Monday, November 23, 2020

Drummond's request for interlocutory appeal in $75-million Roberson lawsuit is soundly rejected, proving our predictions come true every now and then

Tamara Harris Johnson 

Like a lot of media types, we engage in prophecy from time to time. Political and sports coverage are filled with it, and making predictions is fun -- even when your track record, like ours, is somewhere in the "mixed bag" category -- where some predictions prove correct, some are off base, a few are close, others not so close.

But we are here today to note that, by golly, we recently nailed one -- more or less took an Aroldis Chapman fastball and parked that sucker in the cheap seats. And it came on an important subject -- the $75-million lawsuit from David Roberson against his former employer, Drummond Company. And it's all tied to a gross case of environmental racism -- the North Birmingham Superfund bribery scandal.

So, what was our prediction? It came in a post dated 11/16/20, and here's how we put it:

Drummond Company's request for an interlocutory appeal in David Roberson's $75-million lawsuit should be dead on arrival. In fact, it should not even be certified for an appeal at the trial-court level, and its request for a stay in discovery certainly should not be granted.

And what do you know, that is exactly what happened. Jefferson County Circuit Judge Tamara Harris Johnson, bless her heart, agreed with my assessment and essentially sent Drummond's request to the dead letter office. This is from Johnson's order issued last Friday (11/20/20). (The full order, which is brief, is embedded at the end of this post.):

This matter comes before the Court on Defendant Drummond Company, Inc.'s Motion to Certify Questions for Interlocutory Appeal and Motion to Stay Discovery Pending That Appeal and Plaintiff's Objection to Drummond Company's Motion to Stay Discovery and to Certify Questions for Interlocutory Appeal. . . . The prerequisites of such an Order, as is requested by the Defendant Drummond, requires a certification by this Court that, in this Court's opinion, the requested interlocutory order involves a controlling question of law as to which there is substantial ground of difference of opinion, that an immediate appeal from the Order, as is requested by the Defendant Drummond from the Court's order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation.

This Court cannot certify that it shares the necessary opinion to further the herein request for an interlocutory appeal. The Court further has considered the fact that discovery was stayed, pending a ruling on the Defendants' Motions to Dismiss. The Court FINDS that any further stay of Discovery in this matter is unwarranted.

In the interest of full disclosure, this was an easy call for me to make--but, of course, I couldn't let an opportunity pass to crow about being right -- and it surely was even easier for Johnson. From our 11/16/20 post:

What is that central question Drummond seeks to place before the high court? Here's how it is stated in the company's brief:

Whether a  corporation, which is not itself a legal services provider, may avail itself of the ALSLA statute of limitations where its alleged liability is based on the conduct of its general counsel, who is a legal services provider?

        The Alabama Supreme Court already has answered that question in a case styled Alabama Educ.             Ass’n v. Nelson, 770 So. 2d 1057 (Ala. 2000). Nelson involved a teacher's efforts to sue AEA                 under the Alabama Legal Services Liabiliy Act (ALSLA) because of alleged legal malpractice by          one of the association's in-house lawyers. That appears to be analogous to Roberson's claims                 related to Drummond in-house counsel Blake Andrews -- and the company's efforts to seek                     protection of the ALSLA and its tight statute-of-limitations, which could make the Roberson                 lawsuit time-barred.

        But Drummond has a slight problem -- it admits that it is not a legal-services provider, and the                Alabama Supreme Court held in Nelson that the ALSLA does not apply in such situations. In                essence, the state's high court found in Nelson that ALSLA does not apply to the AEA -- which,            like Drummond, is not a legal-services provider -- so it could not apply to Drummond. That means         Roberson's complaint is not time-barred, and Drummond's request for interlocutory appeal should         be sent to the dead letter office. Here is the key finding in Nelson:


            We note that throughout the ALSLA, the language used by the Legislature indicates             that the Act was intended to apply to lawyers and law firms. For example, §                        6-5-572(3)(a) sets out the "standard of care" a "legal service provider" is to                        observe:

"The standard of care applicable to a legal service provider is that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case."

        What standard of care would be applied to the AEA under this statute? We know of no         other "legal service provider" that, in regard to the AEA, might be considered to be             "similarly situated." Clearly this section contemplates that the ALSLA is to be                     applied  only to lawyers and to law firms— including professional corporation                    associations,  and partnerships—whose membership is composed solely of lawyers             acting for the  purpose of providing legal services.

 If the AEA does not qualify as a "legal services provider," it's hard to imagine how a coal-mining company, such as Drummond, could. And that's because it doesn't -- based on Alabama Supreme Court precedent.

Now that we've established that, discovery in the Roberson lawsuit can fire back up.

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