Documente Academic
Documente Profesional
Documente Cultură
ELECTRONICALLY FILED
8/8/2018 4:31 PM
02-CV-2018-901407.00
CIRCUIT COURT OF
MOBILE COUNTY, ALABAMA
JOJO SCHWARZAUER, CLERK
IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA
COME NOW Defendants McGill-Toolen Catholic High School, Bill Griffin, Michelle
Haas, Caleb Ross, Earnest Hill, and Carl Jackson, by and through their counsel, and file this
Unnumbered Paragraphs
The allegations of the first five unnumbered paragraphs in Plaintiff's Complaint do not
deemed to be required, these Defendants are without sufficient knowledge or information to form
"McGill") is an Alabama nonprofit corporation, and that McGill employed Bill Griffin, Michelle
Haas, Caleb Ross, Earnest Hill, and Carl Jackson at all times relevant to Plaintiff's Complaint.
{04528481.1} 1
DOCUMENT 78
These Defendants further admit that, at all times relevant to Plaintiff's Complaint, Encore
Rehabilitation, Inc. was an independent contractor providing athletic trainer services to McGill,
and that Encore employed Defendant Drew Garner. Otherwise, these Defendants deny the
4. [sic.]1 These Defendants admit that, at all times relevant to Plaintiff's Complaint,
Griffin served as the Athletic Director of McGill. Otherwise, these Defendants deny the
5. These Defendants admit that, at all times relevant to Plaintiff's Complaint, Haas
served as the Principal of McGill. Otherwise, these Defendants deny the remaining allegations
6. These Defendants admit that, at all times relevant to Plaintiff's Complaint, Ross
served as the Head Football Coach of McGill. Otherwise, these Defendants deny the remaining
7. These Defendants admit that, at all times relevant to Plaintiff's Complaint, Hill
served as the Head Defensive Football Coach of McGill. Otherwise, these Defendants deny the
Jackson served as the Assistant Varsity Football Coach of McGill. Otherwise, these Defendants
deny the remaining allegations of this paragraph, and demand strict proof thereof.
9. These Defendants admit that, at all times relevant to Plaintiff's Complaint, Encore
Rehabilitation, Inc. was an independent contractor providing athletic trainer services to McGill,
1
Plaintiff's Second Amended Complaint omits a paragraph numbered 3. In an effort to maintain consistency
between the pleadings, these Defendants have numbered their Answer to match Plaintiff's Second Amended
Complaint.
{04528481.1} 2
DOCUMENT 78
and that Encore employed Defendant Drew Garner. Otherwise, these Defendants deny the
10. These Defendants admit that Encore Rehabilitation, Inc. was an independent
contractor providing athletic trainer services to McGill, and that Encore employed Defendant
Drew Garner. As to the remaining allegations of this paragraph, these Defendants are without
sufficient knowledge or information to form a belief as to the truth of and therefore deny the
allegations.
11. The allegations of this paragraph do not appear to be directed at these Defendants,
are without sufficient knowledge or information to form a belief as to the truth of and therefore
Facts
13. These Defendants admit that athletic coaches employed by McGill received
training on the risks of concussions as required by the Alabama High School Athletic
Association. Otherwise, these Defendants deny the remaining allegations of this paragraph, and
14. These Defendants admit that athletic coaches employed by McGill received
training on the risks of concussions as required by the Alabama High School Athletic
Association. Otherwise, these Defendants deny the remaining allegations of this paragraph, and
2
Plaintiff's Second Amended Complaint contains two paragraphs numbered 12. In an effort to maintain consistency
between the pleadings, these Defendants have numbered their Answer to match Plaintiff's Second Amended
Complaint.
{04528481.1} 3
DOCUMENT 78
15. These Defendants admit that athletic coaches employed by McGill received
training on the risks of concussions as required by the Alabama High School Athletic
Association, and that McGill is a member of the Alabama High School Athletic Association, and
is therefore subject to its rules and regulations. These Defendants deny that they failed to adhere
to any applicable rules and regulations of the Alabama High School Athletic Association.
16. These Defendants admit that athletic coaches employed by McGill received
training on the risks of concussions as required by the Alabama High School Athletic
Association. Otherwise, these Defendants deny the remaining allegations of this paragraph, and
17. Defendant Jackson admits that, on or about May 7, 2015, Plaintiff participated in
tackling drills as a part of the McGill football team. The remaining Defendants deny that they
directly witnessed, directly supervised, or have personal knowledge of any tackling drills
occurring on May 7, 2015, and therefore deny any material allegations directed at them.
18. Defendant Jackson denies the allegations of this paragraph, and demands strict
proof thereof. The remaining Defendants deny that they directly witnessed, directly supervised,
or have personal knowledge of any tackling drills occurring on May 7, 2015, and therefore deny
19. Defendant Jackson denies the allegations of this paragraph, and demands strict
proof thereof. The remaining Defendants deny that they directly witnessed, directly supervised,
or have personal knowledge of any tackling drills occurring on May 7, 2015, and therefore deny
20. Defendant Jackson denies the allegations of this paragraph, and demands strict
proof thereof. These allegations are not directed at the remaining Defendants, so no response is
{04528481.1} 4
DOCUMENT 78
required from them, but they lack personal knowledge about these allegations and deny any
21. Defendant Jackson denies being aware of any of Plaintiff's alleged symptoms on
May 7, 2015 which would require the Plaintiff to be sent to a medical doctor. These allegations
are not directed at the remaining Defendants, so no response is required from them, but they lack
personal knowledge about these allegations and deny any material allegation directed at them.
22. Defendant Jackson admits that, on May 11, 2015, Jackson sent Plaintiff to see the
athletic trainer during the McGill football team practice. The remaining Defendants deny any
personal knowledge of these allegations, and therefore deny any material allegations directed at
23. These Defendants admit that Encore Rehabilitation, Inc. was an independent
contractor providing athletic trainer services athletic trainer services to McGill, and that Encore
employed Defendant Drew Garner. Otherwise, these Defendants deny the remaining allegations
24. These allegations are not directed at these Defendants, so no response is required
from them, but they deny having personal knowledge about these allegations and deny any
25. These allegations are not directed at these Defendants, so no response is required
from them, but they deny having personal knowledge about these allegations and deny any
26. These Defendants admit that Plaintiff participated in McGill football practice after
May 7, 2015. However, these Defendants deny being aware of any of Plaintiff's alleged
{04528481.1} 5
DOCUMENT 78
27. These Defendants admit that they received no written clearance from a licensed
physician for Plaintiff to return to play. However, these Defendants deny being aware of any of
Plaintiff's alleged symptoms on May 7, 2015 which would require any such written clearance.
28. Defendant Jackson admits that Plaintiff participated in a tackling drill on May 11,
2015. The remaining Defendants deny any personal knowledge of these allegations, and
therefore deny any material allegations directed at them related to May 11, 2015.
29. Denied.
30. These Defendants deny they were aware of any deterioration of Plaintiff's medical
condition up to the May 11, 2015 practice. These Defendants admit that Plaintiff received
31. These Defendants admit that Plaintiff was taken to the hospital and received
emergency medical care on May 11, 2015, but deny that any alleged injury or condition suffered
32. Denied.
33. Denied.
34. These Defendants incorporate, as though fully set forth herein, each and every
35. Denied.
36. Denied.
38. Denied.
39. Denied.
{04528481.1} 6
DOCUMENT 78
40. These Defendants incorporate, as though fully set forth herein, each and every
41. Denied.
42. Denied.
43. These Defendants incorporate, as though fully set forth herein, each and every
44. McGill employed Ross as the Head Football Coach of McGill. McGill employed
Jackson as the Assistant Varsity Football Coach of McGill. McGill employed Hill as the Head
Defensive Football Coach of McGill. McGill contracted with Encore Rehabilitation, Inc. to
provide athletic trainer services to McGill. Otherwise, these Defendants deny the remaining
45. These Defendants admit that athletic coaches employed by McGill received
training on the risks of concussions as required by the Alabama High School Athletic
Association. Otherwise, these Defendants deny the remaining allegations of this paragraph, and
46. Denied.
47. Denied.
In response to the prayer for relief found after Count Three, these Defendants demand
that this Court reject Plaintiff's prayer and instead dismiss Plaintiff's claims and enter judgment
AFFIRMATIVE DEFENSES
{04528481.1} 7
DOCUMENT 78
1. Each paragraph of the Plaintiff’s Complaint fails to state a cause of action upon
2. This action and each and every claim stated therein are barred by the doctrine of
3. This action and each and every claim stated therein are barred by the applicable
part by the Plaintiff’s culpable conduct, including contributory negligence and/or assumption of
the risk.
actions these Defendants are neither responsible nor liable, was the sole, intervening or
superseding cause of Plaintiff’s damages, and therefore, any recovery by Plaintiff against these
Defendants is barred.
Plaintiff’s alleged damages and, therefore, any recovery by Plaintiff against these Defendants is
barred.
should not include any loss which could have been prevented by reasonable care and diligence
exercised by him after the alleged losses referred to in Plaintiff’s Complaint occurred.
Plaintiff were the direct and unavoidable consequences of Plaintiff’s pre-existing medical
{04528481.1} 8
DOCUMENT 78
condition and the appropriate medical care necessitated thereby, and were not caused or
10. Plaintiff’s alleged damages are the result of pre-existing ailments, disabilities
and/or defects and, therefore, any recovery by Plaintiff should not include compensation for any
physical ailments, defects or disabilities that may have existed prior to the occurrence referred to
in Plaintiff’s Complaint when such were not caused or contributed to by reason of the occurrence
11. In that there was a total absence of any causal connection between any actions of
these Defendants and the injuries and damages alleged by the Plaintiff, Plaintiff cannot recover.
12. There was no fault on the part of these Defendants, and the alleged injury of
Plaintiff’s resulted from the negligence of third parties for whom these Defendants are not
responsible.
13. Any injuries or damages allegedly sustained by the Plaintiff resulted solely from
acts or omissions attributed to the persons other than these Defendants. Such acts or omissions
on the part of others constitute an independent and proximate cause of any such injury or
damage.
14. Plaintiff's alleged injuries were caused solely, or in the alternative, proximately by
acts, wrongs, omissions, and/or negligence of third parties for whose acts or omissions these
Defendants are not liable or responsible. In the alternative, the injuries claimed by Plaintiff were
due solely to causes other than any negligence or fault, none of which are admitted and each of
15. The Plaintiff’s Complaint fails to set forth a claim for punitive damages upon
{04528481.1} 9
DOCUMENT 78
(a). The procedures by which damages for mental anguish are awarded to plaintiff
violates the due process rights secured to these Defendants by the laws and
Constitutions of the United States and of the State of Alabama in that these
procedures deprive these Defendants of Defendant’s property without due process
of law by failing to provide the jury with adequate standards or guidelines by
which to render such an award.
(b). The procedures by which damages for mental anguish are awarded to Plaintiff
violate the due process rights secured to these Defendants by the laws and
Constitutions of the United States and of the State of Alabama in that these
procedures deprive these Defendants of Defendant’s property without due process
of law by allowing the jury unbridled discretion to determine the amount of the
award in an arbitrary and capricious manner.
(c). The procedures by which damages for mental anguish are awarded violate the
rights secured to these Defendants under the laws and Constitutions of the United
States and of the State of Alabama by depriving these Defendants of Defendant’s
property without due process of law because no reasonable standard or guideline
is given to the jury to insure that the award is reasonable and further there is no
meaningful standard for judicial review of the award post-verdict to insure that
the award does not exceed constitutional limitations.
(d). The procedures by which damages for mental anguish are awarded violate rights
secured to these Defendants under the laws and Constitutions of the United States
and of the State of Alabama by depriving these Defendants of property without
due process of law in that no reasonable criteria, guideline, or standard is
provided to the jury in order that the jury may determine from the evidence what
quality or quantity of evidence is necessary to justify an award of damages for
mental anguish.
(e). These Defendants will be deprived of Defendant’s rights secured by the laws and
Constitutions of the United States and the State of Alabama because an award of
mental anguish in this case is unconstitutional.
(f). The procedures by which damages for mental anguish are awarded deprive these
Defendants of rights secured to these Defendants by the laws and Constitutions of
the United States and the State of Alabama in that the same deprive these
Defendants of Defendant’s property without due process of law by not providing
an objective standard by which the jury may measure an award or an objective
standard by which the judge may review the jury’s award to determine if it is
reasonable, just, and proper.
(g). The procedure by which damages for mental anguish are awarded deprives these
Defendants of rights secured to these Defendants by the laws and Constitutions of
the United States and the State of Alabama in that the same deprives these
Defendants of Defendant’s property without due process of law by allowing juries
{04528481.1} 10
DOCUMENT 78
(h). The process by which juries are allowed to award damages for mental anguish
violates the elementary notions of fairness dictated by the laws and Constitutions
of the United States and the State of Alabama in that it does not provide these
Defendants with fair notice of what conduct will subject these Defendants to
liability nor the severity of the damages that the state may impose through the jury
system; therefore, these Defendants is deprived of Defendant’s property without
due process of law in contravention of the rights secured to these Defendants by
the Fourteenth Amendment to the United States Constitution, as well as other
federal and state laws.
(i). The process by which juries are allowed to award damages for mental anguish
violates the due process rights secured to these Defendants by the laws and
Constitutions of the United States and the State of Alabama in that this process
deprives these Defendants of Defendant’s property without due process of law by
failing to give these Defendants notice of the range of damages which might be
returned because juries are given unbridled discretion to determine the amount of
the award and thereby render such an award in an arbitrary and capricious
manner.
(j). The process by which juries are allowed to award damages for mental anguish
violates the elementary notions of fairness dictated by the laws and Constitutions
of the United States and the State of Alabama in that it does not provide these
Defendants with fair notice of the amount of the award which may be rendered by
a jury and there is no guarantee that the mental anguish award will be reasonably
related to other awards in similar circumstances.
(k). These Defendants are deprived of Defendant’s property without due process of
law in contravention of the rights secured to these Defendants by the Fourth
Amendment to the United States Constitution, as well as other federal and state
laws, in that these Defendants is not provided with adequate notice of the extent
of damages which may be awarded for mental anguish because juries are
returning mental anguish damage awards which are in violation of the laws and
Constitutions of the United States and the State of Alabama.
17. These Defendants deny that they are guilty of any conduct which warrants the
{04528481.1} 11
DOCUMENT 78
18. Any award of punitive damages to Plaintiff in this case would be in violation of
the constitutional safeguards provided to these Defendants under the Constitution of the State of
Alabama.
19. Punitive damages cannot be sustained because of the lack of clarity in Alabama's
20. Any claim for punitive damages, on its face and/or as applied in this case, is in
violation of the Fifth Amendment of the Constitution of the United States; of the right to counsel
provided by the Sixth Amendment of the Constitution of the United States; of the right to trial by
jury of the Seventh Amendment of the Constitution of the United States; of the proportionality
principles contained in the Eighth Amendment of the Constitution of the United States; the Due
Process clause in the Fourteenth Amendment of the Constitution of the United States; and Article
1, Sections 1, 2, 6, 11, 13, 15, 27, and 35 of the Constitution of Alabama of 1901, and is
improper under the common law and public policies of the State of Alabama and under
applicable court rules and statutes for the following reasons, jointly and separately:
(a) There are no standards provided by Alabama law for the imposition of punitive
damages, and therefore, These Defendants have not been put on notice and given
the opportunity to anticipate punitive liability and/or the potential size of the
award and to modify or conform its conduct accordingly;
(c) The procedures to be followed could permit the award of multiple punitive
damages for the same act or omission;
(d) There are no provisions or standards for clear and consistent appellate review of
any award of punitive damages against these Defendants under present Alabama
law;
{04528481.1} 12
DOCUMENT 78
(e) The standards of conduct upon which punitive damages are sought against these
Defendants are vague and ambiguous;
(f) The procedures used by courts under Alabama law and the guidelines given by
the jurors, jointly and separately, are vague and ambiguous and, thus,
impermissibly allow jurors broad, unlimited and undefined power to make
determinations on their notions of what the law should be instead of what it is;
(g) The procedures under which punitive damages are awarded and the instructions
used under Alabama law, jointly and separately, are vague and ambiguous and,
thus, fail to eliminate the effects of, and to guard against, impermissible juror
passion.
(h) Present Alabama law does not provide for sufficiently objective and specific
standards to be used by the jury in its deliberations on whether to award punitive
damages and, if so awarded, on the amount to be awarded;
(i) Present Alabama law does not provide a meaningful opportunity for challenging
the rational basis for, and any excessiveness of, any award of punitive damages;
(j) Present Alabama law does not provide for adequate and independent review by
the trial court and the appellate court of the imposition of punitive damages by a
jury or of the amount of any punitive damages awarded by a jury;
(l) Present Alabama procedures may permit the admission of evidence relative to
punitive damages in the same proceeding during which liability is determined;
(m) Present Alabama procedures permit the imposition of joint and several judgments
against multiple co-defendants for different acts or degrees of wrongdoing or
culpability; and
21. Plaintiff's claims for the recovery of punitive damages are in contravention of
(b) The Contracts Clause of Article I, Section 10 of the United States Constitution;
{04528481.1} 13
DOCUMENT 78
(c) The Due Process Clause of the Fifth and Fourteenth Amendments to the United
States Constitution;
(d) The Equal Protection under the laws afforded by the Fourteenth Amendment to
the United States Constitution;
(f) The prohibition against ex post facto law in Article 1, Section 22 of the Alabama
Constitution;
(g) The Contracts Clause of Article 1, Section 22 of the Constitution of Alabama; and
(h) The Due Process Clause of Article 1 Section 6 and/or 13 of the Constitution of
Alabama.
22. An award of punitive damages in the circumstances of this case would clearly
violate these Defendants' due process rights as embraced by the Fifth and Fourteenth
Amendments to the United States Constitution, and by the due process clause of Article 1,
Section 6 and/or 13 of the Alabama Constitution, jointly and separately, as such award would
constitute a deprivation of property without due process of law for the following reasons as
(a) There is no rational relationship between the punitive damage awards in Alabama
and the wrongfulness of these Defendants' conduct and/or the compensatory
damages awarded.
(b) No rational relationship exists between the extent of punitive damages and
legitimate interests to be advanced by the State of Alabama.
(c) An award of punitive damages in this case would be penal in nature and thus,
would be violative of these Defendants' constitutional rights under the United
States Constitution and/or the Alabama Constitution unless these Defendants is
granted the procedural safeguards afforded criminal defendants, including but not
limited to constitutional safeguards against self-incrimination and a heightened
standard of proof beyond a reasonable doubt.
(d) The award of punitive damages on the basis of vicarious liability of the conduct of
others violates these Defendants’ constitutional rights.
{04528481.1} 14
DOCUMENT 78
23. The imposition of punitive damages in this case would be in denial of these
Defendants’ right to equal protection of the laws as guaranteed by the Fourteenth Amendment to
the United States Constitution and Article 1, Sections 1, 6, and 22 of the Alabama Constitution.
Specifically, defendants are treated differently from criminal defendants who are charged for
similar or identical culpability. Alternatively, the absence of adequate and objective standards
for guiding in the assessment of punitive damages fails to insure the equality of treatment
24. With respect to Plaintiff's demand for punitive damages, these Defendants
specifically incorporate by reference any and all standards or limitations regarding the
determination and/or enforceability of punitive damage awards, set forth in the United States
Supreme Court’s decision in BMW of North America v. Gore, 517 U.S. 559 (1996), and State
Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003).
25. To the extent that Plaintiff's demand for punitive damages may result in multiple
punitive damage awards to be assessed for the same act or omission against these Defendants,
this award contravenes these Defendants’ right to due process under the due process clause of
Article 1, section 13 of the Alabama Constitution. In addition, such award would infringe upon
these Defendants’ rights against double jeopardy insured by the Fifth Amendment of the United
26. The procedures pursuant to which punitive damages are awarded subject these
Defendants to punishment for the conduct of others through vicarious liability or through non
apportionment of damages among joint tortfeasors, in violation of the Fifth and Fourteenth
Amendments to the United States Constitution and Article I § 1 and 6 of the Alabama
Constitution.
{04528481.1} 15
DOCUMENT 78
27. The procedures pursuant to which punitive damages are awarded expose these
Defendants to the risk of undefinable, unlimited liability unrelated to actual loss, if any, caused
by its conduct, creating a chilling effect on these Defendants' exercise of their right to a judicial
28. “[T]he Due Process Clause forbids a State to use a punitive damages award to
punish a defendant for injury that it inflicts upon nonparties or those whom they directly
represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.”
29. “[T]he Due Process Clause prohibits a State from punishing an individual without
first providing that individual with ‘an opportunity to present every available defense.’” Id.
30. The Due Process Clause prohibits punishment of a defendant based on an injury
to a nonparty victim because such punishment “would add a near standardless dimension to the
punitive damages equation.” Id. Such punishment would be based on speculation and, thus,
magnifies the fundamental due process concerns of “arbitrariness, uncertainty and lack of
notice.” Id. (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 418 (2003)).
31. These Defendants claim the benefits and limitations as to punitive damages in
Sections 6-11-20 to -29 of the Code of Alabama (1987, 1999, et al.) including, but not limited to,
the specificity and proof requirements in § 6-11-20, and the limitations and exceptions in § 6-11-
21.
32. To the extent Plaintiff claims punitive damages, these Defendants have not acted
toward the Plaintiff with wantonness and, accordingly, Plaintiff is not entitled to claim or recover
punitive damages from these Defendants. Any claim for punitive damages is subject to and
{04528481.1} 16
DOCUMENT 78
limited by the provisions of Sections 6-11-21, -22 and -30 of the Code of Alabama (1975), as
amended.
33. These Defendants aver that the Plaintiff's claims for medical expenses, or for any
expenses which have been paid by third parties, are not being prosecuted by the real party in
interest, pursuant to Ala. R. Civ. P. 17, and thus the Plaintiff's claims for such expenses should
34. These Defendants aver that the public policy of the State of Alabama as set forth
recoverable, if any, by Plaintiff and that Plaintiff cannot recover more than that limit under the
35. These Defendants herein hereby give notice that they intend to rely upon such
other defenses that may become available or apparent during the course of discovery and thus
reserve its rights to amend their Answer to assert any such defenses.
Respectfully submitted,
{04528481.1} 17
DOCUMENT 78
OF COUNSEL:
CERTIFICATE OF SERVICE
I hereby certify that on August 8, 2018, I electronically filed the foregoing with the Clerk
of Court using the AlaFile system, which will provide notice of such filing to all counsel of
record.
{04528481.1} 18