Jackson v. Pleasant Grove Health Care Center, 92-6163

• Decision Date: 04 January 1993
• Docket Number: No. 92-6163,92-6163
• Parties: Earnest H. JACKSON, Administrator of the Estate of Lena Russell, Deceased, Plaintiff-Appellant, v. PLEASANT GROVE HEALTH CARE CENTER, Beverly California Corporation d/b/a Pleasant Grove Health Care Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 692

980 F.2d 692

Earnest H. JACKSON, Administrator of the Estate of Lena

Russell, Deceased, Plaintiff-Appellant, v. PLEASANT GROVE HEALTH CARE CENTER, Beverly California

Corporation d/b/a Pleasant Grove Health Care

Center, Defendants-Appellees.

No. 92-6163.

United States Court of Appeals,

Eleventh Circuit.

Jan. 4, 1993.

J. Gusty Yearout, Don Lee Hall, Yearout Myers & Traylor, PC, Birmingham, Ala., for plaintiff-appellant.

Larry W. Harper, Brently Alan Tyra, Porterfield, Harper & Mills, P.A., Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before BIRCH, Circuit Judge, JOHNSON, Senior Circuit Judge, and THOMAS ^*, Senior District Judge.

JOHNSON, Senior Circuit Judge:

Earnest H. Jackson appeals the district court's entry of judgment notwithstanding the verdict in favor Pleasant Grove Health Care Center ("Pleasant Grove") after a jury returned a verdict in favor of Jackson for $1.3 million.

I. STATEMENT OF FACTS

Jackson is the administrator of the estate of Lena Russell. From February 7, 1984, until January 12, 1985, Russell was an intermediate care patient at Pleasant Grove. When Russell was admitted to Pleasant Grove, she was 70 years old and had been diagnosed as suffering from schizophrenia, mental retardation and hypertension. She required assistance with daily activities and at times was confused and disoriented. While at Pleasant Grove, Russell repeatedly left her room, and on at least six occasions, Russell actually left the premises.

Sometime between 5:00 and 5:30 a.m. on the morning of January 12, 1985, Russell left Pleasant Grove. Although some of the exits at Pleasant Grove are equipped with alarms, no alarm sounded on the morning that Russell left. The Pleasant Grove staff noted Russell's absence at 5:30 a.m., and immediately began searching the premises. At 8:00 a.m., after determining that Russell was no longer on the grounds, they contacted the Pleasant Grove Police Department, who began searching for Russell. The Police Department was especially concerned because Russell was ill-dressed for the cold--the temperature that day only reached 33 degrees and Russell was wearing a thin cotton dress and a light sweater. Despite assistance from the local rescue squad and civil defense department, the Police Department was unable to locate Russell.

At 5:00 p.m. John Pope phoned the Police Department to report that he had seen an elderly woman wearing a cotton dress at the far edge of his backyard. The police asked Pope to go keep an eye on her until they arrived, but by the time he returned to his backyard, the woman had disappeared. A large woods lay between Pope's backyard and Pleasant Grove, which Pope described as "untamed." After Pope's call, the police focused on the area around Pope's backyard, searching through the rough wooded area and bringing in a dog to track Russell. Although the dog was able to pick up a scent, the track ended at a blacktop road. Russell was never found.

On September 5, 1985, Jackson filed a petition for presumption of death, but after a hearing at which both Jackson and Pleasant Grove presented evidence, the probate court denied Jackson's motion, finding that Jackson had presented insufficient evidence of Russell's death. Jackson filed a second petition for presumption of death on March 14, 1990. Relying on Alabama's presumption of death statute, ¹ the probate court granted this petition and on August 13, 1990, issued letters of administration to Jackson as representative of the Russell's estate.

On August 28, 1990, Jackson filed this wrongful death action against Pleasant Grove in state court on behalf of Russell's estate. Pleasant Grove removed the case to federal court on diversity grounds. Prior to trial Pleasant Grove filed a motion in limine to bar the expected testimony of Jackson's nursing home expert, Clay Dean. Pleasant Grove contended that Dean was not qualified to testify as to the standard of care for nursing homes because he was not a "similarly situated health care provider" as required by the Alabama Medical Liability Act (the "Liability Act"). ² The district court denied the motion. During the course of trial, Pleasant Grove renewed its objection to Dean's expert qualifications twice, but each time the district court denied the motion.

After the jury returned a verdict awarding the plaintiff $1.3 million in damages, Pleasant Grove filed a motion for judgment notwithstanding the verdict ("JNOV") or, in the alternative, for a new trial. The district court granted Pleasant Grove's motion for JNOV, finding that Jackson's expert was not qualified under the Liability Act to testify as to the standard of care for nursing homes, and that his testimony had been improperly admitted. The district court held that when the expert's testimony was struck from the record, Jackson had failed to make out a prima facie case, and thus Pleasant Grove was entitled to JNOV. Alternatively, the district court held that the cumulative effect of Jackson's closing argument was overwhelmingly prejudicial, and thus warranted the granting of a new trial should the grant of JNOV be overturned on appeal.

II. STANDARD OF REVIEW

This Court reviews the grant of a motion for JNOV de novo, considering all the evidence "in the light and with all reasonable inferences most favorable to the party opposed to the motion." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). "[I]f there is substantial evidence opposed to the motion[ ], ... the motion[ ] should be denied and the case submitted to the jury." Id.

This Court generally reviews a district court's ruling on a motion for a new trial for abuse of discretion. When the district court grants the motion for a new trial, this Court's review is broader and the application of the abuse of discretion standard more stringent. Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.1984).

III. DISCUSSION

A. Pleasant Grove's motion for JNOV

To prevail in a wrongful death action against a nursing home such as Pleasant Grove, the Liability Act requires that Jackson establish (1) the appropriate standard of care, (2) that Pleasant Grove failed to comply with that standard of care, and (3) that Pleasant Grove's failure to comply proximately caused Russell's wrongful death. See Ala.Code § 6-5-542(2). The district court granted Pleasant Grove's motion for JNOV after finding that Jackson failed to establish (1) the appropriate standard of care and (2) that Pleasant Grove's failure to comply with the standard of care proximately caused Russell's death.

In cases that arise under the Liability Act, the plaintiff must ordinarily offer expert testimony as to the appropriate standard of care. ³ Rosemont, Inc. v. Marshall, 481 So.2d 1126, 1129 (Ala.1985); Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969). At trial, Jackson offered the expert testimony of Clay Dean to establish the standard of care owed by Pleasant Grove to Russell. During the course of the trial, Pleasant Grove unsuccessfully challenged Dean's qualifications as an expert three times. Nevertheless, after the jury returned its verdict in favor of Jackson, the district court determined that it was error to have admitted Dean's testimony. Without Dean's testimony, Jackson had failed to establish the appropriate standard of care. Accordingly, the district court held that it was bound to grant Pleasant Grove's motion for JNOV.

The district court erred in excluding Dean's testimony when ruling on the motion for JNOV. This Circuit has never considered the propriety of a district court granting a motion for JNOV by ruling that certain evidence presented at trial is inadmissible. However, the three Circuits that have considered the issue have all held that such an action is error. See Douglass v. Eaton Corp., 956 F.2d 1339, 1343 (6th Cir.1992); Sumitomo Bank v. Product Promotions, Inc., 717 F.2d 215, 218 (5th Cir.1983); Midcontinent Broadcasting Co. v. North Central Airlines, Inc., 471 F.2d 357, 358-59 (8th Cir.1973). See also 21 Charles A. Wright and Kenneth A. Graham, Jr., Federal Practice and Procedure § 5041, at 228-29 (1977) ("The judge cannot grant a directed verdict or judgment notwithstanding the verdict by ignoring evidence he has admitted on the ground that the admission was error."). But see Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110, 115-16 (3d Cir.) (dicta finding these cases unpersuasive), cert. denied, 484 U.S. 853, 108 S.Ct. 156, 98 L.Ed.2d 111 (1987).

We hold that a district court may not exclude previously admitted evidence when deciding a motion for JNOV. The rationale for prohibiting the district court from disregarding previously admitted evidence is reliance. If evidence is ruled inadmissible during the course of the trial, the plaintiff has the opportunity to introduce new evidence. However, when that evidence is ruled inadmissible in the context of deciding a motion for JNOV, the plaintiff, having relied on the evidence already introduced, is unable to remedy the situation. See Midcontinent, supra, 471 F.2d at 358-59. The course of proceedings below suggests that Jackson's reliance in this case was particularly great. Pleasant Grove challenged Dean's qualifications as a nursing home expert three times during trial. Three times the district court ruled that Dean was qualified. Had the district court ruled during trial that Dean's testimony was inadmissible, Jackson could have brought in another expert to testify as to the appropriate standard of care for nursing homes, thereby precluding Pleasant Grove's motion for JNOV. ⁴

The district court also held that JNOV was appropriate because Jackson had failed to show that Pleasant Grove's negligence had proximately caused Russell's death. In making that determination, the district court stated it was bound by our opinion in Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir.1982). In Daniels, the...