Keister v. Neurology Consultants of Huntsville, P.C.: Expert Testimony Must Be Read as a Whole on “Better-Position” Causation; Post-Judgment “Clarification” Affidavits Are Untimely When Diligence Could Have Produced Them Earlier

I. Introduction

Parties. Plaintiffs Rebecca Keister and her husband (the “Keisters”) sued Neurology Consultants of Huntsville, P.C. and Jitesh Kar, M.D. (collectively, the “defendants”).

Factual background. After cervical surgery, Mrs. Keister developed balance and gait issues and was referred to neurology. Dr. Kar evaluated her on September 17, 2018, listed multiple sclerosis (“MS”) in the differential diagnosis, and ordered a brain MRI. The September 24, 2018 MRI report described extensive white-matter changes and noted that chronic demyelination due to MS “cannot be excluded,” with an impression that some findings “may reflect” chronic MS. Dr. Kar did not convey those MRI results to Mrs. Keister and did not schedule a defined follow-up.

Mrs. Keister’s symptoms progressed, and in March–April 2020 she was evaluated by neurologist Dr. LaGanke, who ultimately diagnosed MS after further testing and began disease-modifying therapy. The Keisters claimed the two-year delay in evaluation/diagnosis/treatment worsened her MS outcome.

Procedural posture and core issues. The trial court granted summary judgment for the defendants on the ground that the Keisters lacked substantial expert evidence of proximate causation. After judgment, the Keisters filed a “clarification” affidavit from their expert, Dr. Daniel Kantor, which the trial court struck as untimely and, in any event, as improper. On appeal, the Alabama Supreme Court addressed two central questions: (1) whether the post-judgment expert affidavit could be considered; and (2) whether Dr. Kantor’s deposition testimony, read as a whole under the “better-position” principle, created a jury question on causation.

II. Summary of the Opinion

The Supreme Court of Alabama affirmed the order striking Dr. Kantor’s post-judgment affidavit as untimely because it was not newly discovered evidence and could have been submitted earlier with due diligence. But the Court reversed the summary judgment on causation, holding that the defendants and the trial court improperly elevated one snippet of expert testimony (“Do I know specifically in her case, no.”) over the expert’s broader testimony that (a) earlier diagnosis and treatment generally yields better neurological outcomes in MS, (b) Mrs. Keister’s symptoms worsened during the delay, and (c) the expert believed she would have done better with earlier diagnosis/medication. Viewing the testimony as a whole and the evidence in the light most favorable to the Keisters, the Court held that causation should go to a jury.

III. Analysis

A. Precedents Cited

1. Summary-judgment review framework

  • Potter v. First Real Estate Co. (citing American Liberty Ins. Co. v. AmSouth Bank) and Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C. supplied the familiar de novo standard: once the movant shows no genuine issue, the nonmovant must present “substantial evidence,” and reviewing courts view the record in the light most favorable to the nonmovant and draw reasonable inferences the jury could draw.
  • Hooper v. Columbus Reg'l Healthcare Sys., Inc. reinforced that summary judgment is proper only when no material-fact dispute exists and the movant is entitled to judgment as a matter of law.

2. Post-deposition affidavits: clarification vs contradiction; timeliness

  • Wilson v. Teng recognized that a later affidavit may be permitted if it “merely” clarifies ambiguous deposition answers or supplies information not necessarily elicited, but it cannot be used to create a sham issue.
  • Continental Eagle Corp. v. Mokrzycki (quoted in Wilson v. Teng) supplied the limiting rule: a party may not “directly contradict prior sworn testimony to avoid the entry of a summary judgment.”
  • Hannah v. Gregg, Bland & Berry, Inc. drove the decisive point here: a Rule 59(e) motion does not extend the time to file affidavits opposing summary judgment when, with due diligence, the evidence could have been produced before submission of the motion. The Court used Hannah to affirm striking Dr. Kantor’s affidavit because the Keisters offered no adequate reason for waiting until after judgment when the causation “gap” was plainly targeted in the defendants’ motion.

3. “Better-position” causation and the “probable,” not “certain,” standard

  • Spencer v. Remillard was the Court’s primary modern anchor. It reiterated the “better-position” principle and—critically—held that seemingly equivocal causation testimony must be read in totality and in the nonmovant’s favor at the summary-judgment stage, with ambiguities generally left for the jury.
  • Hamilton v. Scott (quoting Parker v. Collins) supplied the core formulation: causation may go to the jury where evidence shows prompt diagnosis and treatment would have placed the patient in a better position than the position resulting from inferior medical care.
  • Hrynkiw v. Trammell reinforced that dilatory diagnosis/treatment claims require sufficient evidence that timely care would have improved the patient’s position.
  • Waddail v. Roberts helped frame the causation inquiry as focusing on whether the defendant’s act/omission lessened the patient’s prospects—useful here for rejecting the defendants’ attempt to shift the inquiry to speculative third-party contingencies.
  • Hill v. Fairfield Nursing & Rehab. Ctr., LLC and Lyons v. Vaughan Reg'l Med. Ctr., LLC (quoting Sorrell v. King, quoting DCH Healthcare Authority v. Duckworth, quoting Parker v. Collins) supplied the doctrinal reminder: Alabama requires evidence that negligence “probably” caused the injury—more than a mere possibility—but not certainty.
  • Breland ex rel. Breland v. Rich was invoked for the general summary-judgment mandate to assume the nonmovant’s version and reasonable inferences in her favor. The Court used this lens to say: at summary judgment, the court must assume Mrs. Keister has MS and had it in 2018.

4. Expert testimony must be evaluated “as a whole” (anti-cherry-picking rule)

  • Giles v. Brookwood Health Systems, Inc. articulated the controlling method: do not view one portion of expert testimony “abstractly, independently and separately” from the balance.
  • Hines v. Armbrester supplied the original phrasing later repeated across cases.
  • Downey v. Mobile Infirmary Med. Ctr. reiterated that medical-malpractice expert testimony must be assessed in its entirety.
  • Graves v. Brookwood Health Servs., Inc. (quoted in Spencer v. Remillard) reinforced that weighing credibility and reconciling tensions in testimony is typically for the jury.

5. Defendants’ reliance on generalized “time matters” cases—and why the Court distinguished them

  • McAfee v. Baptist Medical Center was cited by the defendants for the proposition that generic statements (“sooner is better,” “time is of the essence”) may be too conjectural to establish causation. The Court distinguished McAfee by pointing to the more case-specific symptom-worsening testimony and the expert’s belief that earlier diagnosis/medication would have improved this patient’s outcome.
  • DCH Healthcare Authority v. Duckworth was treated as a poor analogy. In Duckworth, the expert described an eight-hour “optimum” window and the complained-of two-to-three-hour delay still fell within that window; the expert did not explain how the short delay probably changed the outcome. Here, by contrast, the delay was approximately 19 months, and Dr. Kantor testified about multiple worsened symptoms and why MS disease-modifying therapy timing matters.

B. Legal Reasoning

1. The post-judgment affidavit was properly stricken (timing, not just substance)

The Court accepted that Wilson v. Teng allows true “clarification” affidavits in principle. But it did not need to definitively classify Dr. Kantor’s affidavit as clarification versus contradiction because a threshold defect controlled: the affidavit was not timely.

The defendants’ summary-judgment motion squarely relied on a quoted deposition exchange to argue causation failure; the trial court even asked why no affidavit was submitted before the summary-judgment hearing. Counsel’s answer—believing “the balance” of the testimony was “safe”—did not satisfy Hannah v. Gregg, Bland & Berry, Inc.: Rule 59(e) is not a second chance to add non-new evidence that diligent litigation could have offered earlier.

Practical takeaway embedded in the holding: if an expert’s deposition contains a potentially damaging “sound bite,” the nonmovant must address it before submission—through re-direct at deposition, timely errata (where appropriate), or a pre-hearing affidavit—rather than after an adverse ruling.

2. The causation analysis: the Court reframed what must be proven under “better-position”

The Court rejected the defendants’ attempt to multiply contingencies (what Mrs. Keister might have done, what other doctors might have done, whether imaging slices differed, etc.). Under the “better-position” inquiry, the Court focused on a cleaner counterfactual:

What probably would have happened if Dr. Kar had met the standard of care by (i) informing Mrs. Keister of the abnormal MRI suggesting MS as a possibility and (ii) providing follow-up care that would have confirmed an MS diagnosis.

That framing mattered because it kept the causation question tethered to the pleaded breach (failure to disclose results and pursue follow-up) rather than drifting into speculation about unrelated actors.

3. The “whole-testimony” rule defeated cherry-picking of one answer

The defendants’ motion rose or fell on a single excerpt: “Do I know specifically in her case, no.” The Court treated that excerpt as potentially ambiguous when set beside Dr. Kantor’s other opinions, including:

  • his testimony that “the later you start treatment, the worse your neurological outcomes are,” and that Mrs. Keister “would have done better” with earlier diagnosis/medication;
  • his record-based testimony identifying multiple symptoms that worsened during the delay (fatigue, sensory changes, urinary symptoms, cognitive issues, gait/walking, pain, and other complaints);
  • his explanation of MS pathophysiology and why disease-modifying therapy timing affects outcomes (“time is brain,” ongoing damage “beneath the surface,” disability accumulation with relapses); and
  • his testimony that the 2018 MRI’s lesion location/distribution/shape looked more suspicious for MS than ordinary “wear and tear,” supporting the need for follow-up and earlier diagnostic closure.

Applying Giles v. Brookwood Health Systems, Inc., Hines v. Armbrester, Downey v. Mobile Infirmary Med. Ctr., and the synthesis quoted in Spencer v. Remillard, the Court held that the expert’s testimony must be evaluated in totality. If, when so read, the testimony supports a reasonable inference of “probable” causation, summary judgment is improper even if one isolated exchange can be read differently.

4. Why “I don’t know specifically” did not necessarily negate “probability”

The Court emphasized the distinction (also reflected in Hill v. Fairfield Nursing & Rehab. Ctr., LLC) between: (a) an expert admitting he cannot say with certainty what would have happened, and (b) an expert conceding he cannot say it was probable. The “probable cause” standard does not require certainty.

Because Dr. Kantor elsewhere said he believed earlier diagnosis/treatment would have improved this patient’s outcome, the contested answer could reasonably be taken as a non-certainty concession rather than a retraction of probability. Under Spencer v. Remillard, that kind of interpretive conflict is classically for the jury.

C. Impact

1. Reinforcement—and sharpening—of the anti-cherry-picking rule in causation disputes

Keister strengthens the practical force of Alabama’s “whole testimony” doctrine at the summary-judgment stage, especially where defense motions isolate one Q&A to argue the expert “walked back” causation. Trial courts are reminded that credibility and reconciliation of internal tensions in testimony are typically jury functions.

2. A clarified lens for “better-position” causation: focus on compliant care by the defendant

The decision pushes back against a defense strategy of reframing causation as a chain of speculative “what-ifs” involving hypothetical third-party clinicians. Where the alleged breach is failure to disclose results and to provide follow-up, the relevant causation inquiry is whether proper disclosure and follow-up by the defendant probably would have placed the patient in a better position.

3. A litigation-management lesson: do not “save” clarifications for post-judgment

On the other side of the ledger, Keister is a cautionary precedent for plaintiffs: even if an affidavit might qualify as “clarification” under Wilson v. Teng, it may be excluded under Hannah v. Gregg, Bland & Berry, Inc. if it is not timely and could have been produced before the summary-judgment submission.

IV. Complex Concepts Simplified

  • Differential diagnosis. A clinician’s list of possible causes for a patient’s symptoms that must be evaluated and “ruled in” or “ruled out” with testing and follow-up.
  • White-matter lesions / demyelination. “White matter” is brain tissue rich in nerve fibers; “lesions” are spots that appear abnormal on MRI. “Demyelination” refers to damage to the myelin sheath around nerves—often associated with MS. Importantly, lesions can be “non-specific” (i.e., not uniquely diagnostic), which is why MS diagnosis requires clinical correlation and additional testing, not MRI alone.
  • Standard of care (in this case’s posture). The defendants did not challenge breach for summary-judgment purposes; the dispute centered on whether the alleged breach (failure to inform and follow up) caused harm.
  • “Better-position” principle. In delay-of-diagnosis/treatment cases, a plaintiff need not prove the patient certainly would have avoided injury; it is enough to produce substantial evidence that timely, proper care probably would have left the patient in a better condition than the condition resulting from inferior care.
  • “Probable” vs “possible” causation. Alabama requires more than a mere possibility. But “probable” does not mean “certain.” Experts often cannot promise a counterfactual outcome with certainty; they must, however, support that the outcome probably would have been better with proper care.

V. Conclusion

Keister v. Neurology Consultants of Huntsville, P.C. delivers two intertwined procedural-and-substantive lessons for Alabama medical-malpractice litigation. First, a post-judgment expert “clarification” affidavit is properly struck when it is not newly discovered evidence and could have been offered earlier with diligence (Hannah v. Gregg, Bland & Berry, Inc.), even if such affidavits can sometimes be permissible in principle (Wilson v. Teng). Second—and more consequentially for future delay-of-diagnosis cases—the Court reaffirmed that causation opinions must be evaluated from the expert’s testimony as a whole (Giles v. Brookwood Health Systems, Inc. and its line), not by extracting one potentially ambiguous answer to defeat a “better-position” claim. Where the totality of testimony supports a reasonable inference that timely disclosure and follow-up probably would have placed the patient in a better position, the causation question belongs to the jury, not to summary judgment.