Reems Ex Rel. Reems v. St. Joseph's Hospital & Health Center

VANDE WALLE, Chief Justice.

Ricky and Linda Reems, on behalf of their daughter, Beth Reems, appealed a judgment on a jury verdict in the district court, Southwest Judicial District, finding St. Joseph’s Hospital & Health Center and Rodgers & Gumper Clinic, P.C., free of any negligence which could have proximately caused Beth’s injuries. We affirm.

Anticipating the delivery of her fourth child, Linda Reems cheeked into the emergency room of St. Joseph’s Hospital in Dickinson, North Dakota on December 31, 1982, at 6:40 p.m. She was experiencing contractions two to three minutes apart. At that time it was decided that, in order to save an extra day’s hospital expense, Linda would wait until after midnight before being admitted to the hospital. Her doctor apparently permitted this arrangement if Linda stayed in Dickinson and did not return to her home in Killdeer. The Reemses visited a relative in the hospital, “went to a drive-up” for a burger, and drove around looking at Christmas lights. They returned to the hospital around 8:30 p.m. and sat in the “OB waiting room” to wait for midnight to arrive.

Linda Reems was admitted to the hospital at 12:02 a.m. on January 1,1983. Her doctor was notified of her admission at 12:05 and arrived at the hospital at 12:18. Beth Reems was born at 12:39 a.m.

At birth Beth exhibited some cyanotic condition. She was placed in an Isolette and administered thirty percent oxygen. The records of attending nurses reflect 'that her condition improved. Linda Reems testified at trial that her memory of the blueness in Beth’s appearance conflicts with the records of the nurses and that she was deeply concerned about Beth’s condition. When Beth was released from the hospital five days later, Linda was still concerned about her condition. However, the hospital records do not reflect the same concern among Beth’s care givers and, according to testimony of hospital personnel and several expert witnesses, there was no apparent cause for concern.

In late March, 1983, Beth was tested by a Bismarck doctor and was found to have severe brain damage. According to Linda Reems’s trial testimony, the doctor recommended an infant-stimulation program and stated that “the goals that he would set for [Beth] in life would be to learn to smile, to sit up in a wheelchair and to be able to hold her own head.”

On behalf of Beth,1 the Reemses, in 1992, filed suit against Dr. Dennis Wolf, the attending doctor, a consulting physician, the Rodgers & Gumper Clinic, with which Dr. Wolf was a partner, and St. Joseph’s Hospital. They alleged that actions and omissions by Dr. Wolf and hospital personnel directly preceding and during Beth’s delivery and during the first hours of Beth’s life proximately caused Beth’s condition. Eventually, the Reemses dropped the claim against the two doctors and proceeded with the suit against the clinic and the hospital. The trial was bifurcated and, in the first stage of the trial, the jury was- asked only to decide the liability issue.

At trial the Reemses presented evidence to support their theory that a moderate meconi-um aspiration combined with a mild asphyxia suffered during the birth process to cause Beth’s injuries. They argued that the seriousness of Beth’s condition was underappre-ciated by the attending professionals and, therefore, Beth was not given the appropriate care. The defense countered with experts who testified that the doctor’s and nurses’ notes reflect a fairly ordinary delivery and aftercare which were well within the contemporary professional standards. Defense experts also testified that Beth’s brain injuries could not have been caused as the Reemses alleged. In their opinion, the injury occurred some weeks prior to delivery.

During pretrial and dining trial, the Reemses requested that Beth be allowed to attend the proceedings. The trial court decided that her “pathetic” appearance would *669be a “distraction” and that under rule 403, N.D.R.Evid., she would be excluded. The court did, however, leave open the possibility that it would modify this ruling if Beth’s appearance would provide evidence relevant to some expert testimony. At one point during trial, the Reemses moved to have Beth appear in order to counter a defense expert’s reference to her having “peg” teeth. This motion was denied.

Just before the noon hour of the second day of jury deliberations, the jury sent the judge a note asking for a definition of proximate cause. The word “proximate” was underlined. After consulting with the attorneys, the trial judge responded with: “For now, I can only ask you to refer back to the definition of proximate cause given to you starting near the bottom of page 12 of the Jury Instructions. If I am able to give you additional help, I will provide that shortly after your lunch is completed.” The jury returned with the verdict about three quarters of an hour after receiving the judge’s response.

Several weeks after trial, the Reemses were made aware of a newspaper advertisement promoting the reelection campaign of the trial judge. The advertisement, in the July 16, 1994, issue of the Dunn County Herald, listed the lead attorney for St. Joseph’s Hospital as a finance co-chair of the judge’s reelection committee. It also listed Dr. Harlan C. Larsen as an advisor to the reelection campaign. The Reemses recognized Dr. Larsen as an associate of Dr. Wolf, the physician who attended at the birth of Beth Reems, and as someone they had seen observing the trial in the company of Dr. Wolfs wife. On August 24,1994, the Reems-es filed a motion under rule 60(b)(vi), N.D.R.Civ.P., to vacate the judgment and order a new trial with a different judge. They argued that the “relationship between the presiding judge[,] the defendant^] and defendant’s counsel, required the trial judge to recuse himself’ or “[a]t an absolute minimum, such a breach can allow the presiding judge to continue to preside only upon the execution of a written waiver, signed on behalf of all parties by all counsel to the proceeding.” The judge denied the motion in a written memorandum to all the attorneys which is dated December 13, 1994.

I.

On appeal the Reemses contend that the trial court’s exclusion of the plaintiff, Beth Reems, was reversible error. Ordinarily, allowing the presence in the courtroom of those children who are parties to the action will not be an abuse of discretion. Bartholomay v. St. Thomas Lumber Co., 148 N.W.2d 278 (N.D.1966). Due process and the right to a fair trial ordinarily preclude courts from excluding those parties who are able to understand the proceedings and to assist counsel in the presentation of their actions. E.g., Helminski v. Ayerst Lab., Div. of Am. Home Prod. Corp., 766 F.2d 208, 217 (6th Cir.1985) [recognizing that “under limited circumstances a party’s involuntary exclusion might be justified”]. However, courts must have the ability “to provide all parties with a fair trial.” E.g., id. Thus, a trial court has broad discretion to decide whether other parties- may be present. Bartholomay, supra.

In a case with facts similar to this one, the Oregon Supreme Court adopted

“the standard that a plaintiff who is unable to comprehend, meaningfully participate in the proceedings, or assist his or her lawyer in the presentation of a case may be excluded from the liability portion of a bifurcated trial if the trial court, in the exercise of informed discretion, determines that the party’s presence would be unfairly prejudicial. ... [T]he preferred method is for the trial court to hold a formal hearing and personally view the party before it makes a ruling on whether to exclude that party from the liability phase of trial.”

Bremner v. Charles, 312 Or. 274, 821 P.2d 1080, 1086 (1991). See also Francis M. Dougherty, Annotation, Physical Condition of Plaintiff in Personal Injury Action as Affecting Bight to be Present at Trial, 27 A.L.R.4th 583 (1984).

The Bremner court noted that there was “nothing in the record about how [the plaintiffs] personal presence in the courtroom could have aided the jury in determining whether defendants were negligent and, if so, *670whether that negligence caused [the] injuries.” 821 P.2d at 1086. See also Helminski, 766 F.2d at 217 [“Exclusion of a party from the damages portion of the proceedings is, however, inappropriate.”]. The Bremner court also noted that the plaintiff was represented and his interests were protected by his mother and his attorney. 821 P.2d at 1086. See also, Dickson v. Bober, 269 Minn. 334, 130 N.W.2d 526, 530 (1964) [“The rights of [the] plaintiff were protected by the general guardian who brought the action for him and by the attorney selected to represent his interests during the trial.”].

Beth Reems was excluded from the courtroom only after the trial court viewed “a day in the life of ...” video of her, decided that her presence would be “distracting” and prejudicial to the defense, and further concluded that her appearance lacked relevance to the liability portion of the bifurcated trial. Even then the court left open the possibility of admitting her to the courtroom when and if her appearance became relevant. The trial court acted well within its discretion.

II.

The Reemses next invite us to find error in the trial court’s proximate-cause instruction to the jury. We review jury instructions as a whole and if they fairly and adequately reflect the applicable law and no part of the instructions would confuse or mislead an average jury, we will not reverse. Beilke v. Coryell, 524 N.W.2d 607 (N.D.1994).

The jury was given the same standard instruction that was at issue in Beilke, supra.2 In that case we recognized that a party is entitled to an instruction that allows it to present its theory of the ease if justified by law. We found nothing in the record to indicate to us that the jury instruction in any way inhibited the presentation of the Beilkes’ theory of the case. The same is true here. The Reemses were in no way inhibited by the proximate cause instruction from presenting evidence and argument to support their claim that negligence surrounding the birth of Beth proximately caused her injuries. Instructions undoubtedly can be improved upon but that does not make them erroneous. We adhere to our decision in Beilke concerning this instruction.

Although the Reemses ask us to distinguish Beilke on the ground that that case did not involve a jury request for a definition of proximate cause, we decline their invitation. To do so would necessitate an attempt to read the collective mind of the jury, a task we will not undertake.

III.

The Reemses also argue that the trial court erred when it denied their motion for relief under rule 60(b)(vi), N.D.R.Civ.P. They argue that the failure of the trial judge to disclose the relationship of the hospital’s attorney and clinic’s partner to his reelection campaign was reversible error.

Rule 60(b)(vi), N.D.R.Civ.P., gives the trial court discretion to set aside a final judgment for “any ... reason [not already listed in the rule] justifying relief from the operation of the judgment.” We will not reverse a 60(b)(vi) ruling absent an abuse of discretion. E.g., First Nat’l Bank of Crosby v. Bjorgen, 389 N.W.2d 789 (N.D.1986).

Canon 5(C)(2), N.D.C.Jud.Cond., governs and guides the behavior of those seeking judicial office. The commentary to canon 5(C)(2) states: “Though not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge, may be relevant to disqualification under Section 3E.” Although *671there is no evidence in this ease that the trial judge had knowledge of actual contributions, it is evident he was aware that the lead attorney for the hospital in the proceeding before him was to be his finance co-chair when active campaigning was to begin after trial. Canon 3(E) requires disqualification of a judge from “a proceeding in which the judge’s impartiality might reasonably be questioned.” We do not decide whether in this particular case the trial judge’s relationship to the attorney of a party before him or to a partner of a party before him gives reasonable cause to question his impartiality.

Rule 21 of the North Dakota Rules of Judicial Conduct Commission governs the types of action which that commission may take in order to remedy a violation of the Code of Judicial Conduct. That rule states that “[i]f the Commission finds good cause, it shall recommend to the Supreme Court the censure, removal, retirement, suspension, or other disciplinary action against the judge.” Understandably the Code of Judicial Conduct does not specify reversal as a remedy in a case in which a canon was violated.

The Reemses rely on Sargent County Bank v. Wentworth, 500 N.W.2d 862 (N.D.1993), to argue that the mere appearance of bias by the trial court requires reversal. However, Wentworth, a case in which we recognized that a violation of the judicial conduct rules by a presiding judge may result in the reversal of a judgment, involved a bench trial in which the credibility of the parties was crucial in resolving the litigation. In Wentworth, credibility and other fact issues were decided by the court and not by a jury. Noting very difficult factual issues in Wentworth, we stated:

“Despite these difficulties, [the trial judge] ruled in favor of the Bank, adopting virtually all of its explanations for its actions and reasoning that these actions caused the Wentworths no harm. Although [the judgejs findings are supported by some of the evidence in the record, there is conflicting evidence that could also support contrary findings on many of the factual questions.”

Id. at 879.

Given the complexity of the factual issues which faced the trial judge in Wentworth, we concluded that his “unintentional entanglement” in an unrelated matter in which he was represented by a member of the law firm representing the bank could cause a reasonable person to reasonably question the judge’s impartiality. Id. at 879. Thus, we found that disqualification was required under rule 3(C) of the North Dakota Rules of Judicial Conduct.3

This case is distinguishable from Wentworth in that questions of fact and the credibility of evidence were decided by a jury. The trial judge made several decisions involving the evidence which was presented to the jury, but these decisions and other matters of law are a part of the record. Thus we are able to review the record for instances of actual bias.

Although the Reemses point to several decisions of the trial court with which they do not agree and which they consider evidence of actual bias, adverse rulings are not alone evidence of partiality. E.g., Matter of Norman, 524 N.W.2d 358 (N.D.1994). Our review of the record reveals that the trial judge weighed issues very carefully before deciding on motions and other matters.

Contrary to the Reemses’ allegations, the record shows that the trial judge conducted a fair trial in which all of the parties were able to fully present their evidence and arguments to the jury. The trial court’s denial of the rule 60(b)(vi), N.D.R.CivJ?., motion was not an abuse of discretion.

We affirm.

SANDSTROM and NEUMANN, JJ., concur.

. Any claims that Beth's parents may have pursued on their own behalf were by this time barred by statutes of limitations.

. The final instructions to the jury, under the heading "Definition of Proximate Cause," read as follows:

"Before a person can be held responsible for negligence, such negligence must have been a proximate cause of the injury complained about.
"A proximate cause is a cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred. It is a cause which had a substantial part in bringing about the injury either immediately or through happenings which follow one another.
"There may be more than one proximate cause of the injury. The fault of two or more persons may contribute to cause the injury and in such a case each person's fault is regarded as a proximate cause."

. On January 1, 1994, the Rules of Judicial Conduct were replaced by the current North Dakota Code of Judicial Conduct. N.D.Code Jud. Cond.Rule 3(C)(1) of the old Rules of Judicial Conduct stated that “disqualification is appropriate when the judge’s impartiality might reasonably be questioned.” The current canon 3(E)(1) requires disqualification in the same instance. Because the Wentworth decision read the language of the old rule as mandatory and not merely guidelines, we need not concern ourselves with the difference in language.