Post-verdict proceedings and grant of mistrial reviewed: CHARLES D. WILLIAMS AS ADMINISTRATOR FOR THE ESTATE OF LESLIE DUNAGAN, ET AL. V. PRIMARY CARE ASSOCIATES OF SOUTHERN KENTUCKY, PLLC, ET AL. (COA 3/7/2008)

CHARLES D. WILLIAMS AS ADMINISTRATOR FOR THE ESTATE OF LESLIE DUNAGAN, ET AL. V. PRIMARY CARE ASSOCIATES OF SOUTHERN KENTUCKY, PLLC, ET AL.
TORTS:  MEDICAL NEGLIGENCE
CIVIL PROCEDURE: POST-VERDICT PROCEEDINGS – ABILITY TO ORDER MISTRIAL AFTER JURY RENDERS VERDICT
2006-CA-002610
PUBLISHED: REVERSING AND REMANDING WITH DIRECTIONS
PANEL: TAYLOR PRESIDING; THOMPSON, BUCKINGHAM CONCUR
COUNTY: BARREN
DATE RENDERED: 3/28/2008

The estate and the decedent’s parents appeal a judgment entered in favor of Appellees following a second jury trial on their medical malpractice claim after the first trial resulted in a mistrial being ordered by the TC. Appellants’ claims stem from treatment the 14 year-old decedent received from Appellees after being released from UofL Hospital subsequent to being accidentally shot in the neck with a BB gun by her younger brother. The day after her release, the decedent began to experience shortness of breath and was taken by her mother to Appellees’ office for examination. Appellee Branstetter was a licensed nurse at the medical office who saw decedent and focused on her neck injury as being the cause of the breathing problems. The girl was released home and the following day she was taken to the ER with even more serious problems, and was transferred again to UofL where she was deemed brain dead upon arrival. It was later determined that the cause of death was an abdominal stress ulcer that was not diagnosed during treatment with Appellees. Suit was filed and the case proceeded to a first trial where the jury found the nurse to be 100% liable and awarded the requested funeral expenses and medical expenses, but nothing for future earnings impairment. Both parties objected to the jury decision, with Appellees arguing that the jury should be sent back into deliberations to reconsider the impairment issue again. The TC did just that, and after 25 minutes the jury came back with a new impairment award of $800,000. Appellees then moved for a mistrial, and the TC granted it. Tried a second time nine months later, this time a defense verdict was returned and judgment entered accordingly. The estate appealed.

On appeal, Appellants raised 3 arguments: 1) TC abused its discretion in granting the mistrial after the jury had already returned its final verdict; 2) TC erred by failing to restrict the second trial to the issue of damages only since liability had already been properly assessed against the Appellees in the first trial; and 3) TC committed various procedural and evidentiary errors during the course of the second trial. The COA focused its entire analysis on whether the TC had authority to grant the mistrial, and cited law from other jurisdictions that a mistrial (which is equivalent to no trial) is inappropriate to grant after the jury has already returned its verdict. The COA then looks to Kentucky statutes and civil court rules dealing with procedural aspects of rendering a verdict in the state and the post-trial motions and remedies available to parties after the jury’s verdict. At the end, the COA concluded that declaring a mistrial after a final, valid verdict has been rendered was an abuse of the TC’s discretion and therefore reversible error. The correct procedure is for the TC to enter judgment on the verdict and then allow either party to challenge the sufficiency of the verdict through a JNOV motion or motion for new trial.

The COA nevertheless went on to reject the 2 bases cited by the TC for granting the mistrial (injection of liability insurance reference by one of Appellants’ witnesses and short time jury deliberated again on the impairment claim), first holding that the witness’ reference to having offered opinions in other cases for his own "malpractice company" did not violate KRE 411 and then finding that the mere 25-minute deliberation time by the jury was not a proper basis for a mistrial and that doing so amounts to an abuse of discretion on its face. The COA went even further by noting that neither of these bases reasonably supports a post-judgment motion for JNOV or new trial either. In conclusion, the COA reversed the TC’s judgment for the Appellees and directed the TC to render judgment on the first, valid jury verdict. The COA also held that should the TC determine that a new trial is warranted upon motion thereafter for any of the grounds provided for in CR 59.01, the new trial shall be limited to damages as pertains solely to the future impairment claim.

By Chad Kessinger, Schiller Osbourn Barnes & Maloney