Washington v. Bio-Medical Applications of Alabama, Inc. (JOINT ASSIGN)(MAG2)(MEMBER)

Filing 49

OPINION and ORDER directing as follows: (1) overruling plf's 34 Objections ; (2) adopting 24 Report and Recommendation of the Magistrate Judge; (3) denying 15 Motion to Strike; this case is referred back to the magistrate judge for further proceedings. Signed by Honorable Judge Myron H. Thompson on 5/15/18. (djy, ) Modified on 5/15/2018 to clarify text to reflect as OPINION and ORDER (qc/djy, ).

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JOHN W. WASHINGTON, as
next friend of Mae R.
Washington,

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Plaintiff,
v.
BIO-MEDICAL APPLICATIONS
OF ALABAMA, INC., a
corporation,
Defendant.

CIVIL ACTION NO.
2:17cv855-MHT
(WO)

OPINION AND ORDER
Plaintiff

filed

this

lawsuit

asserting

that

defendant’s employees negligently and wantonly failed
to prevent plaintiff’s mother from falling out of a
wheelchair.
plaintiff

After
moved

to

defendant
strike

filed

from

its

the

answer,

answer

all

affirmative defenses alleging that the Alabama Medical
Liability

Act

("AMLA"),

Ala.

Code

through 6-5-552, applies to this case.
now

before

the

court

on

the

1975

§§ 6-5-540

This lawsuit is

recommendation

of

the

United States Magistrate Judge that plaintiff’s motion

to

strike

be

denied.

Also

before

the

court

are

plaintiff’s objections to the recommendation.
After

an

independent

and

de

novo

review

of

the

record, the court concludes that plaintiff’s objections
should

be

overruled

recommendation adopted.

and

the

magistrate

judge’s

As there is no Alabama state

court decision directly on point, the court must make
an educated guess as to what the Alabama courts--and
particularly the Alabama Supreme Court--would decide if
faced with this case.

See Nobs Chem., U.S.A., Inc. v.

Koppers Co., 616 F.2d 212, 214 (5th Cir. 1980) (“Where
no state court has decided the issue a federal court
must ‘make an educated guess as to how that state's
supreme court would rule.’”) (citations omitted).*

The

court also notes that it is impressed with the limited
factual reach of the holding of the magistrate judge’s

*

In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
Court of Appeals adopted as binding precedent all of
the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
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recommendation,

and

believes

it

is

faithful

to

the

intent of the AMLA as set forth in its preamble, Ala.
Code 1975 § 6-5-540.
Accordingly, it is ORDERED as follows:
(1) Plaintiff’s

objections

(doc.

no.

34)

are

overruled.
(2) The

recommendation

of

the

United

States

Magistrate Judge (doc. no. 24) is adopted.
(3) The motion to strike (doc. no. 15) is denied.
This case is referred back to the magistrate judge
for further proceedings.
DONE, this the 15th day of May, 2018.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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