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Bruno's Supermarkets2/25/2005
rom Medicare get up here and talk about their rights that they have here.
"[BRUNO'S COUNSEL]: Judge you have been over this. We object to it. You told him yesterday he could not make this argument. It is not in evidence, and we object to it.
"[MASSEY'S COUNSEL]: Judge, I am just saying what wasn't presented by the defendants.
"[BRUNO'S COUNSEL]: No, sir.
"[MASSEY'S COUNSEL]: I can argue that.
"[BRUNO'S COUNSEL]: It's his case to prove. You have ruled on this issue.
"[THE COURT]: Sustain the objection."
In his closing statement to the jury, counsel for Bruno's stated, with regard to the issue of medical expenses:
"They come in and say, all right, she has got medical bills. [Massey's counsel] keeps talking about the law; let me show you what the law is. I told you the judge is going to read you what the law is. Let me show you what it is. 'The measure of damages for medical expenses is all reasonable expenses necessarily incurred for doctors and medical bills which the plaintiff has paid or is obligated to pay. The reasonableness and the necessity of those expenses are matters for your determination, which the plaintiff has paid or is obligated to pay.' You heard [Massey's] testimony[:] all her medical bills were paid by Medicare and Blue Cross with the exception of $557. She is obligated to pay $557."
On November 1, 2002, the jury returned a verdict in Massey's favor, awarding her damages in the amount of $30,000. On December 2, 2002, Massey filed a motion for a new trial or, in the alternative, a motion for additur, on the ground that the trial court had erred in allowing counsel for Bruno's to mention in his closing statement that Massey's medical expenses had been paid by Medicare and Blue Cross/Blue Shield but forbidding Massey's counsel from mentioning that Medicare and Blue Cross/Blue Shield would have a subrogation interest in any damages she recovered in the action. The trial court entered an order on January 27, 2003, granting the request for a new trial, stating in pertinent part:
"During the trial the Court sustained an objection to the introduction of an unathenticated letter which purported to show the amount of medical expenses [Massey] was required to repay. This ruling was correct. [Massey] states that the Court did not allow other evidence that was required to repay an amount of such medical payments.
"The Court evidently did not allow evidence that [Massey] was on notice that an amount was due on subrogation. This was error on the part of the Court. [Bruno's] had stated in its opening statement that [Massey's] medical bills of $50,000 were paid by Medicare and Blue Cross/Blue Shield. ... [Massey's] Motion For a New Trial is granted."
Bruno's appeals.
"Whether to grant or to deny a motion for new trial is vested within the sound discretion of the trial court, and this court will not reverse that decision on appeal without a showing of an abuse of discretion." Smith v. Darring, 659 So. 2d 678, 679 (Ala. Civ. App. 1995).
Section 12-21-45, Ala. Code 1975, provides, in pertinent part:
"(a) In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiff's medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or ho
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