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Bruno's Supermarkets2/25/2005
der either the doctrine of completeness or the doctrine of curative admissibility to allow her to present evidence concerning subrogation. The principle embodied in the completeness doctrine is reflected in Rule 106, Ala. R. Evid., which states that " hen a party introduces part of either a writing or recorded statement, an adverse party may require the introduction at that time of any other part of the writing or statement that ought in fairness to be considered contemporaneously with it." The common-law version of the doctrine, however, is not limited to writings or recorded statements. See, e.g., Advisory Committee Notes, Rule 106, Ala. R. Evid; Bank of Loretto v. Bobo, 37 Ala. App. 139, 152, 67 So. 2d 77, 89 (1953) ("Proof by one party of a portion of a conversation entitles the opponent to prove all that was said at the same time on the same subject.").
Massey contends that the completeness doctrine applies in this case. Massey argues that because Bruno's was permitted to present evidence that she was reimbursed for her medical expenses, she likewise should be permitted to present evidence that she had an obligation to repay the entities that reimbursed her. The thrust of this argument states nothing more than what § 12-21-45 already permits. As was previously observed, there is no question that Massey was permitted to present evidence concerning subrogation: the issue is whether Massey presented competent evidence on that subject, which the record indicates she failed to do.
The doctrine of curative admissibility is also referred to as the "reply-in-kind" doctrine, and is sometimes considered to be a form of "invited error." See 1 Charles Gamble, McElroy's Alabama Evidence § 14.01 (5th ed. 1996). "The curative admissibility doctrine holds that if one party introduces illegal evidence, his opponent has the unconditional right to rebut such evidence." American Fire & Cas. Ins. Co. v. Bryan, 379 So. 2d 605, 609 (Ala. Civ. App. 1979) (emphasis added). See, e.g., Smith v. Blankenship, 440 So. 2d 1063, 1066 (Ala. 1983) ("Where counsel for a party litigant pursues an improper line of argument he thereby invites a reply in kind, and statements made by opposing counsel which would otherwise be objectionable are often proper." (Emphasis added.)); and Cunningham v. Lowery, 45 Ala. App. 700, 705, 236 So. 2d 709, 714 (Civ. App. 1970).
Massey contends that when Bruno's mentioned in its opening statement that Medicare and Blue Cross/Blue Shield had paid most of Massey's medical expenses, Bruno's "opened the door" to otherwise inadmissible evidence concerning subrogation. However, the doctrine of curative admissibility does not apply in this case because § 12-21-45(a) permitted Bruno's to present evidence concerning who paid Massey's medical expenses. In other words, Bruno's did not introduce illegal evidence or pursue an improper line of argument, so there was no error to be cured through other impermissible evidence.
Given the presentation of the evidence and the rulings in the record, it was not error for the trial court to disallow the particular evidence presented by Massey concerning subrogation. Thus, the trial court improperly granted a new trial to Massey. Accordingly, we reverse the judgment of the trial court, and we remand the cause for the entry of a judgment consistent with this opinion.
OPINION OF MARCH 26, 2004, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.
Crawley, P.J., and Thompson and Pittman, JJ., concur.
Bryan, J., concurs in the result, without writing.
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