M.C. v. Tallassee Rehab., P.C. (Ex parte Vanderwall.)

Decision Date30 September 2015
Docket Number1130036,1130041.
Parties Ex parte Kristopher VANDERWALL. (In re M.C. v. Tallassee Rehabilitation, P.C., and Kristopher Vanderwall). Kristopher Vanderwall v. M.C.
CourtAlabama Supreme Court

Robert V. Wood, Jr., and Nicole L. Schroer of Wilmer & Lee, P.A., Huntsville, for petitioner/appellant Kristopher Vanderwall.

Randy Myers and Frank H. Hawthorne, Jr., of Hawthorne & Myers, LLC, Montgomery, for respondent/appellee M.C.

MURDOCK

, Justice.

Kristopher Vanderwall has filed both an appeal and a petition for a writ of mandamus challenging orders of the Elmore Circuit Court in an action filed against him by M.C. We dismiss the appeal, and we deny Vanderwall's petition.

I. Facts

On November 12, 2009, M.C. had an appointment to receive physical therapy at Tallassee Rehabilitation, P.C. (Tallassee Rehab), pursuant to a referral by her physician for treatment of back pain. M.C. arrived at Tallassee Rehab around 8:30 or 9:00 a.m. and was seen by Vanderwall, a physical therapist, whom she had never met.

According to M.C., the following then occurred. Vanderwall took her to a room, where he instructed her to put on a gown. Vanderwall left the room and closed the door. M.C. took off her jacket and shirt and put on a gown. She did not take off her bra or her pants. Vanderwall returned to the room, unhooked M.C.'s bra and told her to lie on the table in the room; M.C. did as she was instructed, but, after she was on the table, Vanderwall started to move his hands over her body, removing her bra and the gown. Vanderwall then began to rub M.C.'s breasts, and he removed M.C.'s pants and panties and placed his fingers into her buttocks and genitals. In deposition testimony, M.C. testified that she was shocked and scared by Vanderwall's actions and that she did not know what to do.

Vanderwall testified that “any and all transactions and interactions” he had with M.C. on November 12, 2009, were “in connection with the rendition of physical therapy services.” He stated that his actions were within the standard of care for a physical therapist and that [n]othing inappropriate occurred during the delivery of physical therapy to [M.C.].” He also stated that the services he did in fact perform were conducted pursuant to an order he received from M.C.'s physician, Dr. Melvin Russell. Vanderwall testified that there was no therapy or medical reason for him to touch M.C.'s breasts or her genitals and that he did not do so.

M.C. alleges that Vanderwall has a pattern of this kind of behavior and that he molested at least two other women in 2009 while administering physical therapy. In 2010, those two women filed an action in the Elmore Circuit Court against Vanderwall and Tallassee Rehab alleging that Vanderwall had molested them.1

M.C. filed a complaint against Vanderwall and Tallassee Rehab in which she sought money damages based on a claim of assault and battery against Vanderwall and a claim of negligent or wanton hiring against Tallassee Rehab. Both defendants answered the complaint and denied the allegations. Along with the complaint, M.C. filed requests for discovery from Vanderwall. Included in the discovery requests were interrogatories 9 and 10, which provided:

“9. Has anyone complained to you that they were inappropriately touched by you while at Tallassee Rehab? If so, please identify every person.
“10. Has anyone complained to you or to any of your employers that they were inappropriately touched by you while at an employer's facility? If so, please identify said person.”

On August 30, 2010, Vanderwall filed objections to M.C.'s discovery requests. One of Vanderwall's objections was that interrogatories 9 and 10 were inappropriate because, Vanderwall asserted, the Alabama Medical Liability Act, § 6–5–480

et seq. and § 6–5–540 et seq., Ala.Code 1975 (“the AMLA”),2 which he argued applies, and specifically § 6–5–551, Ala.Code 1975, prohibits “conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.”

On January 14, 2011, M.C. filed a motion to compel discovery. In the motion, M.C. contended that [t]his case is not a medical malpractice case, but an assault and battery case alleging that [M.C.] was molested by Mr. Vanderwall.” Accordingly, M.C. argued, Vanderwall could not use the AMLA as a basis on which to refuse to answer M.C.'s interrogatories concerning other acts. Vanderwall responded with a motion for a protective order in which he argued that the AMLA did apply to M.C.'s action and that, therefore, under § 6–5–551

, he should not be obligated to respond to M.C.'s discovery requests that sought information about other acts.

On March 8, 2011, the trial court held a hearing on M.C.'s motion to compel discovery. Following the hearing, the parties submitted additional materials and arguments concerning the issue.

On January 6, 2012, Tallassee Rehab filed a “Petition and Motion” seeking a ruling from the trial court that M.C.'s action was governed by the AMLA. On January 26, 2012, Vanderwall filed a joinder in Tallassee Rehab's “Petition and Motion.” On February 8, 2012, M.C. filed a response in opposition to the motion. On April 6, 2012, the trial court held a hearing on the defendants' joint motion seeking a ruling that the action was governed by the AMLA. On April 7, 2012, the trial court entered an order allowing M.C. 14 days to amend her complaint to add a count seeking a judgment declaring that general tort-law principles pertaining to assault and battery and negligent or wanton hiring governed her claims for relief and that the AMLA was not the law that applied to her claims for relief against the defendants.

On April 20, 2012, M.C. filed an amended complaint in which she sought a judgment declaring “that the AMLA does not apply” to the claims she asserted against Vanderwall and Tallassee Rehab. The defendants filed answers to the amended complaint.

On November 13, 2012, M.C. filed a motion to dismiss her claim against Tallassee Rehab. The trial court entered an order on December 4, 2012, dismissing the claims against Tallassee Rehab with prejudice, and the case proceeded against only Vanderwall.

On April 19, 2013, M.C. filed a motion for a partial summary judgment as to her declaratory-judgment “claim”—i.e., a ruling that general tort-law principles governing assault and battery claims, rather than the AMLA, applied to her assault and battery claims against Vanderwall. Subsequently, on May 9, 2013, Vanderwall filed a motion for a partial summary judgment in his favor as to the same “claim.” That is, Vanderwall sought a decision by the trial court that the AMLA did apply to M.C.'s assault and battery claims against him.

On July 2, 2013, the trial court held a hearing on the motions for a partial summary judgment and on M.C.'s motion to compel discovery. On August 29, 2013, the trial court entered an order granting M.C.'s motion for a partial summary judgment, stating, in pertinent part:

“The Court finds that the Motion for Partial Summary Judgment filed on behalf of [M.C.] is due to be granted and the Court finds that the Alabama Medical Liability Act is not applicable to this case. It is hereby ORDERED and ADJUDGED that the said Motion for Partial Summary Judgment filed on behalf of the Plaintiff, [M.C.], is due to be and is hereby GRANTED, related to Count III, Declaratory Judgment Relief, only. The Court holds that under the facts of this case, none of the provisions of the Alabama Medical Liability Act, including, but not limited to § 6–5–551

, are applicable to this case.

“The Court further finds that this matter involves a controlling question of law as to which there are substantial grounds for a difference of opinion, that an immediate appeal from the Order would materially advance the ultimate termination of litigation, and that the appeal would avoid protracted and expensive litigation.3 The Court further makes a specific and express determination that there is no just reason for delay and that said judgment shall be entered as a final judgment pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure. This Order does not apply to any other Counts contained within the Plaintiff's Complaint.”

On the same day, the trial court entered an order on M.C.'s motion to compel discovery, and it provided, in pertinent part:

“This cause came before the Court for hearing on the Motion to Compel filed by [M.C.]. Based upon the Court's determination that the Alabama Medical Liability Act is not applicable to this case, the Court finds as follows:
“1. [Vanderwall] is hereby ordered to provide responses to Interrogatories 9 and 10 propounded by [M.C.], which seek complaints wherein other individuals have asserted that they were inappropriately touched by [Vanderwall], as well as the complainant's identity.”

Vanderwall appeals the partial summary judgment in favor of M.C. Vanderwall also petitions this Court for a writ of mandamus directing the trial court to vacate both the partial summary judgment for M.C. and its order granting M.C.'s motion to compel discovery of other acts.

II. Analysis
A. Vanderwall's Appeal (case no. 1130041)

It is incumbent upon us first to address the “vehicles” by which Vanderwall seeks appellate review of the trial court's orders. As noted, Vanderwall has filed an appeal from the partial summary judgment in favor of M.C., an order the trial court purportedly certified as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P

.4 Even though neither party has raised the issue of the appropriateness of the trial court's Rule 54(b) certification, the appropriateness of that certification implicates the fundamental issue of this Court's jurisdiction to entertain the appeal; it is therefore an issue we consider ex mero motu.

Summerlin v. Summerlin, 962 So.2d 170, 172 (Ala.2007) (determining ex mero motu that a Rule 54(b) certification was not appropriate under the facts of the case).

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