Boudreaux v. Pettaway

• Decision Date: 28 September 2012
• Docket Number: 1100281.
• Citation: 108 So.3d 486
• Parties: Randall BOUDREAUX, M.D., et al. v. Paula PETTAWAY, as administratrix of the Estate of Paulett Pettaway Hall, deceased.
• Court: Alabama Supreme Court

108 So.3d 486

Randall BOUDREAUX, M.D., et al.

v.Paula PETTAWAY, as administratrix of the Estate of Paulett Pettaway Hall, deceased.

1100281.

Supreme Court of Alabama.

Sept. 28, 2012.

Drayton Nabers, Jr., Maibeth J. Porter, and James L. Mitchell of Maynard, Cooper & Gale, P.C., Birmingham; and Wes Pipes, William W. Watts, and Ginger D. Bedsole of Pipes, Hudson & Watts, LLP, Mobile, for appellants.

Joseph M. Brown, Jr., David S. Cain, Jr., David G. Wirtes, Jr., and George M. Dent III of Cunningham Bounds, LLC, Mobile; and R. Bernard Harwood, Jr., of Rosen Harwood, Tuscaloosa, for appellee.

SHAW, Justice.

Randall Boudreaux, M.D., Don Ortego, and Coastal Anesthesia, P.C. (“Coastal”), appeal from a $4,000,000 judgment, following a remittitur of a $20,000,000 jury verdict, against them and in favor of Paula Pettaway, as administratrix of the estate of Paulett Pettaway Hall, deceased, on her wrongful-death/medical-malpractice claim. We affirm.

Facts and Procedural History¹

Boudreaux is a licensed, board-certified anesthesiologist and a principal of Coastal; Ortego is a certified registered nurse anesthetist and an employee of Coastal. Coastal is the exclusive provider of anesthesia at Springhill Memorial Hospital in Mobile (“Springhill”).²

In January 2006, Hall, a 32–year–old mother who had previously undergone gastric-bypass surgery and who presented at Springhill with complaints of nausea, vomiting, and abdominal pain, underwent an exploratory laporotomy at Springhill, duringwhich Boudreaux and Ortego administered anesthesia. Hall died following that procedure, and Pettaway, Hall's mother, was named administratrix of Hall's estate.

Pettaway sued Boudreaux, Ortego, and Coastal (hereinafter referred to collectively as “the defendants”), alleging wrongful death. The case proceeded to a jury trial. The evidence presented tended to establish—and her medical records reflected—that Hall had numerous risk factors placing her in the category of patients with a high risk of pulmonary aspiration during the administration of anesthesia via routine intubation. Despite those risk factors, however, Boudreaux and Ortego, who failed to physically examine Hall for the presence of aspiration risks or to review her medical records, employed a routine anesthetic induction as part of the intubation process instead of the rapid-sequence induction required for patients at risk for aspiration. ³ During the routine induction, Hall aspirated bile into her lungs, resulting in a decrease in her oxygen-saturation levels and, ultimately, her death as a result of aspiration pneumonitis.⁴ At the conclusion of the case, the jury awarded Pettaway $20,000,000 in damages.

The defendants subsequently filed a joint motion seeking, alternatively, a judgment as a matter of law, a new trial, or a remittitur of the damages award. The trial court denied the defendants' postjudgment motion, on the condition that Pettaway accept a remittitur of the jury verdict. Specifically, applying the guideposts established in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), and the factors articulated in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), the trial court remitted the $20,000,000 verdict to $4,000,000, which Pettaway accepted, and entered a judgment in Pettaway's favor in the reduced amount. The defendants jointly appeal.

Discussion

I. New–Trial Grounds

On appeal, the defendants allege numerous errors by the trial court in denying their postjudgment request for a new trial.

A. Juror Misconduct

The defendants initially contend that the trial court exceeded its discretion when it failed to grant a new trial on the ground that 9 of the 12 jurors seated in this case allegedly “suppressed material information about their personal litigation histories....” (Defendants' brief, at p. 9.) The defendants argue that the allegedly suppressed information included the fact that six of the jurors were plaintiffs in prior, undisclosed litigation, which, the defendants argue, “led to the selection of a jury that was sympathetic to [Pettaway] and doubtless predisposed against Defendants.” Id.

During voir dire, defense counsel asked the venire the following question:

“I need to know a little bit about lawsuits. We're not going to get specific about them, I don't think, but I need to know if any of the jurors or anyone in your immediate family [has] ever been a plaintiff in a lawsuit; somebody that files suit to collect money or to straighten out a boundary line or anything like that.”

In response, prospective juror M.C. indicated that, approximately 15 to 18 years earlier, he had been the plaintiff in a fraud case that had proceeded to a successful trial; prospective juror A.D. disclosed that, approximately 5 years earlier, she had been the plaintiff in a suit resulting from an automobile accident; prospective juror D.A. disclosed that, approximately 3 years earlier, she had been the plaintiff in a discrimination-related employment suit; prospective juror H.T.H. responded that, the previous summer, she had filed a small-claims action; and prospective juror S.B. indicated that in 1997 she had filed a premises-liability action against a commercial establishment as the result of a fall.

After receiving the foregoing responses, defense counsel then asked the following questions of the venire:

“All right. Let's look at the other side. Any of you ever been a defendant in a lawsuit? I know [prospective juror C.B.] has, but anyone else who's ever been a defendant where somebody sued you to collect damages or make you move your fence or something like that? Anybody?

“I need to ask a question that's kind of similar to one that's been asked already. And other than [prospective juror K.H.] and [prospective juror M.C.], I need to know if any of you have ever had a dispute with a doctor or a hospital that went beyond being inconvenienced. I had to wait. Something that I call irritation, that's the way I—what I'm looking for is have you ever had a dispute where you were upset enough that you wanted to change hospitals or change doctors or you thought something had been done wrong to you by a doctor or doctor or a hospital?”

Aside from receiving confirmation that three previously identified members of the venire, prospective jurors J.D., H.F.H., and G.P.S., “[had] something like that, [which would be] take[n] up separately,” defense counsel received no noted response to the foregoing questions.⁵

At the conclusion of the trial, which, as noted above, resulted in a verdict for Pettaway, the defendants moved for a new trial, claiming that posttrial investigations revealed that several of the seated jurors had failed to fully respond to the questions set out above regarding their personal-litigation histories. The defendants further argued that despite questioning by defense counsel during voir dire as to past disputes with health-care providers, four jurors failed to disclose past billing disputes with hospitals or other health-care providers, including two jurors who either had been discharged in bankruptcy or had disputed debts owed to Springhill.⁶

Specifically, as reasserted in their brief to this Court, the defendants contend that a total of nine members of the seated jury purportedly failed to disclose the following during voir dire: M.F. had allegedly been a party in three prior civil suits, which she failed to disclose, including a “real property lawsuit” (defendant's brief, at p. 15) in which she was the plaintiff and that was pending at the time of the underlying trial and a sheriff's forfeiture action in which she was the named defendant and that also was pending at the time of the underlying trial; P.R., who was ultimately elected as the foreperson of the jury, had filed for bankruptcy protection in 1999 and in 2009 and had included among his scheduled creditors Springhill and other health-care providers, had been a named defendant in a civil-collection suit, and had also entered a guilty plea in a criminal “proceeding for committing a violation of unemployment compensation rules”; S.W. had been the plaintiff in a 2007 civil suit seeking damages as a result of an automobile accident, which action resulted in a verdict for the defense, and had filed two prior bankruptcy proceedings, one of which included a hospital as a creditor; K.A. had been a party to three prior bankruptcy proceedings, which he failed to disclose, and two of those bankruptcy filings included debts owed to health-care providers; A.T. had been a named defendant in an unlawful-detainer suit, which was disposed of by a consent judgment in November 2009; B.M. had been, in her official capacity, named as a defendant in two prior civil suits based on 42 U.S.C. § 1983, both of which were dismissed; N.W. had been a named defendant in a collection action; A.D. had requested pre-action discovery in 2009 related to potential fraud-based claims against two business entities in which she was the anticipated plaintiff, had filed a personal-injury action in 1997 on her daughter's behalf, and had filed for bankruptcy in 1991 and included in her bankruptcy filing a debt owed to Springhill; and H.T.H. was, during the underlying trial, the plaintiff in a pending divorce action.

In light of the foregoing, the defendants contended that “a decidedly plaintiff-oriented jury was selected....” They maintained that they had been prejudiced by the jurors' alleged failure to answer truthfully because, they said, complete and truthful responses “would have absolutely changed defense counsel's analysis in voir dire and impacted the way in which he exercised peremptory strikes....” The defendants' request for a new trial was accompanied by the affidavit testimony of defense counsel indicating that, had the nine jurors disclosed their involvement in previous litigation, he would have endeavored to determine the impact of that...