Evans v. Jefferson County Commission et al

Filing 92

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 11/1/13. (SAC )

FILED
2013 Nov-01 PM 02:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARGO EVANS,
Plaintiff,
v.
JEFFERSON COUNTY COMMISSION,
et al.,
Defendants.

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2:11-cv-02131-KOB

MEMORANDUM OPINION
This matter is before the court on “Defendant’s Motion for Summary Judgment.” (Doc.
84). Plaintiff Margo Evans sues as the personal representative of the estate of Michael Derrick
Evans, alleging various claims relating to the death of Mr. Evans, who was a pretrial detainee in
Jefferson County Jail, Bessemer Division. Plaintiff makes three claims against Defendant Health
Assurance LLC: a claim for “Deliberate Indifference to Serious Medical Needs” in violation of
42 U.S.C. § 1983; a claim for wrongful death; and a claim for negligent care and treatment under
the Alabama Medical Liability Act (“AMLA”). Health Assurance argues that no genuine issues
of material fact exist and that it is entitled to judgment as a matter of law on all three of
Plaintiff’s counts against it. Plaintiff failed to respond. For the following reasons, the court will
GRANT IN ITS ENTIRETY Health Assurance’s motion for summary judgment.
I.

PROCEDURAL BACKGROUND
This removed case alleges the following counts: Count I, for deliberate indifference to

serious medical needs under 42 U.S.C. § 1983; Count II, for conspiracy to violate civil rights

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under 42 U.S.C. § 1985; Count III, for neglect to prevent conspiracy to violate civil rights under
42 U.S.C. § 1986; Count VI, for wrongful death, presumably under Alabama state law; and
Count V, for negligent care and treatment and punitive damages under the Alabama Medical
Liability Act (“AMLA”). Counts I, IV, and V are against the moving Defendants. (Doc. 38).
On November 16, 2011, the court stayed all proceedings involving Defendant Jefferson
County Commission only, because Jefferson County had filed a petition for bankruptcy under
Chapter 9 of the Bankruptcy Code. (Doc. 45).
On May 15, 2012, the court granted the motions to dismiss of Defendants Mike Hale, Pat
Gamble, and Arthur Green (doc. 39, 43), and sua sponte struck the fictitious defendants (doc.
54). On June 15, 2012, the court dismissed without prejudice Defendants Allen Farley, Felecia
Rucker, Sherry Johnson, Jack Self, Karen Fowler, and Ron Eddings, because of plaintiff’s failure
to timely serve them under Rule 4(m). (Doc. 65). At this point, no individual defendants
remained party to the proceeding. Only Defendants Health Assurance LLC and the Jefferson
County Commission remained in the case; however, Jefferson County remained, and still
remains, under an indefinite stay because of bankruptcy.
On July 9, 2013, Health Assurance filed the motion for summary judgment that is
currently before the court. (Doc. 84). The court entered a briefing schedule that gave Plaintiff
until July 31, 2013 to file a response. (Doc. 85). On August 5, 2013, having received no response
from Plaintiff, the court ordered Plaintiff to show cause by August 19, 2013, why the court
should not grant Health Assurance’s motion for summary judgment. (Doc. 86). On August 13,
2013, Plaintiff filed a motion requesting an extension of time to file its response to the order to
show cause. (Doc. 87). The court denied this motion because Plaintiff failed to state whether it
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was opposed, as required by the Scheduling Order. On August 18, 2013, Plaintiff filed three
motions: first, he filed an amended motion for extension of time to respond to the order to show
cause (doc. 88); second, he filed a motion to withdraw this amended motion (doc. 89); and third,
he filed a “Second Motion for Extension of Time” (although it was actually his third such
motion) (doc. 90). On August 20, 2013, the court denied Plaintiff’s “Second Motion for
Extension of Time” because Plaintiff’s counsel failed to show why he could not have responded
timely or before leaving town on August 14, 2013 and because Plaintiff failed to offer any
defense for his repeated delays. (Doc. 91).
II.

FACTS
Because Plaintiff has filed no response to Defendant Health Assurance’s statement of

undisputed facts, the court considers those facts as undisputed for the purposes of this motion,
provided that they are supported by evidence in the record. See Fed. R. Civ. P. 56(c) and (e). This
court’s orders refer parties to Appendix II on the court’s website, which sets out the requirements
for summary judgment briefs and provides: “All material facts set forth in the statement required
of the moving party will be deemed to be admitted for summary judgment purposes unless
controverted by the response of the party opposing summary judgment.” (Emphasis in original).
Health Assurance’s undisputed facts provide the following information.
On October 24, 2008, Michael Derrick Evans was transferred from a federal facility to the
Jefferson County Jail, Bessemer Division. On May 16, 2009, Mr. Evans died in the jail from
complications related to chronic hypertension. Jail personnel found Mr. Evans unresponsive in
his cell and took him to UAB West, where doctors pronounced him dead. (Doc. 84, ¶ 1, 2, 4).
While incarcerated, Mr. Evans filed a number of grievances against the Bessemer jail;
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however, none of these grievances mentioned the nature or quality of Mr. Evans’s health care
treatment. Furthermore, no record exists of Mr. Evans making any grievance or complaint against
Health Assurance or a Health Assurance employee. (Doc. 84, ¶ 3).
The court’s Revised Scheduling Order, issued February 21, 2013, required the Plaintiff to
make her Rule 26 expert witness disclosures by April 22, 2013. To date, Plaintiff has failed to
disclose any expert. (Doc. 84, ¶ 9).
In addition to Health Assurance’s statement of undisputed facts, Rule 56(c)(3) allows the
court to examine other materials in the record, even if not cited by the parties. Fed. R. Civ. P.
56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in
the record.”). The record includes the affidavit of Dr. Gary Simmons, the Associate Coroner who
performed the autopsy on Mr. Evans, which adopts the autopsy report (Exhibit A); the autopsy
report of Mr. Evans (Exhibit B); and the affidavit of Karen Fowler, a nurse who was the Health
Services Administrator for Health Assurance at the time of Mr. Evans’ incarceration (Exhibit C).
Plaintiff does not dispute this record or offer any contrasting exhibits; therefore, the court accepts
these facts as true as well.
The autopsy report notes that “decedent had a history of high blood pressure and was
receiving medication in the jail.” (Exhibit B, at 4). The case summary portion of the autopsy
report further reflects that “[the] [e]xamination revealed the presence of cardiomegaly with
concentric left ventricular hypertrophy. This is consistent with the decedent’s known history of
hypertension, for which the decedent was on several medications.” The report concludes that
“decedent died suddenly and unexpectedly. . . . [T]he cause of death is best listed as hypertensive
heart disease with the manner of death being natural.” (Exhibit B, at 8).
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The affidavit of Karen Fowler explains Health Assurance’s relationship to Mr. Evans,
stating that it “provided inmate medical services at the time of Michael Evans’ incarceration at
the jail in May of 2009.” It also reflects that she has reviewed Plaintiff’s complaint and that she is
familiar with the applicable standard of care for medical treatment at Jefferson County Jail
during the time of Mr. Evans’s incarceration. She states:
Based on my review of Mr. Evans’ medical records, the applicable policies and
procedures, and my experience as a Health Services Administrator, the medical
treatment provided to Mr. Evans met the applicable standard of care and the
nurses providing care to Mr. Evans met the standard of care, skill, and diligence
required in his treatment and this care was consistent with that of other similarly
situated nurses would have provided.
(Exhibit C, at 2).
III.

STANDARD OF REVIEW
Summary judgment is an integral part of the Federal Rules of Civil Procedure. Summary

judgment allows a trial court to decide cases when no genuine issues of material fact are present
and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. When a
district court reviews a motion for summary judgment, it must determine two things: (1) whether
any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). Once the moving party “has met its burden of
demonstrating the absence of any genuine issue of material fact, the non-moving party must
make a sufficient showing to establish the existence of each essential element to that party’s case,
and on which that party will bear the burden of proof at trial.” Howard v. BP Oil Co., Inc., 32
F.3d 520, 524 (11th Cir. 1994) (citing Celotex Corp v. Catrett, 477 U.S. 317, 324 (1986)).
The mere fact that the Plaintiff did not file a response to Defendant’s motion for summary

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judgment does not mean that the court should automatically grant the motion.1 The Eleventh
Circuit has held: “Where ‘the adverse party does not respond, summary judgment, if appropriate,
shall be entered against the adverse party.’ Thus, summary judgment, even when unopposed, can
only be entered when ‘appropriate.’” United States v. One Piece of Real Property, 363 F.3d
1099, 1101 (11th Cir. 2004) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original). Pursuant to
Fed. R. Civ. P. 56(c), summary judgment is appropriate when the record shows “that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the burden of showing no genuine
issue of material fact and that he is entitled to judgment as a matter of law. See Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970).
IV.

DISCUSSION
For the sake of clarity, the court will deal with the various counts in a different order than

that used in Plaintiff’s complaint and Health Assurance’s Motion for Summary Judgment.
Count I: Deliberate Indifference to Serious Medical Needs
Count I of Plaintiff’s complaint alleges deliberate indifference to serious medical needs
against various defendants, as well as supervisory liability against Health Assurance. Health
Assurance argues in its motion for summary judgment that Plaintiff’s claim under 42 U.S.C. §
1983 fails as a matter of law because Plaintiff failed to establish that Mr. Evans had a “serious
medical need,” because Health Assurance was not deliberately indifferent to Mr. Evans’ medical

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In fact, even if Plaintiff had filed a response, it still would have been insufficient because
Plaintiff lacked an expert witness, as discussed below.
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needs, and because Health Assurance cannot be held liable under respondeat superior for the
conduct of Mr. Evans’ treating nurses.
In evaluating an alleged § 1983 violation, a court must initially determine “(1) whether
the person engaged in the conduct complained of was acting under color of state law; and (2)
whether the alleged conduct deprived a person of rights, privileges or immunities guaranteed
under the Constitution or laws of the United States.” Duke v. Massey, 87 F.3d 1226, 1231 (11th
Cir. 1996). Health Assurance does not argue that it was not acting under the color of state law,
and a medical provider, like Health Assurance, who is under contract to provide medical services
to inmates acts under color of state law in providing those services. See West v. Atkins, 487 U.S.
42 (1988). Furthermore, “[i]t is well established that deliberate indifference to serious medical
needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the
Eight Amendment.” Brown v. Johnson, 387 F.3d 11344, 1351 (11th Cir. 2004) (internal
quotations omitted).
Not every claim that a prisoner has not received adequate medical treatment states a
violation of the Eight Amendment2; “[m]edical treatment violates the eight amendment only
when it is so grossly excessive as to shock the conscience or to be intolerable to fundamental
fairness.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (internal quotations and

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Mr. Evans was technically a pretrial detainee, not a prisoner; therefore Plaintiff’s claim is
governed by Fourteenth Amendment Due Process Clause, not the Eighth Amendment. See Cook
ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1115 (11th Cir. 2005)
(recognizing the Fourteenth Amendment rights of plaintiff, a pretrial detainee, but applying
Eighth Amendment standards) . The standards under the Fourteenth Amendment, however, are
identical to the standards under the Eighth Amendment and the court will simply refer to the
Eight Amendment standards going forward. Id.
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citation omitted). To establish deliberate indifference to a serious medical need, a plaintiff must
satisfy a two-part inquiry that includes both a subjective and objective component. “First, a
plaintiff must set forth evidence of an objectively serious medical need.” Farrow v. West, 320
F.3d 1235, 1243 (11th Cir. 2003) (internal citations omitted). The Eleventh Circuit has defined a
serious medical need as “one that has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Id. (citing Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).
“Second, a plaintiff must prove that the prison official acted with an attitude of
‘deliberate indifference’ to that serious medical need.” Id. Deliberate indifference requires “(1)
subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is
more than mere negligence.” Id. at 1245. An official “may escape liability for known risks if he
responded reasonably to the risk, even if the harm ultimately was not averted.” Butler v. Prison
Health Services, Inc., 294 Fed. App’x 497, 499 (11th Cir. 2008) (internal quotations omitted)
(finding that plaintiff with untreated high blood pressure failed to state a claim for deliberate
indifference to serious medical needs despite having suffered a stroke as a result of the lack of
blood pressure monitoring).
In this case, the only facts in the record that speak to Mr. Evans’s medical needs prior to
his death are found in the autopsy report. The report states: “The decedent had a history of high
blood pressure and was receiving medication in jail.” (Exhibit B, at 4); see also (Exhibit B, at 8)
(“[Autopsy findings are] consistent with the decedent’s known history of hypertension, for which
the decedent was on several medications.”). Even assuming, without finding, that Mr. Evans’s
hypertension was a serious medical need, the facts do not support a finding of deliberate
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indifference. Health Assurance met its burden of highlighting the deficiencies in Plaintiff’s case
and Plaintiff has failed to establish this essential element of her case for which she has the burden
of proof.
The limited evidence indicates that Mr. Evans received treatment for his medical needs in
the form of medication in jail. Even if it did not provide the best course of treatment, Health
Assurance cannot be held liable under § 1983 for mere negligence. Furthermore, even the fact
that Mr. Evans ultimately died from his hypertension, which was a known risk, is not enough to
show deliberate indifference because he was receiving treatment for the condition and no
evidence indicates that this treatment was unreasonable. Therefore, the court finds that Health
Assurance was not deliberately indifferent to Mr. Evans’s serious medical needs. As such, the
court need not examine Health Assurance’s policies and practices, because it has found no
underlying liability. Heath Assurance’s motion for summary judgment as to Count I is due to be
GRANTED.
Count V: Negligent Care and Treatment under the AMLA
Health Assurance argues that Plaintiff’s AMLA claim fails as a matter of law because
Plaintiff cannot proffer any evidence that Health Assurance breached the standard of care.
Specifically, it points to the fact that Plaintiff has not produced an expert witness, as required
under the AMLA in most circumstances. (Df. Brief, 7-13). See Alabama Code §§ 6-5-548(a),
-542(5).
The AMLA is a law that governs a wide spectrum of causes of action against health-care

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providers, including medical malpractice actions.3 Collins v. Ashurst, 821 So. 2d 173, 176 (Ala.
2001). In Lyons v. Vaughan Regional Medical Center, LLC, the Alabama Supreme Court
addressed whether a trial court properly granted summary judgment for a defendant medical
facility in a negligence action under the AMLA. 23 So. 3d 23 (Ala. 2009) (affirming the
summary judgment because the plaintiff failed to establish a proximate causal connection
between the alleged injury and the treatment received at the medical facility). That court
conducted a thorough review of Alabama law on the topic, which is instructive in this matter.
According to the Alabama Supreme Court in Lyons, to have a valid claim for negligence
under the AMLA, the plaintiffs “must provide evidence indicating that the negligence alleged is
the proximate and probable cause of [the alleged injuries]; a mere possibility or one possibility
among others is insufficient to meet the burden of proof.” 23 So. 3d at 28-29 (emphasis in
original). “[U]nless the cause and effect relationship between the breach of the standard of care
and the subsequent complication or injury is so readily understood that a layperson can reliably
determine the issue of causation, causation in a medical-malpractice case must be established
through expert testimony.” Id. at 28 (emphasis added) (quoting Sorrell v. King, 946 So. 2d 854,
862-63 (Ala. 2006)). “When the basis of a summary-judgment motion is a failure of the
nonmovant’s evidence, the movant’s burden . . . is limited to informing the court of the basis of
its motion-that is, the moving party must indicate where the nonmoving party’s case suffers an
evidentiary failure.” Id. at 27 (quoting Brown v. St. Vincent’s Hosp., 899 So. 2d 227, 233 (Ala.
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The court assumes without explicitly finding that Health Assurance is a health care
provider under the AMLA. Plaintiff implicitly asserts that the AMLA applies to Health
Assurance in Count V and Health Assurance does not argue otherwise; therefore, the court will
consistently treat all of Plaintiff’s claims against Health Assurance as actions against a health
care provider.
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2004)).
In its statement of undisputed facts, Health Assurance states that Ms. Evans has not
disclosed any expert, despite the court’s requirement that she make her Rule 26 expert witness
disclosure by April 22, 2013. As such, Health Assurance has met its burden as the movant of
informing the court of Ms. Evans’s evidentiary failure.4 The court accepts this showing as a
prima facie showing of nonliability, and next looks to see whether any evidence exists to rebut
this showing. Because this a motion for summary judgment, the court must work through these
issues in a somewhat counter-intuitive order; although it has already examined the Defendants’
burden as the movant, it now moves back to the beginning and looks at the Plaintiff’s burden,
starting with establishing a breach of the standard of care.
In Dews v. Mobile Infirmary Association, the Alabama Supreme Court addressed another
medical malpractice negligence claim, stating that “the sole issue presented for our review is
whether the plaintiff presented substantial evidence” under § 6-5-548 of the AMLA. 659 So. 2d
61, 63 (Ala. 1995). The Court in Dews noted that “when the defendant in a medical malpractice
case moves for a summary judgment and makes the requisite prima facie showing of
nonliability,” to avoid entry of summary judgment for the defendant, the plaintiff “must present
substantial evidence indicating that the alleged negligence (the breach of the appropriate standard
of care) probably caused the injury.” Id. at 64. The Court reviewed the relevant portions of the
AMLA before affirming the trial court’s grant of summary judgment to the defendant in the case.
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Health Assurance also submits the affidavit of Karen Fowler, Heath Services
Administrator, stating that “the medical treatment provided to Mr. Evans met the applicable
standard of care . . . .” (Exhibit C, at 2). Although the court accepts this as evidence that the other
nurses met their standard of care, Ms. Fowler is not qualified to testify as to whether the doctors
met the standard of care. See Alabama Code § 6-5-548(b).
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Id. at 63.
Under the AMLA:
In any action for injury or damages or wrongful death, whether in contract or in
tort, against a health care provider for breach of the standard of care, the plaintiff
shall have the burden of proving by substantial evidence that the health care
provider failed to exercise such reasonable care, skill, and diligence as other
similarly situated health care providers in the same general line of practice
ordinarily have and exercise in a like case.
Alabama Code § 6-5-548(a) (emphasis added). Section 6-5-542(5) defines “substantial evidence”
as “that character of admissible evidence which would convince an unprejudiced thinking mind
of the truth of the fact to which the evidence is directed.”
In Anderson v. Alabama Reference Laboratories, the Alabama Supreme Court found that
“[a]s a general rule, in a medical-malpractice action, the plaintiff is required to produce expert
medical testimony to establish the applicable standard of care and a breach of that standard of
care, in order to satisfy the plaintiff’s burden of proof.” 778 So. 2d 806, 811 (Ala. 2000)
(emphasis added). The Court explained that “an exception to this rule exists in a case where
want of skill or lack of care is so apparent as to be understood by a layman, and requires only
common knowledge and experience to understand it.” Id. (internal quotations omitted). The
Court went on to list four specific examples of such situations:
1. where a foreign instrumentality is found in the plaintiff’s body following
surgery; 2. where the injury complained of is in no way connected to the condition
for which the plaintiff sought treatment; 3. where the plaintiff employs a
recognized standard or authoritative medical text or treatise to prove what is or is
not proper practice; and 4. where the plaintiff is himself or herself a medical
expert qualified to evaluate the doctor’s allegedly negligent conduct.
Id. The Alabama Supreme Court recently reaffirmed the existence of these exceptions, but noted
its previous holding that the Anderson list is not exhaustive and courts should use the general
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“common knowledge and experience” standard in evaluating plaintiffs’ allegations. Morgan v.
Publix Super Markets, Inc., No. 1120522, 2013 WL 4294149, at *4 (Ala. August 16, 2013)
(citing Ex parte HealthSouth Corp., 851 So. 2d 33, 37 (Ala. 2002)).
In this case, the court finds that Ms. Evans could not establish the applicable standard of
care through common knowledge and experience, even if she had made such an argument. The
autopsy revealed no foreign object in Mr. Evans’s body; this situation is not one where Mr.
Evans received an injury through treatment of another ailment; Ms. Evans offers no authoritative
text or treatise on the matter; and Ms. Evans does not claim to be a medical professional.
Furthermore, even accepting the allegations in the complaint that Mr. Evans “consistently
complained of chronic headaches while incarcerated in the county jail in Bessemer but failed to
be treated by a physician or hospital,” (doc. 38, ¶ 58), and that Mr. Evans failed to receive other
treatment as well, the court finds that a layperson would be unable to use common knowledge or
experience to determine whether this delay or other delays in treatment breached the applicable
standard of care. As such, Ms. Evans is required to produce medical expert testimony to
overcome the Health Assurance’s prima facie showing of nonliability at the summary judgment
stage of proceedings.
Because she has failed to produce such evidence, the court finds that Health Assurance’s
motion for summary judgment is due to be GRANTED as to Count V for negligent care and
treatment under the AMLA.
Count IV: Wrongful Death
Health Assurance also argues that Plaintiff’s wrongful death claim fails as a matter of law
for two reasons. First, it argues that with the dismissal of Health Assurance employee Karen
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Fowler, the court extinguished any underlying liability against a Health Assurance employee,
therefore precluding a vicarious liability claim. Second, it argues that the affidavit of Karen
Fowler serves as a prima facie showing that Health Assurance did not breach the standard of care
and that Plaintiff fails to present any evidence to the contrary. The court chooses to address this
second argument.
Plaintiff’s complaint puts forth a claim for wrongful death, but does not reference any
statutory provision under which this claim falls. (Complaint, ¶¶ 105-07). Alabama recognizes but
one cause of action for wrongful death, which is found in Alabama Code § 6-5-410. Alabama
Power Co. v. White, 377 So. 2d 930, 933 (Ala. 1979). Under § 6-5-410:
A personal representative may commence an action and recover such damages as
the jury may assess . . . for the wrongful act, omission, or negligence of any
person, persons, or corporation, his or her or their servants or agents, whereby the
death of the testator or intestate was caused, provided the testator or intestate
could have commenced an action for the wrongful act, omission, or negligence if
it had not caused death.
Plaintiff specifically alleges that “Defendants negligently and/or wantonly violated [the required]
standard of care or caused it to be violated with the foreseeable result that Plaintiff’s decedent
suffered unnecessary pain and suffering, and ultimately died;” therefore Count IV is a negligence
claim under § 6-5-410. (Complaint, ¶ 106).
Although neither party suggests that the court should address this claim under the AMLA
rubric previously discussed in Count V, the court finds that the AMLA does indeed apply to this
claim. Alabama Code § 6-5-548(a), the section of the AMLA that sets the burden of proof, states:
“In any action for injury or damages or wrongful death, whether in contract or in tort, against a
health care provider for breach of the standard of care, the plaintiff shall have the burden of

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proving by substantial evidence that the health care provider failed to exercise such reasonable
care . . .” (Emphasis added) (see supra for full text of statute). By its terms, this statute applies to
wrongful death claims such as the claim made by Plaintiff against Health Assurance, given
Health Assurance’s status as a health care provider.
Furthermore, Alabama courts have consistently applied AMLA provisions to wrongfuldeath actions except where § 6-5-410 specifically provides otherwise. See McGlothren v. Eastern
Shore Family Practice, P.C., 742 So. 2d 173 (Ala. 1999) (applying §§ 6-5-548 and -549 of the
AMLA to a medical-malpractice wrongful-death action and upholding the trial judge’s ruling that
“expert testimony was required as a matter of law” to prove the case); see also Hall v. Chi, 782
So. 2d 218, 221 (Ala. 2000) (finding that the AMLA statute of limitations did not apply to
wrongful-death actions because § 6-5-410 includes its own statute of limitations, but implying
that other AMLA provisions apply); Campbell v. Williams, 638 So. 2d 804, 817 (Ala. 1994)
(finding in a wrongful-death case under § 6-5-410 that the AMLA “applies to all causes of action
against health care providers that accrue after June 11, 1987" and ruling that any error that the
trial court committed in applying § 6-5-542 of the AMLA to an earlier action was harmless).
As required by Alabama law, the court will treat Plaintiff’s wrongful-death claim as an
AMLA negligence action. As such, the court’s previous analysis from Count V applies to Count
IV as well. The court will not repeat what it has already stated, but finds that Health Assurance
has met its burden as the movant of pointing out Plaintiff’s failure to produce an expert witness
and, to some extent, of proffering Karen Fowler’s affidavit (see footnote 2, infra), which
establish a prima facie showing of nonliability on this wrongful-death claim. The court further
finds that Plaintiff has failed to provide any expert testimony—or any other kind of “substantial
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evidence” required by § 6-5-548—to rebut this showing. Therefore, the court finds that Health
Assurance’s motion for summary judgment is due to be GRANTED as to Count IV for wrongfuldeath.
V.

CONCLUSION
For the reasons discussed above, the court will GRANT Health Assurance’s motion for

summary judgment in its entirety and DISMISS WITH PREJUDICE all of Plaintiff’s claims
against Health Assurance. The court also notes that Counts II and III of Plaintiff’s complaint
contain claims against individual defendants only. Because all of the individual defendants were
dismissed from this case as of June 15, 2012 (doc. 65), the court will DISMISS WITH
PREJUDICE Counts II and III. The only claims remaining in this case are Counts I, IV and V
against Defendant Jefferson County Commission, only, which remain pending but stayed because
of bankruptcy. The court will simultaneously enter an order to that effect.
DONE and ORDERED this 1st day of November, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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