American Law’s Worst Moment—2020

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains why the police murder of George Floyd was the worst moment of 2020 in American law. Professor Sarat proposes that we remember the event and that date—May 25—as “infamous,” a word reserved for rare and atrocious events like the bombing of Pearl Harbor, in an attempt to capture the brutality and inhumanity of the act.

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Wayne Farms LLC v. Primus Builders, Inc.

Docket: 1190533

Opinion Date: December 31, 2020

Judge: Michael F. Bolin

Areas of Law: Arbitration & Mediation, Civil Procedure, Construction Law, Contracts

Wayne Farms LLC appealed a circuit court order compelling it to arbitrate its claims asserted against Primus Builders, Inc., and staying the action. Wayne Farms was a poultry producer located in Dothan, Alabama. Wayne Farms sought to expand its poultry-processing facility, and, to that end, entered into a "Design/Build Agreement" with Primus in 2017, that specifically addressed work to be completed by Primus in connection with the expansion of Wayne Farms' freezer warehouse. Primus subcontracted with Republic Refrigeration, Inc.; Republic hired Steam-Co, LLC for "passivation services." Upon draining a condenser for the freezer warehouse, it was discovered that the interior of the condenser was coated with corrosive "white rust." Primus then replaced the damaged condenser at a cost of approximately $500,000 under a change order, pursuant the Design/Build Agreement with Wayne Farms. Wayne Farms paid Primus for both the original damaged condenser and the replacement condenser. Both Primus and Steam-Co have claimed that the other is responsible for the damage to the condenser. Wayne Farms sued Primus and Steam-Co asserting claims of breach of contract and negligence and seeking damages for the damaged condenser and the cost of replacing it. Primus moved the trial court to compel arbitration as to the claims asserted against it by Wayne Farms. Primus also moved the trial court to dismiss, or in the alternative, stay Steam-Co's cross-claims against it. Wayne Farms opposed Primus's motion to compel arbitration, arguing that no contract existed between the parties requiring it to arbitrate claims arising from the passivation process. The Alabama Supreme Court found that the contract between Wayne Farms and Primus specified arbitration would apply to only those disputes arising from obligations or performance under the Design/Build Agreement, Wayne Farms could not be compelled to arbitrate with Primus a dispute arising from the performance of passivation work that was not an obligation agreed to in the Design/Build Agreement. Judgment was reversed and the matter remanded for further proceedings.

FNB Bank v. Marine Park, LLC, et al.

Docket: 1190251

Opinion Date: December 31, 2020

Judge: Michael F. Bolin

Areas of Law: Banking, Civil Procedure, Contracts, Real Estate & Property Law

SE Property Holdings, LLC ("SEPH"), the successor by merger to Vision Bank, and FNB Bank ("FNB") separately appealed a circuit court's judgments on their breach-of-contract claims against Bama Bayou, LLC, formerly known as Riverwalk, LLC ("Bama Bayou"), and Marine Park, LLC ("Marine Park"), and the individuals and entities guaranteeing Bama Bayou's and Marine Park's contract obligations, challenging the trial court's damages awards. Bama Bayou and Marine Park were the developers of a planned mixed-use development in Orange Beach consisting of a marine park, residential condominiums, retail shops, hotels, and commercial entertainment venues. Marine Park specifically intended to develop a special-use facility for the exhibition of marine animals. Vision Bank made four loans to Bama Bayou and Marine Park related to the development project. The Marine Park loan was fully funded by FNB pursuant to a participation agreement with Vision Bank. The participation agreement provided that the Marine Park parcel would be owned by FNB in the event it was acquired by foreclosure. Bama Bayou and Marine Park were having financial problems with regard to the project by August 2007. Vision Bank demanded payment at that time, and Bama Bayou, Marine Park, and the guarantors failed and/or refused to pay the indebtedness owed on the loans. In 2009, Vision Bank conducted a public auction to separately foreclose the mortgages. No bids were submitted; Vision Bank purchased the properties. Neither Bama Bayou, nor Marine Park, nor the guarantors exercised their rights to redeem the properties. Vision Bank sued Bama Bayou and its guarantors, and Marine Park and its guarantors for amounts owed under those loans, including all principal, accrued interest, late charges, attorney's fees and collection costs. After review, the Alabama Supreme Court reversed the trial court's judgments in these consolidated cases and remanded for a determination of the appropriate awards on the breach-of-contract claims. "Such awards should account for all accrued interest, late charges, attorney's fees, collection costs, and property- preservation expenses owed."

McGill v. Szymela

Docket: 1190260

Opinion Date: December 31, 2020

Judge: Tom Parker

Areas of Law: Civil Procedure, Medical Malpractice

Janice and Timothy McGill appealed a circuit court judgment against them in their medical-malpractice lawsuit against Victor Szymela, M.D. The McGills alleged that Dr. Szymela failed to properly perform Janice's temporomandibular-joint total-replacement ("TJR") surgery. Janice sought treatment to relieve her temporomandibular-joint ("TMJ") disorder. Janice had been experiencing clicking and locking of her jaw and excruciating jaw and ear pain. Janice alleged that she experienced distinct, worse pain immediately after the surgery and that the new pain did not resolve with time. She continued to experience popping in her jaw. She alleged that her overbite was exacerbated by the surgery. She also alleged that she could not open her mouth as wide as previously and that she lost sensation in her lips, which diminished her ability to speak clearly. Janice sought treatment from Dr. Michael Koslin, who referred Janice to a pain-management specialist. Ultimately, Janice's providers determined that her pain was unresponsive to conservative treatment. In 2017, Dr. Koslin surgically removed the prosthesis. Several weeks later, Dr. Koslin implanted custom joints. Janice alleged Dr. Koslin's treatment relieved her pain. In March 2016, Janice sued Dr. Szymela, alleging that he breached the standard of care for an oral and maxillofacial surgeon by failing to properly assess the source of Janie's pain or install the prosthesis correctly. The McGills identified Dr. Louis G. Mercuri as one of their expert witnesses regarding oral and maxillofacial surgery. On Dr. Szymela's motion, the trial court ruled that Dr. Mercuri did not qualify as a "similarly situated health care provider" under § 6-5-548(c)(4), Ala. Code 1975, because he had not practiced in Dr. Szymela's specialty within the year preceding Dr. Szymela's alleged breach. Thus, the court excluded Dr. Mercuri as a witness. At the close of all evidence, on Dr. Szymela's motion, the trial court entered a partial judgment as a matter of law ("JML") in favor of Dr. Szymela. The Alabama Supreme Court determined the trial court did not exceed its discretion by excluding the testimony of Dr. Mercuri on the basis that he was not statutorily qualified as an expert. And because the McGills did not present or point to substantial evidence of the standard of care for Dr. Szymela's performance of Janice's TJR surgery, the trial court properly entered a JML on the claims relating to the surgery. Accordingly, judgment was affirmed.

Ex parte Johnson & Johnson et al.

Docket: 1190423

Opinion Date: December 31, 2020

Judge: Michael F. Bolin

Areas of Law: Drugs & Biotech, Government & Administrative Law, Health Law, Medical Malpractice

Johnson & Johnson and other pharmaceutical defendants sought mandamus relief from an Alabama circuit court order that refused to transfer venue of the underlying lawsuit to the Jefferson County, Alabama circuit court, on grounds that venue in Conecuh County was not proper as to all plaintiffs, or alternatively, on the basis that convenience of the parties and/or the interest of justice required it. In 2019, the plaintiffs filed a complaint at the Conecuh Circuit Court against numerous defendants that, they averred, manufactured, marketed, distributed, and/or dispensed opioid medications throughout Alabama in a manner that was misleading, unsafe, and resulted in drug addiction, injury, and/or death to Alabama citizens. The complaint asserted claims of negligence, nuisance, unjust enrichment, fraud and deceit, wantonness, and civil conspiracy. The manufacturer defendants moved to transfer the case to Jefferson County, reasoning that because 8 of the 17 plaintiffs either had a place of business in Jefferson County or operated hospitals in Jefferson County or adjacent counties, logic dictated that a large percentage of the witnesses for those plaintiffs (i.e., prescribing doctors, hospital administrators, etc.) and their evidence were located in or around Jefferson County. After a review of the circuit court record, the Alabama Supreme Court determined defendants did not demonstrate a clear, legal right to transfer the underlying case from Conecuh to Jefferson County. Therefore, the petition was denied.

Breland v. City of Fairhope

Docket: 1180492

Opinion Date: December 31, 2020

Judge: Mitchell

Areas of Law: Government & Administrative Law, Zoning, Planning & Land Use

Charles K. Breland, Jr., purchased land in Baldwin County, Alabama to build a housing subdivision. The subdivision he planned to construct required filling about 10.5 acres of wetlands, which the City of Fairhope and Baldwin County opposed. Breland and Breland Corporation (collectively, Breland) sued Fairhope, claiming that they had a vested right to fill the wetlands, that Fairhope's ordinances could not prevent them from filling the wetlands, that Fairhope had acted negligently regarding Breland's application for a land- disturbance permit, and that Breland's criminal citation for beginning work without a permit should have been expunged. The trial court rejected their claims following a nonjury trial. Breland appealed the trial court's judgment. The Alabama Supreme Court concluded Breland did not establish Fairhope's ordinances were invalid or that it had obtained a vested right to fill the wetlands on the property. Further, the Breland parties' argument that Breland's citation should have been expunged was premised on the notion that he was not obligated to comply with Fairhope's ordinances in existence at the time of his citation. Because the Supreme Court rejected that premise, the Breland parties' request for expungement was moot. And because this matter was not reversed or remanded for further proceedings and there was no other apparent remedy at this stage, the Breland parties' claim that the trial court erred by allowing The Battles Wharf/Point Clear Protective Association to intervene was moot.