BRYAN, Justice.
Dr. Ann M. Mottershaw and The Radiology Group, LLC, appeal separately from the trial court's order granting a motion for a new trial filed by the plaintiff, Shannon Ledbetter, as administrator of the estate of Venoria Womack, deceased. These appeals primarily concern whether the trial court exceeded its discretion in ordering a new trial based on the jury's exposure to certain evidence that the trial court had excluded by an order granting a motion in limine.
On May 11, 2007, Womack underwent a CT scan of her sinuses. Dr. Mottershaw, a radiologist employed by The Radiology Group, read the CT scan. Evidence at trial indicated that Dr. Mottershaw, in reading the CT scan, failed to detect a cancerous mass in Womack's sinuses. Two weeks later, on May 25, 2007, Womack underwent another CT scan. The radiologists who read that scan also failed to detect the mass in Womack's sinuses. Unlike Dr. Mottershaw, those radiologists were not employees of The Radiology Group. A few months later, on August 6, 2007, Womack underwent an MRI of her head. The radiologist who read the MRI detected the cancer in Womack's sinuses. Womack subsequently underwent treatment for her cancer at Shands Medical Center in Gainesville, Florida. However, on March 6, 2008, Womack died.
In April 2009, Ledbetter, as administrator of Womack's estate, sued various health-care providers, alleging medical malpractice and wrongful death. The complaint alleged that the defendants breached the applicable standard of care by failing to timely diagnose Womack's cancer. Among the defendants were Dr. Mottershaw and her employer, The Radiology Group. Eventually, all the defendants except Dr. Mottershaw and The Radiology Group were dismissed.
On September 6, 2011, Ledbetter filed a motion in limine seeking, among other things, to prevent reference to or presentation of any evidence indicating "[t]hat other health care providers [besides Dr. Mottershaw and The Radiology Group] allegedly failed to detect Venoria Womack's nasopharyngeal cancer." The trial court granted the motion in limine insofar as it requested that restriction, among other restrictions not relevant here.
On October 3, 2011, the case against Dr. Mottershaw and The Radiology Group proceeded to trial. During opening statements, Dr. Mottershaw's attorney noted that Dr. Mottershaw had read the CT scan of May 11, 2007. Dr. Mottershaw's attorney then stated that "[t]wo weeks later there was another set of images done." At that point, Ledbetter's attorney asked to approach the bench and an off-the-record discussion was held. During the trial, Dr. Mottershaw's attorney asked Dr. Kendall Jones, who provided expert testimony for Ledbetter:
At that point, Ledbetter's attorney asked to approach the bench, and the following discussion occurred outside the presence of the jury:
Later at trial, Dr. Mottershaw submitted a copy of Womack's medical records from Shands Medical Center, which was labeled as Defendant's Exhibit 7. Defendant's Exhibit 7, which was admitted without objection, contained information about the May 25 CT scan. Specifically, the records stated, in pertinent part:
After Defendant's Exhibit 7 was admitted, Ledbetter's attorney reminded the trial court that references to the May 25 CT scan in the exhibit needed to be redacted to comply with the trial court's order in limine:
Before closing arguments, Matt Griffith, an attorney for Dr. Mottershaw, told the trial court that, pursuant to the order granting the motion in limine, "we have
After closing arguments, the trial court asked the court reporter if "the exhibits in the trial have been looked at by both sides" and whether "they are ready to go back." The court reporter responded affirmatively. The trial court then asked whether "[b]oth sides have looked at those," and the attorneys for both sides responded affirmatively. The case went to the jury on October 6, 2011. After deliberating for approximately 30 minutes, the jury sent a written question to the trial court: "Can we have a copy of the judge's instruction (charge) [a]nd what about the test from the 25th?" (Emphasis added.) Up to that point, the parties and the trial court were unaware that the references to the May 25 CT scan had not been redacted from Defendant's Exhibit 7. In response to the question about "the test from the 25th," the trial court answered: "All of the properly admitted exhibits have been provided to you." After a few hours of deliberation, the jury returned a verdict in favor of Dr. Mottershaw and The Radiology Group. On October 31, 2001, the trial court entered a judgment on the jury verdict.
At some point after the jury returned its verdict, Ledbetter's attorney reviewed the exhibits that had been sent to the jury-deliberation room. Ledbetter's attorney then discovered that the two references to the May 25 CT scan in Defendant's Exhibit 7 had not been redacted despite the order granting the motion in limine.
Ledbetter moved for a new trial, asserting several grounds. Following a hearing, the trial court entered an order granting a new trial. After discussing the pertinent procedural history of the case, the order stated, in part:
Dr. Mottershaw and The Radiology Group filed separate appeals, which we consolidated for the purpose of writing one opinion. On appeal, The Radiology Group adopted Dr. Mottershaw's brief. For ease of discussion, we will refer simply to the arguments of "Dr. Mottershaw," with the understanding that those arguments have been adopted by The Radiology Group.
On appeal, Dr. Mottershaw argues that the trial court erred in ordering a new trial based on the jury's consideration of the unredacted evidence regarding the May 25 CT scan. Initially, we note that Dr. Mottershaw argues at various points that this case is not, as the trial court stated, an "extraneous-material" case; thus, she says, the cases relied on by the trial court are inapplicable. She seems to draw a distinction between cases in which jurors themselves brought extraneous materials into the jury-deliberation room and the facts of this case, in which the jurors were inadvertently exposed to material that should have been redacted. However, she does not point to any case relying on such a distinction for purposes of evaluating the effect of improper exposure. In both types of cases, the key point is that jurors were exposed to material they should not have seen, i.e., "extraneous material." Thus, Dr. Mottershaw's argument is largely one of semantics.
Dr. Mottershaw first argues that, in ordering a new trial, the trial court failed to give the required deference to the jury's verdict. Dr. Mottershaw cites cases generally indicating that a jury's verdict is presumed to be correct and should be set aside only if the verdict is "palpably wrong or manifestly unjust." Bradford v. Kimbrough, 485 So.2d 1114, 1116 (Ala.1986). In making this argument, Dr. Mottershaw essentially confuses, on the one hand, the standard for reviewing a motion for a new trial grounded on the argument that the verdict is against the great weight of the evidence with, on the other hand, the standard for reviewing a motion for a new trial grounded on the argument that the jury considered extraneous evidence. This Court has stated that the trial court has discretion in cases such as this one and that we must give deference to the trial court's decision:
Beauchamp v. Coastal Boat Storage, LLC, 4 So.3d 443, 449-50 (Ala.2008). Because Dr. Mottershaw relies on the incorrect standard in her first argument, i.e., the standard applicable to a sufficiency-of-the-evidence argument, her first argument is unavailing. The main issue, which Dr. Mottershaw tangentially addresses in some of her arguments, is whether the trial court exceeded its discretion in ordering a new trial; the main issue does not involve whether the verdict is supported by sufficient evidence.
We next address the underlying standard informing the trial court's discretion in this case. Generally, the introduction of extraneous materials warrants a new trial if either "1) the jury verdict is shown to have been actually prejudiced by the extraneous material; or 2) the extraneous material is of such a nature as to constitute prejudice as a matter of law." Ex parte Apicella, 809 So.2d 865, 870 (Ala. 2001). In this case, the trial court found both actual prejudice and prejudice as a matter of law. Regarding the concept of "actual prejudice," this Court has stated:
Ex parte Apicella, 809 So.2d at 871.
The circumstances of this case indicate that the trial court did not exceed its
Dr. Mottershaw also argues that the trial court erred in ordering a new trial because, she says, "the jury's consideration of the existence of the date of the May 25 images was not `crucial in resolving a key material issue in the case.'" Dr. Mottershaw's brief at 42. By arguing that the material was not "crucial in resolving a key material issue in the case," Dr. Mottershaw refers to the test for determining whether the extraneous material caused "prejudice as a matter of law." See Ex parte Apicella, 809 So.2d at 872 ("Generally, a presumption of prejudice [as a matter of law] applies only in a case in which the jury's consideration of the extraneous material was `"crucial in resolving a key material issue in the case."'" (quoting other cases)). The trial court found both prejudice as a matter of law and actual prejudice in this case. Because we conclude that the trial court did not exceed its discretion in finding actual prejudice, we need not address the trial court's alternate finding of prejudice as a matter of law. Thus, we do not address Dr. Mottershaw's argument that there was no prejudice as a matter of law.
The deferential standard of review in this case is well illustrated in Gold Kist, Inc. v. Tedder, 580 So.2d 1321 (Ala.1991), a case similar to this one. In Gold Kist, the jury returned a verdict in favor of the defendant in a negligence/wantonness case arising out of an automobile accident. The trial court granted a motion for a new trial on the ground that the jury may have been improperly influenced by an unadmitted exhibit that was left in the courtroom while the jury deliberated there.
At the trial in Gold Kist, one of the issues was whether the automobile accident caused the plaintiff's hip condition. As defenses, the defendant attempted to prove that the plaintiff had previously injured her hip, that she had a previous hip condition that had begun to affect her hip before the accident, and that the plaintiff's alcoholism had contributed to the hip condition. During the trial, the defendant
In affirming the trial court's order, this Court noted that the grant or denial of a motion for a new trial lies "largely within the discretion of the trial court," that it is presumed correct, and that it will not be reversed "unless some legal right was abused and the record plainly and palpably shows that the trial court was in error." 580 So.2d at 1322. This Court then concluded that the trial court did not err in granting a new trial based on the trial court's conclusion "that the jury might have been unlawfully influenced by having the easel in the room where it deliberated." 580 So.2d at 1323. See also Padgett v. Hughes, 535 So.2d 140, 143 (Ala.1988) (stating that a trial court did not exceed its discretion in ordering a new trial after the jury was exposed to improper evidence and noting that "[t]he trial court could not, nor can we, speculate as to what effect this improper evidence may have had on the jury").
Dr. Mottershaw presents several other arguments. She argues that the trial court wrongly excluded mention of the May 25 CT scan in the first place. In making that argument, Dr. Mottershaw notes that the complaint, which was never amended, also alleged claims against a radiologist who read the May 25 CT scan but failed to detect the cancer. However, the claims against that radiologist were later dismissed; the only claims that went to trial were those against Dr. Mottershaw and her employer, The Radiology Group. Dr. Mottershaw also notes that the trial court allowed testimony by Dr. Jeffrey Bennett, Womack's physician, regarding the May 25 CT scan to be presented as an offer of proof. She argues that the "[t]he use of those images ... for diagnosis and treatment [purposes] was then made clear" and, "[w]ith that revelation, it became further clear that the Court's ... ruling excluding the May 25 images was erroneous." Dr. Mottershaw's brief at 31-32. Although it is unclear, the gist of Dr. Mottershaw's argument seems to be that the trial court erred by determining that the potential prejudicial impact of the fact of the existence of the May 25 scan substantially outweighs its probative value. However, her argument is conclusory, and she does not present any authority establishing that the order granting the motion in limine is erroneous given the particular facts of this case. "It is well established that it is not the function of an appellate court to create, research, or argue an issue on behalf of the appellant." Gonzalez v. Blue Cross/Blue Shield of Alabama, 760 So.2d 878, 883 (Ala.Civ.App.2000). Thus, her argument is unpersuasive.
Dr. Mottershaw also argues that Ledbetter's argument for a new trial was not "preserved." Dr. Mottershaw's argument seems to have two prongs. First, Dr. Mottershaw notes that Ledbetter did not object to the admission of Defendant's Exhibit 7, the medical records that included references to the May 25 CT scan. Dr. Mottershaw cites caselaw in which this Court has held that a trial court exceeded its discretion by ordering a new trial based on bad jury charges in the absence of a timely objection to those jury charges.
In the second prong, Dr. Mottershaw argues Ledbetter waived her argument on which she based her motion for a new trial because she failed to object when Dr. Bennett made a passing reference to the May 25 CT scan at trial. At trial Dr. Bennett testified:
Again, Dr. Mottershaw cites general authority regarding the waiver of objections to jury instructions; that authority does not establish that Ledbetter waived her argument in support of a motion for a new trial, which relied on the order granting the motion in limine, based on the facts of this case.
In a similar argument, Dr. Mottershaw argues that Ledbetter could have asked for a curative instruction "when the May 25 records/images were mentioned." Dr. Mottershaw's brief at 32. It appears that Dr. Mottershaw refers to Dr. Bennett's reference at trial to "May 25th," quoted above. Even if the jury had been instructed to disregard Dr. Bennett's testimony about May 25 that would not have changed the fact that there were inadvertently unredacted references to the May 25 CT scan in Defendant's Exhibit 7. Further, Dr. Mottershaw cites no authority indicating that failure to seek a curative instruction regarding Dr. Bennett's testimony would somehow preclude the trial court from ordering a new trial based on the jury's exposure to the inadvertently unredacted material in Defendant's Exhibit 7.
Dr. Mottershaw also argues that failure to redact the references to the May 25 CT scan in Defendant's Exhibit 7 was harmless error because, she says, that evidence had already been admitted without objection. See Rule 45, Ala. R.App. P. ("No judgment may be reversed ... unless... it should appear that the error complained of has probably injuriously affected substantial rights of the parties."). In support of her argument, Dr. Mottershaw cites Dr. Bennett's testimony, quoted above. She also cites "mention of May 25 by [Dr. Mottershaw's] counsel," which apparently refers to this question that was posed by Dr. Mottershaw's attorney to Dr. Jones: "And you got a study that was done two weeks later. May 25, right?"
Dr. Mottershaw also argues that, if there was error in this case, it was caused by Ledbetter, i.e., it was invited error. "`[A] party may not induce an error by the trial court and then attempt to win a reversal based on that error. "A party may not predicate an argument for reversal on `invited error,' that is, `error into which he has led or lulled the trial court.'"'" White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala. 2008) (quoting Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003), quoting other cases). The thrust of Dr. Mottershaw's argument is that Ledbetter should have discovered that Defendant's Exhibit 7 had not been redacted before it went to the jury. This is not invited error because Ledbetter did not lull the trial court into making an error. Rather, both Ledbetter and Dr. Mottershaw simply failed to notice that Dr. Mottershaw's exhibit had not been redacted as ordered. In addition to general law regarding invited error, Dr. Mottershaw cites McCormick v. Badham, 204 Ala. 2, 85 So. 401 (1919). Without going into unnecessary detail, we note that the holding of that case simply does not appear to be grounded on invited error; rather, there was no error in the first place.
Dr. Mottershaw also argues that the trial court erred by striking her attorney's affidavit, which Dr. Mottershaw submitted in opposition to Ledbetter's motion for a new trial. Rule 59, Ala. R. Civ. P, provides, in part:
On November 30, 2011, Ledbetter filed a motion for a new trial, which she supported with a brief and affidavits. On January 23, 2012, Dr. Mottershaw filed a response to the motion for a new trial. On January 25, 2012, the trial court held a hearing on the motion for a new trial. More than two weeks after the hearing, on February 9, 2012, Dr. Mottershaw filed the affidavit of one of her attorneys, Matt Griffith, in opposition to the motion for a new trial. Ledbetter moved to strike the affidavit, and the trial court granted the motion to strike on February 13, 2012. That same day, the trial court granted a new trial.
In this case, Dr. Mottershaw filed her attorney's affidavit on February 9, 2012, 71 days after Ledbetter filed her motion for a new trial on November 30, 2011. Thus, Dr. Mottershaw's affidavit was filed well after the period for doing so established by Rule 59(c). In Elliott v. Elliott, 372 So.2d 846, 850 (Ala.1979), this Court stated that the time requirements in Rule 59(c) may be relaxed in the trial court's discretion. Dr. Mottershaw argues that the trial court exceeded its discretion by striking the affidavit because, she says, (1) she was given no opportunity to argue against the motion to strike and (2) the affidavit was a reasonable and timely response
Dr. Mottershaw also argues that the trial court exceeded its discretion in denying her Rule 54(d), Ala. R. Civ. P., petition to tax costs. After the jury returned a verdict in her favor, Dr. Mottershaw petitioned the trial court to tax costs, and the trial court denied the motion. Rule 54(d) provides, in part, that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs...." (Emphasis added.) Further, "[t]he taxation of costs under Rule 54(d) rests in the discretion of the trial court, and its decision will not be reversed in the absence of a clear abuse of discretion." Miller v. Thompson, 844 So.2d 1229, 1233 (Ala.Civ.App.2002). The trial court did not exceed its discretion in denying Dr. Mottershaw costs, especially considering that the trial court has now granted Ledbetter a new trial and that we are affirming that decision. That is, Dr. Mottershaw is no longer the prevailing party. See White Sands Group, L.L.C. v. PRS II, LLC, 32 So.3d 5, 21 (Ala.2009) ("Because we are reversing the summary judgment for PRS II, Sterling, and Asfour, we must vacate the PRS II costs order and the Sterling/Asfour costs order."); and White v. American Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir.1990) ("[I]n light of our conclusion that a new trial is required, we vacate the district court's award of costs because plaintiff is not a `prevailing party' within the meaning of Fed.R.Civ.P. 54(d) and therefore is not entitled to costs.").
In her brief, Ledbetter argues, in the alternative, that the trial court could have granted a new trial on two grounds asserted by Ledbetter before the trial court but specifically pretermitted by the trial court in its order granting a new trial. Dr. Mottershaw, in her reply brief, addresses those alternative grounds. In support of her arguments regarding those alternative grounds, Dr. Mottershaw attached to her reply brief three exhibits — the deposition testimony and related exhibits of certain doctors — that are not in the record but were made as an offer of proof. Dr. Mottershaw also filed a motion under Rule 10(f), Ala. R.App. P., to supplement the record with those three exhibits.
1110959 — MOTIONS DENIED; AFFIRMED.
1110962 — AFFIRMED.