86 Hawai'i 84, Ditto v. McCurdy, 17346
| Decision Date | 06 November 1997 |
| Docket Number | No. 17346,17346 |
| Citation | 947 P.2d 952,86 Hawaii 84 |
| Parties | 86 Hawai'i 84 Janie DITTO, Plaintiff-Appellee, v. John A. McCURDY, Jr., M.D., Defendant-Appellant, and Karla Scarpiova, Defendant. |
| Court | Hawaii Supreme Court |
Peter Van Name Esser, Honolulu, for defendant-appellant John A. McCurdy, Jr., M.D., on the writ.
David C. Schutter and Christopher A. Dias, (of David C. Schutter & Associates), Honolulu, for plaintiff-appellee Janie Ditto, on the answer.
Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.
We granted defendant-appellant-petitioner John A. McCurdy, Jr., M.D.'s (Dr. McCurdy) petition for a writ of certiorari to review the decision of the Intermediate Court of Appeals (ICA) in Ditto v. McCurdy, 86 Hawai'i 93, 947 P.2d 961 (App.1997). For the reasons discussed below, we (1) reverse the jury's finding of liability with respect to fraud; (2) vacate the jury's award of punitive damages; and accordingly (3) remand with instructions to the trial court to dismiss the fraud count and conduct a new trial solely on the issue of the amount of punitive damages owed. In all other respects, we affirm.
The facts of the underlying case are set forth in detail in the ICA's decision. See Ditto, at 92-95, 947 P.2d at 967-970. Briefly stated, plaintiff-appellee-respondent Janie Ditto was disfigured as a result of breast augmentation surgery performed by Dr. McCurdy, an ear, nose, and throat specialist and cosmetic surgeon. Ditto filed a complaint against Dr. McCurdy and his assistant, 1 alleging negligence and fraud and claiming punitive damages. Following a three-week trial in 1992, the jury, in its special verdict, found Dr. McCurdy liable for negligence, fraud, and punitive damages, awarding Ditto $3,500 in special damages, $1,000,000 in general damages, $400,000 in damages for fraud, and $600,000 in punitive damages.
On appeal before the ICA, Dr. McCurdy raised numerous points of error, which he asserted warranted judgment in his favor or, alternatively, a new trial. Most of his claims were rejected by the ICA. The ICA did agree, however, that the trial court abused its discretion when it allowed plaintiff's expert Don Parsa, M.D. (Dr. Parsa), to testify in rebuttal that Dr. McCurdy did not have the minimum qualifications to perform breast surgery in any Hawai'i hospital. The ICA therefore vacated the judgment on the fraud claim and remanded for a new trial on fraud. 2 Dr. McCurdy filed a timely petition for writ of certiorari, which we granted on July 3, 1997.
Relying on our decision in Takayama v. Kaiser Foundation Hospital, 82 Hawai'i 486, 923 P.2d 903 (1996), the ICA determined that the trial court had abused its discretion by admitting the testimony of plaintiff's expert, Dr. Parsa, in rebuttal. We disagree. Under Takayama, "the introduction of evidence in rebuttal and in surrebuttal is a matter within the discretion of the trial court and appellate courts will not interfere absent an abuse thereof." Takayama, 82 Hawai'i at 495, 923 P.2d at 912 (quoting Yorita v. Okumoto, 3 Haw.App. 148, 156, 643 P.2d 820, 826 (1982)). In order to determine whether there is an abuse of discretion, the reviewing court must examine the sequence of the trial. Takayama, 82 Hawai'i at 496, 923 P.2d at 913.
The essence of Ditto's fraud claim was that Dr. McCurdy had a duty to disclose that he was not a board certified plastic surgeon because that fact was material to Ditto's decision to allow him to perform breast augmentation surgery on her. Ditto thus had the burden of proving, inter alia, that Dr. McCurdy failed to disclose that he was not a board certified plastic surgeon and that it was a material fact.
Anticipating Dr. McCurdy's defense--that he was a board certified cosmetic surgeon and thus certified to perform Ditto's surgery--Ditto's expert, Ralph Lassa II, M.D. (Dr. Lassa), a board certified plastic surgeon, testified during Ditto's case-in-chief about the differences in certification procedures between the two boards. In part, his testimony was that certification by the American Board of Cosmetic Surgeons (ABCS) was not recognized by the American Society of Medical Specialties (ASMS), unlike certification by the American Board of Plastic and Reconstructive Surgeons (ABPRS), because the requirements for ABCS certification were not as rigorous as those of the ABPRS.
In support of his defense, Dr. McCurdy called Randolph Howes, M.D. (Dr. Howes), a trustee of ABCS, whose testimony was essentially that the ABCS qualification criteria were equally as rigorous as those of any certifying board, but that there was a turf war going on, and, for selfish reasons, plastic surgeons were trying to keep cosmetic surgeons from being recognized. Dr. Howes also testified that, although he was certified by the ABCS and not by the ABPRS, he held surgical privileges at thirteen hospitals.
When Ditto's counsel attempted to cross-examine Dr. Howes regarding hospital privileges for cosmetic surgeons, Dr. McCurdy's counsel objected. The trial court allowed the question over Dr. McCurdy's objection; however, when it became apparent that Dr. Howes did not know the prevailing practice in Hawai'i hospitals, the trial court struck the testimony. On re-direct examination of Dr. Howes, the following exchange occurred:
Q. [by McCurdy's counsel]: In connection with hospital privileges do you have some familiarity with regard to the peer review committee in the State of Louisiana and what their considerations are in terms of admitting doctors to practice surgery in the hospitals?
A. [Dr. Howe]: Yes, I do.
Q. Contained within that knowledge do you have an understanding as to whether the peer review committee determines whether surgeons are only permitted to perform surgery within their particular board certification, or what information do you have on that subject?
[Ditto's counsel]: Objection on relevancy grounds, Your Honor.
THE COURT: [Counsel]. You're talking about Louisiana?
[McCurdy's counsel]: Yes.
[Ditto's counsel]: Same objection.
[McCurdy's counsel]: I withdraw the question.
Q. [by McCurdy's counsel]: With regard to peer privileges at hospitals is there some nationality [sic] basis that the AMA has published in connection with the consideration of doctors, admission of doctors' privileges to perform surgery at hospitals across the nation?
[Ditto's counsel]: I will object to that. He already testified he doesn't know about Hawaii.
[McCurdy's counsel]: I have a right to question this witness about a subject that was raised for the first time on cross-examination. I didn't cover this in my direct. How can it be cumulative?
[Ditto's counsel]: What he is testifying to now, Your Honor, is the matter we discussed earlier.
THE COURT: Sustain the objection.
In her rebuttal case, Ditto called Dr. Parsa whom the defense had listed as one of its witnesses. Dr. Parsa, chief of the surgical department at Queen's Hospital, testified that the minimum credentials for a surgeon to perform breast augmentation surgery at Queen's includes three years of general surgery residency and two years of plastic surgery residency. After reviewing Dr. McCurdy's resume, Dr. Parsa was asked whether it "would be correct that he does not meet the minimum qualifications to perform breast augmentation surgery at the Queen's Medical Center." Dr. Parsa hedged, repeated the minimum qualifications a few times, and finally answered, "[b]ut to answer your question, the answer is no, he wouldn't be given privileges right off." He also testified that the minimum credentials were the same at all Hawai'i hospitals with which he was familiar.
On cross-examination, Dr. McCurdy's counsel questioned Dr. Parsa extensively, essentially trying to elicit testimony that Dr. McCurdy's other credentials would be considered as well as whether he had the required residencies. The following exchange occurred:
Q. [by McCurdy's counsel]: I assume that if Dr. McCurdy were to file an application with the appropriate committee indicating that he was board certified by the American Board of Cosmetic Surgery, that he was an examiner with the American Board of Cosmetic Surgery, that he has performed, say, at this date a lifetime of somewhere between five hundred and one thousand breast surgeries, that the committee would not reject out of hand his application to perform breast surgery at Queen's Medical Center; is that so?
A. [Dr. Parsa]: Well, the American Board of Cosmetic Surgery is not recognized by the American Medical Association nor by the Hawaii Medical Association. And I would say that they look at it with great scrutiny.
Q. Assuming that they did just that and looked at his application with very great scrutiny, including his books and including his articles on breast surgery, would they attempt to assess his education, skill and experience in performing breast surgery?
A. That would have some impact.
Q. And would they attempt to assess that in a fashion; whereby, if he did have adequate education, skill, and experience in performing breast surgery, they would approve his application?
A. The way things stand right now, just being certified by cosmetic surgery, I think, again I am speaking as an individual who sits in these committees, as an individual, those who have come forward in other hospitals with similar boards of cosmetic surgery, that hasn't been given much credit that I can say. However, there are other aspects that have to be considered by virtue of that board not being respected by the Hawaii Medical Association nor by other respected boards recognized by the American Board of Medical Specialities. Again, I am not criticizing that board. That's the way it stands. However he will be fully studied for what he is submitting to a credentials committee....
The ICA held...
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