REL: 09/30/2014
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1121181
____________________
Ex parte Robert E. Anderson, M.D., and Selma Doctors Clinic,
PC, d/b/a Selma Doctors Clinic
PETITION FOR WRIT OF MANDAMUS
(In re: Barbara G. Craig, as administrator of the Estate of
William James Craig, deceased
v.
Robert E. Anderson, M.D., and Selma Doctors Clinic, PC,
d/b/a Selma Doctors Clinic)
(Dallas Circuit Court, CV-09-900107)
MURDOCK, Justice.
1121181
Robert E. Anderson, M.D. ("Dr. Anderson"), and Selma
Doctors Clinic, PC, d/b/a Selma Doctors Clinic ("SDC"),1
petition this Court for a writ of mandamus directing the
Dallas Circuit Court to vacate its order of May 27, 2013,
granting plaintiff Barbara Craig's Rule 60(b), Ala. R. Civ.
P., motion, and to reinstate the final judgment entered in
favor of Dr. Anderson and SDC on October 24, 2012. We grant
the petition and issue the writ.
I. Facts and Procedural History
This petition concerns a medical-malpractice/wrongful-
death action filed by Barbara G. Craig ("Mrs. Craig") as the
administrator of the estate of her husband William James Craig
("Mr. Craig"). On January 29, 2009, Dr. Anderson performed a
left inguinal hernia repair on Mr. Craig ("the hernia
surgery") at Vaughan Regional Medical Center ("VRMC"). On
February 9, 2009, Mr. Craig was admitted to the intensive-care
unit of VRMC suffering from extreme pain in his abdominal
region.
1
Selma Doctors Clinic is Dr. Anderson's employer; it was
sued solely on the basis of Dr. Anderson's alleged failures in
providing proper medical care to William Craig.
2
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On February 10, 2009, Dr. Anderson ordered a CT scan for
Mr. Craig. Radiologist Dr. Robert Simpson interpreted the CT
scan and concluded that it showed that Mr. Craig had a
perforated duodenal ulcer.2 According to medical records,
Dr. Anderson performed surgery on Mr. Craig on February 10,
2009, to close the perforated ulcer ("the ulcer surgery").
Dr. Anderson's operation report3 of the procedure provided the
following relevant notations:
"Under satisfactory general anesthesia the
patient was propped and draped in sterile fashion.
Upper midline incision was made and carried down
through the skin and subcutaneous tissue. There was
a lot of thin brownish material within the stomach
which was removed with the suction. The duodenum
was inspected and a large duodenal perforation could
be seen. Several stitches were placed across the
perforation in order to close it and then a portion
of omentum was tacked down around and over the
perforation to seal as a patch. The wound was then
irrigated with copious amounts of saline. The
2
There was no dispute at trial that the CT scan showed the
existence of an ulcer.
3
The operation report contains a printed date for the
procedure of February 16, 2009. The printed date is struck
through with a line and a handwritten "10" is above the
printed "16." At trial, Dr. Anderson testified that he did
not correct the date of the surgery in the report but that
February 10, 2009, was the correct date. He also related that
he initially dictated the operation report the day of the
surgery but that the hospital's dictation system went down and
he had to re-dictate it on February 16, 2009. Mrs. Craig did
not dispute this testimony.
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abdomen was closed with a running suture of 10
Vicryl, the fascia with interrupted sutures of #0
Vicryl, the subcutaneous tissue with #4-0 Vicryl,
and the skin with staples.... I should mention that
there were a lot of peritoneal changes around the
duodenum precluding any formal procedure other than
simply patching the duodenal perforation ...."
Thus, according to the operation report, Dr. Anderson used
"Vicryl" sutures to close the abdomen, but the report did not
detail the type of sutures he used to close the duodenal
perforation or to patch the area with the omentum. It is
undisputed that Vicryl sutures are absorbable and dissolvable
in the body.
On February 13, 2009, Mr. Craig died while he was still
a patient at VRMC.
On February 14, 2009, Mrs. Craig hired Dr. Boris Datnow,
a semiretired pathologist, to perform a private autopsy on Mr.
Craig to determine the cause of his death. Dr. Datnow
determined the cause of death to be "acute purulent
peritonitis and purulent ascites following an elective
inguinal hernia repair." In layman's terms, Dr. Datnow
concluded that Mr. Craig died of an infection he contracted
after the hernia surgery. In his autopsy report, dated
February 14, 2009, Dr. Datnow noted that he observed the
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healed surgical incision from the hernia surgery. He also
noted that "[t]here is an upper abdominal central vertical
surgical incision with staples 5.5 inches in length." The
latter notation is consistent with a second surgery having
been performed on Mr. Craig; however, Dr. Datnow expressly
noted in the report that "[a]n ulcer cannot be found."
In his deposition taken on May 31, 2011, Dr. Datnow
explained that when he performed the autopsy on February 14,
2009, he did not have Mr. Craig's medical records, and he
therefore was not aware of the reason for the second surgery.
Subsequently, Mr. Craig's medical records were forwarded to
Dr. Datnow and he gleaned from them that the purpose of the
second surgery was to repair a perforated duodenal ulcer.
Because he had not located an ulcer in the autopsy of
February 14, 2009 ("the first autopsy"), Mrs. Craig's counsel
asked Dr. Datnow in May 2009 to perform a second autopsy,
paying particular attention to the region where the ulcer
would be located ("the second autopsy"). Dr. Datnow performed
the second autopsy solely on the gastrointestinal tract in
order to see if he could find the ulcer and evidence of the
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repair.4 In an undated addendum to his first autopsy report,
Dr. Datnow stated that "[t]he operative site in and around the
duodenum is soft and friable and a dissection[] in this area
is difficult with the tissue breaking apart and crumbling.
The operative site thus cannot be studied and described." In
his deposition, Dr. Datnow confirmed that "[w]hen I went back
to look at it, I did not actually see an ulcer, but the tissue
at this stage was kind of friable and a bit distorted. So I
could not verify the absence thereof or the presence [of an
ulcer]."
Dr. Datnow also stated in his deposition that during both
autopsies he found no trace of sutures in the area where the
ulcer surgery occurred. He explained that if silk sutures were
used, they would have been present in the body for "many, many
years" but that other types of sutures could have dissolved in
the few days between the ulcer surgery and the first autopsy.
Dr. Datnow further stated that during the second autopsy the
condition of the tissue was such that he could not rule in or
out whether Mr. Craig had an ulcer and whether there had been
4
Dr. Datnow stated in his deposition that he had kept
Mr. Craig's organs in jars in his garage, which is why he was
able to reexamine the area in question.
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an ulcer repair.5 Specifically, Dr. Datnow testified that the
tissue was so friable that the sutures could have become
obscured, but "I certainly had no evidence of a suture I could
pick and say, ah ... this is a suture." In both his report
and his deposition testimony, Dr. Datnow stated that his
findings pertaining to the presence or lack of an ulcer did
not change his conclusion as to the cause of Mr. Craig's
death.
On July 10, 2009, Mrs. Craig sued Dr. Anderson, SDC, and
VRMC in the Dallas Circuit Court, alleging that the defendants
were negligent in their care and treatment of Mr. Craig and
that their conduct proximately caused his death. Specifically
with regard to Dr. Anderson, the complaint alleged that he
negligently/wantonly "nipped" Mr. Craig's colon while
performing the hernia surgery; that he failed to timely
5
In his deposition, Dr. Datnow was asked:
"So, as we move forward, then, we do so on the
presumption and your acceptance of the fact that
these medical records describe the presence of a
duodenal ulcer and a surgical procedure by which it
was repaired, even though the condition of the
tissue did not permit you to verify that at autopsy;
is that fair?"
Dr. Datnow responded: "I would say that is fair."
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diagnose and seriously treat Mr. Craig's intra-abdominal
condition; that he failed at various times to perform full
examinations of Mr. Craig, which led to a failure to discover
the severity of Mr. Craig's condition; that he failed to admit
Mr. Craig to the hospital in a timely fashion so that he could
receive proper care; and that, "[o]n the night of the
operation to repair the duodenal ulcer (02/10/2009),
Dr. Anderson negligently or wantonly failed to broaden Mr.
Craig's antibiotic coverage in light of a grossly contaminated
abdominal cavity and worsening infection .... This failure
directly contributed to Mr. Craig's ongoing sepsis and
ultimate death." The last claim constituted the only claim
in the original complaint mentioning the ulcer surgery.
On November 15, 2010, Mrs. Craig filed her first amended
complaint. The amended complaint contained more detailed
allegations against the defendants, but the claims still
centered on the defendants' failures in diagnosis, care, and
treatment of Mr. Craig's intra-abdominal infection. The
amended complaint did not make a claim against Dr. Anderson
for failure to repair the duodenal ulcer. Instead, it faulted
him for allegedly failing to perform a "thorough examination
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of the entire abdominal cavity" during that surgery. In this
regard, the amended complaint stated:
"It is incumbent upon the operating surgeon to
explore the entire abdomen to rule out other
pathology as well as diminish the amount of
contamination. There is no evidence that Dr.
Anderson made any effort to significantly lower the
infection burden through debridement of the
contamination present within the abdomen. And, most
egregious is the fact that the 13 cm fluid
collection seen in the cul-de-sac on CT, and noted
by the radiologist to be pathologic was not
addressed. There is absolutely no justification not
to explore this area and drain this collection that
more likely than not arose from the alleged
perforated ulcer and was infected. By not draining
that collection, Dr. Anderson performed an
incomplete exploration that left an undrained
collection within Mr. Craig's abdomen. This failure
to perform a complete operation was a breach of the
standard of care and this breach contributed to the
worsening of the emergent condition (sepsis) of Mr.
Craig and probably and proximately caused his
subsequent wrongful death."
The defendants answered Mrs. Craig's complaints, and
discovery commenced. In the course of discovery, VRMC
provided Mrs. Craig with a hospital bill for the ulcer surgery
that reflected the use of three different types of sutures in
that surgery. Mrs. Craig's standard-of-care expert,
Dr. Carlton Young, was deposed on April 8, 2011. In his
deposition, Dr. Young criticized Dr. Anderson for a delay in
the diagnosis and treatment of a perforated ulcer with an
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intra-abdominal infection. Dr. Young did not state or imply
that the ulcer surgery did not occur, nor did he criticize
Dr. Anderson's actions during the ulcer surgery. Dr. Young
confirmed that the CT scan of February 10, 2009, showed that
Mr. Craig had a perforated ulcer.
Dr. Anderson was deposed on August 31, 2010. Concerning
the ulcer surgery, Dr. Anderson testified in his deposition as
follows in response to questions posed by Mrs. Craig's
counsel:
"Q. What changes in Mr. Craig's care did you
institute after seeing the CT results?
"A. We needed to patch his ulcer or fix his ulcer
and irrigate his abdomen.
"Q. So you performed another operation; correct?
"A. Correct.
"....
"Q. What did the CT show?
"....
"A. It showed a perforated ulcer.
"Q. All right. And is that what was causing the
fluid in the cul-de-sac to accumulate?
"A. (Witness nods head.)
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"Q. And so at about 19:33, you performed a surgery
on Mr. Craig. What did you do?
"A. I opened his abdomen, removed fluid, found his
perforated ulcer and patched it, put a couple
of stitches across it and patched it with
omentum. Then I irrigated with copious amounts
of saline his right upper quadrant, his left
upper quadrant, above his liver, below his
liver, both lower quadrants, his cul-de-sac.
All the fluid was removed from his abdomen.
...
"....
"Q. Did you close the wound?
"A. Yes."
Dr. Anderson was not asked in the deposition what kind of
sutures he used during the surgery.
On November 10, 2011, VRMC filed a motion for a summary
judgment.6 In the hearing on that motion, on May 17, 2012,
Mrs. Craig's counsel argued as follows concerning the ulcer
surgery:
"Mr. Gaiser [counsel for Mrs. Craig]: Yes sir. To
begin with, the man died of an infection. He didn't
die of anything else. That's what he died of. He
died of sepsis. There was an autopsy done by a
pathologist, Mayo [Clinic] trained, board-certified
pathologist. He testified -- he testified on two
trips through that autopsy that there was no surgery
for a peptic ulcer. Furthermore, if there was a
6
The trial court entered a summary judgment in favor of
VRMC on June 6, 2012.
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surgery for a peptic ulcer, he would have been so
infected at the time that it would have spread the
infection. But there was no evidence of a -- we are
not doctors. We don't have the capacity to -- when
I read that and saw no peptic ulcer in it from the
autopsy after the client came in, we got the client
right shortly after the death. So we were there
fairly quickly. So I asked him to go ahead. I
contacted him, asked him, I don't see anything here.
He [Dr. Datnow] says, well, I am going to make
another look.
"....
"Mr. Gaiser: The pathologist, he made another look.
There were no sutures. You take fat, and you make
a patch, and you sew it up. And there is no
evidence that there was a hole or that there was a
peptic ulcer. ... And by the way, the only
evidence that exists at all about a peptic ulcer was
from the anesthesiologist. Anesthesiologists are
just -- they are doing their job independent of
everyone else. It wasn't until after he [Mr. Craig]
died on the [13th] that a tape recording thing that
you make that they don't have any longer -- there is
no evidence now. It was dictated by somebody. They
wrote it out, and the report comes in and says that
he took care of a peptic ulcer."
(Emphasis added.)
The trial of the case against Dr. Anderson and SDC was
scheduled to begin on October 15, 2012, before Judge Thomas R.
Jones. On October 8, 2012, Dr. Anderson and SDC filed a
motion in limine in which they requested that the trial court
preclude from trial, among other things,
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"d) any argument or inference that Dr. Anderson did
not perform a duodenal ulcer repair on the evening
of February 10, 2009. While each medical witness,
whether for the Plaintiff or Defendant, has conceded
that such an operation was performed, counsel for
the Plaintiff, Mr. Ron Gaiser, has, at times, and
during oral argument, suggested that Dr. Anderson
did not perform a surgical repair of the decedent's
duodenal ulcer on the evening in question.
Regardless, no such claim is pled, no medical
witnesses proffered this opinion, and any such
suggestion is without basis in fact."
The trial court heard arguments on the motion in limine
on October 15, 2012, before the trial began. During the
argument, the following exchange occurred:
"Mr. McCall [counsel for Dr. Anderson and SDC]: Now
Your Honor focusing on (d) [of the motion in
limine], the only time I've ever heard this and we
heard it again a couple of minutes ago from Mr.
Gaiser. And it's an argument or inference that
there was no duodenal ulcer repair performed in this
case. Dr. Anderson obviously performed a duodenal
ulcer repair. [The ulcer] was diagnosed.
"The Court: What does Datnow's report say with
regard to that? Did he say that he didn't find any
evidence of it, or did he say in his report --
because I can't remember -- he didn't find any
evidence of it or it was not done? What
specifically did he write in his report?
Mr. Gaiser [counsel for Mrs. Craig]: Twice. The
first time [Dr. Datnow] said that there was no
duodenal ulcer in his original report. But I called
him up. I said, you did an autopsy, and I told him
what it was. And I said would you make another pass
through. ... And he went back through it again.
And again he couldn't find it. There was no hole
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that he could find. There was no hole that he could
find.
"The Court: Is that part of his report?
"Mr. McCall: Your Honor, he says it couldn't be
located. The tissues were very friable. He did not
say no repair was done. I don't think it provides
Mr. Gaiser a platform to be allowed to argue that
Dr. Anderson, the nursing personnel, et cetera,
including the anesthesiologist, decided not to
perform a repair on the evening in question.
"The Court: It sounds to me like it's going to be
a disputed fact. And at least to the extent that
his report says that he didn't find a repair, it
will be up to you to convince this jury that it was
merely not reported rather than not, that he did not
perform it versus whether it was just not found.
"....
"The Court: Well, you know, to the extent that you
have two different versions and two different
arguments, I am not going to prohibit the Plaintiffs
from talking about what they believe to be the
evidence. Is Datnow going to be here to testify?
"Mr. Gaiser: He is out of the state, but we have
his deposition.
"The Court: You are going to use his deposition?
"Mr. Gaiser: Yes.
"The Court: The evidence will be what it's going to
be.
"Mr. McCall: Your Honor, I would like to add just
one last thing for the record's sake, that it's
certainly our position -- and while they had
attempted to plead certain claims in reference to
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what Dr. Anderson should or should not have done in
reference to a particular surgery, they have never
pled that he didn't perform the surgery. And they
are trying to have it both ways.
"The Court: Well, you know, the evidence is what it
is. The testimony is what it is. Whatever he may
make in terms of an argument to this jury, if he
misrepresents the evidence to this jury, I presume
you are going to stand up and you are going to show
Datnow's report and highlight his testimony and
straighten the jury out on what your version of the
facts are. So, you know, we are not going to change
the evidence."
The trial took place over five days between October 15,
2012, and October 19, 2012. Dr. Anderson testified at trial
that he surgically repaired Mr. Craig's perforated duodenal
ulcer on February 10, 2009. In relevant part, Dr. Anderson
testified as follows:
"Q. (By Mr. Johnston) [Mrs. Craig's counsel:] You
did an operation on Mr. Craig on the evening of
the 10th of February. What did you do? What did
you repair?
"A. I opened his upper abdomen up, found his
duodenal ulcer, sewed the ulcer up and put an
omentum patch where you take the fat apron, and
you just take a piece of it and put it over the
ulcer and sew it down around it. And that's a
patch. And that suffices to support the plug,
the duodenal ulcer.
"....
"Q. (By Mr. Johnston) All right. So looking at
your second entry, 2-11, is it 8:30?
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"A. That's correct.
"Q. Which should be 2-10 according to you, what
does your note read?
"A. Pre and post-operative diagnosis. That puts it
on the 10th, perforated duodenal ulcer.
Operation, exploratory left, meaning you open
up somebody's abdomen and look and see what's
going on, and suture and patch closure duodenal
ulcer. Under general anesthesia, estimated
blood loss was less than a hundred cc's.
"....
"Q. (By Mr. Johnston) Was this a typical surgery
that you performed on Mr. Craig?
"A. A typical ulcer patch?
"Q. That's what I mean.
"A. Yes.
"Q. And you say you went in and patched it with the
omentum, and I think you described the
procedure for us, correct?
"A. Correct.
"Q. And that involves sutures?
"A. I sutured the wall of the ulcer back together
and then put the patch on top of the small
suture line, three stitches.
"Q. So you sutured the hole, and then you sutured
the patch?
"A. Yes.
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"Q. How much sutures did you use?
"A. I used about three on the ulcer, and probably
five or six with the patch.
"....
"Q. (By Mr. Wright) [Dr. Anderson & SDC's counsel:]
We can look at your operative note if we need
to if you will step down please one more time,
Dr. Anderson, and I want you to explain to
these ladies and gentlemen using this
illustration how you performed this operation?
"A. Well, we opened up the abdomen, made a small
incision in the upper abdomen above the belly
button. And then we exposed the stomach, and
here's the ulcer that we had seen before. What
we did was --
"Q. Let me stop you right there. When you say we,
you have got the surgeon. You have got the
anesthesiologist in there, a certified
registered nurse anesthetist. You have got a
scrub nurse and a circulating nurse. There's
an OR team that has to be assembled; is that
right?
"A. Yeah.
"Q. Who is doing the operation?
"A. I am doing the operation.
"Q. All right. Then tell me what you did?
"A. So what I did after finding the ulcer, put
about three stitches across in order to close
the hole. And then this is the fat apron that
hangs off the stomach and colon.
"Q. What's that called?
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"A. It's called the omentum. What we did after
closing to insure better closure of this or
protection of leak, what you do is pull the
omentum up, and you tack it around the
perforation. And that seals it, and that's
just a second layer if you will.
Q. Y'al1 went through the substance of your
operative note yesterday. So I'm not going to
take us through every word of that, but I want
to ask you. Are these procedures that you have
described here, the identification of the
ulcer, the closing it with the sutures, and I
mean do you just pull those tight like somebody
might sewing a piece of cloth, and that just
closes up the hole?
"A. Yes.
"Q. And then you tie it off, and then you also
described in your operative note this pulling
up the omentum to form a patch; is that right?
"A. That's absolutely correct.
"....
Q. (By Mr. Johnston) [Mrs. Craig's counsel:] What
kind of sutures did you use to repair the
ulcer?
"A. Silk.
"Q. Silk. All right. How long do those take to
dissolve in the body?
"A. They don't. They don't."
(Emphasis added.)
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Dr. Young testified after Dr. Anderson. Following some
preliminary questioning of Dr. Young pertaining to his
experience and practice, Dr. Anderson and SDC's counsel argued
that Dr. Young's area of expertise was too remote for him to
testify as to the standard of care applicable to Dr. Anderson.
In the course of that argument, the following exchange
occurred between Mrs. Craig's counsel and the trial court:
"Mr. Gaiser: To start with, there is no evidence,
there will be -- when this is over with, there will
be no evidence that there was a duodenal ulcer
surgery. The reason is it is because the sutures
would have been left behind.
"The Court: Wait a minute, Mr. Gaiser. Go back
over that again.
"Mr. Gaiser: Okay. The last question we asked Dr.
Anderson was, what kind of sutures did he use. He
said silk. Silk sutures never dissolve. That's the
reason I told Dr. Datnow to go back and make another
look. And he looked, and he said unequivocally even
the second time there was no hole. There was no
repair. The sutures were not there. He said it
twice.
"The Court: Mr. Gaiser, are you seriously going to
argue to this jury when we get there and if we get
there that this was all a fabrication? Is that what
you're arguing?
"Mr. Gaiser: No sir. I'm not.
"The Court: Are you going to tell this jury that
this was not done?
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"Mr. Gaiser: What was done was a hernia surgery and
it was a hernia surgery that killed the man, not the
other surgery anyway.
"The Court: That's not my question to you. Your
comment to me was you thought there was no ulcer
surgery. Are you telling me, Mr. Gaiser, that
you're going to argue to this jury that there was no
surgery done to this, to repair this man's ulcer?
"Mr. Gaiser: Sir, when we read the evidence from
Dr. Datnow, he is going to testify that he could not
find a duodenal ulcer. He could not find a duodenal
ulcer. He had the whole body open on the table, and
he could not find it. And I asked him what is this?
It's crazy. How could this be? And he went back
and did it again. He did it twice, and he could not
find a hole. And he couldn't find the sutures. He
couldn't find it. The operation and the record says
it was performed on the 11th, not the 10th. He does
his report on the --
"The Court: Got you. How about refocus to where we
need to be, and that's with regard to Dr. Young's
qualifications and the Holcomb [v. Carraway, 945 So.
2d 1009 (Ala. 2006),] case and the standards.
"....
"Mr. Gaiser: Your Honor, he [Dr. Young] testified
in his deposition that in his opinion he doesn't
know of any fault that he [Dr. Anderson] did with
respect to the duodenal ulcer. I mean, I don't know
what the argument is. If we hired all of the king's
horses and all of the king's men, we wouldn't -- we
wouldn't want to change our guy's testimony. He has
testified that he found no fault in it [the ulcer
surgery]. They are arguing that he can't testify
that there was no fault in it. That's amazing
because he is not here to testify there was any
fault in that. Like I said, we don't even know that
the evidence is going to show there was one. ..."
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(Emphasis added.)
At the conclusion of the argument excerpted above, the
trial court decided to allow Dr. Young to continue testifying
to the jury. As he did in his deposition, Dr. Young testified
at trial that the CT scan "showed evidence of the perforation
of the duodenal ulcer." Dr. Young stated that he would have
ordered some tests sooner than did Dr. Anderson; however, he
also admitted that he was not in the same general line of
practice as Dr. Anderson. The following exchange also
occurred between defendants' counsel and Dr. Young:
"Q: So now in reflection, Dr. Young, and all of
this, is it fair for me to characterize your
testimony that while you have explained to us
that had you been in this situation there are
some things that you may have done differently
at different times based on what has been
suggested to you by what Mrs. Craig has said or
what was suggested to you about the situation
that existed in the hospital. But at the same
time you recognize that even with all of that
information, the care and treatment that Dr.
Anderson provided to Mr. Craig was reasonable,
appropriate and a course that is recognized to
be within the standard of care for surgeons
although you may have followed another course?
Is that fair?
"....
"A. Given everything with the history that I have
been privy to, yes.
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"....
"Q. You are still firm that you want these people
to understand you don't say this man committed
malpractice, do you?
"A. Based on all of the information, I can't stand
by that and say that, no.
"Q. You can't say that at all, can you?
"A. No."
Following the conclusion of Dr. Young's testimony, the
trial court excused the jury for lunch and proceeded to
discuss Dr. Young's testimony with Mrs. Craig's counsel.
"The Court: ... There is some concern about Dr.
Young's testimony, especially in regard to his
testimony as to [no breach of] the standard of care.
And I think you know what I'm talking about Mr.
Gaiser.
"Mr. Gaiser: Unfortunately. We think though that
we can rehabilitate our case through Dr. Datnow,
however.
"The Court: Well, sir, I fail to see how your
causation expert, if he is allowed to testify, is
going to be qualified to rehabilitate as to the
standard of care.
"Mr. Gaiser: It's a fact. It will be a fact
aspect, a fact. There's a particular fact that he
would be able to testify to, that he has testified
to on two occasions that when he did his pathology,
when he did his, when he opened the body up and he
looked at the organs and he looked at the cause of
death, he determined that there was no -- there was
an incision, and there was an operation done in the
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peritoneal area and the -- excuse me, in the
abdomen. And he did not find the sutures or
whatever is necessary to determine that there was an
operation to close an ulcer. If there was no
operation to close an ulcer, then their entire
defense in this case is flawed. And that's his
sworn testimony. And then I asked him to do it
again. I asked him. I said this, are you sure? I
asked him. I called him up on the telephone. I
said, are you sure? I asked him. I said, Dr.
Datnow, this is a very important matter. Can you
verify that. He said, I still have the organs. So
he went out and verified it. And he said -- and Dr.
Anderson testified that the sutures that were used
were silk sutures. He testified that silk sutures
would not decompose. ... I mean, either the
sutures were there or they weren't there. If they
weren't there, he didn't do the operation. ..."
(Emphasis added.)
Mrs. Craig was unable to call Dr. Datnow to testify
because he was out of the country from October 2, 2012, to
November 9, 2012. Instead, she sought to read Dr. Datnow's
deposition to the jury. In response, Dr. Anderson and SDC
objected that Mrs. Craig had failed to establish in the
deposition that Dr. Datnow was a medical doctor at the time he
performed the autopsies, and, therefore, they argued, Mrs.
Craig had failed to qualify Dr. Datnow as a medical expert.
The following day, the trial court entertained motions
from Dr. Anderson and SDC pertaining to Dr. Young's testimony
and the qualifications of Dr. Datnow. In the course of the
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argument on those motions, Dr. Anderson and SDC requested that
the trial court enter a judgment as a matter of law in their
favor because Mrs. Craig had failed to establish that Dr.
Anderson had violated the applicable standard of care. At the
conclusion of the parties' arguments on those motions, the
trial court indicated that it would enter a judgment as a
matter of law and that it would rule that Dr. Datnow "was not
in fact properly qualified."
On October 24, 2012, the trial court entered an order
that provided, in pertinent part:
"The issue presented before the Court is with
respect to defendants' oral motion to exclude the
plaintiff's standard of care expert witness, Dr.
Carlton Young. Dr. Young has testified that he is
a board certified surgeon practicing at the
University of Alabama at Birmingham, primarily as a
transplant surgeon. Dr. Young has acknowledged to
the Court that he does not accept 'on-call'
responsibilities as a general surgeon at UAB. Dr.
Young acknowledged to the Court that the sole issue
which he has raised in criticism of the defendants
is the issue of an alleged delay in the diagnosis
and surgical treatment of a perforated duodenal
ulcer and the postoperative care for a patient
having undergone that surgical procedure.
"Dr. Young has admitted to the Court that he has
never performed this operation as a board certified
surgeon. Moreover, Dr. Young has admitted that he
is not in 'the same general line of practice' as the
defendant, Dr. Anderson. This testimony is
undisputed. Furthermore, Dr. Young has admitted in
24
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his testimony that his board certification is issued
by the administrative board of the American College
of Surgeons, an organization that, among other
things, has promulgated and adopted standards
regarding the nature and degree of experience
required of its members testifying as expert
witnesses in matters such as this. In acknowledging
that he has never performed the surgical procedure
at issue in this case as a board certified surgeon,
Dr. Young admits that his participation in this
litigation is violative of the policy standards
adopted by the American College of Surgeons which
has issued his board certification. (This is but
one factor considered by the Court in addition to
those matters set forth herein above).
"The Court has held the defendants' motion under
consideration and allowed Dr. Young to testify such
that the Court could consider his testimony as a
whole in ruling on defendants' motion.
"After consideration of Dr. Young's testimony in
its entirety, having afforded the plaintiff
opportunity to develop Dr. Young's testimony as
fully as she could, the Court has determined that
Dr. Young is not in the same general line of
practice as the defendant, Dr. Anderson, and, as
such, his testimony is due to be excluded.
"The Court notes that, aside from Dr. Young's
concession that he does not practice in the same
general line of practice as Dr. Anderson, the
substance of Dr. Young's testimony (even if he were
competent to testify as an expert in this cause)
does not warrant submission of the plaintiff's case
to the jury. Considering Dr. Young's substantive
testimony in its entirety, the Court has observed
that Dr. Young ultimately testified that all of the
care and treatment provided by Dr. Anderson was in
compliance with the standard of care, although Dr.
Young stated that he personally would have done some
things differently. Dr. Young stated unequivocally
25
1121181
that the defendant, Dr. Anderson, did not commit
medical malpractice in providing care to plaintiff's
decedent. Accordingly, Dr. Anderson and his
employer, Selma Doctors Clinic, PC, are entitled to
judgment as a matter of law.
"Following the testimony of Dr. Young, the
plaintiff announced her intention to read the
deposition of Dr. Boris Datnow. The parties concede
that Dr. Datnow is a board certified pathologist and
not a general surgeon. As such, Dr. Datnow is not
a similarly situated health-care provider to Dr.
Anderson under the terms and provisions of the
Alabama Medical Liability Act, § 6-5-543(c), [Ala.
Code 1975,] and his testimony is not, under any
circumstances, admissible to establish a breach of
the standard of care by Dr. Anderson. The parties
also concede that the deposition transcript contains
no testimony to the effect that Dr. Datnow was a
licensed physician at the time that he allegedly
performed a private autopsy on the body of
plaintiff's decedent. The Court has determined that
this is a necessary qualification which the
plaintiff had the burden of establishing prior to
eliciting his testimony from Dr. Datnow regarding
the conclusions expressed in his autopsy report or
opinion testimony which is based on the autopsy.
Dr. Datnow's mere statement that he was a board
certified pathologist on the date that his
deposition was taken does not establish that he was
a physician licensed to practice medicine and
authorized under Alabama law to perform autopsy
procedures at the time he allegedly performed the
autopsy in question in this case, February 14, 2009.
Accordingly, the Court has excluded the deposition
of Dr. Datnow as inadmissible in this case.
"The Court having determined as a matter of law
on the basis of undisputed testimony that Dr. Young
is not in the same general line of practice as the
defendant, Dr. Anderson, and, otherwise, having
determined as a matter of law that the substantive
26
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testimony of Dr. Young would completely absolve the
defendants of any liability in this case, even if he
were in the same general line of practice, hereby
directs entry of judgment as a matter of law in
favor of defendant Robert E. Anderson, MD, and Selma
Doctors Clinic, PC, pursuant to Rule 50(a)(1)-(2) of
the Alabama Rules of Civil Procedure. Plaintiff's
claims against said defendants are hereby dismissed
with prejudice."
On November 21, 2012, Mrs. Craig filed a Rule 59, Ala. R.
Civ. P., motion to vacate the judgment or for a new trial. In
the motion, Mrs. Craig contended that the trial court erred in
excluding Dr. Young's testimony because
"it was not necessary for Dr. Young to have
performed a surgical repair of a perforated duodenal
ulcer in order for him to have been similarly
situated. Dr. Young was not critical of the actual
surgical repair of the duodenal ulcer performed by
Dr. Anderson. Dr. Young was critical of the pre-
surgical diagnosis and treatment and post-surgical
diagnosis and treatment of Mr. Craig's intra-
abdominal infection from which he suffered and
died."
Mrs. Craig added that the standard of care in this action was
that of a general surgeon and that Dr. Young is a board-
certified general surgeon; thus, she asserted, he should have
been deemed qualified to testify as to the applicable standard
of care. Mrs. Craig also argued in the motion that the trial
court erred by denying her "the right to access the original
medical records of the decedent William James Craig that were
27
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retained by Defendant Dr. Anderson." Mrs. Craig presented no
other arguments in her Rule 59 motion. The trial court denied
Mrs. Craig's Rule 59 motion on December 28, 2012.
In January 2013, Judge Collins Pettaway, Jr., succeeded
Judge Jones in the Dallas Circuit Court.
On February 7, 2013, Mrs. Craig filed a motion pursuant
to Rule 60(b)(3), Ala. R. Civ. P., in which she argued that
Dr. Anderson had committed perjury and had perpetrated a fraud
upon the trial court by testifying that he had performed the
ulcer surgery when, in fact, he had not done so. Mrs. Craig
noted that until Dr. Anderson testified at trial, the only
indication of the kind of sutures Dr. Anderson had used in the
ulcer surgery had been provided in Dr. Anderson's operation
report, in which he stated that he had used Vicryl sutures,
which dissolve within a few days of an operation. At trial,
however, Dr. Anderson stated that in the ulcer surgery he used
silk sutures, which do not dissolve. Mrs. Craig contended
that this revelation at trial demonstrated that Dr. Anderson
lied about performing the ulcer surgery. Mrs. Craig also
accused defendants' counsel of participating in the fraud and
that counsel's reason for doing so was that Dr. Anderson's
28
1121181
health-care-professional-liability policy allegedly contained
an incentive for taking a malpractice action to trial rather
than entering into a settlement with a plaintiff.
In support of her argument, Mrs. Craig submitted an
affidavit from Dr. Datnow executed on January 8, 2013, in
which he concluded:
"I have again been contacted by Mr. Gaiser [Mrs.
Craig's counsel] and he reported to me that Dr.
Anderson testified during the June 2012 trial of
this matter that he used 8 or 9 silk sutures
(3 sutures on the ulcer and 5-6 sutures on the
patch) to repair Mr. Craig's perforated ulcer, and
that the silk sutures he used do NOT dissolve.
Based upon Dr. Anderson's testimony at trial, I can
say with absolute certainty that my initial finding
that Mr. Craig had no ulcer as stated in my
February 14, 2009, Autopsy Report was correct, and
I can further state with absolute certainty that I
saw no gross evidence of pathology that a duodenal
ulcer repair was performed by Dr. Anderson in
February 2009, for if such a surgery had been
performed, I would have discovered the non-
absorbable silk sutures during both [the first]
autopsy and my reexamination of Mr. Craig's organs
in May 2009.
"In conclusion, based upon Dr. Anderson's trial
testimony, I am absolutely certain that Dr. Anderson
did not perform a perforated duodenal ulcer repair
during the February 10, 2009, exploratory/surgical
laparotomy on Mr. Craig, and any testimony to the
contrary would be untrue."
(Some emphasis added.)
29
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In opposing Mrs. Craig's Rule 60(b) motion, Dr. Anderson
and SDC primarily contended that the Rule 60(b) motion
actually constituted a second Rule 59 motion because all the
information contained in the Rule 60(b) motion was known to
Mrs. Craig at the time she filed her Rule 59 motion, and yet
it was not presented in her Rule 59 motion. Dr. Anderson and
SDC also argued that Dr. Anderson's statement in his operation
report and his testimony at trial were not necessarily
contradictory because his operation report had stated only the
type of sutures he had used to close the abdomen, but the
report did not detail the type of sutures he had used to close
the duodenal perforation or to patch the area with the
omentum. He also noted that hospital records showed that
there were charges for three types of sutures used in the
surgery. Thus, the evidence indicated that Dr. Anderson may
have used both Vicryl sutures and silk sutures in the ulcer
operation. Dr. Anderson and SDC also asked Judge Pettaway to
strike Dr. Datnow's affidavit on the ground that the
assertions therein could have been stated within the time
limits for filing a Rule 59 motion but Mrs. Craig failed to
take the steps necessary to make that happen.
30
1121181
On February 8, 2013, Mrs. Craig filed a notice of appeal
of the trial court's October 24, 2012, judgment in favor of
Dr. Anderson and SDC.7 Craig v. Anderson (No. 1120649,
June 6, 2013).8
On April 18, 2013, Judge Pettaway heard arguments on Mrs.
Craig's Rule 60(b) motion. In the hearing on the Rule 60(b)
motion, Mrs. Craig's counsel, seeking to clarify her fraud
argument, stated: "One last thing. We've never said the man
didn't have an ulcer. We said the man never had an ulcer
operation. And there's a good reason for that because the man
was so infected, you could not have operated." Mrs. Craig's
counsel also abandoned his contention that defendants' counsel
participated in the alleged fraud.
On May 27, 2013, Judge Pettaway entered an order granting
Mrs. Craig's Rule 60(b)(3) motion. The order recited some of
the facts related above, including Dr. Anderson's testimony at
trial pertaining to the type of sutures he had used during the
7
Mrs. Craig's notice of appeal did not deprive the trial
court of jurisdiction to hear her Rule 60(b) motion. See Rule
60(b), Ala. R. Civ. P.; Harville v. Harville, 568 So. 2d 1239,
1240 (Ala. Civ. App. 1990).
8
The appeal in case no. 1120649 was dismissed on
Mrs. Craig's motion on June 6, 2013.
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ulcer surgery. Judge Pettaway concluded that "Defendant
Anderson's February 16th Operative Report was a forged and
fraudulent medical record" because of the crossed-out date of
February 16, 2009, for the surgery date and because
Dr. Anderson admitted the report was dictated three days after
Mr. Craig's death. The order contained the following
additional conclusions:
"(1) Plaintiff's fraud claims are properly raised
under Ala. R. Civ. P. 60(b)(3).
"(2) There is clear and convincing evidence that
Defendant Anderson did not perform a perforated
duodenal ulcer repair on decedent Mr. Craig and thus
he engaged in fraud, misrepresentation, and deceit.
"(3) Defendant Anderson committed fraud in
procuring the Court's October 24, 2012, Order of
Judgment.
"(4) The fraud committed by Defendant Anderson was
both intrinsic and extrinsic in nature in that
(1) it occurred during the trial of this matter and
was accompanied by perjury. Defendant Anderson's
use of false and/or forged medical records, and his
misrepresentation of evidence pertaining to his
having performed a perforated duodenal ulcer repair
such that it affected tho Court's determination of
tho issues presented therein; and (2) it was
collateral to the issues tried in this mater such
that this Court was deceived into believing that
Defendant Anderson performed a perforated duodenal
ulcer repair when in fact he had not.
"(5) Defendant Anderson misled this Honorable Court
and in so doing both this Court and Defendant
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Anderson prevented Plaintiff Craig from fully and
fairly presenting her case.
"(6) The fraud committed by Defendant Anderson has
resulted in a judgment whose integrity is lacking,
and absent relief an extreme and unexpected hardship
will result.
"(7) The fraud committed by Defendant Anderson was
not obtainable by the due diligence of Plaintiff
prior to the time of entry of the Court's Order of
Judgment nor prior to or during the pendency of
Plaintiff's Ala. R. Civ. P. 59 motion.
"(8) Plaintiff currently has an appeal pending
before the Supreme Court of Alabama and, thus,
Plaintiff's Ala. R. Civ. P. 60(b)(3) motion is not
a substitute for an appeal and does not subvert the
principle of finality of judgments.
"The Court further states that the circumstances
of this case are precisely the type of extraordinary
circumstances provided for under Ala. R. Civ. P.
60(b)(3) for which the extreme remedy of relief from
a final judgment is permitted. As such, Plaintiff's
Ala. R. Civ. P. 60(b)(3) Motion to Set Aside the
Court's October 24, 2012, Final Order of Judgment is
hereby granted.
"Furthermore, Defendants' Motion to Strike the
Affidavit of Dr. Boris Datnow is hereby denied. As
set forth above, this Court finds that Plaintiff's
'lack of surgery' argument is not fanciful nor
baseless as suggested by Defendants but in fact is
supported by clear and convincing evidence."
Dr. Anderson and SDC filed their petition for the writ of
mandamus in this Court on July 8, 2013. The Court ordered
answers and briefs on August 23, 2013.
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II. Standard of Review
"Relief from a judgment under Rule 60(b) is
proper only where the moving party shows exceptional
circumstances which justify relief. Grover v.
Grover, 516 So. 2d 667 (Ala. Civ. App. 1987). A
trial court has wide discretion to set aside a
judgment which it deems invalid because of fraud
practiced by a party in the procurement of the
judgment. Reynolds v. Reynolds, 516 So. 2d 663
(Ala. Civ. App. 1987). Because the trial court
possesses such wide discretion, its judgment will be
affirmed on appeal unless there is an abuse of that
discretion."
Smith v. Smith, 668 So. 2d 846, 848 (Ala. Civ. App. 1995). We
also note, however, that "'the broad power granted by
Rule 60(b) cannot be used to relieve a party from free,
deliberate, and calculated choices.'" Wal-Mart Stores, Inc.
v. Pitts, 900 So. 2d 1240, 1245 (Ala. Civ. App. 2004) (quoting
State ex rel. Croson v. Croson, 724 So. 2d 36, 38 (Ala. Civ.
App. 1998)).
III. Analysis
Rule 60(b)(3) provides that "[o]n 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 ... fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
34
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misconduct of an adverse party ...." Rule 60(b)(3), Ala. R.
Civ. P.
"One who contends that an adverse party has
obtained a verdict through fraud, misrepresentation,
or other misconduct (Rule 60(b)(3)) must prove by
'clear and convincing evidence (1) that the adverse
party engaged in fraud or other misconduct and
(2) that this misconduct prevented the moving party
from fully and fairly presenting his case.
[Citation omitted.] The resolution of these two
issues is within the trial court's discretion, and
on review, our only inquiry is whether the trial
court abused its discretion.' Montgomery v. Hall,
592 F.2d 278, 279 (5th Cir. 1979). See, also, Penn
v. Irby, 496 So. 2d 751 (Ala. 1986)."
Pacifico v. Jackson, 562 So. 2d 174, 179 (Ala. 1990).
Mrs. Craig alleges that Dr. Anderson committed fraud by
submitting documentation pertaining to, and testifying both in
deposition and at trial that he performed, a repair of a
perforated duodenal ulcer on Mr. Craig on February 10, 2009.
It appears Mrs. Craig concedes that Dr. Anderson performed a
surgery on her husband on that date because Mrs. Craig alleged
in her amended complaint that Dr. Anderson failed to perform
a thorough exploratory surgery and failed to thoroughly treat
the infection in the abdomen during the surgery on
February 10, 2009, and because Dr. Datnow stated in his
autopsy report and testified in his deposition that he found
35
1121181
an abdominal incision for the second surgery performed on
Mr. Craig. Mrs. Craig contends, however, that because
Dr. Datnow did not find sutures in the abdominal area and
because Dr. Anderson stated at trial that he used silk sutures
during the ulcer surgery, which do not dissolve, it can only
be concluded that Dr. Anderson did not perform the ulcer
repair as he testified he did.9
Dr. Anderson and SDC argue that Judge Pettaway exceeded
his discretion in granting Mrs. Craig's Rule 60(b) motion
because, they say, Mrs. Craig failed to demonstrate that the
alleged fraud prevented her from fully and fairly presenting
9
It is less clear whether Mrs. Craig believes her husband
had an ulcer. During the Rule 60(b) hearing, Mrs. Craig's
counsel stated that Mrs. Craig had "never said [her husband]
didn't have an ulcer," but before the Rule 60(b) hearing her
counsel repeatedly stated in arguments to the trial court that
Dr. Datnow never found an ulcer during his autopsy
investigations. Indeed, in one exchange before the trial
court concerning the fraud allegation, Mrs. Craig's counsel
sought to explain away the results of the CT scan by comparing
it to his own experience of once having been falsely diagnosed
with cancer. Moreover, in her respondent brief Mrs. Craig
questions whether the CT scan performed on Mr. Craig showed a
perforated duodenal ulcer because the CT scan itself was not
proffered as evidence; only the radiologist's report
interpreting the CT scan was admitted. This observation
ignores that Mrs. Craig did not question the radiologist's
report at trial and that her own expert, Dr. Young, testified
that the CT scan showed a perforated duodenal ulcer inside her
husband.
36
1121181
her case. In support of their argument, Dr. Anderson and SDC
quote Pacifico, which states, in relevant part:
"On the broader public policy issue of reviewing
post-trial claims of fraud, the United States
Supreme Court, in [United States v.] Throckmorton,
[98 U.S. [61,] 68-69 [(1878)], had this to say:
"'[T]he mischief of retrying every case in
which the decree was rendered on false
testimony by perjured witnesses, or on
documents whose genuineness was in issue
and which are afterward ascertained to be
forged or fraudulent, would be greater, by
reason of the endless nature of the strife,
than any compensation arising from doing
justice in individual cases.'
"First National Life Ins. Co. v. Bell, 174 La.
692, 699, 141 So. 379, 381 (1932), is of interest in
this connection:
"'If a judgment could be annulled on
the showing made by plaintiff, litigation
would be endless. Another judgment in favor
of [defendant] could be annulled on
allegations of newly discovered evidence,
and so on to the end of time. If an
unsuccessful litigant were permitted to
attack a judgment as fraudulent on the
ground that his opponent failed to disclose
certain facts within his knowledge, which
by the exercise of reasonable diligence the
unsuccessful litigant could have
ascertained for himself, there would be no
finality to a judgment. In legal effect, it
would be nothing more than an order to show
cause why it should not be set aside.'
"The same principle is stated, in different
language, in the case of Porcelli v. Schlitz Brewing
37
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Co., 78 F.R.D. 499, 501 (E.D. Wisc. 1978), as
follows: '[Movant] must ... satisfy the Court that
he has substantial evidence of fraud which was not
obtainable by due diligence prior to the time of
entry of the order.'
"One who contends that an adverse party has
obtained a verdict through fraud, misrepresentation,
or other misconduct (Rule 60(b)(3)) must prove by
'clear and convincing evidence (1) that the adverse
party engaged in fraud or other misconduct and
(2) that this misconduct prevented the moving party
from fully and fairly presenting his case. ...'"
562 So. 2d at 179 (emphasis added).
Mrs. Craig dismisses Pacifico's statement concerning a
due-diligence requirement for fraud claims under Rule 60(b)(3)
by arguing that the Pacifico Court was not stating the law of
Alabama, but rather the law in the United States District
Court for the Eastern District of Wisconsin as it existed in
1978. Mrs. Craig contends that
"Defendants' 'due diligence' argument applies only
to Ala. R. Civ. P. 60(b)(2) motions pertaining to
newly discovered evidence. Plaintiff's motion is
not based on newly discovered evidence. Plaintiff's
motion is based upon fraud committed by Defendant
Anderson that prevented Plaintiff from fully and
fairly presenting her case and resulted in a
judgment whose integrity is lacking, and absent
relief an extreme and unexpected hardship will
result, which is the type of fraud provided for in
Rule 60(b)(3)."
38
1121181
Mrs. Craig fails to cite any authority for her
proposition that due diligence applies only to claims under
Rule 60(b)(2), Ala. R. Civ. P. Moreover, her characterization
of Pacifico ignores the fact that the Pacifico Court quoted
cases from two other courts for essentially the same
proposition stated by the federal district court in Porcelli
v. Schlitz Brewing Co., 78 F.R.D. 499 (E.D. Wis. 1978).
In any event, the principle at issue -- or at least its
equivalent -- is embedded in the second element that was
identified in Pacifico as required in order for a movant to
succeed in a Rule 60(b)(3) motion: The movant "must prove 'by
clear and convincing evidence ... that [the] misconduct
prevented the moving party from fully and fairly presenting
[her] case.'" 562 So. 2d at 179. As one federal district
court10 succinctly explained: "The case law has repeatedly
emphasized that a party is not prevented from fully and fairly
presenting its case if it had access to the information at
issue." Halliburton Energy Servs., Inc. v. NL Indus., 618
10
"Federal cases construing the Federal Rules of Civil
Procedure are persuasive authority in construing the Alabama
Rules of Civil Procedure, which were patterned after the
Federal Rules of Civil Procedure." Hilb, Rogal & Hamilton Co.
v. Beiersdoerfer, 989 So. 2d 1045, 1056 n.3 (Ala. 2007).
39
1121181
F. Supp. 2d 614, 641 (S.D. Tex. 2009). See also Tunnell v.
Ford Motor Co., CIVA.4:03-CV-00074, June 26, 2006 (W.D. Va.
2006) (not reported in F. Supp. 2d) ("[T]he fact that
Plaintiff was already aware of the essential information in
the AML/Tyco documents speaks to the third prong of a
Rule 60(b)(3) inquiry. Because eight months before trial
Plaintiff already knew the crucial information regarding the
BCO manufactured by Tyco and used by Aston Martin, Defendant's
misconduct did not prevent Plaintiff from fully proving this
aspect of his case."); Casey v. Albertson's Inc., 362 F.3d
1254, 1260 (9th Cir. 2004) (stating that "'[F]ederal Rule of
Civil Procedure 60(b)(3) require[s] that fraud ... not be
discoverable by due diligence before or during the
proceedings'" (quoting Pacific & Arctic Ry. & Navigation Co.
v. United Transp. Union, 952 F.2d 1144, 1148 (9th Cir. 1991));
Taylor v. Texgas Corp., 831 F.2d 255, 260 (11th Cir. 1987)
(noting that "given the fact that Texgas itself knew that it
had been making pension payments to Taylor, even if its
counsel were not aware of that fact, Texgas cannot show that
Taylor's failure to mention the pension payments prevented
Texgas 'from fully and fairly presenting its case'" (quoting
40
1121181
Harre v. A.H. Robins Co., 750 F.2d 1501, 1503 (11th Cir.
1985))).
The rendition of the facts above makes clear that
Mrs. Craig's counsel was aware long before trial of
purportedly "crucial information" regarding the supposed lack
of an actual duodenal repair. Indeed, he repeatedly expressed
with certitude that there had been no such repair and that the
evidence he possessed based on Dr. Datnow's two autopsies
clearly established that "fact." The results of Dr. Datnow's
first autopsy were known to Mrs. Craig two years and eight
months before trial and the results of the second autopsy were
known to her two years and five months before trial.
Nonetheless, Mrs. Craig's counsel did not ask Dr. Anderson in
his deposition, which was taken two years before trial, what
kind of sutures he used in the ulcer surgery, nor did he
attempt at any time during the ensuing two years to engage in
any supplemental discovery aimed at obtaining this information
from Dr. Anderson. When Dr. Anderson was asked at trial what
kind of sutures he used in the ulcer surgery, Mrs. Craig's
counsel did not follow up Dr. Anderson's answer with a
question regarding any apparent discrepancy between the
41
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statement in his operation report that he used Vicryl sutures
and his statement at trial that he used silk sutures. Nor did
he otherwise attempt to make use of this testimony in support
of the claims before the court.11
Dr. Anderson's trial testimony that he used silk sutures
to perform the duodenal repair is indeed additional evidence
in support of Mrs. Craig's assertion that no such repair
actually occurred. It is only that, however -- "additional"
evidence of a "fact" already known by and allegedly provable
by Mrs. Craig. Insofar as Dr. Anderson's testimony that he
did perform the repair, this, of course, was nothing new. To
allow Mrs. Craig to assert new claims based on either aspect
of Dr. Anderson's trial testimony at this juncture would be to
allow her to piecemeal her claims and, indeed, to use Rule
60(b) to avoid the"'free, deliberate, and calculated choices'"
made by her in the management and presentation of her action.
11
Even if the possibility of a lack of an actual duodenal
repair had not been known to Mrs. Craig until trial, she
failed to express to the trial court, and has not even
articulated in her brief to this Court, a cogent explanation
or factual theory as to how the failure to actually perform a
duodenal repair would support or otherwise relate to some
other, pleaded failure on the part of Dr. Anderson that caused
Craig's death. See Ala. Code 1975, § 6-5-551.
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See Wal-Mart Stores, 900 So. 2d at 1245 (quoting Croson, 724
So. 2d at 38).
Further, despite the fact that Mrs. Craig never pleaded
her "fake surgery" allegation in her complaints,12 the trial
court was willing to allow Mrs. Craig's counsel to present
Dr. Datnow's deposition to the jury, concluding that the issue
was a "disputed fact." The only reason Mrs. Craig was
prevented from presenting Dr. Datnow's deposition was a
failure to qualify him as an expert, a ruling that Mrs. Craig
did not challenge in her Rule 59 motion.
12
This failure of pleading, alone, is fatal to any attempt
by Mrs. Craig to assert the supposed lack of a duodenal repair
as an act of malpractice in and of itself. Section 6-5-551,
Ala. Code 1975, of the Alabama Medical Liability Act plainly
requires that "[t]he plaintiff shall amend his complaint
timely upon ascertainment of new or different acts or
omissions upon which his claim is based; provided, however,
that any such amendment must be made at least 90 days before
trial." Despite purported foreknowledge of the alleged lack
of any duodenal repair, Mrs. Craig failed to assert a claim in
this regard or to incorporate any allegation of this "fact"
into any amended claim. Allowing her to use a Rule 60(b)
motion to do so now would sanction the piecemealing of claims
into separate lawsuits and allow her to use a Rule 60(b)
motion to achieve "'relie[f] ... from free, deliberate, and
calculated choices'" made by her in the management and
presentation of her lawsuit. Wal-Mart Stores, 900 So. 2d at
1245 (quoting Croson, 724 So. 2d at 38).
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In addition, the trial court entered its judgment on
October 24, 2012. By Mrs. Craig's own admission, Dr. Datnow
returned from his absence on November 9, 2012. Mrs. Craig
filed her Rule 59 motion on November 21, 2012. Mrs. Craig
could have presented her fraud argument and affidavit from
Dr. Datnow in her Rule 59 motion, and yet she did not do so.
Instead, she waited another month and a half -- and after a
new trial judge had succeeded Judge Jones -- to present the
argument and affidavit in her Rule 60(b) motion.
The foregoing facts demonstrate that even if
Dr. Anderson's trial testimony concerning the ulcer surgery
could be considered fraudulent, Mrs. Craig was not prevented
as a result of that fraud from fully and fairly presenting her
allegation of a fake surgery. Instead, she deliberately
waited to present the argument in her Rule 60(b) motion.
Indeed, in her brief Mrs. Craig does not deny that she could
have presented the argument sooner, at least in her Rule 59
motion. She simply contends that she did not have to do so
because she filed her Rule 60(b) motion within the four-month
period prescribed in Rule 60(b) as the outer limit for the
filing of motions under Rule 60 (b)(1)-(3). Under the
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circumstances presented in this case, however, the fact that
Mrs. Craig filed a Rule 60(b)(3) motion within that four-month
period does not excuse her failure to present her fraud
argument sooner. Once again, "'the broad power granted by
Rule 60(b) cannot be used to relieve a party from free,
deliberate, and calculated choices.'" Wal-Mart Stores, 900
So. 2d at 1245 (quoting Croson, 724 So. 2d at 38).
Mrs. Craig has failed to demonstrate how the alleged
fraud prevented her from fully and fairly presenting her
claims at trial or in a posttrial Rule 59 motion.
Mrs. Craig's counsel repeatedly asserted that Mr. Craig did
not die as a result of the performance by Dr. Anderson of an
ulcer surgery or the lack thereof. Instead, Mrs. Craig's
theory of the case was that Mr. Craig died of an intra-
abdominal infection acquired after the hernia surgery and that
Dr. Anderson was responsible for Mr. Craig's death because he
failed to timely diagnose and treat the infection.
Mrs. Craig's case did not fail as the result of any statement
by Dr. Anderson pertaining to the ulcer surgery. It failed
because of a lack of proof of the claims asserted.
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IV. Conclusion
Based on the foregoing, we conclude that the trial court
exceeded its discretion in granting Mrs. Craig's Rule 60(b)(3)
motion setting aside the October 24, 2012, final order in
favor of Dr. Anderson and SDC. Therefore, we grant
Dr. Anderson and SDC's petition for a writ of mandamus and
direct the trial court to reinstate its final order of
October 24, 2012.
PETITION GRANTED; WRIT ISSUED.
Stuart, Shaw, Main, Wise, and Bryan, JJ., concur.
Bolin and Parker, JJ., concur in the result.
Moore, C.J., dissents.
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