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IMG_3255-scaled-1-200x300by HWC Partner Carter Clay

For any attorney who has pursued product liability cases on behalf of injured victims, you know that the attorney(s) for the manufacturer will often claim that the plaintiff “misused” the product and that it was the plaintiff who caused the incident. Oftentimes, attorneys representing the plaintiff will not push back on such a statement and will allow the statement or contention to go unchallenged prior to trial. This is a mistake.

To have a viable affirmative defense of product “misuse,” a defendant must present evidence “showing that the plaintiff used the product in some manner different from that intended by the manufacturer. “Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185 (Ala. 1992). This sounds simple enough, but it isn’t. One might conclude from such a legal declaration that “foreseeable” uses could also be considered “misuse,” but that is not correct. For purposes of the AEMLD,” use is intended if it is one that is reasonably foreseeable by the manufacturer.” Id. at 1192.

IMG_3363-200x300by HWC Attorney Allwin E. Horn, IV

One of the benefits of the Alabama Workers’ Compensation Act is that as long as an employee is injured during the line, scope and course of their employment, payment for “reasonable” and “necessary” medical treatment for life will remain the responsibility of the employer and/or the employer’s insurance company. This general rule applies even if the accident is the fault of the injured worker. Accidents happen! Employees who have suffered on-the-job injuries can attest to how frustrating the process can be in terms of getting medical treatment approved by the workers’ compensation carrier.

Unfortunately, the Alabama Workers’ Compensation Act, as a general rule, gives the employer/insurance carrier the right to select who the “authorized treating physicians” will be. There are, however, some exceptions to this rule. The primary exception to the rule is that the employee is entitled to a panel of four physicians to select a new doctor if they become dissatisfied with their present authorized treating physician. However, the employer/insurance carrier gets to select the four physicians who are listed on the panel. These rules and regulations can get complex and truly require the help of an attorney who knows the nuances of Alabama Workers’ Compensation Laws, as well as how insurance carriers operate.

craig-blog-214x300by HWC Attorney Craig Shirley

Unfortunately, there are times when people are falsely arrested, whether intentionally or simply by a mistake in identity. When that does happen, there is a potential for a personal injury claim for false arrest and false imprisonment to be made arising out of that false arrest. In Alabama, false arrest and false imprisonment, while seemingly very similar, are slightly distinguishable. For instance, false imprisonment in Alabama is statutorily defined, as “the unlawful detention of the person of another for any length of time…” Ala. Code § 6-5-170. Conversely, Alabama courts have long held that to constitute an arrest, as person must be taken into custody under real or assumed authority. Davis & Allcott Co. vs. Boozer, 110 So. 28, 29 (Ala. 1926). Accordingly, if a person has been subject to a false arrest, that false arrest will also support a claim for false imprisonment. In that instance, the first question that must be answered is whether the arrest that was made was in fact “false,” and if the answer is no, i.e. the arrest was made pursuant to a valid warrant, then there can be no subsequent action for a false arrest or false imprisonment. Assuming that the arrest was in fact “false,” that leads to a more difficult question to answer: “is the police officer ultimately immune from liability for the false arrest?”

In Alabama, law enforcement officers are granted State-agent immunity under Alabama Code section 6-5-338(a). This statute states that law enforcement officers “shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function…” Ala. Code § 6-5-338(a). After the legislature enacted the State-agent immunity statute, there were circumstances arising that raised the question of what qualified as a “discretionary function.” The Supreme Court of Alabama addressed that particular issue in Ex parte Cranman when it set out the restatement of the State-agent immunity and provided the test in determining whether a law enforcement officer would be entitled to State-agent immunity under section 6-5-338(a). The Cranman Court Stated:

1josh-approved-1-212x300by HWC Managing Partner Josh Wright

The Alabama Dram Shop Act has been around since 1909, and in pertinent part, has been in place to protect “every wife, child, parent, or other person who was injured in person, property or means of support by any intoxicated person.” Many bars, restaurants, and convenience stores do things the right way, and follow the rules with no liability; those that don’t have answered to Ala. Code Sec. 6-5-71 and well-established Alabama case law for more than 100 years.

In the name of reduced insurance costs for bars, restaurants, and convenience stores, and to increase insurance competition in Alabama, the retailers lobby pushed to change the Alabama Dram Shop Act in the 2023 Legislative Session. But, to what end? The new law changes the proof that is necessary for Alabama victims to pursue alcohol-related dram shop claims against offending bars, restaurants, and convenience stores that break the rules. So, drunk drivers, and those that serve them just got a small win over Alabama’s drunk driving victims.

IMG_3308-200x300by HWC Partner Michael Eldridge

It is not uncommon for individuals and companies to face situations in which they are unsure of the potential legal ramifications that follow certain future actions or decisions. This is especially true in the context of contractual relationships. Alabama courts have long recognized a party’s right to efficiently obtain a judicial determination of their rights and responsibilities in many of those circumstances. The vehicle for said relief is the Alabama Declaratory Judgment Act Ala. Code §6-6-220-232. Unlike typical civil lawsuits, the Alabama Declaratory Judgment Act allows a party to file a lawsuit for the sole purpose of getting a legally binding court order defining the party’s rights, responsibilities, and obligations under the circumstances at issue.

While there are many circumstances in which the Alabama Declaratory Judgment Act is an appropriate judicial tool for individuals and businesses, it is most commonly employed by insurance companies. This is because insurers commonly face situations in which future uncertainly exist relating to their obligations and responsibilities to an insured. Examples of these situations include questions like whether coverage is owed, whether the insurer has a duty to defend a person in a lawsuit, or whether a person even qualifies as an insured under the insurance policy. The one thing all of these cases have in common is that they each involve circumstances in which the controversy or uncertainty stems from a party’s future rights, obligations, or responsibilities.

IMG_3255-200x300by HWC Partner Carter Clay

To establish the existence of a safer design, a plaintiff, typically through an expert must provide substantial evidence to show (1) that the injuries caused by the product would have been less severe or eliminated by the use of an alternative design and (2) that the utility of the alternative design outweighed the utility of the design actually used. General Motors Corp. v. Jernigan, 883 So. 2d 646, 662 (Ala. 2003). There is no rule of Alabama law that states that the expert must test the safer alternative design to meet the substantial evidence threshold. In fact, “[no] one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.” Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137, 156 (1999).

I. Examples of Substantial Evidence

1josh-approved-1-212x300by HWC Managing Partner Josh Wright

Managing Partner Josh Wright has developed a specialty over the last 25 years in the litigation of toxicology admissibility. Long a regionally-recognized drunk driving victim’s lawyer, the issue of biologic sample admissibility has developed in the law, and Josh has been on the forefront of the topic–litigating alcohol and drug-related cases in State and Federal courts in multiple states, and constantly writing and lecturing on the topic. In fact, part of the current Alabama Beverage Control regulations were written by Josh in 2011-2012.

“Admissibility of biologic samples, including urine and blood results, has become a complicated legal issue over the last 20 years in Alabama and our surrounding states,” Josh stated. “It’s not as simple as saying ‘because that driver had alcohol in his system, the jury gets to hear that evidence against him,’ or ‘because that industrial worker had drugs in his system when he caused the injury, the jury will hear that evidence.'” “If you don’t know and understand the ever-changing science of toxicology admissibility, critical evidence may never be heard by your jury in your case.”

1josh-approved-1-212x300by HWC Managing Partner Josh Wright

Post-COVID verdict averages in personal injury claims are up close to 50% from that of pre-COVID verdicts, according to recent statistics.¹ Verdicts in 2022 alone for Alabama injury victims have topped $97,000,000 in cases involving a wide array of wrongful conduct, including contract disputes, auto, medical malpractice, co-employee, fraud, discrimination, and uninsured motorists. See some of those recent verdicts below (based on lawyer-disclosed data):

Juries appear to listen carefully, consider all the evidence and thoroughly asses josh-graphic-1-copy-192x300fundamental fairness in cases post-COVID. Insurance companies are also getting the message that juries are ready and willing to put aside politics and division in a courtroom, and award fair results in legitimate and real injury cases. Our firm alone has resolved (both at trial and pre-trial), a substantial number of lawsuits for unprecedented money in the last 12 months, which in no small part is because insurance companies have heard the message and listened to recent jury verdicts across the Country.

IMG_3255-200x300by HWC Partner Carter Clay

Prior to any trial, the attorneys will assess the need to file motions in limine to try to keep out damaging or prejudicial testimony and evidence. Typically, the court will hold a hearing on these motions before commencing the trial and will issue rulings on most, if not all, of the motions. When the court rules adversely to a party, the lawyer must ask himself or herself whether the ruling is sufficient to preserve the issue for appeal. The answer to this question is often “no,” but it depends on whether the court expressly and unequivocally indicated that the party does not need to make another objection during the trial itself.

Alabama Rule of Evidence 103 and applicable case law make it clear that in order to preserve an evidentiary issue for “post judgment and appellate review,” a party must object in a timely manner to the admissibility of the evidence during trial. Ala. R. Evid. 103. Rule 103 states, in pertinent part, that:

IMG_3255-200x300by HWC Partner Carter Clay

Although not terribly common, there are occasions where an individual or company may go to a fabricator or a product manufacturer and ask them to manufacture a product or part based upon an exemplar or design specifications created by the customer. If the manufacturer agrees to make the product or part, what are the manufacturer’s responsibilities? Can they blindly follow the design specifications provided by the customer? Under Alabama law, the answer is no, the manufacturer cannot blindly follow the design specifications and escape liability if the product or part that it makes is defective and injures someone.

“[I]t is well established… that an ultimate consumer can recover in negligence against a manufacturer even in the absence of privity of contract.” Ex parte Grand Manor, Inc., 778 So. 2d 173, 178 (Ala. 2000). Where injury is foreseeable, the contracting party owes the duty to those who could be injured:

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