
    Brenda SULLIVAN and Raymond L. Sullivan v. Dr. Matthew MIHELIC.
    1991830.
    Supreme Court of Alabama.
    June 29, 2001.
    Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
    
      Michael K. Wright, Sybil Vogtle Abbot, and Charles P. Gaines of Gaines, Gaines & Rosco, Talladega; Starnes & Atchison, L.L.P., Birmingham, were listed “of counsel”, for appellee.
   WOODALL, Justice.

In 1990, Raymond and Brenda Sullivan took their infant son, Corey Lynn Sullivan, to the emergency room at a hospital in Talladega. Dr. Matthew F. Mihelie saw Corey and diagnosed an ear infection, an upper respiratory infection, and bronchitis. After prescribing antibiotics, Dr. Mihelie released Corey from the emergency room. Corey died at home later that same day. Subsequently, the Sullivans sued Dr. Mi-helic, alleging medical malpractice and wrongful death.

On June 1, 1995, a jury returned a verdict in favor of the Sullivans, awarding damages of $500,000. Dr. Mihelie appealed to this Court. The only issue reached by this Court was the dispositive issue of “whether [Dr. Mihelie] was entitled to a new trial on the basis that the trial court erred in permitting a medical expert to testify to matters beyond her qualifications.” Mihelie v. Sullivan:, 686 So.2d 1130, 1131 (Ala.1996). Our holding was “that the trial court erred in denying Dr. Mihelic’s motion for a new trial.” Id. Therefore, we reversed the trial court’s judgment and remanded for a new trial.

The medical expert discussed in our earlier opinion was Dr. Layne Layton. In discussing her qualifications and testimony, this Court stated:

“The parties agree that the witness, Dr. Layne Layton, could properly, under Ala.Code 1975, § 6-5-548, testify to opinions as to the standard of care applicable to Dr. Mihelie in a hospital emergency room setting — where Dr. Mihelie had treated and released Corey. Similarly, the plaintiffs’ arguments indicate that they agree that- under § 6-5-548 ' Dr. Layton, who is not board certified in ' any specialty, could not testify against •Dr. Mihelie as to what the standard of care required of him, a board certified family practitioner, in ■ regard to post-admission hospital care. Accepting these propositions, arguendo, and having carefully reviewed the plaintiffs’ argument on this issue — that Dr. Layton’s testimony cannot reasonably be characterized as offering an opinion on the standard of care required of Dr. Mihelie as to post-admission care — we hold that the trial court erred in denying Dr. Mi-helic’s motion for a new trial.”

Id. (footnote deleted). ■ After reciting a portion of Dr. Layton’s testimony, we concluded:

“We agree with Dr. Mihelie that Dr. Layton was improperly permitted to testify as to the standard of care required of Dr. Mihelie in regard to post-admission hospital care. As stated, the parties’ arguments indicate an agreement that Dr. Layton should not have been permitted to offer such .opinions. Accordingly, we reverse the judgment and remand.”

Id.

Following remand, the Sullivans filed supplemental Rule 26, Ala. R. Civ. P., information, identifying Dr- Clark Holmes as an additional expert. Dr. Mihelie moved to preclude the use of the additional expert. Dr. Mihelie also moved for a partial judgment as a matter of law, seeking to limit the standard-of-care issues, based upon this Court’s decision in the earlier appeal. The trial court granted Dr. Mihelic’s motions, stating:

“4. The Alabama Supreme Court determined that the Plaintiffs expert, Dr. Layne Layton, was not qualified to give certain standard of care testimony, e.g., that she was not qualified to speak to the standard of care issues regarding admission of the patient to the hospital, evaluation of the patient with blood cultures, blood counts, urinalysis, spinal tap, spinal fluid cultures, and treatment of the patient with IV fluids, IV antibiotics, oxygen, and close monitoring. Counsel for all parties acknowledged that the Alabama Supreme Court has determined that Dr. Layton was not qualified to give standard of care testimony as to these issues in accordance with the decision in Mihelic v. Sullivan, 686 So.2d 1130 (Ala.1996).
“5. The Alabama Supreme Court decision in this case constitutes a final adjudication as to the standard of care issues regarding admission of the patient to the hospital, evaluation of the patient with blood cultures, blood counts, urinalysis, spinal tap, spinal fluid cultures and treatment of the patient with IV fluids, IV antibiotics, oxygen and close monitoring. Accordingly, Dr. Mihelic is entitled to a judgment as a matter of law with respect to these issues because these issues should not have been presented to the jury for consideration because Dr. Layton was not qualified to testify to these issues.
“6. The Court has determined that the Defendant’s Motion for Partial Judgment as a matter of law involves a controlling question of law and that an immediate appeal from this order would materially enhance the ultimate determination of this litigation and avoid protracted and expensive litigation. Because the Court has determined that Dr. Mihelic is entitled to a judgment as a matter of law on fewer than all of the Plaintiffs claims against him, and that there is no just reason for ... delay in the entry of said judgment, final judgment in accordance with the provisions of Rule 54(b), Alabama Rule of Civil
Procedure, is hereby rendered in favor of said defendant as it relates to the issues set forth hereinabove in paragraph 5. This judgment does not make a determination as to the Plaintiffs other theory of liability relative to the alleged breach of the standard of care by the Defendant in the evaluation and assessment of the deceased in an emergency room setting.
“10. The Court, in its discretion, has determined that the Motion to Preclude is due to be granted. The Defendants are bound by the respective expert witness disclosures made prior to the first trial of this cause. A party shall not be precluded from calling any expert witness listed by that party prior to the first trial of this cause. However, the parties are precluded from introducing new and/or additional experts at this time. With respect to Dr. Holmes, the Court notes that the Plaintiff concedes that Dr. Holmes’ testimony would not differ in any material way from the testimony previously given by Dr. Layton. Further, counsel for both parties have conceded in argument in open court that the Plaintiffs could submit to the jury on the sole remaining issue by presenting the testimony of Dr. Layton and/or Dr. Abramson. Accordingly, the parties are precluded from offering new and/or additional experts not previously disclosed by the parties prior to the first trial of this cause.”

The Sullivans now appeal from this order, contending that the trial court has failed to comply with our earlier mandate.

This Court, in its earlier opinion, did not limit a new trial to specific issues. This Court held only that the trial court erred in denying Dr. Mihelie’s motion for a new trial. Therefore, there is no basis for the following statement by the trial court:

“The Alabama Supreme Court decision in this case constitutes a final adjudication as to the standard of care issues regarding admission of the patient to the hospital, evaluation of the patient with blood cultures, blood counts, urinalysis, spinal tap, spinal fluid cultures and treatment of the patient with IV fluids, IV antibiotics, oxygen and close monitoring.”

This Court noted in its original opinion that Dr. Mihelic, subsequent to the trial, “moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial or a remittitur.” Id. This Court did not hold that the trial court erred in fading to enter a judgment notwithstanding the verdict. This Court did not hold that the trial court erred in failing to grant a remit-titur. In fact, this Court did not address those issues. Instead, this Court did hold that the trial court erred in failing to grant a new trial, and it in no way limited the new trial to specific issues; therefore, the plaintiffs are entitled to a trial de novo. See Auerbach v. Parker, 558 So.2d 900, 902 (Ala.1989) (quoting Erbe v. Eady, 447 So.2d 778, 779 (Ala.Civ.App.1984) “ “When a case is remanded to a trial court after a decision on appeal, “issues decided by the appellate court become law of the case and the trial court’s duty is to comply with the appellate mandate.... ” The trial court is not free to reconsider issues finally decided in the mandate.’ ”). The trial court erred in granting Dr. Mihelic’s motion for a judgment as a matter of law as to some issues.

The trial court also granted Dr. Mihelic’s motion to preclude the testimony of Dr. Holmes, a board-certified family practitioner. While the trial court is afforded broad discretion concerning such matters, we find that the trial court erred in this instance. In its order, the trial court noted that the substance of Dr. Holmes’s proposed testimony would not differ in any material way from the testimony given by Dr.' Layton at trial. However, unlike Dr. Layton, Dr. Holmes is qualified to testify to the standard of care required of Dr. Mihelic in a post-admission setting. Thus, Dr. Holmes’s testimony would not be cumulative.

For the foregoing reasons, we reverse the judgment of the trial court and remand, this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON and JOHNSTONE, JJ„ concur.

LYONS, J., concurs specially.

LYONS, Justice

(concurring specially).

At the first trial, Dr. Layton testified as an expert witness over Dr. Mihelic’s objection. The Sullivans rested their case without calling additional expert witnesses. The jury returned a verdict in favor of the Sullivans. On appeal, this Court reversed and remanded for a new trial. See Mihelic v. Sullivan, 686 So.2d 1130 (Ala.1996), based on erroneous admission of expert testimony. Upon remand, the trial court viewed the evidence from the first trial purged of Dr. Layton’s testimony and entered a judgment as a matter of law for Dr. Mihelic.

On this second appeal, the Sullivans argue, among other things, that the first appeal was wrongly decided on the issue of admissibility of expert testimony. Likewise, Dr. Mihelic argues, as he did in his application for rehearing on the first appeal, that he is entitled to a judgment as a matter of law, as opposed to awarding the Sullivans a new trial, based upon the incompleteness of the Sullivans’ case at the first trial without Dr. Layton’s testimony. I agree with the majority opinion that the trial court was bound by the law of the case on the first appeal. I write specially to point out that I believe a new trial is a fair and reasonable result.

I consider the question whether Dr. Layton’s testimony at the first trial was directed to causation, as the Sullivans contend, or to the standard of care and therefore subject to § 6-5-548(e), Ala.Code 1975, as Dr. Mihelic maintains and as this Court held on the former appeal, to be a close one. I recognize that this Court is not obliged to apply the law decided in the first appeal. In Papastefan v. B & L Construction Co., 385 So.2d 966 (Ala.1980), this Court held:

“On this second appeal, both sides again argue in [their briefs] the limitations issue. The Supreme Court is not barred from re-examination of a previous ruling upon a subsequent appeal of the same case. Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974); City of Fairhope v. Toum of Daphne, 286 Ala. 470, 241 So.2d 887 (1970). Code of 1975, § 12-2-13 (formerly Tit. 13, § 28, Code of 1940), states in part:
“ ‘The supreme court, in deciding each case when there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion, at that time is law, without any regard to such former ruling on the law by it....’
“Section 12-2-13 abrogates the common law rule that principles decided and rulings made on appeal, however erroneous, are the ‘law of the case’ and govern the appellate court on a subsequent appeal in the same case. Stoudenmire v. [DeBardelaben], 85 Ala. 85, 4 So. 723 (1888); Moulton v. Reid, 54 Ala. 320 (1875). Of course, if, upon re-examination, the Supreme Court determines that its previous ruling is sound, the former decision will be reaffirmed. City of Fairhope, supra; Norville v. Seeberg, 205 Ala. 96, 87 So. 164 (1920).”

385 So.2d at 967.

If I were not affected by the closeness of the issue decided in the first appeal of this case on the issue of the admissibility of expert testimony, I would be inclined to revisit the other holding in the first appeal dealing with the grant of a new trial as opposed to the entry of a judgment, as urged by Dr. Mihelic. The precise question — whether the plaintiff, as the verdict winner, is entitled, after an appellate court has declared his expert testimony insufficient, to a new trial solely to allow him to present stronger expert testimony in a second trial — was recently decided adversely to the plaintiff by a unanimous Supreme Court in Weisgram v. Marley Co., 528 U.S. 440, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000). In Weisgram, the Supreme Court applied principles of law that, although they are not binding upon us, are highly persuasive. The Court noted:

“Courts of appeals have divided on the question whether Federal Rule of Civil Procedure 50 permits an appellate court to direct the entry of judgment as a matter of law when it determines that evidence was erroneously admitted at trial and that the remaining, properly admitted evidence is insufficient to constitute a submissible case.”

Id. at 446, 120 S.Ct. 1011. The Court then held:

“As Neely [v. Martin K Eby Construction Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967)] recognized, appellate rulings on post-trial pleas for judgment as a matter of law call for the exercise of ‘informed discretion,’ 386 U.S., at 329, 87 S.Ct. 1072, and fairness to the parties is surely key to the exercise of that discretion. But fairness concerns should loom as large when the verdict ivinner, in the appellate court’s judgment, failed to present sufficient evidence as when the appellate court declares inadmissible record evidence essential to the verdict winner’s case. In both situations, the party whose verdict is set aside on appeal will have had notice, before the close of evidence, of the alleged evidentiary deficiency. See Fed. Rule Civ. Proc. 50(a)(2) (motion for judgment as a matter of law ‘shall specify ... the law and facts on which the moving party is entitled to the judgment’).”

Id. at 454, 120 S.Ct. 1011 (emphasis added).

Responding to the plight of the plaintiff who relied on evidence admitted over objection, the Court stated:

“It is implausible to suggest, post-Ncw-bert [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail. We therefore find unconvincing Weisgram’s fears that allowing courts of appeals to direct the entry of judgment for defendants will punish plaintiffs who could have shored up their cases by other means had they known their expert testimony would be found inadmissible. See Brief for Petitioner 18, 25. In this case, for example, although Weis-gram was on notice every step of the way that Marley was challenging his experts, he made no attempt to add or substitute other evidence. See Lujan v. National Wildlife Federation, 497 U.S. 871, 897,110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (‘[A] litigant’s failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant’s own risk.’).”

Id. at 455-56, 120 S.Ct. 1011.

Dr. Mihelic has not asked us to follow Weisgram. After weighing the wisdom of reconsidering each of the holdings the Sul-livans and Dr. Mihelic, respectively, seek to relitigate, I am persuaded that the best result is to leave the parties to a new trial.  