Arledge v. McFatter
| Decision Date | 05 August 1992 |
| Docket Number | No. 90-CA-0212,90-CA-0212 |
| Citation | 605 So.2d 781 |
| Parties | Claudia ARLEDGE v. Dr. Charles McFATTER. |
| Court | Mississippi Supreme Court |
Landman Teller, Jr., Teller Martin Chaney & Hassell, Vicksburg, for appellant.
R.E. Parker, Jr., Gail S. Akin, Varner Parker Sessums & Akin, Vicksburg, William R. Lancaster, Ramsey & Sheldon, Mobile, for appellee.
En Banc.
I. INTRODUCTION
This medical malpractice case from the Warren County Circuit Court involves issues of instruction procedures and instruction sufficiency. Perusal of the record leads this Court to reverse and remand for a new trial.
A. Facts
In January 1987, Claudia Arledge approached gynecologist and surgeon, Dr. Charles McFatter, and requested information on liposuction. McFatter examined Arledge; he concluded that liposuction and abdominoplasty might help improve her general appearance described as "obese."
In February 1987, McFatter performed liposuction and abdominoplasty on Arledge; he also performed an appendectomy and hysterectomy. McFatter encountered no complications; he considered the operation to be a success. As time progressed, however, Arledge became upset about the resultant scar and some pain she had begun to experience allegedly due to the scar. So in December 1988, she filed a complaint in the Warren County Circuit Court against McFatter. She alleged that McFatter negligently performed the liposuction and abdominoplasty on her.
In November 1989, Judge Frank Vollor held trial. At the conclusion of the trial, Judge Vollor and the attorneys debated over which instructions should be submitted. Each attorney also complained that the other submitted too many instructions for consideration. The judge noted their complaint and proceeded with the debate.
After four hours of debate, the judge instructed the jury. During its deliberations, the jury handed the bailiff a handwritten note to deliver to the judge:
If we vote one issue for Plaintiff and the other for the Defendant, how do we decide? Read last paragraph.
"Read last paragraph" referred to the last paragraph in Instruction D-9B, which the jury appended to the note:
INSTRUCTION D-9B
The Court instructs the jury that the Plaintiff is seeking damages against Dr. McFatter based on two (2) theories of law: 1) negligence or breach of the applicable standard of care of physicians performing liposuction and abdominoplasty; and 2) failure to obtain the Plaintiff's informed consent for the liposuction and abdominoplasty.
These theories of law involve separate claims and must each be separately proved. If the Plaintiff fails to prove either of these claims by a preponderance or greater weight of the credible evidence, then you should consider the other claim before you may return a verdict. If the Plaintiff fails to prove both of these claims by a preponderance or greater weight of the credible evidence, then your verdict shall be for Dr. McFatter.
Upon reading the note, the judge and counsel debated over the method of response. Over McFatter's objection, the judge instructed Arledge's counsel to draft another instruction. Arledge completed the task in about forty minutes; however, before the judge could provide the jury with this new instruction, the bailiff learned that a verdict had been reached. The jury found for McFatter.
Arledge filed a motion for j.n.o.v. or new trial; she complained that Instruction D-9B was "misleading, confusing and peremptory in nature" and that the jury was not re-instructed in a timely manner. Arledge contended that the untimeliness led the jury to "assume" that "no additional instruction was forthcoming and felt compelled to decide for [McFatter]." The judge denied the motion.
B. Issues
Arledge appealed and presented two issues:
1. Whether the trial judge erroneously failed to instruct the jury after the jury requested further instruction during deliberation?
2. Whether the judge erroneously allowed McFatter to submit more instructions than are allowed by Uniform Circuit Court Rule 3.09?
McFatter cross-appealed and presented one issue:
3. Whether the judge erroneously assessed costs against him for the portion of the record designated by him?
II. ANALYSIS
A. Issue # 1
1.
Through this issue, Arledge contends that Instruction D-9B confused the jury and that the judge should have re-instructed the jury after being asked for clarification of a point of law. The record does not reflect a "refusal" by the trial judge to re-instruct the jury; rather, the record reflects that the judge and attorneys were constructing a new instruction when the jury reached a verdict.
2.
This Court has reviewed all the instructions and concludes that they adequately state relevant law. See Strickland v. Rossini, 589 So.2d 1268, 1273 (Miss.1991). Adequacy notwithstanding, this Court is compelled to reverse.
As a matter of institutional imperative, "our law presumes that jurors follow the trial judge's instructions, as upon their oaths they are obliged to do." Parker v. Jones County Community Hosp., 549 So.2d 443, 446 (Miss.1989); see also Collins v. State, 594 So.2d 29, 35 (Miss.1992). The facts, however, "take this case out of the general principle." Parker, 549 So.2d at 446 (emphasis added). In other words, the presumption that jurors follow the law as instructed has been sufficiently rebutted.
The jury requested clarification of Instruction D-9B. As Judge Vollor seems to have concluded, the jury's request was indicative of confusion. The judge decided that clarification was appropriate, but he failed to inform the jury that a new instruction was forthcoming. The jury waited about forty-five minutes and, prior to being re-instructed, returned a verdict. One cannot logically "presume" that the jury understood and followed the law as instructed. Indeed, a questionaire which Judge Vollor routinely submits to jurors upon completion of a trial revealed that at least one juror in this case was confused by the instructions.
3.
In sum, this Court reverses and remands this case for a new trial on the merits. To avoid a reversible situation like this in the future, the judge should immediately inform the jury that a response is forthcoming.
B. Issues # 2 and 3
This Court has reviewed the record, briefs, and relevant law and affirms on these issues. However, before concluding, one point must be noted. Neither party in this case complied with Uniform Circuit Court Rule 3.09 regarding the limitation on the number of instructions which may be The circuit court rules were adopted to facilitate orderly and efficient procedure in judicial proceedings. Attorneys are expected to follow the rules, including the limitation on the number of instructions which may be submitted. In complicated cases, the trial judge may waive the limitation and permit additional instructions upon request and when warranted.
submitted: "[A]ttorneys may submit no more than six instructions on the substantive law of the case." McFatter submitted approximately twenty-five instructions prior to trial, and Arledge submitted approximately seven instructions
The excessive number of instructions submitted by both McFatter and Arledge constitutes an abuse of procedure and must not be repeated unless the judge waives the limitation upon reasonable request.
III. CONCLUSION
On the basis of the foregoing, this Court reverses on the first issue and remands for a new trial on the merits. This Court affirms on the remaining issues on direct and cross-appeal.
REVERSED AND REMANDED FOR A NEW TRIAL.
I concur in the result reached by the majority. With deference, it is my view that the dissenters miss the point that regardless of how clear and correct the instructions may appear to us, and to appellant's counsel when submitted, there is irrefutable evidence that the jury found them conflicting at a point and no evidence that it resolved the confusion correctly. The trial court could and should have taken steps to clarify the matter. It could have inquired as to whether and how the jury resolved the question it posed in a special polling process. It could have refused to accept the verdict until after it gave a clarifying instruction and allowed further deliberation to confirm the jury's resolve. Having failed to address the issue at all, we are left to speculate.
Reversal is not mandated because D-9A, when read together with other instructions, is confusing when viewed objectively. Reversal is mandated because there is concrete evidence that the instruction was in fact confusing to the jury. Appellant's failure to object to the instruction when given cannot be deemed a waiver of her right to have the jury's manifest confusion resolved to the extent that the instruction has some ambiguity and to the extent that it can be resolved by a clarifying instruction.
Here, D-9A could have been clarified by substituting the words "proves neither" for the words "fails to prove both." Admittedly, this simple solution might not have been readily apparent in the heat of the moment, and the court therefore cannot be faulted for taking some time to get an appropriate instruction. The solution actually suggested by plaintiffs was an additional instruction, or paragraph for D-9A, reading as follows:
The court tells you that if you find the plaintiff has proven either one of the theories or claims by a preponderance of the evidence, you must return a verdict for the plaintiff, Claudia Arledge.
This language does clarify D-9A and should have been given before the...
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