Georgia Dept. of Human Resources v. Phillips

• Decision Date: 16 July 1997
• Docket Number: No. S97A0468,S97A0468
• Citation: 486 S.E.2d 851,268 Ga. 316
• Parties: , 97 FCDR 2581 GEORGIA DEPT. OF HUMAN RESOURCES v. PHILLIPS, et al.
• Court: Georgia Supreme Court

Page 851

486 S.E.2d 851

268 Ga. 316, 97 FCDR 2581

GEORGIA DEPT. OF HUMAN RESOURCES v. PHILLIPS, et al.

No. S97A0468.

Supreme Court of Georgia.

July 16, 1997.

Reconsideration Denied July 30, 1997.

Kevin Matthew O'Connor, William C. Joy, Asst. Attys. Gen., Dept. of Law, Atlanta, John A. Draughon, Special Asst. Atty. Gen., Sell & Melton, Macon, for Georgia Dept. of Human Resources.

David Frank Walbert, Charles A. Mathis, Jr., David A. Webster, Walbert & Mathis, Atlanta, for Virginia Phillips.

SEARS, Justice.

In this appeal from a plaintiffs' verdict in a wrongful death action, we determine that the parties stipulated in the pretrial order that the Georgia Tort Claims Act's cap on damages recoverable against the State was applicable to their action, thereby limiting the damages that could be awarded to no more than $1 million per plaintiff. Thus, the trial court erred by entering judgment awarding the two plaintiffs in this case a total of $ 3.5 million. We also determine that the trial court's judgment does not include impermissible punitive damages, and that the trial court did not err in charging the jury, admitting certain evidence, or denying the State's directed verdict motion. Therefore, we reverse in part and affirm in part the judgment of the trial court.

When Lisa Phillips was nine months old, she suffered a severe case of colitis accompanied by a persistent high fever that resulted in organic brain damage, and left her severely mentally impaired. Her family cared for Lisa until she was ten years old, when she was institutionalized at Central State Hospital ("the Hospital"). Lisa lived at the Hospital for more than twenty years. In 1992, she was discovered laying on a bathroom floor at the Hospital, in a state of cardiopulmonary arrest. She later was pronounced dead. A subsequent autopsy revealed that she had died of acute aspiration and subsequent cardiac arrest caused by a lethal combination of two anti-psychotic drugs, Serentil and Mellaril. According to the toxicologist who analyzed blood samples taken from Lisa, those two drugs cannot safely be administered together at the dosage levels found in Lisa's body. The evidence at trial showed that, at the time of Lisa's death, Mellaril was not prescribed for her by her physicians, and had not been for at least three years.

Appellee Virginia Phillips, acting both as Lisa's personal representative and as administratrix of Lisa's estate, filed suit against the Georgia Department of Human Resources ("DHR"), claiming that the Hospital's employees' negligence in caring for Lisa proximately caused her death. Following a ten day trial, the jury returned a plaintiff's verdict, and awarded $2 million for the full value of Lisa's life, and $1.5 million for her pain and suffering. Relying upon the damages cap set forth in the Georgia Tort Claims Act ("the Act"), ¹ DHR moved to combine and reduce the awards to a total of $1 million. Letter briefs were submitted to the trial court, and a hearing was held, on the applicability of the Act's damages cap. Thereafter, the trial court entered judgment awarding $1.5 million to the estate, and $2 million to Phillips in her representative capacity.

DHR appealed to the Court of Appeals, which certified to this Court the question raised by Phillips of whether application of the Act's cap on damages to this case would abridge the constitutional prohibition against the retroactive application of laws to the detriment of any vested right. ² Subsequently, this Court ordered that the entire appeal be transferred to this Court. For the reasons explained below, we now reverse in part and affirm in part.

1. DHR contends that the trial court erred by entering judgment in the amount of $3.5 million because the pretrial order, agreed upon by the parties and executed by the trial court, stated that "[u]nder the State Tort Claims Act, OCGA § 50-21-29, the maximum amount of damages is $1,000,000.00, and if the jury awards an amount in excess of $1,000,000.00, said amount shall be written down by the Court." ³ Following the jury's verdict, DHR requested the trial court to reduce the entire award to $1 million, pursuant to the pretrial order. After hearing arguments and accepting briefs on the issue, the trial court entered judgment in the full amount of the jury's award. DHR claims that the trial court erred when it did not conform its judgment to the pretrial order's stipulation regarding damages.

The Civil Practice Act provides that once entered, the pretrial order "controls the subsequent course of the action unless modified at the trial to prevent manifest injustice." ⁴ The pretrial order has been likened to "a rudder to the ship of litigation," ⁵ and is intended to limit the claims, contentions, defenses, and evidence that will be submitted to the jury, thereby narrowing the course of the action, and expediting its resolution. ⁶ As such, it is an indispensable tool for the efficient disposition of civil litigation matters.

The Code imposes a duty on each party to assist the trial court in formulating the pretrial order by defining the issues for trial, and deciding "such other matters as may aid in the disposition of the action." ⁷ This process is prescribed "in the hope of promoting efficiency and conserving judicial resources by identifying the real issues prior to trial, thereby saving time and expense for everyone." ⁸ For all of these reasons, it generally is recognized that, unless the pretrial order is modified at or before trial, ⁹ a party may not advance theories or offer evidence that violate the terms of the pretrial order. ¹⁰ As noted by one federal court, if pretrial orders are to continue to serve their laudable purposes, "courts and litigants must take them seriously. A final pretrial order should say what it means, and mean what it says." ¹¹

If a party desires modification of a pretrial order, application should be made to the trial judge either before or during the trial. ¹² Our review of the record shows that Phillips first requested that the trial court modify the pretrial order to permit damages in excess of $1 million per plaintiff nine days after the conclusion of the trial, in a letter brief to the court dated October 30, 1995. Because this request was made well after the trial's conclusion, the principles discussed above indicate that it was untimely.

As noted by Phillips, there may be situations in which a trial judge is authorized to modify a pretrial order acting sua sponte in order to "prevent manifest injustice." ¹³ However, that principle does not encompass an exception to the general rule that modification must be made before or during trial. In any event, we do not believe that a manifest injustice will result in this case if the pretrial order is not modified, as the modification urged by Phillips would tend to work an injustice against DHR. Before trial began, Phillips opted for a strategy that limited recovery to $1 million per plaintiff, and that strategy was memorialized in the pretrial order. To permit Phillips to change that tactic after the jury awarded her $1.5 million more than the pretrial order allowed, when DHR could not have anticipated that such an amount would be recoverable, would unfairly burden DHR's ability at trial to limit its damages. ¹⁴

Relying on the principle that a pretrial order shall be deemed modified to conform to evidence that is admitted at trial without objection, ¹⁵ Phillips claims that because several times during the trial her counsel argued to the jury that damages in excess of $1 million should be awarded, the pretrial order in this case should be deemed automatically modified to support the $3.5 million judgment. We disagree. In support of this argument, Phillips relies upon comments made during voir dire, opening statements, and closing arguments to the jury advocating damages in excess of $1 million per plaintiff. Of course, it is axiomatic that such attorney arguments are not considered to be evidence, and the trial court in this case correctly charged the jury on that point of law. ¹⁶ Therefore, such arguments, standing alone and unobjected to, cannot render a pretrial order automatically modified.

In conclusion, because the pretrial order stated that the damages cap in the State Tort Claims Act applied to this case, the trial court abused its discretion by implicitly modifying the pretrial order to support the $ 3.5 million judgment. The Act permits damages of no more than $1 million per person for a loss arising from a single occurrence, and the State's aggregate liability for a single occurrence cannot exceed $3 million. ¹⁷ In this case, suit was brought by one individual acting both as a personal representative and administratrix--two distinct legal "persons" ¹⁸--and the jury awarded damages to both such legal persons. Therefore, under the pretrial order, the total maximum amount of damages that can be assessed against DHR is $2 million, and the portion of the judgment awarding damages in excess of that amount is reversed.

2. Phillips contends that her claims against DHR accrued before the Act's effective date, and that application of the Act's damages cap to the judgment in this case will violate the constitutional prohibition against applying laws retroactively in derogation of a vested substantive right. ¹⁹ Our ruling in division one disposes of the need to address this enumeration. Pretermitting whether, absent the pretrial order's stipulation regarding damages, application of the Act's damages cap to Phillips' claim would violate the constitutional prohibition against retroactivity, it is clear that for purposes of this litigation, the parties agreed that the damages cap would apply. Contrary to the dissent's assertion, the trial court's failure to enforce the terms of the pretrial order regarding damages did not necessarily "implicitly decide" any constitutional issue, and (as ruled in division one) by enforcing the damages...