Ballard v. Brian Calder Kerr, M.D., Silk Touch Laser, LLP

• Decision Date: 04 August 2016
• Docket Number: Docket No. 42611
• Citation: 160 Idaho 674,378 P.3d 464
• Court: Idaho Supreme Court
• Parties: Charles BALLARD, Plaintiff–Respondent, v. Brian Calder KERR, M.D., Silk Touch Laser, LLP, an Idaho limited liability partnership; and Silk Touch Laser, LLP, an Idaho limited liability partnership, dbas Silk Touch Med Spa and/or Silk Touch Med Spa and Laser Center, and/or Silk Touch Med Spa, Laser and Lipo of Boise, Defendants–Appellants.

160 Idaho 674

378 P.3d 464

Charles BALLARD, Plaintiff–Respondent,

v.Brian Calder KERR, M.D., Silk Touch Laser, LLP, an Idaho limited liability partnership; and Silk Touch Laser, LLP, an Idaho limited liability partnership, dbas Silk Touch Med Spa and/or Silk Touch Med Spa and Laser Center, and/or Silk Touch Med Spa, Laser and Lipo of Boise, Defendants–Appellants.

Docket No. 42611

Supreme Court of Idaho, Boise, June 2016 Term.

Filed: August 4, 2016

Quane Jones McColl, PLLC, Boise, for appellants. Jeremiah Quane argued.

Bailey & Glasser, LLP, Morgantown, West Virginia, and Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for respondent. Scott McKay argued.

J. JONES, Chief Justice This is an appeal from a jury verdict entered in a wrongful death action. Charles Ballard ("Charles") brought suit for wrongful death and medical malpractice against Silk Touch Laser, LLP ("Silk Touch") and its owner Dr. Brian Kerr. In 2010, Charles' wife Krystal Ballard ("Krystal") underwent a liposuction and fat transfer procedure at Silk Touch in Eagle, Idaho. Krystal died less than a week later from septic shock caused by unknown bacteria in her right buttock. Charles' suit alleged that the bacteria that caused Krystal's death were introduced into her body during the procedure at Silk Touch because certain reusable medical equipment was not properly disinfected and sterilized.

This action first went to trial in November 2013, but ended in a mistrial. The case was retried in September 2014, and the jury returned a verdict in favor of Charles. The jury additionally concluded that Dr. Kerr and Silk Touch acted recklessly and awarded Charles $2,540,436 in economic damages and $1,250,000 in non-economic damages. After the second trial, the district court awarded Charles costs and attorney fees for the mistrial.

Silk Touch raises twenty-one issues on appeal, challenging several of the district court's evidentiary rulings, the sufficiency of the evidence supporting the verdict, several of the jury instructions, and the district court's award of costs and attorney fees. Silk Touch also alleges that the jury verdict should be overturned because the district court permitted the jurors to submit questions to witnesses and the district court made improper comments on the evidence during trial. Charles seeks attorney fees on appeal.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Silk Touch is a medical spa in Eagle, Idaho that performs cosmetic procedures. It was opened in 1999 by Dr. Kerr and his wife Susan Kerr. Dr. Kerr is a trained anesthesiologist. Originally, Silk Touch only offered laser hair removal, Botox treatment, and dermal fillers. However, Silk Touch began offering liposuction and fat transfers in 2007, after Dr. Kerr completed training on those procedures.

Krystal was a 27–year–old staff sergeant in the U.S. Air Force, stationed at Mountain Home, Idaho. She lived with her husband Charles, who was also a staff sergeant with the U.S. Air Force. On July 13, 2010, Krystal went to Silk Touch for a consultation for a liposuction and fat transfer procedure. Krystal sought to have liposuction on her abdomen and flanks and have some of the fat transferred to her buttocks. She met with Dr. Kerr, who explained the procedure and determined that Krystal was a good candidate for the surgery. On July 21, 2010, Dr. Kerr performed the procedure on Krystal. During the procedure, Dr. Kerr used both disposable and reusable medical equipment.

The reusable equipment included a Vaser handpiece, suction cannulas, and a canister. The Vaser handpiece and cannulas were used during the liposuction procedure on Krystal's abdomen. The Vaser handpiece uses ultra-sound waves to break up fat into smaller pieces and then those pieces are suctioned out using the cannulas. The Vaser handpiece was not used during the liposuction on Krystal's flanks because the fat taken was to be transferred to Krystal's buttocks. The fat from Krystal's flanks was suctioned out using the same cannulas used in the abdomen liposuction. The fat taken from Krystal's flanks was then stored in a reusable canister until it was injected into Krystal's buttocks.

Dr. Kerr and other Silk Touch staff testified as to the procedures for disinfecting and sterilizing reusable medical equipment at Silk Touch. Dr. Kerr testified that Silk Touch did not have any written policies for disinfecting and sterilizing reusable medical equipment. The standard practice at Silk Touch for cleaning the Vaser handpiece was to wipe it down with an antiseptic wipe and then put the handpiece in an autoclave. Dr. Kerr testified that other reusable equipment, including the cannulas and canisters, were soaked in a basin with Hibiclens and water and then cleaned with a brush before being placed in the autoclave. An autoclave sterilizes medical equipment by steam cleaning at a high temperature. A series of indicators may be used to ensure the autoclave is functioning correctly, including chemical and biological indicators. Silk Touch used chemical but not biological indicators.

After the operation, Krystal was given post-operative instructions and a post-operative appointment was set for July 23, 2010. On the morning of July 23, 2010, Susan Kerr received a call from Krystal. Krystal told Susan Kerr that she was experiencing immense pain in her buttocks, and Krystal's post-operative appointment was moved to an earlier time that day. During the appointment, Dr. Kerr examined Krystal, noting that her wounds seemed to be healing normally. Dr. Kerr testified that he did not suspect that Krystal had an infection, but he started Krystal on an antibiotic and an anti-inflammatory steroid because she complained of pain.

Krystal's husband Charles had been out of town on a temporary duty assignment in July 2010 and was unaware of Krystal's surgery. Charles testified that he returned home on the evening of July 23, 2010. Charles further testified that throughout that evening and the next day Krystal seemed to be ill and in pain. On the evening of July 24, 2010, Krystal called Dr. Kerr, who spoke with Charles on the phone. Dr. Kerr informed Charles of the liposuction and fat transfer procedure and asked Charles to take Krystal's temperature and make sure she was taking her medication. Krystal's temperature appeared normal.

Late that evening, Krystal woke Charles up and asked him to call 911. Krystal told paramedics who arrived on the scene that she was in pain and was having trouble breathing. Krystal was transported to Elmore Medical Center in Mountain Home. At Elmore Medical Center several tests were performed on Krystal. When the results of the tests showed that Krystal had signs of an acid-base abnormality, elevated white blood cell count, and renal failure, the emergency room physician ordered that Krystal be life-flighted to St. Alphonsus Regional Medical Center in Boise. The emergency room physician also noted several possible diagnoses for Krystal's condition, including sepsis, septic shock, and acute renal failure. Sepsis occurs when an infection causes a systemic response in a person, such as shock. When a patient goes into shock his or her blood pressure lowers, which can reduce blood flow to vital organs and lead to organ failure.

On the morning of July 25, 2010, Krystal was admitted to St. Alphonsus. The emergency room physician noted that Krystal presented with abnormally low blood pressure, elevated heart rate, and potential multi-organ failure. The emergency room physician started treating Krystal for sepsis. Despite treatment, Krystal's condition worsened, and she was transferred to the intensive care unit ("ICU"). Krystal's condition did not improve in the ICU. Krystal showed signs of respiratory and renal failure and eventually was placed on full life support. While on life support, Krystal went into cardiac arrest multiple times. The fourth time Krystal went into cardiac arrest doctors were unable to resuscitate her. She died on the evening of July 25, 2010.

Krystal's case was referred to the Ada County Coroner's office. Dr. Groben, a forensic pathologist, performed an autopsy on Krystal. During his examination, Dr. Groben found gram-negative rod bacteria deep in the fat tissue in Krystal's right buttock, near the injection site for the fat transfer. Dr. Groben did not note any other signs of infection or bacteria in Krystal. Based on his examination, Dr. Groben concluded that the cause of Krystal's death was sepsis with probable toxic shock syndrome from the unknown gram-negative bacteria in her right buttock.

B. Course of Proceedings

On March 16, 2012, Charles filed a wrongful death and medical malpractice suit against Dr. Kerr and Silk Touch (collectively "Silk Touch"). Charles alleged that reusable medical equipment used in Krystal's procedure was not properly disinfected and sterilized. Charles further alleged that because the equipment was not properly sterilized, bacteria were introduced into Krystal's right buttock during the fat transfer procedure, which caused the infection that ultimately led to Krystal's death.

The case proceeded to a jury trial on November 5, 2013. Before trial, the district court had ruled on the parties' motions in limine. As relevant here, the district court ruled that Silk Touch could not present evidence of the absence of infection in other patients. On November 14, 2013, Silk Touch presented testimony from Dr. Stiller, its standard of care expert. During Dr. Stiller's testimony, he stated that there were no pertinent or persistent infections at Silk Touch. The court declared a mistrial, concluding that Silk Touch violated the court's order and that the violation caused substantial prejudice to Charles that could not be rectified. Charles asked the district court to award him costs and attorney fees for the mistrial. At the hearing on Charles' motion, the court awarded Charles expert-witness costs but reserved ruling on attorney fees.

The case was retried from September 16, 2014 through ...