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Tuck v. Healthcare Authority of the City of Huntsville11/27/2002
folded underneath her. Virginia Tuck told Mizelle that she thought the room was on fire, and she apparently had worked her way out of the restraint and had gotten out of the bed and fallen. Mizelle then added wrist and ankle restraints to Virginia Tuck. The on-call doctor examined Virginia Tuck and determined that she had broken her hip in the fall.
On April 10, 2000, Virginia Tuck sued the Hospital for medical malpractice. Subsequently, Virginia Tuck died from unrelated causes, and her son, Charles Tuck, was substituted as the plaintiff in his capacity as the personal representative of Virginia Tuck's estate. On February 2, 2001, the Hospital filed a motion for a summary judgment. Charles Tuck opposed the motion; his evidence in opposition included an affidavit of his expert witness, Cecilia Cantrell, a former nurse and an administrator at a school of nursing. The Hospital filed a motion to strike the affidavit, and the trial court denied both the Hospital's motion for a summary judgment and its motion to strike Cantrell's affidavit.
On October 29, 2001, a jury trial began. On October 31, 2001, the Hospital filed a motion to exclude the testimony of Charles Tuck's expert witness, Cantrell, on the grounds that she did not qualify as a similarly situated health-care provider as required by § 6-5-548, Ala. Code 1975, a part of the Alabama Medical Liability Act ("AMLA"). The trial court granted the motion. After this ruling, Tuck's attorney sought to call Phillip Buchmann, a Hospital employee who provides training in the use of patient restraints, to testify as an expert on the standard of care in applying restraints. Tuck had deposed Buchmann and had submitted his testimony at the summary-judgment stage and had introduced at trial, before the Hospital filed its motion to exclude Cantrell's testimony, a training video featuring Buchmann. The trial court did not allow Tuck to use Buchmann as an expert because Tuck had not disclosed Buchmann as an expert witness in accordance with Rule 26(b)(4), Ala. R. Civ. P., in response to the Hospital's interrogatories. Tuck moved for a mistrial, and the trial court denied the motion. At the close of Tuck's case, the trial court granted the Hospital's preverdict motion for judgment as a matter of law ("JML") and entered a judgment in favor of the Hospital. Tuck filed a motion for a new trial; the trial court denied the motion, and Tuck appealed.
Standard of Review
The standard of review applicable to a JML is the same standard the trial court used in initially deciding the motion. If there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination then a JML is not proper. City of Birmingham v. Sutherland, [Ms. 1001327, March 29, 2002] ___ So. 2d ___ (Ala. 2002).
In determining whether the trial court properly precluded a designated expert from testifying under § 6-5-548, we apply the abuse-of-discretion standard of review. See, e.g., Husby v. South Alabama Nursing Home, Inc., 712 So. 2d 750 (Ala. 1998); Rodgers v. Adams, 657 So. 2d 838 (Ala. 1995). The abuse-of-discretion standard of review is also applied when evaluating whether the trial court properly precluded an expert from testifying because the expert was not designated in the party's answers to interrogatories as required by Rule 26, Ala. R. Civ. P. See Coca-Cola Bottling Co. United, Inc. v. Stripling, 622 So. 2d 882 (Ala. 1993).
Analysis
Tuck first argues that the trial court's judgment should be reversed because the trial court erred in not granting Tuck's motion for a mistrial. Tuck filed the motion for a mistrial after the trial court had granted the Hospital's motion to disq
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