Frances Koe, M.D., et al. v. Ratliff, etc., [Ms. SC-2023-0294, Oct. 4, 2024] __ So. 3d __ (Ala. 2024). The Court (Sellers, J.; Wise, Bryan, and Mendheim, JJ., concur; Cook, J., concurs specially; Mitchell, J., concurs in the result; Parker, C.J., dissents; Stewart, J., dissents) reverses the DeKalb Circuit Court’s order granting Plaintiff’s motion for a new trial in a medical malpractice wrongful death case.
After the jury returned a defense verdict, Plaintiff Donna Ratliff, as personal representative of the Estate of Rhoda Gail McBride, deceased, renewed her motion for a judgment as a matter of law on contributory negligence and moved for a new trial. Concluding that the defendants had not presented sufficient evidence supporting their contributory-negligence defense, the trial court granted the motion. Ms. *11.
The decedent McBride suffered a fatal brain bleed on December 24, 2016, and “[t]esting showed that her blood was too thin and that she had suffered from ‘Coumadin toxicity.’” Ms. *9. Dr. Frances Koe of Wills Valley Family Medicine, LLC had prescribed Coumadin to treat McBride’s blood clots earlier that month.
The Court first notes “[t]he alleged insufficiency of the evidence is the reason the trial court gave in opining that it should not have submitted the issue of contributory negligence to the jury and that a new trial was warranted. Thus, the judgment under review appears most akin to one that orders a new trial based on a trial court’s conclusion that a jury’s verdict is not supported by the evidence.” Ms. *14. The Court thus applied the following standard of review:
[W]hen a new trial is ordered because a jury’s verdict allegedly is against the great weight and preponderance of the evidence, “[a]n order granting a new trial shall be reversed when on review it is perceivable that the jury verdict is supported by the evidence.” Mitchell v. Johnson, 641 So. 2d 238, 239 (Ala. 1994) (citing Jawad v. Granade, 497 So. 2d 471 (Ala. 1986)). “While the ‘new trial’ test is a subjective one ... and is measured by a discretionary standard, the range of the trial court’s discretion, as announced in Jawad [v. Granade, 497 So. 2d 471 (Ala. 1986)], has been considerably narrowed. Thus, the trial court is left with no discretion to grant a new trial on a “weight of the evidence” ground, except when the verdict and the judgment entered thereon are so against the great weight and preponderance of the evidence as to be ‘plainly and palpably’ wrong, i.e., ‘manifestly unjust.’” Lemley v. Wilson, 178 So. 3d 834, 841 (Ala. 2015).
In reversing the Court holds:
“Generally, the issue of whether a person is contributorily negligent is a question of fact for the jury.” Adams v. Coffee Cnty., 596 So. 2d 892, 895 (Ala. 1992). The evidence in this case must be “viewed in a light most favorable to [the defendants] and all reasonable inferences the jury was free to draw are indulged.” Lemley, 178 So. 3d at 845. The defendants presented significant evidence, from witness testimony to warning labels, indicating that Coumadin is dangerous and that physician consultation is part of the prescription and therapy. Ratliff points to many instances of her counsel’s thorough examination of defense witnesses that was clearly aimed at attacking the weight of their testimony. But it is the role of the jury to judge the credibility of the witnesses. Flint Constr. Co. v. Hall, 904 So. 2d 236, 250 (Ala. 2004). The question is not whether the jury had to conclude that McBride was contributorily negligent, but whether “it is perceivable that the jury verdict is supported by the evidence.” Mitchell, 641 So. 2d at 239. Based on the evidence, it is indeed “perceivable” that the jury could have concluded that McBride was contributorily negligent.
Ms. **20-21.