Harwick v. Dye, 87,687
| Decision Date | 09 February 1999 |
| Docket Number | No. 87,687,87,687 |
| Citation | 975 P.2d 453 |
| Parties | Karen HARWICK and Wayne Harwick, Co-administrators of the Estate of Baby Boy Harwick, Deceased; Karen Harwick, Individually; Karen Harwick and Wayne Harwick, As Surviving Parents of Baby Boy Harwick, Deceased, Appellants, v. Bryan DYE, M.D.; Purcell Municipal Hospital, and Health Care Associates, Appellees. |
| Court | Oklahoma Supreme Court |
¶0 The Honorable Candace L. Blalock, trial judge, denied plaintiffs' motion for new trial after jury verdict for the defendants. By memorandum opinion designated not for publication, the Court of Civil Appeals, Division II, reversed the trial judge in an opinion that is in conflict with a recent decision of this Court, Mills v. Grotheer, 1998 OK 33, 957 P.2d 540. We granted certiorari and now partially vacate the opinion of the Court of Civil Appeals and affirm the trial court.
CERTIORARI PREVIOUSLY GRANTED; THE OPINION OF COURT OF CIVIL APPEALS IS VACATED INSOFAR AS IT IS IN CONFLICT WITH THIS OPINION; TRIAL COURT AFFIRMED.
Richard L. Denney, Lydia JoAnn Barrett, Denney & Barrett, P.C., Norman, Oklahoma, For Appellants.
Perry T. Marrs, Jr., Short Wiggins Margo & Adler, Oklahoma City, Oklahoma, For Appellee, Bryan Dye, M.D.
James W. Connor, Jr., Michael J. Heron, Travis Dunn, Johnson, Hanan & Connor, P.C., Oklahoma City, Oklahoma, For Appellee, Purcell Municipal Hospital.
¶1 In a medical malpractice action, the jury returned a verdict for the defendants. Plaintiffs sought a new trial on numerous grounds, which the trial judge denied. Plaintiffs appealed the trial court's denial of their motion for new trial and the Court of Civil Appeals reversed on two grounds: 1) the trial court's refusal to permit questioning of potential jurors about tort reform and punitive damages, and 2) the trial court's refusal to permit cross examination of defendant's medical expert about his and defendant's both being insured by the Physicians Liability Insurance Company (PLICO). The plaintiffs had also argued that defendant counsel engaged in misconduct that denied them a fair trial. The Court of Appeals, without determining whether inappropriate conduct occurred, stated only that when the misconduct allegation was considered with the other errors, plaintiffs were denied a fair trial.
¶2 Because the Court of Civil Appeals' opinion is in conflict with our recent opinion in Mills v. Grotheer, 1998 OK 33, 957 P.2d 540, we granted certiorari. In the case at bar, the Court of Civil Appeals held that the trial court erred in refusing to allow defendant Dye's expert witness to be examined about his and the defendant's common membership in PLICO. There was no allegation of any involvement in PLICO other than that both were physicians insured by PLICO. The plaintiffs argued that PLICO-insured doctors in practical effect "own the company." In Mills we adopted the "connections" test by which a trial court must determine when an expert's connection to a defendant's insurer is probative enough to substantially outweigh the prejudice to defendant that results if the jury learns that defendant carries liability insurance. Under the connections test, a plaintiff must be able to establish that an expert has more connection to a defendant's insurer than that of policyholder, or in the case of a mutual insurance company, membership. 957 P.2d at 543. In other words, unless an expert witness for the defendant in a personal injury case has a substantial connection to the insurer which goes beyond that of mere policyholder, such examination should not be allowed. We held in Mills that the trial court did not abuse his discretion in refusing to allow plaintiff to examine defendant's expert witness about common membership of defendant and expert witness in PLICO. In the case at bar, because no connection other that of common policyholders is alleged, the connections test adopted in Mills has not been satisfied.
¶3 Plaintiffs also allege that the trial judge erred by not allowing them to conduct voir dire on the issues of punitive damages and tort reform, thereby thwarting their attempt to show bias or prejudice on the part of potential jurors. The record presented for review does not reflect that plaintiffs requested voir dire on the issue of tort reform, or that the trial court refused to permit that line of questioning. Plaintiffs' brief states only that the trial court restricted their right to an adequate and thorough voir dire of the prospective jurors by not allowing them to inquire as to the potential jurors' "knowledge and feelings about punitive damages and tort reform." We are not directed to any part of the record showing a request by plaintiff and a refusal by the trial judge to permit plaintiff to question the jury about tort reform. We are not directed to any specific authority in support of the proposition that voir dire questioning about tort reform should be allowed. 1 More than general allegations must be made in order to support such contentions.
¶4 Plaintiffs also argue that they were not permitted to present their basis for punitive damages in their opening statements or in their case in chief or to voir dire on the issue of punitive damages. They point to media portrayal of "windfall" cases, such as the McDonald's coffee case, which when coupled with public sentiment regarding the tort system of recovery, "have left many with the belief, albeit wrong, that punitive damages are out of control and make no economic sense." This, they argue, has only served to further increase and solidify those biases and prejudices that the general public has against lawyers, and "destroys our American Justice System." Accordingly, they say, voir dire in the area of punitive damages "should be more than a mere generic inquiry of the prospective jurors made in passing because voir dire is intended to reveal biases and prejudices of any prospective jurors." Plaintiffs have cited no authority specifically on the issue of whether voir dire on punitive damages should be allowed, but rather argue generally that plaintiffs should be accorded a wide latitude in their search to pinpoint bias and prejudice on the part of potential jurors. In the case at bar, whether to permit such questioning was within the discretion of the trial judge and absent an abuse of discretion, the decision will not be overturned.
¶5 The defendants sought a motion in limine that plaintiffs not be permitted to mention punitive damages until the trial judge had made a determination, based on the evidence, that punitive damages were appropriate in the case. They argued that allowing mention of punitive damages prior to that time would be extremely prejudicial to the defendants. The defendant Purcell Municipal Hospital claimed protection from punitive damages under the Governmental Tort Claims Act. The trial judge granted the motion in limine and, at the conclusion of the evidence, found that punitive damages were not warranted in the case. A claim for punitive damages is incidental to a claim for actual damages and cannot be award unless there are actual damages. State ex rel. Southwestern Bell Telephone Co. v. Brown, 519 P.2d 491 (Okla.1974). In the case at bar, the jury found no negligence on the part of defendants. The jury awarded no actual damages and so did not reach the question of punitive damages. The trial judge's ruling was within her sound discretion and the trial judge did not abuse her discretion in so ruling. Rogers v. Citizens National Bank in Okmulgee, 373 P.2d 256 (Okla.1962).
¶6 Plaintiffs make a final argument concerning improper conduct of defense counsel. Plaintiffs argue that conduct of defense counsel was prejudicial to their case. The trial judge, in ruling on the misconduct allegations in plaintiffs' motion for new trial, specifically stated that the incidents occurred while the jury was in recess and found no jury prejudice resulting from such conduct. In order for misconduct to warrant consideration as to its prejudicial effect on the jury, it must have occurred in front of the jury. We have held that abusive language and derogatory remarks made within hearing distance...
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