In this medical malpractice action, Collins sued Herring Chiropractic and Ricardo Herring (“defendants”) alleging defendants’ treatment of her knee injury fell below the standard of care.  Specifically, she alleged that she was being treated with a cold pack applied directly to her knee, and that the cold pack was not properly thawed before application.  She alleged this improper application of the cold pack caused blistering on her knee that led to permanent scarring.

In their summary-judgment motion, the defendants argued that Collins had not produced any evidence demonstrating that Dr. Herring's treatment fell below the applicable standard of care. The defendants argued that Collins failed to present testimony from a similarly situated expert witness because Collins had not designated an expert witness as required under the Alabama Medical Liability Act ("the AMLA"), § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975, to testify that Dr. Herring breached his duty of care in treating Collins. Defendants further argued that Plaintiff had failed to provide expert testimony on the issue of causation as required under the AMLA.

In response, Collins argued that she was not required to provide expert testimony on the issue of standard of care or causation because, as an exception to the rule, the facts of her treatment and subsequent injury were within the common knowledge of a lay juror. The Court agreed with Collins, and held that “blistering and subsequent scarring does not ordinarily occur following the application of a cold pack, absent negligence” and that a layperson could “reliably determine the issue of causation without expert testimony.”

Hendon filed a claim asserting claims against Holloway for malicious prosecution and harassment arising out of criminal proceedings against Hendon that were initiated by Holloway. The Court granted Holloway’s Motion for Summary Judgment. On appeal, Hendon argued that, because Holloway moved only for a partial summary judgment, the trial court erred in entering the summary judgment as to both of her claims. Specifically, Hendon pointed out that nothing in the motions or in Holloway's affidavit addressed the malicious-prosecution claim. Therefore, Hendon says, Holloway did not meet her burden of showing that she was entitled to a judgment as a matter of law on the malicious-prosecution claim.

• "The elements of malicious prosecution include:
  
  "'(1) that the present defendant instituted a prior judicial proceeding against the present plaintiff; (2) that in instituting the prior proceeding the present defendant acted without probable cause and with malice; (3) that the prior proceeding ended in favor of the present plaintiff; and (4) that the present plaintiff was damaged as a result of the prior proceeding.' 
  
  "Wal–Mart Stores, Inc. v. Goodman, 789 So. 2d 166, 174 (Ala. 2000) (citing Delchamps, Inc. v. Bryant, 738 So. 2d 824, 831–32 (Ala. 1999))."

Hendon alleged in her complaint that Holloway had initiated a criminal proceeding against her in bad faith and without probable cause. That prior proceeding ended with a verdict and judgment in favor of Hendon. Hendon also asserted that she had suffered extreme duress and mental anguish as a result of the criminal proceeding against her. As such, the Court held that “there is no question that Hendon clearly set forth a claim of malicious prosecution in her complaint.”

In reviewing Holloway's motion for a partial summary judgment, the Court held that “Holloway's affidavit submitted with that motion reveals no evidence that could be construed as a refutation of Hendon's malicious-prosecution claim.” Thus, Holloway failed to meet her burden of demonstrating that no genuine issue of material fact existed or that she was entitled to a judgment as a matter of law on the malicious-prosecution claim, as required by Rule 56, Ala. R. Civ. P. Accordingly, the Court concluded that the trial court erred in entering a summary judgment in favor of Holloway as to Hendon's claim of malicious prosecution against her.