Mottershaw v. Ledbetter

• Decision Date: 08 November 2013
• Docket Number: 1110962.,1110959
• Citation: 148 So.3d 45
• Parties: Dr. Ann M. MOTTERSHAW v. Shannon LEDBETTER, as administrator of the ESTATE OF Venoria WOMACK, deceased. The Radiology Group, LLC v. Shannon Ledbetter, as administrator of the estate of Venoria Womack, deceased.
• Court: Alabama Supreme Court

148 So.3d 45

Dr. Ann M. MOTTERSHAW

v.Shannon LEDBETTER, as administrator of the ESTATE OF Venoria WOMACK, deceased.

The Radiology Group, LLC

v.Shannon Ledbetter, as administrator of the estate of Venoria Womack, deceased.

1110959

1110962.

Supreme Court of Alabama.

Nov. 8, 2013.

As Modified on Denial of Rehearing Jan. 17, 2014.

Jack B. Hinton, Jr., of Hinton & Herndon, Montgomery, for Dr. Ann M. Mottershaw; and James L. Martin, Eufaula, for The Radiology Group, LLC.

Leah O. Taylor and Rhonda P. Chambers of Taylor & Taylor, Birmingham, for appellee.

Opinion

BRYAN, Justice.

Dr. Ann M. Mottershaw and The Radiology Group, LLC, appeal separately from the trial court's order granting a motion for a new trial filed by the plaintiff, Shannon Ledbetter, as administrator of the estate of Venoria Womack, deceased. These appeals primarily concern whether the trial court exceeded its discretion in ordering a new trial based on the jury's exposure to certain evidence that the trial court had excluded by an order granting a motion in limine.

On May 11, 2007, Womack underwent a CT scan of her sinuses. Dr. Mottershaw, a radiologist employed by The Radiology Group, read the CT scan. Evidence at trial indicated that Dr. Mottershaw, in reading the CT scan, failed to detect a cancerous mass in Womack's sinuses. Two weeks later, on May 25, 2007, Womack underwent another CT scan. The radiologists who read that scan also failed to detect the mass in Womack's sinuses. Unlike Dr. Mottershaw, those radiologists were not employees of The Radiology Group. A few months later, on August 6, 2007, Womack underwent an MRI of her head. The radiologist who read the MRI detected the cancer in Womack's sinuses. Womack subsequently underwent treatment for her cancer at Shands Medical Center in Gainesville, Florida. However, on March 6, 2008, Womack died.

In April 2009, Ledbetter, as administrator of Womack's estate, sued various health-care providers, alleging medical malpractice and wrongful death. The complaint alleged that the defendants breached the applicable standard of care by failing to timely diagnose Womack's cancer. Among the defendants were Dr. Mottershaw and her employer, The Radiology Group. Eventually, all the defendants except Dr. Mottershaw and The Radiology Group were dismissed.

On September 6, 2011, Ledbetter filed a motion in limine seeking, among other things, to prevent reference to or presentation of any evidence indicating “[t]hat other health care providers [besides Dr. Mottershaw and The Radiology Group] allegedly failed to detect Venoria Womack's nasopharyngeal cancer.” The trial court granted the motion in limine insofar as it requested that restriction, among other restrictions not relevant here.

On October 3, 2011, the case against Dr. Mottershaw and The Radiology Group proceeded to trial. During opening statements, Dr. Mottershaw's attorney noted that Dr. Mottershaw had read the CT scan of May 11, 2007. Dr. Mottershaw's attorney then stated that “[t]wo weeks later there was another set of images done.” At that point, Ledbetter's attorney asked to approach the bench and an off-the-record discussion was held. During the trial, Dr. Mottershaw's attorney asked Dr. Kendall Jones, who provided expert testimony for Ledbetter:

“Q. Now, you got not only the May 11 images that we have talked about that were done by Dr. Mottershaw, but you also got other images from [Ledbetter's] lawyer, right?

“A. Yes.

“Q. And you got a study that was done two weeks later. May 25, right?”

At that point, Ledbetter's attorney asked to approach the bench, and the following discussion occurred outside the presence of the jury:

“MRS. TAYLOR [Ledbetter's attorney]: Your Honor, that reference to the May 25 [scan] is strictly in opposition to Your Honor's order on motion in limine. He has been instructed not to mention May 25 studies.

“He was instructed in the order on motion in limine, initially. He was instructed in the middle of opening statement. And here we go again. And we don't know what to say other than it's in blatant violation.

“MR. HINTON [Dr. Mottershaw's attorney]: Well, Judge, I don't recall being told don't talk about May 25.

“....

“THE COURT: I ruled that the May 25th stuff doesn't come in.

“MR. HINTON: Nothing about May 25 comes in?

“THE COURT: No.

“MR. HINTON: My case is completely gutted.

“THE COURT: ... [Y]our case is about whether there was malpractice committed when [Dr. Mottershaw] missed the stuff on ... May 11th.

“....

“THE COURT: ... The [May] 25th study gets in to accusing another doctor of missing something. That's not what we are here for.

“....

“THE COURT: ... The 25th is out, again.”

Later at trial, Dr. Mottershaw submitted a copy of Womack's medical records from Shands Medical Center, which was labeled as Defendant's Exhibit 7. Defendant's Exhibit 7, which was admitted without objection, contained information about the May 25 CT scan. Specifically, the records stated, in pertinent part:

“05/25/2007: She underwent a CT of the head at an outside facility. The report is unavailable for review, but on review of the actual images, there is a mass in the right nasopharynx. The neck was not imaged.

“....

“IMAGING REVIEW: Dr. [Jeffrey] Bennett reviewed an outside CT dated 05/25/2007. This shows a mass in the central nasopharynx and a large positive right retropharyngeal lymph node.”

After Defendant's Exhibit 7 was admitted, Ledbetter's attorney reminded the trial court that references to the May 25 CT scan in the exhibit needed to be redacted to comply with the trial court's order in limine:

“MRS. CHAMBERS [Ledbetter's attorney]: We need to make sure those records are redacted that you put in.

“....

“MRS. CHAMBERS: We've redacted ours.

“THE COURT: We've got to redact—Let's see.

“I wrote down th[at] Defense Exhibit 6 has got to be redacted.

“....

“THE COURT: And 7.

“....

“THE COURT: Now, Defense 6 and 7 are two that y'all need to look through to make sure they're redacted.”

Before closing arguments, Matt Griffith, an attorney for Dr. Mottershaw, told the trial court that, pursuant to the order granting the motion in limine, “we have redacted Defense Exhibit 5, 6, and 7.” However, the references to the May 25 CT scan were not redacted from Defendant's Exhibit 7.

After closing arguments, the trial court asked the court reporter if “the exhibits in the trial have been looked at by both sides” and whether “they are ready to go back.” The court reporter responded affirmatively. The trial court then asked whether “[b]oth sides have looked at those,” and the attorneys for both sides responded affirmatively. The case went to the jury on October 6, 2011. After deliberating for approximately 30 minutes, the jury sent a written question to the trial court: “Can we have a copy of the judge's instruction (charge) [a]nd what about the test from the 25th? ” (Emphasis added.) Up to that point, the parties and the trial court were unaware that the references to the May 25 CT scan had not been redacted from Defendant's Exhibit 7. In response to the question about “the test from the 25th,” the trial court answered: “All of the properly admitted exhibits have been provided to you.” After a few hours of deliberation, the jury returned a verdict in favor of Dr. Mottershaw and The Radiology Group. On October 31, 2001, the trial court entered a judgment on the jury verdict.

At some point after the jury returned its verdict, Ledbetter's attorney reviewed the exhibits that had been sent to the jury-deliberation room. Ledbetter's attorney then discovered that the two references to the May 25 CT scan in Defendant's Exhibit 7 had not been redacted despite the order granting the motion in limine.

Ledbetter moved for a new trial, asserting several grounds. Following a hearing, the trial court entered an order granting a new trial. After discussing the pertinent procedural history of the case, the order stated, in part:

“[Ledbetter] contends this unredacted evidence was considered by the jury, and that it was prejudicial to [Ledbetter] in the jury's deliberations that resulted in a verdict for [Dr. Mottershaw and The Radiology Group]. It is a well-settled principle of law, and, further, it is fundamental to a fair trial, that jurors should consider only the evidence properly admitted at trial. It is error for a jury to receive an exhibit not admitted into evidence. Ex parte Troha, 462 So.2d 953, 954 (Ala.1984).... Although the Court received Defendant's Exhibit 7 into evidence, it excluded the evidence within that exhibit of the May 25th CT scan. Thus, the jury's receipt of the unredacted Exhibit that contained evidence that was never admitted into evidence by the Court was error.

“The Court recognizes that not every instance of juror misconduct requires or warrants a new trial. Reed v. State, 547 So.2d 596 (Ala.1989). ‘Each case involving juror misconduct must be judged by its own peculiar facts, and the conduct, when found to be prejudicial, will require a reversal.’ Dawson v. State, 710 So.2d 472, 474 (Ala.1997). As a general matter, issues of jury misconduct arise where a juror allegedly is exposed to outside influences such as extraneous evidence, reviews unadmitted exhibits, or engages in unauthorized communications. There is no allegation of juror misconduct per se in this case.... The allegation is that the jury was improperly exposed to extraneous material in the medical records that was ordered to be redacted.

“... [C]ases involving the introduction of unadmitted exhibits warrant a new trial when one of two requirements is met: (1) the extraneous material is of such a nature as to constitute prejudice as a matter of law; or (2) the jury verdict is shown to have been actually prejudiced by the extraneous material. Ex parte Apicella, 809 So.2d 865, 870 (Ala.2001).... Having considered the specific circumstances of this case, the Court concludes that the jury's exposure to and consideration of extraneous information in the form of the unredacted medical records which evidenced the May 25th scan

...