Rel: 08/01/2014




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           SUPREME COURT OF ALABAMA
                               SPECIAL TERM, 2014

                         _________________________

                                  1120292
                         _________________________

                              Frank Gillis, M.D.

                                          v.

 Joey Frazier, as executor of the Estate of Florine Bryant,
                          deceased

                             ____________________

                                    1121205
                             ____________________

                              Frank Gillis, M.D.

                                          v.

 Joey Frazier, as executor of the Estate of Florine Bryant,
                          deceased

                  Appeals from Colbert Circuit Court
                            (CV-07-900030)

MAIN, Justice.
1120292 and 1121205

     Frank Gillis, M.D., appeals from a $5,000,000 judgment

entered   on   a   jury   verdict   against   him   in    favor   of    Joey

Frazier, as executor of the estate of his mother, Florine

Bryant, in this wrongful-death/medical-malpractice case.                  We

affirm the judgment in case no. 1121205; we reverse and remand

in case no. 1120292.

                   I.   Facts and Procedural History

     Bryant died on November 17, 2005.              On April 19, 2007,

Frazier, on behalf of his mother's estate, sued Dr. Gillis, a

family    practitioner,     and   Carol   Davis,    a    certified     nurse

practitioner, 1     alleging   wrongful   death/medical      malpractice

stemming from care rendered to his mother while she was taking

the drug Coumadin.         Dr. George A. Evans, who had treated

Bryant while she was hospitalized in the days before her death

because Dr. Gillis was out of town, was subsequently named as

a defendant. 2




     1
     Frazier and Davis entered into a pro tanto settlement in
September 2009.
     2
     Frazier added Dr. Evans as a defendant in February 2009.
Dr. Evans filed a motion for a summary judgment, asserting
that the claims against him were barred by the statute of
limitations for medical malpractice. The trial court granted
Dr. Evans's summary-judgment motion.

                                    2
1120292 and 1121205

    The case against Dr. Gillis was first tried in October

2010.   At the close of Frazier's case, Dr. Gillis moved for a

judgment as a matter of law ("JML"), arguing that his alleged

negligence was not the proximate cause of Bryant's death.           In

particular,   Dr.   Gillis   argued   that   the   deficient   medical

treatment Bryant received at the hands of other health-care

providers was the proximate cause of Bryant's death and that,

but for that intervening cause, Bryant would have survived.

The trial court entered a JML in Dr. Gillis's favor.           Frazier

appealed to this Court, and we transferred the appeal to the

Court of Civil Appeals pursuant to § 12–2–7(6), Ala. Code

1975.

    The Court of Civil Appeals reversed the trial court's

judgment and remanded the case for a new trial, holding that

the trial court had erred in entering a JML for Dr. Gillis

because, the court reasoned, although the treatment provided

Bryant by other health-care providers was an "intervening

cause," it did not absolve Dr. Gillis of liability.            Frazier

v. Gillis, 85 So. 3d 443, 453 (Ala. Civ. App. 2011).               Dr.

Gillis filed a petition for a writ of certiorari with this

Court, which was denied on December 9, 2011.



                                 3
1120292 and 1121205

    The case was retried in June 2012.      The evidence showed

that on August 29, 2005, Dr. Gillis diagnosed Bryant with

atrial fibrillation and prescribed a blood thinner, Coumadin.

At trial, Dr. Gillis explained that Coumadin requires that

patients be monitored to ensure that their blood does not

become too thin.    The evidence showed that on August 31, 2005,

Bryant's international normalized ratio ("INR") level was 1.9,

which was within the normal therapeutic range.

    On September 7, 2005, Bryant returned to the lab to have

her INR level checked.      Bryant's blood was drawn that day;

however, no INR test was administered.    Instead, Bryant's INR

was not checked again by Dr. Gillis's office until November

14, 2005.

    On November 14, 2005, Bryant's blood was drawn, and her

INR level was 34.2.     Because Dr. Gillis was out of town, his

nurse practitioner, Davis, instructed Bryant to discontinue

the Coumadin.      Davis told Bryant to return on November 18,

2005, to have her INR level checked.

    Bryant returned to Dr. Gillis's office the next day,

November 15, 2005, complaining of nausea, a headache, and

bleeding from the site where her blood had been drawn the day



                                4
1120292 and 1121205

before.     Davis    ordered     another    INR    test.           The    results

indicated that Bryant's INR level was 44.77. 3                 Davis took the

INR test results to Dr. Evans, who was handling Dr. Gillis's

patients   while     Dr.   Gillis   was    out    of       town.     Dr.    Evans

instructed Davis to refer Bryant to a hematologist.                      Davis did

so and told Bryant that if she had any problems she was to go

to the hospital.

     Bryant suffered a massive brain hemorrhage and was found

unresponsive on the morning of November 16, 2005.                    Bryant was

transported   to     the    hospital,     where    it        was   noted     that

laboratory studies revealed profound abnormalities and a large

subdural hematoma.         Bryant was removed from life support on

November 17, 2005.

     At the conclusion of the retrial of the case, the jury

awarded Frazier $5,000,000 in damages for the wrongful death

of   his   mother.         Dr.   Gillis    filed       a    motion       seeking,

alternatively, a JML, a new trial, or a remittitur of the

damages award.      Dr. Gillis argued that the jury's verdict was

unsupported by the evidence          and that it was motivated by

     3
     There was a note attached to the results of the INR test
indicating that Bryant's INR level was actually .89 because a
"mixing study" had been done. The record does not explain the
term "mixing study."

                                     5
1120292 and 1121205

sympathy or bias.           He contended that, in the absence of a new

trial, he was due, under the guideposts set forth in BMW of

North America, Inc. v. Gore, 517 U.S. 559 (1996), and the

factors set out in Hammond v. City of Gadsden, 493 So. 2d 1374

(Ala. 1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218

(Ala. 1989), a remittitur of the jury's punitive-damages award

based on its alleged excessiveness.                  Dr. Gillis argued that

his    age,    76,   and    his   inability     to   pay   $3,000,000   of    the

judgment –- the amount above his liability-insurance coverage

of $2,000,000 --        supported a remittitur of the damages award.

Dr. Gillis also filed a renewed motion to revive § 6-5-547,

Ala.    Code       1975,     which       this   Court      has   held   to        be

unconstitutional, see Smith v. Schulte, 671 So. 2d 1334 (Ala.

1995), and a motion seeking an order striking any damages

awarded       in   excess    of   the    $1,000,000     cap   proscribed     in    §

6-5-547.

       The    parties      engaged   in    posttrial    discovery.      Frazier

sought information regarding Dr. Gillis's financial condition.

Specifically, Frazier requested the production of evidence

related to a potential bad-faith claim by Dr. Gillis against

his    liability-insurance              carrier,     ProAssurance    Indemnity



                                           6
1120292 and 1121205

Company, Inc. ("ProAssurance"). ProAssurance produced certain

documents from its claim file for in camera review by the

trial court.     ProAssurance withheld certain other documents

and filed a privilege log of documents not disclosed.               The

trial court conducted an evidentiary hearing and subsequently

denied Dr. Gillis's postjudgment motions.             On December 7,

2012, Dr. Gillis appealed.

    After Dr. Gillis filed his appeal from the trial court's

denial of his postjudgment motions (case no. 1120292), Dr.

Gillis asked this Court for permission to file a motion with

the trial court for relief from the trial court's judgment

under   Rule   60(b),   Ala.   R.   Civ.   P.   Frazier   opposed   Dr.

Gillis's motion.        On March 5, 2013, this Court entered an

order staying the appeal and allowing Dr. Gillis to file a

Rule 60(b) motion in the trial court.           On June 4, 2013, this

Court remanded the case to the trial court for the limited

purpose of conducting a Hammond/Green Oil hearing concerning

the jury's punitive-damages award.

    On June 20, 2013, the trial court denied Dr. Gillis's

Rule 60(b) motion as time-barred under Rule 60(b)(2) and,

under Rule 60(b)(6), as lacking a showing that Dr. Gillis "did



                                    7
1120292 and 1121205

everything   within   his   power"   to    discover   the   information

supporting   his   motion   before   the    judgment   became    final.

Specifically, the trial court held:

         "2. Gillis is not entitled to any relief from
    the judgment under Rule 60(b)(2) because: (1) Gillis
    has failed to establish that, through the exercise
    of due diligence, he could not have discovered the
    information upon which his motion is based in time
    to file a Rule 59 motion; and (2) Gillis is time-
    barred from obtaining relief under this subsection
    because he failed to request any relief pursuant
    thereto within four months of the initial entry of
    judgment.

         "3. Gillis is not entitled to any relief under
    Rule 60(b)(6) because he has not established that he
    did everything reasonably within his power to
    discover the information upon which his motion is
    based and obtain relief from the verdict before the
    judgment entered thereon became final.

         "4.    Gillis's motion also represented an
    impermissibly remote attack on the jury...[because
    he] continued to investigate the private lives, and
    apparently the private medical records, of the
    jurors and their families for more than nine months
    following their verdict."

    On July 11, 2013, Dr. Gillis filed a second notice of

appeal to this Court, appealing the trial court's denial of




                                 8
1120292 and 1121205

his Rule 60(b) motion (case no. 1121205). 4         On October 1,

2013, this Court consolidated the two appeals. 5

                           II.   Analysis

             A.   Case no. 1121205 -- Rule 60(b) Order

    Dr. Gillis, in case no. 1121205, appeals from the trial

court's denial of his motion for relief from judgment under

Rule 60(b), Ala. R. Civ. P.      Dr. Gillis sought leave from this

Court to seek relief under Rule 60(b) from the trial court's

judgment.    See Rule 60(b), Ala. R. Civ. P. ("Leave to make the

motion need not be obtained from any appellate court except

during such time as an appeal from the judgment is actually

pending before such court.").      This Court granted Dr. Gillis's

motion.     Rule 60(b), Ala. R. Civ. P.,    provides:

    "On motion and upon such terms as are just, the
    court may relieve a party or a party's legal
    representative from a final judgment, order, or
    proceeding for the following reasons: (1) mistake,
    inadvertence, surprise, or excusable neglect; (2)
    newly discovered evidence which by due diligence
    could not have been discovered in time to move for
    a new trial under Rule 59(b); (3) fraud (whether
    heretofore denominated intrinsic or extrinsic),
    misrepresentation, or other misconduct of an adverse
    party; (4) the judgment is void; (5) the judgment


    4
     We note that the trial court filed a return to remand in
case no. 1120292 following the Hammond/Green Oil hearing.
    5
        This case was assigned to Justice Main on March 25, 2014.

                                  9
1120292 and 1121205

    has been satisfied, released, or discharged, or a
    prior judgment upon which it is based has been
    reversed or otherwise vacated, or it is no longer
    equitable that the judgment should have prospective
    application; or (6) any other reason justifying
    relief from the operation of the judgment. The
    motion shall be made within a reasonable time, and
    for reasons (1), (2), and (3) not more than four (4)
    months after the judgment, order, or proceeding was
    entered or taken."

    A Rule 60(b)(2) motion must be brought within four months

of the judgment that it seeks to have set aside.                       "'Newly

discovered evidence' means evidence in existence at the time

of trial of      which the movant was unaware. ... And for a

litigant   to    obtain     a    new   trial    on   the    ground    of   newly

discovered      evidence,       it   must   appear   that    his     reasonable

diligence before trial would not have revealed this evidence

which he failed to discover."               Moody v. State ex rel. Payne,

344 So. 2d 160, 163 (Ala. 1977).               Under Rule 60(b)(2),

    "'the burden is on the moving party to show that he
    has such "newly discovered" evidence and why through
    due diligence it was not discovered in time to seek
    a new trial under Rule 59, [Ala. R. Civ. P.].'
    Gallups v. United States Steel Corporation, 353 So.
    2d 1169 at 1172 (Ala. Civ. App. 1978), citing Plisco
    v. Union R.R., 379 F.2d 15 (3d Cir. 1967). 'Motions
    to set aside judgments on the basis of newly
    discovered evidence are not favored.'     Garland v.
    Garland, 406 So. 2d 415 (Ala. Civ. App. 1981);
    Hudson v. Hudson, 404 So. 2d 82 (Ala. Civ. App.
    1981); Pace v. Jordan, 348 So. 2d 1061 (Ala. Civ.
    App. 1978). The grant or denial of a motion under


                                       10
1120292 and 1121205

    Rule 60(b), [Ala. R. Civ. P.], is discretionary with
    the trial court and we will not disturb its judgment
    on appeal absent an abuse of that discretion. City
    of Daphne v. Caffey, 410 So. 2d 8 (Ala. 1981);
    Pierson v. Pierson, 347 So. 2d 985 (Ala. 1977);
    Garland v. Garland, supra; Hudson v. Hudson, supra."

Beaty v. Head Springs Cemetery Ass'n, Inc., 413 So. 2d 1126,

1128 (Ala. 1982).

    Under   Rule   60(b)(6),   a   party   may   seek   relief   from   a

judgment for any reason justifying relief other than those

reasons enumerated in subsections (1) through (5).               In R.E.

Grills, Inc. v. Davison, 641 So. 2d 225 (Ala. 1994), this

Court stated:

    "The 'catch all' provision of clause (6) of Rule
    60(b) allows a trial court to grant relief from a
    judgment for 'any other reason justifying relief.'
    Barnett v. Ivey, 559 So. 2d 1082, 1084 (Ala. 1990).
    '"Relief under Rule 60(b)(6) is reserved for
    extraordinary circumstances, and is available only
    in cases of extreme hardship or injustice."'
    Chambers County Comm'rs v. Walker, 459 So. 2d 861,
    866 (Ala. 1984) (quoting Douglass v. Capital City
    Church of the Nazarene, 443 So. 2d 917, 920 (Ala.
    1983)). Clause (6), however, is mutually exclusive
    of the specific grounds of clauses (1) through (5),
    and a party may not obtain relief under clause (6)
    if it would have been available under clauses (1)
    through (5).    See, e.g., Insurance Management &
    Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209
    (Ala. 1991); Barnett, 559 So. 2d at 1084; Smith v.
    Clark, 468 So. 2d 138, 140 (Ala. 1985); Chambers
    County Comm'rs v. Walker, 459 So. 2d 861 (Ala.
    1984); Ex parte Hartford Ins. Co., 394 So. 2d 933,
    935-36 (Ala. 1981); Rebel Oil Co. v. Pike, 473 So.


                                   11
1120292 and 1121205

    2d 529 (Ala. Civ. App. 1985); Charles Townsend Ford,
    Inc. v. Edwards, 374 So. 2d 900, 902 (Ala. Civ. App.
    1979)."

641 So. 2d at 229.

              "'Rule 60(b)(6) is an extreme remedy
         and relief under Rule 60(b)(6) will be
         granted only "in unique situations where a
         party can show exceptional circumstances
         sufficient to entitle him to relief."
         Nowlin v. Druid City Hosp. Bd., 475 So. 2d
         469, 471 (Ala. 1985). The purpose of Rule
         60(b)(6) is not to relieve a party from a
         free and deliberate choice the party has
         previously made. City of Daphne v. Caffey,
         410 So. 2d 8, 10 (Ala. 1982).'"

Ex parte Phillips, 900 So. 2d 412, 419 (Ala. 2004) (quoting

Wood v. Wade, 853 So. 2d 909, 912-13 (Ala. 2002)).    A motion

under Rule 60(b)(6) must be brought "within a reasonable time"

after the entry of the judgment.   Rule 60(b).

              "'"What constitutes a 'reasonable
              time' depends on the facts of
              each     case,     taking     i nto
              consideration the interest of
              finality, the reason for the
              delay, the practical ability to
              learn earlier of the grounds
              relied upon, and the prejudice to
              other parties. Adams v. Farlow,
              516 So. 2d 528 (Ala. 1987), cert.
              denied, 485 U.S. 1010, 108 S.Ct.
              1477, 99 L.Ed.2d 705 (1988). In
              addition, the doctrine of laches,
              which denies equitable relief to
              one   guilty   of   unconscionable
              delay   in   asserting   a  claim,


                              12
1120292 and 1121205

                applies to Rule 60(b) motions.
                Waldrop v. Waldrop, 395 So. 2d 62
                (Ala. 1981)."

            "'Ex parte W.J., 622 So. 2d 358, 361 (Ala.
            1993).'

    "[Ex parte]     Hicks,   67   So.   3d   [877,]   880   [(Ala.
    2011)]."

Bates v. Stewart, 99 So. 3d 837, 853 (Ala. 2012).

    In his motion seeking leave from this Court to seek Rule

60(b) relief in the trial court, Dr. Gillis claimed that he

was seeking relief alternatively under Rule 60(b)(2) and Rule

60(b)(6).     When he filed his motion in the trial court, he

requested relief under Rule 60(b); he did not specify the

subsection under which he sought consideration.              The trial

court determined that Dr. Gillis was not entitled to relief

under either Rule 60(b)(2) or Rule 60(b)(6).

    Because Dr. Gillis's motion in the trial court does not

specify any Rule 60(b) ground for relief, we must determine

the nature of Dr. Gillis's motion.       In his motion, Dr. Gillis

alleged that he was     entitled to relief from the judgment

because a juror failed to reveal that her husband had been a

former patient of Dr. Gillis's.         In particular, Dr. Gillis

claimed that the juror did not reveal: (1) that her husband



                                  13
1120292 and 1121205

was a former patient of Dr. Gillis's and (2) that, as a result

of that experience, she held a negative opinion of Dr. Gillis,

did not like Dr. Gillis, and did not consider him to be a good

doctor.

    Initially, as the trial court concluded, if considered a

Rule 60(b)(2) motion based on newly discovered evidence, Dr.

Gillis's motion would be untimely because it was not filed

within four months of the entry of judgment.             Consequently,

the motion would have to fall within Rule 60(b)(6) to be

timely.      Therefore, our inquiry is whether the motion can

properly be considered a Rule 60(b)(6) motion asserting as a

ground "any other reason justifying relief from the operation

of the judgment."

    We must consider whether Dr. Gillis had access to the

information on the juror before the judgment became final so

that, if Dr. Gillis had done everything reasonably within his

power, he could have discovered the information at that time.

"[R]elief [pursuant to Rule 60(b)] should not be granted to a

party who has failed to do everything reasonably within his

power   to   achieve   a   favorable   result   before   the   judgment

becomes final; otherwise, a motion for such relief from a



                                  14
1120292 and 1121205

final    judgment       would    likely     become       a   mere     substitute      for

appeal       and   would    subvert       the     principle         of    finality     of

judgments."        Osbom v. Roche, 813 So. 2d 811, 818 (Ala. 2001).

The     record        reflects     that     the     trial       court         considered

conflicting affidavits concerning the extent of Dr. Gillis's

treatment of the juror's husband and whether the juror had

ever    spoken     disparagingly          about    Dr.       Gillis      at   any   time.

"'Without question, a movant must both allege and prove one of

the grounds set forth in Rule 60 in order to be granted relief

under that rule.'"          Ex parte A&B Transp., Inc., 8 So. 3d 924,

932 (Ala. 2007)          (quoting    Ex parte Baker, 459 So. 2d 873, 876

(Ala. 1984)(emphasis added)). Given the conflicting evidence,

we must conclude that Dr. Gillis failed to meet his "'burden

of proving extraordinary circumstances and/or extreme hardship

or injustice sufficient to entitle him to relief under Rule

60(b)(6).'"        Id.     Therefore, we affirm the judgment of the

trial court in case no. 1121205.

                               B. Case no. 1120292

       1.     Remittitur Issue

       Dr. Gillis next challenges, in case no. 1120292, the

trial       court's    order     denying    his    motion       for      a    remittitur

because, he says, in calculating Dr. Gillis's assets, the

                                           15
1120292 and 1121205

trial court improperly included among his assets a potential

bad-faith    claim   against   his       liability-insurance         carrier,

ProAssurance.        Dr.   Gillis    asks    this   Court       to   overrule

Boudreaux v. Pettaway, 108 So. 3d 486 (Ala. 2012), to the

extent that it held that a potential bad-faith claim and/or

negligent-failure-to-settle          claim    against       a    liability-

insurance carrier may be considered as an asset for purposes

of a Hammond/Green Oil review and a remittitur analysis.

    We accept Dr. Gillis's invitation to overrule Boudreaux

to the extent that it held that, in calculating a defendant's

assets, the trial court may consider the contents of the claim

file compiled by a defendant's liability-insurance carrier and

include among the defendant's assets a potential bad-faith

and/or      negligent-failure-to-settle         claim       against       the

defendant's liability-insurance carrier.              We conclude that

allowing a trial court to consider a defendant's potential

third-party claim against its liability-insurance carrier as

an asset for purposes of a Hammond/Green Oil review and a

remittitur analysis is subjective rather than objective.                   In

a remittitur analysis, the actual assets and liabilities of

the defendant are determinative of the defendant's net worth.

A cause of action against a defendant's liability-insurance

                                    16
1120292 and 1121205

carrier     does   not     accrue   until     a    final   judgment   has   been

entered against the defendant.                    Because at the time of a

Hammond/Green Oil hearing the third-party action has not yet

accrued and is speculative in nature, it cannot be considered

as   part    of    the   defendant's       net     worth   in    determining   a

defendant's assets for purposes of Hammond/Green Oil and the

remittitur analysis.          Accordingly, we reverse the judgment as

to this issue and remand this case for the trial court to

conduct     a   Hammond/Green       Oil    hearing     without     taking   into

consideration        Dr.     Gillis's        potential     bad-faith      and/or

negligent-failure-to-settle                       claim         against     his

liability-insurance carrier.              We further direct that the trial

court, in calculating Dr. Gillis's assets under Hammond/Green

Oil, should not consider Dr. Gillis's wife's portion of their

jointly owned assets.

     2.     Section 6-5-547, Ala. Code 1975

     Dr. Gillis urges this Court to revive § 6–5–547, Ala.

Code 1975, which limited a judgment in a medical-malpractice

action against a health-care provider to $1,000,000, and to

overrule Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995), which

held that the cap on damages in § 6–5–547, Ala. Code 1975, was

unconstitutional.           In support of his argument, Dr. Gillis

                                        17
1120292 and 1121205

cites Ex parte Apicella, 809 So. 2d 865 (Ala. 2001), and Ex

parte Melof, 735 So. 2d 1172 (Ala. 1999).

     This    Court   revisited   the    Schulte   decision   in   Mobile

Infirmary Ass'n v. Tyler, 981 So. 2d 1077 (Ala. 2007), and

declined to revive § 6-5-547.          After considering Schulte and

its progeny and the cases cited by Dr. Gillis, we are not

persuaded to overrule Schulte.

                          III.   Conclusion

     We affirm the judgment of the trial court denying Dr.

Gillis relief under Rule 60(b), Ala. R. Civ. P., in case no.

1121205.     In case no. 1120292, we reverse the judgment insofar

as      it   considered    the     potential       bad-faith      and/or

negligent-failure-to-settle        claim     against   Dr.     Gillis's

liability-insurance carrier and remand the cause.            We decline

to overrule Schulte and revive the statutory cap on damages in

medical-malpractice actions.           On remand, the trial court is

to conduct a Hammond/Green Oil hearing without consideration

of the potential bad-faith claim and without consideration of

Dr. Gillis's wife's portion        of jointly owned assets.           We

instruct the trial court to make a return to remand within 90

days.



                                  18
1120292 and 1121205

    1121205--AFFIRMED.

     Moore, C.J., and Stuart, Bolin, Parker, and Wise, JJ.,
concur.

    Shaw, J., concurs in the result.

    Murdock, J., dissents.

    Bryan, J., recuses himself.

    1120292--REVERSED AND REMANDED WITH INSTRUCTIONS.

    Moore, C.J., and Stuart, Bolin, and Wise, JJ., concur.

    Murdock, J., concurs specially.

    Parker and Shaw, JJ., concur in part and dissent in part.

    Bryan, J., recuses himself.




                             19
1120292 and 1121205

PARKER, Justice (concurring in part and dissenting in part as
to case no. 1120292).

    In case no. 1120292, I concur in part and dissent in

part; I join Justice Shaw's writing insofar as he dissents

from Part II.B.1 of the main opinion.   I concur fully in Part

II.B.2 of the main opinion, refusing to revive § 6-5-547, Ala.

Code 1975.




                              20
1120292 and 1121205

MURDOCK, Justice (dissenting as to case no.                    1121205    and
concurring specially as to case no. 1120292).

                        I. Case No. 1121205:
          Dr. Gillis's Rule 60(b), Ala. R. Civ. P., Motion

      Dr.    Gillis    filed   a   motion   seeking   relief    under    Rule

60(b)(6), Ala. R. Civ. P., from the liability aspect of the

trial court's judgment on the ground that a juror had prior

knowledge of, and a bias against, Dr. Gillis not disclosed by

her   during    voir   dire.       I   respectfully   disagree    with    the

reasons voiced in Part II.A. of the main opinion for rejecting

what I consider to be Dr. Gillis's compelling position on this

issue. 6


      6
     Although the main opinion ultimately denies relief to Dr.
Gillis in relation to his Rule 60(b), Ala. R. Civ. P., motion
(a decision with which I disagree as discussed below), the
main opinion, correctly in my view, does determine that Dr.
Gillis's motion is properly reviewed as a Rule 60(b)(6)
motion. In so doing, the main opinion notes that the motion
was not filed within the four-month window prescribed for a
motion filed under Rule 60(b)(2).

     Unlike Rule 59, Ala. R. Civ. P., the express office of a
Rule 60(b) motion is to relieve a party from a judgment that
has become "final" and enforceable (see, e.g., Smith v.
Cowart, 68 So. 3d 802, 809 (Ala. 2011) (explaining that a
judgment "'"became 'final' within the contemplation of Rule
60(b)"'" only upon the disposition of an intervening
postjudgment motion under Rule 59 (quoting Ex parte Haynes, 58
So. 3d 761, 764 (Ala. 2010))); Arnold v. Sullivan, 131 F.R.D.
129, 131 (N.D. Ind. 1990)(noting that "a Rule 60(b) motion can
only relieve a party from a 'final judgment'")), a condition
that does not come into being until 30 days after the entry of

                                       21
1120292 and 1121205

       The   main   opinion   appears    to   reference   two   separate

reasons for upholding the trial court's denial of Dr. Gillis's

Rule    60(b)(6)    motion.    It   begins    its   analysis    with   the


a judgment (see, e.g., Crisco v. Crisco, 294 Ala. 168, 313 So.
2d 529 (1975) (noting that a judgment remained within the
breast of the court for 30 days, during which it could be set
aside on the court's own motion)). Further, a timely filed
Rule 59(e) motion, which by definition is one filed within
that 30-day period, suspends the finality of the judgment for
purposes of both the availability of, and the time limitations
upon, relief under various provisions of Rule 60(b). E.g.,
Arnold v. Sullivan, supra.

     The trial court entered a judgment on June 18, 2012.
Within 30 days thereafter, Dr. Gillis filed a postjudgment
motion under Rule 59. The trial court ruled on that motion on
October 30, 2012. Dr. Gillis's Rule 60(b) motion was filed on
March 15, 2013, approximately four and one-half months after
October 30. Given the particular procedural history of this
case, including the lack of any basis for suspending the
finality of the trial court's October 30 judgment, the main
opinion is correct to the extent it indicates that Dr.
Gillis's motion was not filed within four months of the date
of that judgment.

     Irrespective of the timing of its filing, however, I
question whether Dr. Gillis's motion goes to the issue of
"newly discovered evidence" within the meaning of Rule
60(b)(2), given that it speaks to the procedural unfairness of
the proceeding and not to evidence relating to the merits of
the action. See § 12-13-11(a), Ala. Code 1975 (identifying as
separate grounds for postjudgment relief "newly discovered
evidence," on the one hand, and "irregularity in the
proceedings" and "[m]isconduct of the jury," on the other
hand); cf. Ex parte Pierce, 851 So. 2d 606 (Ala. 2000)
(holding that a claim of juror misconduct raised in a
postconviction petition shall not be treated as a claim of
newly discovered evidence under Rule 32.1(e), Ala. R. Crim.
P.).

                                    22
1120292 and 1121205

following statement describing the issue that must be decided

in this appeal:

         "We must consider whether Dr. Gillis had access
    to the information on the juror before the judgment
    became final so that, if Dr. Gillis had done
    everything reasonably within his power, he could
    have discovered the information at that time.
    '[R]elief [pursuant to Rule 60(b)] should not be
    granted to a party who has failed to do everything
    reasonably within his power to achieve a favorable
    result before the judgment becomes final; otherwise,
    a motion for such relief from a final judgment would
    likely become a mere substitute for appeal and would
    subvert the principle of finality of judgments.'
    Osbom v. Roche, 814 So. 2d 811, 818 (Ala. 2001)."

__ So. 3d at __.

    After    framing    the   above-stated   procedural   and   timing

issue, however, the main opinion proceeds to address, not the

timeliness   of   Dr.   Gillis's   discovery   and   presentation   of

evidence of the juror's bias, but the substantive merits of

the bias issue raised by that evidence.        In the same paragraph

quoted above, the main opinion suggests that this Court must

defer to a conclusion by the trial court as to the substantive

issue of the juror's bias, stating:      "The record reflects that

the trial court considered conflicting affidavits concerning

the extent of Dr. Gillis's treatment of the juror's husband

and whether the juror had ever spoken disparagingly about Dr.


                                   23
1120292 and 1121205

Gillis at any time."      ___ So. 3d at ___.        Apparently on this

basis, the main opinion then concludes that Dr. Gillis has

failed to meet his burden of proof.

    My problem with the rationale upon which the main opinion

ultimately rests its affirmance of the trial court's judgment

is simply this: The trial court actually did not consider the

conflicting affidavits referenced.           That is, the trial court

did not decide which of those affidavits was more persuasive

or, in turn, reach the substantive issue of bias by the juror

as to which those affidavits "conflict."            Instead, the trial

court's reason for rejecting Dr. Gillis's motion for relief

under Rule 60(b)(6) was in fact the procedural/timing issue

initially noted above.         The trial court explained its own

reasoning as being that Dr. Gillis had "'not established that

he did everything reasonably within his power to discover the

information upon which his motion is based and obtain relief

from the verdict before the judgment entered thereon became

final.'" __ So. 3d at __ (quoting trial court's order).                In

other   words,   the   trial   court   did   not   consider   or   decide

between the dueling versions of the facts relating to whether

the juror did in fact have an undisclosed foreknowledge of and



                                  24
1120292 and 1121205

a bias against Dr. Gillis.        Instead, the trial court merely

concluded that    Dr. Gillis did not seek out and discover the

facts alleged in his Rule 60(b)(6) motion in a timely manner

and, in turn, did not file that motion in a timely manner (a

ground I will address further below).

    As    to    the    merits    of        the   substantive     issue    of

nondisclosure    and   bias,    the    "evidence"     is   not   ore   tenus

evidence that would prevent its initial consideration by this

Court.   First, it is plain on the face of the trial transcript

-- indeed it is undisputed by the plaintiff -- that the juror

made no disclosures during voir dire in response to multiple

questions that should have elicited any foreknowledge by her

of Dr. Gillis.        The question whether those nondisclosures

represent any impropriety, then, turns only on whether there

was anything to disclose.       As to this issue, the only evidence

either party chose to present to the trial court was in the

form of written affidavits.           Because this Court is as capable

as the trial court of reading those affidavits, I question why

we should not proceed to do so and decide the issue. 7

    7
     It is true that a trial judge generally is in a better
position to judge the likelihood of prejudice resulting from
juror misconduct during voir dire.   This is true, however,
largely because of the need in most cases for the judge to

                                      25
1120292 and 1121205



assess the ore tenus answers given by jurors in response to
questions posed during voir dire:

         "'The trial court was able to observe the
         mannerisms, inflections in voice, and other
         characteristics of the jurors whose answers
         were at issue -- in other words, things
         that  could   reflect   upon  the   jurors'
         credibility but that are beyond this
         Court's inherently limited ability to
         review by appellate transcript ....'"

Hood v. McElroy, 127 So. 3d 325, 340 (Ala. 2011) (quoting
Colbert Cnty.-Northwest Alabama Healthcare Auth. v. Nix, 678
So. 2d 719, 723 (Ala. 1995)).

     There are two aspects of this case that make this general
rule inapplicable here.    First, as noted above, the trial
court did not make any findings of probable prejudice; it did
not consider the substance of the affidavits or compare the
"facts" in them to the answers given by the juror during voir
dire. It instead decided the matter on a procedural basis,
finding that Dr. Gillis had failed to prove that his motion
was timely.

     Second, and as also noted, the voir dire questions and
lack of responses in this case are undisputed, there are no
assessments to be made of the juror's answers, and the
"probable prejudice" is undeniable if the "facts" in the
affidavits submitted by Dr. Gillis are to be taken as true.
Because ore tenus testimony would not be involved in assessing
those affidavits, I see no reason why the trial court would be
better positioned than this Court to discern the credibility
of the competing testimony as it now exists in this case.

     Of course, nothing would prevent us from remanding the
case with instructions for the trial court to conduct a
hearing for the purpose of receiving and considering live
testimony from available witnesses. On the record currently
before us, however, and given the particular manner in which
the issue is presented in this case, I see no basis for giving

                              26
1120292 and 1121205



    In   the absence of a hearing and the receipt of live

testimony from the witnesses, it appears to me that the detail

presented, and the employment risks faced by the affiants who

testified on behalf of Dr.       Gillis, make for a compelling

conclusion   in   his   favor.   Dr.   Gillis   submitted   affidavit

testimony from two women who were work-place subordinates of

the juror's and whose affidavits corroborated one another. One

of these affiants testified as follows:

    "5. I would estimate that on at least twenty
    occasions between 2007 and June 11, 2012, it [was]
    necessary for me to leave my work during a work day
    to go to an appointment at Dr. Gillis' office. On
    most of these occasions, I would tell [the juror]
    that I had an appointment at Dr. Gillis' office and
    that I would need to be off from work to attend
    those appointments. On other of these occasions, I
    would tell [the juror] that I needed to be away from
    work for a short time for personal reasons.

    "6. I would estimate that on at least fifty percent
    of the occasions prior to June 11, 2012, when I told
    [the juror] that I needed to attend an appointment
    at Dr. Gillis' office, [the juror] has made negative
    comments about Dr. Gillis. The last such occasion
    that I remember occurred in 2012, before June 11,
    2012.

    "7. An example of the kind of negative comment [the
    juror] made about Dr. Gillis was calling him a
    'quack.' On one occasion, when I was discussing with


deference to the trial court.

                                 27
1120292 and 1121205

    [the juror] my being treated by Dr. Gillis, [the
    juror] said that the only thing wrong with me was
    the doctor I was seeing. On at least five other
    occasions, [the juror] told me that I needed to get
    a different doctor.

    "8. In or around 2007,I was having problems with my
    heart. Dr. Gillis ordered a stress test for me. I
    mentioned this to [the juror]. [The juror] then
    explained to me why she did not like Dr. Gillis.
    Specifically, [the juror] told me that years before,
    her husband had been to see Dr. Gillis and had
    complained to Dr. Gillis that he ... was having pain
    in his stomach or abdominal area. [The juror] told
    me that Dr. Gillis had sent [her husband] home, and
    that shortly thereafter, [her husband] had to be
    seen by another doctor and had to have surgery to
    remove his gallbladder. [The juror] said Dr. Gillis
    had failed to timely and properly diagnose [her
    husband's] condition.

    "9. I cannot remember the exact dates of the
    occasions on which [the juror] made all of the
    comments, but I do recall that [the juror] made
    these kinds of negative comments about Dr. Gillis so
    many times that eventually, instead of telling [the
    juror] that I needed to be away from work to attend
    an appointment at Dr. Gillis' office, I began
    telling [the juror] that I needed to be away from
    work for personal reasons, I do not recall the
    specific date of the last time that [the juror] made
    negative comments about Dr. Gillis prior to June 11,
    2012, but I do recall that [the juror] did ma[k]e
    negative comments about Dr. Gillis in 2012 prior to
    June of 2012."

    Turning   now   to   the   trial   court's   stated   reason   for

denying Dr. Gillis Rule 60(b)(6) relief, I am not sure what it

is that Dr. Gillis should have done differently.          Neither the



                                 28
1120292 and 1121205

trial court nor the main opinion tell us specifically what

more would have been needed for Dr. Gillis to "'establish[]

that he did everything reasonably within his power to discover

the information upon which his motion is based and obtain

relief from the verdict before the judgment entered thereon

became final.'" 8       __ So. 3d at __.

      First and foremost, it is undisputed that the attorneys

for   both    parties    engaged   in    ample   voir   dire   questioning

designed to ferret out any foreknowledge by the juror of Dr.

Gillis.      Among other questions, the venire was asked: "Do you

know Dr. Gillis?"; "Have any of you, or your immediate family

members been a patient at any time of Dr. Gillis?"; "Any of

you, any member of your immediate family or any of the

providers     at   Lister   Healthcare     where    you   felt   they   did

something wrong or caused you or members of your family

harm?"; and " Is there anyone that feels as though you have

      8
     The trial court's approach appears to assume incorrectly
that the plaintiff bears no burden to support his assertion
that Dr. Gillis did not timely move for postjudgment relief.
Dr. Gillis made an adequate showing that he acted timely; it
does not fall to him to disprove all other possibilities of
ways in which he might have been able to acquire the
information at issue even sooner than he did, especially since
neither the plaintiff nor the trial court is able to
articulate or to make any showing as to what more Dr. Gillis
should have done.

                                    29
1120292 and 1121205

some information that you need to give knowing what type of

case this is that you have not been able to give because [the

attorney for the opposing party] and I did not ask the right

question?"      The juror did not respond affirmatively to any of

these questions.

      This Court has been clear: a litigant must be able to

rely upon the information the members of the venire provide in

voir dire. "' [T]he parties in a case are entitled to true and

honest answers to their questions on voir dire, so that they

may exercise their peremptory strikes wisely.'"                   Ex parte

Dixon, 55 So. 3d 1257, 1260 (Ala. 2010) (quoting Ex parte

Dobyne, 805 So. 2d 763, 771 (Ala. 2001)).               "The fairness of

our jury system ... depends on such answers."                    Dunaway v.

State, [Ms. 1090697, April 18, 2014] __ So. 3d __, __ (Ala.

2014).

      The observations made by this Court in Ex parte Harrison,

61   So.   3d   986,   990-91   (Ala.    2010),   a   criminal   case,   are

equally applicable here:

      "The State contends ... that Harrison failed to
      explain in his Rule 32[, Ala. R. Crim. P.,] petition
      why he could not have reasonably discovered the
      alleged juror misconduct in time to assert that
      claim in his motion for a new trial or on appeal.



                                    30
1120292 and 1121205

         "As we indicated in [Ex parte] Burgess, [21 So.
    3d 746 (Ala. 2008),] however, the very nature of
    juror misconduct is such that a defendant typically
    will not be aware that there is any misconduct to be
    discovered. Placing a requirement on a defendant to
    uncover any and all possible juror misconduct
    without reason to know what type of misconduct the
    defendant might be looking for or, in fact, whether
    any misconduct occurred, would require criminal
    defendants to embark on a broad-ranging fishing
    expedition at the conclusion of every criminal trial
    or waive the right to complain of any juror
    misconduct the defendant might ultimately discover.
    Moreover, when it comes to voir dire examination of
    jurors, the defendant has every     right to expect
    that jurors will provide truthful and accurate
    responses. ... As in Burgess, there is no evidence
    in the record indicating that Harrison should have
    been aware before he filed his motion for a new
    trial or his direct appeal that some jurors had
    provided untruthful or inaccurate answers during
    voir dire examination."

    Of course, the foregoing is not to say that upon being

put on notice after trial of the possibility that a juror had

not been forthcoming in response to voir dire questioning, a

litigant   such   as   Dr.   Gillis   has   no   obligation   to   act

reasonably promptly to investigate the issue and to bring it

to the court's attention once the investigation reveals a

sufficient basis for doing so.        Again, however, neither the

trial court nor the main opinion explains what Dr. Gillis

should have done differently in this regard.         Dr. Gillis gave

undisputed testimony in his affidavit that he became aware of


                                 31
1120292 and 1121205

the juror's foreknowledge of him and her alleged bias toward

him only after he had filed his first appeal in case no.

1120292 on December 7, 2012.    Dr. Gillis also gave undisputed

testimony by affidavit that he had no access to the medical

records from his prior practice that would have revealed his

treatment of the juror's husband.     It is apparent that, after

being made aware of the juror's alleged bias, Dr. Gillis's

attorneys proceeded to investigate what      Dr. Gillis had been

told pertaining to the juror.       Over the next several weeks,

they obtained affidavits from two of the juror's subordinates

that, if given credence, would present a compelling case of

juror bias.   Armed with these affidavits, the attorneys then

filed a motion for Rule 60(b)(6) relief on March 15, 2013.

That is, the record appears to reflect that Dr. Gillis took

reasonable and prompt steps to learn of juror bias and filed

his motion reasonably promptly after learning of evidence that

the juror was biased against him and had not been forthcoming

in her answers to voir dire questions and then conducting a

reasonable investigation into the same. 9

    9
     "'What constitutes a "reasonable time" depends on the
facts of each case, taking into consideration the interest of
finality, the reason for the delay, the practical ability to
learn earlier of the grounds relied upon, and the prejudice to

                               32
1120292 and 1121205

    Given     the   foregoing,   I    find   no   basis   for    the   trial

court's conclusion that Dr. Gillis failed to prove that he

could not have discovered the information that was the basis

for his motion before the judgment became final.                At the very

least, given the nature of the issue presented and the lack of

any evidence indicating that Dr. Gillis had cause to look

behind the juror's voir dire answers, Dr. Gillis proved all he

needed to prove to make out a prima facie case of timeliness

on his part.    The plaintiff cannot simply contend that there

is some unidentified further, or sooner, action for which Dr.

Gillis should be held responsible.           In the face of the "case"

made by Dr. Gillis, the position taken by the plaintiff (and

the trial court) amounts to expecting someone in Dr. Gillis's

position to disprove all other possibilities, i.e., to prove

a negative.    The plaintiff (and the trial court) must at least

articulate for us what further action should have been taken

by Dr. Gillis and present evidence thereof sufficient to have

shifted the ultimate burden of proof as to that issue to Dr.

Gillis.   They did neither here.



other parties.'" Ex parte Hicks, 67 So. 3d 877, 880 (Ala.
2011) (quoting Ex parte W.J., 622 So. 2d 358, 361 (Ala.
1993)).

                                     33
1120292 and 1121205

                       II. Case No. 1120292

                      A. Preliminary Matters

    Although I disagree for the reasons stated above with the

main opinion's decision to deny Dr. Gillis relief in the form

of a new trial as to the issue of liability, I agree with the

main opinion in the separate appeal as to the need for the

trial court to reassess the award of punitive damages if a new

trial on liability is not to be had.      I agree with the main

opinion that only Dr. Gillis's assets and his portion of the

assets he holds jointly with his wife should be considered on

remand.   I would add that I find problematic as a basis for

the award made here the trial        court's statement that Dr.

Gillis "has a significant net worth."    The ambiguous nature of

this finding deprives it of any significance as a basis for

appellate review of the specific award actually made. One

million dollars undoubtedly would be considered by many as a

"significant net worth," but it presumably would not provide

a basis for a $5 million punitive-damages award.

                  B. Overruling Boudreaux




                                34
1120292 and 1121205

    Consistent with my concurrence in case no. 1120292, I

fully agree that Boudreaux v. Pettaway, 108 So. 3d 486 (Ala.

2012), should be overruled.   In his special writing, Justice

Shaw disagrees with overruling Boudreaux, stating that he

finds the reasons given in the main opinion for doing so

insufficient.     I write to further   explain my reasons for

concurring in this portion of the main opinion.

    Deciding on an amount of punitive damages to be awarded

based   on   what a defendant might or might not be able to

collect some day    from a third party as a result of some

future, yet unfiled and unlitigated lawsuit –- a lawsuit that

may never be filed or survive to a judgment or settlement –-

requires improper speculation by the court.   As noted below,

especially problematic is the fact that following such an

approach necessarily injects a circularity of reasoning that

logically would support an award of any amount a judge might

select.

    The decision in Boudreaux was based on this Court's 1993

decision in Mutual Assurance, Inc. v. Madden, 627 So. 2d 865

(Ala. 1993), a case that did indeed reference the possibility


                              35
1120292 and 1121205

of assessing a physician's wealth (for purposes of setting a

punitive-damages award) on a possible future recovery by the

physician against his liability insurer on a bad-faith claim.

The statement in Madden referencing such an approach, however,

was expressly recognized therein as dictum.              Other than this

Court   in   Boudreaux,   no   court    --   federal   or   state    --   has

allowed such an approach in the 21 years since Madden was

decided.     In their amicus curiae brief filed in this Court,

the Medical Association of the State of Alabama offers the

following     common-sense     arguments       against      the     approach

referenced in Madden:

         "[The physician's insurer] ProAssurance was not
    a party to this matter and the issue of whether it
    acted negligently and/or in bad faith in failing to
    settle this case has not been properly presented to
    any court. Nonetheless, based on the trial court's
    ruling, Dr. Gillis' hypothetical claims against
    ProAssurance have essentially been reviewed and
    predetermined without ever having been filed or
    litigated. ProAssurance has not had any opportunity
    to present evidence in defense of such claims, nor
    has there been any enforceable ruling on this issue
    -- just the speculative and preliminary finding of
    the trial court."

After noting that the foregoing approach raises due-process

concerns, the amicus brief continues:


                                   36
1120292 and 1121205

         "Second,   the   trial   court's   preemptive
    determination on this issue will now essentially
    force Dr. Gillis to file a lawsuit against his
    insurer, regardless of whether he wants to or not.
    ...

         "....

         "Another flaw in the reasoning of the trial
    court is that it failed to consider litigation
    expenses that the physician must bear in a bad faith
    action. As an example, Dr. Gillis likely would
    recover $3,000,000 in his hypothetical bad faith
    action against his insurer if he prevails. Assuming
    he retains counsel on a contingency basis [and pays
    necessary expenses] ... the physician [ultimately]
    could be short as much as $1,000,000 to $1,300,000.

         "Even more troubling, Dr. Gillis would have to
    take [a] position ... contrary to the position taken
    heretofore by Dr. Gillis, who maintained throughout
    the litigation (with ample evidentiary support and
    expert testimony) that he did not breach the
    standard of care as alleged by the Plaintiff. ...

         "Indeed, Dr. Gillis[] ... would be acting at the
    behest of the Plaintiff[, who] has essentially
    forced his hand to pursue additional litigation in
    hopes   that   the   trial   court's   post-judgment
    determination was correct and that the factfinder
    who ultimately reviews his future bad faith lawsuit
    agrees so that he can one day satisfy the judgment
    against him.

         "[Finally], the Medical Association believes
    that the trial court's ruling should be reversed
    because it will continue to stand (along with the
    $5,000,000 judgment) even if Dr. Gillis does not
    prevail in his hypothetical bad faith lawsuit,
    leaving him no recourse or way to 'correct' the

                             37
1120292 and 1121205

    trial court's erroneous presumption that he would
    prevail and that he would 'never personally feel any
    adverse financial effects of the verdict rendered
    against him.'"

    In   Boudreaux,   I   dissented   and   wrote   specially   to

elaborate upon concerns of the nature identified above:

         "Despite [a] holding [on other grounds], and
    simply because 'the parties request[ed] that we also
    address' the issue, 627 So. 2d at 866, the Court [in
    Madden] went further and addressed whether, in a
    remittitur proceeding, it was proper for a trial
    court to consider a physician's potential for
    recovering from his liability insurer the amount of
    the judgment against him that exceeds the amount of
    his insurance coverage. Id. Thus, the conclusion
    from Madden relied upon by the main opinion is
    dictum and, therefore, it is not binding upon this
    Court in the present case....

         "In asking this Court to overrule the dictum in
    Madden, the defendants do not ask us to dispense
    with a persuasive holding of this Court. Indeed, in
    the only other case in which this Court has
    addressed this issue -- Tillis Trucking Co. v.
    Moses, 748 So. 2d 874 (Ala. 1999) –- the Court
    distinguished   Madden  on   the  ground   that  the
    potential bad-faith claim in Tillis Trucking Co. was
    'too speculative' to affect remittitur. 748 So. 2d
    at 887. I have been unable to locate a court in any
    other jurisdiction -- state or federal -- that has
    decided as the Madden Court did on this issue since
    Madden was decided."

Boudreaux, 108 So. 3d at 511-12 (Murdock, J., dissenting).       I

also made note of a strongly critical        dissent written by


                               38
1120292 and 1121205

Justice   Maddox   in   Madden   and   offered   some   additional

observations:

          "'[T]he trial court cannot determine the
          value of a potential bad faith claim for
          purposes of the Hammond–Green Oil Co.
          hearing   without    engaging    in   rank
          speculation as to the value of such an
          asset and thereby depriving Dr. Evans of
          his constitutional right to a post-verdict
          assessment of the jury's award of punitive
          damages.'

    "627 So. 2d at 867 (Maddox, J., concurring in part
    and dissenting in part) (emphasis added).

         "... Without conducting a separate trial on the
    physician's third-party claim, there is simply no
    way to know how much worth, if any, should be placed
    on a potential bad-faith claim by the defendants
    against their liability-insurance carrier.    As any
    plaintiff's lawyer can attest, the road from the
    accrual of a potential cause of action to the entry
    of a judgment and, eventually, collection of that
    judgment, can be a long one full of pitfalls and
    potential 'exits.'    A great many obstacles –- at
    least some of which would not become apparent until
    litigation actually commences –- could prevent any
    recovery on such a claim, or at least prevent the
    amount of the recovery speculated to be 'in the
    offing' by a trial court in some prior, collateral
    proceeding. Including a potential claim as part of
    a defendant's assets requires a trial court to
    transform itself from a fact-finder into something
    more akin to a fortune teller.

         "Aside from the speculative nature of such a
    claim in itself, there is a problem of timing.    A
    punitive-damages award, like the award in any final

                                 39
1120292 and 1121205

    judgment, is due as soon as the judgment becomes
    final.   If    the   defendant   cannot    or   does  not
    voluntarily pay the award from its liquid assets,
    the plaintiff may seek immediately to execute upon
    the defendant's assets, both liquid and illiquid.
    On the other hand, any judgment to be obtained by
    the defendant upon a potential claim against its
    liability-insurance carrier would come a long time
    -- perhaps years -– after the current judgment is
    enforceable. Thus is raised the very real specter
    that a judgment intended by the law to 'sting' a
    physician or other defendant will instead have the
    effect of financially destroying that physician or
    defendant. See Ex parte Vulcan Materials Co., 992
    So.   2d   1252,    1260  (Ala.    2008)   (noting   that
    '[s]ociety's goal [in permitting punitive damages]
    is to deter –- not to destroy –- the wrongdoer' and
    that     '[t]o     effectuate      that     purpose,    a
    punitive-damages award "'ought to sting in order to
    deter.'"' (quoting Green Oil Co. v. Hornsby, 539 So.
    2d   218,    222    (Ala.   1989),   quoting     in  turn
    Ridout's–Brown Serv., Inc. v. Holloway, 397 So. 2d
    125,   127    (Ala.   1981)   (Jones,    J.,   concurring
    specially))).

         "On an even more fundamental plane, I offer two
    additional observations.      First, any potential
    bad-faith claim the defendants may have against
    their liability insurer did not even exist until the
    judgment in this case was made. See Evans v. Mutual
    Assurance, Inc., 727 So. 2d 66, 67 (Ala. 1999)
    (stating that 'a cause of action arising out of a
    failure to settle a third-party claim made against
    the insured does not accrue unless and until the
    claimant obtains a final judgment in excess of the
    policy limits'). As a corollary, the consideration
    of such a potential recovery creates a circularity
    of reasoning in which the court can, for all
    practical purposes, consider the availability of a
    third party to pay damages in whatever amount might

                               40
1120292 and 1121205

       be set.     As one court has put it, because the
       potential claim 'was not in existence before the
       jury entered its verdict, it could not be considered
       as   part   of   [the   defendants']    net  worth   in
       determining the amount of the award. Otherwise, the
       size of the punitive award could be unlimited....'
       Wransky v. Dalfo, 801 So. 2d 239, 242 (Fla. Dist.
       Ct. App. 2001) (emphasis omitted). As another court
       has explained, a potential claim against an insurer
       should    not   be   considered   in   establishing   a
       punitive-damages award because such an asset would
       make the insurer 'responsible to pay damages in an
       amount that would never have been considered by the
       parties    were    the  insurance    company  not   the
       responsible entity.' Battista v. Western World Ins.
       Co., 227 N.J.Super. 135, 151, 545 A.2d 841, 849
       (N.J.Super.Law Div. 1988), rev'd in part on other
       grounds sub nom., Battista v. Olson, 250 N.J.Super.
       330, 594 A.2d 260 (N.J. Super. App. Div. 1991)."

Id. at 512-13 (final emphasis added).

       It is for the reasons stated above that I concur today in

overruling Boudreaux.

                    C. The Inapplicability of
       Normal Punitive-Damages Remittitur Factors to the
       "Punitive Damages" Awarded in Wrongful-Death Cases


       In addition to the foregoing, my vote today is consistent

with        concerns   on   my   part   as   to   whether   we   can   apply

traditional Hammond/Green Oil 10 and BMW/Gore 11 factors, or at


       10
      Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986),
and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989).
       11
            BMW of North American v. Gore, 517 U.S. 559 (1996).

                                        41
1120292 and 1121205

least many of them, to review that brand of "punitive damages"

awarded in Alabama wrongful-death cases, given (1) that such

damages can be, and often are, awarded for mere negligence,

(2) that there is no separate, underlying compensatory-damages

award against which to make any comparative review of those

damages, see, e.g., Mobile Infirmary Ass'n v. Tyler, 981 So.

2d   1077,    1107   (Ala.    2007)        (Lyons,   J.,     dissenting     and

rethinking the propriety of attempting to apply the second

BMW/Gore factor (comparison of punitive-damages award to the

compensatory-damages award) to Alabama wrongful-death awards)

and (3) that such damages often serve as a practical matter as

a substitute for de jure compensatory damages.

     Alabama stands alone among all the states in the union in

telling its juries in wrongful-death actions that they may

award only what are referred to as "punitive damages."                      Our

precedents indicate that this approach is grounded in the

notion, to which I offer no objection, that it is impossible

to place a dollar value on a human life.             The result, however,

is largely a legal fiction in which, as a practical matter,

juries   do   in   fact   award   damages      not   based    solely   on   the

traditional punitive-damage factors but that, in many cases,


                                      42
1120292 and 1121205

de   facto   serve   as    compensatory   damages     (sometimes   in

combination with an element of punishment).           Thus it is that

"punitive damages" can be awarded against defendants whose

mere negligence causes a death.       See, e.g., Cherokee Elec.

Coop. v. Cochran, 706 So. 2d 1188, 1194 (Ala. 1997) (holding

that death is a great harm and that Alabama can "'attempt to

preserve life by making homicide expensive'" (quoting Louis

Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 116 (1927))).

See also, e.g., McKowan v. Bentley, 773 So. 2d 990 (Ala. 1999)

(affirming   a   verdict   of   $2,000,000   in   a   wrongful-death

medical-malpractice case, even though the trial court stated

that it disagreed with the jury's verdict of negligence). For

that matter, we long have held that mere vicarious liability,

involving no actual culpability on the part of the defendant,

will support an      award of punitive damages for a wrongful

death.   See Louis Pizitz Dry Goods Co., 274 U.S. at 116; Ala.

Code 1975, § 6-11-27 & -29 (the rule that a principal is not

ordinarily liable for punitive damages based merely on the

conduct of an agent or employee does not apply in wrongful-

death cases).




                                 43
1120292 and 1121205

      Alabama     has    chosen   to    treat    wrongful-death      actions

differently -- i.e., to allow the award of what we refer to in

these cases as "punitive damages," despite the absence of some

of or all the normal factors required for doing so -- as a way

to recognize the enormity and finality of the loss of a life

and the public interest in deterring conduct that causes this

loss,    while      simultaneously           continuing       to   give     an

understandable "nod" to the principle that we cannot place a

compensatory dollar value on this loss.                      See Campbell v.

Williams, 638 So. 2d 804, 810-11 (Ala. 1994); McKowan, 773 So.

2d at 992, 998.         Thus it is that, in       Tillis Trucking Co. v.

Moses, 748 So. 2d 874, 889 (Ala. 1999), this Court reaffirmed

the   principle    that    "punitive        damages"   are    appropriate   in

wrongful-death      cases    without        respect    to    the   level    of

culpability on the part of the defendant that normally plays

such an important role in the assessment of such damages:

      "'Participation in actions causing the death of a
      human being, even if slight, can result in liability
      without regard to the degree of culpability, and
      this result, the legislature believes, will lead to
      greater diligence in avoiding the loss of life.'"

748 So. 2d at 889 (quoting Campbell, 638 So. 2d at 810-11).




                                       44
1120292 and 1121205

      Another criterion used to assess the appropriateness of

a traditional punitive-damages award is the relationship of

the punitive-damages award to the harm caused, as measured by

the    underlying       compensatory-damages          award.            Obviously,

however,      because    Alabama    does     not    allow       the    recovery       of

compensatory damages per se in a wrongful-death action, this

factor cannot not be utilized in wrongful-death actions; there

is no mathematical ratio for us to consider.                     Tillis Trucking

Co., 748 So. 2d at        890.

      Yet     another   discordant      note   in    our    attempt       to    apply

normal      punitive-damages/remittitur             factors       to    awards        in

wrongful-death actions, at least in medical-malpractice cases,

is    this:    Green    Oil   contemplates          consideration          of       "the

existence      and   frequency     of   similar      past       conduct"       by    the

defendant,      Green Oil, 539 So. 2d at 223; however, § 6-5-551

of    the   Alabama     Medical    Liability        Act    of    1987    expressly

prohibits the discovery, or introduction at trial, of any

evidence concerning other acts or omissions of a defendant

health-care provider in a medical-malpractice action.                           See Ex

parte Anderson, 780 So. 2d 190 (Ala. 2000).

                D.    Concerns Regarding De Novo Review


                                        45
1120292 and 1121205

       Not only does the unique nature of the "punitive damages"

available     in     Alabama      wrongful-death         jurisprudence       raise

serious questions as to whether the traditional remittitur

factors "work" in that context, it concomitantly calls into

question the use of a de novo standard of review.                      It is true

that the United States Supreme Court has adopted a de novo

standard for assessing the BMW/Gore factors.                     See Robbins v.

Sanders,     927    So.   2d    777,    789    (Ala.   2005).     The    BMW/Gore

factors, however, apply only to federal court consideration of

whether an award passes constitutional muster. For some time,

I have questioned whether that fact requires us to abandon the

deferential        review      that    historically      has    been     given   by

appellate     courts,          including       Alabama    appellate        courts,

especially     to    non-constitutional           challenges      to     punitive-

damages awards (i.e., our Hammond/Green Oil factors).                         Such

abandonment would seem to be especially problematic, given

that   the   trial    court's         decision   in    such    matters    involves

assessment by it of ore tenus evidence.

       I reiterate here what I said in Boudreaux, 108 So. 3d at

513 n.20 (Murdock, J., dissenting):

            "The main opinion applies a de novo standard of
       review to the challenge to the punitive-damages

                                          46
1120292 and 1121205

    award made under state law, see Hammond v. City of
    Gadsden, 493 So. 2d 1374 (Ala. 1986), Green Oil,
    supra, as well to the challenge made based upon the
    United States Supreme Court's decision in BMW of
    North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct.
    1589, 134 L.Ed.2d 809 (1996).     108 So. 3d at 504.
    I struggle somewhat with the notion that some
    deference is not owed a trial judge who has sat
    through the trial along with the jury and is being
    asked to use his or her best judgment in determining
    the level of punitive damages appropriate in the
    case before him or her. Before Acceptance Insurance
    Co. v. Brown, 832 So. 2d 1 (Ala. 2001), and Horton
    Homes, Inc. v. Brooks, 832 So. 2d 44, 57 (Ala.
    2001), our cases clearly recognized that deference
    was owed to a trial court's decision as to
    remittitur and that the appellate standard of review
    was an abuse-of-discretion standard.       See, e.g.,
    General Motors Corp. v. Edwards, 482 So. 2d 1176,
    1198 (Ala. 1985) (overruled on other grounds by
    Schwartz v. Volvo North America Corp., 554 So. 2d
    927 (Ala. 1989) (stating that 'this Court has
    generally followed the principle that a trial court
    is accorded a large measure of discretion in
    determining whether to grant a remittitur' and that
    '[w]e have also generally held that when a trial
    court   exercises   its   discretion    to   order   a
    remittitur, its decision is presumed correct and
    will not be reversed on appeal absent evidence of an
    abuse   of  discretion'   (citing    Todd  v.   United
    Steelworkers of America, 441 So. 2d 889, 892 (Ala.
    1983)))); Henderson v. Alabama Power Co., 627 So. 2d
    878, 910 (Ala. 1993), abrogated by Ex parte
    Apicella, 809 So. 2d 865 (Ala. 2001) (Houston, J.,
    dissenting)   (observing   that    even   before   the
    ratification of the Alabama Constitution of 1901,
    'in cases involving egregious conduct, discretionary
    awards of punitive damages by juries were subject to
    post-judgment review by the courts under an abuse of
    discretion standard'). See also Jenelle Mims Marsh,
    Alabama Law of Damages § 7:6 (6th ed.) (noting the
    application of a de novo standard to challenges to

                             47
1120292 and 1121205

    the federal constitutionality of a punitive-damages
    award under the three guideposts set by Gore, but
    the application of an abuse-of-discretion standard
    to   challenges   to  the   appropriateness   of   a
    punitive-damages award under state law). We are not
    asked in this case, however, to revisit this Court's
    decisions in Brown and Horton Homes ...."

    By    continuing    to   embrace      complete    de   novo    review    of

punitive-damages       awards   in        wrongful-death     actions,        we

essentially place ourselves in the position of the jury and

the trial court, substituting our own judgment to set the only

damages   awardable     in   this     type    of     case.        To   put   it

colloquially:   "Something is wrong with this picture."




                                     48
1120292 and 1121205

SHAW, Justice (concurring in the result as to case no. 1121205
and concurring in part and dissenting in part as to case no.
1120292).

    As to case no. 1121205, Part II.A of the main opinion, I

concur in the result.     As to case no. 1120292, I concur in

part and dissent in part.    Specifically, as to Part II.B.2, I

concur, and as to Part II.B.1, as discussed below, I dissent.

    In Part II.B.1, the main opinion overrules this Court's

recent decision in Boudreaux v. Pettaway, 108 So. 3d 486 (Ala.

2012), "to the extent that it [holds] that a potential bad-

faith claim and/or negligent-failure-to-settle claim against

a liability-insurance carrier may be considered as an asset

for purposes of a Hammond/Green Oil [12] review and a remittitur

analysis." ___ So. 3d at ___.         I respectfully dissent.

    Stare decisis "'is the only thing that gives form, and

consistency,   and   stability   to    the   body   of   the   law.   Its

structural foundations, at least, ought not to be changed

except for the weightiest reasons.'" Exxon Corp. v. Department

of Conservation & Natural Res., 859 So. 2d 1096, 1102 (Ala.

2002) (quoting Bolden v. Sloss–Sheffield Steel & Iron Co., 215



    12
      Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986),
and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989).

                                 49
1120292 and 1121205

Ala.   334,     340,    110    So.    574,       580   (1925)       (Somerville,      J.,

dissenting)).       This Court has turned away from such stability

of the law when it "'has had to recognize on occasion that it

is necessary and prudent to admit prior mistakes and to take

the steps necessary to ensure that we foster a system of

justice      that      is     manageable         and    that     is      fair   to    all

concerned.'" Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 88

(Ala. 2012) (quoting Foremost Ins. Co. v. Parham, 693 So. 2d

409, 421 (Ala. 1997)).

       I see no "prior mistake" of this Court explained in the

main    opinion     that      would    require         that    we     back   away    from

Boudreaux or Mutual Assurance, Inc. v. Madden, 627 So. 2d 865

(Ala. 1993), upon which Boudreaux relied.                       Both Boudreaux and

Madden recognize limits to the application of this principle.

In    Madden,    the        "trial    court      had    before      it    considerable

evidence" to support its determination, 627 So. 2d at 866, and

in    Boudreaux,       "[t]he       trial    court      made    detailed        findings

explaining its evaluation of the merits of the potential claim

and    the    evidence         it    had    considered         in      reaching      that




                                            50
1120292 and 1121205

determination."               108    So.       3d   at       510. 13        However,      the

consideration of a potential bad-faith claim and judgment as

an asset has been rejected by this Court when it is "too

speculative" and is not supported by "considerable evidence."

Tillis Trucking Co. v. Moses, 748 So. 2d 874, 887-88 (Ala.

1999).

      I see no reason to abandon our precedent in Boudreaux and

Madden.         To me, discounting a potential bad-faith claim as an

asset      of   a     defendant     may    result       in    a    windfall         for   the

defendant if an award against the defendant is later paid for

in a judgment entered in an action by the defendant against

the defendant's insurer with punitive damages to boot.                                    See

also Ex parte Vulcan Materials Co., 992 So. 2d 1252, 1261

(Ala.      2008)      ("[A]   defendant        cannot    argue         as    a    basis   for

reducing the punitive-damages award that the award 'stings'

too   much,      in    the    absence     of    evidence          of   the       defendant's

financial status.").




      13
      In Boudreaux, there was actually no argument on appeal
"that the trial court lacked sufficient information to
adequately assess the defendants' potential claim against
their insurer." 108 So. 3d at 509.

                                           51
1120292 and 1121205

    Instead of a wholesale overruling of Boudreaux (and, sub

silentio, Madden), I would review, as we have previously done

in Boudreaux and Madden, whether the trial court erred in

assigning any value to Dr. Gillis's potential claim. 14

     Parker, J., concurs in discussion of Part II.B.1 of the
main opinion.




    14
      Part II.B.1 also directs "that the trial court, in
calculating Dr. Gillis's assets under Hammond/Green Oil,
should not consider Dr. Gillis's wife's portion of their
jointly owned assets." ___ So. 3d at ___. I see no argument
on appeal by Dr. Gillis as to this issue; thus, I would not
address it.

                              52
