Gillis v. Frazier

• Decision Date: 01 August 2014
• Docket Number: 1120292,1121205.
• Citation: 214 So.3d 1127
• Parties: Frank GILLIS, M.D. v. Joey FRAZIER, as executor of the Estate of Florine Bryant, deceased.
• Court: Alabama Supreme Court

214 So.3d 1127

Frank GILLIS, M.D.

v.Joey FRAZIER, as executor of the Estate of Florine Bryant, deceased.

1120292

1121205.

Supreme Court of Alabama.

Aug. 1, 2014.

Randal H. Sellers, Sybil V. Newton, and L. Ben Morris of Starnes Davis Florie LLP, Birmingham, for appellant Frank Gillis, M.D.

Patrick C. Davidson of Adams, Umbach, Davidson & White, LLP, Auburn; and Paul A. Clark of Curry & Associates, P.C., Central City, Nebraska, for appellee Joey Frazier, as executor of the Estate of Florine Bryant, deceased.

Thomas H. Keene and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Medical Association of the State of Alabama, in support of the appellant.

MAIN, Justice.

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

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.

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 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 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, 116 S.Ct. 1589, 134 L.Ed.2d 809 (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 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 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 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 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

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