Ex parte Burch

• Decision Date: 19 February 1999
• Citation: 730 So.2d 143
• Parties: Ex parte Dr. Andrew BURCH. (Re Daniel W. Graham, Sr., as administrator of the estate of Daniel Wilbur Graham, Jr., deceased v. Springhill Memorial Hospital et al.)
• Court: Alabama Supreme Court

730 So.2d 143

Ex parte Dr. Andrew BURCH.

(Re Daniel W. Graham, Sr., as administrator of the estate of Daniel Wilbur Graham, Jr., deceased v. Springhill Memorial Hospital et al.)

1971232.

Supreme Court of Alabama.

February 19, 1999.

Norman E. Waldrop, Jr., and Broox G. Holmes, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for petitioner.

Michael D. Ermert of Hare, Wynn, Newell & Newton, Birmingham, for respondent Daniel W. Graham, Sr.

Philip H. Partridge of Brown, Hudgens, P.C., Mobile, for respondent Springhill Memorial Hosp.

Stanley Rodgers and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, amicus curiae Hospital Auth. of the City of Huntsville, Alabama d/b/a Huntsville Hosp., in support of the petitioner.

Thomas H. Keene and Ben C. Wilson of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, amicus curiae Medical Ass'n of the State of Alabama, in support of the petitioner.

Amy McRae, Mobile, amicus curiae Mobile Infirmary Medical Center, in support of the petitioner.

MADDOX, Justice.

Dr. Andrew Burch, the defendant in a wrongful-death action pending in the Circuit Court of Mobile County, petitions for a writ of mandamus directing the trial court to grant his motion in limine to exclude certain evidence. The trial court partially denied the motion in limine, by which Dr. Burch had sought an order prohibiting the use of certain material and the testimony of certain proposed witnesses concerning matters that had been discussed at a meeting of a medical-review committee.

Facts and Procedural History

Because this matter comes before this Court on a petition for a writ of mandamus, we do not have before us any findings of fact. Nevertheless, a brief summary of certain facts, which appear to be uncontested, is essential to an understanding of the issue presented.

Daniel W. Graham, Jr., was taken to the emergency room of Springhill Memorial Hospital on the night of August 29, 1994, having been stabbed twice in the chest. The emergency-room staff called in Dr. Burch, a thoracic surgeon, and Dr. Burch ordered that the patient be admitted to the hospital's intensive-care unit. He decided that surgery was not required at that time. By midmorning on the following day, the patient's condition had apparently deteriorated, and there appears to have been some communication between the staff of the intensive-care unit and Dr. Burch that resulted in surgery being scheduled for noon. However, the patient's condition apparently continued to worsen, and he died early that afternoon despite the efforts of Dr. Burch and the hospital staff.

On September 19, 1994, the hospital's Surgery Committee held a special meeting for the purpose of reviewing the case of Daniel W. Graham, Jr., and evaluating Dr. Burch's performance in that case. Dr. Burch appeared before the committee and discussed his reasons for making the decisions he made in the course of treatment.

On July 17, 1995, the deceased's father, Daniel W. Graham, Sr., filed a wrongful-death complaint, alleging that Dr. Burch and the hospital had negligently caused his son's death. During the course of discovery, the litigation strategy of the hospital and that of Dr. Burch apparently diverged. Without delving too deeply into the details of the disagreement between these two defendants, we note that it appears the hospital and Dr. Burch have differing views on whether certain information on the patient's status was communicated to Dr. Burch by hospital personnel during the morning of the day the patient died. There seems also to be some disagreement as to when Dr. Burch decided surgery was needed. As a result, the hospital indicated it intended to call as witnesses several persons who had participated in the September 19 meeting of the hospital's Surgery Committee, including Dr. James Spires, the chairman of the committee.

In response to the hospital's decision to call those witnesses, Dr. Burch filed a motion in limine, seeking an order blocking the introduction of testimony or other evidence relating to that meeting. He cited § 22-21-8, Ala.Code 1975. The trial court conducted hearings on the matter and ruled that the minutes of the September 19 meeting were inadmissible. However, the trial court also ruled that Dr. Spires would be allowed to testify as to what Dr. Burch told the committee, to the extent that Dr. Burch's deposition testimony (which had previously been taken and in which Dr. Burch had discussed the reasons he made the decisions he did regarding the patient's treatment) and his testimony at trial were inconsistent with Dr. Spires's recollection of Dr. Burch's comments during the meeting. The trial court deferred ruling on whether it would allow the testimony of other witnesses who had participated in the September 19 meeting. This petition followed.

Discussion

We must first determine whether the issue Dr. Burch raises is properly before this Court. In the normal case where a party may, under Rule 5, Ala. R.App. P., petition for permission to appeal, this Court will not entertain a petition for a writ of mandamus, because such a petition may not substitute for an appeal. See Ex parte Empire Fire & Marine Insurance Co., 720 So.2d 893 (Ala. 1998).

In Ex parte Army Aviation Center Federal Credit Union, 477 So.2d 379, 381 (Ala. 1985), this Court held that "an order denying a motion in limine is reviewable on appeal, [and, as a result] a mandamus petition seeking to have that order vacated cannot be granted." At first blush, that holding would seem to endorse a blanket rule that no mandamus petition arising from the denial of a motion in limine will be considered by this Court. That holding in Army Aviation Center, however, was based on Ex parte Houston County, 435 So.2d 1268 (Ala.1983), in which this Court had engaged in a more detailed analysis of the nature of orders denying motions in limine and had seemed to recognize distinctions between so-called "preliminary" and "absolute" denials. This Court held in Houston County:

"In some cases an order granting a motion in limine is not absolute, but only preliminary, and the non-moving party may offer the disputed evidence at trial and, if the other party objects and the court sustains the objection, the party offering the evidence may appeal from this ruling. See C. Gamble, [The Motion in Limine: A Procedure That Has Come of Age, 33 Ala. L.Rev. 1, 16 (1981)]. The order entered below appears to be of the preliminary sort allowing offers at trial, because it ends with the words `without further order of this Court'

"In view of what we have said, we deem it appropriate for the trial court to reconsider the order granting the motion in limine. However, we are not inclined to issue the writ of mandamus in this discretionary area of evidence when the county has a remedy by appeal."

435 So.2d at 1271. A reasonable reading of Houston County might lead one to conclude that when a denial of a motion in limine is "preliminary," as the denial was in that case, then the only appropriate method of challenging that order is an appeal. That reading of the case would, however, leave unanswered the question whether an "absolute" denial of a motion in limine might appropriately give rise to a mandamus petition.

We need not further consider that question, however. Assuming that this Court's cases stand for the proposition that a mandamus petition is never the appropriate method of challenging the denial of a motion in limine, we nonetheless conclude that it is appropriate for this Court to consider this present matter, because this Court has recognized that it has the discretion to treat a mandamus petition like this one as being, in reality, a petition for permission to appeal pursuant to Rule 5, Ala. R.App. P. In Mashner v. Pennington, 729 So.2d 262 (Ala.1998), for example, the defendant, a chiropractor, had specially averred in his answer that the forum non conveniens provisions of the Alabama Medical Liability Act applied in that case. The trial court held that they did not, and the defendant petitioned for a writ of mandamus directing the trial court to apply the provisions of the Act. This Court held that the defendant should have filed a Rule 5 petition for permission to appeal. However, this Court treated the mandamus petition as a Rule 5 petition and granted permission to appeal. It went on to consider the issues presented, ultimately concluding that the Act did apply and remanding for further proceedings.

Similarly, we have occasionally treated notices of appeal as being, in reality, petitions for the writ of mandamus. See, e.g., Morrison Restaurants, Inc. v. Homestead Village of Fairhope, Ltd., 710 So.2d 905 (Ala.1998).

Our Rules of Appellate Procedure provide the guidelines parties must follow in bringing cases or issues to this Court for review. Rule 5 governs petitions for permission to file interlocutory appeals, and Rule 21 governs petitions for the writ of mandamus. In interpreting and applying those rules, however, we must be mindful of the policy established by Rule 1:

"[These rules] shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits."

There is no bright-line test for determining when this Court will treat a particular filing as a mandamus petition and when it will treat it as a notice of appeal.

In this present case, the trial court denied, in part, Dr. Burch's motion in limine seeking to have Dr. Spires's testimony excluded. The trial court reserved ruling on the remaining portions of Dr. Burch's motion, pending resolution of this matter by this Court. At the close of the trial court's hearing on the motion in limine, the following exchange took place:

"The Court: All right. Let me just say this: It is not—I mean, I don't like letting in the minutes or the testimony, rather, of the peer review committee. But I am going to do it with respect to alleged

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