Burke v. Health

• Decision Date: 23 June 2011
• Docket Number: No. 4828.,4828.
• Citation: 710 S.E.2d 84,393 S.C. 48
• Court: South Carolina Court of Appeals
• Parties: Elise BURKE, Respondent,v.AnMED HEALTH, Appellant.

393 S.C. 48

710 S.E.2d 84

Elise BURKE, Respondent,

v.AnMED HEALTH, Appellant.

No. 4828.

Court of Appeals of South Carolina.

Heard Feb. 16, 2011.Decided April 27, 2011.Rehearing Denied June 23, 2011.

Stephen Dallas Baggett and Stephen Dallas Baggett, Jr. of Greenwood, for Appellant.John S. Nichols and Blake A. Hewitt, both of Columbia and Joseph G. Wright, III, of Anderson, for Respondent.FEW, C.J.

AnMed Health admitted liability to Elise Burke arising out of a preoperative procedure, and the jury returned a $250,000.00 verdict for Ms. Burke. AnMed contends the trial court erred in refusing to excuse for cause potential jurors who were allegedly indebted to AnMed, in admitting costs of Ms. Burke's initial operation as evidence of damages, and in refusing to grant AnMed's motion for a new trial. We affirm.

Seventy-three-year-old Elise Burke arrived at AnMed to have an abdominal hysterectomy on March 22, 2005. During a routine preoperative procedure, a nurse inadvertently left a cleansing sponge inside Ms. Burke's vagina. The hysterectomy was performed later the same morning but the sponge was not discovered. After the surgery, Ms. Burke experienced increasing discomfort, discolored vaginal discharge, and an offensive odor she was unable to prevent those around her from noticing. Over the following two months, Ms. Burke contacted her doctor on six separate occasions seeking medical assistance to address these concerns. On May 23, 2005, Ms. Burke's doctor performed a vaginal exam and discovered fragments of the sponge that had been left in her body. The rest of the sponge was surgically removed the following day. Additional facts related to the issue of damages are discussed in our analysis of the trial judge's decision not to grant a new trial.

I. Jury Venire

During pretrial motions, AnMed moved to excuse prospective jurors who owed “bad debts and judgments” to AnMed. The trial court removed the four venire members against whom AnMed held judgments but denied the request to remove others whose debts to AnMed were allegedly in default. AnMed contends this was error and asks this court to recognize a bright-line rule to categorically exclude from jury service all prospective jurors who have been referred to debt collection agencies as the result of failing to pay a debt owed to a party.

A litigant's right to an impartial jury is a fundamental principle of our legal system. S.C.Code Ann. § 14–7–1050 (2008) (“[I]n all civil cases any party shall have the right to demand a panel of twenty competent and impartial jurors from which to strike a jury.”); Vestry & Church Wardens of the Church of the Holy Cross v. Orkin Exterminating Co., 384 S.C. 441, 446, 682 S.E.2d 489, 492 (2009) (“Under South Carolina law, litigants are guaranteed the right to an impartial jury.”). To safeguard this right, prospective jurors must be excused for cause when either an automatic disqualification applies to the juror or when the trial court determines that the juror cannot be fair and impartial. However, our courts have hardly ever recognized an automatic disqualification.¹ We decline to create a new category of persons automatically disqualified from jury service in this case. Rather, we hold that when a party asks that a prospective juror be excused for cause because of a debt owed to the party, the trial court must conduct an individual analysis as to that juror to determine whether the juror should be excused. See Abofreka v. Alston Tobacco Co., 288 S.C. 122, 125, 341 S.E.2d 622, 624 (1986) (stating a juror should be disqualified if it appears to the trial court “that the juror is not indifferent in the case”).

In this case, the trial judge asked the jury panel every question proposed by the parties during voir dire, including whether any of the prospective jurors had a relationship with Ms. Burke; worked for AnMed; had ever been dissatisfied with treatment received from a hospital; or had sued a hospital or a physician. The trial court also asked the panel: “Does any member feel like they have any interest, sensitivity, bias or prejudice which would prevent you from being a fair and impartial juror in this case?” There was no response to any of these voir dire questions. AnMed specifically chose not to request additional voir dire to address the concern that some venire members may be biased as a result of being indebted to AnMed, explaining, “We are trying to avoid embarrassing jurors who might be called upon to stand up and say that—to verify whether they have this certain debt owed to the hospital.” We find that the trial judge acted within his discretion when he decided not to excuse any additional jurors for cause. See Johnson v. Nat'l Bank of Sumter, 213 S.C. 458, 464, 50 S.E.2d 177, 180 (1948) (“It is well settled that questions ... relating to the fitness of jurors to serve in a case are largely left to the discretion of the trial judge.”).

II. Admissibility of Cost of Hysterectomy

AnMed contends that the trial court erred in admitting the expenses AnMed charged Ms. Burke for her hysterectomy as evidence of actual damages. We find the issue is not preserved for our review.²

AnMed moved to exclude evidence of expenses associated with the initial surgery on the ground that the evidence was not relevant. The trial court ruled in limine that the evidence was relevant and admissible. During Ms. Burke's testimony, she sought to introduce Exhibit 8, which included the medical bills associated with her hysterectomy. The trial court asked AnMed if it had any objection to Exhibit 8, and AnMed responded, “No objection, Your Honor.” The trial court admitted the exhibit.

A contemporaneous objection is typically required to preserve issues for appellate review. Hill v. S.C. Dep't. of Health & Envtl. Control, 389 S.C. 1, 23, 698 S.E.2d 612, 624 (2010) (citing Sea Cove Dev., LLC v. Harbourside Cmty. Bank, 387 S.C. 95, 108 n. 5, 691 S.E.2d 158, 165 n. 5 (2010)) (noting that a contemporaneous objection is required to preserve an issue for appellate review). However, “ ‘where a judge makes a ruling on the admission of evidence on the record immediately prior to the introduction of the evidence in question, the aggrieved party does not need to renew the objection.’ ” Wright v. Hiester Constr. Co., 389 S.C. 504, 514, 698 S.E.2d 822, 827 (Ct.App.2010) (quoting State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001)).

In this case, AnMed not only failed to renew its objection when evidence of the medical bills was offered, AnMed affirmatively stated that it had no objection to the introduction of this evidence. In State v. Dicapua, the defendant objected in limine to the admission of a videotape. 373 S.C. 452, 646 S.E.2d 150 (Ct.App.2007), aff'd, 383 S.C. 394, 680 S.E.2d 292 (2009). When the State later offered the video into evidence the defendant said, “no objection.” 373 S.C. at 454, 646 S.E.2d at 151. This court held that the statement “no objection” constituted “a waiver of any issue [the defendant] had with the videotape.” 373 S.C. at 455, 646 S.E.2d at 152. We find Dicapua controlling. When a party states to the trial court that it has no objection to the introduction of evidence, even though the party previously made a motion to exclude the evidence, the issue raised in the previous motion is not preserved for appellate review.

III. AnMed's Motions For A New Trial

AnMed appeals the trial court's denial of its motion for a new trial, arguing the motion should have been granted under the thirteenth juror doctrine, as a new trial absolute, or in the alternative, as a new trial nisi remittitur. We affirm.

Under the thirteenth juror doctrine, a trial court may grant a new trial if the judge determines the jury's verdict is “contrary to the fair preponderance of the evidence.” R.C. McEntire v. Mooregard Exterminating Servs., Inc., 353 S.C. 629, 633, 578 S.E.2d 746, 748 (2003). The trial court's discretion to grant or deny a new trial as the thirteenth juror is very broad. “As has often been said, the trial judge is the thirteenth juror, possessing the veto power to the Nth degree....” Worrell v. S.C. Power Co., 186 S.C. 306, 313–14, 195 S.E. 638, 641 (1938). An order denying a new trial on this theory will hardly ever be reversed. As this court recently stated, “ ‘to reverse the denial of a new trial motion under [the thirteenth juror doctrine,] we must, in essence, conclude that the moving party was entitled to a directed verdict at trial.’ ” Curtis v. Blake, 392S.C. 494, 709 S.E.2d 79 (S.C.Ct.App.2011) (Shearouse Adv. Sh. No. 6 at 90) (quoting Parker v. Evening Post Publ'g Co., 317 S.C. 236, 247, 452 S.E.2d 640, 646 (Ct.App.1994)).

A trial judge also has the power to grant a new trial absolute. However, this power may be exercised only when the verdict “is shockingly disproportionate to the injuries suffered and thus indicates that passion, caprice, prejudice, or other considerations not reflected by the evidence affected the amount awarded.” Becker v. Wal–Mart Stores, Inc., 339 S.C. 629, 635, 529 S.E.2d 758, 761 (2000).³ A jury's determination of damages is entitled to “substantial deference.” Todd v. Joyner, 385 S.C. 509, 517, 685 S.E.2d 613, 618 (Ct.App.2008), aff'd, 385 S.C. 421, 685 S.E.2d 595 (2009). The decision to grant or deny a “new trial motion rests within the discretion of the circuit court, and its decision will not be disturbed on appeal unless its findings are wholly unsupported by the evidence or the conclusions reached are controlled by error of law.” Brinkley v. S.C. Dep't of Corrs., 386 S.C. 182, 185, 687 S.E.2d 54, 56 (Ct.App.2009).

If the trial court determines that the verdict is “merely excessive,” the court has the power to reduce the verdict by granting a new trial nisi remittitur. “A motion for a new trial nisi remittitur asks the trial court to reduce the verdict because the verdict is merely excessive.” James v. Horace Mann Ins. Co., 371 S.C. 187, 193, 638 S.E.2d 667, 670 (2006...