Niloofar N. NICHOLS and John Matthew Nichols,
v.
TENNESSEE VALLEY OB/GYN CLINIC, P.C., and Sharon L. Callison, M.D.
Appeal
from Madison Circuit Court (CV-16-900572)
Page 1188
Ty
Brown, Richard Riley, and Dylan Marsh of Marsh, Rickard &
Bryan, P.C., Birmingham, for appellants.
Sybil
V. Newton, Joseph S. Miller, and J. Wilson Axon of Starnes
Davis Florie LLP, Birmingham, for appellees.
PER
CURIAM.
AFFIRMED.
NO OPINION.
See
Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Shaw,
Bryan, Sellers, and Mitchell, JJ., concur.
Bolin,
J., concurs specially.
Parker,
C.J., and Wise, Mendheim, and Stewart, JJ., dissent.
BOLIN,
Justice (concurring specially).
I
concur in affirming the judgment of the trial court. I write
specially to object to the Chief Justice's dismissive
treatment, in his dissent, of the valuable service provided
to our trial courts and to the bar by the Alabama Pattern
Jury Instructions Committee (Civil).
In
addressing the matter, I initially explain the history of
pattern jury instructions in general and acknowledge with
gratitude the countless hours the committee members of the
Alabama Pattern Jury Instructions Committee (Civil), both
past and present, have put into serving the trial courts, the
bar, the litigants, and the juries in this State over the
past half century.
One
law-review article has explained the development of pattern
jury instructions as follows:
"Originally, there was a rule in England that judges
were not supposed to instruct jurors at all; they could
only answer questions. Even then, the answers to jury
questions were not always very helpful. In the 1314 case of
Abbot of Tewkesbury v. Calewe, a jury was asked to
decide whether certain land was `free alms' or `lay
fee.' They pointed out to the judge, `We are not men of
law,' implicitly requesting his assistance. The judge
replied, `Say what you feel.' This is the problem, of
course. If a judge does not explain to the jury what it is
supposed to do, the jury will do what it feels is best.
This is precisely the sort of arbitrary decision making
that the rule of law seeks to prevent.
"Eventually, judges in England did begin to instruct
jurors on the law. But even today, English jury
instructions (part of the judge's `summation')
remain oral and relatively informal. The judge summarizes
the facts and possible inferences to be drawn from them and
then tells jurors in his own words what the relevant law
is.
"As in England, American judges originally did not
instruct jurors on the law. Jurors were expected to use
their common sense. Common sense may have worked well
enough when the country was largely rural. But as the
country industrialized, legal disputes became more complex
and the need for consistently applied rules of law became
more pressing. Eventually, jurors lost the right to decide
questions of law. Additionally, toward the end of the
nineteenth century, many states took away the power of the
judge to charge juries on the facts. Thus arose the modern
division of labor in which the judge decides the law and
the jury is entrusted with the facts. Inevitably,
jurisdictions began to require the judge to instruct the
jury on the relevant law.
"The legal profession soon came to realize that
instructing the jury could involve a lot of work and
duplication of effort. With every trial, judges and
attorneys would spend time drafting the
Page 1189
instructions. Another problem was that instructions were
often inconsistent from judge to judge. And judges were
often reversed for instructional error.
"In 1935, Judge William J. Palmer of the Superior
Court of Los Angeles, California addressed some of these
issues in an article recommending that a committee be
formed to compile approved instructions for civil cases.
The presiding judge of the court was impressed by the idea
and appointed a committee of lawyers and judges to
accomplish this goal. The committee published a book of
instructions a few years later. The descendant of this book
of instructions is still used in California, where it is
known as the Book of Approved Jury Instructions
(`BAJI'). A similar book of criminal instructions,
California Jury Instructions: Criminal
(`CALJIC') soon followed. The venture was a tremendous
success and has since been imitated by many other
states."
The
Rocky Road to Legal Reform: Improving the Language of Jury
Instructions, 66 Brooklyn L.Rev. 1081, 1082-84 (2001)
(footnotes omitted).
In
Alabama, an effort was undertaken to simplify civil jury
instructions in 1967 by the Alabama Program of Continuing
Legal Education, with the support of the Alabama Association
of Circuit Judges, the Alabama Defense Lawyers Association,
and the Alabama Trial Lawyers Association and with the
cooperation of the Alabama State Bar. The goal of the
resulting committee was, and still is, as this Court stated
in a 1973 order, "to formulate and compile model jury
charges for use by the Bench and Bar which would be concise,
legally accurate, unslanted, and in simple language
understandable by lay jurors."
By an
order adopted in 1973, this Court "approved" the
use of pattern jury instructions, stating in that order that
pattern jury instructions would be an "invaluable aid to
trial judges of this State in charging juries in civil
cases." The Court recommended publication of the pattern
jury charges and their use by the bench and bar. The
Court noted, although the instructions appeared accurate, the
instructions were patterns only, and "should be altered
or changed as circumstances indicate." Thus, the
Court recommended the use of the pattern charges, but without
prejudice to the rights of any litigant to make and reserve
for review any objections thereto — either to form,
substance, or application. The Alabama Pattern Jury
Instructions Committee (Civil) ("the Committee")
does not submit the pattern instructions to this Court before
their publication. Although this Court "approved"
the publication of the pattern instructions for use in trial
courts in Alabama, it did not "preapprove" the
pattern jury charges written by the Committee as being
omnipresent, omnipotent, and all-encompassing —
applicable in their unaltered form to every possible factual
scenario conceivable in civil litigation, then and in the
future.
I quote
the following steps set out in the first edition of the
Alabama Pattern Jury Instructions — Civil, outlining
the efforts to create a finished product:
"PREFACE
"In early 1967 a determined effort was undertaken to
simplify one of the basic facets in the trial of civil jury
cases, the matter of instructing juries. This objective
became the project of the Alabama Program of Continuing
Legal Education under the directorship of Honorable Douglas
Lanford with the active support of the Alabama Association
of Circuit Judges, the Alabama Defense Lawyers Association
and Alabama Trial Lawyers Association, with the cooperation
of the Alabama State Bar.
Page 1190
"A committee made up of members of these organizations
was established and was composed of the following:
"Judge James N. Bloodworth, Chairman, of Decatur
"Judge Ingram Beasley, Vice Chairman, of Birmingham
"Judge Will G. Caffey, Jr. of Mobile
"Judge William C. Sullivan, of Talladega
"H.R. Burnham, of Anniston
"Richard L. Jones, of Birmingham
"Janie L. Shores, of Birmingham
"Regular monthly meetings of one day duration were
held during the succeeding years. As time passed, vacancies
on the original committee occurred through the personal
success of various members and recognition of their
professional abilities. The original Chairman, Judge James
N. Bloodworth, left to become an Associate Justice on the
Supreme Court of Alabama. He was replaced as Chairman in
1968 by Judge Ingram Beasley. Judge Will G. Caffey, Jr.,
left the Circuit bench in Mobile and the committee to
become a United States Referee in Bankruptcy. He was
replaced by Circuit Judge Reneau P. Almon, of Moulton, who
in turn left the committee upon his appointment to the
Alabama Court of Criminal Appeals. Judge Edward N. Scruggs
thereupon joined the committee, as did Judge George Murphy,
and Judge Robert E.L. Key. Richard L. Jones became an
Associate Justice on the Supreme Court of Alabama in 1972,
but continued as a member of the committee, which was
composed of the following at the time of publication:
"Judge Ingram Beasley, Chairman, of Birmingham
"Judge William C. Sullivan, Vice Chairman, of
Talladega
"Judge Robert E.L. Key, of Evergreen
"Judge George Murphy, of Gadsden
"Judge Edward N. Scruggs, of Guntersville
"H.R. Burnham, of Anniston
"Justice Richard L. Jones, of Birmingham
"E.C. Hornsby, of Tallassee
"Professor Janie L. Shores, of Birmingham
"Subcommittee members serving at various times during
the six years were:
"T. Rueben Bell, of Sylacauga
"Ollie L. Blan, Jr., of Birmingham
"Timothy M. Conway, Jr., of Birmingham
"Albert W. Copeland, of Montgomery
"A. Neil Hudgens, of Mobile
"Irvin J. Langford, of Mobile
"Robert B. Propst, of Anniston
"J.M. Sides, of Anniston
"J. William Thomason, of Bessemer
"George F. Wooten, of Talladega
"Judge Leigh M. Clark, of Birmingham
"Mable B. Fitch
"....
"... No citations in this volume should be construed
as an indication that Alabama courts will necessarily adopt
rules from other jurisdictions which may be stated in the
material cited."
After
considerable work and six years after the Committee was
formed, the Committee issued its report to this Court in
1973, as captioned and stating:
"REPORT TO THE SUPREME COURT
"MAY IT PLEASE THIS HONORABLE COURT