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, ).

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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, ) ) ) ) ) ) ) ) ) ) ) ) ) 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. 2 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 3

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