Preston v. American Interstate Insurance Company et al

Filing 120

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/16/2016. (JLC)

FILED
2016 Aug-16 AM 09:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
RONALD C. PRESTON,
Plaintiff,
v.
AMERICAN INTERSTATE
INSURANCE COMPANY,
COMPANY, et al.,
Defendants.

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) Case No.: 4:15-CV-049-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION AND PROCEDURAL HISTORY
Subsequently discovered evidence of a doctor’s medical mistake does not,

without more, a triable action for outrage and conspiracy make. Plaintiff Ronald C.
Preston (“Mr. Preston”) initiated this tort of outrage and conspiracy to commit tort of
outrage lawsuit against Defendants in the Circuit Court of Marshall County, Alabama
on December 17, 2014. (Doc. 1 at 1 ¶ 1); (see also Doc. 1-1 at 2-6 (attaching state
court complaint)).1 Mr. Preston’s present dispute is connected to an underlying
workers’ compensation claim (the “WC Action”) brought against Mr. Preston’s

1

All page references to Doc. 1-1 correspond with the court’s CM/ECF numbering system.

former employer Umicore Specialty Chemical (“Umicore”) that was settled on
September 9, 2013 (Doc. 75-3 at 2-3),2 approved by the Circuit Court of Marshall
County, and dismissed on October 7, 2013. (Doc. 75-4 at 6-7).3
Defendants, on the basis of diversity jurisdiction, removed Mr. Preston’s case
to this court on January 12, 2015. (Doc. 1 at 3 ¶ 7). The Defendants remaining in the
action4 are American Interstate Insurance Company (“AIIC”), the workers’
compensation carrier for Umicore (Doc. 1-1 at 2 ¶¶ 1-2) and Amerisafe, Inc.
(“Amerisafe”), the third-party administrator responsible for managing Mr. Preston’s
workers’ compensation claim. (Doc. 1-1 at 2 ¶ 3).
Pending before the court is Defendants’ Motion for Summary Judgment (Doc.
69) (the “Rule 56 Motion”) and Daubert Motion To Strike or Exclude the Opinions
and Testimony of Plaintiff’s Expert (Doc. 91) (the “Daubert Motion”),5 both of which
were filed on January 11, 2016. The parties have provided supporting and opposing

2

All page references to Doc. 75-3 correspond with the court’s CM/ECF numbering system.

3

All page references to Doc. 75-4 correspond with the court’s CM/ECF numbering system.

4

Defendant Forte, Inc. was dismissed from this lawsuit without prejudice on October 6,
2015. (Doc. 57).
5

All page references to Docs. 69 and 91 correspond with the court’s CM/ECF numbering

system.
2

evidence and briefs (see Docs. 70-90, 92-93, 102-04, 110, 112)6 and the Rule 56 and
Daubert Motions are now under submission. Defendants also have filed a Notice of
Request for Oral Argument. (Doc. 94). For the reasons explained below, the Rule 56
and Daubert Motions are due to be granted. Further, because the issues for it to
decide are straightforward, the court finds that oral argument is unnecessary.
II.

SUMMARY JUDGMENT STANDARD
Summary judgment is proper only when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. FED. R . CIV. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party
has properly supported its motion for summary judgment, the burden shifts to the
nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,

6

Docs. 102 and 104 both are named “Evidentiary Submission in Response to Motion for
Summary Judgment” and were filed by Mr. Preston on February 1, 2016, and February 2, 2016,
respectively. The initial pages of each document list 16 categories of evidence relied upon by Mr.
Preston. Compare Doc. 102 at 1-2, with Doc. 104 at 1-2. Doc. 102 contains exhibits 1 through 6 and
Doc. 104 covers exhibits 7-16.
3

1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Finally “[i]f the movant bears the burden of proof on an issue, because, as a
defendant, it is asserting an affirmative defense, it must establish that there is no
genuine issue of material fact as to any element of that defense.” International Stamp,
456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409,
412 (5th Cir. 2003)).
III.

FACTUAL BACKGROUND7
A.

Mr. Preston’s Work-Related Injury and Treatment

On October 20, 2011, Mr. Preston, a now former employee of Umicore,
sustained an on-the-job injury when a heavy gearbox, reportedly weighing about 500
pounds, fell from its mounting and struck his left hand. AF No. 1.8 Mr. Preston was
7

This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007) (observing that “a summary judgment proceeding . . . by definition
involves no findings of fact . . . .”). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
8

The designation “AF” stands for admitted fact and indicates a fact offered by Defendants
that Mr. Preston has admitted in his written submissions on summary judgment, in his deposition
testimony, or by virtue of any other evidence offered in support of his case. Under Appendix II of
the court’s uniform initial order (Doc. 2) entered on January 13, 2015, “[a]ll statements of fact must
be supported by specific reference to evidentiary submissions.” (Id. at 16). For Mr. Preston, more
specifically, this means that “[a]ny statements of fact that are disputed by the non-moving party must
be followed by a specific reference to those portions of the evidentiary record upon which the dispute
is based.” (Id. at 17). Consequently, whenever Mr. Preston has inadequately asserted a dispute over
a fact that Defendants have otherwise substantiated with an evidentiary citation, the court has
reviewed the cited evidence and, if it in fact fairly supports Defendants’ factual assertion, has
4

treated at the ER at Marshall Medical Center North (“MMCN”) where his laceration
was sutured and x-rays demonstrated a second metacarpal fracture.9 AF No. 2. The
emergency room physician, Dr. Stewart, referred Mr. Preston to Dr. Robert Allan
Maples (“Dr. Maples”), who was the 24 hour on-call surgeon for The Orthopedic
Center (“TOC”) in Huntsville on October 20, 2011. AF No. 3.
Dr. Maples completed medical school at LSU; did his residency at University
of Mississippi; and a Seattle Fellowship in orthopedic trauma including traumatic
injuries to the hand. AF No. 4. Dr. Maples examined Mr. Preston in clinic on October
24, 2011, with a history of a crush injury to his hand and a fractured metacarpal. AF
No. 5. Dr. Maples did new x-rays on October 24, 2011, and he interpreted these
results to show a second metacarpal shaft fracture with displacement, consistent with
the x-ray report received from MMCN. AF No. 6. Dr. Maples observed that Mr.
Preston’s hand was swollen and infected and these conditions needed to be treated
and resolved before an open reduction internal fixation (“ORIF”) procedure could be

accepted Defendants’ fact. On the other hand, whenever Mr. Preston has adequately disputed a fact
offered by Defendants, the court has reviewed the evidence cited by Mr. Preston and, if it in fact
fairly supports Mr. Preston’s factual assertion, has accepted Mr. Preston’s version. The court’s
numbering of admitted facts (e.g., AF No. 1) corresponds to the numbering of Defendants’ statement
of undisputed facts as set forth in Doc. 69 and responded to by Mr. Preston in Doc. 103.
9

A metacarpal fracture is a break of the metacarpus. The Merriam-Webster’s Online Medical
Dictionary defines metacarpus as “the part of the human hand . . . between the carpus and the
phalanges that contains five more or less elongated bones when all the digits are present (as in
humans)[.]” http://www2.merriam-webster.com/cgi-bin/mwmedsamp.
5

done. AF No. 7. As Dr. Maples subsequently testified about the seriousness of the
injury that happened to Mr. Preston’s hand:
It depends on the details of how the injury happened. How high did the
object fall from, how and what position was the hand in, where did it hit
the hand, did it smash the hand between two objects? There’s a–all the
details matter in a crush injury. . . . It can be a very serious injury. It can
be a very simple injury. Depends on the details of the injury.
AF No. 8.
On November 3, 2011, Dr. Maples examined Preston’s hand and scheduled a
return office visit in two weeks to allow the swelling to subside, which visit occurred
on November 21, 2011. AF No. 9. In the interim, on November 7, 2011, Brenda
Cartwright at TOC faxed a precertification request to Forte, the pre-cert vendor
utilized by AIIC, and the requested ORIF surgery was approved and faxed on
November 8 and an approval report was faxed again on November 9, 2011. AF No.
10. It is routine practice for health insurance, i.e., Blue Cross Blue Shield, and
workers’ compensation insurance to utilize such pre-certifications before surgery. AF
No. 11.
During the office visit on November 21, 2011, Dr. Maples determined that Mr.
Preston’s hand laceration was healing and he was now suitable for surgery. AF No.
12. Dr. Maples completed the ORIF procedure on November 22, 2011, and Mr.
Preston was discharged with his hand bandaged and splinted. AF No. 12. On
6

November 22, 2011, Dr. Maples did not believe there was any fracture to Mr.
Preston’s thumb. AF No. 13.
Dr. Maples examined Mr. Preston at the TOC on December 8, 2011, and
identified no abnormality to his thumb. AF No. 14. On January 5, 2012, Dr. Maples
did x-rays and, again, found no abnormalities of the thumb, and recommended
physical therapy. AF No. 15. Mr. Preston received TTD workers’ compensation
disability benefits until his return to work on about January 9, 2012. AF No. 16.
Physical Therapist Cozzens wrote a letter to Dr. Maples on January 26, 2012,
and indicated that Mr. Preston had progressed well over his six weeks with 0/10 pain
level and grip strength of 95 pounds on left and 115 pounds on right. AF No. 17.
When Dr. Maples examined Mr. Preston on February 15, 2012, he indicated in his
treatment notes that they “discuss[ed] the option of getting a CT scan of [Mr.
Preston’s] left hand and wrist for further evaluation of his left thumb and carpus;
however at this time [Mr. Preston] s[tated] that he is very satisfied and does not want
any further orthopedic treatment of his left hand.” AF No. 18. Dr. Maples testified
that during the February15, 2012, visit, he was the one who raised the topic of the
slight angulation of the thumb, not Mr. Preston. AF No. 19. Dr. Maples further
indicated to Mr. Preston that a CT would help evaluate any possible surgery, but that
Mr. Preston refused this option. AF No. 19. Dr. Maples made the decisions regarding
7

Mr. Preston’s return to work dates and any limitations on his return to work status.
AF No. 71. Dr. Maples testified that, effective March 12, 2012, he allowed Mr.
Preston to return to work with no restrictions and that work restrictions are medical
decisions by him as the physician and declined further treatment. AF No. 20.
However, Mr. Preston, without citing to any record evidence, disputes that he was
able to so return. After March 12, 2012, neither Mr. Preston nor his attorney
contacted Dr. Maples for any return visit or further treatment. AF No. 22.
B.

Mr. Preston’s WC Action and Stroke Lawsuit

On June 19, 2012, Mr. Preston’s attorney faxed a letter to Defendants’ claims
adjuster Paul Byrnes (“Mr. Byrnes”) enclosing the workers’ compensation suit and
stating “I will be most happy to work with you on this matter.” AF No. 23. A prior
letter from Mr. Preston’s counsel to Mr. Byrnes inquired about the “design,
installation or maintenance” of the MATCON machine in question. AF No. 23. The
WC Action filed on June 7, 2012, alleged that Mr. Preston’s “medical benefits, care
and treatment have as of the date of this complaint been provided as required by the
Workers’ Compensation Act of Alabama.” AF No. 24.
On about March 25, 2013, Defendants inquired of Dr. Maples as to any rating;
in response, Dr. Maples referred Mr. Preston to rehabilitation medicine specialist Dr.
Brian Carter (“Dr. Carter”) at TOC. AF No. 25. Dr. Carter’s report dated May 14,
8

2013, gave Mr. Preston a 3% impairment of the hand. AF No. 25. Dr. Maples
concurred with this assessment. AF No. 25. The 3% impairment to the upper
extremity results in a scheduled injury benefit of $1,452. AF No. 28.
On July 3, 2013, Mr. Preston’s deposition was taken in his WC Action. AF No.
29. Mr. Preston confirmed that he had not seen any physician about his hand since Dr.
Maples in March 2012. AF No. 29.
Mr. Preston was treated by his family physician, Dr. Hargraves, for a stroke in
November 2012. AF No. 30. The parties dispute whether the stroke was related to Mr.
Preston’s hand injury (Doc. 103 at 2 ¶ 30), and Mr. Preston filed a lawsuit against
Umicore in 2015 (the “Stroke Lawsuit”) to determine whether the stroke is covered
as a work-related injury. (Id. ¶ 31); AF No. 33; (see also Doc. 90-2 at 2-8 (attaching
state court complaint in CV-15-900388)).10 The Report of Claim indicates that his
stroke was not work-related (Doc. 90-1 at 9),11 but Mr. Preston maintains that is
because Defendants told him that he could not file it as a workers’ compensation
claim. (Doc. 103 at 2 ¶ 32); AF No. 31.
Dr. Carter has treated stroke patients and testified that Mr. Preston’s cerebral
vascular accident (stroke) was not caused by his hand injury and that his work did

10

All page references to Doc. 90-2 correspond with the court’s CM/ECF numbering system.

11

All page references to Doc. 90-1 correspond with the court’s CM/ECF numbering system.
9

not contribute to his mild stroke. AF No. 35. Mr. Preston had hypertension and
diabetes, conditions which can lead to a stroke. AF No. 36. After being off work due
to his stroke, Mr. Preston returned to his maintenance job at Umicore in May 2013.
AF No. 37. Mr. Preston testified in his July 3, 2013, deposition that he was able to
perform a variety of maintenance tasks upon returning to work, including going up
on the roof, boring holes and bolting a broken step, changing the handle on a broken
valve, building a 19 foot, half circle guard and then painting it, running copper pipe,
installing a couple of safety showers, running a heat trace on pipe and insulating it,
and using a torch, metal saw, clamps, welder, wrench, and screwdriver. AF No. 37.
Prior to his deposition, Mr. Preston also drove his tractor and used its forklift
attachment to lift and place a front-loading washing machine on a platform that he
had built at his home. AF No. 38.
On August 22, 2013, Mr. Preston’s counsel faxed to Defendants’ counsel a
report obtained from Dr. Todd Smith (“Dr. Smith”), who had reviewed x-rays of Mr.
Preston’s hand and opined that he saw what “appears to be a healed trapezial fracture
subluxation.” AF No. 39. Dr. Smith interpreted the old intraoperative x-rays from
Huntsville Hospital taken on November 22, 2011, and stated in his report that “it does
look like the trapezium is slightly, dorsally, subluxed, though the films are not clear

10

on this.”12 AF No. 40. Mr. Preston reported to Dr. Smith that “he [wa]s pain free.” AF
No. 41.
A mediation of the WC Action took place on September 9, 2013, at which time
the case settled for the lump sum of $20,000 with future medical benefits remaining
open and Defendants’ agreeing to relinquish any statutory subrogation lien (which
amounted to $25,516) because Mr. Preston planned a products liability action against
manufacturer MATCON. AF No 42. On October 7, 2013, the parties filed a petition
to approve settlement agreement in state circuit court and the petition was granted.
AF No. 43. It is permissible for a workers’ compensation claimant to close-out future
medical benefits in consideration for a monetary settlement and the courts can
approve such a closure if that option is part of the parties’ resolution. AF No. 44.
C.

Mr. Preston’s Products Liability Action

In 2012, Mr. Preston proceeded with his plans to file an action against
MATCON in the Circuit Court of Marshall County (CV-2012-128) (the “Products
Liability Action”). (Doc. 75-6 at 3).13 Mr. Preston filed an amended complaint in the
Products Liability Action on October 20, 2013, alleging the tort of outrage against
Defendants. AF No. 45; (see also Doc. 75-6 at 8 (alleging outrage against
12

The trapezium is “a bone in the distal row of the carpus at the base of the thumb[.]”
http://www2.merriam-webster.com/cgi-bin/mwmedsamp.
13

All page references to Doc. 75-6 correspond with the court’s CM/ECF numbering system.
11

Defendants)). On November 11, 2013, Preston filed a second amended complaint,
adding TOC, Dr. Maples, and Forte to the Products Liability Action. AF No. 46. After
Defendants had filed a motion to dismiss and/or motion for summary judgment, Mr.
Preston’s attorney sent a letter to Defendants’ counsel dated December 6, 2013,
requesting a review by a “panel of four physicians.”14 AF No. 47. Although Mr.
Preston’s last treatment by Dr. Maples was in March 2012, Defendants did not contest
the December 6, 2013, request for a panel of four and provided to Mr. Preston’s
counsel a list of four “hand reconstruction” surgeons as requested. AF No. 49.
D.

Dr. Meyer’s Review of Mr. Preston’s Medical Records

After various selections from the panel of four did not agree to schedule an
appointment with Mr. Preston, Defendants requested Dr. Richard Meyer (“Dr.
Meyer”) at UAB to see Mr. Preston and he agreed to do so. AF No. 50. A copy of his
office notes dated May 28, 2014, and June 5, 2014, (after TOC sent x-rays to Dr.
Meyer) were provided to Mr. Preston’s counsel in a June 13, 2014, letter. AF No. 50.
Dr. Meyer is a board certified orthopedic surgeon at UAB with a subspecialty in hand
surgery in which he has practiced for over 30 years. AF No. 51. Dr. Meyer studied

14

Under the Act, an employee may request a panel of four if he is dissatisfied with his initial
treating physician. See Ala. Code § 25-5-77(a) (“If the employee is dissatisfied with the initial
treating physician selected by the employer and if further treatment is required, the employee may
so advise the employer, and the employee shall be entitled to select a second physician from a panel
or list of four physicians selected by the employer.”).
12

the films and opined that there may have been a fracture of the trapezium and that Mr.
Preston’s residual thumb condition is related to his original injury. AF No. 52.
Mr. Preston returned to Dr. Meyer on September 8, 2014. AF No. 53. Dr.
Meyer’s dictated notes from that visit indicate that Mr. Preston really did not have
any pain and just some degree of hyperextension of his thumb with loss of web space.
AF No. 53. Dr. Meyer further indicated that Mr. Preston was at maximum medical
improvement or MMI. AF No. 53. The decision as to when a patient reaches MMI is
a medical determination by the physician, not the workers’ compensation carrier. AF
No. 70. Dr. Meyer found no evidence of any nerve injury and Mr. Preston did not
complain of numbness or tingling. AF No. 54.
Dr. Meyer further explained that the timing of the ORIF for Mr. Preston’s
second metacarpal fracture approximately one month after the accident was
appropriate because there needed to be time for the infection and swelling to settle.
AF No. 55. Dr. Meyer testified that any possible surgery to address the minimal
trapezium fracture would also have been subject to the same wait. AF No. 56. Dr.
Meyer opined that he would not have operated to fix the trapezium fracture even after
the infection settled, because the risks of surgery outweighed the benefits. AF No. 57.
Dr. Meyer does not know a hand surgeon who would have offered surgery to the
trapezium because the break was so small. AF No. 58.
13

Dr. Meyer indicated that the undiagnosed trapezium fracture was, in effect,
treated conservatively, when Mr. Preston’s hand was placed in a dressing to let the
hand rest before the surgery done by Dr. Maples, and Mr. Preston received good care
which complied with the appropriate standard of care. AF No. 59. The Z deformity
in the joint of Mr. Preston’s thumb that Dr. Meyer noted was caused by
carpo-metacarpal (“CMC”) arthritis from his injury that was properly treated. AF No.
60. This arthritis is not associated with the fracture of the trapezium. AF No. 61.
There was no major step-off of the trapezium fracture, therefore it made no difference
in the healing or the amount of subsequent CMC arthritis as to whether it was treated
conservatively or with surgery. AF No. 62.
E.

Undisputed Testimony by Defendants’ Claims Adjusters

The deposition of Mr. Byrnes, the claims adjuster who handled this matter from
its inception until his retirement in 2013, was taken on February 4, 2014. AF No. 63.
Mr. Byrnes met Mr. Preston one time, on November 30, 2011, at his home, 8 days
after his surgery, and his hand was bandaged. AF No. 68. Mr. Byrnes remembers
telling Mr. Preston that, at some point, Dr. Maples might possibly recommend
removal of the pins as an option. AF No. 69. Mr. Byrnes last communicated with Mr.
Preston on February 27, 2013, when Mr. Preston called to tell him that Dr. Maples
had given him full duty status. AF No. 72.
14

Mr. Byrnes is not medically qualified or able to define the extent of an injury.
AF No. 64. Mr. Byrnes never spoke to Dr. Maples, but the TOC staff would send
Defendant AIIC copies of the medical treatment reports. AF No. 65. Defendant AIIC
did not receive any actual x-ray films. AF No. 65. Dr. Maples treats the patients and
would not typically speak to a claims adjuster. AF No. 66. Likewise, Dr. Maples
would not typically know the name of the insurance carrier or the claims adjuster’s
name. AF No. 67.
Claims adjuster Wendy Phillips (“Ms. Phillips”) was hired in March 2013 to
fill the vacancy created by Mr. Byrnes’s departure. AF No. 73. Ms. Phillips has
testified that Mr. Preston’s claim file does not indicate any medical treatment by Dr.
Maples after March 12, 2012. AF No. 73. Ms. Phillips also has indicated in an
affidavit that no medical treatment was denied to Mr. Preston and that Amerisafe had
no input about what treatment to render. AF No. 74. Ms. Phillips further stated that
AIIC relied upon Dr. Maples to treat Mr. Preston’s injury. AF No. 75. Dr. Maples
became the authorized treating physician and this authorization was general, i.e., to
treat the hand injury, without being restricted as to his treatment. AF No. 76. Ms.
Phillips has not spoken not Dr. Maples about this matter. AF No. 77.
F.

Additional Undisputed Record Testimony

Dr. Maples does a history and physical in order to arrive at his assessment and
15

diagnosis and he did his best for Mr. Preston in accordance with his education and
training. AF No. 79. Dr. Maples testified that he had no reason to consider referring
Mr. Preston to Dr. Maddox, one of the two hand reconstruction sub-specialists at
TOC. AF No. 80. During the litigation, Dr. Maddox reviewed the x-rays and chart
and he concurred that Dr. Maples met the standard of care; that surgery on the
trapezium was not indicated; that the small non-displaced fracture healed in proper
position; and the alleged failure to treat the trapezium including a lack of splinting did
not cause the ultimate arthritis deformity. AF No. 81.
Dr. Maples does not need nor does he rely on a claims adjuster who is not a
physician or orthopedic surgeon to determine the nature and extent of his patient’s
injuries. AF No. 82. No one at AIIC/Amerisafe ever denied any treatment that Dr.
Maples recommended nor did they refuse to provide or authorize any of his
recommended treatment for Mr. Preston. AF No. 83.
In failing to diagnose or treat Mr. Preston’s thumb fracture, Dr. Maples did not
ignore Mr. Preston’s crush injury, but rather he treated Mr. Preston’s entire injury as
he diagnosed it and his treatment complied with the standard of care. AF No. 85. In
February and March 2012, Dr. Maples instructed Mr. Preston to return as needed
(“PRN”) and that he is obviously welcome to call for an appointment if he has any
problem or needs further care. AF No. 86.
16

G.

Additional Lawsuits Filed by Mr. Preston

Although the record on summary judgment is unclear when this particular
lawsuit was first filed and against which defendants, on November 14, 2014, the
Circuit Court of Madison County entered an order dismissing Mr. Preston’s
complaint in CV-14-27 for lack of subject matter jurisdiction and mooting all pending
motions. AF No. 88; (see also Doc. 76-2 at 2 (attaching order of dismissal)).15 Thus,
no order on the merits was ever reached in that case.
Shortly thereafter, on December 18, 2014, Mr. Preston filed a new complaint
(CV-14-47) in the Circuit Court of Madison County against TOC and Dr. Maples,
alleging “Defendant failed to advise Forte and/or Amerisafe that Plaintiff was
suffering from a crush injury” and asserting other acts of medical malpractice. AF No.
89. This lawsuit also claimed that Dr. Maples acted in concert with AIIC, and is
guilty of the intentional tort of outrage. AF No. 89. On May 11, and November 30,
2015, Dr. Maples/TOC filed a Motion for Summary Judgment with Dr. Maples’s
affidavit and an amended narrative summary of undisputed facts, including affidavits
for Dr. Meyer and Dr. Maddox. AF No. 91. Mr. Preston filed a responsive brief which
reiterated the claims of conspiracy between AIIC and Dr. Maples to intentionally fail

15

All page references to Doc. 76-2 correspond with the court’s CM/ECF page numbering

system.
17

to treat his thumb and thereby lessen the liability of the Defendants, but leave him
with a deformed hand. AF No. 92. On December 14, 2015, Circuit Judge Alison
Austin granted summary judgment in favor of TOC and Dr. Maples. AF No. 93; (see
also Doc. 89-4 (attaching order granting motion for summary judgment)).16
Finally, Mr. Preston filed this action against Defendants (CV-14-50) in the
Circuit Court of Marshall County on December 17, 2014, alleging outrage and a
conspiracy to commit outrage by Defendants Amerisafe and AIIC and non-party Dr.
Maples. AF No. 90.
IV.

ANALYSIS
A.

Defendants’ Rule 56 Motion

The gist of Mr. Preston’s case is that Defendants egregiously and beyond all
bounds of decency coerced him to settle his workers’ compensation benefits claim by
surreptitiously entering into an agreement with Dr. Maples to refuse Mr. Preston
proper medical treatment and/or knowingly misrepresent to Mr. Preston the true
extent of his thumb injury that subsequently resulted in a residual deformity of his
hand. Defendants’ Rule 56 Motion contains two developed arguments.17 First, Mr.
16

All page references to Doc. 89-4 correspond with the court’s CM/ECF numbering system.

17

Defendants also briefly mention that Mr. Preston’s case is barred by res judicata and/or
collateral estoppel. However, given Defendants’ minimal discussion of this affirmative defense
without detailing which prior final decision on the merits provides the basis for res judicata and/or
collateral estoppel (Doc. 69 at 29), the court does not find this particular ground to be adequately
18

Preston’s version of the facts fall substantively short of the clear and convincing
evidentiary standard applicable to the tort of outrage under Alabama law. Second, Mr.
Preston’s outrage claim is time-barred. The court agrees with both contentions.
1.

Mr. Preston Lacks Sufficient Evidence To Show
Outrage and Conspiracy To Commit Outrage.

Mr. Preston’s theory of outrage, as this court comprehends it, is that
Defendants coerced him to settle his workers’ compensation claim knowing that he
had been diagnosed improperly and mistreated by Dr. Maples in order to minimize
their financial exposure for Dr. Maples’s medical mistake. The exclusivity provision
of the Alabama Workers’ Compensation Act (the “Act”) normally prevents a plaintiff
from suing an employer for work-related injury or a workers’ compensation carrier
for bad faith failure to pay. However, the tort of outrage is an exception to this
statutory bar. See Garvin v. Shewbart, 442 So. 2d 80, 83 (Ala. 1983), overruled on
other grounds by Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 2d 90 (Ala.
1989) (holding that tort of outrage is not barred by Act’s exclusivity provisions);
Garvin, 442 So. 2d at 83 (“The conduct giving rise to the tort of outrageous conduct
in the context of this kind of case can be more accurately characterized as mental

developed or persuasive. In particular, the evidentiary record indicates that Mr. Preston has filed
numerous actions against a variety of different defendants and the court cannot readily decipher with
one Defendants invoke to substantiate this affirmative defense. (Doc. 76-2 at 2).
19

assault than as failure to pay compensation or medical benefits even though it may
arise in a failure to pay context.”); Lowman, 547 So. 2d at 93 (“[T]he exclusivity
provisions of the Act do not afford protection for injuries not caused by a job-related
accident[.]”) (emphasis in original); see also Oliver v. Liberty Mut. Ins. Co., 548 So.
2d 1025, 1026 (Ala. 1989) (“This Court has held that a claim for bad faith failure to
pay an insurance claim in the context of workmen’s compensation claims is barred
by the workmen’s compensation exclusivity provisions, but that a claim based on the
tort of outrage is not barred.”) (emphasis added) (citing Nabors v. St. Paul Ins. Co.,
489 So.2d 573 (Ala. 1986))).
The standard for meeting the outrage exception is an onerous one. The
Alabama Supreme Court first recognized the tort of outrage as a viable cause of
action in American Rd. Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980) (joining
other states in “recognizing that one who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another is subject to
liability for such emotional distress and for bodily harm resulting from the distress”).
For an action to be sufficiently extreme, it must be “so outrageous in character and
so extreme in degree as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized society.” Inmon, 394 So.
2d at 265. Additionally, “[t]he emotional distress thereunder must be so severe that
20

no reasonable person could be expected to endure it.” Id.
Besides satisfying the Inmon multifaceted standard, the Supreme Court of
Alabama demands a higher level of proof from a plaintiff pursuing an outrage claim
against an employer or a carrier. See Lowman, 547 So. 2d at 95 (“Therefore, we hold
that in regard to a fraud [or an outrage] claim against an employer, a fellow employee,
or an employer’s insurer, in order to present a claim to the jury, the plaintiff must
present evidence that, if accepted and believed by the jury, would qualify as clear and
convincing proof of fraud [or outrageous conduct].”) (emphasis added); see also id.
(“In order to insure against borderline or frivolous claims, we believe, in view of the
exclusivity clause, that a plaintiff, in order to go to the jury on a claim, must make a
stronger showing than that required by the ‘substantial evidence rule’ as it applies to
the establishment of jury issues in regard to tort claims generally.”); Hobbs v.
Alabama Power Co., 775 So. 2d 783, 787 (Ala. 2000) (“In cases involving an
allegation of intentional tortious conduct, this Court has imposed a standard of proof
higher than the ‘substantial-evidence’ standard.”) (subsequently citing and discussing
Lowman); Soti v. Lowe’s Home Centers, Inc., 906 So. 2d 916, 924 (Ala. 2005) (“Soti
has not produced evidence that, if accepted by the jury, would qualify as clear and
convincing evidence of fraudulent suppression on the part of SRS[, i.e., the claims

21

administrator].”).18
A key case involving outrage in a coerce to settle context is Cont’l Cas. Ins.
Co. v. McDonald, 567 So. 2d 1208, 1212 (Ala. 1990). Indeed, both sides have cited
to McDonald as dispositive of their positions. (Doc. 69 at 25); (Doc. 103 at 19). In
McDonald, the Supreme Court of Alabama upheld a jury verdict favorable to the
plaintiff claiming outrage and pointed out that Mr. McDonald had “introduced a great
deal of evidence from which the jury could have concluded that CNA engaged in a
pattern of delays in order to cause distress to McDonald and pressure him into
accepting a settlement[,]” including (i) experiencing “long delays in paying bills from
his pharmacy, hospital, and doctors[;]” (ii) losing access to prescriptions “due to
nonpayment from [CNA;]” (iii) enduring harassing “letters from lawyers and past due
statements from hospitals[;]” (iv) foregoing prescribed treatment for his back
problems due to dubious reasons for delay raised by CNA; and (v) receiving multiple
communications from CNA “pressuring him to settle.” 567 So. 2d at 1212, 1213. In
summarizing why a directed verdict on the outrage claim was not warranted, the court
explained:
The jury was entitled to believe that CNA engaged in a deliberate effort

18

While Mr. Preston does not ever dispute Defendants’ application of this higher evidentiary
standard in his opposition, the court finds that his outrage claim is substantively deficient even under
the less stringent standard of “substantial evidence”.
22

to cause McDonald to suffer severe emotional distress in order to coerce
him into accepting an unreasonably low lump-sum settlement that would
drastically reduce CNA’s liability for his medical expenses. The
evidence supports a finding that CNA systematically withheld payments
in order to cause McDonald anguish over the possibility of the cessation
of medical treatments for his pain and thereby to cause him to accept a
method of payment that would not subject him to CNA’s ‘aggravation,’
as he called it. A jury could reasonably find from the evidence that such
conduct was ‘beyond all possible bounds of decency, ... atrocious [,] and
utterly intolerable in a civilized society.’ Inmon, at 365. Therefore, the
denial of CNA’s motion for directed verdict and its post-trial motions
was not error.
McDonald, 567 So. 2d at 1221.
Defendants contend that the undisputed facts in this case approach nowhere
close to those at issue in McDonald. In particular, Defendants point out that Mr.
Preston: (i) voluntarily stopped seeking any treatment of his hand injury by Dr.
Maples in February 2012; (ii) did not experience any delayed payment issues or
withheld medical treatment relating to his medical providers; (iii) offered no evidence
of undue pressure being placed on him to settle; (iv) settled his workers’
compensation claim in September 2013 through mediation for the lump sum of
$20,000 with the advice of legal counsel, future medical benefits left open, and notice
of a potential thumb fracture not ever diagnosed by Dr. Maples; (v) sought (without
any objections from Defendants) a post-settlement review of his case by a panel of
four doctors; and (vi) ultimately received an opinion from Dr. Meyer that surgery was

23

not recommended for his thumb fracture (after the panel of four process did not result
in a recommendation). The court agrees with Defendants that Mr. Preston’s case
comes nowhere close to McDonald.
Nor do Mr. Preston’s other cited authorities persuade this court that his outrage
claim is cognizable. Mr. Preston’s reliance upon Bradford v. McGee, 534 So. 2d
1076, 1080 (Ala. 1988) (Doc. 103 at 11) and Snyder v. Faget, 295 Ala. 197, 326 So.
2d 113 (Ala. 1976) (Doc. 103 at 17) is puzzling, as neither decision involves a claim
of outrage or arises in the context of coercing a plaintiff to settle a claim. See
Bradford, 534 So. 2d at 1079-80 (describing prima facie burden in a medical
malpractice case); Snyder, 326 So. 2d at 114-115 (describing plaintiff’s counts as
“negligently or with reckless indifference to the consequences, willfully or wantonly
g[iving false] testimony” and as conspiracy to deprive him of liberty and “to defraud
him of his property by falsely and fraudulently having him committed to a state
mental institution”).
Mr. Preston also cites to Thomas v. Williams, 21 So. 3d 1234 (Ala. Civ. App.
2008) for support and indicates that “[b]arbaric methods to coerce an insurance
settlement qualify for outrage.” (Doc. 103 at 19). While Thomas does generally
recognize this principle, 21 So. 3d at 1240, it is not a workers’ compensation case,
affirms the trial court’s dismissal of outrage on a Rule 12(b)(6) basis, and offers
24

nothing to substantiate the triable nature of Mr. Preston’s outrage claim. Additionally,
nothing contained in this record approaches the level of barbaric or ruthless efforts
on the part of Defendants to secure an unfair and one-sided settlement of Mr.
Preston’s WC Action.
Mr. Preston further relies upon Travelers Indem. Co. of Illinois v. Griner, 809
So. 2d 808 (Ala. 2001). (Doc. 103 at 21). However, Griner is dramatically different
because there “[t]he evidence showed that Travelers and Crawford, even though they
acknowledged that they were contractually obligated to provide medical care for
Griner, did withhold reasonable and necessary items ordered by authorized treating
physicians, knowing that their doing so would cause Griner pain and frustration and
could lead him to agree to a minimal settlement.” 809 So. 2d at 812.
Indeed, as the Soti court summarized when affirming summary judgment on an
outrage claim over hernia surgery that had been denied to the plaintiff as a disputed
compensable injury, 906 So. 2d at 921, there are many examples of cases with more
extreme facts than Mr. Preston’s in which the Supreme Court of Alabama declined
to find outrage viable:
There is no evidence in the instant case indicating that SRS refused to
refer Soti to a general surgeon for treatment of the hernia in an attempt
to pressure a settlement of his workers' compensation claim. Although
in hindsight it appears that the hernia surgery was necessary and that the
hernia was related to Soti's compensable injury, the evidence
25

demonstrates that SRS’s refusal was based on a misunderstanding.
Therefore, the trial court did not err in entering a summary judgment on
Soti's tort-of-outrage claim. See Gibson v. Southern Guar. Ins. Co., 623
So.2d 1065, 1067 (Ala. 1993) (holding that where the evidence tended
to show that the plaintiff's difficulties in obtaining medical care from a
workers’ compensation carrier were the result of ordinary delays,
misunderstandings, and breakdowns in communication at least as much
as it tended to show that the delays were due to any deliberate attempt
to deny him medical care, summary judgment for the defendants on a
claim of outrageous conduct was due to be affirmed); Farley v. CNA Ins.
Co., 576 So.2d 158, 160 (Ala. 1991) (holding that the conduct of a
workers’ compensation carrier indicating an unsympathetic attitude
toward the plaintiff, giving the plaintiff the “runaround,” failing to
timely pay medical bills, and not always authorizing medical treatment
the plaintiff sought did not rise to the level of outrageous conduct); and
Wooley v. Shewbart, 569 So. 2d 712, 715 (Ala. 1990) (holding that a
plaintiff’s claim that her employer stopped paying workers’
compensation benefits for no reason shortly before a scheduled surgery
was not conduct so extreme as to support finding of the tort of outrage).
Soti, 906 So. 2d at 922. Therefore, the court concludes that no reasonable jury could
find for Mr. Preston on the merits of this outrage claim and summary judgment is due
to be granted in Defendants’ favor.
Although not expressly alleged in his complaint, Mr. Preston asserts in his brief
that outrage additionally lies against Defendants due to the fact that his stroke was
determined not to be a work-related injury. To the extent that Mr. Preston has
properly preserved the alleged improper handling of his stroke as part of his outrage
count in this case,19 he has not substantiated any of his opposing facts pertaining to
19

This court expresses no opinion on the merits of Mr. Preston’s separate Stroke Lawsuit.
26

his stroke with evidence. Instead, Mr. Preston relies solely upon statements made by
his attorney. For example, Mr. Preston nakedly asserts that “Dr. Hargrave[] noted in
records that the recent hand surgery was a cause of the stroke; he noted (7) [sic]
recent hand surgery as a contributing cause.” (Doc. 103 at 20). This is ineffective in
opposing summary judgment, as “[s]tatements by counsel in briefs are not evidence.”
Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir. 1980).20 Instead, it is
incumbent upon the non-moving party to identify (and not merely assert the existence
of) admissible evidence that demonstrates the existence of a triable issue. Further, Mr.
Preston has not explained why a reasonable jury could believe that Mr. Preston was
unreasonably coerced into settling his WC Action by virtue of Defendants’ denial of
his stroke as a compensable claim as the medical event in November 2012 and
treatment of that claim as a non-work-related injury (see generally Doc. 90-1
(attaching disability insurance documentation relating to Mr. Preston’s stroke)) both
pre-date his workers’ compensation settlement in September 2013. Therefore, the
court’s analysis of Mr. Preston’s outrage claim is unaffected by his unsubstantiated
and unpersuasive stroke-related assertions contained in Mr. Preston’s brief.
Finally, because Mr. Preston’s claim of civil conspiracy is solely premised

20

See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (holding that
decisions of the former Fifth Circuit handed down prior to the close of business on September 30,
1981, are binding in the Eleventh Circuit).
27

upon the above inadequate outrageous conduct, see, e.g., Goolesby v. Koch Farms,
LLC, 955 So. 2d 422, 430 (Ala. 2006) (“A civil conspiracy cannot exist in the absence
of an underlying tort.”), his dependent conspiracy count is likewise cognizably
deficient and due to be dismissed.
2.

Alternatively, the Statute of Limitations Bars Mr.
Preston’s Outrage Claims.

“The statutory period of limitations for the tort of outrage is two years.” Cont’l
Cas. Ins. Co. v. McDonald, 567 So. 2d 1208, 1215 (Ala. 1990) (citing Ala. Code
1975, § 6-2-38); see also Archie v. Enter. Hosp. & Nursing Home, 508 So. 2d 693,
695 (Ala. 1987) (“[W]e hold that the tort of outrage or intentional infliction of
emotional distress is governed by the two-year statute of limitations found in §
6-2-38(l).”).21 Nonetheless, at times, Alabama courts have characterized an outrage
claim as “a continuous tort” that “will not be barred until two years after the last
tortious act by the defendant, particularly where the defendant’s conduct does not
cross the threshold and become an actionable tort until it is demonstrably extreme and
outrageous.” McDonald, 567 So. 2d at 1215, 1216; see also Moon v. Harco Drugs,
Inc., 435 So. 2d 218, 220 (Ala. 1983) (recognizing that “a defendant’s repeated
21

Section 6-2-38(l) provides that “[a]ll actions for any injury to the person or rights of
another not arising from contract and not specifically enumerated in this section must be brought
within two years.” Ala. Code § 6-2-38 (l); see also Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189,
1193 (Ala. 2003) (“The statute of limitations for bad faith claims arising on or after January 9, 1985,
is two years.” (quoting Alfa Mut. Ins. Co. v. Smith, 540 So. 2d 691, 692 (Ala. 1988))).
28

wrongs to the plaintiff can constitute a ‘continuous tort’”).
Mr. Preston filed this outrage lawsuit on December 17, 2014. In the absence
of meeting the continuous tort standard set forth above, this means that Defendants’
outrageous conduct must have occurred on or after December 17, 2012, to be timely.
In his initial opposition, Mr. Preston did not respond to Defendants’ statute of
limitations defense. Mr. Preston, however, did file a supplemental opposition (Doc.
112) on February 18, 2016, which purports to substantively address the timeliness of
his outrage suit. While grasping Mr. Preston’s intended points in this supplement is
challenging,22 at least part of his outrage claim appears to be premised upon Dr.
Maples’s incomplete diagnosis and treatment of his hand injury through
February/March 2012, including Dr. Maples’s decision to return Mr. Preston to work
without any restrictions on March 12, 2012. (Doc. 112 at 2). These events (assuming
without deciding that they can even properly be imputed to Defendants), in the
absence of a continuous tort, would all be time-barred.

22

For example, without citing to any evidence, Mr. Preston confusingly indicates that “after
settlement of the [WC Action] [Amerisafe] continued denial of a stroke suffered on the job, taking
place in October of 2013” (Doc. 112 at 2), while the undisputed evidence shows the stroke happened
in November 2012. AF No. 30. Also without any evidentiary or CM/ECF citations, Mr. Preston
mentions an undated lawyer letter between counsel for non-party Dr. Maples and Defendants’
counsel (apparently relating to the deposition of Dr. Maples) as further evidence confirming the
timeliness of his lawsuit. (See Doc. 112 at 2 (“The conduct of Amerisafe and it’s [sic] counsel, with
the assistance of counsel for Dr. Maples was exhibited by a letter from Mr. Knox to Joel Williams
[that] has previously been filed with this Honorable Court and the conspiracy and delay is evidenced
by said letter.”)).
29

The rest of Mr. Preston’s outrage claim is tied to the unspecified point in time
in which Mr. Preston speculates that Defendants joined forces with Dr. Maples (who
Mr. Preston names as a co-conspirator, id.) to cover up Dr. Maples’s failure to
discover Mr. Preston’s fractured thumb. Here, the court finds that Mr. Preston lacks
concrete evidence of a continuous tort or a pattern of repeated wrongs by Defendants
culminating in an action of a sufficient egregious nature–such as withholding needed
medical treatment to secure a minimal settlement–and his outrage claim is, therefore,
properly time-barred. Cf. McDonald, 567 So. 2d at 1216 (“[A]n action such as this,
arising from continuing dealings between the parties, will not be barred until two
years after the last tortious act by the defendant, particularly where the defendant’s
conduct does not cross the threshold and become an actionable tort until it is
demonstrably extreme and outrageous.”).
A summary of the record reflects that Dr. Maples diagnosed Mr. Preston with
a fractured metacarpal and treated him for this condition from October 24, 2011, until
returning him to work without restrictions on March 12, 2012. In February 2012, Mr.
Preston voluntarily declined further evaluation and treatment by Dr. Maples
according to dictated office visit notes from that time period. Approximately 6
months later, Mr. Preston learned through an expert report prepared by Dr. Smith that
he possibly sustained a fracture at the base of his thumb that had not ever been
30

diagnosed by Dr. Maples. Nonetheless, on September 9, 2013, Mr. Preston settled his
workers’ compensation claim for the lump sum of $20,000 and an agreement to leave
open future medical benefits. Mr. Preston did not seek further treatment of his hand
at any time between February/March of 2012, and the settlement of his claim on
September 9, 2013. Consequently, during that time period he was not ever denied
medical treatment by Defendants and/or Dr. Maples.
As explained in more detail supra, in December 2013, Defendants accepted Mr.
Preston’s panel-of-four request, and ultimately Dr. Richard Meyer from UAB agreed
to review Mr. Preston’s case. This review by Dr. Meyer resulted in opinion evidence
that the base of Mr. Preston’s thumb contained a fracture. Dr. Meyer further opined
that surgery to correct this undiagnosed fracture was not recommended. This record
is in sharp contrast to the facts in McDonald, in which a series of repeated wrongs by
the insurance carrier defendant caused the plaintiff to endure extensive mental
suffering and led to the application of the continuing tort theory that protected the
plaintiff’s outrage claim from an untimeliness challenge. Further, Mr. Preston does
not point to a pattern of other wrongful, much less egregious, actions by Defendants,
cite to any case authority which supports the timeliness of his outrage claim, or
otherwise dispute Defendants’ statute of limitations’ position in a meaningful manner.
Accordingly, the continuous tort doctrine has no plausible application here and Mr.
31

Preston’s outrage and conspiracy to commit outrage claims are alternatively barred
by Ala. Code § 6-2-38(l).
B.

Defendants’ Daubert Motion

Defendants’ Daubert Motion seeks to exclude Mr. Preston’s proffered expert,
Jack Taylor (“Mr. Taylor”) under the seminal decision of Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 583, 113 S. Ct. 2786, 2792, 125 L. Ed. 2d 469 (1993) and
Rule 702 of the Federal Rules of Evidence. (Doc. 91 at 4, 19-20).23 Defendants offer
three primary reasons for the exclusion of Mr. Taylor’s opinions: (i) Mr. Taylor does
not qualify as an expert in handling workers’ compensation claims (Doc. 91 at 4); (ii)
Mr. Taylor does not offer any reliable methodology as required by Daubert and its
progeny (id. at 10); and (iii) Mr. Taylor does not offer testimony constituting
specialized or technical expertise that would assist the trier of fact to understand the
evidence. Id. The court has studied the Daubert Motion and finds Defendants’
grounds for excluding Mr. Taylor’s opinions to be well-taken.
Mr. Preston has not substantively responded to Defendants’ Daubert Motion
in a separate filing as required by Appendix III to the court’s uniform initial order.
While the court did find a reference to expert evidence in Mr. Preston’s summary
judgment opposition brief, there is no mention of the Daubert Motion or the
23

All page references to Doc. 91 correspond with the court’s CM/ECF numbering system.
32

admissibility of Mr. Taylor’s opinions; instead, the overall context indicates that the
statement relates to non-party Dr. Maples’s actions as Mr. Preston’s treating
physician. (See Doc. 103 at 11 (“This case requires no expert testimony as to the
breach of the standard of care because it is apparent to a layman.” (citing Bradford,
534 So. 2d at 1080))). Thus, Defendants’ Daubert Motion is due to be granted as
persuasively presented and substantively unopposed by Mr. Preston.
V.

CONCLUSION
Accordingly, for those reasons stated above, Defendants’ Rule 56 and Daubert

Motions are both due to granted. Further, Defendants’ request to present oral
argument is due to be denied. The court will enter a separate final judgment order
dismissing Mr. Preston’s case with prejudice.
DONE and ORDERED this 16th day of August, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

33