Mobile Infirmary Mudical Center v. Hodgen10/31/2003
n the trial court, it could have been resolved there, and the parties and public would be spared the expense of an appeal.'"'
"Ex parte Elba Gen. Hosp., 828 So. 2d 308, 314 (Ala. 2001), quoting Cantu v. State, 660 So. 2d 1026, 1031-32 (Ala. 1995)(Maddox, J., concurring in part and dissenting in part), quoting in turn State v. Applegate, 39 Or. App. 17, 21, 591 P.2d 371, 373 (1979)."
Birmingham Hockey Club, Inc. v. National Council on Compensation Ins., Inc., 827 So. 2d 73, 80 (Ala. 2002). Thus, by failing to raise to the trial court at any time after the curative instruction was given its contention that the instruction did not cure the alleged prejudice, Mobile Infirmary has waived any argument it may have had on appellate review as to this issue.
Furthermore, we note that Mobile Infirmary has failed to carry its burden as to this argument.
"We will not reverse a judgment 'unless ... the error complained of has probably injuriously affected substantial rights of the parties.' Rule 45, [Ala.] R. App. P.; Bianco v. Graham, 268 Ala. 385, 388, 106 So. 2d 655, 657 (1958). The appellant bears the burden of proof on this issue. Roubicek v. Roubicek, 246 Ala. 442, 21 So. 2d 244 (1945). This standard ... requires more than an allegation of 'some possibility that the jury could get some adverse thought ....'"
Atkins v. Lee, 603 So. 2d at 946. In its brief to this Court, Mobile Infirmary merely alleges that there is a possibility that the jury venire was prejudiced by the trial court's question to the potential juror and that the trial court's curative instruction was insufficient. We believe that Mobile Infirmary has failed to show that the trial court's actions probably injuriously affected Mobile Infirmary's substantial rights; therefore, Mobile Infirmary has failed to meet its burden in arguing for a reversal of the judgment.
IV.
Mobile Infirmary next invites this Court to revive § 6-5-544(b), Ala. Code 1975, which, at one time, placed a $400,000 cap on the non-economic damages that could be awarded in a medical-malpractice case. In Moore v. Mobile Infirmary Association, 592 So. 2d 156 (Ala. 1991), we declared § 6-5-544(b), Ala. Code 1975, unconstitutional, holding that the cap violated the right to a trial by jury and the equal-protection guarantees under the Alabama Constitution. Mobile Infirmary argues that because this Court has since acknowledged that a cap on punitive damages does not violate the right to a trial by jury under the Alabama Constitution, see Ex parte Apicella, 809 So. 2d 865 (Ala. 2001), and because this Court has acknowledged that the Alabama Constitution contains no equal-protection clause, see Ex parte Melof, 735 So. 2d 1172 (Ala. 1999), this Court should overrule Moore, supra, reinstate the $400,000 cap and apply the cap to Hodgen's punitive-damages award in this case. We decline Mobile Infirmary's invitation to revive § 6-5-544(b), Ala. Code 1975, because, since we decided Moore, the Legislature has explicitly addressed this issue.
The Legislature, when it enacts legislation, is presumed to have knowledge of existing law and of the judicial construction of existing statutes. See Ex parte Fontaine Trailer Co., 854 So. 2d 71 (Ala. 2003). Thus, with the knowledge that § 6-5-544(b), Ala. Code 1975, had been declared unconstitutional in 1991 and that § 6-11-21, Ala. Code 1975, which provided a general cap on punitive-damages awards, had been declared unconstitutional in 1993, see Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993), the Legislature in 1999 rewrote § 6-11-21, Ala. Code 1975, to provide caps on punitive-damages awards to apply "in all civil actions," except in class actions, wr
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