Register Propane Gas Co. v. Whatley

688 So. 2d 225, 1996 Ala. LEXIS 176, 1996 WL 368418
CourtSupreme Court of Alabama
DecidedJuly 3, 1996
Docket1940027
StatusPublished
Cited by3 cases

This text of 688 So. 2d 225 (Register Propane Gas Co. v. Whatley) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Register Propane Gas Co. v. Whatley, 688 So. 2d 225, 1996 Ala. LEXIS 176, 1996 WL 368418 (Ala. 1996).

Opinions

COOK, Justice.

Register Propane Gas Company, Inc., and its owner, Jerry Register (together referred to as “Register”), appeal from a judgment granting a new trial in a wrongful death action commenced by Era L. Whatley and Dorothy Blair, co-administratrixes of the estates of Clemmie Seymore, Sr., and his wife Emily Woodsen Seymore. We affirm.

[226]*226This action arose out of the deaths of Clemmie and Emily Seymore on or about December 20, 1992. The personal representatives allege that the Seymores were poisoned by carbon monoxide emanating from an unvented space heater in their mobile home. The complaint alleged that Register had negligently or wantonly installed the heater, and then had negligently supplied LP gas to it. Register challenged the plaintiffs’ theory as to the cause of the deaths, contending, instead, that the deaths were caused by a combination of heat exhaustion, poor health, and excessive use of alcohol.

The jury returned a verdict for Register, and the trial court entered a judgment on that verdict. Subsequently, the plaintiffs moved for a new trial, contending that they had “newly discovered evidence, material to the Plaintiffs, which could not, with reasonable diligence, have been discovered and produced at the trial.” After three separate hearings, the trial court set aside the judgment and granted the motion. Register appeals from the order granting a new trial.

The standard of review of an order granting a new trial on the ground of newly discovered evidence is essentially two-pronged. First, the party seeking a new trial must show that in spite of the exercise of due diligence, she did not discover the evidence until after the trial. Fries v. Acme White Lead & Color Works, 201 Ala. 613, 614, 79 So. 45, 46 (1918). Second, the evidence must be of such quality “as to render probable a different result on the retrial of the case.” Id. Moreover, “ ‘[t]he determination of whether to grant ... a new trial is for the trial judge, and an order granting or denying a motion for new trial on the basis of newly discovered evidence will not be disturbed on appeal, unless it appears that the trial court abused its discretion.’ ” Campbell v. Williams, 638 So.2d 804, 814 (Ala.1994). In the following two sections, we shall address these rules more fully.

I. Due Diligence

The newly discovered evidence at issue in this case consisted of circumstances surrounding the testing and handling of blood samples taken from the bodies of the plaintiffs’ decedents. Because Clemmie and Emily Seymore had died from an undetermined cause or causes, Alabama State Medical Examiner Dennis Stilwell performed autopsies on both bodies, drew blood samples from each, and sent the samples to the Alabama Department of Forensic Sciences in Auburn (“the DFS”). Using a process known as “microdiffusion,” “forensic scientist” Laura Shevlin tested the samples for the presence of, among other things, carbon monoxide. Shevlin found no significant carbon monoxide level in either blood sample.1

Before the trial of this action, both sides in the dispute determined to obtain from DFS quantities of the decedents’ blood to be tested in facilities of their choosing. The plaintiffs contacted DFS director Carlos Rabren, seeking such samples but were told that DFS had none available for release. Similarly, Register’s attorneys, who asked Laura Shev-lin, personally, for samples, were told that no blood was available. Being pressed further about the matter, however, Shevlin ultimately provided Register with blood samples. Register’s samples were sent to National Medical Services, Inc. (“NMS”), a laboratory in Philadelphia, Pennsylvania, for additional testing.

On March 30,1994, Dr. Robert Middleberg tested the blood at NMS with a spectrophotometer; this test produced a graph showing a carbon monoxide level of 29.9898% in Emily Seymore’s blood sample. On April 2, 1994, Middleberg telephoned Register’s attorney and informed him of this graph showing. However, Middleberg also stated that the graph figure was a “false positive,” and that testing on Emily’s blood was not yet completed. Indeed, on April 4,1994, personnel at NMS conducted a second spectropho-tometric test on the blood sample, resulting in a graph figure of 33.8025%. Middleberg also retested Emily’s blood using the micro-diffusion method. On or about April 4, 1994, Middleberg concluded — based, apparently, [227]*227on the microdiffusion results and on Ms observations of the physical characteristics of Emily’s blood — that it contained a carbon monoxide level of 2%. He concluded that Clemmie’s blood contained a carbon monoxide level of 7%.

Meanwhile, on April 2,1994, approximately 36 hours before the trial was scheduled to begin, Register’s attorney telephoned the plaintiffs’ counsel and apprised him, for the first time, that Register had commissioned these independent tests. Register’s attorney stated that the testing on Emily Seymore’s blood had not been completed, but that he would “produce the documents from NMS.” Brief of Appellee, at 18.

The trial began on April 4, 1994. During the trial, Dr. MIddleberg testified in person and submitted a three-page report containing his conclusions regarding the level of carbon monoxide in the body of each decedent. On April 7, 1994, the jury returned a verdict for Register.

On April 12, 1994, the plaintiffs moved for an order requiring DFS to provide them with samples of blood. On April 15,1994, the trial court ordered DFS to “produce to [the] Plaintiffs’ attorneys the Seymore blood samples and one or more control samples taken from the same time period in a manner similar to the manner in which the blood samples were produced to the Defendant’s attorney by Ms. Shevlin.” (Emphasis added.)

The transfer of these samples from Shevlin to the plaintiffs’ attorney was recorded on a videotape, wMch depicts the samples in plastic containers. The samples were then sent to Alabama Reference Laboratories, Inc. (“ARL”), for testing. According to ARL’s tests, Emily Seymore’s blood and Clemmie Seymore’s blood contained carbon monoxide levels of 9.6% and 5.3%, respectively.

The circumstances under wMch the plaintiffs became aware of the availability of the blood samples and became aware of the containers in wMch they were being stored and transferred are significant in regard to the first prong of the new-trial standard. It is not disputed that the plaintiffs learned only after the trial that DFS was storing or sMp-ping blood samples in plastic containers. The significance of the manner of containment and shipping will be discussed more fully in Part II.

Moreover, although the plaintiffs eventually — with the aid of a post-trial court order— were able to obtain blood samples from DFS, they can scarcely be charged with failure to exercise due diligence, given that the director misled them. In other words, the plaintiffs can hardly be faulted for failing to subpoena samples that they reasonably could have believed did not exist. Thus, we conclude that the first prong of the test is satisfied.

II. Probability of a Different Result on Retrial

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Bluebook (online)
688 So. 2d 225, 1996 Ala. LEXIS 176, 1996 WL 368418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/register-propane-gas-co-v-whatley-ala-1996.