No. 86-159
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
JOHN KUHNKE, Individually, and as
Personal Representative of the Estate
of ANNABELLE KUHNKE, Deceased,
Plaintiff and Appellant,
-vs-
JOHN A. FISHER, DOUGLAS W. ALVORD
and BOZEMAN DEACONESS HOSPITAL,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph R . Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Alexander & Baucus; John Alexander argued for Kuhnke,
Great Falls, Montana
Paul Luvera argued for Kuhnke, Mount Vernon, Washington
Monte D. Beck, (~uhnke),Bozeman, Montana
Arnold Huppert, Jr. argued for Appellant Wellcome,
Livingston, Montana
Garlington, Lohn & Robinson; Sherman V. Lohn argued
for Appellant Aetna Ins., Missoula, Montana
For Respondents:
Berg, Coil, Stokes, et al; Ben E. Berg, Jr. argued for
Fisher, Bozeman, Montana
Wellcome, Frost & Bartlett; Page Wellcome argued for
Alvord, Bozeman, Montana
Submitted: March 4, 1987
Decided: May 20, 1987
Filed:
2 ;1987
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Plaintiff, John Kuhnke, appeals from judgment entered
upon a jury verdict in the Eighteenth Judicial District in
favor of defendants John A. Fisher, M.D., and Douglas F?.
Alvord, M.D. Aetna Insurance Company and counsel for Dr.
Alvord appeal the District Court order imposing sanctions for
trial misconduct. We affirm in part, reverse in part and
remand.
On May 1, 1978, Annabelle Kuhnke, 6-8 months pregnant,
consulted with Dr. John Fisher of Bozeman to act as her
physician. Annabelle was obese, 42 years of age, and
experiencing her ninth pregnancy. All of these factors
contributed to a high risk pregnancy.
The Kuhnke family had recently moved from Alaska. The
record is not clear as to when Annabelle had last seen an
obstetrician. Her Alaska medical records were not forwarded.
to Dr. Fisher.
Dr. Fisher examined Annabelle on May 1 and 8. The two
visits to Fisher's office indicated that Annabelle was doing
fine. However, after the check-up on May 8, she began
experiencing extreme abdominal pain and went to the emergency
room at Bozeman Deaconess Hospital. Dr. Fisher prescribed
five Percodan tablets to be taken over the next two days.
On May 11, 1978, at approximately 7:00 p.m., Annabelle
was admitted to Bozeman Deaconess Hospital in an exhausted
condition. She evidenced shock. She had experienced
sleeplessness for 4 days, had diarrhea and had been vomiting
all day. Dr. Fisher was contacted and he gave telephone
orders for fluid infusion, urinalysis, and a complete blood
count.
Attending Nurse Shaklin observed Annabelle had blue nail
beds and blue lips indicating poor circulation. Her veins
had collapsed making it impossible to monitor blood pressure.
Annabelle's pulse and respiration were abnormally high.
Shanklin was unable to start an IV so she contacted Dr.
Alford, an internist making rounds at the time. With
Alvord's assistance, they were successful in starting the IV
therapy. Dr. Fisher arrived shortly thereafter.
Dr. Fisher examined Annabelle's abdomen and uterus. He
determined that there was extra fluid in the uterus but
nothing serious. Closer examination of the uterus ruled out
abruptio placentae (separation of the placenta from the
uterus). Annabelle was not experiencing any costovertebral
pain which Dr. Fisher believed ruled out the possibility of
kidney infection. Dr. Fisher diagnosed the problems to be
hydramnios, an excess of fluid in the inner layer surrounding
the fetus, and gastro-enteritis, an inflammation of the
stomach and intestines caused by vomiting and dehydration.
Infusion of fluids and electrolytes were given for
dehydration.
Both Fisher and Alvord believed that Annabelle was in
shock when admitted. By 9:00 p.m., her condition had
improved with pulse, respiration, and blood pressure back to
normal. Dr. Alvord left to finish his rounds. Dr. Fisher
remained with Annabelle, who had recovered sufficient]-y to
converse with him. Dr. Fisher left at 10:30 p.m. convinced
that Annabelle was doing fine. At home, he called at 11:30
p.m. before going to bed, and was told that Annabelle was
stable.
At 11:30 p.m., Nurse Weigand relieved Nurse Shanklin.
Annabelle's vital signs began to deteriorate around midnight
with respiration and pulse rising. No call was made to
either doctor. At 2:00 a.m., the nurse taking the vita.1~
noticed a small emesis, no radial pulse, and she was unable
to take a blood pressure. Arterial pulse was 160 with
respiration of 40 per minute.
At 3:00 a.m., Nurse Weigand called Dr. Alvord at home to
report Annabelle's vital signs. Dr. Alvord did not sound
concerned and told Nurse Weigand to continue with the fluid
orders. Later, Dr. Alvord would say he didn't remember the
call specifically, but that he didn't sense an emergency. By
4:00 a.m., Annabelle's skin was cold and clammy, her
extremities were turning blue, and her pulse remained
abnormally high. Nurse Weigand called her nursing
supervisor. They monitored Annabelle, who was now making
inappropriate remarks and was in need of oxygen. At 5:15
a.m., Dr. Alvord was called and he arrived at 5:35 a.m. At
5:50 a.m. Annabelle was pronounced dead.
Dr. Alvord hypothesized the cause of death to be sepsis,
(a poisoning of the blood), or obstetrical catastrophy. Dr.
Fisher arrived at 6:00 a.m. He was unable to hear any fetal
heart tones. Dr. Fisher listed the cause of death as
irreversible shock from severe dehydration due to
gastroenteritis. The cause of Annabelle's death remains
unknown for Mr. Kuhnke declined to have an autopsy performed.
Mr. Kuhnke filed a malpractice action against the
hospital and Drs. Alvord and Fisher. The first trial
resulted in a jury verdict in favor of defendants. However,
this Court reversed and remanded for a new trial due to the
misconduct of Page Wellcome, counsel for Dr. Alvord. Kuhnke
v. Fisher (Mont. 1984), 683 P.2d 916, 41 St.Rep. 952.
Prior to the second trial, the District Court granted 21
of 23 motions in limine filed by plaintiff's counsel in an
attempt to guarantee proper conduct by counsel during the
trial. The trial commenced October 1, 1985, and lasted 12
days.
The trial testimony is voluminous. Plaintiff's experts
testified that up to 19 tests should have been conducted to
insure Annabelle's recovery from shock. All witnesses noted
that the urinalysis ordered by Dr. Fisher was never
performed, and the results would have likely provided some
answers. Plaintiff's experts concluded Annabelle should not
have died and that Drs. Alvord and Fisher did not exercise
due care.
Drs. Alvord and Fisher defended their treatment methods,
yet admitted not inserting a urinary catheter which would
have allowed them to monitor Annabelle's fluid balance. She
did not void at anytime subsequent to admission. Drs. Alvord
and Fisher believed their treatment was appropriate for a
shock victim.
The hospital settled with plaintiff during trial. The
case was submitted to the jury on a special verdict allowing
negligence to be attributed to: 1) Annabelle; 2) the
hospital; 3) Dr. Fisher; 4) Dr. Alvord. The jury found the
hospital to be solely negligent.
Plaintiff filed a motion for new trial and/or judgment
notwithstanding the verdict and motion for sanctions against
Page Wellcome for trial misconduct. The District Court
denied the motions for new trial and judgment notwithstanding
the verdict, but ord.ered sanctions in the amount of $20,000
against Wellcome and Aetna Insurance Company, Alvord's
insurance carrier.
On appeal, the following issues are raised:
1) Whether the District Court erred in denying
plaintiff's motion for new trial based upon the trial
misconduct of counsel for Dr. Alvord?
2) Whether the assessment of sanctions by the District
Court was proper?
3 Whether the District Court should have granted
plaintiff's motion for judgment notwithstanding the verdict?
4) Whether the District Court erred in submitting to
the jury an issue of contributory negligence on the part of
Annabelle?
5 ) Whether the District Court erred in submitting to
the jury the question of percentage of fault of the settling
party?
Plaintiff raises innumerable instances of misconduct by
counsel for Dr. Alvord, during jury voir dire, witness
testimony, and closing argument. Plaintiff contends this
misconduct deprived him of a fair trial.
Defendant Dr. Alvord argues that plaintiff may not raise
any issues relating to the evidence presented at trial
because plaintiff has provided a partial transcript on appeal
without filing notice of such. While plaintiff has
technically violated Rule 9, M.R.App.Civ.P., we find the
omitted portions are not relevant to the issues on appeal.
In Kuhnke I, we reversed and remanded for a new trial
due to counsel's: 1) good samaritan argument; 2) argument as
to the verdict's effect on Alvord's reputation; 3) numerous
comments that plaintiff and the expert witnesses were from
out of town and other states; 4) reference to the unpaid
Kuhnke funeral bill. A review of the transcript of the
second trial reveals Wellcome again raised the first three of
these arguments.
Prior to trial, the District Court entered an order in
limine prohibiting inquiry concerning various matters not
relevant to the case. Wellcome violated several of the
specific prohibitions including: 1) reference to the fact
that the Kuhnke's were living in a Winnebago; 2) reference to
the previous trial in questioning a witness; 3) comments
regarding the presence of Dr. Alvord's family in the
courtroom and the effect of the lawsuit on Dr. Alvord's
reputation.
The standard of review for this Court in determining
whether a mistrial was appropriately denied is whether there
is manifest abuse of the District Court's broad discretionary
power. Walter v. Evans Products Co. (Mont. 19831, 672 P.2d
613, 616, 40 St.Rep. 1844, 1847.
The District Court, in this case, carefully considered
the conduct of the offending attorney, the possibly
prejudicial effect which his improper statements may have had
on the jury, and fairness to the parties. The District Court
judge heard the entire trial and is in the best position to
determine the prejudicial effect of the attorney's blatant
misconduct on the jury.
Although there was flagrant disregard by Wellcome for
plaintiff's motions in limine, court admonitions, warnings
and objections by opposing counsel (which were repeatedly
sustained), the District Court judged that the trial was fair
to all parties. The District Court concluded that "a) the
misconduct was not of the magnitude of that found in the
first Kuhnke trial, and (b) that viewed in the context of the
entire trial, the improper conduct did not impact the jury to
such an extent as to warrant a new trial."
The record shows substantial credible evidence which
supports the verdict reached by two juries on two separate
occasions hearing the same facts. It is unlikely that a
third trial heard before a third jury will produce a
different result.
We affirm the jury verdict and judgment in favor of Dr.
Fisher and Dr. Alvord.
By refusing to grant a retrial for appellant, we are in
no way condoning or ignoring Wellcome's courtroom antics.
His comments regarding Dr. Alvord as a "qood samaritan," the
effect of the verdict on Dr. Alvord's reputation, and out of
record statements were entirely improper. It was also
improper to suggest that the settlement made with the
hospital was adequate as plaintiff's recovery and to
improperly state the law, claiming that only an internist
could testify against an internist. There were numerous
other improper statements and arguments made by Wellcome
which cannot be considered to be inadvertent mistakes.
In this case, the jury returned a verdict finding the
hospital. solely liable for Annabelle Kuhnke's death. In
light of this verdict, and the complete record, the District
Court determined that the misconduct of Dr. Alvord ' s
attorney was not substantially prejudicial. We will not
disturb that decision.
Under the present facts, the appropriate solution to
adequately protect against such unprofessional and unethical
behavior by counsel in the future is severe sanctions. The
District Court imposed a $20,000 sanction against FJellcome
and Aetna Insurance Company (Aetna) . In the post-trial
order, the district judge listed extensive trial misconduct
by Wellcome. Wellcome blatently disregarded the court's
rulings throughout the trial.
Section 37-61-421, MCA, provides that any attorney or
party who unreasonably multiplies the proceedings in a case
"may be required by the court to satisfy personally the
excess costs, expenses and attorney fees reasonably incurred
because of such conduct."
Although S 37-61-421, MCA, was enacted after Kuhnke I,
it was in effect at the time of the retrial and is
applicable. We hold that Wellcome was responsible for the
retrial of Kuhnke I, and for attempting to cause a second
mistrial. Sanctions imposed by the District Court against him
are entirely appropriate.
In view of the claims of plaintiff tha.t the court did
not allow an adequate amount to cover the costs and fees of
the Kuhnke retrial, we direct the District Court to examine
the issue in light of § 37-61-421, MCA.
The record indicates that Aetna did not receive prior
notice that the motion for sanctions included Aetna in
addition to Wellcome. As we are remanding the sanction
award, the issue of proper notice is moot. Whether Aetna
should be held liable for Wellcome's misconduct is an issue
to be addressed by the District Court.
The third issue is whether the District Court should
have granted plaintiff's motion for judgment notwithstanding
the verdict. We find the District Court was correct in
denying the motion. The evidence is conflicting and the case
was properly sent to the jury. A directed verdict is not
proper unless there is a complete absence of any evidence to
warrant submission to the jury. Jacques v. Montana National
Guard (1982), 199 Mont. 493, 504, 649 P. 2d 1319, 1325 citing
Cities Service Oil Co. v. Laurey (5th Cir. 1968) , 403 F. 2d
537; see also Rudeck v. Wright (Mont. 1985), 709 P.2d 621, 42
St.Rep. 1380.
Plaintiff's next contention is that the District Court
erred in submitting to the jury an issue of contributory
negligence on the part of Annabelle. The jury did not find
Annabelle contributorily negligent, so the issue is moot and
need not be addressed.
The last issue raised on appeal is whether the
percentage of fault of the hospital should be submitted to
the jury.
Section 27-1-703(2), MCA, provides that where "more than
one person is found to have contributed as a proximate cause
to the injury complained of, the trier of fact shall
apportion the degree of fault among such persons.
Contribution shall be proportional to the negligence of the
parties against whom recovery is allowed." Although the
District Court used the legal ("substantial factor") rule as
the burden of proof instead of the proximate cause ("but
for") rule, Radeck, 709 P.2d at 628-629, S 27-1-703, MCA is
useful in determining whether a settling party may be held
responsible for contributory negligence. The general rule is
that a settling party does not fall under "parties against
whom recovery is allowed," as once a party settles with a
plaintiff, he is no longer required to contribute. Rather,
the plaintiff's recovery is diminished by the amount of
consideration paid by the settling concurrent tortfeasor.
State ex rel. Deere v. District Court (Mont. 1986), 730 P.2d
396, 404-405, 43 St.Rep. 2270, 2280.
Typically, when there are multiple defendants in a
concurrent negligence situation, the percentage of negligence
which is attributable to a settling party would not he
properly put before the jury.
In the case at bar, however, the hospital settled after
commencement of the trial at issue. The court was faced with
a situation where the jury had already heard evidence
concerning the hospital's contributory negligence. After
much consideration and research, the District Court. gave the
following jury instruction:
In this case the plaintiff has made a settlement
with the Bozeman Deaconess Hospital. The amount of
the settlement has been disclosed to the court but
not to the jury.
If you should find under the Court's instructions
that the plaintiff is entitled to recover against
the defendant's John A. Fisher, M.D. and/or Douglas
F7. Alvord, M.D., then you shall award damages to
the plaintiff for the same amount you would have
awarded if no such settlement had been made.
In such event the court will later deduct the
amount of this settlement from the amount of your
award and your verdict will be reduced accordingly.
In this situation, the record is such that a jury may
reasonably differ as to the divisibility of negligence. "In
that event the court must instruct the jury that it may if
able to do so, divide the harm and therefore apportion the
damages." Azure v. City of Billings (1978), 182 Mont. 234,
254, 596 P.2d 460, 471.
To ask the jury in this case not to consider the
hospital's negligence after the jury heard evidence
concerning the hospital as a co-defendant and concurrent
tortfeasor would: 1) force the jury to ignore that which it
had already heard; and, 2) allocate comparative negligence
without the opportunity to compare the negligence of all
potentially culpable defendants.
It can be presumed that the hospital's settlement had
some impact on the jury's verdict, but to what extent will
never be known. The carefully worded instruction given by
the court safeguards against the possibility of the jury
denying recovery to the plaintiff due to a belief that
plaintiff would then receive a double award. The instruction
accurately states the current law in Montana.
The only way to have avoided the jury's consideration of
the hospital's negligence would have been to declare a
mistrial at the time of settlement. Whether to grant or deny
a mistria, was within the discretion of the court and we will
not disturb the decision of the District Court barring a
clear abuse of that discretion. Under the unique and complex
facts of this case, we find no abuse of discretion or error
and affirm the decision of the District Court to submit the
hospital's negligence to the jury.
Affirmed in part, reversed in part and remanded.
We Concur:
Justices
Mr. Justice L. C. Gulbrandson, specially concurring and
dissenting.
I concur in all of the Court's opinion except the
discussion and characterization of the defense attorney's
conduct and the remand for consideration of additional
sanctions against said attorney and the liability insurer for
Dr. Alvord. I would also vacate the award of $20,000 as a
sanction against Aetna Insurance Company inasmuch as Aetna
was not a party to the action and had no notice of the motion
for sanctions. /'
//
Mr. Justice John C. Sheehy, dissenting:
I must disagree with the majority opinion.
It is incongruous that the District Court could hold
that Wellcome's improper actions had no effect on the jury
verdict on one hand, but that they were serious enough to
require sanctions of $20,000 against him on the other. Those
two concepts so militate against each other that a new trial
of all issues is required against Dr. Alvord. I would
sustain the verdict as to Dr. Fisher.
The majority state that "whether Aetna should be held
liable for Wellcome's misconduct is an issue to be addressed
by the District Court." There is no issue on this because
Wellcome was Aetna's agent without doubt. - National
See
Farmers' Union Property & Casualty Co. v. O'Daniel (U.S.C.A.
9), 329 F.2d 60, (1964), decided in the Ninth Circuit and
arising out of Montana.
Because the policy of insurance gives the insurance
company the right to defend all actions, to control the
litigations, and to pick counsel, it is solely responsible
for the improper actions of counsel during the trial.
Counsel is personally liable for costs under § 37-61-42, MCA,
but Aetna is likewise liable as the principal. The decision
in the Ninth Circuit case grew out of a judgment by Judge
William J. Jameson in Jessen v. O'Daniel (D. Mont. 1962), 210
F.Supp.317 and the Ninth Circuit Court affirmed Judge Jameson
on the issue of the attorney in that case being the agent of
the company.
It is true that the amount of sanctions here is
insufficient, and that the case must be returned to the
District Court for a redetermination of the sanctions. For
that reason the notice-to-Aetna argument is moot as stated in
the majority opinion. However, the District Court must
further consider sanctions to recompense Dr. Fisher for the
second trial. The evidence shows that Dr. Fisher was not
causally responsible as a matter of law. The retrial of the
cause ought to be limited to a case between the decedent and
Dr. Alvord. The jury in this case determined that the
decedent was not negligent and as a matter of law there was
no way she could have been negligent, since she was
semi-conscious or in a coma most of the time. The retrial
should consider solely the question whether Alvord was guilty
of acts of negligence which were a legal cause or a proximate
cause of her death. I would instruct the jury to find the
full amount of the damages without regard to any settlements
that have been made. The reduction for settlements could be
taken care of after the jury returns it verdict, if it found
for the plaintiff. State ex rel. Deer & Co. v. District
Court (1986), 730 P.2d 396, 43 St.Rep. 2270.
What keeps coming through is that in the two cases that
have been tried thus far, the decedent in this case had been
denied recovery and that result is absurd. It is a result
that has been brought about in each case by the improper
actions of Wellcome. He and his company should pick up the
tab for the costs of the other parties thus far (except for
discovery costs which must be used upon the third trial) and
I would propose a further sanction that Wellcome could no
longer represent Aetna or Alvord in this case since he is
unable to comply with strongly expressed rulings of the
trial court and this Court and the canons of ethics.
/
/ / Justice I