Griffith v. Mt. Carmel Medical Center

• Decision Date: 19 January 1994
• Docket Number: Civ. A. No. 92-1141-MLB.
• Citation: 842 F. Supp. 1359
• Parties: Sandra Jean GRIFFITH, individually and on behalf of Felicia Renee Griffith, Benjamin Lee Griffith, and Jonathan Andrew Griffith, minors and heirs at law of Jimmy R. Griffith, Jr., deceased, Plaintiff, v. MT. CARMEL MEDICAL CENTER, a Kansas Corporation; Eugene Carl McCormick, an Individual, Defendants.
• Court: U.S. District Court — District of Kansas

842 F. Supp. 1359

Sandra Jean GRIFFITH, individually and on behalf of Felicia Renee Griffith, Benjamin Lee Griffith, and Jonathan Andrew Griffith, minors and heirs at law of Jimmy R. Griffith, Jr., deceased, Plaintiff, v. MT. CARMEL MEDICAL CENTER, a Kansas Corporation; Eugene Carl McCormick, an Individual, Defendants.

Civ. A. No. 92-1141-MLB.

United States District Court, D. Kansas.

January 19, 1994.

COPYRIGHT MATERIAL OMITTED

Richard W. Lowry, Logan & Lowry, Vinita, OK, Alan Laufman, J.D., M.D., Dallas, TX, John W. Johnson, Bradshaw & Johnson, Wichita, KS, for Sandra Jean Griffith.

Amy S. Lemley, Foulston & Siefkin, Wichita, KS, for Mount Carmel Medical Center, Inc., and Judith Ulery.

William Tinker, Jr., McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, KS, for Eugene Carl McCormick.

E. Dudley Smith, Fisher, Patterson, Sayler & Smith, Overland Park, KS, for Physician Staffing Resources, Inc.

MEMORANDUM AND ORDER

BELOT, District Judge.

This matter comes before the court on defendant Mount Carmel Medical Center's Motion for New Trial (Doc. 311) and defendant Dr. Eugene Carl McCormick's Motion for Remittitur and New Trial (Doc. 309). The case arises out of events surrounding the treatment of plaintiff's deceased husband, Mr. Jimmy Griffith, at Mount Carmel Medical Center in Pittsburg, Kansas on May 10 and 11, 1991. The facts of the case previously have been summarized in the court's Memorandum and Order denying defendant Mount Carmel's motion for partial summary judgment. (Doc. 272). Griffith v. Mt. Carmel Medical Center, 831 F.Supp. 1532, 1534-35 (D.Kan.1993). A jury trial was held on the issues presented, and the jury rendered a verdict in favor of plaintiff against both defendants. (Doc. 302). The jury found that defendant Mount Carmel violated the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, by failing to provide Mr. Griffith both an "appropriate medical screening" and stabilizing medical treatment on May 11, 1991, and that both defendant Dr. McCormick and defendant Mount Carmel's nurses had been negligent. With respect to the negligence findings, the jury attributed seventy percent (70%) of the fault to Dr. McCormick and thirty percent (30%) to Mount Carmel's nurses. The jury awarded damages in the sum of $2,003,000, with $503,000 going to Mrs. Griffith and $500,000 going to each of Mr. Griffith's three children.

DEFENDANTS' MOTIONS FOR NEW TRIAL

The defendants assert that they are entitled to a new trial on a number of grounds,¹ each of which will be dealt with herein. Initially, however, the court will note that the decision of whether to grant a motion for a new trial is committed to the sound discretion of the trial court. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984); Royal College Shop, Inc. v. Northern Ins. Co., 895 F.2d 670, 677 (10th Cir.1990). "Such a motion may be granted when the court believes the verdict to be against the weight of the evidence, when prejudicial error has entered the record, or when substantial justice has not been done." Foster v. Bd. of Trustees of Butler Cty. Com. Col., 771 F.Supp. 1122, 1125 (D.Kan.1991) (citing McHargue v. Stokes Div. of Pennwalt Corp., 912 F.2d 394, 396 (10th Cir.1990); Anderson v. Phillips Petroleum Co., 861 F.2d 631, 637 (10th Cir.1988); Holmes v. Wack, 464 F.2d 86, 88-89 (10th Cir.1972)). The moving party "must demonstrate trial errors which constitute prejudicial error or that the verdict is not based on substantial evidence." White v. Conoco, Inc., 710 F.2d 1442, 1443 (10th Cir. 1983). "No error in any ruling or order or in anything done or omitted by the trial court or by the parties is ground for granting a new trial ... unless the error or defect affects the substantial rights of the parties." Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978) (citing Fed.R.Civ.P. 61).

I. Plaintiff's Counsels' Closing Arguments

Both defendants claim that a number (of improper remarks made by plaintiff's counsel during their closing arguments prejudiced and inflamed the jury, as manifested in the jury's inflated damages award. (Doc. 309, pp. 9-12; Doc. 312, pp. 20-24). Specifically, the defendants point to Mr. Alan Laufman's remarks concerning his own "sense of anger" about this case and Mr. Richard Lowry's comments that "the hospitals are anxiously awaiting your the juror's decision" and that he "wouldn't take a million dollars for his wife and kids." (Transcript, Doc. 310, pp. 39-40, 84, 91).

The Tenth Circuit has consistently demonstrated "`great caution'" in determining whether to set aside a jury's verdict because of improper remarks made by counsel. Lambert v. Midwest City Mem. Hosp. Auth., 671 F.2d 372, 375 (10th Cir.1982) (quoting Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 567 (10th Cir.1978) and Julander v. Ford Motor Co., 488 F.2d 839, 842 (10th Cir.1973)). The court has indicated that a jury's verdict should not be disturbed for this reason "`unless it clearly appears that the remarks in question unduly aroused the sympathy of the jury and thereby influenced the verdict.'" Id. More recently, the court has stated that it "will not reverse on an improper closing argument unless it obviously prejudiced one of the parties." Slane v. Jerry Scott Drilling Co., Inc., 918 F.2d 123, 128 (10th Cir.1990) (emphasis added) (citing Smith v. Atlantic Richfield Co., 814 F.2d 1481, 1488 (10th Cir.1987)).

After careful consideration of plaintiff's counsels' remarks and their possible effect on the jury's verdict, the court finds that "taken as a whole, the statements of plaintiff's counsel during closing arguments are more appropriately characterized as zealous advocacy rather than prejudicial conduct." Mason v. Texaco, Inc., 741 F.Supp. 1472, 1513 (D.Kan.1990), aff'd and remanded, 948 F.2d 1546 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992). It is true that plaintiff's counsel made comments that were inappropriate, referring to their own personal indignation, asking the jurors to "send a message," and suggesting that the jurors put themselves in plaintiff's position, the infamous "Golden Rule" argument. Nevertheless, when plaintiff's counsels' remarks are placed in context — that is, in light of all the evidence, the length of the trial, the overall content of the closing arguments, and the "hotly contested" nature of this case — the court does not perceive any obvious prejudice. Julander, 488 F.2d at 842. Defense counsel immediately objected to Mr. Lowry's "send a message" and "Golden Rule" arguments, and the court swiftly and with certainty sustained those objections. (Transcript, Doc. 310, pp. 84, 91). See Spulak v. K Mart Corp., 894 F.2d 1150, 1155-56 (10th Cir.1990) (finding that, when viewed in context, plaintiff's counsel's "send K Mart a message" argument did not prejudice defendants); Blevins v. Cessna Aircraft Co., 728 F.2d 1576, 1580-81 (10th Cir.1984), cert. dismissed, 468 U.S. 1228, 105 S.Ct. 32, 82 L.Ed.2d 923 (1984) (finding that, when viewed in context, plaintiff's counsel's "Golden Rule" and other improper arguments did not prejudice defendants). Moreover, the court instructed the jury that "any ... arguments made by the lawyers are not evidence in the case." (Jury Instructions, Doc. 300, Inst. # 6). See Massie v. Godfather's Pizza, Inc., 844 F.2d 1414, 1424 (10th Cir.1988) (involving similar curative instruction).

With respect to Mr. Laufman's comments on his own personal indignation and, generally, counsel injecting their own feelings into closing argument, the court believes that it is important to note that although the cold trial transcript may not reflect it, the personal feelings of plaintiff's and Mount Carmel's attorneys had become abundantly clear well before closing arguments were made. This was a long trial involving, from plaintiff's perspective, emotional issues arising from the seemingly unexplained and unnecessary death of a young husband and father due to the failure of Dr. McCormick and Mount Carmel's nurses to provide proper care. Mount Carmel sought to capitalize on its religious-based affiliation in attempting to counter plaintiff's claims that it had refused to admit Mr. Griffith because he was uninsured. During trial, counsel for each party diligently and forcefully advocated their respective client's interests. This culminated in somewhat emotionally charged closing arguments, particularly by plaintiff's and Mount Carmel's lawyers. Nevertheless, viewing plaintiff's counsels' remarks in the context of the whole trial, the court does not find that they unduly aroused the sympathy of the jury, thereby influencing the verdict. It is far more plausible that the jury's verdict was a result of the substantial evidence that Dr. McCormick and Mount Carmel committed medical negligence and that Mount Carmel violated EMTALA.

II. Verdict Contrary to Plaintiff's Proof on Informed Consent

Dr. McCormick argues that he is entitled to a new trial because the jury's verdict was contrary to the evidence on the issue of informed consent. (Doc. 309, pp. 12-14). According to Dr. McCormick, plaintiff failed to meet her burden to show that, had Mr. Griffith been fully informed of the risks associated with pursuing Dr. McCormick's recommended course of treatment, he would have refused that treatment.² (Doc. 309, p. 14). However, as plaintiff aptly demonstrates, Dr. McCormick is wrong.

Plaintiff presented evidence, including the testimony of a Mount Carmel employee, indicating that she wanted Mr. Griffith to be admitted to the hospital during Mr. Griffith's second visit. Mr. Griffith was not admitted, but instead was discharged from the emergency room with advice to return if he got any worse, or words to that effect, and to see a local physician the...