REL: 09/30/2014




Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1121181
                             ____________________

Ex parte Robert E. Anderson, M.D., and Selma Doctors Clinic,
               PC, d/b/a Selma Doctors Clinic

                       PETITION FOR WRIT OF MANDAMUS

(In re: Barbara G. Craig, as administrator of the Estate of
               William James Craig, deceased

                                           v.

   Robert E. Anderson, M.D., and Selma Doctors Clinic, PC,
                 d/b/a Selma Doctors Clinic)

                  (Dallas Circuit Court, CV-09-900107)


MURDOCK, Justice.
1121181

       Robert E. Anderson, M.D. ("Dr. Anderson"), and Selma

Doctors Clinic, PC, d/b/a Selma Doctors Clinic ("SDC"),1

petition this Court for a writ of mandamus directing the

Dallas Circuit Court to vacate its order of May 27, 2013,

granting plaintiff Barbara Craig's Rule 60(b), Ala. R. Civ.

P., motion, and to reinstate the final judgment entered in

favor of Dr. Anderson and SDC on October 24, 2012.               We grant

the petition and issue the writ.

                      I.   Facts and Procedural History

       This petition concerns a medical-malpractice/wrongful-

death action filed by Barbara G. Craig ("Mrs. Craig") as the

administrator of the estate of her husband William James Craig

("Mr. Craig").         On January 29, 2009, Dr. Anderson performed a

left       inguinal    hernia   repair    on   Mr.   Craig   ("the   hernia

surgery") at Vaughan Regional Medical Center ("VRMC").                   On

February 9, 2009, Mr. Craig was admitted to the intensive-care

unit of VRMC suffering from extreme pain in his abdominal

region.




       1
     Selma Doctors Clinic is Dr. Anderson's employer; it was
sued solely on the basis of Dr. Anderson's alleged failures in
providing proper medical care to William Craig.
                                      2
1121181

    On February 10, 2009, Dr. Anderson ordered a CT scan for

Mr. Craig.   Radiologist Dr. Robert Simpson interpreted the CT

scan and concluded that it showed that Mr. Craig had a

perforated duodenal ulcer.2     According to medical records,

Dr. Anderson performed surgery on Mr. Craig on February 10,

2009, to close the perforated ulcer ("the ulcer surgery").

Dr. Anderson's operation report3 of the procedure provided the

following relevant notations:

         "Under satisfactory general anesthesia the
    patient was propped and draped in sterile fashion.
    Upper midline incision was made and carried down
    through the skin and subcutaneous tissue. There was
    a lot of thin brownish material within the stomach
    which was removed with the suction. The duodenum
    was inspected and a large duodenal perforation could
    be seen. Several stitches were placed across the
    perforation in order to close it and then a portion
    of omentum was tacked down around and over the
    perforation to seal as a patch. The wound was then
    irrigated with copious amounts of saline. The

    2
     There was no dispute at trial that the CT scan showed the
existence of an ulcer.
    3
     The operation report contains a printed date for the
procedure of February 16, 2009. The printed date is struck
through with a line and a handwritten "10" is above the
printed "16." At trial, Dr. Anderson testified that he did
not correct the date of the surgery in the report but that
February 10, 2009, was the correct date. He also related that
he initially dictated the operation report the day of the
surgery but that the hospital's dictation system went down and
he had to re-dictate it on February 16, 2009. Mrs. Craig did
not dispute this testimony.
                                3
1121181

    abdomen was closed with a running suture of 10
    Vicryl, the fascia with interrupted sutures of #0
    Vicryl, the subcutaneous tissue with #4-0 Vicryl,
    and the skin with staples.... I should mention that
    there were a lot of peritoneal changes around the
    duodenum precluding any formal procedure other than
    simply patching the duodenal perforation ...."

Thus, according to the operation report, Dr. Anderson used

"Vicryl" sutures to close the abdomen, but the report did not

detail the type of sutures he used to close the duodenal

perforation or to patch the area with the omentum.               It is

undisputed that Vicryl sutures are absorbable and dissolvable

in the body.

    On February 13, 2009, Mr. Craig died while he was still

a patient at VRMC.

    On February 14, 2009, Mrs. Craig hired Dr. Boris Datnow,

a semiretired pathologist, to perform a private autopsy on Mr.

Craig to determine the cause of his death.                 Dr. Datnow

determined     the   cause   of   death     to   be   "acute   purulent

peritonitis    and   purulent     ascites    following    an   elective

inguinal hernia repair."          In layman's terms, Dr. Datnow

concluded that Mr. Craig died of an infection he contracted

after the hernia surgery.          In his autopsy report, dated

February 14, 2009, Dr. Datnow noted that he observed the


                                   4
1121181

healed surgical incision from the hernia surgery.                   He also

noted that "[t]here is an upper abdominal central vertical

surgical incision with staples 5.5 inches in length."                      The

latter notation is consistent with a second surgery having

been performed on Mr. Craig; however, Dr. Datnow expressly

noted in the report that "[a]n ulcer cannot be found."

    In his deposition taken on May 31, 2011, Dr. Datnow

explained that when he performed the autopsy on February 14,

2009, he did not have Mr. Craig's medical records, and he

therefore was not aware of the reason for the second surgery.

Subsequently, Mr. Craig's medical records were forwarded to

Dr. Datnow and he gleaned from them that the purpose of the

second surgery was to repair a perforated duodenal ulcer.

Because   he   had   not   located       an   ulcer   in   the   autopsy    of

February 14, 2009 ("the first autopsy"), Mrs. Craig's counsel

asked Dr. Datnow in May 2009 to perform a second autopsy,

paying particular attention to the region where the ulcer

would be located ("the second autopsy"). Dr. Datnow performed

the second autopsy solely on the gastrointestinal tract in

order to see if he could find the ulcer and evidence of the




                                     5
1121181

repair.4   In an undated addendum to his first autopsy report,

Dr. Datnow stated that "[t]he operative site in and around the

duodenum is soft and friable and a dissection[] in this area

is difficult with the tissue breaking apart and crumbling.

The operative site thus cannot be studied and described."   In

his deposition, Dr. Datnow confirmed that "[w]hen I went back

to look at it, I did not actually see an ulcer, but the tissue

at this stage was kind of friable and a bit distorted.   So I

could not verify the absence thereof or the presence [of an

ulcer]."

    Dr. Datnow also stated in his deposition that during both

autopsies he found no trace of sutures in the area where the

ulcer surgery occurred. He explained that if silk sutures were

used, they would have been present in the body for "many, many

years" but that other types of sutures could have dissolved in

the few days between the ulcer surgery and the first autopsy.

Dr. Datnow further stated that during the second autopsy the

condition of the tissue was such that he could not rule in or

out whether Mr. Craig had an ulcer and whether there had been


    4
     Dr. Datnow stated in his deposition that he had kept
Mr. Craig's organs in jars in his garage, which is why he was
able to reexamine the area in question.
                               6
1121181

an ulcer repair.5 Specifically, Dr. Datnow testified that the

tissue was so friable that the sutures could have become

obscured, but "I certainly had no evidence of a suture I could

pick and say, ah ... this is a suture."      In both his report

and his deposition testimony, Dr. Datnow stated that his

findings pertaining to the presence or lack of an ulcer did

not change his conclusion as to the cause of Mr. Craig's

death.

    On July 10, 2009, Mrs. Craig sued Dr. Anderson, SDC, and

VRMC in the Dallas Circuit Court, alleging that the defendants

were negligent in their care and treatment of Mr. Craig and

that their conduct proximately caused his death. Specifically

with regard to Dr. Anderson, the complaint alleged that he

negligently/wantonly     "nipped"   Mr.   Craig's   colon   while

performing the hernia surgery; that he failed to timely


    5
        In his deposition, Dr. Datnow was asked:

    "So, as we move forward, then, we do so on the
    presumption and your acceptance of the fact that
    these medical records describe the presence of a
    duodenal ulcer and a surgical procedure by which it
    was repaired, even though the condition of the
    tissue did not permit you to verify that at autopsy;
    is that fair?"

Dr. Datnow responded: "I would say that is fair."
                                7
1121181

diagnose    and    seriously      treat    Mr.    Craig's       intra-abdominal

condition; that he failed at various times to perform full

examinations of Mr. Craig, which led to a failure to discover

the severity of Mr. Craig's condition; that he failed to admit

Mr. Craig to the hospital in a timely fashion so that he could

receive    proper    care;     and    that,      "[o]n    the    night   of   the

operation    to     repair     the     duodenal      ulcer        (02/10/2009),

Dr. Anderson negligently or wantonly failed to broaden Mr.

Craig's antibiotic coverage in light of a grossly contaminated

abdominal cavity and worsening infection ....                      This failure

directly    contributed      to      Mr.   Craig's       ongoing    sepsis    and

ultimate death."       The last claim constituted the only claim

in the original complaint mentioning the ulcer surgery.

    On November 15, 2010, Mrs. Craig filed her first amended

complaint.        The amended complaint contained more detailed

allegations against the defendants, but the claims still

centered on the defendants' failures in diagnosis, care, and

treatment of Mr. Craig's intra-abdominal infection.                           The

amended complaint did not make a claim against Dr. Anderson

for failure to repair the duodenal ulcer. Instead, it faulted

him for allegedly failing to perform a "thorough examination


                                       8
1121181

of the entire abdominal cavity" during that surgery.         In this

regard, the amended complaint stated:

       "It is incumbent upon the operating surgeon to
       explore the entire abdomen to rule out other
       pathology as well as diminish the amount of
       contamination.     There is no evidence that Dr.
       Anderson made any effort to significantly lower the
       infection   burden   through  debridement   of  the
       contamination present within the abdomen. And, most
       egregious is the fact that the 13 cm fluid
       collection seen in the cul-de-sac on CT, and noted
       by the radiologist to be pathologic was not
       addressed. There is absolutely no justification not
       to explore this area and drain this collection that
       more likely than not arose from the alleged
       perforated ulcer and was infected. By not draining
       that   collection,    Dr.  Anderson   performed  an
       incomplete exploration that left an undrained
       collection within Mr. Craig's abdomen. This failure
       to perform a complete operation was a breach of the
       standard of care and this breach contributed to the
       worsening of the emergent condition (sepsis) of Mr.
       Craig and probably and proximately caused his
       subsequent wrongful death."

       The defendants answered Mrs. Craig's complaints, and

discovery    commenced.     In   the   course   of   discovery,   VRMC

provided Mrs. Craig with a hospital bill for the ulcer surgery

that reflected the use of three different types of sutures in

that    surgery.     Mrs.    Craig's    standard-of-care     expert,

Dr. Carlton Young, was deposed on April 8, 2011.              In his

deposition, Dr. Young criticized Dr. Anderson for a delay in

the diagnosis and treatment of a perforated ulcer with an

                                  9
1121181

intra-abdominal infection.        Dr. Young did not state or imply

that the ulcer surgery did not occur, nor did he criticize

Dr. Anderson's actions during the ulcer surgery.            Dr. Young

confirmed that the CT scan of February 10, 2009, showed that

Mr. Craig had a perforated ulcer.

    Dr. Anderson was deposed on August 31, 2010.           Concerning

the ulcer surgery, Dr. Anderson testified in his deposition as

follows    in   response   to   questions   posed   by   Mrs.   Craig's

counsel:

    "Q. What changes in Mr. Craig's care did                    you
        institute after seeing the CT results?

    "A. We needed to patch his ulcer or fix his ulcer
        and irrigate his abdomen.

    "Q. So you performed another operation; correct?

    "A. Correct.

    "....

    "Q. What did the CT show?

    "....

    "A. It showed a perforated ulcer.

    "Q. All right. And is that what was causing the
        fluid in the cul-de-sac to accumulate?

    "A. (Witness nods head.)




                                   10
1121181

    "Q. And so at about 19:33, you performed a surgery
        on Mr. Craig. What did you do?

    "A. I opened his abdomen, removed fluid, found his
        perforated ulcer and patched it, put a couple
        of stitches across it and patched it with
        omentum. Then I irrigated with copious amounts
        of saline his right upper quadrant, his left
        upper quadrant, above his liver, below his
        liver, both lower quadrants, his cul-de-sac.
        All the fluid was removed from his abdomen.
        ...

    "....

    "Q. Did you close the wound?

    "A. Yes."

Dr. Anderson was not asked in the deposition what kind of

sutures he used during the surgery.

    On November 10, 2011, VRMC filed a motion for a summary

judgment.6   In the hearing on that motion, on May 17, 2012,

Mrs. Craig's counsel argued as follows concerning the ulcer

surgery:

    "Mr. Gaiser [counsel for Mrs. Craig]: Yes sir. To
    begin with, the man died of an infection. He didn't
    die of anything else. That's what he died of. He
    died of sepsis.    There was an autopsy done by a
    pathologist, Mayo [Clinic] trained, board-certified
    pathologist. He testified -- he testified on two
    trips through that autopsy that there was no surgery
    for a peptic ulcer.    Furthermore, if there was a

    6
     The trial court entered a summary judgment in favor of
VRMC on June 6, 2012.
                             11
1121181

    surgery for a peptic ulcer, he would have been so
    infected at the time that it would have spread the
    infection. But there was no evidence of a -- we are
    not doctors. We don't have the capacity to -- when
    I read that and saw no peptic ulcer in it from the
    autopsy after the client came in, we got the client
    right shortly after the death.     So we were there
    fairly quickly.   So I asked him to go ahead.      I
    contacted him, asked him, I don't see anything here.
    He [Dr. Datnow] says, well, I am going to make
    another look.

    "....

    "Mr. Gaiser: The pathologist, he made another look.
    There were no sutures. You take fat, and you make
    a patch, and you sew it up.        And there is no
    evidence that there was a hole or that there was a
    peptic ulcer.    ...    And by the way, the only
    evidence that exists at all about a peptic ulcer was
    from the anesthesiologist.    Anesthesiologists are
    just -- they are doing their job independent of
    everyone else. It wasn't until after he [Mr. Craig]
    died on the [13th] that a tape recording thing that
    you make that they don't have any longer -- there is
    no evidence now. It was dictated by somebody. They
    wrote it out, and the report comes in and says that
    he took care of a peptic ulcer."

(Emphasis added.)

    The trial of the case against Dr. Anderson and SDC was

scheduled to begin on October 15, 2012, before Judge Thomas R.

Jones.    On October 8, 2012, Dr. Anderson and SDC filed a

motion in limine in which they requested that the trial court

preclude from trial, among other things,




                             12
1121181

    "d) any argument or inference that Dr. Anderson did
    not perform a duodenal ulcer repair on the evening
    of February 10, 2009. While each medical witness,
    whether for the Plaintiff or Defendant, has conceded
    that such an operation was performed, counsel for
    the Plaintiff, Mr. Ron Gaiser, has, at times, and
    during oral argument, suggested that Dr. Anderson
    did not perform a surgical repair of the decedent's
    duodenal ulcer on the evening in question.
    Regardless, no such claim is pled, no medical
    witnesses proffered this opinion, and any such
    suggestion is without basis in fact."

    The trial court heard arguments on the motion in limine

on October 15, 2012, before the trial began.      During the

argument, the following exchange occurred:

    "Mr. McCall [counsel for Dr. Anderson and SDC]: Now
    Your Honor focusing on (d) [of the motion in
    limine], the only time I've ever heard this and we
    heard it again a couple of minutes ago from Mr.
    Gaiser.   And it's an argument or inference that
    there was no duodenal ulcer repair performed in this
    case. Dr. Anderson obviously performed a duodenal
    ulcer repair. [The ulcer] was diagnosed.

    "The Court:   What does Datnow's report say with
    regard to that? Did he say that he didn't find any
    evidence of it, or did he say in his report --
    because I can't remember -- he didn't find any
    evidence of it or it was not done?            What
    specifically did he write in his report?

    Mr. Gaiser [counsel for Mrs. Craig]: Twice. The
    first time [Dr. Datnow] said that there was no
    duodenal ulcer in his original report. But I called
    him up. I said, you did an autopsy, and I told him
    what it was. And I said would you make another pass
    through. ... And he went back through it again.
    And again he couldn't find it. There was no hole

                             13
1121181

    that he could find.    There was no hole that he could
    find.

    "The Court:    Is that part of his report?

    "Mr. McCall:   Your Honor, he says it couldn't be
    located. The tissues were very friable. He did not
    say no repair was done. I don't think it provides
    Mr. Gaiser a platform to be allowed to argue that
    Dr. Anderson, the nursing personnel, et cetera,
    including the anesthesiologist, decided not to
    perform a repair on the evening in question.

    "The Court: It sounds to me like it's going to be
    a disputed fact. And at least to the extent that
    his report says that he didn't find a repair, it
    will be up to you to convince this jury that it was
    merely not reported rather than not, that he did not
    perform it versus whether it was just not found.

    "....

    "The Court: Well, you know, to the extent that you
    have two different versions and two different
    arguments, I am not going to prohibit the Plaintiffs
    from talking about what they believe to be the
    evidence. Is Datnow going to be here to testify?

    "Mr. Gaiser: He is out of the state, but we have
    his deposition.

    "The Court:    You are going to use his deposition?

    "Mr. Gaiser:    Yes.

    "The Court:    The evidence will be what it's going to
    be.

    "Mr. McCall: Your Honor, I would     like to add just
    one last thing for the record's      sake, that it's
    certainly our position -- and        while they had
    attempted to plead certain claims     in reference to

                               14
1121181

    what Dr. Anderson should or should not have done in
    reference to a particular surgery, they have never
    pled that he didn't perform the surgery. And they
    are trying to have it both ways.

    "The Court: Well, you know, the evidence is what it
    is. The testimony is what it is. Whatever he may
    make in terms of an argument to this jury, if he
    misrepresents the evidence to this jury, I presume
    you are going to stand up and you are going to show
    Datnow's report and highlight his testimony and
    straighten the jury out on what your version of the
    facts are. So, you know, we are not going to change
    the evidence."

    The trial took place over five days between October 15,

2012, and October 19, 2012.   Dr. Anderson testified at trial

that he surgically repaired Mr. Craig's perforated duodenal

ulcer on February 10, 2009.   In relevant part, Dr. Anderson

testified as follows:

    "Q. (By   Mr. Johnston) [Mrs. Craig's counsel:] You
        did   an operation on Mr. Craig on the evening of
        the   10th of February. What did you do? What did
        you   repair?

    "A. I opened his upper abdomen up, found his
        duodenal ulcer, sewed the ulcer up and put an
        omentum patch where you take the fat apron, and
        you just take a piece of it and put it over the
        ulcer and sew it down around it. And that's a
        patch. And that suffices to support the plug,
        the duodenal ulcer.

    "....

    "Q. (By Mr. Johnston) All right.     So looking at
        your second entry, 2-11, is it 8:30?

                              15
1121181


    "A. That's correct.

    "Q. Which should be 2-10 according to you, what
        does your note read?

    "A. Pre and post-operative diagnosis. That puts it
        on the 10th, perforated duodenal ulcer.
        Operation, exploratory left, meaning you open
        up somebody's abdomen and look and see what's
        going on, and suture and patch closure duodenal
        ulcer.    Under general anesthesia, estimated
        blood loss was less than a hundred cc's.

    "....

    "Q. (By Mr. Johnston) Was this a typical surgery
        that you performed on Mr. Craig?

    "A. A typical ulcer patch?

    "Q. That's what I mean.

    "A. Yes.

    "Q. And you say you went in and patched it with the
        omentum, and I think you described the
        procedure for us, correct?

    "A. Correct.

    "Q. And that involves sutures?

    "A. I sutured the wall of the ulcer back together
        and then put the patch on top of the small
        suture line, three stitches.

    "Q. So you sutured the hole, and then you sutured
        the patch?

    "A. Yes.


                              16
1121181

    "Q. How much sutures did you use?

    "A. I used about three on the ulcer, and probably
        five or six with the patch.

    "....

    "Q. (By Mr. Wright) [Dr. Anderson & SDC's counsel:]
        We can look at your operative note if we need
        to if you will step down please one more time,
        Dr. Anderson, and I want you to explain to
        these   ladies   and   gentlemen   using   this
        illustration how you performed this operation?

    "A. Well, we opened up the abdomen, made a small
        incision in the upper abdomen above the belly
        button. And then we exposed the stomach, and
        here's the ulcer that we had seen before. What
        we did was --

    "Q. Let me stop you right there. When you say we,
        you have got the surgeon.    You have got the
        anesthesiologist   in   there,   a   certified
        registered nurse anesthetist. You have got a
        scrub nurse and a circulating nurse. There's
        an OR team that has to be assembled; is that
        right?

    "A. Yeah.

    "Q. Who is doing the operation?

    "A. I am doing the operation.

    "Q. All right.   Then tell me what you did?

    "A. So what I did after finding the ulcer, put
        about three stitches across in order to close
        the hole. And then this is the fat apron that
        hangs off the stomach and colon.

    "Q. What's that called?

                              17
1121181


    "A. It's called the omentum.    What we did after
        closing to insure better closure of this or
        protection of leak, what you do is pull the
        omentum up, and you tack it around the
        perforation.   And that seals it, and that's
        just a second layer if you will.

    Q.    Y'al1 went through the substance of your
          operative note yesterday. So I'm not going to
          take us through every word of that, but I want
          to ask you. Are these procedures that you have
          described here, the identification of the
          ulcer, the closing it with the sutures, and I
          mean do you just pull those tight like somebody
          might sewing a piece of cloth, and that just
          closes up the hole?

    "A. Yes.

    "Q. And then you tie it off, and then you also
        described in your operative note this pulling
        up the omentum to form a patch; is that right?

    "A. That's absolutely correct.

    "....

    Q.    (By Mr. Johnston) [Mrs. Craig's counsel:] What
          kind of sutures did you use to repair the
          ulcer?

    "A. Silk.

    "Q. Silk. All right. How long do those take to
        dissolve in the body?

    "A. They don't. They don't."

(Emphasis added.)




                              18
1121181

     Dr. Young testified after Dr. Anderson.              Following some

preliminary    questioning         of   Dr.   Young   pertaining    to   his

experience and practice, Dr. Anderson and SDC's counsel argued

that Dr. Young's area of expertise was too remote for him to

testify as to the standard of care applicable to Dr. Anderson.

In   the   course   of    that     argument,    the   following    exchange

occurred between Mrs. Craig's counsel and the trial court:

     "Mr. Gaiser: To start with, there is no evidence,
     there will be -- when this is over with, there will
     be no evidence that there was a duodenal ulcer
     surgery. The reason is it is because the sutures
     would have been left behind.

     "The Court:   Wait a minute, Mr. Gaiser.               Go back
     over that again.

     "Mr. Gaiser: Okay. The last question we asked Dr.
     Anderson was, what kind of sutures did he use. He
     said silk. Silk sutures never dissolve. That's the
     reason I told Dr. Datnow to go back and make another
     look. And he looked, and he said unequivocally even
     the second time there was no hole.     There was no
     repair.   The sutures were not there.    He said it
     twice.

     "The Court: Mr. Gaiser, are you seriously going to
     argue to this jury when we get there and if we get
     there that this was all a fabrication? Is that what
     you're arguing?

     "Mr. Gaiser:        No sir.    I'm not.

     "The Court: Are you going to tell this jury that
     this was not done?


                                        19
1121181

    "Mr. Gaiser: What was done was a hernia surgery and
    it was a hernia surgery that killed the man, not the
    other surgery anyway.

    "The Court:   That's not my question to you. Your
    comment to me was you thought there was no ulcer
    surgery.   Are you telling me, Mr. Gaiser, that
    you're going to argue to this jury that there was no
    surgery done to this, to repair this man's ulcer?

    "Mr. Gaiser: Sir, when we read the evidence from
    Dr. Datnow, he is going to testify that he could not
    find a duodenal ulcer. He could not find a duodenal
    ulcer. He had the whole body open on the table, and
    he could not find it. And I asked him what is this?
    It's crazy. How could this be? And he went back
    and did it again. He did it twice, and he could not
    find a hole. And he couldn't find the sutures. He
    couldn't find it. The operation and the record says
    it was performed on the 11th, not the 10th. He does
    his report on the --

    "The Court: Got you. How about refocus to where we
    need to be, and that's with regard to Dr. Young's
    qualifications and the Holcomb [v. Carraway, 945 So.
    2d 1009 (Ala. 2006),] case and the standards.

    "....

    "Mr. Gaiser: Your Honor, he [Dr. Young] testified
    in his deposition that in his opinion he doesn't
    know of any fault that he [Dr. Anderson] did with
    respect to the duodenal ulcer. I mean, I don't know
    what the argument is. If we hired all of the king's
    horses and all of the king's men, we wouldn't -- we
    wouldn't want to change our guy's testimony. He has
    testified that he found no fault in it [the ulcer
    surgery]. They are arguing that he can't testify
    that there was no fault in it.       That's amazing
    because he is not here to testify there was any
    fault in that. Like I said, we don't even know that
    the evidence is going to show there was one. ..."

                            20
1121181

(Emphasis added.)

    At the conclusion of the argument excerpted above, the

trial court decided to allow Dr. Young to continue testifying

to the jury.     As he did in his deposition, Dr. Young testified

at trial that the CT scan "showed evidence of the perforation

of the duodenal ulcer."      Dr. Young stated that he would have

ordered some tests sooner than did Dr. Anderson; however, he

also admitted that he was not in the same general line of

practice    as   Dr.   Anderson.    The   following   exchange   also

occurred between defendants' counsel and Dr. Young:

    "Q: So now in reflection, Dr. Young, and all of
        this, is it fair for me to characterize your
        testimony that while you have explained to us
        that had you been in this situation there are
        some things that you may have done differently
        at different times based on what has been
        suggested to you by what Mrs. Craig has said or
        what was suggested to you about the situation
        that existed in the hospital. But at the same
        time you recognize that even with all of that
        information, the care and treatment that Dr.
        Anderson provided to Mr. Craig was reasonable,
        appropriate and a course that is recognized to
        be within the standard of care for surgeons
        although you may have followed another course?
        Is that fair?

    "....

    "A. Given everything with the history that I have
        been privy to, yes.


                                   21
1121181

    "....

    "Q. You are still firm that you want these people
        to understand you don't say this man committed
        malpractice, do you?

    "A. Based on all of the information, I can't stand
        by that and say that, no.

    "Q. You can't say that at all, can you?

    "A. No."

    Following the conclusion of Dr. Young's testimony, the

trial court excused the jury for lunch and proceeded to

discuss Dr. Young's testimony with Mrs. Craig's counsel.

    "The Court: ... There is some concern about Dr.
    Young's testimony, especially in regard to his
    testimony as to [no breach of] the standard of care.
    And I think you know what I'm talking about Mr.
    Gaiser.

    "Mr. Gaiser: Unfortunately. We think though that
    we can rehabilitate our case through Dr. Datnow,
    however.

    "The Court:   Well, sir, I fail to see how your
    causation expert, if he is allowed to testify, is
    going to be qualified to rehabilitate as to the
    standard of care.

    "Mr. Gaiser:    It's a fact.    It will be a fact
    aspect, a fact. There's a particular fact that he
    would be able to testify to, that he has testified
    to on two occasions that when he did his pathology,
    when he did his, when he opened the body up and he
    looked at the organs and he looked at the cause of
    death, he determined that there was no -- there was
    an incision, and there was an operation done in the

                             22
1121181

    peritoneal area and the -- excuse me, in the
    abdomen.    And he did not find the sutures or
    whatever is necessary to determine that there was an
    operation to close an ulcer. If there was no
    operation to close an ulcer, then their entire
    defense in this case is flawed.      And that's his
    sworn testimony.    And then I asked him to do it
    again. I asked him. I said this, are you sure? I
    asked him.   I called him up on the telephone.     I
    said, are you sure?     I asked him.    I said, Dr.
    Datnow, this is a very important matter. Can you
    verify that. He said, I still have the organs. So
    he went out and verified it. And he said -- and Dr.
    Anderson testified that the sutures that were used
    were silk sutures. He testified that silk sutures
    would not decompose.     ...   I mean, either the
    sutures were there or they weren't there. If they
    weren't there, he didn't do the operation. ..."

(Emphasis added.)

    Mrs. Craig was unable to call Dr. Datnow to testify

because he was out of the country from October 2, 2012, to

November 9, 2012.   Instead, she sought to read Dr. Datnow's

deposition to the jury.   In response, Dr. Anderson and SDC

objected that Mrs. Craig had failed to establish in the

deposition that Dr. Datnow was a medical doctor at the time he

performed the autopsies, and, therefore, they argued, Mrs.

Craig had failed to qualify Dr. Datnow as a medical expert.

    The following day, the trial court entertained motions

from Dr. Anderson and SDC pertaining to Dr. Young's testimony

and the qualifications of Dr. Datnow.    In the course of the

                             23
1121181

argument on those motions, Dr. Anderson and SDC requested that

the trial court enter a judgment as a matter of law in their

favor because Mrs. Craig had failed to establish that Dr.

Anderson had violated the applicable standard of care. At the

conclusion of the parties' arguments on those motions, the

trial court indicated that it would enter a judgment as a

matter of law and that it would rule that Dr. Datnow "was not

in fact properly qualified."

    On October 24, 2012, the trial court entered an order

that provided, in pertinent part:

         "The issue presented before the Court is with
    respect to defendants' oral motion to exclude the
    plaintiff's standard of care expert witness, Dr.
    Carlton Young. Dr. Young has testified that he is
    a board certified surgeon practicing at the
    University of Alabama at Birmingham, primarily as a
    transplant surgeon. Dr. Young has acknowledged to
    the Court that he does not accept 'on-call'
    responsibilities as a general surgeon at UAB. Dr.
    Young acknowledged to the Court that the sole issue
    which he has raised in criticism of the defendants
    is the issue of an alleged delay in the diagnosis
    and surgical treatment of a perforated duodenal
    ulcer and the postoperative care for a patient
    having undergone that surgical procedure.

         "Dr. Young has admitted to the Court that he has
    never performed this operation as a board certified
    surgeon. Moreover, Dr. Young has admitted that he
    is not in 'the same general line of practice' as the
    defendant, Dr. Anderson.         This testimony is
    undisputed. Furthermore, Dr. Young has admitted in

                               24
1121181

    his testimony that his board certification is issued
    by the administrative board of the American College
    of Surgeons, an organization that, among other
    things, has promulgated and adopted standards
    regarding the nature and degree of experience
    required of its members testifying as expert
    witnesses in matters such as this. In acknowledging
    that he has never performed the surgical procedure
    at issue in this case as a board certified surgeon,
    Dr. Young admits that his participation in this
    litigation is violative of the policy standards
    adopted by the American College of Surgeons which
    has issued his board certification. (This is but
    one factor considered by the Court in addition to
    those matters set forth herein above).

         "The Court has held the defendants' motion under
    consideration and allowed Dr. Young to testify such
    that the Court could consider his testimony as a
    whole in ruling on defendants' motion.

         "After consideration of Dr. Young's testimony in
    its   entirety,   having   afforded   the   plaintiff
    opportunity to develop Dr. Young's testimony as
    fully as she could, the Court has determined that
    Dr. Young is not in the same general line of
    practice as the defendant, Dr. Anderson, and, as
    such, his testimony is due to be excluded.

         "The Court notes that, aside from Dr. Young's
    concession that he does not practice in the same
    general line of practice as Dr. Anderson, the
    substance of Dr. Young's testimony (even if he were
    competent to testify as an expert in this cause)
    does not warrant submission of the plaintiff's case
    to the jury.   Considering Dr. Young's substantive
    testimony in its entirety, the Court has observed
    that Dr. Young ultimately testified that all of the
    care and treatment provided by Dr. Anderson was in
    compliance with the standard of care, although Dr.
    Young stated that he personally would have done some
    things differently. Dr. Young stated unequivocally

                             25
1121181

    that the defendant, Dr. Anderson, did not commit
    medical malpractice in providing care to plaintiff's
    decedent.    Accordingly, Dr. Anderson and his
    employer, Selma Doctors Clinic, PC, are entitled to
    judgment as a matter of law.

         "Following the testimony of Dr. Young, the
    plaintiff announced her intention to read the
    deposition of Dr. Boris Datnow. The parties concede
    that Dr. Datnow is a board certified pathologist and
    not a general surgeon. As such, Dr. Datnow is not
    a similarly situated health-care provider to Dr.
    Anderson under the terms and provisions of the
    Alabama Medical Liability Act, § 6-5-543(c), [Ala.
    Code 1975,] and his testimony is not, under any
    circumstances, admissible to establish a breach of
    the standard of care by Dr. Anderson. The parties
    also concede that the deposition transcript contains
    no testimony to the effect that Dr. Datnow was a
    licensed physician at the time that he allegedly
    performed a private autopsy on the body of
    plaintiff's decedent. The Court has determined that
    this is a necessary qualification which the
    plaintiff had the burden of establishing prior to
    eliciting his testimony from Dr. Datnow regarding
    the conclusions expressed in his autopsy report or
    opinion testimony which is based on the autopsy.
    Dr. Datnow's mere statement that he was a board
    certified pathologist on the date that his
    deposition was taken does not establish that he was
    a physician licensed to practice medicine and
    authorized under Alabama law to perform autopsy
    procedures at the time he allegedly performed the
    autopsy in question in this case, February 14, 2009.
    Accordingly, the Court has excluded the deposition
    of Dr. Datnow as inadmissible in this case.

         "The Court having determined as a matter of law
    on the basis of undisputed testimony that Dr. Young
    is not in the same general line of practice as the
    defendant, Dr. Anderson, and, otherwise, having
    determined as a matter of law that the substantive

                            26
1121181

    testimony of Dr. Young would completely absolve the
    defendants of any liability in this case, even if he
    were in the same general line of practice, hereby
    directs entry of judgment as a matter of law in
    favor of defendant Robert E. Anderson, MD, and Selma
    Doctors Clinic, PC, pursuant to Rule 50(a)(1)-(2) of
    the Alabama Rules of Civil Procedure. Plaintiff's
    claims against said defendants are hereby dismissed
    with prejudice."

    On November 21, 2012, Mrs. Craig filed a Rule 59, Ala. R.

Civ. P., motion to vacate the judgment or for a new trial.   In

the motion, Mrs. Craig contended that the trial court erred in

excluding Dr. Young's testimony because

    "it was not necessary for Dr. Young to have
    performed a surgical repair of a perforated duodenal
    ulcer in order for him to have been similarly
    situated. Dr. Young was not critical of the actual
    surgical repair of the duodenal ulcer performed by
    Dr. Anderson. Dr. Young was critical of the pre-
    surgical diagnosis and treatment and post-surgical
    diagnosis and treatment of Mr. Craig's intra-
    abdominal infection from which he suffered and
    died."

Mrs. Craig added that the standard of care in this action was

that of a general surgeon and that Dr. Young is a board-

certified general surgeon; thus, she asserted, he should have

been deemed qualified to testify as to the applicable standard

of care.   Mrs. Craig also argued in the motion that the trial

court erred by denying her "the right to access the original

medical records of the decedent William James Craig that were

                              27
1121181

retained by Defendant Dr. Anderson."   Mrs. Craig presented no

other arguments in her Rule 59 motion. The trial court denied

Mrs. Craig's Rule 59 motion on December 28, 2012.

    In January 2013, Judge Collins Pettaway, Jr., succeeded

Judge Jones in the Dallas Circuit Court.

    On February 7, 2013, Mrs. Craig filed a motion pursuant

to Rule 60(b)(3), Ala. R. Civ. P., in which she argued that

Dr. Anderson had committed perjury and had perpetrated a fraud

upon the trial court by testifying that he had performed the

ulcer surgery when, in fact, he had not done so.    Mrs. Craig

noted that until Dr. Anderson testified at trial, the only

indication of the kind of sutures Dr. Anderson had used in the

ulcer surgery had been provided in Dr. Anderson's operation

report, in which he stated that he had used Vicryl sutures,

which dissolve within a few days of an operation.   At trial,

however, Dr. Anderson stated that in the ulcer surgery he used

silk sutures, which do not dissolve.     Mrs. Craig contended

that this revelation at trial demonstrated that Dr. Anderson

lied about performing the ulcer surgery.      Mrs. Craig also

accused defendants' counsel of participating in the fraud and

that counsel's reason for doing so was that Dr. Anderson's


                             28
1121181

health-care-professional-liability policy allegedly contained

an incentive for taking a malpractice action to trial rather

than entering into a settlement with a plaintiff.

    In support of her argument, Mrs. Craig submitted an

affidavit from Dr. Datnow executed on January 8, 2013, in

which he concluded:

         "I have again been contacted by Mr. Gaiser [Mrs.
    Craig's counsel] and he reported to me that Dr.
    Anderson testified during the June 2012 trial of
    this matter that he used 8 or 9 silk sutures
    (3 sutures on the ulcer and 5-6 sutures on the
    patch) to repair Mr. Craig's perforated ulcer, and
    that the silk sutures he used do NOT dissolve.
    Based upon Dr. Anderson's testimony at trial, I can
    say with absolute certainty that my initial finding
    that Mr. Craig had no ulcer as stated in my
    February 14, 2009, Autopsy Report was correct, and
    I can further state with absolute certainty that I
    saw no gross evidence of pathology that a duodenal
    ulcer repair was performed by Dr. Anderson in
    February 2009, for if such a surgery had been
    performed, I would have discovered the non-
    absorbable silk sutures during both [the first]
    autopsy and my reexamination of Mr. Craig's organs
    in May 2009.

         "In conclusion, based upon Dr. Anderson's trial
    testimony, I am absolutely certain that Dr. Anderson
    did not perform a perforated duodenal ulcer repair
    during the February 10, 2009, exploratory/surgical
    laparotomy on Mr. Craig, and any testimony to the
    contrary would be untrue."

(Some emphasis added.)




                             29
1121181

      In opposing Mrs. Craig's Rule 60(b) motion, Dr. Anderson

and   SDC    primarily     contended      that     the    Rule        60(b)   motion

actually constituted a second Rule 59 motion because all the

information contained in the Rule 60(b) motion was known to

Mrs. Craig at the time she filed her Rule 59 motion, and yet

it was not presented in her Rule 59 motion.                     Dr. Anderson and

SDC also argued that Dr. Anderson's statement in his operation

report      and   his   testimony   at    trial     were        not    necessarily

contradictory because his operation report had stated only the

type of sutures he had used to close the abdomen, but the

report did not detail the type of sutures he had used to close

the   duodenal      perforation     or   to   patch       the    area     with   the

omentum.      He also noted that hospital records showed that

there were charges for three types of sutures used in the

surgery.      Thus, the evidence indicated that Dr. Anderson may

have used both Vicryl sutures and silk sutures in the ulcer

operation.        Dr. Anderson and SDC also asked Judge Pettaway to

strike      Dr.    Datnow's   affidavit       on    the     ground       that    the

assertions therein could have been stated within the time

limits for filing a Rule 59 motion but Mrs. Craig failed to

take the steps necessary to make that happen.


                                     30
1121181

    On February 8, 2013, Mrs. Craig filed a notice of appeal

of the trial court's October 24, 2012, judgment in favor of

Dr. Anderson and SDC.7       Craig v. Anderson (No. 1120649,

June 6, 2013).8

    On April 18, 2013, Judge Pettaway heard arguments on Mrs.

Craig's Rule 60(b) motion.    In the hearing on the Rule 60(b)

motion, Mrs. Craig's counsel, seeking to clarify her fraud

argument, stated:   "One last thing.   We've never said the man

didn't have an ulcer.    We said the man never had an ulcer

operation. And there's a good reason for that because the man

was so infected, you could not have operated."     Mrs. Craig's

counsel also abandoned his contention that defendants' counsel

participated in the alleged fraud.

    On May 27, 2013, Judge Pettaway entered an order granting

Mrs. Craig's Rule 60(b)(3) motion.     The order recited some of

the facts related above, including Dr. Anderson's testimony at

trial pertaining to the type of sutures he had used during the


    7
     Mrs. Craig's notice of appeal did not deprive the trial
court of jurisdiction to hear her Rule 60(b) motion. See Rule
60(b), Ala. R. Civ. P.; Harville v. Harville, 568 So. 2d 1239,
1240 (Ala. Civ. App. 1990).
    8
     The appeal in case no. 1120649          was   dismissed   on
Mrs. Craig's motion on June 6, 2013.
                               31
1121181

ulcer surgery.      Judge Pettaway concluded that "Defendant

Anderson's February 16th Operative Report was a forged and

fraudulent medical record" because of the crossed-out date of

February   16,    2009,   for    the   surgery   date    and     because

Dr. Anderson admitted the report was dictated three days after

Mr.   Craig's    death.    The   order   contained      the    following

additional conclusions:

      "(1) Plaintiff's fraud claims are properly raised
      under Ala. R. Civ. P. 60(b)(3).

      "(2) There is clear and convincing evidence that
      Defendant Anderson did not perform a perforated
      duodenal ulcer repair on decedent Mr. Craig and thus
      he engaged in fraud, misrepresentation, and deceit.

      "(3)     Defendant Anderson committed fraud in
      procuring the Court's October 24, 2012, Order of
      Judgment.

      "(4) The fraud committed by Defendant Anderson was
      both intrinsic and extrinsic in nature in that
      (1) it occurred during the trial of this matter and
      was accompanied by perjury.    Defendant Anderson's
      use of false and/or forged medical records, and his
      misrepresentation of evidence pertaining to his
      having performed a perforated duodenal ulcer repair
      such that it affected tho Court's determination of
      tho issues presented therein; and (2) it was
      collateral to the issues tried in this mater such
      that this Court was deceived into believing that
      Defendant Anderson performed a perforated duodenal
      ulcer repair when in fact he had not.

      "(5) Defendant Anderson misled this Honorable Court
      and in so doing both this Court and Defendant

                                  32
1121181

    Anderson prevented Plaintiff Craig from fully and
    fairly presenting her case.

    "(6) The fraud committed by Defendant Anderson has
    resulted in a judgment whose integrity is lacking,
    and absent relief an extreme and unexpected hardship
    will result.

    "(7) The fraud committed by Defendant Anderson was
    not obtainable by the due diligence of Plaintiff
    prior to the time of entry of the Court's Order of
    Judgment nor prior to or during the pendency of
    Plaintiff's Ala. R. Civ. P. 59 motion.

    "(8)   Plaintiff currently has an appeal pending
    before the Supreme Court of Alabama and, thus,
    Plaintiff's Ala. R. Civ. P. 60(b)(3) motion is not
    a substitute for an appeal and does not subvert the
    principle of finality of judgments.

         "The Court further states that the circumstances
    of this case are precisely the type of extraordinary
    circumstances provided for under Ala. R. Civ. P.
    60(b)(3) for which the extreme remedy of relief from
    a final judgment is permitted. As such, Plaintiff's
    Ala. R. Civ. P. 60(b)(3) Motion to Set Aside the
    Court's October 24, 2012, Final Order of Judgment is
    hereby granted.

         "Furthermore, Defendants' Motion to Strike the
    Affidavit of Dr. Boris Datnow is hereby denied. As
    set forth above, this Court finds that Plaintiff's
    'lack of surgery' argument is not fanciful nor
    baseless as suggested by Defendants but in fact is
    supported by clear and convincing evidence."

    Dr. Anderson and SDC filed their petition for the writ of

mandamus in this Court on July 8, 2013.    The Court ordered

answers and briefs on August 23, 2013.


                             33
1121181

                        II.   Standard of Review

            "Relief from a judgment under Rule 60(b) is
       proper only where the moving party shows exceptional
       circumstances which justify relief.       Grover v.
       Grover, 516 So. 2d 667 (Ala. Civ. App. 1987).      A
       trial court has wide discretion to set aside a
       judgment which it deems invalid because of fraud
       practiced by a party in the procurement of the
       judgment.   Reynolds v. Reynolds, 516 So. 2d 663
       (Ala. Civ. App. 1987).     Because the trial court
       possesses such wide discretion, its judgment will be
       affirmed on appeal unless there is an abuse of that
       discretion."

Smith v. Smith, 668 So. 2d 846, 848 (Ala. Civ. App. 1995).                We

also    note,    however,     that   "'the    broad    power    granted   by

Rule 60(b) cannot be used to relieve a party from free,

deliberate, and calculated choices.'"               Wal-Mart Stores, Inc.

v. Pitts, 900 So. 2d 1240, 1245 (Ala. Civ. App. 2004) (quoting

State ex rel. Croson v. Croson, 724 So. 2d 36, 38 (Ala. Civ.

App. 1998)).

                              III.    Analysis

       Rule 60(b)(3) provides that "[o]n 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   ...   fraud    (whether      heretofore   denominated

intrinsic       or    extrinsic),      misrepresentation,        or   other




                                      34
1121181

misconduct of an adverse party ...."     Rule 60(b)(3), Ala. R.

Civ. P.

           "One who contends that an adverse party has
      obtained a verdict through fraud, misrepresentation,
      or other misconduct (Rule 60(b)(3)) must prove by
      'clear and convincing evidence (1) that the adverse
      party engaged in fraud or other misconduct and
      (2) that this misconduct prevented the moving party
      from fully and fairly presenting his case.
      [Citation omitted.]    The resolution of these two
      issues is within the trial court's discretion, and
      on review, our only inquiry is whether the trial
      court abused its discretion.' Montgomery v. Hall,
      592 F.2d 278, 279 (5th Cir. 1979). See, also, Penn
      v. Irby, 496 So. 2d 751 (Ala. 1986)."

Pacifico v. Jackson, 562 So. 2d 174, 179 (Ala. 1990).

      Mrs. Craig alleges that Dr. Anderson committed fraud by

submitting documentation pertaining to, and testifying both in

deposition and at trial that he performed, a repair of a

perforated duodenal ulcer on Mr. Craig on February 10, 2009.

It appears Mrs. Craig concedes that Dr. Anderson performed a

surgery on her husband on that date because Mrs. Craig alleged

in her amended complaint that Dr. Anderson failed to perform

a thorough exploratory surgery and failed to thoroughly treat

the   infection   in   the   abdomen   during   the   surgery   on

February 10, 2009, and because Dr. Datnow stated in his

autopsy report and testified in his deposition that he found


                                35
1121181

an abdominal incision for the second surgery performed on

Mr.   Craig.   Mrs.   Craig   contends,   however,   that   because

Dr. Datnow did not find sutures in the abdominal area and

because Dr. Anderson stated at trial that he used silk sutures

during the ulcer surgery, which do not dissolve, it can only

be concluded that Dr. Anderson did not perform the ulcer

repair as he testified he did.9

      Dr. Anderson and SDC argue that Judge Pettaway exceeded

his discretion in granting Mrs. Craig's Rule 60(b) motion

because, they say, Mrs. Craig failed to demonstrate that the

alleged fraud prevented her from fully and fairly presenting


      9
      It is less clear whether Mrs. Craig believes her husband
had an ulcer. During the Rule 60(b) hearing, Mrs. Craig's
counsel stated that Mrs. Craig had "never said [her husband]
didn't have an ulcer," but before the Rule 60(b) hearing her
counsel repeatedly stated in arguments to the trial court that
Dr. Datnow never found an ulcer during his autopsy
investigations.    Indeed, in one exchange before the trial
court concerning the fraud allegation, Mrs. Craig's counsel
sought to explain away the results of the CT scan by comparing
it to his own experience of once having been falsely diagnosed
with cancer. Moreover, in her respondent brief Mrs. Craig
questions whether the CT scan performed on Mr. Craig showed a
perforated duodenal ulcer because the CT scan itself was not
proffered as evidence; only the radiologist's report
interpreting the CT scan was admitted.       This observation
ignores that Mrs. Craig did not question the radiologist's
report at trial and that her own expert, Dr. Young, testified
that the CT scan showed a perforated duodenal ulcer inside her
husband.
                                36
1121181

her case.    In support of their argument, Dr. Anderson and SDC

quote Pacifico, which states, in relevant part:

         "On the broader public policy issue of reviewing
    post-trial claims of fraud, the United States
    Supreme Court, in [United States v.] Throckmorton,
    [98 U.S. [61,] 68-69 [(1878)], had this to say:

            "'[T]he mischief of retrying every case in
            which the decree was rendered on false
            testimony by perjured witnesses, or on
            documents whose genuineness was in issue
            and which are afterward ascertained to be
            forged or fraudulent, would be greater, by
            reason of the endless nature of the strife,
            than any compensation arising from doing
            justice in individual cases.'

         "First National Life Ins. Co. v. Bell, 174 La.
    692, 699, 141 So. 379, 381 (1932), is of interest in
    this connection:

                 "'If a judgment could be annulled on
            the showing made by plaintiff, litigation
            would be endless. Another judgment in favor
            of [defendant] could be annulled on
            allegations of newly discovered evidence,
            and so on to the end of time. If an
            unsuccessful litigant were permitted to
            attack a judgment as fraudulent on the
            ground that his opponent failed to disclose
            certain facts within his knowledge, which
            by the exercise of reasonable diligence the
            unsuccessful     litigant    could     have
            ascertained for himself, there would be no
            finality to a judgment. In legal effect, it
            would be nothing more than an order to show
            cause why it should not be set aside.'

         "The same principle is stated, in different
    language, in the case of Porcelli v. Schlitz Brewing

                                37
1121181

    Co., 78 F.R.D. 499, 501 (E.D. Wisc. 1978), as
    follows: '[Movant] must ... satisfy the Court that
    he has substantial evidence of fraud which was not
    obtainable by due diligence prior to the time of
    entry of the order.'

         "One who contends that an adverse party has
    obtained a verdict through fraud, misrepresentation,
    or other misconduct (Rule 60(b)(3)) must prove by
    'clear and convincing evidence (1) that the adverse
    party engaged in fraud or other misconduct and
    (2) that this misconduct prevented the moving party
    from fully and fairly presenting his case. ...'"

562 So. 2d at 179 (emphasis added).

    Mrs. Craig dismisses Pacifico's statement concerning a

due-diligence requirement for fraud claims under Rule 60(b)(3)

by arguing that the Pacifico Court was not stating the law of

Alabama, but rather the law in the United States District

Court for the Eastern District of Wisconsin as it existed in

1978.   Mrs. Craig contends that

    "Defendants' 'due diligence' argument applies only
    to Ala. R. Civ. P. 60(b)(2) motions pertaining to
    newly discovered evidence.    Plaintiff's motion is
    not based on newly discovered evidence. Plaintiff's
    motion is based upon fraud committed by Defendant
    Anderson that prevented Plaintiff from fully and
    fairly presenting her case and resulted in a
    judgment whose integrity is lacking, and absent
    relief an extreme and unexpected hardship will
    result, which is the type of fraud provided for in
    Rule 60(b)(3)."




                              38
1121181

    Mrs.       Craig    fails     to   cite     any    authority    for   her

proposition that due diligence applies only to claims under

Rule 60(b)(2), Ala. R. Civ. P. Moreover, her characterization

of Pacifico ignores the fact that the Pacifico Court quoted

cases     from    two   other    courts      for    essentially     the   same

proposition stated by the federal district court in Porcelli

v. Schlitz Brewing Co., 78 F.R.D. 499 (E.D. Wis. 1978).

    In any event, the principle at issue -- or at least its

equivalent -- is embedded in the second element that was

identified in Pacifico as required in order for a movant to

succeed in a Rule 60(b)(3) motion: The movant "must prove 'by

clear    and     convincing     evidence     ...    that   [the]   misconduct

prevented the moving party from fully and fairly presenting

[her] case.'"        562 So. 2d at 179.            As one federal district

court10 succinctly explained:               "The case law has repeatedly

emphasized that a party is not prevented from fully and fairly

presenting its case if it had access to the information at

issue."     Halliburton Energy Servs., Inc. v. NL Indus., 618


    10
      "Federal cases construing the Federal Rules of Civil
Procedure are persuasive authority in construing the Alabama
Rules of Civil Procedure, which were patterned after the
Federal Rules of Civil Procedure." Hilb, Rogal & Hamilton Co.
v. Beiersdoerfer, 989 So. 2d 1045, 1056 n.3 (Ala. 2007).
                                       39
1121181

F. Supp. 2d 614, 641 (S.D. Tex. 2009).                 See also Tunnell v.

Ford Motor Co., CIVA.4:03-CV-00074, June 26, 2006 (W.D. Va.

2006)   (not   reported     in   F.   Supp.      2d)   ("[T]he    fact    that

Plaintiff was already aware of the essential information in

the   AML/Tyco   documents       speaks    to    the   third   prong      of   a

Rule 60(b)(3) inquiry.           Because eight months before trial

Plaintiff already knew the crucial information regarding the

BCO manufactured by Tyco and used by Aston Martin, Defendant's

misconduct did not prevent Plaintiff from fully proving this

aspect of his case."); Casey v. Albertson's Inc., 362 F.3d

1254, 1260 (9th Cir. 2004) (stating that "'[F]ederal Rule of

Civil Procedure 60(b)(3) require[s] that fraud ... not be

discoverable     by   due    diligence          before    or     during    the

proceedings'" (quoting Pacific & Arctic Ry. & Navigation Co.

v. United Transp. Union, 952 F.2d 1144, 1148 (9th Cir. 1991));

Taylor v. Texgas Corp., 831 F.2d 255, 260 (11th Cir. 1987)

(noting that "given the fact that Texgas itself knew that it

had been making pension payments to Taylor, even if its

counsel were not aware of that fact, Texgas cannot show that

Taylor's failure to mention the pension payments prevented

Texgas 'from fully and fairly presenting its case'" (quoting


                                      40
1121181

Harre v. A.H. Robins Co., 750 F.2d 1501, 1503 (11th Cir.

1985))).

       The    rendition    of     the    facts    above     makes    clear    that

Mrs.    Craig's      counsel      was     aware      long   before    trial     of

purportedly "crucial information" regarding the supposed lack

of an actual duodenal repair. Indeed, he repeatedly expressed

with certitude that there had been no such repair and that the

evidence he possessed based on Dr. Datnow's two autopsies

clearly established that "fact." The results of Dr. Datnow's

first autopsy were known to Mrs. Craig two years and eight

months before trial and the results of the second autopsy were

known    to    her   two   years        and   five    months   before    trial.

Nonetheless, Mrs. Craig's counsel did not ask Dr. Anderson in

his deposition, which was taken two years before trial, what

kind of sutures he used in the ulcer surgery, nor did he

attempt at any time during the ensuing two years to engage in

any supplemental discovery aimed at obtaining this information

from Dr. Anderson.         When Dr. Anderson was asked at trial what

kind of sutures he used in the ulcer surgery, Mrs. Craig's

counsel      did   not   follow    up    Dr.     Anderson's    answer    with    a

question      regarding     any    apparent       discrepancy       between    the


                                         41
1121181

statement in his operation report that he used Vicryl sutures

and his statement at trial that he used silk sutures.   Nor did

he otherwise attempt to make use of this testimony in support

of the claims before the court.11

    Dr. Anderson's trial testimony that he used silk sutures

to perform the duodenal repair is indeed additional evidence

in support of Mrs. Craig's assertion that no such repair

actually occurred.   It is only that, however -- "additional"

evidence of a "fact" already known by and allegedly provable

by Mrs. Craig.   Insofar as Dr. Anderson's testimony that he

did perform the repair, this, of course, was nothing new.   To

allow Mrs. Craig to assert new claims based on either aspect

of Dr. Anderson's trial testimony at this juncture would be to

allow her to piecemeal her claims and, indeed, to use Rule

60(b) to avoid the"'free, deliberate, and calculated choices'"

made by her in the management and presentation of her action.



    11
      Even if the possibility of a lack of an actual duodenal
repair had not been known to Mrs. Craig until trial, she
failed to express to the trial court, and has not even
articulated in her brief to this Court, a cogent explanation
or factual theory as to how the failure to actually perform a
duodenal repair would support or otherwise relate to some
other, pleaded failure on the part of Dr. Anderson that caused
Craig's death. See Ala. Code 1975, § 6-5-551.
                              42
1121181

See Wal-Mart Stores, 900 So. 2d at 1245 (quoting Croson, 724

So. 2d at 38).

    Further, despite the fact that Mrs. Craig never pleaded

her "fake surgery" allegation in her complaints,12 the trial

court was willing to allow Mrs. Craig's counsel to present

Dr. Datnow's deposition to the jury, concluding that the issue

was a "disputed fact."          The only reason Mrs. Craig was

prevented   from   presenting    Dr.   Datnow's   deposition   was   a

failure to qualify him as an expert, a ruling that Mrs. Craig

did not challenge in her Rule 59 motion.




    12
      This failure of pleading, alone, is fatal to any attempt
by Mrs. Craig to assert the supposed lack of a duodenal repair
as an act of malpractice in and of itself. Section 6-5-551,
Ala. Code 1975, of the Alabama Medical Liability Act plainly
requires that "[t]he plaintiff shall amend his complaint
timely upon ascertainment of new or different acts or
omissions upon which his claim is based; provided, however,
that any such amendment must be made at least 90 days before
trial." Despite purported foreknowledge of the alleged lack
of any duodenal repair, Mrs. Craig failed to assert a claim in
this regard or to incorporate any allegation of this "fact"
into any amended claim.    Allowing her to use a Rule 60(b)
motion to do so now would sanction the piecemealing of claims
into separate lawsuits and allow her to use a Rule 60(b)
motion to achieve "'relie[f] ... from free, deliberate, and
calculated choices'" made by her in the management and
presentation of her lawsuit. Wal-Mart Stores, 900 So. 2d at
1245 (quoting Croson, 724 So. 2d at 38).
                                 43
1121181

    In addition, the trial court entered its judgment on

October 24, 2012.        By Mrs. Craig's own admission, Dr. Datnow

returned from his absence on November 9, 2012.                Mrs. Craig

filed her Rule 59 motion on November 21, 2012.                Mrs. Craig

could have presented her fraud argument and affidavit from

Dr. Datnow in her Rule 59 motion, and yet she did not do so.

Instead, she waited another month and a half -- and after a

new trial judge had succeeded Judge Jones -- to present the

argument and affidavit in her Rule 60(b) motion.

    The        foregoing     facts    demonstrate      that    even   if

Dr. Anderson's trial testimony concerning the ulcer surgery

could be considered fraudulent, Mrs. Craig was not prevented

as a result of that fraud from fully and fairly presenting her

allegation of a fake surgery.              Instead, she deliberately

waited to present the argument in her Rule 60(b) motion.

Indeed, in her brief Mrs. Craig does not deny that she could

have presented the argument sooner, at least in her Rule 59

motion.    She simply contends that she did not have to do so

because she filed her Rule 60(b) motion within the four-month

period prescribed in Rule 60(b) as the outer limit for the

filing    of   motions     under   Rule   60   (b)(1)-(3).    Under   the


                                     44
1121181

circumstances presented in this case, however, the fact that

Mrs. Craig filed a Rule 60(b)(3) motion within that four-month

period does not excuse her failure to present her fraud

argument sooner.       Once again, "'the broad power granted by

Rule 60(b) cannot be used to relieve a party from free,

deliberate, and calculated choices.'"          Wal-Mart Stores, 900

So. 2d at 1245 (quoting Croson, 724 So. 2d at 38).

    Mrs. Craig has failed to demonstrate how the alleged

fraud prevented her from fully and fairly presenting her

claims    at   trial    or   in   a    posttrial     Rule    59     motion.

Mrs. Craig's counsel repeatedly asserted that Mr. Craig did

not die as a result of the performance by Dr. Anderson of an

ulcer surgery or the lack thereof.            Instead, Mrs. Craig's

theory of the case was that Mr. Craig died of an intra-

abdominal infection acquired after the hernia surgery and that

Dr. Anderson was responsible for Mr. Craig's death because he

failed    to   timely    diagnose      and   treat     the    infection.

Mrs. Craig's case did not fail as the result of any statement

by Dr. Anderson pertaining to the ulcer surgery.                  It failed

because of a lack of proof of the claims asserted.




                                  45
1121181

                            IV.    Conclusion

    Based on the foregoing, we conclude that the trial court

exceeded its discretion in granting Mrs. Craig's Rule 60(b)(3)

motion setting aside the October 24, 2012, final order in

favor     of    Dr.   Anderson    and    SDC.    Therefore,     we   grant

Dr. Anderson and SDC's petition for a writ of mandamus and

direct    the    trial   court    to reinstate    its   final   order   of

October 24, 2012.

    PETITION GRANTED; WRIT ISSUED.

    Stuart, Shaw, Main, Wise, and Bryan, JJ., concur.

    Bolin and Parker, JJ., concur in the result.

    Moore, C.J., dissents.




                                        46
