No. 77,6001
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
AMANDA BUTLER, a minor, by and through
COMMERCE BANK, N.A., her Conservator,
Appellant,
v.
HCA HEALTH SERVICES OF KANSAS, INC.,
a Kansas Corporation, d/b/a WESLEY MEDICAL CENTER;
SCOTT D. DESJARLAIS, M.D.; and DAVID D. DUKE, M.D.,
Appellees.
SYLLABUS BY THE COURT
1.
The standards for granting a motion for new trial because of juror misconduct are discussed and applied.
2.
In considering a motion alleging juror misconduct and/or a motion to recall jurors, affidavits of attorneys should not be considered absent extraordinary circumstances. In this case, the trial court did not err in refusing to consider the affidavit of counsel alleging juror misconduct when the attorney's affidavit contained allegations not confirmed in affidavits obtained from jurors.
3.
The standards for the admissibility of affidavits from jurors under K.S.A. 60-441 and K.S.A. 60-444(a) are discussed and applied.
4.
Under the facts of this case, a newspaper article relating to a medical issue left in the jury room for a brief period during the trial was not grounds for a new trial when the article did not undermine plaintiffs' theory of the case and there was no indication the article was discussed during deliberations.
5.
Remarks made by jurors during deliberations about matters not in evidence does not vitiate their verdict absent an affirmative showing the remarks prejudicially affected the verdict.
6.
The standards for granting or denying motions to amend pretrial orders are stated and applied.
7.
In order for reversible error to arise due to closing statements of counsel, the improper remarks must have likely changed the result of the trial. Where the court sustains an objection to remarks made in closing statement, the jury will be presumed to have disregarded the statement to which the objection was sustained.
8.
K.S.A. 60-215(b) mandates that a pretrial order be amended to include any matter tried by express or implied consent of the parties. In reviewing a trial court's decision as to whether a new issue was tried by express or implied consent, the appellate court's review is limited to an abuse of discretion standard.
9.
Decisions regarding the control and conduct of discovery in a civil case are matters left to the broad discretion of the trial court; decisions regarding discovery matters will be reversed on appeal only upon a clear showing of abuse of discretion.
10.
The attorney-client privilege belongs to the client, and only the client can waive the privilege. Disclosure of privileged material by an attorney without the client's consent does not waive the privilege.
11.
Under the facts of this case, any waiver of the attorney-client privilege by the client was withdrawn before any disclosure was made. A waiver of the privilege may be withdrawn at any time before it has been acted or relied upon and where no advantage has accrued to either litigant as a result of the waiver.
12.
The extent of the examination of prospective jurors during voir dire is within the sound discretion of the trial court. Appellate courts will not interfere with this process unless a clear abuse of discretion is established.
13.
Under the facts of this case, a trial court's ruling barring a party from inquiring about the actual verdict rendered by a juror while serving as a juror in an earlier case was not an abuse of discretion.
14.
The scope of direct and cross-examination of a witness is subject to reasonable control by the trial court. The exercise of such control will not constitute reversible error absent a showing of abuse of discretion resulting in prejudice.
15. The admissibility of expert testimony is a matter within the broad discretion of the trial court. A trial court's ruling admitting such evidence will not be reversed absent an abuse of discretion.
16.
The standards applicable to motions for new trial on the grounds the verdict was contrary to the weight of the evidence are discussed and applied.
Appeal from Sedgwick District Court; DAVID W. KENNEDY and MICHAEL CORRIGAN, judges. Opinion filed August 6, 1999. Affirmed.
Randall E. Fisher, of Law Offices of Randall E. Fisher, of Wichita, and Gerald Michaud, of Derby, for appellant.
Eldon L. Boisseau, Anne M. Hull, and Wm. Paul Bouda, of Turner & Boisseau, Chartered, of Wichita, for appellee Scott D. Desjarlais, M.D.
Christopher A. McElgunn and Gary M. Austerman, of Klenda, Mitchell, Austerman & Zuercher, of Wichita, for appellee David D. Duke, M.D.
Michael L. North, John H. Gibson, and Judd A. Liebau, of Boyer, Donaldson & Stewart, of Wichita, for appellee HCA Health Services of Kansas, Inc., a Kansas corporation, d/b/a Wesley Medical Center.
Before GERNON, P.J., PADDOCK, S.J., and DONALD R. NOLAND, District Judge, assigned.
GERNON, J.: Amanda Butler, a minor, by and through her conservator, Commerce Bank, N.A., appeals from a jury verdict and various pretrial and post-trial rulings in favor of the defendants, HCA Health Services of Kansas, Inc., d/b/a Wesley Medical Center (Wesley); Scott D. Desjarlais, M.D.; and David D. Duke, M.D., in a medical malpractice case.
Amanda Butler (Butler) was born to Alesia and Michael Butler at Wesley in August 1991. During Alesia's labor and delivery, she was monitored primarily by Dr. Desjarlais, a first-year resident, and Dr. Duke, a third-year resident. These physicians contracted with the Wichita Center for Graduate Medical Education (WCGME), which administered the residency program. WCGME, which was organized by Wesley, other medical organizations, and the University of Kansas School of Medicine in Wichita, operates the obstetrics/gynecology residency program at Wesley. WCGME is not a party to this case.
Alesia Butler arrived at Wesley on the day of Butler's delivery at 12:25 a.m. Approximately 12 hours later, at 12:20 p.m., she was fully dilated and 100% effaced. At this point, she had reached the second stage of labor and was taken to the delivery room. At 2:30 p.m., Pitocin, a drug which stimulates or augments contractions, was administered on Dr. Duke's orders and continued until 3:50 p.m. At that time, Dr. Duke determined that a caesarean section was necessary to deliver Butler. At the time the c-section was performed, Butler's head was tightly engaged in her mother's pelvis, and the delivery team had difficulty removing her. Upon Dr. Duke's instructions, a nurse inserted her hand in Alesia's vagina to push the baby's head up out of the pelvis. After an additional incision, Butler was finally removed through her mother's abdomen. The process took about 2 to 3 minutes.
It was immediately apparent that Butler was having problems. She was blue in color and seemed to have a decreased movement in her left arm. She had an initial Apgar score of two, the next lowest score for a live birth. She also had bruising around her head.
Shortly after birth, Butler was transferred to the newborn intensive care nursery. She was having trouble breathing and had poor muscle tone. Since her birth, Butler has been diagnosed as having a severe form of cerebral palsy and is moderately retarded. She has little or no functional ambulation due to the fact that at least three of her limbs are impaired. She has also exhibited behavioral problems. Experts testified that Butler would never be capable of living independently.
Butler and her parents filed suit against Wesley, Dr. Desjarlais, and Dr. Duke in September 1993. The petition asserted claims on behalf of Butler and her parents for negligence, negligent supervision of the resident physicians, and violation of the Emergency Medical Treatment and Active Labor Act of 1986.
A pretrial conference was held in November 1994, and a pretrial order was entered thereafter. Subsequently, Commerce Bank, N.A., was appointed as conservator of Butler's estate and was substituted as the representative of Butler. Butler's parents also asked that their individual claims be dismissed. The motion to substitute and to dismiss the parents' claims was granted the day before the trial.
Also on the day before trial, motions in limine and other pretrial motions were heard. The trial consumed a total of 25 court days.
After approximately 15 hours of jury deliberation, the jury returned the verdict form, stating that 10 jurors had agreed that no one was at fault in connection with Butler's condition.
A journal entry was filed reciting the jury's verdict, and Butler filed a motion to recall the jurors and a motion for new trial or for judgment n.o.v., raising a number of claims, including claims now asserted on appeal.
Hearings on the post-trial motions were held, and the district court struck an affidavit from Butler's attorney, Gerald Michaud, and denied Butler's motion alleging juror misconduct. All other issues contained in the post-trial motions were denied.
Butler filed a notice of appeal. Dr. Desjarlais also filed a notice of cross-appeal, challenging the trial court's denial of his motion for summary judgment. Dr. Desjarlais has failed to brief any issues on his cross-appeal and, therefore, the cross-appeal will be considered to have been abandoned. See Crawford v. Board of Johnson County Comm'rs, 13 Kan. App. 2d 592, 594, 776 P.2d 832 (1989).
New Trial/Recall of Jurors
Butler's primary issue on appeal is whether the trial court erred in denying her motion for new trial and/or her motion to recall the jury based upon allegations of jury misconduct. The jury misconduct alleged by Butler included: (1) A juror brought a news story summarizing a medical journal article on fetal heart monitors to the jury room one day during the trial; (2) during deliberations, the jury discussed a settlement offer allegedly rejected by Butler; (3) some jurors expressed concerns or disagreements about the court's instructions; (4) during deliberations, the jury discussed government benefits available to Butler; (5) during deliberations, the jury discussed the possible effect of the verdict on the defendant physicians; (6) the jurors learned that one of the defendants' expert witnesses delivered the baby of a juror's wife during the trial; and (7) several jurors told Butler's counsel that the instructions were not adequate and the verdict was improper.
Whether to grant a new trial is a matter left to discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of that discretion. Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 458, 856 P.2d 906 (1993). Abuse of discretion exists when the court's actions are arbitrary, fanciful, or unreasonable, or such that no reasonable person would take the view adopted by the district court. Farm Credit Bank of Wichita v. Zerr, 22 Kan. App. 2d 247, 255, 915 P.2d 137 (1996). Juror misconduct in civil and criminal cases is not grounds for reversal, new trial, or mistrial, unless it is shown to have substantially prejudiced a party's rights. The party claiming prejudice has the burden of proof. State v. Griffin, 262 Kan. 698, 704, 941 P.2d 941 (1997).
Butler contends that the court was required to find that the juror misconduct was harmless beyond a reasonable doubt. She relies on Saucedo v. Winger, 252 Kan. 718, 732, 850 P.2d 908 (1993). However, the Saucedo case involved juror misconduct of the most egregious sort. In that case, a juror relayed information from a family member who knew one of the witnesses, indicating that the witness lied; another juror suggested that the plaintiff's husband's uncle was a cocaine dealer and that the plaintiff's husband may have died of a cocaine overdose. The Kansas Supreme Court has not used the reasonable doubt standard in any case before or since Saucedo.
Here, Butler presented the affidavits of three jurors and of her attorney, Michaud. The trial court refused to consider the affidavit of Michaud. Absent extraordinary circumstances, affidavits of attorneys are not considered in determining whether juror misconduct has occurred. Counsel's affidavits usually contain mere hearsay, while the courts in these situations prefer affidavits from persons with personal knowledge of the facts. In addition, "[v]erbal comments to counsel by jurors following a trial are often made under some stress, may be easily misunderstood or subject to more than one interpretation." Walters v. Hitchcock, 237 Kan. 31, 36, 697 P.2d 847 (1985). The trial court's refusal to accept Michaud's affidavit is especially warranted in that his affidavit contains some allegations not confirmed in the jurors' affidavits.
The defendants contend that all or part of the jurors' various affidavits are inadmissible. K.S.A. 60-441 precludes consideration of evidence which shows "the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined." (Emphasis added.) K.S.A. 60-444(a) allows, however, evidence as to "conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441." (Emphasis added.) The line of demarcation between when such evidence is proper under K.S.A. 60-444(a) and inadmissible under K.S.A. 60-441, however, is not a bright line. Verren v. City of Pittsburg, 227 Kan. 259, 260-61, 607 P.2d 36 (1980).
In this case, the trial court had the benefit of affidavits from 7 of the 12 jurors. These affidavits were drafted by the attorneys involved in this case. As recently noted by the Supreme Court, juror affidavits filed in connection with motions for new trial "are seldom in the unprompted wording of the parties, but rather the products of our adversarial system." Jones v. Sigg, 261 Kan. 614, 619, 930 P.2d 1077 (1997). Such affidavits must be harmonized as much as possible to determine what happened. 261 Kan. at 619. The proffered affidavits must be sufficiently detailed to demonstrate just what the jurors did to determine whether their actions could constitute misconduct. Cornejo v. Probst, 6 Kan. App. 2d 529, 537, 630 P.2d 1202, rev. denied 230 Kan. 817 (1981). It is up to the trial court to determine the credibility of the witnesses in claims of juror misconduct. State v. Heiskell, 21 Kan. App. 2d 105, 109, 896 P.2d 1106 (1995).
News Summary Brought in During Trial
Butler attacks the conduct of the juror who brought to the jury room a news summary she obtained off an internet news service. While the actual document was not available, the juror indicated in her affidavit that it was a more summarized version of a newspaper article attached to her affidavit. That article indicates that a study found that fetal heart monitoring does a poor job of detecting fetal distress before it leads to brain damage.
Butler contends that the juror's conduct in bringing outside information was inherently prejudicial because it related to a hotly contested issue in the case. Clearly, each parties' experts differed about the causation of Butler's injuries. Butler's experts testified that her cerebral palsy and brain damage was caused by excessive trauma to her head during the prolonged second stage of labor and/or the pushing needed to remove her from her mother's pelvis during the c-section. Defendants' expert testified that based on the imaging studies, Butler's condition was caused by a post-birth infarction rather than trauma during the delivery.
However, it appears undisputed that all of the experts testified that the fetal heart monitor strips taken throughout Alesia's labor showed the fetus was not showing any distress. Because the fetal heart monitor readings were normal, the article in question would work more against the defendants than Butler; the defendants relied heavily on the normality of Butler's readings to show the absence of negligence. In any event, the jurors' affidavits did not clearly show that any juror discussed the article during deliberations.
In Cleveland v. Wong, 237 Kan. 410, 425, 701 P.2d 1301 (1985), the Supreme Court held that it was not reversible error to deny a new trial based on newspaper or magazine articles brought into the jury room during deliberations. In Cleveland, the court noted that while a newspaper article was mentioned during deliberations, the jurors indicated it was not considered and nothing showed that it had any effect on the jury's verdict. Moreover, it was not error to deny a new trial because of an article contained in a magazine in the jury room when there was no evidence that any juror saw or read the article. 237 Kan. at 425.
The record reflects that the juror brought the news summary to the jury room for 1 day. It appears that only one or two other jurors actually looked at the substance of the article. Moreover, there is no indication the news summary itself was discussed during deliberations. Finally, testimony from Butler's own expert witness on causation admitted that in a lot of cases of children with neurologic deficits, the cause of the deficit is never known or the damage is not preventable. Thus, the fact the jurors talked about possible and unknown causes of cerebral palsy only means they were discussing the evidence presented at trial. Without evidence of a specific referral to the article, Butler cannot show prejudice from the juror's conduct.
Rejected Settlement Offer; Impact on Doctors' Careers
Butler also complains that during deliberations, the members of the jury discussed information two of them overheard about a settlement offer Butler had purportedly rejected. The affidavits indicate that comments were made that Butler was greedy and should have taken the settlement. Another juror apparently also expressed concern that a verdict in favor of Butler might negatively affect the defendant doctors' medical careers. Reading the affidavits together, however, it appears these comments invoked only very short discussions, that jurors reminded each other that these matters could not be considered, and that the comments arose when a juror suggested awarding Butler monetary damages despite the lack of fault on the part of the defendants.
Kansas appellate courts have dealt with numerous cases where jurors have been found to have discussed such matters during deliberations. See, e.g., Folks v. Kansas Power & Light Co., 243 Kan. 57, 76, 755 P.2d 1319 (1988), overruled on other grounds York v. InTrust Bank, N.A., 265 Kan. 271, 304, 962 P.2d 405 (1998) (discussion about including attorney fees in damage award); Bohannon v. Peoples Taxicab Co., 145 Kan. 86, 87, 64 P.2d 1 (1937) (jurors discussed the mental disorders of family members while determining plaintiff's damages in a personal injury case involving claims of mental distress); Newell v. City Ice Co., 140 Kan. 110, 111, 34 P.2d 558 (1934) (jurors discussed the likelihood defendant's vehicle carried insurance); Anderson v. Thompson, 137 Kan. 754, 758, 22 P.2d 438 (1933) (discussing dislike for party's attorney); Martin v. Board of Johnson County Comm'rs, 18 Kan. App. 2d 149, 162, 848 P.2d 1000 (1993) (discussions of attorney fees and taxes); Cornejo, 6 Kan. App. 2d at 538 (discussed taxability of award and payment of attorney fees).
In such cases, the courts have consistently held that remarks by one or more jurors about outside matters does not vitiate the verdict absent an affirmative showing the remarks prejudicially affected the verdict. Bohannon, 145 Kan. at 88; Newell, 140 Kan. at 113; Anderson, 137 Kan. at 758; Martin, 18 Kan. App. 2d at 162; Cornejo, 6 Kan. App. 2d at 540. Defendants point out an apt quotation from an older Supreme Court case:
"[T]he jury being what it is, jurors will act like human beings in the jury room, and will indulge in bluster and hyperbole and animated irrelevancies. Not only does the law presume a juror respects the obligation of his oath and votes his convictions, but generally he in fact does so; and due allowance must be made for some exuberance in jury-room discussion or the court must keep on granting new trials in important cases until a perfectly spiritless jury can be secured." Anderson, 137 Kan. at 758.
The affidavits, when read together, fail to establish that any of these remarks involved anything more than off-the-cuff comments during the jury's deliberations of the real issues. As a matter of reality, most juries probably discuss whether the parties had tried to settle a case and the effect that a verdict would have on either party. We find that the affidavits fail to establish that the jury relied on these remarks in making its final determination as to liability.
Availability of Government Benefits
Butler also complains of the remark made by another juror, indicating that Butler would be eligible for government benefits. Her complaint is that the juror's remarks were based upon her personal knowledge and improperly injected collateral source issues into the deliberations.
The record reflects that the juror disclosed during voir dire that she was employed by the United States Department of Agriculture and worked with school lunch programs funded through her agency. The fact that the juror disclosed this information during voir dire should have apprised Butler that she might have personal knowledge about government benefits available to poor families. Cf. Cleveland v. Wong, 237 Kan. at 425 (rejecting claim of juror misconduct when nurse on jury defined medical terms for other jurors; parties knew of her background, and there was no indication she used her knowledge to influence other jurors).
The record also reflects that Butler brought up the welfare status of Alesia throughout the trial. The jury panel was told during voir dire that Butler's parents were poor people and had a medical card from the county health department; they were specifically asked if they believed that poor people did not deserve the same level of health care services as others. Butler also elicited in Aleisa's testimony that they received medical treatment through a medical card. In closing, Butler's counsel noted that Butler's family got medical treatment through the county health clinic. Accordingly, Butler's own counsel, to some extent, placed the idea of welfare benefits in the minds of the jury.
The affidavits indicate that any discussion during deliberations about government benefits was brief, and the jurors understood the matter could not be considered by them in rendering a verdict. Moreover, Butler discussed the benefits her family already was receiving at the time of her birth. In light of the average person's knowledge that a broad range of benefits exist for poor people, a juror's reference to her personal knowledge was not prejudicial.
Disagreements with Instructions
Butler also takes issue with one juror's apparent comment that he/she disagreed with the court's collateral source instruction. Butler's reliance on this disagreement with the instructions does not support her claim that a new trial was required. The only specific instructions mentioned in the affidavits which caused a juror or jurors problems dealt with the collateral source rule. However, the jury never reached the issue of damages.
In addition, the verdict is not so contrary to the evidence that it suggests a conspiracy to disregard the court's instructions. Absent a conscious conspiracy to disregard instructions, it is not an abuse of discretion to refuse to delve into the mental processes of the jury, and the court did not err in denying the motion for new trial. State v. Wainwright, 18 Kan. App. 2d 449, 453, 856 P.2d 163 (1993).
Juror's Baby
During voir dire, Butler's counsel asked every juror whether they had children, whether there was any problems during the labor and delivery, and the identity of the obstetrician involved. One juror informed counsel that his wife was 8 months' pregnant and their obstetrician, Dr. Westbrook, had an office in Wichita. The juror indicated that he did not know any of the defendants or any of the local expert witnesses. Sometime during the trial, the juror took his wife to another Wichita hospital for the delivery of their baby. Dr. Westbrook was unavailable, and Dr. Bammel came to deliver the baby; Dr. Bammel turned out to be an expert witness for one of the defendants. The juror had never met Dr. Bammel before. Although the name sounded familiar, the juror did not mention the trial to Dr. Bammel during the delivery.
Upon his return to the courthouse, the juror told his fellow jurors that Dr. Bammel delivered the baby. He then told the court. With the parties' agreement, the trial judge questioned the juror alone as to whether he could remain fair and impartial and whether he would weigh Dr. Bammel's testimony based on the evidence heard during the trial. The juror assured the court that he could. He agreed not to mention Dr. Bammel's involvement with his baby to his fellow jurors again. The court discussed its voir dire with the attorneys, and plaintiff's counsel indicated he was satisfied. However, the judge failed to tell counsel that the juror had already mentioned the matter to his fellow jurors. Butler's counsel had previously told the court he was willing to "rely on the court's judgment and never mention this again as to whether or not he can still be used as a juror."
Although Butler now claims that Dr. Bammel's involvement in this delivery was an amazing coincidence, this is not consistent with the record. The court specifically asked Dr. Bammel, outside the presence of the jury, about his participation in the juror's wife's delivery. Dr. Bammel testified that Dr. Westbrook was his partner, that Dr. Westbrook was out of town when the juror's baby came, and that he was the physician in the group on call at the time. Dr. Bammel was not aware that the juror was serving on this jury.
Butler claims in her reply brief that it is irrelevant that Dr. Bammel's delivery was not discussed during the jury deliberations. Butler's counsel complains that they did not learn about it until after Dr. Bammel completed his direct testimony. Butler cites nothing in the record to support this assertion. The juror clearly advised the parties of the late stage of his wife's pregnancy during voir dire and the identity of her obstetrician. Butler could have readily determined whether any of the defendants or witnesses practiced with Dr. Westbrook. Moreover, Butler's counsel could have requested a mistrial at the time they learned of the situation but failed to do so.
Butler's claim was also weakened by the fact that she permitted another juror who knew a defense expert to remain on the jury. That juror had revealed during voir dire that one of her children was delivered by Dr. Brown and that she had Pitocin during that delivery, which resulted in a c-section. The fact that none of the jurors referred to the treatment they received from defendants' experts implies that the jurors did not consider giving additional weight to Dr. Bammel's testimony because of the delivery.
Timing of the Misconduct
Finally, Butler's reply brief emphasized that all of these improper discussions occurred at the very end of the jury's deliberations and that all prior votes on the liability issue had been in favor of Butler. Counsel's argument is a substantial exaggeration of the actual statements in the jurors' affidavits. Butler's affidavits indicate that these discussions happened on the second day of deliberations but fail to state when during the day they occurred. At least one of the jurors' affidavits indicates these brief remarks were made at the end of the first day of deliberations or the very beginning of the second day. Counsel drafted the jurors' affidavits. Harmonizing the affidavits indicates that any improper comments were made early in the second day of deliberations and that the jurors continued to deliberate until the end of the day.
Likewise, the various affidavits indicate that several votes were taken on the liability question, but only two are specifically discussed. The first vote was taken at the very beginning of deliberations without any discussion of the evidence or the instructions. The only other vote specifically mentioned was the vote at the end of the second day, which was 10 to 2 in favor of defendants. The affidavits do not mention the results of any intervening votes by the panel during the 2 days of deliberations.
Conclusion
Contrary to Butler's assertions, the standard of review in this situation is whether the district court abused its discretion. Based on the entire record, the district court could have legitimately either granted or denied the motion. Accordingly, we conclude the court's denial of the motion to recall the jury and the motion for new trial was not an abuse of discretion.
Motion to Amend Pretrial Order
Butler next contends that she was substantially prejudiced when the district court denied her motions to amend the pretrial order to add new parties and new theories of recovery. She complains that the district court erred in denying (1) her motion to amend the pretrial order filed prior to trial; and (2) her motion to amend to conform to the evidence at the conclusion of the trial.
Pretrial Motions to Amend
Suit was originally filed in September 1993. Extensive written discovery was exchanged and numerous depositions were scheduled. Discovery was ordered to terminate by August 31, 1994, and the parties were asked to submit a pretrial order by September 1, 1994.
Butler's proposed pretrial order was filed on November 17, 1994. This proposed pretrial order set forth 16 allegations of negligence against Drs. Duke and Desjarlais. She also alleged Wesley and its personnel were negligent in a number of respects. Butler's proposed pretrial order noted that while discovery was not complete, the case was ready for trial except for some scheduled dep