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Williams v. Lawton

October 26, 2007

RICHARD WILLIAMS, APPELLEE/CROSS-APPELLANT,
v.
DR. STEVE LAWTON, APPELLANT/CROSS-APPELLEE.



Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge.

SYLLABUS BY THE COURT

1. Where an appealable issue in an interlocutory appeal is inextricably intertwined with other issues that do not themselves meet the criteria for an interlocutory appeal, the latter issues may also be reviewed to allow meaningful review and promote judicial economy.

2. The permissible scope of an interlocutory appeal is not limited to the precise questions that may have been certified by the district court, but rather the appeal should be limited to the order or orders implicated by the certified questions.

3. In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue under K.S.A. 60-3412 unless at least 50% of such person's professional time within the 2-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.

4. Legislative history would suggest that hired guns or professional witnesses who do not maintain a clinical practice may not have been intended to meet the eligibility standards of the statute.

5. Before consulting legislative history, we examine the statutory language to see if it is capable of more than one meaning. Generally, courts employ a presumption that the legislature expressed its intent through the plain language employed within the statute. We do not add something to statutory language that is clearly not present in the statute.

6. There is no requirement within the express language of the K.S.A. 60-3412 that the proposed expert witness devote any specific amount or percentage of his or her time to the professional practice of the healing arts at issue.

7. Testimony or affidavits of jurors impeaching their verdict will not be received where it is not evident that the jury acted in contravention of the court's instructions and the evidence. This protection is to insure that the mental processes of the jurors in reaching a verdict or the factors which influenced their mental processes cannot be inquired into for the purpose of impeaching a verdict. The right to inquire into the jury's basis for reaching a verdict would open the door to the most severely harmful methods for tampering with jurors and would allow a dissatisfied juror to destroy a verdict to which that juror had given his or her assent under sanction of the jurors' oath.

8. Public policy forbids the questioning of a juror on the mental processes used in reaching a verdict since there is no possible way to test the truth or veracity of the answers.

9. Where the jury is polled and each juror acknowledges that the verdict is his or her verdict, this consideration must be weighed against a later challenge to the verdict.

10. The better practice dictates that systematic contact of the entire jury, juror by juror, with the clear intention of exploring grounds to impeach the verdict be undertaken only with the knowledge and consent of the court. Where an affidavit results from such an effort without approval of the court, the affidavit should be viewed with a healthy amount of circumspection.

11. Evidence suggesting juror misconduct must be sufficiently detailed to demonstrate just what the jurors did to determine whether their actions could constitute misconduct.

12. Jurors may be recalled for posttrial hearings only by order of the court after a hearing on a request to recall the jury. A recall of the jury is not a routine matter. Jury service is a public duty of citizens, and recall of jurors after their service has ended to testify as to events occurring in the jury room during deliberations is a serious step. That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party's hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order.

13. Juror misconduct is not grounds for a new trial unless it is shown to have substantially prejudiced a party's rights.

14. With respect to allegations of juror misconduct, an affidavit may not be used to impeach a verdict unless it establishes that the jury entered into a conscious agreement to circumvent the deliberation process by engaging in conduct which produces a quotient verdict. Mere allegations of averaging do not establish an impermissible quotient verdict.

15. The impropriety of a quotient verdict consists of the advance agreement of the jurors to be bound by the quotient so determined and to then return the quotient as a verdict, without further suitable deliberation. If there is no antecedent agreement between the jurors, nor commitment to be bound by the quotient so found, resort to the averaging process is entirely permissible. So long as there is an opportunity for full discussion and deliberation concerning the question of damages and each juror gives his or her own independent agreement to the sum arrived at, after he or she knows what the sum is, there is no misconduct and no grounds for a new trial.

16. Under the facts of this case, where the verdict itself had no obvious impeachable qualities, the jury was polled and individually endorsed the verdict, there was no reported jury misconduct, there was no consent of the court to juror contact, the juror contact was initiated by counsel rather than a juror, and a juror affidavit resulted from a systematic attempt to contact all jurors by counsel with an obvious intent to challenge the verdict, the court must be cautious in considering and giving credence to the affidavit. In the absence of significant corroboration of the averments in such an affidavit, recall of the jury based on such an affidavit must be discouraged.

17. Supreme Court Rule 181 (2006 Kan. Ct. R. Annot. 227) clearly prohibits jurors being called for hearings on posttrial motions without a court order after a motion and hearing to determine whether any of the jurors should be recalled.

18. Our appellate courts have not addressed the proper technique for questioning jurors in a recall, beyond the general rule that the mental processes of the jury not be invaded. Where the district court conducted the questioning itself without direct participation of counsel, we decline to hold that this approach to juror questioning was itself an abuse of discretion.

19. Questions probing the thought processes of the jurors are prohibited by our case law, even in the context of exploring whether there was an impermissible quotient verdict.

20. Where jurors are not in complete agreement in advance to be bound by a quotient verdict and there is no collective understanding as to the effect of averaging, there is no conscious conspiracy to disregard and circumvent the instructions on the law given by the court and thus no quotient verdict.

21. So long as averaging is merely a tool for discussion and not an exclusive and preordained formula, the result is not prohibited. Moreover, where the jurors discussed and voted on the final result of averaging before returning the verdict, there has been no quotient verdict.

The opinion of the court was delivered by: Greene, J.

Reversed and remanded with directions.

Before RULON, C.J., GREENE, J., and LARSON, S.J.

In this interlocutory appeal in a medical malpractice case, the district court certified three questions for review, all of which arise from its order granting a new trial after a verdict finding defendant Dr. Steve Lawton 54% at fault for injuries to plaintiff Richard Williams and awarding $200,000 for past and present pain and suffering and $1,750,000 for future pain and suffering. We review and answer the certified questions, but we also view the certified questions as being inextricably linked to the entirety of the order granting a new trial, and we reverse that order and remand with directions to reinstate the verdict of the jury.

Factual and Procedural Background

Williams was an adult father of four upon becoming a patient of Lawton on January 24, 2002, complaining of a urological lesion that would not heal. The medical history form did not specifically request information about diabetes, and no urinalysis was ordered by Lawton. On February 1, 2002, Lawton performed an outpatient surgery on Williams. Thereafter, a host of severe problems developed including pain, an unusual protrusion, urination issues, a lack of sensation, and other unusual symptoms. Williams remained in Lawton's care until May 2002, after which he sought advice from another physician.

On August 11, 2004, Williams filed an action against Lawton alleging negligence in failing to order a urinalysis prior to the surgery, which would have alerted Lawton to undiagnosed diabetes. Additionally, Williams alleged that when he did not heal properly after the surgery, Lawton was negligent in failing to treat the postoperative problems.

After the district court concluded Williams' standard of care witness qualified as an expert under K.S.A. 60-3412, Philip Diggdon, M.D., testified he had completed thousands of such surgeries, including hundreds on adults, and that Williams should have been checked for diabetes before surgery. Diggdon explained that diabetes left uncontrolled in any surgical patient "is fraught with many, many complications," including fungal infections. Diggdon testified Lawton's failure to check for diabetes before surgery was a departure from the standard of care.

Ultimately, the jury found Lawton 54% at fault for Williams' injuries and Williams 46% at fault. The jury awarded $200,000 for past and present pain and suffering and $1,750,000 for future pain and suffering. The jury was polled, and each juror confirmed the verdict was that of 10 or more jurors.

Lawton then filed a motion for the cap on damages be applied to the verdict, a motion for judgment not withstanding the verdict, and a motion to reconsider the decision qualifying Diggdon as an expert. Lawton also filed a motion for new trial based upon the expert witness issue, juror misconduct, and attorney misconduct. The motion was supported with the affidavit of a juror, which counsel procured after a post-verdict systematic telephone poll of all jurors. The affidavit stated, among other complaints, that "the verdict was reached by averaging all of the jurors' opinions." Based on this affidavit, the district court acted sua sponte in recalling all the jurors for post-verdict interviews. Eight of the 12 jurors appeared for the questioning and separately testified in response to the court's questions; counsel were not permitted to directly participate in the questioning. The scope and result of these juror interviews will be discussed below.

The district court ultimately granted Lawton's motion for a new trial based on juror misconduct having "substantially prejudiced" Lawton's rights. A new trial was scheduled for November 7, 2006, but the court granted the parties' request to seek an interlocutory appeal on three issues only: (i) the court's admission of Diggdon's expert testimony; (ii) the court's authority to recall the jury sua sponte; and (iii) the court's decision to question the jurors itself, without permitting direct participation by counsel during the recall. This court granted the defendant's interlocutory appeal on September 7, 2006. A subsequent order granted the plaintiff's cross-appeal. Timely docketing followed.

What is the Proper Scope of this Interlocutory Appeal?

The three questions certified by the district court were appealed respectively by the party aggrieved by each; i.e., Lawton appealed the court's decision to permit the plaintiff's expert to testify, and Williams appealed the court's decisions in connection with the jury recall. Lawton argues, however, that Williams has attempted to expand the scope of the appeal by raising other issues related to the order for new trial and seeking a reinstatement of the jury verdict. Accordingly, Lawton suggests that the order granting a new trial was not itself appealed or appealable and that this court should refrain from addressing any issues beyond the specific questions certified. We disagree.

First, we note that addressing the specific certified questions related to jury recall without considering whether a new trial was warranted would require us to issue a mere advisory opinion, which would be prohibited. See Cady v. Cady, 224 Kan. 339, 345, 581 P.2d 358 (1978) (courts do not render advisory opinions on abstract questions of law absent actual controversy). Surely the district court had no such naive expectation in certifying the questions related to the jury recall; it seems far more logical that the district court believed there was legitimate room for difference of opinion on the entire procedure employed for the jury recall and questioning, and the court expected us to review the key questions of law and determine whether jury recall and its outcome adequately supported the order for a new trial. In fact, the district judge clearly expressed his understanding of the scope of this appeal by stating, "And it's my understanding if I make interlocutory findings, that what goes up is the whole motion for new trial and not just whatever issue I say goes up."

Second, our Supreme Court has recognized that the proper scope of an interlocutory appeal is not necessarily restricted to the specific certified questions. In Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, Syl. ¶ 2, 997 P.2d 681 (2000), the court held: "Where an appealable issue in an interlocutory appeal is inextricably intertwined with other issues that do not themselves meet the criteria for an interlocutory appeal, the latter issues may also be reviewed to allow meaningful review and promote judicial economy." In so holding, the court considered federal authority, specifically Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1365 (11th Cir. 1997). It appears the federal courts are consistent on this principle of pendant interlocutory jurisdiction.

The federal courts recognize the permissible scope of an interlocutory appeal is not limited to the precise questions that may have been certified by the district court, but rather the appeal should be limited to the order or orders implicated by the certified questions. See, e.g., Paper, Allied-Industrial v. Continental, 428 F.3d 1285 (10th Cir. 2005) (appellate court can and should address a different legal question if it controls the disposition of the order from which the certified questions were taken); J.S. ex rel. N.S. v. Attica Cent. Schools, 386 F.3d 107 (2d Cir. 2004), cert. denied 544 U.S. 968 (2005) (appeal is not necessarily limited to certified issue, and the court has discretion to consider any aspect of the order from which appeal was taken); McFarlin v. Conseco Services, LLC, 381 F.3d 1251 (11th Cir. 2004) (appellate jurisdiction is not tied to the particular questions formulated by the district court but rather applies to the order certified); Dailey v. National Hockey League, 987 F.2d 172 (3d Cir.), cert. denied 510 U.S. 816 (1993) (review in interlocutory appeal is not constrained by question certified but may address any issue necessary to decide the appeal); Pinney Dock and Transport Co. v. Penn Cent. Corp, 838 F.2d 1445 (6th Cir. 1988), cert. denied 488 U.S. 880 (1988) (issues not properly certified for interlocutory appeal are subject to discretionary power of review if otherwise necessary to the disposition of the case); Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976 (5th Cir. 1985) (district court articulation of certified issues of interlocutory appeal in effect certified entire order for review); In re Oil Spill by Amoco Cdiz, Etc., 659 F.2d 789 (7th Cir. 1981) (appellate court free to consider such questions as are basic to and underlie the orders supporting the appeal).

Our discussion of the permissible scope of an interlocutory appeal should not be misunderstood. We adhere to the long-standing policy in Kansas to discourage interlocutory appeals and avoid piecemeal and fractionalized litigation. See McCain v. McCain, 219 Kan. 780, 783, 549 P.2d 896 (1975). Notwithstanding certification of an interlocutory appeal by a district court, granting permission for such an appeal is solely within our sound discretion. K.S.A. 60-2102(c). Generally, an order granting a new trial would not be subject to interlocutory review. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 485, 15 P.3d 338 (2000). Our review of such an order in this case should be viewed as one of the narrow exceptions to the rule and solely due to our conclusion as to pendant interlocutory jurisdiction. See Noel v. Pizza Management, Inc., 258 Kan. 3, 15-18, 899 P.2d 1013 (1995).

We conclude that all three of the certified questions were derived from and were the lynchpins for the district court's order granting a new trial to Lawton. Just as contemplated by the district court, we have no difficulty in reviewing that order in its entirety as within the proper scope of this interlocutory appeal.

Did the District Court Err in Finding Plaintiff's Expert Witness Was Qualified to Testify Under K.S.A. 60-3412?

As to the first certified question and subject of Lawton's appeal, Lawton contends Williams' expert, Dr. Diggdon, did not meet the criteria set forth in K.S.A. 60-3412 and, thus, the district court erred in admitting his testimony and in rejecting this as a basis for a new trial. Williams argues the district court did not misinterpret the statute and applied it correctly. The amicus brief of the Kansas Association of Defense Counsel supports Lawton's position.

The interpretation of a statute is a question of law over which an appellate court has unlimited review. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).

K.S.A. 60-3412 provides:

"In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person's professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed."

Williams' surgery was performed on February 1, 2002; Williams first saw Lawton on January 24, 2002. The district court concluded the incident, under the statute, occurred February 1, 2002.

Diggdon testified as to the following:

- Diggdon was 74 years old when he testified.

- When he practiced full-time, he saw up to 100 patients per week.

- He was a board certified urologist since 1968, having been a physician since 1958, and had performed thousands of surgeries like that performed on Williams, including "probably in the hundreds, high hundreds" on adults.

- Between January 24, 2000 and October 31, 2001, he saw patients in his office or a clinic.

- In February 2000, he worked Mondays, Tuesdays, and half-days on Wednesdays, Thursdays, and Fridays.

- In October of 2001, he saw six to eight patients per week.

- His income for the 2 years between January 2000 and January 2002 was approximately $130,000 gross annually, with approximately 10% being for consultations on legal matters/cases.

- He retired from his clinical practice entirely on October 31, 2001, approximately 4 months prior to Williams' circumcision.

- He testified as an expert in other cases prior to this case. He forensically reviewed approximately 28 cases over a ...


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