes constitutional muster. For some time,

I have questioned whether that fact requires us to abandon the

deferential review that historically has been given by

appellate courts, including Alabama appellate courts,

especially to non-constitutional challenges to punitive-

damages awards (i.e., our Hammond/Green Oil factors). Such

abandonment would seem to be especially problematic, given

that the trial court's decision in such matters involves

assessment by it of ore tenus evidence.

I reiterate here what I said in Boudreaux, 108 So. 3d at

513 n.20 (Murdock, J., dissenting):

"The main opinion applies a de novo standard of
review to the challenge to the punitive-damages

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award made under state law, see Hammond v. City of
Gadsden, 493 So. 2d 1374 (Ala. 1986), Green Oil,
supra, as well to the challenge made based upon the
United States Supreme Court's decision in BMW of
North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct.
1589, 134 L.Ed.2d 809 (1996). 108 So. 3d at 504.
I struggle somewhat with the notion that some
deference is not owed a trial judge who has sat
through the trial along with the jury and is being
asked to use his or her best judgment in determining
the level of punitive damages appropriate in the
case before him or her. Before Acceptance Insurance
Co. v. Brown, 832 So. 2d 1 (Ala. 2001), and Horton
Homes, Inc. v. Brooks, 832 So. 2d 44, 57 (Ala.
2001), our cases clearly recognized that deference
was owed to a trial court's decision as to
remittitur and that the appellate standard of review
was an abuse-of-discretion standard. See, e.g.,
General Motors Corp. v. Edwards, 482 So. 2d 1176,
1198 (Ala. 1985) (overruled on other grounds by
Schwartz v. Volvo North America Corp., 554 So. 2d
927 (Ala. 1989) (stating that 'this Court has
generally followed the principle that a trial court
is accorded a large measure of discretion in
determining whether to grant a remittitur' and that
'[w]e have also generally held that when a trial
court exercises its discretion to order a
remittitur, its decision is presumed correct and
will not be reversed on appeal absent evidence of an
abuse of discretion' (citing Todd v. United
Steelworkers of America, 441 So. 2d 889, 892 (Ala.
1983)))); Henderson v. Alabama Power Co., 627 So. 2d
878, 910 (Ala. 1993), abrogated by Ex parte
Apicella, 809 So. 2d 865 (Ala. 2001) (Houston, J.,
dissenting) (observing that even before the
ratification of the Alabama Constitution of 1901,
'in cases involving egregious conduct, discretionary
awards of punitive damages by juries were subject to
post-judgment review by the courts under an abuse of
discretion standard'). See also Jenelle Mims Marsh,
Alabama Law of Damages § 7:6 (6th ed.) (noting the
application of a de novo standard to challenges to

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the federal constitutionality of a punitive-damages
award under the three guideposts set by Gore, but
the application of an abuse-of-discretion standard
to challenges to the appropriateness of a
punitive-damages award under state law). We are not
asked in this case, however, to revisit this Court's
decisions in Brown and Horton Homes ...."

By continuing to embrace complete de novo review of

punitive-damages awards in wrongful-death actions, we

essentially place ourselves in the position of the jury and

the trial court, substituting our own judgment to set the only

damages awardable in this type of case. To put it

colloquially: "Something is wrong with this picture."

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SHAW, Justice (concurring in the result as to case no. 1121205
and concurring in part and dissenting in part as to case no.
1120292).

As to case no. 1121205, Part II.A of the main opinion, I

concur in the result. As to case no. 1120292, I concur in

part and dissent in part. Specifically, as to Part II.B.2, I

concur, and as to Part II.B.1, as discussed below, I dissent.

In Part II.B.1, the main opinion overrules this Court's

recent decision in Boudreaux v. Pettaway, 108 So. 3d 486 (Ala.

2012), "to the extent that it [holds] that a potential bad-

faith claim and/or negligent-failure-to-settle claim against

a liability-insurance carrier may be considered as an asset

for purposes of a Hammond/Green Oil [12] review and a remittitur

analysis." ___ So. 3d at ___. I respectfully dissent.

Stare decisis "'is the only thing that gives form, and

consistency, and stability to the body of the law. Its

structural foundations, at least, ought not to be changed

except for the weightiest reasons.'" Exxon Corp. v. Department

of Conservation & Natural Res., 859 So. 2d 1096, 1102 (Ala.

2002) (quoting Bolden v. Sloss–Sheffield Steel & Iron Co., 215

12
Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986),
and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989).

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1120292 and 1121205

Ala. 334, 340, 110 So. 574, 580 (1925) (Somerville, J.,

dissenting)). This Court has turned away from such stability

of the law when it "'has had to recognize on occasion that it

is necessary and prudent to admit prior mistakes and to take

the steps necessary to ensure that we foster a system of

justice that is manageable and that is fair to all

concerned.'" Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 88

(Ala. 2012) (quoting Foremost Ins. Co. v. Parham, 693 So. 2d

409, 421 (Ala. 1997)).

I see no "prior mistake" of this Court explained in the

main opinion that would require that we back away from

Boudreaux or Mutual Assurance, Inc. v. Madden, 627 So. 2d 865

(Ala. 1993), upon which Boudreaux relied. Both Boudreaux and

Madden recognize limits to the application of this principle.

In Madden, the "trial court had before it considerable

evidence" to support its determination, 627 So. 2d at 866, and

in Boudreaux, "[t]he trial court made detailed findings

explaining its evaluation of the merits of the potential claim

and the evidence it had considered in reaching that

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determination." 108 So. 3d at 510. 13 However, the

consideration of a potential bad-faith claim and judgment as

an asset has been rejected by this Court when it is "too

speculative" and is not supported by "considerable evidence."

Tillis Trucking Co. v. Moses, 748 So. 2d 874, 887-88 (Ala.

1999).

I see no reason to abandon our precedent in Boudreaux and

Madden. To me, discounting a potential bad-faith claim as an

asset of a defendant may result in a windfall for the

defendant if an award against the defendant is later paid for

in a judgment entered in an action by the defendant against

the defendant's insurer with punitive damages to boot. See

also Ex parte Vulcan Materials Co., 992 So. 2d 1252, 1261

(Ala. 2008) ("[A] defendant cannot argue as a basis for

reducing the punitive-damages award that the award 'stings'

too much, in the absence of evidence of the defendant's

financial status.").

13
In Boudreaux, there was actually no argument on appeal
"that the trial court lacked sufficient information to
adequately assess the defendants' potential claim against
their insurer." 108 So. 3d at 509.

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Instead of a wholesale overruling of Boudreaux (and, sub

silentio, Madden), I would review, as we have previously done

in Boudreaux and Madden, whether the trial court erred in

assigning any value to Dr. Gillis's potential claim. 14

Parker, J., concurs in discussion of Part II.B.1 of the
main opinion.

14
Part II.B.1 also directs "that the trial court, in
calculating Dr. Gillis's assets under Hammond/Green Oil,
should not consider Dr. Gillis's wife's portion of their
jointly owned assets." ___ So. 3d at ___. I see no argument
on appeal by Dr. Gillis as to this issue; thus, I would not
address it.

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