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BENNETT v. BREWER9/20/1996
Austen L. Bennett III, M.D. and Cardio-Thoracic Surgeons, P.C., appeal from the denial of their motion for a new trial. On September 14, 1993, Walter D. Brewer filed an action in Jefferson County against Dr. Bennett and Cardio-Thoracic Surgeons, alleging that Dr. Bennett had negligently performed a heart bypass operation on Brewer. On December 6, 1993, Brewer died, from causes unrelated to his heart bypass surgery, and his son, Ronald C. Brewer, as administrator of his father's estate, was substituted as the plaintiff in this proceeding. See Rule 25, Ala.R.Civ.P.
The case proceeded to trial, and the jury returned a $250,000 verdict against Dr. Bennett and Cardio-Thoracic Surgeons. The defendants filed a motion for a JNOV, or, in the alternative a new trial, alleging, among other things, that the plaintiff's counsel had improperly injected the wealth of Dr. Bennett into the closing arguments. The court denied the motion. Dr. Bennett and Cardio-Thoracic Surgeons have raised eight issues on appeal; however, because the first issue requires a reversal of the judgment, we pretermit any discussion of the remaining issues.
Specific facts regarding the alleged malpractice are unnecessary for a resolution of the issue; thus, we include only a brief summary of the facts. At the conclusion of Mr. Brewer's triple bypass surgery, Dr. Bennett placed four chest tubes into the chest cavity in order to drain any blood that might accumulate in the chest cavity after the operation. While placing one of the drainage tubes, Dr. Bennett perforated Mr. Brewer's transverse colon. As a result of this perforation, Mr. Brewer suffered complications that lengthened his hospital stay and increased his medical expenses. Specifically, Mr. Brewer suffered peritonitis and subsequently had to have a colostomy.
Dr. Bennett and Cardio-Thoracic Surgeons contend that on four occasions Mr. Brewer's counsel improperly injected the wealth of Dr. Bennett into his closing argument. It is well settled that it "is highly prejudicial to a defendant for the jury to be improperly informed as to wealth of the defendant or poverty of the plaintiff." Liberty National Life Insurance Co. v. Kendrick, 282 Ala. 227, 230, 210 So.2d 701, 703 (1968). The defendants claim that the following statements made by Mr. Brewer's counsel during his closing argument were so prejudicial and highly improper that a reversal is due:
"He [the plaintiff's expert witness] turns down, as he told you, five out of six cases without getting a dime. You know, somebody calls him and says, 'Here's what happened, Dr. Mills. Does this appear to be medical malpractice?' Five out of six times he says, 'No,' when it appears that — This is something that should be considered, after considering a third of those when he could get more money. He doesn't even consider them. You know, but they say, 'Well, over 10 years, he's made $600,000.' You know, what does a heart surgeon make? $600,000 in one year probably. And by the way —
"Mr. Bates [defense counsel]: I object to that, Your Honor. That's irrelevant and prejudicial and move to exclude.
"The Court: Well, I think that Mr. Teel [plaintiff's counsel] had made it clear that the only purpose for that is in response to the question about the fees for his expert witness; is that correct?
"Mr. Teel: Yes, sir.
"The Court: All right. Other than in that context you shall not consider that part of the argument. Go ahead sir."
At a later point in his argument, Mr. Teel made the following comments:
"He [the plaintiff] ain't living over in — this man lives in a mobile home. He's not over in Mountain Brook, you know. And I'm proud f
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