Hall v. Birchfield
| Decision Date | 17 June 1986 |
| Docket Number | No. 9346,9346 |
| Citation | 718 S.W.2d 313 |
| Parties | Dr. Jon D. HALL, Dr. Noel W. Cowan, By and Through Pansy Cowan, Executrix, Dr. Betty A. Lowe, and Texarkana Memorial Hospital, d/b/a Wadley Hospital, Appellants, v. Phillip J. BIRCHFIELD and Mary Jo Birchfield, Individually and as Next Friend for Kellie Lee Birchfield, a Minor, Appellees. |
| Court | Texas Court of Appeals |
John D. Raffaelli, Raffaelli & Hawkins, Victor Hlavinka, Atchley, Russell, Waldrop & Hlavinka, Texarkana, W. A. Eldredge, Jr., Little Rock, Ark., for appellants.
Paul N. Gold, Law Offices of Frank L. Branson, P.C., J. Hadley Edgan, Dallas, for appellees.
Before CORNELIUS, C.J., and GRANT and CHADICK *, JJ.
Dr. Jon D. Hall, Dr. Noel W. Cowan (by and through Pansy Cowan, executrix), Dr. Betty A. Lowe, and Texarkana Memorial Hospital, Inc., d/b/a Wadley Hospital, appeal a judgment of $3,311,500.00 based upon a jury verdict. The case involved alleged medical malpractice concerning retrolental fibroplasia (RLF) in a newborn infant.
Kellie Birchfield was born on August 14, 1974, at Wadley Hospital in Texarkana to parents, Phillip J. Birchfield and Mary Jo Birchfield. The infant was two to three months premature and weighed two pounds, seven ounces. She was born with a congenitally small and functionless right eye. She was treated in the hospital nursery Counsel for both the appellants and the appellees have submitted excellent briefs. The physicians and hospital raise 110 points of error on appeal. The Birchfields have cross-appealed raising four points of error.
from the date of her birth until her discharge on November 14, 1974. Shortly afterwards, she was seen by an ophthalmologist, who diagnosed a RLF condition in her left eye. The condition has caused total loss of sight in her left eye. Scientific studies dating from the 1940's and 1950's suggest that a causal relationship exists between the administration of high levels of oxygen to premature infants and the occurrence of RLF.
The hospital and physicians complain of the appointment of a guardian ad litem for the minor and the taxing of the cost of the guardian ad litem against the hospital and physicians jointly and severally. Tex.R.Civ.P. 173 provides that a guardian ad litem shall be appointed for a minor child who is represented by next friend where the next friend appears to the court to have an interest adverse to the minor. The determination of the existence of a conflict of interest requires exercise of judicial discretion. Gibson v. Blanton, 483 S.W.2d 372 (Tex.Civ.App.--Houston [1st Dist.] 1972, no writ). An erroneous appointment of a guardian ad litem does not call for reversal unless it is shown to have prejudiced the jury. Saad v. National Child Care Center, Inc., 612 S.W.2d 660 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ). Caution should dictate the displacement in every legal proceeding in which the pleading or the evidence indicates a reasonable possibility of adverse interest. Newman v. King, 433 S.W.2d 420 (Tex.1968). While some situations require such an appointment, others are within the discretion of the judge. When the natural parents are parties to the suit, a judge may exercise his judicial discretion if he believes that such a potential conflict exists and could arise during a negotiation of settlement or prosecution of the suit, and such costs can be taxed against the defendants. Coleman v. Donaho, 559 S.W.2d 860 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ dism'd). We find that the trial court did not abuse its discretion in appointing the guardian ad litem for the minor.
The hospital and physicians complain that their counsel was not allowed to conduct voir dire examinations of the jury panel regarding acquaintance of prospective jurors with attorney Errol Friedman and by instructing the jury that attorneys Errol Friedman and Jim Hooper were not connected with the parties to the case as far as the court knew. The record indicates that Friedman and Hooper were the referring attorneys and assisted in getting information about jurors. It is not clear why the trial judge so instructed the jury on the involvement of these lawyers. However, he determined those on the panel who knew them.
The trial court conducted voir dire on Friedman and Hooper as follows:
....
The court did not determine whether these acquaintances with the attorneys would influence the potential jurors, apparently on the basis that they could not be influenced because they would not be aware of the involvement of these two attorneys. However, one of the jurors, Richard Martindale, became aware of their involvement through communications with his father and, as he stated in his affidavit, "After a few days of seeing Errol Friedman or Jim Hooper come to the courthouse, I then realized they must be involved in the lawsuit in one way or another."
To constitute reversible error, the appellants must show that as a result of the trial court's action, they were required to take an objectionable person on the jury, and there is nothing in the record to indicate that any remaining juror was biased, prejudiced or disqualified to sit as a juror. Daggett v. McReynolds, 459 S.W.2d 475 (Tex.Civ.App.--Houston [14th Dist.] 1970, no writ).
The hospital and physicians complain of jury misconduct on the basis of three incidents that occurred during the course of the trial.
The first incident involved contact with juror Martindale's father. Attorneys Friedman and Hooper visited him at his place of employment. They briefly informed Martindale's father that his son was on jury duty and something of the nature of the case. They then asked his father if he felt that his son could be fair. His father informed them that his son would stick by his beliefs and would not be persuaded otherwise.
Richard Martindale was one of the two jurors who voted against the Birchfields' position in the case, and therefore, the contact with the family member, although not ethical, could not be considered harmful.
Another contact occurred when William Anderson, an employee of the attorneys for the Birchfields, was in the restroom. According to Anderson, a juror whom he could not identify asked him about the Lakers' basketball game. He replied that he hated to see the Lakers lose a game, and that ended the conversation.
The third contact involved a conversation between juror McPherson's daughter and attorney Errol Friedman. The daughter The one complaining about jury misconduct has the burden to prove the overt act of misconduct, that it was material misconduct, and from the record as a whole that injury probably resulted. Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.1969). We find that the conduct was not material and, from the record as a whole, that injury probably did not result.
was a waitress, and Friedman, while he was at the establishment where she worked, mentioned to her that her father was on the jury. According to Friedman's testimony, that was the extent of the conversation.
The hospital and physicians complain that the trial court erred by admitting opinions of the witnesses as to negligence, heedless and reckless conduct, gross negligence and proximate cause.
Tex.R.Evid. 704 permits testimony in the form of an opinion or inference otherwise admissible even though it embraces an ultimate issue to be decided by the trier of fact. This rule did not change the existing state of evidence law in Texas. Prior to codification of the Texas Rules of Evidence, Texas did not exclude opinions on the basis that they embraced an ultimate issue or invaded the province of the jury. Carr v. Radkey, 393 S.W.2d 806 (Tex.1965); Norvell, Invasion of the Province of the Jury, 31 Texas L.Rev. 731 (1953). However, the new rule did not open the door to...
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Exhibits and Evidence
...You cannot object if you asked the question of a witness, and the answer was responsive to your question. See, Hall v. Bitrchfield , 718 S.W.2d 313 (Tex. Civ. App. Texarkana 1986). (“When a party elicits an answer, he should not be allowed to complain because the answer was unfavorable.” At......