Cooper v. Hanson

• Decision Date: 25 May 2010
• Docket Number: No. DA 09-0439.,DA 09-0439.
• Citation: 234 P.3d 59,356 Mont. 309,2010 MT 113
• Parties: Joyce COOPER, Plaintiff and Appellant,v.Peter D. HANSON, M.D., Defendant and Appellee.
• Court: Montana Supreme Court

356 Mont. 309

234 P.3d 59

2010 MT 113

Joyce COOPER, Plaintiff and Appellant,v.Peter D. HANSON, M.D., Defendant and Appellee.

No. DA 09-0439.

Supreme Court of Montana.

Submitted on Briefs March 31, 2010.

Decided May 25, 2010.

Rehearing Denied June 29, 2010.

For Appellant: Erik B. Thueson, Thueson Law Office, Helena, Montana, James T. Towe, Towe Law Offices, Missoula, Montana.

For Appellee: J. Daniel Hoven, Carlo J. Canty, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Joyce Cooper (Cooper) appeals from a jury verdict in the First Judicial District Court finding that defendant Peter D. Hanson, M.D. (Dr. Hanson) was not negligent in his treatment and care of Cooper. Cooper argues that her right to a fair and impartial trial was prejudiced in the course of the proceedings below, and that her motion for a new trial was improperly denied by the District Court. For the reasons set forth below, we reverse the verdict of the jury and remand this matter to the District Court for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Cooper had been suffering from arthritis in her left knee, and conservative treatment measures had failed to alleviate the condition. On December 1, 2005, Dr. Hanson performed a total knee arthoplasty surgery (TKA) on Cooper's left knee. During surgery, complications arose due to damage to the popliteal artery in Cooper's left knee. Cooper alleged that she suffered various permanent injuries to vessels and nerves in her left leg as a result of the complications.

¶ 3 On December 7, 2007, Cooper filed a negligence action against Dr. Hanson in the First Judicial District Court. Cooper alleged that Dr. Hanson was negligent in his use and placement of surgical tools during the operation, and that he was responsible for severing the popliteal artery in her left leg. Dr. Hanson denied he was negligent.

¶ 4 Prior to trial, Cooper sought a motion in limine to prohibit defense counsel from presenting improper argument to the jury on the following:

1. That the defendant could or would be financially affected by any adverse verdict;

2. That the defendant could face consequences concerning the right to practice medicine, continuing licensure, hospital privileges, or loss of limitation of business;

3. That the defendant may be forced to close or limit his services;

4. That the defendant could have his professional reputation or standing damaged;

5. That the defendant needs special protection or that there could be unspecified effects or consequences of the malpractice claims, this trial, or medical malpractice verdicts against a doctor;

6. That the jury should put itself in the shoes of the defendant or analyze the case and its potential consequences from the defendant's perspective;

7. That the defendant feels bad or similar comments.

¶ 5 The District Court denied the motion, concluding that the request to exclude these arguments was “vague and overbroad.” Counsel for Dr. Hanson, Daniel Hoven (Hoven), expressed offense at the suggestion that he would violate the Rules of Evidence, and assured the court that he would not engage in improper argument. The District Court noted that counsel for both parties should be “fully aware of their ethical obligations and what is proper argument at trial,” and further noted that any issues related to the above-mentioned arguments should be dealt with by a proper objection at trial.

¶ 6 Jury selection began on April 20, 2009. During voir dire, Cooper elicited responses from several jurors on the topic of the plaintiff's burden of proof in a civil medical malpractice case. For instance, in response to a question about whether any members of the panel would require proof greater than the preponderance of the evidence in a medical malpractice case, juror Chris Silvonen (Juror Silvonen) stated the following:

A. In this particular matter, I would. I think that for the very little I know about it, if we were to say he was in the wrong, it could be career damaging. I think all those things-I don't know. I'm-I know very little about what's going on at this point, but it's almost like a criminal sentence for a doctor that's got a malpractice you know, type of deal. So I would like to see quite a bit of proof.

Q. More than just-

A. More than just a little bit.

Q. You're pretty strong on that?

A. Yes.

Q. Pretty hard to change? Hard for me to change your mind?

A. Seems like a life sentence to a medical doctor.

¶ 7 Another member of the panel, Frederick Demato, also stated that he was “against preponderance of the evidence” in this type of case.¹ Other jurors expressed similar sentiments implying that the preponderance of the evidence standard would be insufficient in a medical malpractice case. In exploring this issue with the jury, Cooper's trial counsel Erik Thueson (Thueson) had the following exchange with Juror Wayne Waters:

A. Well, without knowing the facts, I can't say that, but it would have to be a preponderance of the evidence.

Q. Okay. So you could go 51/49?

A. Nope.

Q. Well if this were a basketball game, how much would Joyce have to win the basketball game in your mind before you have enough doubts set aside?

A. Let's say it would have to go a lot more than 51 percent.

¶ 8 Thueson also questioned Waters about his feelings on awards for pain and suffering. Waters indicated that he could not make such an award unless there was “a deliberate act or deliberate negligence on the part of the doctor.” When questioned further, however, Waters also agreed that he could award such damages if it was shown that a doctor made a mistake that was below the standard of care, but unintentional.

¶ 9 Thueson also questioned Juror Richard Ellwein about his ability to award damages for pain and suffering if proven at trial. On this point, the following exchange occurred:

Q. Okay. Mr. Ellwein?

A. I believe I want to hear what the facts are and make a determination on the whole picture.

Q. You could award-

A. I could award damages, but I'm not going to discuss any amounts or anything like that. I will not go into detail about any amounts or anything like that. The cause of it-if we deem it necessary, we'll-I'll figure that out when I make a decision on

that.

Q. Well-I mean, so you don't have a problem with the concept?

A. No.

Q. If the evidence shows, you could award two or three hundred thousand?

A. I said, sir, don't mention an amount. I won't-I'll just say-I'll just say that what the-whatever the instructions are, I'll base it on the instructions.

¶ 10 In response to Thueson's examination, Juror Dave Miller indicated that there should be a greater burden of proof in a medical malpractice case. When asked by Thueson if he could be convinced of anything different in the next couple of days, he answered “No.” When questioned, Juror Michael Eby stated that he “would need a lot more proof ... beyond a reasonable doubt to decide,” and further indicated that he “would need a lot more than, say, 75 percent to decide one way or the other.”

¶ 11 During this questioning, some members of the jury panel expressed uncertainty about what burden of proof is legally required since none of the potential jurors had actually been instructed by the court on this issue. Sensing the jury's confusion on this point, the District Court interjected and reminded Thueson that there were no assigned percentages to a preponderance, and told counsel that he was confusing the court and jury pool. Shortly thereafter, Thueson then went on to explore other topics with the jury.

¶ 12 During a break and outside the presence of the jury panel, Thueson raised concerns with the court that many panel members had indicated their inability to apply the preponderance of the evidence standard in a civil malpractice case. Counsel indicated his belief that if a juror demonstrated such a bias, he or she should be excused for cause. Defense counsel responded that Thueson was confusing the jury and that, in any event, defense counsel should be given the opportunity to rehabilitate any jurors who were challenged for cause. The District Court reiterated its concerns that Thueson's discussion of the burden of proof was confusing the jury, and allowed Thueson to read to the jurors the pattern jury instruction on the preponderance of the evidence standard in order to clarify the issue.

¶ 13 Thueson continued to examine the jury panel after the break and discussion in chambers. He challenged several potential jurors for cause on grounds not related to the burden of proof question, and the District Court granted some of those challenges. Thueson then returned to examining Juror Waters and questioned him about his ability to be fair in a medical malpractice case. Waters, whose job required him to decide disability determinations on a regular basis, indicated that he could be fair, but wanted to “know the evidence and see the medical evidence.” Thueson questioned whether “malpractice information” would creep into his decision-making process regarding a doctor's liability, to which Waters responded “If he's not doing his job, then-but I don't know that at this point.” When pressed further if he would require a high burden of proof in a medical malpractice case, Waters responded “Doctors can make mistakes like anybody else.” Thueson then challenged Waters for cause. Hoven was given the opportunity to examine Waters, who stated that he would not be biased in judging the evidence presented to him. The District Court subsequently denied Thueson's challenge for cause.

¶ 14 Voir dire continued. However, Jurors Silvonen and Eby were not specifically challenged for cause based on their inability to apply the preponderance of the evidence standard, or their general bias in a medical malpractice suit. As Thueson had been instructed by the District Court to finish his examination before a noon-hour lunch break, Thueson stopped his examination and thanked the jury for their time. Thueson did not...