Alabama Court Permits New Malpractice Trial After Defense Lawyer Violates Order

It takes a lot of time and money to get a medical malpractice (now called health care liability) case to trial in Tennessee.   Thus, when such cases do get to trial, it is essential that the lawyers and parties follow the orders of the court concerning evidentiary matters such that the case is determined on what the court has ruled the jury should hear, not influenced by matters that the court has determined that the jury should not hear.

There are some lawyers, through ignorance, negligence or intentional misconduct, that violate court orders on motions in limine.   To be sure, such an error can be innocent – in the heat of the battle, mistakes can be made.  And sometimes there can be legitimate disputes on the meaning of a ruling, which reinforces the need for all involved – the judge and the lawyers – to have a firm grasp on the ruling before  making any comment on the subject matter in the presence of the jury. 

I do not know what gave rise to the violations of the court order in Mottershaw v. Ledbetter. 1110959 (Ala. S. Ct. 11/08/13, modified 1/17/14),  The opinion tells us the following 

  • The parties were ordered not to refer to or present evidence that those other than defendants failed to detect decedent’s cancer, including reference to certain additional x-rays;
  • Turing opening statement defense counsel referenced that additional x-rays were taken.  A sidebar conference was held on this issue but was not captured by the court reporter.
  • Defense counsel raised the additional x-rays again in examination of his expert and the court ruled that such references were inappropriate.  The defense lawyer indicated that this "gutted" his case.
  • Defendant later submitted medical records to the jury, indicating that the information concerning the inadmissible x-rays had been redacted.  Despite this representation, a reference to the x-rays was still present in the records in two different places.
  • The jury was given the exhibits after closing arguments and later asked a question about the x-rays that had been excluded by the court.
  • The trial court granted a new trial after the jury returned a verdict for the defendant.
  • The Alabama Supreme Court affirmed the trial judge’s order.

The Alabama court’s opinion has an extended discussion of why it was appropriate for the trial court to order a new trial despite the fact that it could not be proven that the jury ruled for the defendant by relying on the inadmissible evidence.   It also rejects the effort of the defendant to blame plaintiff’s counsel for failure to catch the inadmissible evidence in the medical records submitted into evidence by the defendant (the defendant represented to the trial court and thus plaintiff’s counsel that the inadmissible information had been redacted).

Was the conduct of the defense lawyers intentional or not?  I have no idea.  The result here appropriate either way, given the repeated references and the fact that documents actually went back to the jury room despite a representation that they were appropriately redacted.  Any other ruling would send a signal to lawyers in other cases to ignore evidentiary rulings they did not like.   I