October 2010 - Alabama Defense Lawyers Association

Transcription

alabama defense lawyers association
October 2010 • Vol. 26 • No. 2
Fall Meeting
October 7-10, Emerald Grande, Destin
Deposition Boot Camp 2011
March 14-15, 2011 / Cumberland School of Law
Annual Meeting
June 16-19, 2011 / Sandestin Beach Resort, Baytowne
Alabama Defense Lawyers Association
1
2
Alabama Defense Lawyers Association Journal
OFFICERS
President
Patrick L. W. Sefton
Sasser Sefton Tipton & Davis, P. C.
P O Box 242127
Montgomery, AL 36124-2127
334-532-3400
[email protected]
President-Elect
David K. Howard
Carr Allison
212 South Cedar St
Florence, AL 35630
256-718-6040
[email protected]
Secretary Treasurer
Melody Hurdle Eagan
Lightfoot, Franklin & White
400 20th St North
Birmingham, AL 35203
205-581-0700
[email protected]
BOARD OF DIRECTORS
District I Directors
H. Edgar Howard
Gadsden
District II Directors
Neal Dewitt Moore, III
Birmingham
District III Directors
Stanley A. Martin
Opelika
District IV Directors
Joseph Jackson Minus, Jr.
Mobile
William L. Middleton
Decatur
W. Dudley Motlow
Birmingham
Robert C. Ward
Montgomery
James L. Lampkin
Mobile
Claude E. Hundley, III
Huntsville
R. Thomas Warburton
Birmingham
Christopher W. Weller
Montgomery
Annie J. Dike
Mobile
DRI State Representative
R. Bruce Barze, Jr.
Balch & Bingham
P O Box 306
Birmingham, AL 35201-0306
205-251-8100
[email protected]
President Young Lawyers Section
William R. Lunsford
Maynard Cooper & Gayle
655 Gallatin Street
Huntsville, AL 35801
256-551-0171
[email protected]
Immediate Past President
H. Harold Stephens
Bradley Arant Boult Cummings LLP
200 Clinton Ave. W, Ste 900
256-517-5100
[email protected]
Edwin K. Livingston, Executive Vice President; Joana S. Ellis, Deputy Executive Vice President
4269 Lomac Street, Montgomery, AL 36106
PAST PRESIDENTS
Thomas F. Parker
James E. Clark
Paul W. Brock
Alto V. Lee, III
H. R. Burnham
Clarence Simmons, Jr.
Bibb Allen
Ralph D. Gaines, Jr.
W. Boyd Reeves
Edgar M. Elliott, III
Roy W. Scholl, Jr.
Donald F. Pierce
Harold W. Albritton, III
Broox G. Holmes
Thomas W. Christian
Harold F. Herring
Stancil R. Starnes
Robert S. Lamar, Jr.
Huey D. McInish
Curtis Wright
William C. Knight, Jr.
Joe C. Cassady
Bert S. Nettles
Stanley A. Cash
J. L. Klinefelter
H. E. Nix, Jr.
A. Danner Frazer, Jr.
Eugene P. Stutts
Davis Carr
Richard S. Manley
Jack W. Torbert
Ollie L. Blan, Jr.
Wade H. Baxley
Carol Ann Smith
Charles A. Stewart, III
Alex L. Holtsford, Jr.
Jack Janecky
Henry T. Morrissette
Samuel H. Franklin
Jack W. Torbert, Jr.
William J. Gamble
R. Alan Alexander
R. Bruce Barze, Jr.
Helen Johnson Alford
H. Harold Stephens
3
Contents
The President’s Message. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
From the Executive Vice President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
From the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
President’s Message - Young Lawyer’s Section. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10
From the DRI State Representative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Gross Reality of Evolving Age Discrimination Laws: An Analysis
of the Supreme Court Case of Gross v. FBL Financial Services, Inc. . . . . . . . . . . . . . . 12-14
By J. Day Peake III
From Terry to Today: An Examination of the Contours of the
“Special Employer” Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-19
By Christie Strange, Esq.
Tips For Young Lawyers: Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-24
By Michael E. Upchurch
2010 Annual Session. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-30
The Role of the Motion to Strike in Summary-Judgment Procedure. . . . . . . . . . . . . 32-39
By William E. Shreve, Jr.
The Eleventh Circuit Giveth, Taketh Away and Giveth Again. . . . . . . . . . . . . . . . . . . 40-41
By Joshua H. Threadcraft, Esq.
Waiver of Alabama’s Psychotherapist-Patient Privilege through
of Claims for Specific Mental Disorders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42-46
By Patrick W. Franklin and Neal D. Moore, III
Among the Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Report from the Amicus Curiae Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48-49
By Sharon D. Stuart
ADLA Welcomes New Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ADLA Membership Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
DRI Membership Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4
Message From The President
The Associate had been at the firm less than six months.
When he arrived at work early one morning he noticed on
his desk a slick brochure from some organization he had
never heard of before with a fancy hotel pictured on the
front. There was a sticky note attached to the brochure
with a note from the senior partner of the firm. The note
simply said “see me.” The associate was somewhat alarmed
and wondered if this note was supposed to be affixed to
the brief he had left the partner the night before. It was the
Associate’s first brief and his biggest fear was that the partner would realize that the firm had made a big mistake in
hiring him. The partner normally didn’t arrive at the office
until much later in the morning and the Associate knew
when he arrived because the partner generally greeted everyone in the office as he walked down the hall towards
his office.
The Associate walked into the partner’s office. The partner had not yet read the brief but told the Associate he
would get with him in a few days because he had been
granted an extension to file the brief (the Associate wished
he would have been told that yesterday or he wouldn’t have
stayed at the office until midnight the night before). The
Associate nervously reminded the partner that he had asked
to see him. “Oh yeah, I can’t remember if you have signed
up to be a member of ADLA.” The Associate responded
with a puzzled look. The partner knew the Associate didn’t
have a clue (on a number of levels). The partner patiently
explained: “ADLA is the organization for everybody who
does defense work.” The Associate was told to see the office manager and get signed up. As he was walking out of
the partner’s office, the partner said “Oh, I nearly forgot,
I think I left you the brochure for the summer meeting
down at the beach. Do you think you can cover that?”
Before the Associate could answer, the partner said, “And,
take your wife and the firm will pay for it.” The Associate
quickly responded with a slight grin. “Sure, I think I can fit
it in my schedule.” Later that night, the Associate told his
wife about the events of the day including the invitation to
the beach from the senior partner. The wife said, “I think
I like this defense lawyer thing.”
If you haven’t already figured it out, the Associate in that
story was me a little more than 14 years ago and the partner was my law partner today, Robert Sasser. However, in a
very real sense the Associate is every Associate in your firm.
The partner is you. I urge you to be the encouraging voice
Patrick L. W. Sefton
President
to your firm’ s young lawyers to get involved in ADLA.
Since my first ADLA meeting in 1997, I have not missed
a summer meeting. My wife Anne and I have been blessed
with four children and they have not missed a single meeting either. In fact, they usually remind me to register for
the meeting every year! Without the encouragement to get
involved, I probably would never have discovered ADLA.
I was honored to be selected as President of ADLA this
year which is the reason I am writing this article.
ADLA is not only THE organization every defense lawyer in Alabama should join but in my opinion is the pioneer of Alabama legal organizations that encourage family
participation. Besides my faith, nothing is more important
to me than my family. I quickly recognized ADLA’s commitment to helping lawyers blend their professional development with family since every major meeting welcomes
children. If you are not already a member of ADLA and
are reading this article online or in our magazine, I hope
you will consider joining ADLA today. Besides the great
seminars that encourage family social activities, ADLA
is the voice of the defense bar in Alabama. We keep our
members apprised of the latest developments in law and
Continued on page 8
5
From The Executive Vice President
Those who attended the Annual Meeting this
past June, specifically the Saturday evening dinner,
heard some very overblown and exaggerated compliments given to Louise and me at a surprise retirement
“roast”. Those attending also witnessed how speechless
we both were – our surprise was genuine; we didn’t
have a clue it was coming. Well, I am just about as
speechless now as I write my last column as your Executive VP. Many very nice things were said and done
for us in recognition of our contributions to ADLA,
but of them all the creation of the “Livingston Award”
was the most touching and humbling. Recognizing
an ADLA member each year for service and dedication to the Association by presenting an award bearing
our name is the ultimate compliment, and one we will
cherish forever.
Together, over the past 21 years, we have seen this
association grow from about 400 members, meeting
once a year, to three times that size, now with two
meetings, a trial academy, and a deposition boot camp
each year; and on occasion we also offer a ski trip or
cruise. Currently, we have student sections in all three
of the accredited law schools in Alabama! We have developed a long and strong relationship with DRI that
is mutually beneficial, and we are proud to be one of
the largest state defense associations in the country.
Despite the credit and accolades directed towards
Louise and me, it is you, the ADLA members, who
deserve the credit for ADLA’s successes. A non-profit
association is only as strong as its voluntary leaders
and the support of its members, and ADLA has been
blessed and is now blessed with both. Look at the
past presidents listed on the leadership page of each
ADLA Journal, and the board members listed in each
issue. See how many have become or are now in leadership positions in DRI or the other national and international defense associations, as officers, directors,
committee chairs or vice-chairs. See how many ADLA
members have been or are now leaders of the Alabama
State Bar – president, Bar commissioners, section
leaders. ADLA is strong because of your dedication
and support of it. It is a professional association dedicated to improving our civil justice system and serving
6
Edwin K. Livingston
Executive Vice President
its members, and your membership and support are
the glue that keeps it strong.
On behalf of Louise and myself, we thank you
for the privilege of working with you and for you.
Hopefully, the meetings, ski trips and cruises we have
planned have provided not only useful CLE, but also
opportunities to relieve the daily stress of lawyering
and share fun times with colleagues, their spouses
and children. We treasure the many friends we have
made through this association, and look forward to
maintaining those friendships in the future. We are
truly blessed to have had the opportunities afforded
us through association with our ADLA family, and
we will be forever grateful for those memories already made and look forward to making more memories at future ADLA
events!
Louise
Livingston
Ed Livingston (and Louise)
Honorary Lifetime Members ADLA Board of Directors
By Resolution of the Board of Directors, June 19, 2010
From The Editor
It seems like yesterday that we were publishing the
Spring 2010 Journal. At times I wonder if time speeds
up as one gets older. It seems that a year flies by much
quicker today than it did when I started as Editor of
the Journal.
I want to take an opportunity to promote the upcoming 2011 Deposition Bootcamp. I have assumed
the responsibility as Director of the Bootcamp and we
will be holding it at Cumberland again on March 1415, 2011. Once we have more specific details a notice will be sent to all members. I encourage you to
send the younger lawyers in your firm to this program.
They will be able to obtain a year’s CLE in a couple of
days. The faculty consists of volunteers from our organization. If you are interested in serving as a faculty
member, please contact Joana, Ed or me. We believe
that the Deposition Bootcamp provides invaluable
hands-on experience for the participants.
In this volume of the Journal, we have an article
from Joshua Threadcraft updating the current state of
diversity removals based upon several new Eleventh
Circuit opinions. Christie Strange prepared an article
addressing the special employer defense. Day Peake
wrote an article addressing age discrimination law.
William Shreve prepared an article addressing motions
to strike in summary judgment procedure. Neal Moore
and Patrick Franklin contributed an article addressing
Alabama’s psychotherapist-patient privilege. We appreciate the contributions from all of the authors.
We will add a new feature in the Spring 2011 Journal: Recent Significant Defense Wins/Results. If you
have achieved a favorable defense verdict or result that
you would like to share, submit it to us with a short
summary of the case (and photo if you like) and we
will publish it in the next issue.
If you have an idea, please give consideration to taking the time to prepare an article for publication. The
deadline for submission of articles for the Spring Journal is February 1, 2011. If you have an idea for an article that you would like to submit, please contact me.
I will need a short description of the article you would
like to submit for consideration. You can contact me
at [email protected].
James W. Lampkin II
Editor
7
EDITORIAL BOARD
Editor
James W. Lampkin II, Mobile
W. H. Albritton IV
Birmingham
Douglas Warren Fink
Mobile
Fred M. Haston III
Birmingham
William L. Lee IV
Dothan, AL
Bryan O. Balogh
Birmingham
Jeffrey M. Grantham
Birmingham
Alex L. Holtsford Jr.
Montgomery
Taylor T. Perry Jr.
Demopolis
William H. Brooks
Birmingham
Anthony C. Harlow
Birmingham
Allan Sidney Jones
Birmingham
David Wooten Proctor
Birmingham
Joana S. Ellis
Montgomery
P. Richard Hartley
Greenville
R. Brooke Lawson
Montgomery
H. Harold Stephens
Huntsville
Message From The President – Continued
policy affecting your practice. ADLA also offers the highest quality training programs for young lawyers every year
with our Deposition Boot Camp and Trial Academy. Finally, ADLA provides a means for members to exchange
information about expert witnesses through our expert
database and email expert inquiry program. If you haven’t
figured it out, my emphasis as President this year is to increase our membership and participation among lawyers
under the age of 30 (The Associate in your firm!). Please
join me in this effort by encouraging the young lawyers in
your office to not only join ADLA but actively participate.
My participation in ADLA has added so much to my law
practice. The friendships I have developed through ADLA
are the highlight of my professional career so far.
It is the phenomenal experience I have enjoyed as a
member of ADLA that made me say yes to serving on the
Board and as an officer in ADLA. I hope that this year’s
8
ADLA leadership can continue the fine tradition of so
many before us. While on that subject, I have big shoes
to fill following Harold Stephens and Helen Alford as
the two most recent past Presidents. Thanks Harold and
Helen for your leadership! I would also be remiss if I did
not personally take the time to thank Ed and Louise Livingston for their tremendous service as Executive Director
(Louise is the Executive to the Executive Director). If you
have not already heard, Ed and Louise are retiring effective
at the end of this year. We are thankful Ed will continue to
consult with ADLA on the planning of our meetings. At
the summer meeting, Ed and Louise were also appointed
lifetime members of ADLA’s Board of Directors. We look
forward to their continued active participation in ADLA
for years to come. ADLA is the fine organization it is today
due to their unwavering commitment to the betterment of
ADLA.
President’s Message — Young Lawyers Section
The ADLA Young Lawyer’s Section is off to another great
year. This year, I am both humbled and excited to serve with
a Young Lawyers’ Board of Directors consisting of 15 young
lawyers from across the State who epitomize the best of everything that ADLA has to offer.
Continuing its strong track record of excellence, the Annual Bibb Allen Memorial Trial Academy was held on August
12-13, 2010 at Cumberland School of Law. The 28 Trial
Academy participants spent 2 days giving opening and closing statements and completing witness examinations before
an outstanding panel of 31 ADLA members as well as the
Honorable Teresa T. Pulliam. We especially appreciate the
efforts of Lindsay Reese, Sandy Hooper, and Lisa Kennedy
(Lindsay’s legal secretary) who were instrumental in organizing this year’s Trial Academy as well as those ADLA members
who served as faculty for this event. The Trial Academy is one
of the few opportunities for young lawyers to gain this type
Bill Lunsford
Young Lawyers President
Continued on page 10
YLS Officers
President
William R. Lunsford, Esq.
Maynard Cooper & Gale PC
655 Gallatin Street
[email protected]
President-Elect
M. Todd Lowther, Esq.
Balch & Bingham LLP
P O Box 306
[email protected]
Secretary
John P. Browning, Esq.
Burr & Forman LLP
P O Box 2287
Mobile, AL 36652-2287
[email protected]
Treasurer
Dustin R. Byrd, Esq.
Ramsey Baxley & McDougle
P O Drawer 1486
Dothan, AL 36302-1486
[email protected]
YLS BOARD of Directors
District I
Robert N. Bailey, II, Esq.
Lanier Ford Shaver & Payne
P O Box 2087
[email protected]
District II
Enrique J. Gimenez, Esq.
Lightfoot Franklin & White LLC
400 20th St North
[email protected]
Matthew B. Reeves, Esq.
Sirote & Permutt PC
P O Box 18248
Huntsville, AL 35804-8248
[email protected]
J. Bennett White, Esq.
Starnes Davis Florie LLP
P O Box 598512
[email protected]
Benjamin L. McArthur, Esq.
200 Clinton Avenue, West, Ste 900
Huntsville, AL 35801-4933
[email protected]
J. Houston Smith, III, Esq.
Balch & Bingham LLP
P O Box 306
[email protected]
District III
Bethany Bolger, Esq.
Rushton Stakely Johnston &
Garrett PA
P. O. Box 270
[email protected]
Brooke E. Reid, Esq.
Ball Ball Matthews & Novak PA
P O Box 2148
Montgomery, AL 36102
[email protected]
William T. Ashley, III, Esq.
Webster Henry Lyons White
Bradwell & Black PC
P O Box 239
[email protected]
District IV
Beth Lee Liles, Esq.
Ferguson Frost & Dodson LLP
P O Box 430189
[email protected]
D. Kirby Howard, Jr., Esq.
Delashmet & Marchand PC
P O Box 2047
Mobile, AL 36652-2047
[email protected]
Thomas C. Atchison, Esq.
Gamble Gamble & Calame LLC
P O Box 345
Selma, AL 36702-0345
[email protected]
9
President’s Message — Young Lawyers Section – Continued
of experience and training without traveling out of state. As
the young lawyers who have participated in this event can attest, this is a “must” for any young defense lawyer looking to
improve his or her trial skills.
We are very excited to announce the formation of our third
ADLA law school chapter at the Thomas Goode Jones School
of Law in Montgomery. This new chapter is the result of
many months of hard work by Joana, ADLA’s Excutive Assistant Leigh Stinebaugh, and several members of the Jones Law
School administration. The ADLA student chapter at Jones
has already enrolled 46 new members and, by all accounts,
will continue to grow as more students learn of this new chapter. The first meeting of the Jones ADLA student chapter will
be held on October 19, 2010. The chapter’s inaugural president is second-year law student, Joseph VanZandt. We greatly appreciate Joseph’s assistance in forming the new chapter as
well as the assistance of SBA President Chad Smith.
With the beginning of a new student chapter at Jones, the
Young Lawyers’ Board has decided to continue to focus on
the growth and development of our 2 existing student chapters at Alabama and Cumberland as well as this new chapter
at Jones. There can be no question that the future member-
10
ship of ADLA is dependent, in large part, upon the future
members of those students currently enrolled in Alabama’s
law schools. Any investment we can make in the law schools
throughout the state will pay dividends in the future of our
organization. There will be several opportunities throughout
the year for our members to provide support to our student
chapters through their meetings and annual events. If you
are interested in assisting with our student chapters, please
contact me or one of our board members whose contact information is included in the Journal.
In closing, I wanted to make an early plug for the ADLA
Annual Meeting to be held in June of 2011. The Annual
Meeting presents the rare chance for us to meet as a group
and hear a qualified panel of speakers on topics of great interest and importance for our practices at a great venue. In
the immortal words of my fellow Huntsvillian and viral video
star Antoine Dodson, “y’all need to [bring] your kids, [bring]
your wife and [bring] your husband. . . We’re lookin’ for you.
. . . I’m lettin’ you know now” that you need to make plans to
attend our Annual Meeting in June. Hope to see you there!
Bill Lunsford
From The DRI State Representative
It is my pleasure to serve as your DRI State Representative. The
ADLA continues to be recognized within DRI circles as one of the
premier state defense organizations in the country. I attribute much
of this success to the leadership and hard work of Ed and Louise
Livingston. As you know, Ed is retiring this year, and I want to take
this opportunity to say how much I have enjoyed my friendship and
work with Ed and Louise over the last 15 years. I look forward to
working with Joana Ellis, who will do a great job for our Association.
ADLA members have always been very strong supporters of DRI,
and my main goal is to help us continue our strong showing with
DRI. I am also here to help you with any needs or questions you
may have regarding DRI. As of this writing, we have about 989
DRI members in Alabama, and there are approximately 1188 ADLA
members, so a number of you have not yet joined DRI. If you are
not a DRI member, I heartily encourage you to join DRI to enhance
your practice and visibility. If you have never been a DRI member,
you are eligible for a free one-year membership.
Most of you are familiar with the numerous, excellent DRI programs and seminars put on throughout the year. A list of them is
available at http://www.dri.org/open/SeminarListing.aspx. During
these challenging economic times, marketing is more important
than ever. There are few better opportunities for networking and
top-notch CLE than DRI seminars (other than the ADLA!).
Speaking of great opportunities, the Annual Meeting in San Diego is just around the corner (October 20-24). The meeting will be
held at the San Diego Marriott Hotel & Marina. As I write this article, we have 44 DRI members registered to attend the meeting from
Alabama. That is a great showing, but is still short of our historic
numbers. The Annual Meeting will have its usual great opportunities for CLE, networking, and social activities. Meeting highlights
include Marcus Luttrell, Navy Seal, lone survivor and compelling
author; Soledad O'Brien, CNN special correspondent and powerful
advocate of mentoring young people; Matt Miller, author, columnist
and public radio host of Left, Right & Center; and Mara Liasson,
political correspondent for NPR and contributor at Fox News Channel. We also will have a DRI Southeast Regional Meeting during
the Annual Meeting. Representatives from Georgia, Florida, and
Alabama will be in attendance, along with our Regional Director,
Evelyn Fletcher Davis, and other directors and officers of DRI.
In April, the Southeastern Region (Alabama, Florida, Georgia)
will hold a joint DRI regional meeting with our colleagues in the
Southern Region (Kentucky, Mississippi, Tennessee). ADLA officers
and directors will be in attendance at that meeting. I hope that our
planning at this meeting will result in additional opportunities for
networking and exchange between defense lawyers in Alabama and
these other five states.
I hope by now you have had an opportunity to check out DRI’s
new website. If not, I encourage you to browse the site and experiAlabama Defense Lawyers Association
R. Bruce Barze
Alabama DRI Representative
ence its new look and feel. The DRI Membership Directory is now
publicly accessible. The entire legal and corporate community has
access to this valuable real-time referral resource. More than ever,
corporations and law firms alike will utilize the directory to refer
business and identify counsel that best suit their needs. While other
legal directories may charge substantial listing fees, the DRI Membership Directory is offered to its members as a highly-valued member benefit. Now is the time to take advantage of this opportunity, at
no cost, to raise your visibility and build your practice! It only takes
a few minutes to get connected to colleagues worldwide. Visit http://
www.dri.org and follow these simple steps:
1. Click on the Member Login button in the upper right corner
of the home page.
2. Click on My Account/Profile at the upper left corner of the
screen.
3. Under Profile Areas use the drop-down menu to select Professional Info.
4. Scroll to Member Bio and Firm Information -- you can simply paste your firm and biographical description from a Word
document or directly from your firm's website in just a few
seconds. No formatting is necessary, and the database will automatically populate all remaining fields on your behalf.
5. Scroll to the top of the page and click Save.
Don't get left out in the cold! Raise your visibility and complete
your member profile now.
11
The Gross Reality of Evolving Age Discrimination Laws: An Analysis
of the Supreme Court Case of Gross v. FBL Financial Services, Inc
J. Day Peake III
Last year witnessed several significant developments in
the area of labor and employment law stemming from the
United States Supreme Court. Perhaps one of the most
remarkable opinions was rendered by Justice Thomas in
an Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 621 et seq., lawsuit styled Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). Therein,
the Court increased the burden on the plaintiff in ADEA
cases by requiring a showing of “but-for” causation rather than relying on the mixed motive theory espoused in
Title VII litigation.
In the aftermath of Justice Thomas’ opinion, there has
been a public outcry for legislative action to rectify what
many perceive to be dilatory effects resulting from Gross.
This article will examine Gross in the context of pre-Gross
ADEA law. Next, the article will analyze the ways in
which Gross is being interpreted in recent Eleventh Circuit decisions in order to understand the immediate effects of Gross on ADEA lawsuits. Last, the article will
review the Protecting Older Workers Against Discrimination Act, the proposed amendment to the ADEA,
which was drafted in reaction to the Supreme Court’s
order.
Background of Age Discrimination Protection
In order to fully appreciate the importance of Gross
and its impact on the landscape of age discrimination
cases, one must understand the historic tension between
the ADEA and its Title VII counterparts. Title VII of
the Civil Rights Act of 1964 did not include protection for age discrimination within its framework. The
primary reason Congress gave for withholding age protection was that it needed additional time to study the
problem. Three years later, in 1967, Congress passed the
ADEA, modeling the substantive structure of the ADEA
after Title VII. See 29 U.S.C. § 626(b). Interestingly, it
chose to adopt the procedures and remedies of the Fair
Labor Standards Act (“FLSA”) of 1938, 29 U.S.C. § 201
et seq., so that the ADEA could be enforced by the Depa
t of Labor (“DOL”) rather than further burdening the
fledgling EEOC. Then, in 1979, Congress transferred
12
the enforcement authority of the ADEA from the DOL
to EEOC. The source of much of the inherent tension
between ADEA enforcement today stems from the fact
that Congress neglected to amend the ADEA in 1979 so
as to alter its procedural and remedial provisions to more
closely emulate Title VII which was already governed by
the EEOC.
The failure to synchronize ADEA with its Title VII
counterparts has resulted in a mixed approach by the
Supreme Court wherein it has frequently sought to apply Title VII decisions to the ADEA in some instances,
but maintain its distinct characteristics from Title VII in
others. The question of causation is one such example
which has finally come to the forefront with the decision
in Gross. In Title VII cases, the Court did not squarely
address the question of causation until twenty-five years
after Title VII was passed. In Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), the four justice plurality held that
if a plaintiff satisfies her prima facie case by offering direct evidence of an employment action that constituted a
motivating factor, then the burden shifts to the employer
to establish that it would have reached the same decision
even absent consideration of the impermissible motivating factor. Id. at 258.
The Civil Rights Act of 1991 served as a legislative
effort to clarify concerns over causation. Section 107(a)
prescribed that “an unlawful employment practice is established when the complaining party demonstrates that
race, color, religion, sex, or national origin was a motivating factor for an employment practice, even though
other factors also motivated the practice.” Civil Rights
Act of 1991 § 107(a), 42 U.S.C. § 2000e-2(m). While
this motivating factor analysis mirrors Price Waterhouse, §
2000e-5(g) overruled a portion of Price Waterhouse as to
the “same decision” defense of employers, thereby lessening the effect from foreclosing liability to simply limiting
the employee’s available remedies.
Because §107 only amended Title VII and not the
ADEA, the lower courts made the logical decision to
maintain the causation standard of Price Waterhouse as
the default standard in ADEA claims in the years since
the passage of the Civil Rights Act of 1991.
Analysis of Gross v. FBL Financial Services
When the Supreme Court in Gross granted certiorari on the issue of “whether a plaintiff must present direct evidence of age discrimination in order to obtain a
mixed-motives jury instruction in a suit brought under
the [ADEA],” many people believed that it would take
this opportunity to synchronize the ADEA with Title VII
actions by setting aside Price Waterhouse in favor of the
standard set forth in § 107. Gross, 129 S. Ct. at 2346.
This would have the effect of setting the standard as a
default for other federal anti-discrimination in employment statutes. Rather than follow this predictable approach, Justice Thomas’s majority opinion took quite
another stance.
In Gross, the employee brought an action against his
employer under the ADEA, alleging that he was demoted due to his age. The facts indicated that some of the
employee’s job responsibilities were allocated to a newly
created position which was given to a younger employee.
Gross, 129 S. Ct. at 2346-47. The employer challenged
the jury instructions on appeal and the Eighth Circuit
Court of Appeals reversed and remanded for a new trial,
holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse. Id. at
2347.
Before addressing the certified issue before the Court,
Justice Thomas opined that it “must first determine
whether the burden of persuasion ever shifts to the party
defending an alleged mixed-motives discrimination claim
brought under the ADEA.” Id. at 2348. The Court responded to this initial issue by stating, “This Court has
never held that this burden-shifting framework applies
to ADEA claims. And, we decline to do so now.” Id. at
2349. Eschewing both Price Waterhouse and § 107, the
Court opted for a different standard altogether. Id.
As grounds for this approach, the Court reasoned
that “unlike Title VII, the ADEA’s text does not provide
that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover,
Congress neglected to add such a provision to the ADEA
when it amended Title VII to add §§ 2000e-2(m) and
2000e-5(g)(2)(B), even though it contemporaneously
amended the ADEA in several ways.” Id. Turning to
the text of the ADEA for guidance as to legislative intent,
the Court focused on the following provision of the Act
which provides, “it shall be unlawful for an employer . .
. to fail or refuse to hire or to discharge any individual or
otherwise discriminate against an individual with respect
to his compensation, terms, conditions or privileges of
employment, because of such individual’s age.” Id. at
2350; citing 29 U.S.C. § 623(a)(1); emphasis added.
The Court interpreted the operative words, “because
of ” in § 623(a)(1) to require the plaintiff in an ADEA
action to establish by the preponderance of the evidence
(direct or circumstantial) that age was the “but-for” cause
of the employer’s adverse action. Id. at 2351. The Court
also rejected the employee’s contention that the ADEA is
controlled by Price Waterhouse so as to permit a burden
shifting framework in alleged mixed-motive claims. It
held that “the burden of persuasion does not shift to the
employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some
evidence that age was one motivating factor in that decision.” Id. at 2352. Thus, pursuant to Gross, the burden
of persuasion never shifts to the employer.
Eleventh Circuit Reaction to Gross
The Eleventh Circuit Court of Appeals has addressed
the holding in Gross once in Mora v. Jackson Memorial
Foundation, Inc., 2010 WL 610263 (11th Cir. 2010).
Therein, the Court acknowledged the exclusion of the
mixed motive ADEA claim as well as the use of the “same
decision” affirmative defense. Id. at *2.
Of greater interest is a look at the district courts of
the Eleventh Circuit which have rendered several decisions post-Gross on the issue of the ADEA. Most notable
is the opinion in Culver v. Birmingham Board of Education, 646 F. Supp. 2d 1270 (N. D. Ala. 2009). Therein,
the employee brought an ADEA claim as well as a race
discrimination claim in violation of Title VII. The district court opined, “Gross holds for the first time that a
plaintiff who invokes the ADEA has the burden of proving that the fact he is over 40 years old was the only or
the “but-for” reason for the alleged adverse employment
action. The only logical inference to be drawn from Gross
is that an employee cannot claim that age is a motive for
the employer’s adverse conduct and simultaneously claim
that there is any other proscribed motive involved.” Id.
at 1271-72. As such, the Court required the employee to
choose between his ADEA claim and his Title VII claim.
13
Id. at 1272. Other district courts in other circuits have
taken a similar approach. See e.g. Wardlaw v. City of Phila.
Streets Dept., 2009 WL 2461890 (E. D. Pa. 2009); Speer
v. Mountaineer Gas Co., 2009 WL 2255512 (N. D. W.
Va. 2009); Drazin v. Steve Foley Cadillac, Inc., 2009 WL
4307731 (N. D. Ill. 2009). This extension of Gross takes
the “but-for” test and effectively precludes any other contemporaneous or alternative causes of action.
Another interesting issue that has been addressed in
reaction to Gross is whether or not to continue applying
the burden shifting framework articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) in the absence
of direct evidence of discrimination. The Eleventh Circuit, in the unpublished opinion of Guimaraes v. NORS,
2010 WL 529296, *3 (11th Cir. 2010) held that it would
continue to rely upon the McDonnell Douglas framework.
District courts of the Eleventh Circuit have similarly relied
on the framework for circumstantial evidence. See Liles v.
Stuart Weitzman, LLC, 2010 WL 2490944, *5 (S. D. Fla.
2010); Huff v. Power Partners, Inc., 2010 WL 797201, *5
(M. D. Ga. 2010); Maples v. UHS of Georgia, Inc., 2010
WL 2308206, *5 (N. D. Ga. 2010).
Protecting Older Workers Against Discrimination
Act
In the wake of Gross, there has been much criticism
directed at Justice Thomas’ opinion. The opposition was
successfully galvanized and on October 6, 2009, the Protecting Older Workers Against Discrimination Act was
introduced into Congress as H.R. 3721/S. 1756, 111th
Cong. (2009). The bills were referred to committee in
May of 2010 and subcommittee meetings were held in
June of 2010. The proposed Act states as one of its pivotal findings the following:
Congress has relied on a long line of court cases
holding that language in the Age Discrimination
in Employment Act of ’ 1967, and similar antidiscrimination and anti-retaliation laws, that is
nearly identical to language in Title VII of the Civil
Rights Act of 1964 would be interpreted consistently
with judicial interpretations of Title VII of the Civil
Rights Act of 1964, including amendments made
by the Civil Rights Act of 1991. The Supreme
Court’s decision in Gross v. FBL Financial Services,
Inc., 129 S. Ct. 2343 (2009), has eroded this longheld understanding of consistent interpretation and
14
circumvented well-established precedents. S. 1756,
111th Cong. §2(a)(3).
With this finding in mind, Congress identified its
purpose and intent to establish an overarching standard
for proving disparate treatment under the ADEA and
other anti-discrimination laws that is no different than
the standard under Title VII, including § 107. S. 1756,
111th Cong. § 2(b).
The bill proposes the following language for
this universal standard of proof:
A plaintiff establishes an unlawful employment
practice if the plaintiff demonstrates by a
preponderance of the evidence that (a) an
impermissible factor under that Act or authority
was a motivating factor for the practice complained
of, even if other factors also motivated that practice;
or (b) the practice complained of would not have
occurred in the absence, for an impermissible factor.
S. 1756, 111th Cong. § 3(g)(1).
Thus, § 3 of the bill would ensure that the “motivating
factor” standard of § 107 of the Civil Rights Act of
1991 is incorporated into ADEA analysis. Section 4
of the bill also specifically dispels any concerns over the
applicability of the McDonnell Douglas framework by
allowing its continued use for ADEA claims. S. 1756,
111th Cong. § 4. Furthermore, the bill permits the use
of the affirmative defense that the employer would have
taken the same action in the absence of the impermissible
motivating factor. S. 1756, 111th Cong. § 3(g)(2). This
is also in keeping with Title VII, as amended.
The overall effect of the proposed amendment would
be the achievement of uniformity among the various
employment-related discrimination and retaliation
statutes. The passage of the amendment may mark the
end of the Gross saga and finally put to rest decades of
tension between Title VII remedies and procedures and
those of the ADEA.
Day is an associate in the litigation group
in the Mobile office of Phelps Dunbar. His
practice focuses on general litigation with
an emphasis on employment law. Day was
named as a “Rising Star” in Alabama Super
Lawyers. Prior to joining Phelps Dunbar,
Day was with Lyons, Pipes & Cook in Mobile.
From Terry to Today:
An Examination of the Contours of the “Special Employer” Defense
Christie Strange, Esq.
INTRODUCTION
Alabama Code § 25-5-52 (1975) provides that neither
an employee nor an employee’s successor in interest has a
right to seek compensation or damages, other than in an
action under the Act, “for an injury or death occasioned by
an accident or occupational disease proximately resulting
from and while engaged in the actual performance of the
duties of his or her employment and from a cause originating in such employment or determination thereof.” Similarly, § 25-5-53 of the Ala. Code (1975), states that the
rights and remedies set forth in the Act “exclude all other
rights and remedies of the employee, his or her personal
representative, parent, dependent, or next of kin, at common law, by statute, or otherwise” with respect to “injury,
loss of services, or death”; moreover, except as provided in
the Act, “no employer shall be held civilly liable for personal injury to or death of the employer’s employee” who
suffers an injury or dies because of “an accident or ... an
occupational disease while engaged in the service or business of the employer” if “the cause of [such] accident or occupational disease originates in the employment.” Taken
together, it is undisputed and well-established that, except
for workers’ compensation benefits, an employer cannot
be held civilly liable to an employee for an on-the-job injury due to the exclusive remedy provision contained in
Alabama’s Workers’ Compensation Act. See McClellan v.
Smurfit-Stone Container Corp., No. CIV. A. 99-1020-BHC, 2001 WL 228061 (S.D. Ala. Feb. 7, 2001); Rhodes v.
Alabama Power Co., 599 So. 2d 27 (Ala.1992); see also Ex
parte N.J.J., 9 So. 3d 455 (Ala. 2008).
“SPECIAL EMPLOYER” DEFINED
The exclusive remedy provision also extends to “special
employers,” which have been described as “individuals or
businesses who, for practical purposes, may be considered primary or co-employers of the injured employee.”
Rhodes, 599 So. 2d at 28 (quoting Tweedy v. Tennessee Valley Authority, 882 F.2d 477, 479 (11th Cir. 1989)) (construing Alabama Workmen’s Compensation Act); see also
Burkett v. Loma Mach. Mfg., Inc., 552 So. 2d 134 (Ala.
1989); Means v. International Systems, Inc., 555 So. 2d 142
(Ala. 1989).
THE “SPECIAL EMPLOYER” TRILOGY
Three Alabama Supreme Court decisions, the so-called
“special employer” trilogy, Terry v. Read Steel Products, 430
So. 2d 862 (Ala. 1983); Pettaway v. Mobile Paint Mfg. Co.,
467 So. 2d 228 (Ala. 1985); and Bechtel v. Crown Central
Petroleum Corp., 495 So. 2d 1052 (Ala. 1986) provide the
analytical framework for this defense.
In Terry, Rodney Terry was referred to his special employer, Read Steel, by his general employer, Manpower,
Inc., an employment agency that provided Read Steel with
temporary laborers. Terry, 430 So. 2d at 862. While working at Read Steel, he injured his hand in a machine he was
operating. Id. at 863. Subsequently, Terry’s father filed a
third-party action for damages on his son’s behalf against
Read Steel. Id. Read Steel’s motion for summary judgment was granted by the trial court based on the exclusive
remedy provision of the Workmen’s Compensation Act.
Id. The Alabama Supreme Court affirmed. Id. at 867.
In what has come to be taken as a statement of the test
for establishing a special employer’s right to rely on the
exclusivity of the workmen’s compensation remedies, the
Alabama Supreme Court articulated a three-pronged test
for determining when an employee of a general employer
can become the employee of a “special employer” for purposes of workers’ compensation:
When a general employer lends an employee to
a special employer, the special employer becomes liable for workmens’ compensation [and thus immune
from liability for tort actions brought by the special
employee] only if
(a) the employee has made a contract of hire,
express or implied, with the special employer;
(b) the work being done is essentially that of the
special employer; and
(c) the special employer has the right to control
the details of the work.
430 So. 2d at 865 (quoting 1C A. Larson, The Law of
Workmen’s Compensation, § 48 (1980)). It is well-established that the three-part test set out in Terry must be met
with substantial evidence. See Rast Const., Inc. v. Peters,
689 So. 2d 781, 783 (Ala. 1996).
The second case in the special-employer trilogy is Pettaway v. Mobile Paint Manufacturing Co., 467 So. 2d 228
(Ala. 1985). In Pettaway, the plaintiff was referred by
15
Manpower, Inc., to work for Mobile Paint Manufacturing
Company. Pettaway was paid $3.75 per hour by Manpower but Manpower charged Mobile Paint $5.34 per
hour for his time. Id. at 229. A portion of the difference
was used by Manpower to purchase workmen’s compensation insurance for the workers it sent to Mobile Paint. Id.
While working at Mobile Paint under the supervision
and direction of Mobile Paint employees, the plaintiff was
injured. Id. He sued Mobile Paint, alleging negligence
and breach of contract. Id. Mobile Paint asserted that
the plaintiff was its “employee” and was therefore limited
to the exclusive remedy of workmen’s compensation. The
trial court granted summary judgment in favor of Mobile
Paint. Id. The Alabama Supreme Court affirmed the trial
court’s decision. Id. Simply stated, the Alabama Supreme
Court found the facts of Pettaway “indistinguishable” from
those presented in Terry. Id at 229.
In Bechtel, the third decision in the trilogy, Crown Central Petroleum, a gasoline filling station company, entered
into a supply contract with Pep Services, Inc., whereby
Pep agreed to supply Crown with service station personnel. Bechtel, 495 So. 2d at 1054. The plaintiff was hired
pursuant to this supply contract and was designated a Pep
employee. Pursuant to its contract, Pep billed Crown for
the cost of paying wages, workmen’s compensation insurance premiums, unemployment taxes, and Social Security.
Id. While working for Crown, the plaintiff was injured.
Id. After obtaining workmen’s compensation benefits
from Pep, she sued Crown directly. Id.
The Alabama Supreme Court examined closely the
Bechtel plaintiff’s contention that because she was Pep’s
employee, she could not be Crown’s employee:
Certainly, there is substantial evidence that Pep
was Bechtel’s employer; however, this evidence is not
evidence that Crown was not Bechtel’s employer, because both Pep and Crown could, under certain fact
situations, be considered co-employers of BechtelPep as general employer and Crown as special employer.
Id. at 1054 (emphasis in original) (citations omitted).
The Terry test has been discussed in a number of cases
since it was adopted. See Innisfree Corp. v. Jourdan, 867
So. 2d 348 (Ala. Civ. App. 2003); Rast Const., Inc., 689
So. 2d 781; Hicks v. Alabama Power Co., 623 So. 2d
1050 (Ala. 1993); Rhodes v. Alabama Power Co., 599
So.2d 27 (Ala. 1992); Pinson v. Alabama Power Co., 557
So. 2d 1236 (Ala. 1990); Means v. International Systems,
Inc., 555 So.2d 142 (Ala.1989); Marlow v. Mid South
16
Tool Co., 535 So. 2d 120 (Ala. 1988); Bechtel, 495 So.
2d 1052; Pettaway, 467 So. 2d 228; Tweedy v. Tennessee
Valley Authority, 882 F.2d 477 (11th Cir. 1989). The
decisions that have addressed the “special employer” defense indicate that Alabama Courts strictly adhere to the
three-prong test articulated in Terry. Additionally, when
a defendant in a common law action for damages asserts
that the action will not lie because the injured person or
decedent was a “special employee” of the defendant, the
defense is an affirmative one, and the burden rests on the
defendant to plead and prove it. See Bechtel, 451 So. 2d
at 795; and Ala. R. Civ. P. Rule 56(c).
THERE EXISTS AN EXPRESS OR IMPLIED
CONTRACT FOR HIRE
The requirement of a contract for hire comports directly with Alabama’s Workers’ Compensation Act, which
defines an “employee” as a “person in the service of another
under any contract of hire, express or implied, oral or written.” Gaut v. Medrano, 630 So. 2d 362, 364 (Ala. 1993)
(quoting Ala. Code § 25-5-1(5) (1975)). The Alabama
Supreme Court has held that in determining whether a
special employment relationship exists “the most important criterion to be scrutinized is the requirement of a contract of hire, express or implied.” Terry, 430 So. 2d at 866.
Indeed, “the courts have usually been vigilant in insisting
upon a showing of deliberate and informed consent by the
employee before employment relation will be held a bar to
common-law suit.” 1C, A. Larson, Workmen’s Compensation Law, § 48.12, p. 8-440-8-445. The first element of
the Terry test is a critical determination, for when a person enters into an employer-employee relationship with a
party, that person gives up valuable rights, including the
common law right to bring an action against the party for
any injury he might suffer while acting in the scope of his
employment. Id. at 365.
The Alabama Supreme Court has reviewed several
cases addressing the issue of whether an implied contract of hire exists to support a finding of special employment. See e.g., Pinson, 557 So. 2d 1236 (concluding that an implied contract of hire existed); Marlow,
535 So. 2d 120 (holding that Mid-South was a special
employer without expressly considering the issue of
an implied contract of hire); Bechtel, 495 So. 2d 1052
(concluding that an implied contract of hire existed and
created a special employment relationship); Pettaway,
467 So. 2d 228 (not expressly considering the issue of
an implied contract of hire but holding that a special
employment relationship existed); and Terry, 430 So.
2d 862 (holding that an implied contract of hire existed).
Courts have focused on the type of primary employer
involved in determining whether a contract for hire exists
in a given situation. In Terry, Pettaway, and Marlow, the
plaintiff ’s general employer was an employment agency or
employment service such as Kelly Services, Inc., or Manpower, Inc. In Bechtel, the plaintiff’s general employer,
Pep Services, Inc., also acted as the bargaining agent for
the plaintiff employee, placing her with Crown Central
Petroleum Corporation, pursuant to a supply contract.
In these cases, the general employer was nothing more
than the bargaining agent or employment agent for the
plaintiffs. When those plaintiffs contacted Kelly Services,
Manpower, or Pep Services, it was not for the purpose of
entering into employment with those companies to do the
work of those companies; rather, the plaintiffs intended for
the general employers to “market” them to secure employment with another, special employer. Once those plaintiffs
were presented by the employment services to the special
employers, those plaintiffs then entered into a contract of
hire with those special employers. Therefore, the Supreme
Court has held that an implied contract for hire exists in
such a circumstance. See Hicks, 623 So. 2d 1050.
Courts utilize a different analysis when the general
employer is not an employment service or agency. If the
general employer is a labor broker, it may or may not be
obvious to an employee that the nature of his employment
with one employer is such that he is impliedly agreeing
to a contract of hire with another entity operating as a
“special employer.” See Gaut, 630 So. 2d 362. An important consideration in this inquiry is stated in Vanterpool v.
Hess Oil V.I. Corp., 766 F.2d 117, 122 (3d Cir. 1985). In
Vanterpool, the court looked to “whether the employment
with the borrowing employer was of such duration that
the employee could be reasonably presumed to have evaluated and acquiesced in the risks of his employment.” 766
F.2d at 122.
In instances where the special employer represented itself to be an independent contractor, an employee could
reasonably view it as a premises owner that had reserved
a right to control its contractor’s performance. See e.g.,
Thomas v. Pepper Southern Constr., Inc., 585 So. 2d 882
(Ala. 1991); Pugh v. Butler Telephone Co., 512 So. 2d 1317
(Ala. 1987); Alabama Power Co. v. Beam, 472 So. 2d 619
(Ala. 1985). In Gaut, the Court noted that there is a point
at which an entity that the contracting parties attempt to
cast as a general employer assumes such duties as to become an independent contractor for provision of services,
not just laborers, and at that point its employees do not
impliedly contract with the “special employer.” Gaut, 630
So. 2d at 368. Merely because a person employed by an independent contractor serves another employer at its command or direction, a new employment relationship is not
INVESTIGATION SPECIALISTS, INC.
“Claims Control thru Excellence”
1-800-228-6032
www.stakeout.com
Mention this ad for a $75.00 discount on your first assignment
Proudly Serving the Industry for over 25 Years
Corporate Headquarters: P. O. Box 5659, Winter Park, FL 32792
AGENCY LICENSES: FL A1973, GA 858, AL 015024, NC BPN2929P4, SC 1397, TN00001795, MS 950951
17
necessarily created. See Innisfree Corp. v. Estate of Jourdan,
867 So. 2d 348, 355 (Ala. Civ. App. 2003) (citing Rast
Constr., Inc. v. Peters, 689 So. 2d 781 (Ala. 1996)).
In Hicks, 623 So. 2d 1050, the court noted that
decisions from other jurisdictions support this analytical
framework. See Crawford v. Florida Steel Corp., 478 So.
2d 855, 859-60 (Fla. Dist. Ct. App. 1985) (distinguishing
between the proof required to show special employment
where the general employer is a temporary labor broker
agency and the proof required where it is an independent
contractor who performs services; where the plaintiff is
employed by the latter, consent must be demonstrated
and not implied); Bourette v. Dresser Industries, Inc., 481
A.2d 170, 172-73 (Me. 1984) (rejecting a control test for
determining special employment and holding that, where
the general employer is an independent contractor who
performs services for the purported special employer,
proof of the employee’s consent to the new employment
relationship is required even where the purported special
employer controls the work of the plaintiff ); Crain v. Webster Electric Cooperative, 568 S.W.2d 781, 791 (Mo. App.
1978) (holding that consent to a special employment relationship “cannot be inferred merely from the fact that the
employee obeyed the commands of his master in entering
the services of another”; the employee’s consent must be
express, “informed and deliberate,” to create an implied
contract of hire with the alleged special employer); Rademaker v. Archer Daniels Midland Co., 247 N.W.2d 28, 32
(Minn. 1976) (distinguishing between labor broker cases
where the employee’s consent to the special employment
may be inferred and cases in which the primary employer
is a contractor offering a service, where “there must be actual indicia of consent” to the new relationship rather than
continued obedience to the primary employer); Loden v.
Getty Oil Co., 316 A.2d 214, 218 (Del. Super.), aff’d, 326
A.2d 868 (Del. 1974) (holding that, where the plaintiff
was employed by an independent contractor who performed services for Getty, no implied contract of hire existed between the plaintiff and Getty, even though Getty
presented evidence that it controlled numerous aspects of
the plaintiff ’s work); Latham v. Technar, Inc., 390 F. Supp.
1031, 1039 (E.D. Tenn. 1974) (holding that the plaintiff
must have knowledge of, and must consent to, a special
employment relationship; the mere fact that her activities may have been controlled by the new master is not
sufficient to create a new relationship in the absence of
an express or implied contract); Clark v. Luther McGill,
Inc., 127 So. 2d 858, 862 (Miss. 1961) (holding that the
employee must consent to become the employee of the
purported special employer before a contract of hire may
be implied); Selid Construction Co. v. Guarantee Ins. Co.,
18
355 P.2d 389, 393 (Alaska 1960) (holding that consent of
an employee to a change in employers cannot be implied
merely from his obedience to the orders of his master to
serve another).
THE WORK PERFORMED IS ESSENTIALLY
THAT OF THE SPECIAL EMPLOYER
The second prong of the Terry test can generally be described as the easiest requirement to satisfy. In Bechtel, the
Court easily concluded that the Plaintiff was performing
the work of the special employer at the time of her injury.
495 So. 2d at 1054. The Court noted that at all times
from the time of her employment by Pep up until her injury, the work Bechtel performed was the work of Crown.
Id. Bechtel performed, only on Crown premises, the usual
duties of a service station attendant: pumping gas, cleaning
windows, and keeping the premises orderly. Id. Of course,
it is much simpler to establish that the work performed is
that of the special employer in instances where the general
employer can be described as a “labor broker” or employment agency. In those situations, it is hard to conceive of
a scenario in which an individual could be doing anything
other than the work of the “special employer.”
THE SPECIAL EMPLOYER HAS THE RIGHT TO
CONTROL THE DETAILS OF THE WORK
In the most recent opinion addressing the “special employer” doctrine, the Alabama Supreme Court noted that
in the context of the special-employment doctrine, the
inquiry is not whether an employer retained some control over the employee’s work. G.UB.MK Constructors v.
Garner, No. 1080818, 2010 WL 58263 at * 6 (Ala. Jan.
8, 2010). Rather the relevant inquiry is whether the employer “lacked the right to control” the employee’s work.
Id. (quoting Hamburg v. Sandia Corp., 179 P.3d 1209,
1212 (N.M. 2008)) (emphasis in original). This is an
important distinction because both “the general employer
and the special employer may both exercise some degree of
control over the employee and both may benefit to some
degree from the employee’s work.” Id. (quoting Restatement (Third) of Agency § 7.03 CMT. d(2) (2006))
(emphasis in original); see also Rhodes v. Alabama Power
Co., 599 So. 2d 27, 29 (Ala. 1992) (“The third element
of the ‘special employer’ doctrine recognizes that both the
general employer and the special employer may have concurrent rights to control the employee of both employers.
The focus is on whether ‘the special employer has the right
to control the details of the work’ of the employee, not
which of the employers has such a right.”).
The control element is satisfied when the special emAlabama Defense Lawyers Association
ployer has “‘the right to control the time and place of the
services, the person for whom rendered, and the degree
and amount of services.’” Garner, at *6 (quoting Hamburg
v. Sandia Corp., 162 P.3d 909, 918 (N.M. Ct. App. 2007),
aff ’d 179 P.3d 1209 (2008) (quoting in turn 3 Author Larson & Lex K. Larson, Larson’s Workers’ Compensation Law
§ 67.06 (2006))).
controlled the hours worked, job duties, and work conditions, supervised the work being performed, evaluated job
performance, provided the tools and equipment necessary
to perform the work, and possessed the authority to terminate the employment. An understanding of the requisite
evidence for each prong of the Terry test will aid in drafting discovery and laying the foundation to establish this
defense.
CONCLUSION
Over the last twenty-five years, the contours of the
“special employer” defense have been thoroughly explored
and refined. The end result is a well-defined test for determining the applicability and availability of the “special
employer” defense in a given action. As such, a practitioner should be able to readily discern whether this defense
should be considered and plead this affirmative defense
when appropriate.
Depositions and written discovery should focus on factors bearing on the employment relationship. First and
foremost, attention must be devoted to adducing evidence to satisfy the “express or implied contract for hire”
prong of the Terry test. Ideally, the discovery process will
elicit evidence that a defendant wishing to avail itself to
the protection afforded by the “special employer” defense
Christie Strange, of Porterfield, Harper,
Mills & Motlow, practices in Birmingham, Alabama. She earned her Bachelor
of Arts, cum laude, from Samford University. Ms. Strange graduated magna cum
laude from Cumberland School of Law
at Samford University. While at Cumberland, she served as an Articles Editor for the Cumberland Law Review, participated in the Moot Court
Program, and received the Scholar of Merit distinction in several courses. Ms. Strange’s practice includes
professional liability, medical malpractice, and products liability. She is a member of the Birmingham and
Shelby County Bar Associations, Alabama Bar Association and the Alabama Defense Lawyers Association.
Two e x p e r t ly
f i t t e d Suits $799
Two tropical-weight wool suits from our extensive collection.
Made with outstanding quality and detail, ideal for year-round
wear. Choose from twelve patterns of solids, stripes and checks.
Save over $375 and ask about our 90-day no interest option.
Nothing compares to the look and feel of quality clothing and nothing
compares to the style and affordability of the best suit package we have
ever offered at The Locker Room.
Call or visit George, Hunter, Tom or Josh.
the
suit f i t s
Wear it. Wear both.
t H e
l o C K e r
tlrclothiers.com
1717 Carter Hill road
M o n t g o M e ry 3 3 4 . 2 6 2 . 17 8 8
ro o M
m o n – s at 9a m – 6 pm
127 e Magnolia
a u b u r n 3 3 4 . 3 2 1.4 9 6 2
Well dressed. Well informed. Follow us on
19
Tips For Young Lawyers:
COMPENSATION
By Michael E. Upchurch
As a young lawyer, how your compensation is determined, and how and what the partners in the firm are
paid, is something you probably know little about. Curiosity about such matters is natural. Here is a peek inside
the tent on the issue of lawyer compensation.
First, about associates. Most partners believe that
new lawyers are overpaid. Many new lawyers might agree,
at least inwardly. As a fresh law school graduate, we do
not know how to do much of anything worthwhile in
the practice of law. Beginning the day that we first walk
through the door, we try to conceal that fact. No need.
The partners (and staff ) already know it. Remember, the
gray-hairs were first-year lawyers once too.
At today’s starting salaries, there is no way a brand new
lawyer can justify his or her salary, or be “worth” that kind
of money. The partners in your firm don’t like to over-pay
law school graduates who can barely find the courthouse,
but feel stuck. The associate pay disconnect began over 30
years ago. At one time, believe it or not, there were more
jobs than desirable law school graduates. The competition among firms was intense, and the starting salaries
went up and up. The hours spent on files by inefficient
green associates were absorbed as a matter of routine by
the firms’ clients. Firms were able to charge high enough
rates for associates during the boom years that the salaries
were tolerable, and firms’ rates across the board were rising at a steady clip.
The days when rates were ever increasing and the demand for legal services seemed insatiable are a fading
memory. The golden age of escalating associate salaries
is over. More and more lawyers have flooded the market,
and the purchasers of legal services have become more
discriminating and cost-conscious. Today’s clients resist
paying for associates to, in the clients’ view, learn on the
job at their expense. Billings are scrutinized much more
than they used to be, and the cost of legal services has
ballooned to the point that the clients just cannot afford
too much of it. Firms are straining under the weight of
associate starting salaries that cannot be funded by the associates’ production. The partners just hope that as the associates gain experience and develop skills, they will grow
into their compensation.
20
History lesson aside, high starting pay means you
might not receive big raises for a while. Most likely, your
salary will not increase much over the first three to five
years that you are an associate. Do not get discouraged.
Compensation is a marathon, not a sprint, and compared
to most workers, you are off to a good start. Plan for a
fairly flat income for the short-term and live within your
means.
In the old days, the norm was for an associate either
to succeed and become a partner or to be nudged out of
the firm. That has changed. Today, there is a third track B
“non-equity” partners. By their own choice or that of the
firm, they receive a salary, not a share of the profits. These
lawyers have reached or have passed the age at which associates generally become partners, and are not full partners
in the sense of sharing in the profits of the firm. Neither
are they associates in the sense of being junior, still-intraining lawyers. Instead, they populate a new nitch in
law firms.
In modern firms, non-equity partners are not secondclass partners, and their non-equity status is not viewed as
a reflection of inferior ability or talent. There usually is no
distinction made on firm letterheads between equity and
non-equity partners. A non-equity partner’s pay can exceed
that of a full partner, depending on the lawyer’s production, the firm and the firm’s revenues. Some non-equity
partners have limited voting rights, while others do not.
Many lawyers are non-equity partners because they
prefer it over a “full” partnership. A non-equity partner’s
compensation generally is guaranteed, unlike that of an
equity partner (who shares in the risk as well as the rewards). He or she might want to work fewer hours, or
not be subjected to the pressure to bring in clients. Some
non-equity partners would rather be a full partner, but
have not been invited. There also are partners who have
changed tracks for one reason or another B non-equity
partners who used to be equity partners, and equity partners that were non-equity partners.
Some senior partners who were equity partners for
decades transition into being non-equity partners at the
end of their careers. This might be done pursuant to the
requirements of the partnership agreement. Usually it is
what the older partner chooses, to allow him or her to
continue to work, but to work much less, and withdraw
from the headaches of firm operations. Some firms designate such senior partners “of counsel” on the letterhead.
There is no single definition of “of counsel,” by the way,
but this is one application.
When associates become eligible for partnership also
has changed. Five and a half years used to be the norm
at many firms. Over the last few decades, the time frame
has lengthened to as much as eight and a half years, or
longer. In years past, new lawyers could expect to become
a partner. Today, however, being offered a full partnership
after a specific period, barring any serious deficiencies,
is no longer a given. New associates now might be told
that they should not count on becoming a partner at all,
unless their contribution to the firm in revenues and/or
clients is substantial.
Some associates assume that partnership will bring an
immediate and dramatic jump in compensation. At firms
that tie compensation closely to production, a big increase as a first year partner is possible, if the new partner
has clients and generates large collections. In most firms,
however, a first-year partner’s pay might not be much
more than what he or she received in the final year as an
associate. This is one of the consequences of the high salary the lawyer received when he or she started. Whether
partner compensation steadily increases over time depends on the compensation system in place, the firm’s fortunes, the lawyer’s performance and whether the lawyer’s
area of practice remains in demand. At some firms, the
compensation criteria produce significant ups and downs
in a partner’s income year to year, while other firms use
multi-year averaging to minimize dramatic fluctuations.
There are several types of partner compensation systems. In the old days, most firms used a simple “lock-step”
approach. A partner’s compensation depended almost entirely on how long the lawyer had been practicing. In big
firms, all the partners in a particular “class” received the
same compensation. Differences in hourly rates, hours
worked and work brought in did not much affect how
much the members of each class earned in relation to each
other. Each class fit neatly into a compensation pyramid,
HENDERSON & ASSOCIATES
Court Reporters, Inc.
______________________________________________
5 North Royal Street, Suite 200, Mobile, AL 36602
2101 Highland Avenue South, Suite 430, Birmingham, AL 35205
307 South McKenzie Street, Suite 103, Foley, AL 36535
Mailing Address: Post Office Box 2263, Mobile, AL 36652
Tel: (251) 694-0950  Fax: (251) 694-7930
Toll Free: 888-557-2969
Email: [email protected]
WWW.HENDERSONDEPO.COM
State-of-the-Art Services, including:
Video-Conferencing(Multi-point)  Videography & Video Synchronized Depositions
Trial Presentation  Records Retrieval
Statewide Conference Facilities  Litigation Support
RealLegal™ E-transcripts, Publisher & Binder
STATEWIDE COVERAGE
Memberships:
National Court Reporters Association  Alabama Court Reporters Association
21
with a given class making more than the group below it
and less than the group above it. The amount of compensation was decided by the senior lawyer or lawyers, who
ruled the firm as benevolent dictators. At some firms, all
partners received the same share of the profits, regardless
of age or class. In the late 70's, lock-step and other nonproduction based approaches began to fall out of favor. It
became commonplace for firms to create and apply compensation formulas designed to measure each partner’s
contribution to the firm and reward the lawyer based on
that contribution, not seniority.
The “eat what you kill” method is one such formula.
In this system, the intent is to pay each partner based
on how much money (collections) the partner generates,
through his or her own billings and through billings of
other lawyers for his or her clients, minus an allocated
share of overhead. In such a system, significant credit is
assigned for bringing a client into the firm, and for being the partner who the client looks to in the firm. The
benefit of this type of system, according to its proponents,
is that it puts the compensation in the hands of those
who earned it, and lawyers who are not productive (in
hours or clients) are not overpaid. Critics point to the
inevitable sense of competition that this type of approach
instills among partners. They argue that in the “eat what
you kill” firm, partners have incentive to guard clients
jealously and not allow other lawyers much access to the
clients. Such a system also hurts camaraderie within the
firm, inhibits the development of young lawyers, and discourages partners from taking on firm responsibilities and
otherwise being a team player, according to detractors.
Some firms include length of service as well as productivity in their formulas. Hours worked, hourly rate and
clients still weigh heavily in the calculus, but seniority
also matters. Small firms sometimes address compensation without the structure of a formula. The partners just
sit down and work it out each year, based on whatever
factors they choose to use, including gut feeling. This approach is not practical for large firms.
All firms struggle with how to give compensation
credit for activities that improve or sustain the firm but
do not generate revenue. Examples include recruiting,
firm management, bar association participation and client development. As mentioned, some firms use multiyear averages of production, rather than start over each
year in evaluating the partners’ contributions. This softens the blow if a partner has one poor year but otherwise
is a steady producer. Many large firms have compensa22
tion committees, which operate in conjunction with the
managing partner. These committees decide the partners’
compensation each year by applying whatever criteria the
firm uses. Frequently, the partners elect both the managing partner and the committee members.
You probably keep a close watch on your billable
hours, and likely are evaluated based in part on how hard
you work. There is more to revenue than hours, however.
Hourly rates also are important. Productivity sometimes
is defined as hours worked multiplied by hourly rate, minus share of overhead, plus intangibles. If two lawyers bill
the same amount of time, but one has a higher rate, the
one with the higher rate generates more revenue B at least
on paper.
There is something even more important than money
and rates. To your partners, it is collections that matter
most. Billings that are written off have no value. If a lawyer works hard at a high rate but doesn’t bill the time, or
does send bills but the client does not pay, the hours and
rate don’t matter.
Billing practices have changed over the years. Firms
used to bill quarterly or yearly, or sometimes in even
longer intervals, often with no particular timetable. The
bills were short, summary statements, not the detailed
bills used today. Often, only the responsible partner and
the office manager knew if a particular client wouldn’t or
couldn’t pay its invoices. In most firms these days, with
the help of computers, every dollar in and out is tracked
carefully, and production and collection totals are published to all partners, usually monthly.
Some firms, although probably not a large percentage,
require new partners to buy into the firm. This practice,
which used to be more common than it is now, creates another source of revenue for existing partners. It originated
in a time when retiring partners received lucrative “buyouts,” sometimes payable over years. This was before wellfunded pension and profit sharing plans were prevalent.
These buy-outs were firm liabilities, but were offset by
the buy-ins. New partners would have to come up with a
lump sum to satisfy a buy-in requirement, or amortize a
buy-in over time. As a result of the widening popularity
of retirement savings programs and the increasing financial stresses weighing on incoming partners, the buy-out
and buy-in are rare today.
Some firms own the building where the firm practices,
or other real estate. This can cause complications and rifts
within the partnership, depending how open the ownership opportunities are. Take, for example, a firm where in
the past a group of partners purchased the firm’s building.
Those partners are both landlords and tenants. As lawyers
hired in subsequent years become partners, if they do not
share in the ownership of the building, arguably there is
a conflict of interest between the partners who serve both
as landlords and tenants and those who are only tenants.
In addition, if the ownership interest in the real estate
is valuable, having some partners with that additional
revenue stream and equity can create what amounts to
different classes of partners, depending on whether the
partner has or does not have an ownership interest in the
building.
Some firms address these problems by allocating ownership percentages to new partners, perhaps in the same
percentage as their share in the firm. For this to work, the
ownership allocation among the partners must be recalculated periodically, to keep up with and match partnership
share changes. This transfer of equity has to be accounted
for, and might require a different kind of buy-in by new
partners and buy-out for retiring lawyers.
As you can see, there is a lot of room for controversy
and unhappiness with lawyer pay. In the end, how well
or poorly a firm handles compensation depends on the
attitudes and behavior of the partners. Imagine being in a
room with a group of your colleagues. There is a delicious
pie on a table in the center of the room. Everyone in the
room is hungry. The people in the room have to decide
how much of the pie each of them gets to eat. Some partners think of nothing but how much of the pie they have
earned, without giving a thought to how much pie the
rest of the people in the room should receive. Other partners have the ability to look at the pie, look at everyone
in the room, and work through what would be a fair slice
for each person, not just himself or herself.
Taking others’ situations into account is harder than
deciding only how much you deserve. It requires empathy, a willingness to compromise and an understanding
that part of the trade-off of having the security of a firm
is taking out a little less than your maximum claim. How
should a partner with a history of being productive be
treated when he or she has one disappointing year B maybe due to illness or divorce? Are some clients firm clients
after a while, rather than “belonging” to a single partner?
How much is it worth to tend to the often mundane but
essential activities that keep a firm viable, such as personnel matters, recruitment, public service or marketing?
How much credit should be given for training the firms’
young lawyers? How do you treat partners whose area
23
of practice (say real estate) is down, through no fault of
their own, preventing those partners from keeping busy
and generating their usual billings? What about a partner
whose big client suddenly went bankrupt and couldn’t
pay its bill?
Successful, happy firms are populated mostly by partners who take a long view of compensation. They worry
over everyone’s share, not just their own. Firms that constantly lose partners or implode sometimes have self-absorbed partners who could see only their own contributions and no one else’s to blame for that.
Do not take from this discussion that maximum compensation is the key to long-term satisfaction and achievement in the practice of law. There probably is some correlation between how much a lawyer earns and his or her
happiness or ability and skills. In many B some would
say most cases B there is not much of a correlation. Making big money is not the same as being a big success as a
lawyer. If you surveyed older lawyers that you know, and
asked them who they most respected and admired among
their peers, you might be surprised. The lawyers who are
most admired and respected are not the richest, flashiest
attorneys in the community. Things like integrity, ethics, kindness, good humor, self-sacrifice, courtesy, courage and a host of other attributes do not translate directly
into fat pay checks.
It is easy as a young lawyer to look at financial achievement and equate it with professional achievement. Wrong.
Compensation is important to all of us, but it is not what
defines us as lawyers, and it is not as dominant as you
might think in determining how rewarding and enjoyable
your career will be. This article is about compensation,
but the practice of law is about much more.
Michael E. Upchurch, of Frazer Greene
Upchurch & Baker, practices in Mobile in
the areas of professional liability, product
liability, complex commercial disputes,
personal injury, and is a certified mediator. He earned his B.A. at James Madison
University, Summa Cum Laude, in 1980, and his J.D.
at the University of Virginia in 1983. He is a member
of Alabama Defense Lawyers Association, American Arbitration Association, American Bar Association, Alabama State Bar and Mobile Bar Associations.
Medicare Set-Aside Solutions.
Call (888) 784-8570
or learn more at www.corvel.com
22 Inverness Center Parkway, Suite 160
Birmingham, Alabama 35242
Vocational Rehabilitation • Legal Nurse Review
Life Care Plans • Medical Cost Projections
Expert Testimony
f2 CV-478_Birmingham_Ad.indd 1
24
9/10/10 10:23:35 AM
2010 annual session
June 17-20 • Sandestin Beach Resort, Baytown
25
2010 annual session
26
• June
17-20
•
• Sandestin Beach Resort, Baytown
27
2010 annual session
28
• June
17-20
•
• Sandestin Beach Resort, Baytown
29
2010 annual session
June 17-20 • Sandestin Beach Resort, Baytown
30
ESI is a national engineering and
scientific investigation firm that
provides service across all 50 states
and internationally.
Representative Disciplines and Specialty Areas
• Aeronautical
• Automotive
• Biomechanical
• Boiler/Machinery
• Chemical
• Civil/Structural
• Electrical/Electronic
• Environmental
• Finite Element Analysis
• Fire and Explosion
• Marine
• Materials/Metallurgy
• Mechanical
• 3D Modeling/Simulation
• Oil and Gas
• Patents and IP
• Polymers/Composites
• Railroad
• Safety
• Utility -- Electric/Gas
Selected Areas of Expertise
Automotive (Passenger, Commercial, Industrial, Off-Road) A/R
Chemical and Manufacturing Processes
Commercial and Patent Disputes
Electrical, Elevator, HVAC System Evaluations
Environmental Inspections (Mold, IAQ, Phase I/II)
Failure Analysis
Fire, Explosion, Arson, C/O Investigations
Medical Devices
Metallurgical Laboratories (with SEM), Testing Services
Municipal, Stormwater and Wastewater Issues
Industrial Safety Investigations
Intellectual Property
Porch, Stair, Flooring and Deck Incidents
Product Failures and Liability Analyses
Property Casualty and Loss Investigations
Sprinkler/Fire Suppression Systems
Windstorm/Tornado/Hurricane Damage Inspections
Chicago (Aurora), IL
(630) 851-4566 (corp.)
Colorado Springs, CO
(719) 535-0400
Fort Myers, FL
(239) 482-0500
St. Louis (O’Fallon), MO
(636) 240-6095
Atlanta (Norcross), GA
(866) 596-3994 (toll free)
Houston, TX
(281) 448-6060
Miami, FL
(305) 779-5911
Kansas City, MO
(816) 415-8340
Ann Arbor, MI
(734) 677-6960
Southern California
(949) 454-1561
Omaha, NE
(630) 851-4084
www.esi-website.com
© ESI 10/10
31
THE ROLE OF THE MOTION TO STRIKE
IN SUMMARY-JUDGMENT PROCEDURE
By William E. Shreve, Jr.1
Phelps Dunbar, LLC
When a party offers inadmissible evidence at trial,
the opposing party must object to its admission in order
to have the court exclude the evidence. Otherwise, the
objection is waived, the court commits no error in admitting the “inadmissible” evidence, and the trier of fact
may consider that evidence in reaching its decision.2
A similar procedure applies when a party submits evidence in support of or in opposition to a motion for
summary judgment. Under Rule 56(e) of the Alabama
Rules of Civil Procedure, “evidence in support of, or in
opposition to, a summary judgment motion must be
admissible at trial.”3 When a party files evidence that
would not be admissible at trial, the opposing party must
move to strike, or otherwise object to, the inadmissible
evidence in order to prevent the court from considering
that evidence. Absent a motion to strike or other objection, the issue is waived, the court can consider the inadmissible evidence as admissible, and the evidence may
be used either to support or defeat summary judgment.
Thus, a motion to strike can be pivotal in determining
whether summary judgment is granted or denied in the
trial court, and also in whether summary judgment is affirmed or reversed on appeal.
A. Requirements for affidavits under Rule 56(e).
Ala. R. Civ. P. 56(e) establishes certain requirements
for summary-judgment affidavits. It states that “[s]upporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”
(emphasis added). In other words, “the evidence presented in the affidavit must be evidence that would be
admissible if presented at trial through the testimony of
the affiant as a sworn witness.”4 Rule 56(e) further provides that “[s]worn or certified copies of all papers or parts
thereof referred to in an affidavit shall be attached thereto
or served therewith” (emphasis added). These same standards apply to deposition testimony and interrogatory
answers offered in support of or in opposition to a summary-judgment motion.5
The Alabama Supreme Court has described Rule
56(e)’s requirements as “mandatory.”6 Affidavits and
other evidence not meeting these specifications are deficient. For example, testimony based on “information
32
and belief ” is not “made on personal knowledge”7; hearsay testimony (unless an exception applies) is not “admissible in evidence”8; affidavits referring to separate,
unattached documents violate the requirement that such
documents must be attached to the affidavit9; and unauthenticated documents do not constitute “sworn or certified copies.”10
B. Necessity of motion to strike.
Despite the “mandatory” requirements of Rule 56(e),
courts may, under certain circumstances, consider evidence that does not meet these standards. In Perry v.
Mobile County, 533 So. 2d 602 (Ala. 1988), the Alabama
Supreme Court adopted federal law holding that a party
must move to strike a defective affidavit in order to prevent the court from considering the affidavit. The Court
stated:
…[W]e adopt the following language from C.
Wright, A. Miller & M. Kane, Federal Practice and
Procedure: Civil 2d § 2738 (1983):
“A party must move to strike an affidavit that violates Rule 56(e); if he fails to do so, he will waive his
objection and, in the absence of a ‘gross miscarriage
of justice,’ the court may consider the defective affidavit. This principle applies to affidavits containing evidence that would not be admissible at trial as
well as to affidavits that are defective in form. The
motion to strike must be timely, [and] the decision
on that question is left to the discretion of the trial
judge.”11
The Court added, “The foregoing is applicable equally
to those affidavits in support of a motion for summary
judgment and to those in opposition to such a motion.”12
Furthermore, it applies to deposition testimony and other forms of evidence, not just affidavits.13
Under Perry’s waiver rule, a motion to strike can make
the difference between winning or losing a summaryjudgment motion, and it may also be the deciding factor
in whether an appellate court affirms or reverses a summary judgment. When there is no objection to inadmissible evidence, the evidence becomes “generally admissible and is not limited as to weight or purpose.”14 The
evidence is to be “given the same weight as if it had been
admissible.”15 Hence, if a party does not move to strike
evidence that is defective under Rule 56(e), a court may
consider the evidence as admissible, and the evidence
may create an issue of fact preventing summary judgment,16 or it may satisfy the burden of the party seeking
summary judgment to establish a prima facie case.17
Alabama courts have applied the waiver rule in a number of cases,18 including McMillian v. Wallis, 567 So. 2d
1199 (Ala. 1990). The plaintiff in McMillian filed a psychologist’s affidavit and deposition testimony in opposition to the defendants’ motion for summary judgment.
The psychologist’s testimony was “based almost exclusively on [a patient’s] hospital records,” which according
to the psychologist demonstrated a history of violent behavior.19 The affidavit did not include the hospital records as attachments, nor were the records included with
the deposition testimony. The defendants did not move
to strike the affidavit or deposition testimony. The trial
court granted summary judgment for the defendants,
and the plaintiff appealed. The Supreme Court stated,
“Nothing in the record affirmatively shows that [the
psychologist] had personal knowledge of [the patient’s]
behavioral history. Thus, without the hospital records
themselves, [the psychologist’s] affidavit and his deposition testimony purporting to describe the substance or
contents of these records constitute inadmissible hearsay.”20 But since the defendants filed no motion to
strike the affidavit or deposition testimony, they “waived
any objection to [the court’s] considering the evidence
contained in” the affidavit and deposition.21 The court
held the “inadmissible hearsay” evidence created an issue
of fact and reversed summary judgment for the defendants.22
It is important to note that according to the federal
law espoused in Perry, a court “may” consider defective
evidence if no motion to strike is filed.23 This means that
courts are permitted, but not required, to consider such
evidence.24 Accordingly, a trial court “may, on its own
motion and without abuse of discretion, properly refuse
to credit an affidavit clearly defective on its face.”25
One Alabama case suggests, however, that in the absence of a motion to strike, a court cannot refuse to consider an affidavit on account of “formal defects” if the
affidavit is “otherwise admissible.”26 The court did not
explain what shortcomings it considered to be merely
“formal,” other than specifying that lack of personal
knowledge is more than a formal defect.27
C. Contents of motion to strike.
Perry states that “[a] motion to strike should specify the
objectionable portions of the affidavit and the grounds
for each objection,” and a “motion asserting only a general challenge to an affidavit will be ineffective.”28 One
way to meet this requirement is to quote a sentence or
paragraph from an affidavit and explain why it is inadmissible, then quote the next objectionable sentence or
paragraph and explain its inadmissibility, and so on. If
only part of the affidavit is inadmissible, the court “will
disregard only the inadmissible portion of the challenged
affidavit and consider the rest of it.”29
D. Raising objection other than by motion to strike.
Since the Alabama Supreme Court has specifically approved it, a motion to strike is the preferred method of
objecting to defective summary-judgment evidence. The
court has also stated, however, that the objection “need
not be made in any particular form.”30 The objection,
in whatever form, should “call the [trial] court’s attention to” the defect and “make the trial court aware of the
inadmissibility.”31
Raising the issue in a responsive brief is probably sufficient.32 Addressing inadmissibility in a motion in limine
seeking to exclude the evidence from trial should also be
adequate.33 Some cases hint that objections asserted during a deposition might suffice as to deposition testimony
(assuming that the objections appear in the transcript or
excerpts filed of record, such that they are actually before
the trial court).34
The Supreme Court has also held that, for testimony
given at a deposition taken under the “usual stipulations,”
“the [summary-judgment] hearing was a proper time to
interpose an objection” to inadmissible testimony.35 The
problem with this approach is that if the hearing is not
transcribed, an oral objection will not appear in the record unless the trial court mentions the objection in a
written order, or unless action is taken to supplement the
record under Ala. R. App. P. 10(d) or 10(f ). An objection that is not of record will not support an appeal.36
Effect of motion to strike, or lack thereof, on appeal.
Filing a motion in the trial court to strike evidence
that does not comply with Rule 56(e) preserves the issue
for appeal.37 It is not necessary that the trial court rule
on the motion.38 In Haygood v. Wesfam Restaurants, Inc.,
675 So. 2d 1312 (Ala. Civ. App. 1996), the Ccourt stated, “The motion to strike was not ruled upon by the trial
court; however, because the deficiencies of the affidavit
were brought to that court’s attention, they are properly
subject to our review.”39 If the trial court does rule on
the motion, the appellate court will review the ruling for
abuse of discretion.40
Failure to move to strike defective evidence can have
33
consequences for appellants and appellees. Unless an
appellant moved to strike or otherwise objected in the
trial court, the appellant will not be able to get summary
judgment reversed on the ground that the evidence was
inadmissible, because an appellate court will not “reverse
[a] trial court’s judgment on grounds not presented to
the trial court.”41 An appellee’s failure to move to strike
evidence submitted in opposition to summary judgment,
on the other hand, can lead to reversal of the judgment.
Although the general rule is that an appellee can seek affirmance on any valid ground shown by the record, even
one not presented to or considered by the trial court,42
the Alabama Supreme Court has held that appellees who
did not move to strike their opponents’ evidence in the
trial court were precluded from arguing on appeal that
the evidence was inadmissible.43
One such case is McMillian, discussed above, in which
the Court reversed summary judgment after finding the
appellees waived objection to inadmissible evidence that
created an issue of fact.44 Another is Cain v. Sheraton
Perimeter Park South Hotel, 592 So. 2d 218 (Ala. 1991),
where the plaintiff filed a physician’s affidavit in opposition to the defendants’ motion for summary judgment.
The defendants did not move to strike the affidavit. The
trial court granted summary judgment for the defendants, and the plaintiff appealed. The defendants argued
the judgment should be affirmed because the physician’s
affidavit was not based on personal knowledge and was
therefore inadmissible. The Supreme Court held, “The
first time any of the defendants objected to the use of the
affidavit came after the case was appealed. Because none
of the defendants called the trial court’s attention to the
claim that [the] affidavit was inadmissible,…the defendants waived their right to object to its use.”45 The Court
reversed the judgment for the defendants.
Southern Energy Homes, Inc. v. Gregor, 777 So. 2d 79
(Ala. 2000) involved a motion to compel arbitration
rather than summary judgment, but it also held that appellees were precluded from arguing that evidence they
had not moved to strike was inadmissible.46 The Court
explained that its holding was based on concerns of fairness:
On the one hand, this Court can affirm the ruling of
a trial court for any valid reason, even one not presented to or considered by the trial court….On the
other hand, the particular case now before us presents a compelling reason of fundamental fairness
not to consider [the plaintiffs’] belated challenge to
the McNutt affidavit. Had [plaintiffs] challenged
the affidavit before the trial court on the ground
that the affidavit violated the hearsay rule or on the
34
more apt ground that it violated the best evidence
ruled by presenting the substance of documents not
in evidence without proving that those documents
were lost, destroyed, or otherwise unavailable, [the
defendant] likely could have remedied the defect
simply by introducing its books and records as business records under Rule 803(6), Ala. R. Evid., and
introducing the warranty tickets as [plaintiffs’] admissions under Rule 801(d)(2), Ala. R. Evid. Our
considering [plaintiffs’] belated challenge to the affidavit would unfairly deprive [the defendant] of
such an opportunity to remedy the defect.47
Justice See, concurring specially, maintained that the
appellees’ failure to move to strike the affidavit in the
trial court, in and of itself and regardless of any fairness
concerns, precluded the Supreme Court from considering the issue. Justice See wrote:
I agree that this Court should not consider the
plaintiffs’ belated challenge to the affidavit, and, in
fact, I believe that this Court cannot consider the
plaintiffs’ belated challenge.
In the trial court, the plaintiffs did not object to the
affidavit or move to strike it. Consequently, they
waived any challenge to the admissibility of the affidavit, and, thus, failed to preserve that issue for this
Court to review….Although this Court can affirm
a trial court’s judgment on any valid legal ground,
even one raised for the first time on appeal, that
ground must be supported by the record….Therefore, this Court cannot consider the plaintiffs’ challenge, unsupported by the record and raised for the
first time on appeal, to the admissibility of the affidavit, even though that challenge is made in support of the trial court’s judgment.48
The situation is different if the record affirmatively
shows that, despite the lack of a motion to strike, the
trial court decided on its own to disregard inadmissible
evidence (e.g., where the trial court stated at a hearing or
in an order granting summary judgment that it would
not consider certain evidence).49 A trial court has this
authority, as Perry says that a court may consider inadmissible evidence if no motion to strike is filed, not that
it must consider the evidence.50 If the appellate court
can ascertain from the record that the trial court chose
to disregard evidence sua sponte, the appellate court will
review the trial court’s decision for abuse of discretion.51
According to Schroeder v. Vellianitis, 570 So. 2d 1220
(Ala. 1990), when an affidavit “clearly violates Rule
56(e)’s standard (‘made on personal knowledge’),” an appellate court will not reverse the trial court for its “failure
to consider [the affidavit], even in the absence of an objection or motion to strike.”52 Schroeder then states that
if an affidavit is “otherwise admissible, formal defects are
waived in the absence of a motion to strike or other objection.”53 This apparently means that a trial court will
be reversed if it refuses to consider an “otherwise admissible” affidavit because of “formal defects” where there is
no motion to strike. Apart from indicating that affidavits
not based on personal knowledge are more-than-formally
defective,54 the Schroeder court did not elaborate on what
constitutes a “formal defect.”
F. Gross-miscarriage-of-justice exception.
Perry states that when a party does not move to strike
a defective affidavit, the court may consider the affidavit unless this would constitute a “gross miscarriage of
justice.”55 This is the “single exception” to the “general
rule that a party’s failure to object to a defective affidavit
waives the defect and precludes that party from raising
the defect on appeal.”56 The Alabama Court of Civil Appeals applied the gross-miscarriage-of-justice exception
in one case, but the Supreme Court reversed the court of
appeals’ decision.
In Nelson v. Elba General Hospital & Nursing Home,
Inc., 828 So. 2d 301 (Ala. Civ. App. 2000), the plaintiff
sued Elba General for medical malpractice causing the
death of the plaintiff ’s father, a resident of the nursing
home. Elba General filed a motion for summary judgment supported by the affidavit of a registered nurse,
who “opined that neither Elba General nor any of its
employees had caused or contributed to [the decedent’s]
death.”57 The plaintiff did not move to strike the nurse’s
affidavit. The trial court entered summary judgment for
Elba General.
The Court of Appeals reversed the judgment. The
Court stated that “[a]lthough a registered nurse may be
qualified to testify as to the standard of care that exists in
the field of medicine applicable to registered nurses and
as to whether that standard of care was breached, a registered nurse is not qualified to testify as an expert with
regard to medical causation.”58 The Court noted that the
plaintiff did not object to the nurse’s affidavit, but decided that considering the nurse’s testimony concerning
causation would constitute a gross miscarriage of justice:
The legislature has not authorized a registered nurse
to make a medical diagnosis. Rather, a registered
nurse is limited to providing ‘care and counselling’
for a patient and works at the direction of a physician. For this reason, it would be a gross miscarriage of justice to enter a summary judgment in favor of Elba General when the testimony supporting
its summary-judgment motion, as to the question
of medical causation, has been provided by a person
who is not authorized to formulate medical diagnoses.59
Elba General petitioned the Supreme Court for certiorari.60 The Supreme Court reversed the Court of Appeals’
decision, finding that the trial court’s consideration of
the nurse’s affidavit was not a gross miscarriage of justice.
The Supreme Court stated:This Court has not found any
reported decision, other than the decision now before
us on certiorari review, in which an appellate court has
reversed a trial court’s summary judgment because the
appellate court found that the trial court’s considering
an unobjected-to defective affidavit constituted a “gross
miscarriage of justice.” Professor Wright supports his
statement of the exception to the rule [in Federal Practice
& Procedure § 2738 (2d ed. 1983)] with citations to cases in which courts note the existence of the exception but
decline to apply it. After reviewing the relevant caselaw
and considering it in light of the facts of this case, this
Court is not convinced that Alabama should be the first
state whose courts accepted the proposition that using a
defective affidavit in support of a motion for summary
judgment caused a gross miscarriage of justice.61
35
The Court noted the “strong policy basis” for “requiring a party to raise an issue before the trial court in order to preserve the issue for appeal,” and concluded that
since the plaintiff did not move to strike the nurse’s affidavit, “[t]his issue was not preserved for review by the
Court of Civil Appeals and thus cannot stand as the basis
for that court’s reversal of the trial court’s judgment.”62
G. Evidence that is not substantial is insufficient.
A party must file “substantial evidence” relevant to the
claim or defense at issue in order to create a genuine issue
of material fact.63 Ala. Code § 12-21-12(d) defines “substantial evidence” as “evidence of such quality and weight
that reasonable and fair-minded persons in the exercise of
impartial judgment might reach different conclusions as
to the existence of the fact sought to be proven.” Thus,
even where a party waives objection to defective evidence
by not moving to strike it, that evidence will not make
any difference if it is not “substantial.” For example, in
Ex parte Diversey Corp., 742 So. 2d 1250 (Ala. 1999), the
Court found that the defendant in a products-liability
case waived objection to an allegedly inadmissible expert
affidavit by not moving to strike it, but went on to determine the affidavit was insufficient to create an issue
of fact because it identified the defendant’s product not
as the cause of the plaintiff ’s injuries but as only one of
several products that could have been the cause.64
Alabama courts have often stated that “conclusory”
testimony does not constitute substantial evidence or is
insufficient to defeat summary judgment.65 Testimony is
conclusory when it expresses a factual or legal conclusion
without stating the underlying facts supporting the
conclusion.66 Examples of such testimony include
plaintiff ’s testimony in a co-employee suit that a company
president “was in charge or responsible for furnishing me
with safe tools to work with and a safe place to work” and
that the president “failed to furnish me with a safe place
to work, thus he is responsible”67; plaintiff ’s testimony
in an inverse-condemnation case that a city’s pedestrian
bridge “hampers ingress to and egress from his property”68;
plaintiffs’ testimony in a fraud action that “[b]ased on
conversations we had with [the defendant companies], we
were informed and believed that no payment had to be
made…until such time as the defects in the automobile
were repaired,” where the plaintiffs did not “identify
the party with whom they claim to have spoken, the
approximate date of the alleged conversation, or the content
of the alleged conversation”69; and plaintiff ’s testimony in
a slip-and-fall case that the substance that caused her to
fall was “murky” and that “you could tell people had been
walking in it,” where the plaintiff “did not explain what the
36
substance was or what about it indicated that people had
been walking in it.”70 The Supreme Court has stated that
a party opposing summary judgment “must bring forth
specific facts,” not “mere conclusory allegations,” in order
“to show that there is a genuine issue of material fact.”71
Alabama courts have also held that testimony
consisting of speculation, conjecture, or guess does not
constitute substantial evidence.72 A witness’s testimony
concerning his or her subjective beliefs or opinions,
unsupported by specific facts of which the witness has
personal knowledge, is speculative.73 Testimony that
one of several things could have caused an injury, but
not showing which was the actual cause, has also been
described as speculative or conjectural.74 Evidence that
“affords nothing more than mere speculation, conjecture,
or guess…is completely insufficient to warrant the
submission of [a] case to the jury.”75
Most of the cases referenced above, holding that conclusory or speculative testimony was inadequate to create
an issue of fact, were decided after Perry. There is no
indication in these cases that any party filed a motion to
strike.76 Some of the decisions specifically note the lack
of such a motion or objection.77 Under these authorities, then, no motion to strike conclusory or speculative
testimony is necessary, because such testimony does not
qualify as substantial evidence, and evidence that is not
substantial is of no consequence. There are, however, a
few decisions indicating that parties who did not move to
strike certain testimony waived arguments that the testimony was conclusory or speculative, so it is preferable to
move to strike such evidence.78
Alabama cases appear to be in conflict on whether hearsay can amount to substantial evidence when no party
moves to strike the hearsay. In Gentle v. Pine Valley Apartments, 631 So. 2d 928 (Ala. 1994), the plaintiff offered
hearsay testimony in opposition to the defendants’ motion for summary judgment. The Supreme Court stated,
“Evidence consisting of inadmissible hearsay statements
does not constitute ‘substantial evidence’ and is insufficient to overcome a motion for summary judgment.”79
The Court also stated, and has said in several other cases,
that “[h]earsay cannot create an issue of fact.”80 There is
no mention in Gentle of the defendants’ having filed any
motion to strike the hearsay. Hence, Gentle suggests that
hearsay can never qualify as substantial evidence, regardless of whether a party moves to strike it.
Other cases indicate that hearsay can be substantial
evidence if there is no motion to strike. According to the
Supreme Court, “[t]he rule that inadmissible evidence,
admitted without objection, should be given the same
weight as if it had been admissible, applies even when
Harmon Dennis Bradshaw, Inc.
37
such evidence is inadmissible hearsay.”81 Although decided under the former scintilla rule82 rather than the
substantial-evidence rule, the Court in McMillian held
that evidence consisting of “inadmissible hearsay” created
an issue of fact requiring reversal of a summary judgment
where the defendants filed no motion to strike.83 The
Court also reversed summary judgment for the defendant in Byrd v. Lamar, 846 So. 2d 334 (Ala. 2002), finding that the defendant waived his argument that hearsay was not substantial evidence by not objecting to the
hearsay in the trial court.84 The Court has also held that
affidavits allegedly containing hearsay were sufficient to
support a motion to compel arbitration and a motion for
new trial where there was no motion to strike.85
Under Alabama law, inadmissible hearsay that is admitted without objection is “not limited as to weight or
purpose.”86 Nonetheless, the definition of “substantial
evidence” requires a court to consider the “quality and
weight” of evidence to determine whether it is “substantial.”87 There is authority from other jurisdictions that
“the probative value or weight of hearsay evidence introduced without objection may depend upon the nature of
the hearsay involved and the facts and circumstances of
the particular case,” and that the hearsay is “lodged in the
case for what it is worth.”88 Thus, whether unobjected-to
hearsay constitutes substantial evidence may have to be
determined case by case. The written or recorded statement of an independent witness given shortly after an
accident, for example, would probably be considered of
greater quality and weight than a party’s testimony about
third-hand information. Other courts have said that it is
also appropriate to consider whether or not the hearsay
“is contradicted by other legal evidence.”89
It is obviously best to avoid having to address whether
hearsay constitutes substantial evidence, by moving to
strike the hearsay.
H. Application of waiver rule outside the summaryjudgment context.
The Alabama Supreme Court has required a motion
to strike inadmissible evidence in cases involving matters
other than summary judgment. In Elizabeth Homes, LLC
v. Cato, 968 So. 2d 1 (Ala. 2007), the court explained
that it “applies, by analogy, the practice under Rule 56,
Ala. R. Civ. P., dealing with summary-judgment motions, to motions to compel arbitration.”90 The Court
held that where the defendant moved for arbitration, and
the plaintiffs did not move to strike an unauthenticated
purchase agreement containing the arbitration provision,
the plaintiffs “waived any objection based on improper
authentication of the purchase agreement.”91
The Court has also said that affidavits in support of a
38
motion for new trial must contain admissible evidence,92
but objections to inadmissible testimony in such affidavits are waived absent a motion to strike.93 In another
case, the Court held that a party waived objection to unauthenticated documents submitted in opposition to a
motion to dismiss for lack of personal jurisdiction by not
moving to strike the documents.94 Thus, the waiver rule
is not confined to summary-judgment proceedings but is
one of broader application.
CONCLUSION
Parties should file a timely motion to strike an opposing party’s evidence that does not comply with Rule
56(e). The motion should specify the objectionable evidence and explain how and why it violates Rule 56(e) or
is inadmissible. The motion to strike may be the deciding factor in whether summary judgment is granted or
denied. The motion also preserves the issue for appeal
and enables the movant to argue inadmissibility of the
evidence in support of reversal or affirmance in the appellate court.
1 William E. Shreve, Jr. is counsel with Phelps Dunbar LLP in Mobile. He graduated from
Davidson College and the University of Alabama School of Law. He is a member of the Appellate
Practice Section of the Alabama State Bar, the Appellate Practice Committee of the Mobile Bar,
and the Amicus Curiae Committee of the Alabama Defense Lawyers Association.
2 See Ex parte Neal, 423 So. 2d 850, 852-53 (Ala. 1982); Holley v. Rane, 655 So. 2d 1068, 1070
(Ala. Civ. App. 1995).
3 Graham v. Sprout-Waldron & Co., 657 So. 2d 868, 874 n.1 (Ala. 1995).
4 11 James W. Moore, Moore’s Federal Practice § 56.14[1][d], at 56-193 (3d ed. 2009).
5 See Car Ctr., Inc. v. Home Indem. Co., 519 So. 2d 1319, 1322 (Ala. 1988).
6 Welch v. Houston County Hospital Bd., 502 So. 2d 340, 342 (Ala. 1987).
7 See Ex parte Head, 572 So. 2d 1276, 1279 (Ala. 1990).
8 See id. at 1280; Crawford v. Hall, 531 So. 2d 874, 875-76 (Ala. 1988).
9 See Carraway v. Kurtts, 987 So. 2d 512, 517 (Ala. 2007); Pettigrew v. LeRoy F. Harris, M.D.,
P.C., 631 So. 2d 839, 841 (Ala. 1993).
10 See Tanksley v. ProSoft Automation, Inc., 982 So. 2d 1046, 1053 (Ala. 2007); Pettigrew, 631 So.
2d at 841-42; Power Equip. Co. v. First Ala. Bank, 585 So. 2d 1291, 1299 (Ala. 1991).
11 Perry, 533 So. 2d at 604-05.
12 Id. at 605.
13 See Kelly v. Panther Creek Plant’n, LLC, 934 So. 2d 1049, 1053 (Ala. 2006); McMillian v.
Wallis, 567 So. 2d 1199, 1205 (Ala. 1990); Berry Mtn. Min. Co. v. American Resources Ins. Co.,
541 So. 2d 4, 5 (Ala. 1989); Glenn v. Vulcan Materials Co., 534 So. 2d 598, 601-02 (Ala. 1988).
14 Neal, 423 So. 2d at 852.
15 Id.
16 See, e.g., Cain v. Sheraton Perimeter Park South Hotel, 592 So. 2d 218, 222 (Ala. 1991);
McMillian, 567 So. 2d at 1205-06; Glenn, 534 So. 2d at 601-02.
17 See, e.g., Ex parte Elba General Hospital & Nursing Home, Inc., 828 So. 2d 308, 311-14 (Ala.
2001); McCullough v. McAnalley, 590 So. 2d 229, 232-33 (Ala. 1991); Berry Mtn. Min. Co., 541
So. 2d at 5; Glenn, 534 So. 2d at 601.
18 See, e.g., Kelly, 934 So. 2d at 1053; Ex parte Diversey Corp., 742 So. 2d 1250, 1253-54 (Ala.
1999); Rickard v. Shoals Distrib. Co., 645 So. 2d 1378, 1381 n.2 (Ala. 1994); Cain, 592 So. 2d
at 222; Glenn, 534 So. 2d at 601-02; Langham v. Wampol, 902 So. 2d 58, 63-64 (Ala. Civ. App.
2004); Golson v. Montgomery Coca-Cola Bottling Co., 680 So. 2d 304, 306 (Ala. Civ. App. 1996).
19 McMillian, 567 So. 2d at 1204-05.
20 Id. at 1205.
21 Id.
22 Id. at 1205-06.
23 Perry, 533 So. 2d at 604-605 (quoting 10A Charles A. Wright, et al., Federal Practice &
Procedure § 2738 (2d ed. 1983)).
24 See Friedel v. City of Madison, 832 F.2d 965, 971 (7th Cir. 1987); Danis v. USN Comm.,
Inc., 121 F. Supp. 2d 1183, 1189 (N.D. Ill. 2000); Becker v. Koza, 53 F.R.D. 416, 419 (D. Neb.
1971); Pierce v. First Commerce Leasing Corp., 2007 WL 2693003, *2 (M.D. Ala. Sept. 10, 2007);
Price v. AIG Hawai’i Ins. Co., 111 P.3d 1, 9-10 (Hawai’i 2005) (Acoba, J., dissenting in part and
concurring in part); 2A C.J.S. Affidavits § 60 (Westlaw 2009).
25 CMS Indus., Inc. v. L.P.S. Int’l, Ltd., 643 F.2d 289, 295 (5th Cir. Unit B 1981) (emphasis
added). See also Schroeder v. Vellianitis, 570 So. 2d 1220, 1223 (Ala. 1990); HomeBingo Network,
Inc. v. Chayevsky, 428 F. Supp. 2d 1232, 1238 (S.D. Ala. 2006); Nedfzvekas v. LTV Copperweld,
356 F. Supp. 2d 904, 908 (N.D. Ill. 2005); In re Dempster, 59 B.R. 453, 458 n.5 (Bankr. M.D.
Ga. 1984); Pierce, 2007 WL 2693003, *2-3; 11 James W. Moore, Moore’s Federal Practice §
56.14[4][a], at 56-238 (3d ed. 2009); 2A C.J.S. Affidavits § 60 (Westlaw 2009).
26 See Schroeder, 570 So. 2d at 1223.
27 Id.
28 Perry, 533 So. 2d at 605 (quoting 10A Charles A. Wright, et al., Federal Practice & Procedure
§ 2738 (2d ed. 1983)).
29 Id.
30 Elba General Hospital, 828 So. 2d at 313. See also Schroeder, 570 So. 2d at 1223 (“formal
defects are waived in the absence of a motion to strike or other objection”) (emphasis added).
31 McCullough, 590 So. 2d at 232-33. See also Lugue v. Hercules, Inc., 12 F. Supp. 2d 1351,
1358 (S.D. Ga. 1997).
32 See Kennedy v. Wells Fargo Home Mortgage, 853 So. 2d 1009, 1010-15 (Ala. Civ. App. 2003);
Lugue, 12 F. Supp. 2d at 1358; CMS, 643 F.2d at 295; Danis, 121 F. Supp. 2d at 1186; New
Hampshire Fire Ins. Co. v. Perkins, 30 F.R.D. 382, 383 (D. Del. 1962); In re Scrimpsher, 17 B.R.
999, 1006-07 (Bankr. N.D.N.Y. 1982).
33 See In re Commercial Loan Corp., 396 B.R. 730, 736 (Bankr. N.D. Ill. 2008).
34 See Byrd v. Lamar, 846 So. 2d 334, 345 (Ala. 2002); McMillian, 562 So. 2d at 1205.
35 Glenn, 534 So. 2d at 601.
36 See Elba General Hospital, 828 So. 2d at 312.
37 See Carter v. Cantrell Mach. Co., 662 So. 2d 891, 893 (Ala. 1995).
38 See Panayiotou v. Johnson, 995 So. 2d 871, 878-79 (Ala. 2008); Haygood v. Wesfam Restaurants,
Inc., 675 So. 2d 1312, 1314 (Ala. Civ. App. 1996).
39 Haygood, 675 So. 2d at 1314.
40 See VanVoorst v. Federal Express Corp., 16 So. 3d 86, 92 (Ala. 2008); Andrews v. Vandiver, 593
So. 2d 65, 67 (Ala. 1991).
41 Birmingham Bd. of Educ. v. Boyd, 877 So. 2d 592, 595 (Ala. 2003). See Elba General Hospital,
828 So. 2d at 312-14; McCullough, 590 So. 2d at 232-33; Berry Mtn. Min. Co., 541 So. 2d at 5;
Glenn, 534 So. 2d at 601.
42 See Laster v. Norfolk So. Ry. Co., 13 So. 3d 922, 937 n.8 (Ala. 2009); Premiere Chevrolet, Inc. v.
Headrick, 748 So. 2d 891, 893 (Ala. 1999); Smith v. Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala.
1988). The court has said that this rule “fails in application only where due-process constraints
require some notice at the trial level, which was omitted, of the basis that would otherwise support
an affirmance....” Liberty Nat’l Life Ins. Co. v. University of Ala. Health Servs. Found’n, 881 So. 2d
1013, 1020 (Ala. 2003).
43 See McMillian, 567 So. 2d at 1204-06; Cain, 592 So. 2d at 222; Byrd, 846 So. 2d at 345-46.
See also Garrison v. Alabama Power Co., 807 So. 2d 567, 571 n.4 (Ala. Civ. App. 2001). Cases not
involving summary judgment but reaching similar results include Elizabeth Homes, LLC v. Cato,
968 So. 2d 1, 4-5 (Ala. 2007) (appellees waived objection to unauthenticated document filed in
support of motion to compel arbitration); Petty-Fitzmaurice v. Steen, 871 So. 2d 771, 774-76
(Ala. 2003) (appellee waived objection to affidavit containing hearsay filed in support of motion
for new trial); Southern Energy Homes, Inc. v. Gregor, 777 So. 2d 79, 81 (Ala. 2000) (appellees
waived objection to affidavit containing hearsay filed in support of motion to compel arbitration).
44 McMillian, 567 So. 2d at 1204-06.
45 Cain, 592 So. 2d at 52.
46 Southern Energy, 777 So. 2d at 81.
47 Id.
48 Id. at 82-83 (See, J., concurring specially) (emphasis in original).
49 Cf. Perry, 533 So. 2d at 604 (implying that appellate court will review trial court’s refusal to
consider evidence if appellate court can be sure from the record that trial court in fact disregarded
evidence).
Procedure § 2738 (2d ed. 1983)). See also Schroeder, 570 So. 2d at 1223; Friedel, 832 F.2d at 971;
CMS, 643 F.2d at 295; HomeBingo Network, 428 F. Supp. 2d at 1238; Nedfzvekas, 356 F. Supp.
2d at 908; Danis, 121 F. Supp. 2d at 1189; Becker, 53 F.R.D. at 419; Dempster, 59 B.R. at 458
n.5; Pierce, 2007 WL 2693003, *2-3; Price, 111 P.3d at 9-10 (Acoba, J., dissenting in part and
concurring in part); 11 James W. Moore, Moore’s Federal Practice § 56.14[4][a], at 56-238 (3d ed.
2009); 2A C.J.S. Affidavits § 60 (Westlaw 2009).
51 See Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004); Corder v. Lucent Techs., Inc.,
162 F.3d 924, 927 (7th Cir. 1998). Cf. CMS, 643 F.2d at 295.
52 Schroeder, 570 So. 2d at 1223.
53 Id. (emphasis added).
54 See id.
Procedure § 2738 (2d ed. 1983)).
56 Elba General Hospital, 828 So. 2d at 313.
57 Nelson, 828 So. 2d at 303-04.
58 Id. at 304.
59 Id.
60 Elba General Hospital, 828 So. 2d 308.
61 Id. at 314.
62 Id.
63 See Ala. Code § 12-21-12(a); S.B. v. Saint James School, 959 So. 2d 72, 81 (Ala. 2006).
64 Diversey Corp., 742 So. 2d at 1253-55. See also McDonald v. Servpro, 581 So. 2d 859, 860-61
(Ala. Civ. App.), cert. denied (Ala. 1991).
65 See, e.g., Kelly, 934 So. 2d at 1057; Brown v. St. Vincent’s Hospital, 899 So. 2d 227, 238-39,
241-42 (Ala. 2004); Reid v. Jefferson County, 672 So. 2d 1285, 1290 (Ala. 1995); Jackson v. Miss
Elizabeth D. Leckie Scholarship Fund, 595 So. 2d 1371, 1373 (Ala. 1992); Salter v. State, 971
So. 2d 31, 35 (Ala. Civ. App. 2007); Walsh v. Douglas, 717 So. 2d 807, 810 (Ala. Civ. App.
1998). These cases address conclusory testimony filed in opposition to summary-judgment motions. In medical-malpractice cases, the supreme court has held that conclusory testimony filed
by defendants in support of motions for summary judgment was sufficient to shift the burden
to the plaintiff to present substantial evidence creating an issue of fact. See Anderson v. Alabama
Reference Labs, 778 So. 2d 806, 811 (Ala. 2000); Swendsen v. Gross, 530 So. 2d 764, 769 (Ala.
1988). See also Heath v. HealthSouth Med. Ctr., 851 So. 2d 24, 29 (Ala. Civ. App.), aff’d, 851
So. 2d 33 (Ala. 2002).
66 See Brown, 899 So. 2d at 241; Huge v. Reid, 468 F. Supp. 1024, 1027 (N.D. Ala. 1979), aff’d,
615 F.2d 916 (5th Cir. 1980); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 242 (Tex.
Ct. App. 2003).
67 Rice v. Deas, 504 So. 2d 220, 221-22 (Ala. 1986).
68 Reid, 672 So. 2d at 1290.
69 Rhodes v. General Motors Corp., 621 So. 2d 945, 949-50 (Ala. 1993).
70 Hose v. Winn-Dixie Montgomery, Inc., 658 So. 2d 403, 405 (Ala. 1995).
71 Charles J. Arndt, Inc. v. City of Birmingham, 547 So. 2d 397, 399 (Ala. 1989).
72 See, e.g., Kelly, 934 So. 2d at 1057; Brushwitz v. Ezell, 757 So. 2d 423, 432 (Ala. 2000); Allstate
Ins. Co. v. Mitsubishi Electronics Am., Inc., 709 So. 2d 1306, 1309 (Ala. Civ. App. 1998).
73 See, e.g., Brown, 899 So. 2d at 241; Irons v. Service Mdse. Co., 611 So. 2d 294, 296 (Ala.
1992); Hollis v. Brock, 547 So. 2d 872, 873 (Ala. 1989); Hall v. Harris, 504 So. 2d 271, 273-74
(Ala. 1987).
74 See, e.g., Brookwood Med. Ctr. v. Lindstrom, 763 So. 2d 951, 956 (Ala. 2000); Diversey Corp.,
742 So. 2d at 1254-55; McDonald, 581 So. 2d at 860-61.
75 Brushwitz, 757 So. 2d at 433 (internal quotation marks omitted).
76 See Kelly, 934 So. 2d 1049; Brown, 899 So. 2d 227; Brookwood Med. Ctr., 763 So. 2d 951;
Brushwitz, 757 So. 2d 423; Diversey Corp., 742 So. 2d 1250; Reid, 672 So. 2d 1285; Hose, 658
So. 2d 403; Rhodes, 621 So. 2d 945; Irons, 611 So. 2d 294; Jackson, 595 So. 2d 1371; Hollis,
547 So. 2d 872; Salter, 971 So. 2d 31; Walsh, 717 So. 2d 807; Allstate Ins. Co., 709 So. 2d 1306;
McDonald, 581 So. 2d 859.
77 See Diversey, 742 So. 2d at 1253; McDonald, 581 So. 2d at 860.
78 See Evans v. First Nat’l Bank, 9 So. 3d 488, 490 (Ala. Civ. App. 2008); Garrison, 807 So. 2d
at 571 n.4; Golson, 680 So. 2d at 306. Perry also found that a defendant waived objection to
an affidavit containing “speculative and conclusory statements,” but the waiver did not affect
the outcome. The court went on to hold that even considering the affidavit, the defendant was
entitled to summary judgment. Id., 533 So. 2d at 604-05.
79 Gentle, 631 So. 2d at 931.
80 Id.; Schroeder, 570 So. 2d at 1223; Head, 572 So. 2d at 1280. See also Hand v. Greensprings
Storage, 678 So. 2d 1187, 1188 (Ala. Civ. App. 1996).
81 Gurganus v. Kiker, 286 Ala. 442, 447-48, 241 So. 2d 113, 118 (1970).
82 Under the scintilla rule, “a question must go to the jury, if the evidence, or any reasonable
inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the
smallest trace, or a scintilla in support of the theory of the complaint.” Kilcrease v. Harris, 288
Ala. 245, 252, 259 So. 2d 797, 802 (1972). Ala. Code § 12-21-12(b) abolished the scintilla
rule.
83 McMillian, 567 So. 2d at 1205-06.
84 Byrd, 846 So. 2d at 345.
85 Petty-Fitzmaurice, 871 So. 2d at 774-76 (motion for new trial); Southern Energy, 777 So. 2d
at 81 (motion to compel arbitration).
86 Neal, 423 So. 2d at 852.
87 See Ala. Code § 12-21-12(d).
88 J.A. Bock, Consideration, in Determining Facts, of Inadmissible Hearsay Evidence
Introduced Without Objection, 79 A.L.R.2d 890, § 14 (1961).
89 Id., § 17.
90 Elizabeth Homes, 968 So. 2d at 4 n.2.
91 Id. at 4-5.
92 See Jefferson County v. Kellum, 630 So. 2d 426, 427-28 (Ala. 1993).
93 See Petty-Fitzmaurice, 871 So. 2d at 774-76.
94 See Ex parte Unitrin, Inc., 920 So. 2d 557, 560 (Ala. 2005).
39
THE ELEVENTH CIRCUIT GIVETH, TAKETH AWAY AND GIVETH AGAIN
By Joshua H. Threadcraft, Esq.
In the wake of the 2007 landmark Eleventh Circuit decision Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir.
2007), defendants and their counsel have been plagued by a
Hamlet like predicament - “to remove, or not to remove?”
Defendants’ greater pause in removing cases from state to federal court was due in no small part to the three-judge panel of
the Court’s (Honorable Gerald Bard Tjoflat, Rosemary Barkett and Stanley Marcus) belief that it is “highly questionable
whether a defendant could ever file a notice of removal on
diversity grounds [. . .] where the defendant, the party with the
burden of proof, has only bare pleadings containing unspecified damages on which to base its notice [ ] without seriously
testing the limits of compliance with Rule 11 .” Seemingly
gone were the days when defendants could marshal factually similar state court cases where damage awards exceeded
$75,000 and feel confident that the case would stay in federal
court. Stated simply, Lowery appeared to stand for the proposition
that a “defendant’s appraisal of the amount in controversy will
ordinarily not provide grounds for his counsel to sign a notice
of removal in good faith absent some other paper providing
the grounds for removal.” During the past 90 days, the U.S. Court of Appeals for
the Eleventh Circuit has issued three opinions of note summarized below, which provide further direction to those seeking
to navigate the road to federal court in the wake of Lowery.
Those opinions provide guidance that defendants desiring to
avoid remand orders which read like one of Shakespeare’s tragedies should heed.
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744 (11th
Cir. June 8, 2010)
Pretka involved a class action lawsuit brought by condominium owners when “[e]xtensive construction delays (and
maybe a downturn in the real estate market) turned the plaintiff’s eagerness for [ ] promised condos into eagerness to get
out of their contracts.” Reversing the trial court’s remand order, a separate three-judge panel of the Court (Honorable J.L.
Edmonson, Ed Carnes and William H. Pryor, Jr.) cracked the
seemingly closed door to removal created by Lowery characterizing the district court’s remand order as misapplying or
overextending Lowery. Specifically, the opinion distinguished
Lowery, stating that the removal in Lowery was based on the
second paragraph of 28 U.S.C. 1446(b) -- where the case
stated by the initial pleading is not removable -- whereas the
removal at issue was based on the first paragraph of Section
1446(b). The panel then rejected as dicta the Lowery Court’s statements that the “receipt from the plaintiff” requirement necessary to establish the amount in controversy applies: (1) to
removals based on the first paragraph of Section 1446(b); and
40
(2) any time a complaint seeks unliquidated damages. The
panel also rejected Lowery to the extent it is interpreted as
prohibiting consideration of evidence supporting a court’s exercise of jurisdiction submitted after a motion to remand is
filed. Judge Pryor also wrote a separate concurrence to express
his doubt as to the related Lowery holding that district courts
may not allow post removal discovery regarding the amount
in controversy under the Class Action Fairness Act (CAFA),
noting that the Court will eventually have to revisit the holding but the present appeal did not present that opportunity
though he had no doubt the opportunity would come.
In sum, Pretka not only limited the applicability of Lowery
to removals brought under the second paragraph of Section
1446(b), allowing removal under the first paragraph of Section 1446(b) absent receipt of other paper from the plaintiff,
but also signaled a potential desire to revisit the Lowery decision. Cappuccitti v. DirecTV, Inc, No. 09-14107, 2010 WL
2803093 (11th Cir. July 19, 2010) (slip opinion)
In this case, the plaintiffs filed a class action lawsuit in federal court, seeking to recover fees charged for canceling subscriptions prior to the expiration date. The defendant moved
to compel arbitration of the plaintiffs’ claims, or in the alternative to dismiss for failure to state a claim upon which relief could be granted. The district court denied the motion
to compel arbitration, but granted the motion to dismiss for
failure to state a claim, and the defendant appealed the former
decision.
Holding that the trial court lacked jurisdiction to entertain the action, a three-judge panel (Honorable Tjoflat, who
authored the Lowery opinion, Charles R. Wilson and David
M. Ebel of the Sixth Circuit Court of Appeals sitting by designation) vacated the trial court’s order, and remanded with
instruction to dismiss the case. The opinion began by noting
that the Court must, as always, consider whether it has subject
matter jurisdiction over the action. After noting that many of
the requirements of original CAFA jurisdiction resemble those
for mass actions removable under CAFA, the panel also noted
that no court of appeals had expressly held that at least one
plaintiff must meet Section 1332(a)’s amount in controversy
requirement to maintain an original CAFA action, and Lowery expressly reserved the question. The panel then held that “in a CAFA action originally filed
in federal court, at least one of the plaintiffs must allege an
amount in controversy that satisfies the current congressional
requirement for diversity jurisdiction provided in 28 U.S.C.
§ 1332(a).” The panel reached this conclusion, stating that
“[w]hile Section 1332(d) may have altered Section 1332(a)
to require only minimal diversity in CAFA actions, there is
no evidence of congressional intent in § 1332(d) to obviate
§ 1332(a)’s $75,000 requirement as to at least one plaintiff,”
adding that “the $75,000 requirement expressly applies in actions removed under CAFA.”
The panel also held that the Supreme Court’s decision in
Exxon Mobil Corp v. Allapattah Services, Inc., 545 U.S. 546
(2005) did not save the Complaint from dismissal because
though the Supreme Court held that 28 U.S.C. § 1367 enables federal courts to exercise jurisdiction over class members
who do not individually meet the amount in controversy requirement where other elements of jurisdiction are present
and at least one of the named plaintiff meets the requirement,
the plaintiff did not even allege one claim that, on an individual basis, approached the minimum amount in controversy
requirement of $75,000.
Though the Capuccitti panel’s holding that a party seeking to remove a case under CAFA must prove that one of the
plaintiff’s claims exceeds $75,000 was dicta, it clearly signals
the existence of a potential jurisdiction limitation on removal
that those seeking to invoke the court’s removal jurisdiction
under CAFA must be prepared to address.
Roe v. Michelin North America, Inc., No. 09-15141,
2010 WL 3033802 (11th Cir. Aug. 2010) (slip opinion)
In this case, the Court of Appeals was faced with the removal of a wrongful death action where the plaintiff demanded an
unspecified amount of damages in the Complaint. The defendant’s Notice of Removal stated that though the plaintiff “did
‘not state a specific amount of damage sought,’ it was facially
apparent from the complaint that the case met the $75,000
amount-in-controversy requirement.” Notably, the plaintiff did not deny that the amount in controversy exceeded
$75,000 but nonetheless moved to remand, contending that
the defendant failed to prove the amount in controversy by a
preponderance of the evidence. The district court denied the
plaintiff’s motion to remand. While a three-judge panel of the Court (Honorable Susan H.
Black, Frank M. Hull and Phyllis A. Kravitch) recognized that
in some cases the burden imposed on those seeking to remove
cases to federal court requires additional evidence demonstrating that removal is proper, “in other cases, however, it may be
‘facially apparent’ from the pleading itself that the amount in
controversy exceeds the jurisdictional minimum, even when
‘the complaint does not claim a specific amount of damages.’”
Notably, the panel recognized that if a defendant alleges
that removability is apparent from the face of the Complaint,
the district court must evaluate whether the Complaint itself
satisfies the defendant’s jurisdictional burden. Importantly,
district courts are not bound by the plaintiff’s representation
regarding its claim, nor must they assume the plaintiff is in the
best position to evaluate the amount in controversy. Rather,
the panel recognized that Eleventh Circuit precedent permits
district courts to make “reasonable deductions, reasonable inferences, or other reasonable extrapolations” from the pleadings to determine whether it is facially apparent that a case
is removable. Stated similarly, “courts may use their judicial
experience and common sense in determining whether the
case stated in a complaint meets federal jurisdictional requirements.” Also noteworthy is the panel’s recognition that:
Sometimes, when a plaintiff’s allegations are viewed in
light of the award factors, it will be clear that the jurisdictional minimum is likely met. In such circumstances,
preventing a district judge from acknowledging the value of the claim, merely because it is unspecified by the
plaintiff, would force the court to abdicate its statutory
right to hear the case. This rule would reward plaintiffs
for employing the kind of manipulative devices against
which the Supreme Court admonished us to be vigilant
[. . .] Both policy and precedent counsel against rewarding such obfuscating tactics.
Thereafter, the panel examined the Complaint and after acknowledging the damage considerations accompanying claims
under Alabama’s wrongful death statute, affirmed the district
court’s holding denying the plaintiff’s motion to remand because the complaint stated a case that more likely than not
exceeds $75,000. While Roe does not signal a return to the days of old -when defendants sought to support removal simply citing state
court cases with similar facts where damages awards exceeded
$75,000 — it does provide support for reference to case law
as grounds supporting a conclusion that the amount in controversy is present. Roe also constitutes additional support for
argument that a defendant is not bound by a plaintiff’s failure
to specify his damages in the Complaint but the amount in
controversy can be proved based on the nature of the claims
for relief, and also provide powerful sound bites for those attacking pleadings that do not specify a plaintiff’s damages.
The lesson to be learned from these three cases is that jurisdictional precedent in the Eleventh Circuit is constantly
changing. And now more than ever, those seeking to gain entry from state to federal court must constantly apprise themselves of the Court’s recent precedent.
Joshua H. Threadcraft is a partner with Burr &
Forman, LLP. The majority of his practice is devoted to commercial litigation, defending financial institutions ranging from banks, credit card
and mortgage companies to insurance companies
in state and federal courts throughout the Southeast. Though Joshua represents clients in state and federal courts
throughout the country, his practice concentrates on litigation
in Alabama, Mississippi and Georgia. Joshua has frequently
defended claims involving the Fair Credit Reporting Act, Fair
Debt Collection Practices Act, the FTC Holder Rule, and alleged violations of state and federal law involving mortgage and
automobile lending institutions and servicers. Joshua has also
defended several high profile defamation actions, and is the editor of the TCPA addendum, a monthly newsletter that summarizes state and federal court case discussing the Telephone
Consumer Collection Practices Act, 42 U.S.C. § 227.
41
Waiver of Alabama’s Psychotherapist-Patient Privilege
through Assertion of Claims for Specific Mental Disorders
Patrick W. Franklin1 and Neal D. Moore, III 2
Plaintiffs routinely claim damages for emotional distress, mental anguish, emotional trauma, anxiety, or other generalized mental damages in addition to their claims
for compensatory damages, pain and suffering, and punitive damages. A plaintiff is entitled to receive compensation for any legitimate worry and anxiety caused
by an accident or injury, but courts view these claims
as incidental to the plaintiff ’s claims for physical injury,
lost wages, and medical expenses. Counsel for defendants have a duty to discover the existence and extent of
a plaintiff ’s claimed emotional distress. Alabama, nonetheless, has placed limits on what a defendant may discover relative to a plaintiff ’s mental health history.
The Alabama Legislature passed a psychotherapistpatient privilege, similar in language to a majority of jurisdictions, which provides a patient the right to refuse to
disclose communication held between the patient and his
psychotherapist. The Legislature passed the psychotherapist-patient privilege, in part, to protect plaintiffs from
unwarranted and intrusive discovery into their mental
health history. The privilege also protects mental health
providers from discovery and depositions, and presumably streamlines a defendant’s discovery to the legitimate
issues presented in the case because claims for general
mental damages are incidental to the primary claims
brought by the plaintiff. All jurisdictions agree the psychotherapist-patient privilege serves its protective purpose well when the plaintiff merely alleges general mental
anguish. Some jurisdictions believe the blind application
of the psychotherapist-patient privilege oversteps its purpose when the plaintiff makes a claim for specific mental
disorders such as Generalized Anxiety Disorder3, Major
Depressive Disorder4, and post traumatic stress disorder
(“PTSD”5)6. The Alabama Supreme Court, however, has
not addressed the issue of whether a plaintiff waives the
psychotherapist-patient privilege when he claims damages for specific mental disorders instead of routine, garden
variety mental anguish or emotional distress. This paper
will review Alabama’s psychotherapist-patient privilege,
analyze other jurisdictions’ view of waiver, and make an
argument why Alabama courts should adopt the view
that a plaintiff waives the privilege when the plaintiff
makes a claim for specific mental disorders.
a. Introduction to Alabama’s Psychotherapist-Patient
42
Privilege. Alabama’s psychotherapist-patient privilege provides:
“the confidential relations and communications between
licensed psychologists, licensed psychiatrists, or licensed
psychological technicians and their clients are placed
upon the same basis as those provided by law between
attorney and client, and nothing in this chapter shall be
construed to require any such privileged communication
to be disclosed.” Ala. Code § 34-26-2. Pursuant to the
privilege, a plaintiff has the “right to refuse to disclose,
and to prevent others from disclosing, confidential communication between the patient and the therapist made
for the purpose of diagnosis or treatment of the patient’s
mental condition.” Ex parte United Service Stations, Inc.,
628 So. 2d 501, 503 (Ala. 1993). Like the attorney client privilege on which it was modeled, the psychotherapist-patient privilege is personal to the patient and only
the patient may waive the privilege. Id. at 505.
As in other jurisdictions, an Alabama plaintiff does
not waive the privilege by merely alleging routine, garden variety mental anguish and emotional distress. Ex
parte Western Mental Health Center, 884 So. 2d 835 (Ala.
2003). As written, an Alabama plaintiff also does not
explicitly waive the privilege by alleging specific claims
for mental illnesses or disorders. The Alabama Legislature determined a patient’s relationship with the mental
health provider is sacrosanct to the point it is inviolate
and the Alabama Supreme Court has not yet held otherwise. Other jurisdictions, however, find a plaintiff ’s allegations of specific mental illnesses, such as Major Depressive Disorder, waive the psychotherapist-patient privilege
and, consequently, allow discovery into the plaintiff ’s
mental health history. Unquestionably, in such situations a plaintiff ’s prior history of depression is material
and relevant to his allegations of Major Depressive Disorder resulting from a defendant’s conduct. Courts that
believe the truth finding function of discovery is greater
than a blanket privilege adhere to the “broad view” of
waiver. See e.g. Stevenson v. Stanley Bostitch, Inc., 201
F.R.D. 551(N.D. Ga. 2001); Jackson v. Chubb Corp., 193
F.R.D. 216, 227 (D.N.J. 2000); Sarko v. Penn-Del Directory Co., 170 F.R.D. 127 (E.D. Pa. 1997). Courts that
believe the privilege is impermeable adhere to the “narrow view” of waiver and sustain the privilege regardless
of the circumstances. See e.g. Stevenson v. Stanley Bostitch,
Inc., 201 F.R.D. 551 (N.D. Ga. 2001). Alabama Defense Lawyers Association
b. The Narrow View of Waiver.
The “narrow view” of waiver holds a plaintiff waives
the psychotherapist-patient privilege only if she identifies “the substance of her communications by calling her
psychotherapist as a witness . . . or by testifying to the
substance of the communication herself.” Id. at 557.
(quoting Vanderbilt v. Town of Chilmark, 174 F.R.D. 225,
230 (D. Mass. 1997).
Two major arguments in support of the narrow view
are the need for patient privacy and the need for predictability in the application of the privilege. See e.g. Jaffee
v. Redmond, 518 U.S. 1 (1996); see also Jackson v. Chubb
Corp., 193 F.R.D. 216 (D.N.J. 2000). Regarding patient privacy, narrow view courts find “[i]f the privilege
was rejected, confidential conversations between psychotherapists and their patients would surely be chilled,
particularly when it is obvious the circumstances that
give rise to the need for treatment will probably result
in litigation. Without a privilege, much of the desirable
evidence to which litigants such as petitioner seek access,
for example, admissions against interest by a party, is unlikely to be revealed. This unspoken ‘evidence’ will therefore serve no greater truth-seeking function than if it had
been spoken and privileged.” Jaffee, 518 U.S. 11–12; see
also Stevenson, 201 F.R.D. at 555–56. Regarding the role
of predictability, “if the purpose of the privilege is to be
served, the participants in the confidential conversation
‘must be able to predict with some degree of certainty
whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but
results in widely varying applications by the courts, is
little better than no privilege at all.’” Jackson, 193 F.R.D.
at 220 (citing Jaffee, 518 U.S. 18). (It is important to
note the plaintiffs in Jaffee and Stevenson alleged only garden variety emotional distress and did not claim specific
mental disorders or illnesses).
In essence, these courts find the plaintiff ’s need for
privacy is greater than the interest all parties, judges, and
juries have in the truth finding function of a trial. The
careful consideration of these issues, however, reveals it is
not necessary to adhere to the narrow review in order to
preserve patient privacy or generate a predictable result.
c. The Broad View of Waiver.
The “broad view” of waiver deems a plaintiff waives
the psychotherapist-privilege when he places his mental condition at issue by asserting something other than
a garden variety claim of emotional distress. Jackson,
193 F.R.D. at 227 (finding a plaintiff waives the privilege when she alleges severe depression and PTSD); see
also McKenna v. Cruise, 1998 WL 809533, (S.D. N.Y.,
Nov. 19, 1998); Herman v. City of New York, 1997 WL
666261 (S.D.N.Y., Oct. 24, 1997); Topol v. Turstaff Univ.
of Penn., 160 F.R.D. 476 (E.D. Pa. 1995).
A “garden variety7” claim of emotional distress would
not waive the privilege; however, a claim of specific psychiatric conditions would. Kelly v. Owen, 2007 WL
2580492 (M.D. Ala. Sept. 4, 2007). In Kelly, the plaintiff was placed as a pretrial detainee in the Coosa County
Jail and upon admission to the jail, he and his parents
claimed they informed the defendants he suffered from a
Bipolar disorder and had recently been in treatment for
the disorder. Id. at *1. The plaintiff alleged his confinement caused his mental condition to deteriorate,
induced hallucinations, and led to his being diagnosed
with PTSD. Id.
During the course of the litigation, the defendants
served upon the University of Alabama Hospital (the
“Hospital”) a subpoena duces tecum, which prompted
the Hospital to file a Motion to Quash Subpoena. Id.
The subpoena requested the Hospital to produce:
Any and all medical or psychological records, or
other documents, including, without limitation, all
letters, charts, diagnosis, prognosis, histories, pictures, summaries, records of interviews, records of
treatments, records of any test(s) performed or administered by you or anyone at your request, memoranda, progress notes, opinions, conclusions, office
notes, handwritten notes, bills, operative notes, discharge reports, pharmacy records, pharmacy bills,
and other written materials in your file, in your possession, or under your control that reference, relate,
or pertain to Daniel Bryan Kelley, DOB: June 17,
1971, SSN XXX-XX-XXXX, as well as copies of all
statements for services rendered showing dates of
treatment and charges made.
Id. The Hospital asserted its right to withhold any
documents which include confidential communications
between the plaintiff and any licensed psychotherapist
pursuant to Alabama Code § 34-26-2. Id. The Alabama
federal court denied the motion to quash stating it “cannot fathom a more clear example of voluntary waiver of
the psychotherapist patient privilege.” Id. The court
required the production of all requested mental health
records because the plaintiff asserted claims for specific
mental disorders such as PTSD and Bipolar disorder. Id.
The most cited authority on the broad view of waiver
is Sarko v. Penn-Del Directory Co., 170 F.R.D. 127 (E.D.
Pa. 1997). In Sarko, the plaintiff argued her psychiatric records were privileged under a Pennsylvania statute
nearly identical to Alabama’s § 34-26-2.8 Id. at 129. The
Sarco court found the plaintiff waived the privilege by
43
alleging clinical depression, a specific, diagnosable psychiatric disorder. Id. at 130. The court provided three
reasons for its holding. First, the court noted several jurisdictions prior to Jaffee v. Redmond, 518 U.S. 1 (1996)9
recognized a plaintiff may waive the psychotherapist-patient privilege by placing his mental condition at issue.
Id. Second, the court noted the privilege was analogous
to the attorney-client privilege which is waived when a
plaintiff places the specifics of the communication at issue in litigation. Id. Third, the court reasoned that allowing a plaintiff to allege a mental condition and then
“to hide . . . behind a claim of privilege when that condition is placed directly at issue in a case would simply be
contrary to the most basic sense of fairness and justice.”
Id.
“Broad view” courts find the narrow view inherently
unfair in its absolute application. In essence, “broad
view” courts find the patient’s right to privacy is not absolute and recognize the defendant’s right to material and
relevant evidence is greater than the plaintiff ’s need for
privacy. Moreover, a careful consideration of the broad
view cases reveals the broad view is entirely predictable.
d. The Broad View Protects Patient Privacy10. It is widely accepted that all medical care is dependent
upon candor between the patient and his physician, yet
such records are routinely produced when the medical
care entails treatment for physical ailments. The narrow
view advocates a blind adherence to privacy relative to a
plaintiff ’s mental health records no matter the circumstances of the litigation and no matter the damages the
plaintiff placed at issue. The broad view, like the narrow
view, protects the plaintiff ’s right to privacy in instances
where the plaintiff seeks only to recover for typical emotional distress and mental anguish associated with an accident or injury. The broad view, however, recognizes a
defendant’s right to and the necessity of discovery of the
plaintiff ’s mental health history when the plaintiff alleges
specific mental disorders.
Proponents of the broad view agree claims of sleepless
nights, upset stomachs, crying fits, and general “emotional distress” are insufficient to trump the privilege
The same proponents, though, view claims of PTSD,
Generalized Anxiety Disorder, and Major Depressive
Disorder as a different matter and believe those claims
should be given different treatment. Under the broad
view, the plaintiff ’s privacy remains protected in every
instance except those circumstances where the plaintiff
alleges specific mental disorders. In other words, unless
the plaintiff chooses to put these issues into contest, the
privilege remains impenetrable.
Followers of the narrow view of waiver attach a curious
44
sanctity to mental health records that is never compellingly explained. The narrow view courts never explain
how the contribution of psychotherapy is so distinctive
and the normal evidentiary rules so destructive as to justify blind adherence to the privilege, thereby preventing
the discovery of relevant and material evidence when the
plaintiff alleges specific mental disorders. Moreover, narrow view courts discuss at length the benefit of privacy
that will be purchased by the application of the psychotherapist-patient privilege; nonetheless, these courts ignore the purchase price of injustice (namely, deprivation
of material and relevant evidence) that will result in the
absolute application of the privilege.
The narrow view places the psychotherapist-patient
relationship upon a pedestal high above those of the
doctor-patient relationship and the parent-child relationship, and makes psychotherapy an indispensable
tool in the maintenance of the citizenry’s mental health.
Throughout history, men and women have worked
out their difficulties by talking to their parents, siblings, and friends, none of whom have been awarded
a privilege. If a plaintiff ’s mental health truly deserved
such singular protection, the law would be replete with
various privileges. Still, there is no parent-child privilege and there is no friend-friend privilege. Arguably,
the average citizen’s mental health is more significantly
impaired through lack of candor and advice from his
mother, father, or fried. In circumstances where the
plaintiff specifically places his diagnosable mental illnesses at issue, justice dictates there should also be no
psychotherapist-patient privilege.
As seen in Jaffee above, proponents of the narrow view
of waiver argue privacy leads to candor, and without a
privilege, much of the desirable evidence to which litigants will seek access will not come into being because
the patient will not be honest with his therapist. If true,
the only way psychotherapy thrived prior to the invention of the psychotherapist-patient privilege would be via
mendacity. Surely, it cannot be legitimately argued that
patients paid money to lie to their therapist before the
privilege. Neither courts nor plaintiffs have produced
any evidence that those who seek psychological counseling have the worry of litigation and disclosure in the back
of their minds or that such worry interferes with productive therapy. As seen below, under the broad view of
waiver, the plaintiff will know with certainty his mental
health records will be discoverable only if he chooses to
make a claim for his specific mental illness.
e. The Broad View is Predictable in its Application.
The broad view is absolutely predictable in its application. Advocates of the narrow view claim the broad view
will generate an unpredictable result when, in reality, the
result is predictable but undesirable. Proponents of the
broad view argue there is nothing unpredictable about
the broad view: if specific mental disorders are alleged
to have resulted from the accident or injury, the defendant is entitled to learn about the potential pre-existence
of these specific mental disorders, the diagnosis of these
disorders, and the effect of the disorder on the plaintiff.
The broad view is not unpredictable simply because it
allows access to greater information; instead, it is as predictable as any discovery rule, including the narrow view.
The broad view, if applied only to specific, diagnosable
mental illnesses, is predictable and serves the basic function of the privilege: to protect the plaintiff from unwarranted intrusion into his mental health history in instances where he alleges mere “emotional distress.” If, on
the other hand, the plaintiff alleges specific mental disorders, he waives the privilege and the defendant’s right to
discovery is served.
f. Alabama’s Psychotherapist-Patient Privilege is Not
Absolute in its Application.
Alabama’s psychotherapist-patient privilege is not absolute in its application. Alabama courts already recognize five exceptions to the privilege when a party’s mental
health is placed at issue. The Supreme Court “recognized
an exception to the privilege where, in a child custody
matter, the mental state of one of the parents is at issue and a proper resolution of child custody requires disclosure of otherwise privileged psychiatric records.” Ex
parte Western Mental Health Center, 884 So. 2d 835, 840
(Ala. 2003) (citing United Serv. Stations, Inc., 628 So. 2d
at 504 (quoting Harbin v. Harbin, 495 So. 2d 72, 74 (Ala.
Civ. App. 1986)). The Court has also recognized an exception where a defendant in a criminal trial raises the
defense of insanity. Id. (citing Salmon v. State, 460 So.
2d 334, 337 (Ala. Crim. App. 1984). Additionally, Alabama recognizes exceptions for communications relevant
in proceedings to hospitalize a patient for mental illness,
communications made during a court-ordered examination of the mental or emotional condition of a party or
witness, and communications concerning a breach of
duty arising out of the psychotherapist-patient relationship. Id.
The same logic behind the aforementioned exceptions
should apply when the plaintiff alleges specific mental illnesses. A plaintiff places his mental state in controversy
by alleging specific mental conditions just as the parties
above. As such, Alabama courts should recognize a sixth
exception to the psychotherapist-patient privilege: waiver
of the privilege when a plaintiff alleges specific mental
disorders.
g. Alabama’s Psychotherapist-Patient Privilege Only
Protects Information Made for the Diagnosis or
Treatment of a Patient’s Mental Condition.
A plaintiff who asserts the privilege must show the records he seeks to protect involve “confidential communication between the patient and the therapist
made for the purpose of diagnosis or treatment of the patient’s mental condition.” See Ex parte United Service
Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993) (emphasis added). Rule 503 of the Alabama Rules of Evidence and Alabama Code § 34-26-2 limit the psychotherapist-patient privilege to information relating to
medical treatment or information learned during the
course of treatment which is necessary to enable the
physician to diagnose or treat the patient’s condition.
Statements by the patient must be relevant to treatment by a practitioner in the physician’s field; thus,
statements made to a psychiatrist for the purpose of
medical treatment, or non-mental treatment, are not
privileged and subject to production. See Stidham v.
Clark, 74 S.W.3d 719 (Ky. 2002). Likewise, statements concerning mental issues and disorders made
to a physician who treated a patient only for physical
problems, do not fall within the psychotherapist-patient privilege. See Arias v. State, 593 So. 2d 260 (Fla.
Dist. Ct. App. 3d Dist. 1992). An Alabama plaintiff
cannot protect statements regarding his mental symptoms or disorders made to non-psychotherapists and
he cannot protect statements regarding physical ailments made to psychotherapists. Any such statements
in his psychiatric records must be produced without
consideration of any privilege. Therefore, psychotherapist records pertaining to non-mental disorders
are discoverable despite the psychotherapist-patient
privilege as are all health records maintained by nonpsychotherapists. An Alabama plaintiff is not entitled
to extend the privilege to physicians or doctors who do
not work in the discipline of psychotherapy. Likewise,
the plaintiff is not entitled to protect records maintained by psychotherapists if those records do not pertain to the treatment or diagnosis of his mental health.
h. Selective Waiver of Alabama’s PsychotherapistPatient Privilege
Alabama allows a plaintiff to partially waive the
psychotherapist-patient privilege by providing mental health records from one psychotherapist, but keep
hidden records from a another psychotherapist. See
United Service Stations, 628 So. 2d 501, 505 (Ala.
1993). The unfairness caused by selective waiver in
instances where the plaintiff claims damages for specific, diagnosable mental disorders is evident. The
45
plaintiff can produce records from
one psychotherapist that are favorable to his claims of PTSD or Major Depressive Disorder and withhold unsupportive records from a
second psychotherapist. In such an
instance, the plaintiff controls the
truth-finding function of discovery
to the defendant’s detriment.
The broad view combats the inherent unfairness of a plaintiff ’s
selective waiver of the privilege by
allowing the defendant access to
all mental health records when the
plaintiff alleges specific mental illnesses. Selective waiver demonstrates a patient’s privacy with his
psychotherapist is not paramount to
constructive, beneficial psychotherapy. A plaintiff who waives the privilege as to one psychotherapist but
not the other asserts his privacy with
one psychotherapist is more important than his privacy with the other.
This is nonsensical and is further
support for the broad view of waiver.
Patrick W. Franklin is an associate with the law firm of Ferguson, Frost & Dodson, LLP
in Birmingham, Alabama. Mr.
Franklin focuses his practice
on financial services litigation
Patrick Franklin (FDCPA and FCRA), insurance coverage and litigation, premises liability,
product liability, and personal
injury. He graduated summa
cum laude in 2006 from Texas
Wesleyan University School of
Law, where he served as an Article Editor for the Texas Wesleyan Law Review. Neal Moore
1
Neal D. Moore, III, is a partner at Ferguson,
Frost & Dodson, LLP. He graduated from the
University of Georgia cum laude with honors
and obtained his J.D. from Cumberland School
of Law while serving as a member of the Cumberland Law Review. His practice includes the
defense of fraud, personal injury, product liability and professional malpractice claims. He
is one of the firm’s founding members of the
Financial Litigation Group specializing in the
defense of creditors, debt buyers, and lenders. 2
Generalized Anxiety Disorder is a diagnosable
condition under the Diagnostic and Statistical
Manual IV-Text Revision.
3
Major Depressive Disorder is a diagnosable
condition under the Diagnostic and Statistical
Manual IV-Text Revision.
4
PTSD is a diagnosable condition under the
Diagnostic and Statistical Manual IV-Text Revision.
5
This does not represent an exhaustive list of potential specific mental disorders. These three diagnosable disorders, however, will be referenced
as examples throughout the paper.
6
The court in Johnson v. Trujillo, 977 P. 2d 152
(Colo. 1999), defined garden variety emotional
distress damages as those which are incident to
the plaintiff ’s injuries and which do not exceed
an ordinary person’s experience.
7
The court, however, addressed the waiver issue under federal law as the plaintiff ’s claims
stemmed from violations of the Americans with
Disabilities Act.
8
9
The Jaffe court, much like Ala. Code § 3426-2, established communications between a
psychotherapist and a patient in the course of
diagnosis or treatment are privileged and, therefore, protected from compelled disclosure.
Many of the arguments set forth in this section are attributable to Associate Justice Antonin
Scalia’s dissent in Jaffee v. Redmond, 518 U.S. 1,
18 (1996).
10
i. Conclusion
Alabama’s psychotherapist-patient
privilege protects plaintiffs from
enduring overly-intrusive discovery into their mental health history
when they make a claim for routine,
garden variety mental anguish and
emotional distress. As written, Alabama’s psychotherapist-patient privilege also prevents defendants from
discovering relevant and material
evidence when the plaintiff makes
a claim for specific mental disorders. The majority of jurisdictions
have addressed this issue and found
a plaintiff waives the privilege when
he alleges specific mental disorders
such as PTSD and Major Depressive
Disorder. This view protects the defendant by allowing discovery of essential information while providing
the plaintiff with a predictable rule
that acknowledges the patient’s need
for privacy with his psychotherapist.
46
Among the Members
Hill, Hill, Carter, Franco, Cole & Black, PC is
pleased to announce that Jayne Harrell Williams
has been elected President of the Alabama Council
of School Board Attorneys.
John R. Nix has opened his office for the handling
of defense cases and the mediation of civil disputes –
1325 Dauphin Street, Mobile, AL 36604; 251-4320011; [email protected].
Starnes & Atchison, continues a 35-year history of
trial and appellate practice now as Starnes Davis
Florie LLP.
Holtsford, Gilliland, Higgins, Hitson & Howard
P.C. is pleased to announce that Reed Williams
recently joined the firm as an associate.
Ten ADLA members with Christian & Small have
been recognized as Alabama Super Lawyers 2010.
Managing partner, Deborah Alley Smith, is listed
as one of Alabama’s Top 25 Female Lawyers and as
an Alabama Super Lawyer in the Appellate practice
area. Other ADLA member attorneys selected and
their areas of practice include: LaBella S. Alvis,
Personal Injury Defense; Thomas W. Christian,
Civil Litigation Defense; Robert E. Cooper,
Personal Injury Defense –Medical; Edgar M. Elliott
IV, Personal Injury Defense – Products; James C.
Huckaby Jr., Class Action/Mass Torts; Clarence M.
Small Jr., Alternative Dispute Resolution; Richard
E. Smith, Business Litigation; James B. Carlson,
Personal Injury Defense – Products; and Sharon D.
Stuart, Business Litigation.
Maynard, Cooper & Gale, P.C. is pleased to
announce that Barry Johnson Parker has joined the
firm’s Mobile office as a Shareholder.
Samford & Denson, LLP announces that
Christopher J. Hughes has been appointed Lee
County Circuit Judge, that John V. Denson II has
rejoined the firm, and that Andrew D. Stanley has
joined the firm as an associate.
Maynard, Cooper & Gale, P.C. is pleased to
announce that C. Bradley Cherry, Todd H. Cox
and Kathryn L. Dietrich have joined the firm’s
Birmingham office as associates.
George Walker was elected to the position of
President-Elect of the Association of Defense Trial
Attorneys at its meeting in Boston in April. He will
assume the presidency of the Association in April
2011. He will also commence a three year term on
the DRI Board of Directors at its meeting in October
in San Diego.
Slaten & O’Connor, P.C. announces the relocation
of its office to 5960 Carmichael Place, Suite 200,
Montgomery, Alabama 36117.
M. Kathleen Miller, Managing Partner at Armbrecht
Jackson, LLP, is pleased to announce the following
have joined the Firm as attorneys: Steven C.
Pearson, Timothy A. Heisterhagen and J. Harris
Oppenheimer.
In January 2010, Brandy Murphy Lee of Lee Law
Firm, LLC joined the Red Mountain Law group;
[email protected]; 205-328-9445, ext. 405.
Ely & Isenberg, LLC, is pleased to announce the
opening of its Auburn office at 165 East Magnolia
Avenue, Suite 223, Auburn, AL 36830, and is
pleased to announce that Susan H. McCurry has
joined the firm in its Auburn office.
Phelps Dunbar LLP is pleased to announce its
expansion into Alabama through a combination
with the firm Lyons, Pipes & Cook, PC, effective
July 1, 2010.
47
Report From The Amicus Curiae Committee
RECENT AMICUS CURIAE BRIEFS
SUBMITTED BY ADLA AND UPDATES
REGARDING MATTERS IN SUPPORT OF
WHICH AMICUS BRIEFS WERE PREVIOUSLY
SUBMITTED
ADLA is pleased to report that on August 5, 2010,
a three-judge panel of the Eleventh Circuit Court of
Appeals affirmed, with opinion, the decision by Judge
Myron Thompson to refuse to remand an Alabama
wrongful death case. Roe v. Michelin North America,
Inc., No. 09-15141, 2010 WL 3033802 (11th Cir. Aug.
2010). The panel recognized that although in some
cases the burden upon defendants seeking to remove a
matter to federal court requires additional evidence to
demonstrate that removal is proper, “[i]n other cases,
however, it may be ‘facially apparent’ from the pleading
itself that the amount in controversy exceeds the jurisdictional minimum, even when ‘the complaint does not
claim a specific amount of damages.’” The panel further recognized that “courts may use their judicial experience and common sense in determining whether the
case stated in a complaint meets federal jurisdictional
requirements.” ADLA’s brief was written by Joana S.
Ellis, Of Counsel with Holtsford, Gilliland, Higgins,
Hitson & Howard, P.C.
On August 18, 2010, ADLA submitted an amicus
curiae brief to the Alabama Court of Civil Appeals in
Hudson v. Renosol Seating, LLC. The issue briefed by
ADLA concerns whether the trial court correctly dismissed the plaintiffs’ intentional tort claims pursuant to
Rule 12(b)(6) on the ground that the claims are barred
by the exclusivity provisions of the Alabama Workers’
Compensation Act. ADLA’s brief was written by Mark
Dukes with Holtsford, Gilliland, Higgins, Hitson &
Howard, P.C.
As a general rule ADLA does not join in briefs amicus
curiae with other organizations except other local defense
associations. However, after thorough consideration,
ADLA’s Executive Committee made an exception and
agreed to submit a joint amicus curiae brief with the Business Council of Alabama on September 2, 2010. That
joint brief addresses another issue of significant importance to the clients of the defense bar, i.e., whether the
appropriate statute of limitations for a wantonness claim
is two years pursuant to Ala. Code § 6-2-38(1) or six years
pursuant to Ala. Code § 6-2-34(1).
48
Sharon Stuart
Chair
ADLA POLICY RE: REQUESTS FOR
AMICUS CURIAE BRIEFS IN CASES IN
WHICH AN ADLA MEMBER IS COUNSEL
FOR AN ADVERSE PARTY
At ADLA’s Board of Directors meeting on April 11,
2008, the Board voted to institute the following policy
to be followed when a request for an amicus curiae brief is
made in a case in which an ADLA member is counsel for
an adverse party: (1) the request for an amicus curiae brief
by ADLA will be considered solely on the basis of the
issue presented, and membership in ADLA by a lawyer
whose interest is adverse will not be a factor to be considered by the Amicus Curiae Committee in determining
whether a brief should be submitted on behalf of ADLA;
and (2) The request submitted to the Amicus Curiae
Committee and all attachments thereto, the names of
the Amicus Curiae Committee members considering the
request for the brief, the details of the deliberation process, the vote of the Committee members, and the name
of the ADLA member who has been asked to write the
brief shall remain confidential (with the understanding
that the name of the attorney writing the brief will be
disclosed when the brief is filed).
ADLA POLICY RE: $2,500 PAYMENT OF FEE
FOR PREPARATION OF AMICUS CURIAE BRIEF
ADLA’s Board of Directors has approved the payment of up to $2,500 per amicus curiae brief, to help
underwrite the costs. In addition to the $2,500 fee, the
Association will reimburse reasonable copying and binding costs associated with the brief. ADLA continues to
adhere to the policy that no Association member can accept payment from any party for the preparation of amicus curiae briefs.
REQUESTS FOR AMICUS CURIAE BRIEFS
Please inform the Committee as soon as possible
of issues on appeal that you believe would be of interest
to the Association. The following information should be
furnished with the request: (1) the name of the case and
the appellate court where the case is pending; (2) a summary of the facts of the case and its procedural history;
(3) a statement of all the issues of law involved in the
appeal, identifying those with respect to which ADLA
involvement is sought; (4) the date by which an amicus
brief would have to be filed; and (5) the consent of the attorney of record for the party in support of whom ADLA
involvement is being sought. The request must be in
writing to be considered by the Amicus Curiae Committee. Please submit the request to me at the following
address:
Sharon D. Stuart, Esq.
(205) 795-6588
Christian & Small, LLP
1800 Financial Center, 505 North 20th Street
Birmingham, Alabama 35203
[email protected]
Adla Policy Regarding Amicus Curiae Briefs
It shall be the policy of the Association to authorize the
filing of briefs amicus curiae sparingly and only in appropriate cases as described. Briefs amicus curiae authorized by the Association shall be filed only in the name
of the Association.
A. APPROPRIATE CASES
1. Only at the appellate level and only in the
highest court where the issue is likely to be
determined.
2. Only when such a brief would constitute a
significant contribution to the determination of
the issue or issues involved and only where the
issue or issues sought to be determined is:
(a) of peculiar significance to the interests of the
defense trial bar; or
(b) of peculiar significance to the fair
administration of justice.
3. Only to advance argument with respect to the
legal issues and not factual questions.
B. AUTHORIZATION
Briefs amicus curiae filed on behalf of the Association
shall be authorized by the Executive Committee.
C. APPLICATION
1. Application for authorization of briefs amicus
curiae may be submitted to the President who
will refer the matter to the Executive Committee
with the advice of the Chairman of the Amicus
Curiae Committee.
2. E
ach application shall be accompanied by:
(a) A full statement of the facts of the controversy
and
the status of the litigation;
(b) A statement of the principle or principles
of law to be supported together with an
explanation of the applicant’s reasons for
believing that the case is an appropriate one
for Association involvement;
3. (c) A full disclosure of any personal or
professional interest in the matter of any
applicant or proponent of the application.
D.JOINT BRIEFS
As a general rule, the Association will not join in
briefs amicus curiae with other organizations except
other local defense associations.
E. COSTS
1. The Association will accept NO payment from
any applicant for the preparation or argument of
briefs amicus curiae.
2. Costs of printing and filing the brief shall be
borne by the Association. A fee of up to $2,500
may be paid to the author of the brief, upon
approval of the committee chair.
F. A
PPEARANCES
The brief amicus curiae shall show as counsel for the
Association, the author of the brief, the President of
the Association and Chairman of the Amicus Curiae
Committee.
49
ADLA Welcomes Our New Members!
John Stewart Baker, IV
Nicholas K. Braud
Kathryn Brinkley
Jeremy L. Carlson
Matthew David Conn
Haley A. Cox
Bricker Scott Daughtry
Anna Manasco Dionne
Jordan W. Gerheim
Marchello D. Gray
Cole R. Gresham
Charles T. Grimes
Bryan G. Hale
Matthew B. Hall
Mary Blanche Hankey
Timothy A. Heisterhagen
Joshua G. Holden
Scott P. Hooker
Donald B. Kirkpatrick, II
John E. Lawes
Richard T. Littrell
Tara W. Lockett
David E. Malick
Ellen T. Mathews
John William McClurkin
Zachary David Miller
James E. Mitchell, Jr.
Andrew D. Perreault
Gabrielle E. Reeves
Jennifer H. Reid
Jeremiah James Rogers
Isaac Roitman
Kathryn Housh Rowan
Lee H. Stewart
Walker Stewart
Joshua S. Thompson
M. Jansen Voss
Cynthia Norman Williams
John Reed Williams
Matthew C. Williams
50
Lightfoot Franklin White LLC
Waldrep Stewart & Kendrick LLC
Balch & Bingham LLP
Christian & Small
Friedman Leak Dazzio Zulanas Bowling PC
Lightfoot Franklin White LLC
Carr Allison
Phelps Dunbar LLP
Lightfoot Franklin & White LLC
Richardson Clement PC
Carr Allison
Sirote & Permutt
Armbrecht Jackson LLP
Fish Nelson LLC
Austill Lewis Pipkin PC
Carr Allison
Fish Nelson LLC
Christian & Small
Carr Allison
Richardson Clement PC
Burr & Forman LLP
Galloway Johnson Tompkins Burr Smith
Burr & Forman LLP
Wilson & Berryhill PC
Ferguson Frost Dodson LLP
Butler Pappas Weihmuller Katz Craig LLP
Huie Fernambucq Stewart LLP
Austill Lewis Pipkin PC
Christian & Small
Miller & Christie PC
Burr & Forman LLP
Scott Dukes & Geisler PC
Scott Sullivan Streetman & Fox
Clark Hair & Smith PC
Holtsford Gilliland Higgins Hitson & Howard PC
Estes Sanders & Williams LLC
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Mobile
Birmingham
Birmingham
Birmingham
Birmingham
Daphne
Birmingham
Mobile
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Daphne
Birmingham
Birmingham
Mobile
Birmingham
Birmingham
Birmingham
Mobile
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Birmingham
Montgomery
Birmingham
51
52
ALABAMA DEFENSE LAWYERS ASSOCIATION
4269 Lomac Street, Montgomery, Alabama 36106 334-395-4455 Fax 334-396-0211 Email: [email protected]
I, __________________________________, desire to become a member of the Alabama Defense Lawyers Association,
(Please Print)
and I understand that my application must be approved by the officers and membership committee of ADLA. If accepted
for membership, I hereby consent to receive communications generated from the ADLA membership roster and delivered
via U. S. Mail, fax, e-mail, and any other electronic means.
$150.00 - admitted to practice less than 5 years. ($125.00 Annual dues + $25 initiation fee)
$200.00 - admitted to practice 5 years or more. ($175.00 Annual dues + $25 initiation fee)
Preferred Name (if different from above): ________________________________________________________________
Firm: ____________________________________________________________________________________________
Office Address: ____________________________________City_____________________State______Zip___________
Office Phone: _____/____________________ Cell Phone: _____/_________________ Fax: _____/_______________
Email Address: ____________________________________________________________________________________
Year Admitted to Bar: _____________ ASB #: _________________________ Date of Birth: _____________________
Last 6 Digits of SS#: (example 12-3456) _________________ (for www.adla.org Members Area access)
Spouse Name: ____________________________________ Home Phone: ______/____________________________
PERCENTAGE OF YOUR PROFESSIONAL TIME NOW DEVOTED TO CIVIL LITIGATION – _________%
PERCENTAGE OF YOUR CIVIL LITIGATION TIME NOW DEVOTED TO REPRESENTING THE DEFENSE – ________%
Please list each Defense Counsel Organization and Claimants’ Counsel Organization (including Alabama Association for
Justice) in which you have been a member during the past five years.
______________________________________________
_____________________________________________
______________________________________________
Are you a member of DRI?
Are you a former ADLA member?
Yes
No
Yes
No
Have you ever applied for membership in this Association?
Yes
No
ADLA is committed to the principle of diversity in its membership and leadership. Accordingly, applicants are invited to indicate which
one of the following may best describe them:
African American
Asian American
Caucasian
Hispanic
Native American
Other___________________
_____________________________________________
Applicant Signature
_____________________________________________
Date
We, the undersigned Members of the Association, recommend the applicant for membership.
***(Please note: Sponsors must be current members of ADLA.)***
_____________________________________________
Sponsor #1 (Please Print)
Sponsor #2 (Please Print)
_____________________________________________
_____________________________________________
Sponsor #1 (Signature)
_____________________________________________
Sponsor #2 (Signature)
Please return this application with payment to:
For ADLA Office Use Only
4269 Lomac Street
Montgomery, Alabama 36106
Check #: _______
( F P ) Amt: __________
Rcvd: ____________ Admitted: ___________
53
54
55
4269 Lomac Street
Montgomery, Alabama 36106
prsrt std
U.S. Postage
PAID
Montgomery, AL
Permit 541
2010 Annual Meeting, ADLA Kids’
“Christmas in June”
Ornament Painting Contest
Thank you,
Denise & staff,
Paint’n Place
Sandestin, FL
56
Wheeler Sefton, Age 12, Son of Anne & Pat Sefton (Winner of 9-12 age group)
Isabel Smith, Age 6, Daughter of Stephanie & J. Houston Smith, III (Winner of 5-8 age
group)Defense Lawyers Association
Alabama

October 2010 - Alabama Defense Lawyers Association

Transcription

Similar documents

what`s for sale? - Alabama Butterbean Festival

Sponsor Flyer.LR - Southeast Alabama Mud Track

Alabama Joint Leadership Development Conference

to view this article as a PDF

Clemon will exit U.S. bench

ALABAMA

Tommie Turvey - Alabama Horse Council

View how the story appeared on the page (in PDF)

EXPLOREUM AND CITY OF MOBILE ANNOUNCE NEW