Galumbeck v. Lopez

• Decision Date: 02 March 2012
• Docket Number: Record No. 102416.
• Citation: 283 Va. 500,722 S.E.2d 551
• Parties: Matthew A. GALUMBECK, et al. v. Joseph LOPEZ, Administrator of the Estate of Maritess Q. Lopez, Deceased.
• Court: Virginia Supreme Court

283 Va. 500

722 S.E.2d 551

Matthew A. GALUMBECK, et al.

v.Joseph LOPEZ, Administrator of the Estate of Maritess Q. Lopez, Deceased.

Record No. 102416.

Supreme Court of Virginia.

March 2, 2012.

Mark E. Frye, Bristol, TN (Richard E. Ladd, Jr.; Penn, Stuart & Eskridge, on briefs), for appellants.

L. Steven Emmert(Kenneth B. Wills; Sykes, Bourdon, Ahern & Levy, Virginia Beach, on brief), for appellee.

Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, MIMS, and POWELL, JJ., and LACY, S.J.

OPINION BY Justice CLEO E. POWELL.

Dr. Matthew A. Galumbeck and Plastic Surgery of Tidewater, P.C. appeal a judgment in favor of the plaintiffJoseph Lopez(“Lopez”), administrator of the estate of Maritess Q. Lopez(“Maritess”).Finding that the trial court did not err, we affirm the judgment.

BACKGROUND

On July 30, 2008, Maritess underwent outpatient surgery performed by Dr. Galumbeck.After the surgery, Kenneth Hale brought Maritess home.He noticed that she was not breathing normally, she was unable to speak clearly and she had to be helped to his car by the nurses.

On July 31, 2008, the morning after the surgery, Carmelita Hale(“Hale”), Maritess' sister, called Dr. Galumbeck's office and spoke to Nurse Marsha Phillips.Hale told Nurse Phillips that Maritess was in pain, feverish and very dizzy.According to Hale, Nurse Phillips expressed no concern and told her those symptoms were normal.

Later that same day, Maritess died from aspiration pneumonia secondary to the surgery.Lopez, her husband, qualified as administrator of her estate and brought a wrongful-death action against Dr. Galumbeck, Dr. Carl Flor,¹ and Plastic Surgery of Tidewater, P.C.

At trial, Dr. Galumbeck testified that Nurse Phillips could not have answered the phone call from Hale on July 31, 2008, because she was in the operating room with him at that time.When asked how he knew that, Dr. Galumbeck stated that he had reviewed the surgical log.At that point, Lopez' counsel objected and the trial court held a side bar conference.²THE TRIAL COURT THen instructed the jury to disregard the mention of any surgical log.

Dr. Galumbeck also testified that he was not paid for the surgery.Another side bar conference was held, also off the record.Dr. Galumbeck alleges that during the side bar conference, he attempted to offer documents into evidence that show he was never paid for the surgery.According to Dr. Galumbeck, the trial court rejected the evidence.

During cross-examination, Dr. Galumbeck was asked about the contents of his website, namely whether it states that he offers board-certified anesthesiologists for all operations at Plastic Surgery of Tidewater, P.C.Dr. Galumbeck's counsel stated “Objection.May we approach?”Another side bar discussion was held off the record.At the conclusion of that discussion, the trial court overruled the objection and Lopez' counsel was permitted to question Dr. Galumbeck about whether his website indicated that he offered only board-certified anesthesiologists.Dr. Galumbeck admitted his website stated that his anesthesiologists were board-certified, even though Dr. Flor is not board-certified.When Lopez offered a copy of the website into evidence, counsel for Dr. Galumbeck objected to the relevance of the exhibit.The document was admitted into evidence.

At the end of the day, after the court adjourned, counsel for Dr. Galumbeck recorded a statement with the court reporter that he called a “proffer.”In his statement, counsel summarized his arguments and some of the trial court's rulings regarding counsel's attempts to introduce Defendant's rejected Exhibit A, the surgical log, and Defendant's rejected Exhibit B, the payment records.Counsel also restated his objections about the admission of evidence that Dr. Flor was not a board-certified anesthesiologist.

The following morning, Dr. Galumbeck made a motion for a mistrial based on the misconduct of Juror Conway.According to Dr. Galumbeck's counsel, he saw Juror Conway shake the hand of Dr. Waisman, one of Lopez' expert witnesses, and tell him “good job,” after Dr. Waisman had testified and the jury was leaving the courtroom.Counsel for Dr. Galumbeck further alleged that Juror Conway “shook his head[ ] and made a gesture with his right fist, as if to say, I'm with you” towards Lopez.

The trial court stated that it would allow counsel to question Juror Conway about these incidents.Counsel for Dr. Galumbeck objected, stating that he believed it would be improper for him to question the juror and then have the juror remain on the jury.The trial court overruled the objection.

Outside of the presence of the other jurors, the trial court asked Juror Conway if he had spoken to the plaintiff's expert.Juror Conway responded that he“didn't talk to him.[He] just shook his hand and said ‘good job.’ ”The trial court asked what he meant by that, and Juror Conway responded that he“thought [the expert] did a good job in dealing with ... what he was asked to do.”The trial court asked if this interaction in any way indicated that Conway was biased, and Juror Conway responded that it did not.The trial court then asked if Juror Conway had ever shaken hands with Lopez, and Juror Conway responded, “I have never touched Mr. Lopez.”

The trial court then allowed counsel for both parties to question Juror Conway.Counsel for Lopez asked if Juror Conway could “fairly and impartially decide this case,” to which Juror Conway responded “Absolutely.”

Counsel for Dr. Galumbeck then asked Conway if he had nodded his head at Lopez as he walked by.Conway responded, “Oh, I've nodded my head at several people in here.What, can you not nod your head or what?”He further explained that he might have acknowledged Lopez with a nod “like ‘how are you,’ ” but reiterated that he was impartial.The trial court ultimately denied Dr. Galumbeck's motion for a mistrial.

Dr. Galumbeck then moved for a mistrial based on the admission of evidence about Dr. Flor's lack of board certification.The trial court said that it had already ruled on that issue and denied the motion.Counsel for Dr. Galumbeck asked to state his motion for the record, but the trial court denied his request, stating: “This is denied, you can cite your objections later.”When counsel for Dr. Galumbeck asked if the court was not permitting him to state his motion for the record, the trial court responded: “Not now.You will be [allowed] later.We've got to get the case moving.”³

After hearing all of the evidence, the jury returned a verdict in favor of Lopez.Dr. Galumbeck and Plastic Surgery of Tidewater, P.C. subsequently filed a motion to set aside the verdict.The trial court denied the motion and entered judgment on the jury verdict.

ANALYSIS

On appeal, Dr. Galumbeck asserts that the trial court erred in (1) denying his motion for a mistrial due to a juror's alleged misconduct; (2) prohibiting him from introducing the surgical log into evidence or from using it to refresh Nurse Phillips' recollection; (3) allowing testimony and evidence on a collateral matter; and (4) admitting the unpaid medical bills into evidence.

1.Juror Misconduct

Dr. Galumbeck argues that the trial court abused its discretion by denying his motion for a mistrial due to the misconduct of Juror Conway.Dr. Galumbeck contends that Juror Conway's actions and his evasive and confrontational attitude when questioned about his actions clearly demonstrated that he lacked impartiality.According to Dr. Galumbeck, Juror Conway's lack of impartiality required the trial court to replace him with the available alternate juror or declare a mistrial.We disagree.

We have recognized that

a mistrial will not be declared automatically upon a showing of juror misconduct, but that the trial judge, in the exercise of a sound discretion, must determine whether remarks made about the case by a juror to persons not jurors demonstrate that prejudice might result.The burden to establish this probability of prejudice is upon the party moving for a mistrial.This view is based upon the universal rule that fraud will not be presumed and upon the reluctance to presume prejudicial misconduct.

Haddad v. Commonwealth of Virginia,229 Va. 325, 330, 329 S.E.2d 17, 20(1985).

Thus, the law is clear that an empanelled juror is presumed impartial and the burden to prove prejudice is on the party moving for a mistrial.Id.Here, Juror Conway explained his actions ⁴ and those explanations were found to be credible by the trial court.On this record, it cannot be said that Dr. Galumbeck carried his burden of proving prejudicial misconduct on the part of Juror Conway.

2.Surgical Log

Dr. Galumbeck next argues that the trial court erred by refusing to allow him to question witnesses about the surgical log or introduce the surgical log into evidence as a sanction for violating Rule 4:12.He contends that there was no Rule 4:12 violation, as there was no order compelling discovery of the surgical log.He further states that he did not violate the pretrial scheduling order, as the order did not require either party to list exhibits that are to be introduced for rebuttal or impeachment.Finding that Dr. Galumbeck has failed to present a sufficient record to permit review of the assigned error, we hold that this argument is waived.

It is the obligation of the petitioner/appellant to ensure that the record is sufficient to enable the Court to evaluate and resolve the assignments of error.When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues related to the assignments of error, any assignments of error affected by the omission shall not be considered.

Rule 5:11(a)(1).In conjunction with this Rule, this Court has repeatedly admonished:

A circuit court's judgment is presumptively correct, and the appellant bears the burden of presenting a sufficient record to permit a...