Ditto v. McCurdy, No. 22875.

CourtSupreme Court of Hawai'i
Writing for the CourtMOON, C.J., LEVINSON, NAKAYAMA, and ACOBA, JJ.; and RAMIL, J., dissenting.
Citation44 P.3d 274,98 Haw. 123
Decision Date08 April 2002
Docket NumberNo. 22875.
PartiesJanie DITTO, Plaintiff-Appellee, v. John A. McCURDY, Jr., M.D., Defendant-Appellant, and Karla Scarpiova, Defendant.

44 P.3d 274
98 Haw.
123

Janie DITTO, Plaintiff-Appellee,
v.
John A. McCURDY, Jr., M.D., Defendant-Appellant, and
Karla Scarpiova, Defendant

No. 22875.

Supreme Court of Hawai`i.

April 8, 2002.


44 P.3d 275
Richard H. Grover, on the briefs, Honolulu, for defendant-appellant

David C. Schutter and Christopher A. Dias (of Schutter, Dias, Smith & Wong), on the briefs, Honolulu, for plaintiff-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, and ACOBA, JJ.; and RAMIL, J., dissenting.

Opinion of the Court by MOON, C.J.

Following a jury trial upon remand from this court, the First Circuit Court, Honorable Gary W.B. Chang presiding, entered judgment in favor of plaintiff-appellee Janie Ditto and against defendant-appellant John A. McCurdy, Jr., M.D. (Dr. McCurdy) for punitive damages in the amount of $676,700. The trial upon remand was conducted pursuant to this court's decision in Ditto v. McCurdy, 86 Hawai`i 84, 947 P.2d 952, reconsideration denied, 86 Hawai`i 84, 947 P.2d 952 (1997) [hereinafter, Ditto I], in which we affirmed Dr. McCurdy's liability for punitive damages but remanded for a new trial to determine the amount of those damages. On appeal in the instant case, Dr. McCurdy argues that the trial court erred in permitting a passage of this court's decision in Ditto I, which described the evidence supporting Dr. McCurdy's liability for punitive damages, to be read to the jury because the passage could have unduly influenced the jury's assessment of the evidence. For the reasons discussed herein, we agree with Dr. McCurdy, vacate the trial court's judgment, and remand for further proceedings.

I. BACKGROUND

This medical malpractice case originally arose out of a breast augmentation surgery and several follow-up surgeries and procedures performed by Dr. McCurdy in 1986 and 1987. Further details are described in Ditto I and in the corresponding Intermediate Court of Appeals (ICA) opinion. See Ditto I and Ditto v. McCurdy, 86 Hawai`i 93, 947 P.2d 961 (App.1997). Ditto originally sued Dr. McCurdy in 1989, alleging claims for relief sounding in negligence and fraud and seeking, inter alia, punitive damages. In June 1992, a jury returned a special verdict, finding Dr. McCurdy liable to Ditto for negligence and fraud and awarding, inter alia, punitive damages. The jury awarded a total of $1,003,500 in general and special damages for negligence, $600,000 in punitive damages, and an additional $400,000 for

44 P.3d 276
fraud. Judgment was entered pursuant to the special verdict, and Dr. McCurdy appealed. The appeal was initially decided by the ICA, see id., and ultimately by this court in Ditto I. Ditto I affirmed the judgment as to the negligence claim, but held that Ditto's fraud claim failed as a matter of law. Ditto I, 86 Hawai`i at 91-93, 947 P.2d at 959-61. Consequently, this court reversed the judgment as to fraud and the corresponding $400,000 in damages. Id. at 86, 947 P.2d at 954. Moreover, because it could not be ascertained how much of the punitive damages award was attributable to Dr. McCurdy's allegedly fraudulent conduct, this court vacated the punitive damages award. Id. However, we determined that there was "an abundance of clear and convincing evidence upon which the jury could rely to find that Dr. McCurdy's care of Ditto" was grossly negligent and that such evidence was "overwhelming" and of an "egregious nature[.]" Id. at 92, 947 P.2d at 960. Accordingly, this court affirmed Dr. McCurdy's liability for punitive damages on the grounds that the jury most certainly had found Dr. McCurdy to be grossly negligent notwithstanding the erroneous fraud instructions. Id. at 91-92, 947 P.2d at 959-60. Therefore, we remanded the case for retrial on the issue of the amount of punitive damages only. Id. at 93, 947 P.2d at 961

In motions in limine before retrial, Ditto sought to preclude Dr. McCurdy from introducing evidence concerning the medical standard of care as to Dr. McCurdy's actions and to preclude Dr. McCurdy from arguing that the jury could award zero dollars in punitive damages. Ditto pointed out that, pursuant to this court's decision in Ditto I, Dr. McCurdy's liability for punitive damages had already been determined. Accordingly, Ditto sought to prevent Dr. McCurdy from relitigating the issue. Ditto acknowledged that, in order to determine the amount of punitive damages, "the jury must hear what evidence provides the basis for the award." Ditto maintained, however, that "the ICA and the Hawai`i Supreme Court have already done that for the jury. The ICA and the Supreme Court have set out the precise evidence which formed the basis for the punitive damages award[,]" citing to a portion of this court's opinion in Ditto I (described infra at 126, 44 P.3d at 277) that quoted, with approval, the ICA's rendition of the evidence supporting Dr. McCurdy's liability for punitive damages. Ditto argued that:

As a valid, final and binding statement of the law in this state and in this case, the jury can simply be read this portion of [Ditto I], whether by the Plaintiff or by the Court, and will thus be furnished with the evidence that served as the basis for the punitive damages award itself.

At a pretrial hearing, Ditto requested that the trial court take judicial notice of the aforementioned passage in Ditto I. Dr. McCurdy objected on the grounds that Ditto I did not identify the specific facts conclusively supporting the first jury's findings of gross negligence. After considering these arguments and reviewing additional memoranda submitted by the parties, the trial court ultimately ruled that: (1) Dr. McCurdy could not introduce evidence concerning the standard of care as to his actions; (2) Dr. McCurdy could argue to the jury that it had the discretion to award zero dollars in punitive damages; and (3) it would take judicial notice of this court's discussion in Ditto I of the evidence supporting liability for punitive damages.

Trial commenced on June 3, 1999. During opening statements, Ditto told the jury that "[y]ou'll hear what the Supreme Court, your Supreme Court, the highest judicial officers in your judicial system, said about Dr. McCurdy's conduct." During her case-in-chief, Ditto testified, inter alia, that Dr. McCurdy: did not ask her questions about her medical history during her initial consultation with him; did not explain the risks of the initial procedure or of any of the subsequent procedures she underwent to deal with complications from the original procedure; discharged her from the recovery room after she experienced complications from the initial procedure, telling her that he had to make room for other patients;1 permitted

44 P.3d 277
his unsupervised assistant to suture a wound site that had opened; and allowed her to remain conscious during one procedure when, impliedly, he should not have

On cross-examination, Ditto acknowledged that: she was "groggy" and "not fully awake" during one of the conversations that she described in her testimony; she could not completely remember the details of her discussion with Dr. McCurdy concerning informed consent and acknowledged that Dr. McCurdy "probably" told her of at least one potential complication of the initial procedure; some of her testimony concerning the informed consent issue may have been inconsistent with testimony she provided in the first trial; and Dr. McCurdy had offered to pay for follow-up treatment with other surgeons with whose treatment recommendations he agreed.

Following Ditto's testimony, the trial court took judicial notice of the disputed passage in Ditto I, explaining to the jury:

The Plaintiff's entitlement or right to recover punitive damages has already been affirmed by the Hawai`i Supreme Court; and in the process of the Hawai`i Supreme Court issuing its written decision on the question of punitive damages, the Court made certain observations regarding the state of the evidence relating to the entitlement to punitive damages.
And so at this time, the Court will read from page 92 of the [Supreme] Court's decision, a limited passage relating to the circumstances, the factual bases that could have—the facts which could have provided the factual basis for the punitive damage award.2

Reading nearly verbatim from Ditto I, the court then stated:

"We determine that there was indeed an abundance of clear and convincing evidence upon which the jury could rely to find that Dr. McCurdy's care of Ditto from the outset was grossly negligent and, therefore, reckless and consciously indifferent to the consequences that could arise.["]
"For example, there was substantial evidence produced at trial, which, if believed, revealed that the medical history portion of Dr. McCurdy's consultation was woefully inadequate.["]
"Dr. McCurdy did not perform"—excuse me—"Dr. McCurdy did not properly inform Ditto of the risks or complications involved in the initial surgical procedure or any of the subsequent surgical procedures. He sent Ditto home after her second surgery despite continued complications to make room for other patients in his recovery room.["]
"He failed to properly suture her incisions, resulting in constant [bloody] discharges. He failed to document medications allegedly prescribed to Ditto. He... allowed his medical assistant to suture Ditto's incision when he was not physically present."3

In his defense, portions of Dr. McCurdy's testimony from the transcript of the previous trial were read to the jury.4 The testimony stated or implied, inter alia, that Dr. McCurdy: completed an adequate initial medical evaluation; explained the risks of the initial and most of the subsequent procedures to Ditto; did not believe he needed to get consent in another instance because the circumstances constituted an emergency; denied telling Ditto that she had to leave the recovery room to make room for other patients; and allowed his assistant to suture Ditto because he was out of town at the time, and then only after first...

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23 practice notes
  • Hale v. Hawaii Publications, Inc., Civ. No. 05-00709 ACK-BMK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • December 28, 2006
    ...basis for liability for punitive damages and the amount of money required to punish the defendant." Ditto v. McCurdy, 98 Hawai`i 123, 131, 44 P.3d 274 (2002) (citing Kang v. Harrington, 59 Haw. 652, 663, 587 P.2d 285 Punitive damages are available for retaliation claims in the employment co......
  • Kobashigawa v. Silva, No. SCWC–30639.
    • United States
    • Supreme Court of Hawai'i
    • April 26, 2013
    ...pretrial ruling admitting evidence “was sufficient to preserve the issue for appeal.” Ditto v. McCurdy, 98 Hawai‘i 123, 130 n. 9, 44 P.3d 274, 281 n. 9 (2002) (citing Craft, 78 Hawai‘i at 295, 893 P.2d at 146;Page, 80 Hawai‘i at 205 n. 1, 908 P.2d at 553 n. 1;Lussier, 4 Haw.App. at 393–94, ......
  • Smallwood v. Ncsoft Corp., Civ. No. 09-00497 ACK-BMK
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • August 4, 2010
    ...pled a claim for gross negligence, he may have a derivative right to recover punitive damages. See Ditto v. McCurdy, 98 Hawai'i 123, 44 P.3d 274 (2002) ("the proper measurement of punitive damages is the degree of the defendant's malice, oppression, or gross negligence that forms the basis ......
  • Castro v. Melchor, Civil No. 07–00558 LEK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • November 15, 2010
    ...tort claims because Defendants acted with malice, oppression or gross negligence. [ Id. (citing Ditto v. McCurdy, 98 Hawai'i 123, 131, 44 P.3d 274, 282 (2002); Leialoha v. MacDonald, 2008 WL 2736020, 20–21, 2008 U.S. Dist. LEXIS 54105, 63–64 (D.Haw. July 11, 2008)).] Plaintiff argues that t......
  • Request a trial to view additional results
23 cases
  • Hale v. Hawaii Publications, Inc., Civ. No. 05-00709 ACK-BMK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • December 28, 2006
    ...basis for liability for punitive damages and the amount of money required to punish the defendant." Ditto v. McCurdy, 98 Hawai`i 123, 131, 44 P.3d 274 (2002) (citing Kang v. Harrington, 59 Haw. 652, 663, 587 P.2d 285 Punitive damages are available for retaliation claims in the employment co......
  • Kobashigawa v. Silva, No. SCWC–30639.
    • United States
    • Supreme Court of Hawai'i
    • April 26, 2013
    ...pretrial ruling admitting evidence “was sufficient to preserve the issue for appeal.” Ditto v. McCurdy, 98 Hawai‘i 123, 130 n. 9, 44 P.3d 274, 281 n. 9 (2002) (citing Craft, 78 Hawai‘i at 295, 893 P.2d at 146;Page, 80 Hawai‘i at 205 n. 1, 908 P.2d at 553 n. 1;Lussier, 4 Haw.App. at 393–94, ......
  • Smallwood v. Ncsoft Corp., Civ. No. 09-00497 ACK-BMK
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • August 4, 2010
    ...pled a claim for gross negligence, he may have a derivative right to recover punitive damages. See Ditto v. McCurdy, 98 Hawai'i 123, 44 P.3d 274 (2002) ("the proper measurement of punitive damages is the degree of the defendant's malice, oppression, or gross negligence that forms the basis ......
  • Castro v. Melchor, Civil No. 07–00558 LEK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • November 15, 2010
    ...tort claims because Defendants acted with malice, oppression or gross negligence. [ Id. (citing Ditto v. McCurdy, 98 Hawai'i 123, 131, 44 P.3d 274, 282 (2002); Leialoha v. MacDonald, 2008 WL 2736020, 20–21, 2008 U.S. Dist. LEXIS 54105, 63–64 (D.Haw. July 11, 2008)).] Plaintiff argues that t......
  • Request a trial to view additional results

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