Alabama Supreme Court 1040842.
On Application for Rehearing
This court's opinion of March 26, 2004, is withdrawn, and the following is substituted therefor.
Bruno's Supermarkets, Inc. ("Bruno's"), appeals from an order entered by the Jefferson Circuit Court granting the plaintiff Dorothy Massey's motion for a new trial. We reverse and remand.
On December 18, 2000, Massey, then 74 years old, was walking in the produce department of a Food World grocery store owned and operated by Bruno's when she stepped on a metal produce rack and fell, allegedly injuring her back and one leg. It is undisputed that a portion of Massey's medical expenses stemming from the alleged injuries were paid by Medicare and Blue Cross/Blue Shield of Alabama. On June 6, 2001, Massey filed a complaint against Bruno's in the Jefferson Circuit Court seeking damages for the injuries she allegedly sustained in the slip and fall.
Before the trial, Massey submitted a list of potential witnesses that included, among others, "[r]epresentatives of Blue Cross/Blue Shield" and "[r]epresentatives of Medicare." However, Massey did not call any of these individuals to testify at trial.
In its opening statement, counsel for Bruno's related to the jury that "[y]ou will learn that [Massey's] medical bills ... have been paid by Medicare and Blue Cross/Blue Shield" and that "if [Massey] prove[s] to you she have [sic] future medicals, thank goodness she has that health insurance and Medicare to take care of her, just like she did in this situation." Massey's counsel did not address the issue of reimbursement of medical expenses in his opening statement.
During the trial, upon questioning from her own counsel, Massey stated that her insurance, including Medicare, had paid
After the trial court overruled Bruno's objection, Massey's counsel did not pursue an answer to his question concerning insurance premiums, but instead moved on to the following line of inquiry:
Following this exchange, Massey's counsel "moved on" to other inquiries without attempting to otherwise authenticate the letter in question or to introduce it into evidence.
At no other time during the trial did Massey attempt to present other evidence — through either witnesses or documentation — as to the issue of subrogation. After the close of all the evidence, a colloquy involving the parties' counsel and the trial court occurred in which Bruno's counsel requested that Massey's counsel not be allowed to mention the issue of subrogation in his closing statement because "[t]hat's not in evidence." After an extended discussion of the matter, the trial court stated: "There is no evidence before this Court that [Massey] has to pay back a specific amount of money." The trial court then sustained the objection and forbade Massey's counsel from mentioning subrogation in his closing statement to the jury.
Nevertheless, during Massey's closing statement to the jury, the following occurred:
On November 1, 2002, the jury returned a verdict in Massey's favor, awarding her damages in the amount of $30,000. On December 2, 2002, Massey filed a motion for a new trial or, in the alternative, a motion for additur, on the ground that the trial court had erred in allowing counsel for Bruno's to mention in his closing statement that Massey's medical expenses had been paid by Medicare and Blue Cross/Blue Shield but forbidding Massey's counsel from mentioning that Medicare and Blue Cross/Blue Shield would have a subrogation interest in any damages she recovered in the action. The trial court entered an order on January 27, 2003, granting the request for a new trial, stating in pertinent part:
"Whether to grant or to deny a motion for new trial is vested within the sound discretion of the trial court, and this court will not reverse that decision on appeal without a showing of an abuse of discretion." Smith v. Darring, 659 So.2d 678, 679 (Ala.Civ.App.1995).
Section 12-21-45, Ala.Code 1975, provides, in pertinent part:
Massey contended in her motion for a new trial that while the trial court
However, subsection (c) does not state that evidence relating to subrogation "shall be admissible" regardless of whether or not it is competent evidence. The remainder of the Rules of Evidence still apply both to evidence presented concerning payment of expenses by an insurer and evidence presented concerning an obligation to repay an insurer. In other words, Massey had to present competent evidence that she was obligated to repay Medicare and Blue Cross/Blue Shield for her medical expenses.
In this case, the trial court prohibited Massey from testifying as to the truth of the content of a letter allegedly received from Medicare and Blue Cross/Blue Shield stating that Medicare and Blue Cross/Blue Shield intended to enforce a subrogation interest in any recovery she obtained in court. Any such testimony would have constituted statements "offered in evidence to prove the truth of the matter asserted," Rule 801(c), Ala. R. Evid., i.e., that Massey was required to repay Medicare and Blue Cross/Blue Shield, even though Massey's only knowledge of such an obligation was based on the letter. Thus, as the trial court itself observed in its January 27, 2003, order, the testimony was hearsay and was properly prohibited by the trial court.
The trial court's postjudgment order states that Massey contended that she was prohibited from presenting "other evidence that [she] was required to repay an amount of such medical payments." However, the record indicates that there was no evidence of Massey's personal knowledge that an amount was due in subrogation other than the hearsay statements in the letter about which she attempted to testify. Indeed, in her motion for a new trial, Massey states that "her knowledge that she had to repay Medicare and Blue Cross/Blue Shield came from [the letter]. That is, the letter which informed Mrs. Massey of payments made to her medical providers and the amount of any such payments also informed Mrs. Massey of her obligation to repay medical expenses." Thus, Massey's "personal knowledge" of her obligation to repay medical expenses came from the unauthenticated letter about which the trial court forbade Massey from testifying.
The record indicates that what the trial court forbade Massey from presenting was incompetent evidence concerning subrogation, such as the aforementioned hearsay evidence, not all evidence on that subject. On rehearing, Massey argues various theories as to why she was competent to testify at trial as to her repayment obligation to Medicare and Blue Cross/Blue Shield, despite the hearsay objection that was raised by Bruno's. Those theories, with the exception of the issues discussed elsewhere in this opinion, were not presented at trial. In essence, the trial court's postjudgment ruling would permit Massey to benefit from her own failure to present competent evidence on the issue of subrogation.
Massey also contends that the trial court was required under either the doctrine of completeness or the doctrine of curative admissibility to allow her to present evidence concerning subrogation. The principle embodied in the completeness doctrine is reflected in Rule 106, Ala. R. Evid., which states that "[w]hen a party introduces
Massey contends that the completeness doctrine applies in this case. Massey argues that because Bruno's was permitted to present evidence that she was reimbursed for her medical expenses, she likewise should be permitted to present evidence that she had an obligation to repay the entities that reimbursed her. The thrust of this argument states nothing more than what § 12-21-45 already permits. As was previously observed, there is no question that Massey was permitted to present evidence concerning subrogation: the issue is whether Massey presented competent evidence on that subject, which the record indicates she failed to do.
The doctrine of curative admissibility is also referred to as the "reply-in-kind" doctrine, and is sometimes considered to be a form of "invited error." See 1 Charles Gamble, McElroy's Alabama Evidence § 14.01 (5th ed.1996). "The curative admissibility doctrine holds that if one party introduces illegal evidence, his opponent has the unconditional right to rebut such evidence." American Fire & Cas. Ins. Co. v. Bryan, 379 So.2d 605, 609 (Ala.Civ.App. 1979) (emphasis added). See, e.g., Smith v. Blankenship, 440 So.2d 1063, 1066 (Ala. 1983) ("Where counsel for a party litigant pursues an improper line of argument he thereby invites a reply in kind, and statements made by opposing counsel which would otherwise be objectionable are often proper." (Emphasis added.)); and Cunningham v. Lowery, 45 Ala.App. 700, 705, 236 So.2d 709, 714 (Civ.App.1970).
Massey contends that when Bruno's mentioned in its opening statement that Medicare and Blue Cross/Blue Shield had paid most of Massey's medical expenses, Bruno's "opened the door" to otherwise inadmissible evidence concerning subrogation. However, the doctrine of curative admissibility does not apply in this case because § 12-21-45(a) permitted Bruno's to present evidence concerning who paid Massey's medical expenses. In other words, Bruno's did not introduce illegal evidence or pursue an improper line of argument, so there was no error to be cured through other impermissible evidence.
Given the presentation of the evidence and the rulings in the record, it was not error for the trial court to disallow the particular evidence presented by Massey concerning subrogation. Thus, the trial court improperly granted a new trial to Massey. Accordingly, we reverse the judgment of the trial court, and we remand the cause for the entry of a judgment consistent with this opinion.
OPINION OF MARCH 26, 2004, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.
CRAWLEY, P.J., and THOMPSON and PITTMAN, JJ., concur.
BRYAN, J., concurs in the result, without writing.