Hicks v. Zondag

• Decision Date: 28 January 2014
• Docket Number: No. S–13–0107.,S–13–0107.
• Citation: 317 P.3d 606
• Parties: Mark S. HICKS, administrator and personal representative of the ESTATE OF Johnna R. HICKS, Appellant (Plaintiff) v. Tuenis D. ZONDAG, M.D., and Central Wyoming Neurosurgery, LLC, Appellees (Defendants).
• Court: Wyoming Supreme Court

317 P.3d 606

Mark S. HICKS, administrator and personal representative of the ESTATE OF Johnna R. HICKS, Appellant (Plaintiff)

v.Tuenis D. ZONDAG, M.D., and Central Wyoming Neurosurgery, LLC, Appellees (Defendants).

No. S–13–0107.

Supreme Court of Wyoming.

Jan. 28, 2014.

Representing Appellant: Laurence W. Stinson, Stinson Law Group, P.C., Cody, Wyoming.

Representing Appellees: Jeffrey C. Brinkerhoff, Brinkerhoff Law, Jeffrey C. Brinkerhoff, P.C., Casper, Wyoming.

Before KITE, C.J., and HILL, VOIGT,^*BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] The estate of Johnna Hicks sued Dr. Tuenis Zondag for negligently causing Mrs. Hicks' death while he was treating her for severe chronic pain. It also claimed that the doctor's employer, Central Wyoming Neurosurgery, LLC, should be held vicariously liable for his claimed negligence in causing her death. After a nine-day trial, a Natrona County jury found that Zondag was not negligent in his treatment of Hicks and returned a defense verdict. In its timely appeal from the judgment entered on that verdict, the estate poses one question: Did the district court commit reversible error by permitting Zondag and his codefendant to introduce the testimony of two expert witnesses on the doctor's adherence to the appropriate standard of care for practitioners of pain medicine? We affirm.

ISSUES

[¶ 2] Although Appellant characterizes the district court's decision as one involving an abuse of discretion, we believe this appeal is appropriately resolved by answering the following question:

Did Appellant waive objections to cumulative testimony under Wyoming Rule of Evidence 403 by failing to object at trial after the district court denied a motion in limine on that basis?

FACTS ¹

[¶ 3] Between 2000 and 2006, Mrs. Hicks was plagued by a variety of abdominal ailments, a number of which required surgical intervention. Her primary care physician documented problems with kidney stones, gallstones, appendicitis, colonic obstructions, uterine cysts, and a hysterectomy, many of which were complicated by infections and accompanied by adhesions. During that period she was frequently prescribed opioid analgesics, including Demerol, oxycodone, hydrocodone, and morphine. That mode of treatment became constant as Mrs. Hicks continued to suffer from severe chronic pain in her upper right abdomen. Testing and referrals to specialists proved unsuccessful in uncovering or treating the source of the pain, and she eventually began to experience depression as persistent as her pain. For that condition, her primary care physician prescribed the antidepressant fluoxetine, which is more commonly known by the brand name Prozac.

[¶ 4] Eventually her primary care physician referred Mrs. Hicks to Dr. Zondag, who first met with her on July 20, 2006. Dr. Zondag is board-certified in family medicine, but he maintains a practice that is focused on occupational medicine and also involves pain management. He first referred Mrs. Hicks to a urologist and gastroenterologist and then to a psychologist to obtain an evaluation of her depression. No likely urological, gastrointestinal, or spinal problem could be identified as the source of her pain. Zondag briefly treated her with oxycodone as previous providers had done until she began to experience episodes of both extreme pain and gastric difficulties caused by the oral analgesics. He then began prescribing Actiq.

[¶ 5] Actiq is an ultra-fast-acting form of the opioid fentanyl. It is used to treat the rapid onset of acute intense pain in patients who are already being treated for chronic pain with more common opioids. Originally designed and FDA-approved for cancer patients, it is extremely powerful and is prescribed in dosages measured in micrograms rather than in milligrams. The rapid onset of its analgesic effect is in large part due to the fact that it is administered transmucosally—that is, it is absorbed through the membrane on the inside of the cheek by placing a lozenge on a stick between the patient's cheek and gum. Approximately one-quarter of the drug in an Actiq “lollipop” is delivered in that fashion. Of the remaining three-quarters that are swallowed, only one-quarter is available for pain relief. The rest is absorbed by internal organs and quickly loses its potency.

[¶ 6] Dr. Zondag prescribed 800 mcg. Actiq “suckers” and instructed Mrs. Hicks to use half of one at the onset of severe pain and to use the remainder only if the half dosage did not work. For nearly a year she obtained relief by using one-half to a full lollipop per day along with either oxycodone or hydrocodone. A laparoscopic appendectomy during that period did not relieve her chronic pain, and Dr. Zondag began to suspect that her pain was neuropathic, perhaps resulting from nerve damage from a 2005 surgical procedure. Accordingly, he tried a series of nerve root block injections that provided some relief for periods ranging from two to five months. During those periods, Mrs. Hicks was able to reduce her use of Actiq to between half a pop every other day from half a pop per day. That lasted until January of 2008 when she had kidney stone surgery.

[¶ 7] When oxycodone proved ineffective in combating the severe pain accompanying Mrs. Hicks' postoperative urethral spasms, Dr. Zondag temporarily authorized her to use up to four Actiq per day for five days. He then reduced her dosage to a maximum of one per day. In early February, after she complained that her combined medications were reducing her cognitive abilities, he devised a schedule aimed at weaning her off both Actiq and oxycodone. However, persistent unrelenting pain in the upper right quadrant of her abdomen returned within a week, and Dr. Zondag returned her dosage to one Actiq per day. He also discussed the costly option of surgically placing a pain-relieving spinal cord stimulator in the upper thoracic portion of her spine so as to allow her to reduce or discontinue use of Actiq.

[¶ 8] By May, Mrs. Hicks was beginning to suffer from depression again, and after a five-month break, she was again prescribed Prozac. She began asking for early refills of her Actiq prescription, even though Dr. Zondag had recently authorized her to use two per day. Dr. Zondag refused those requests and instructed her not to overuse the drug. On June 5, 2008, she reported that she was suffering more acute pain due to a urinary tract infection.

[¶ 9] That night Mrs. Hicks watched television from the living room couch with her daughter, who went to bed at 10:00 p.m. At 6:00 the next morning, her husband found her dead, still curled up on the couch. A forensic pathologist who conducted an autopsy later that day found that she died from pulmonary congestion and edema. Because of the presence of fentanyl and fluoxetine in her blood stream, he concluded that she accidentally overdosed on her medications, which compromised her respiration while she slept.

[¶ 10] Her estate filed suit in mid-August of 2010, and it identified Dr. Gerald Aronoff as its standard of care expert on December 1, 2011. On March 30, 2012, Dr. Zondag and his employer named Dr. Lynn Webster and Dr. Dermot Fitzgibbon as proposed expert witnesses on the standard of care. The estate deposed Drs. Fitzgibbon and Webster on, respectively, July 11 and August 21, 2012. On December 21, it filed a motion in limine ² seeking to confine the defendants to a single standard of care expert at trial because the testimony of Drs. Fitzgibbon and Webster would be duplicative. The district court conditionally denied that portion of the estate's motion on January 22, 2013, noting that its denial was “without prejudice to Plaintiff's right to assert objections at trial at the time proposed evidence is cumulative or otherwise in violation of Rule 403 of the Wyoming Rules of Evidence [.]” ³

[¶ 11] Both Webster and Fitzgibbon testified at trial. Counsel for Mrs. Hicks' estate cross-examined both, but raised no Rule 403 objections before or during their testimony. As noted above, the jury concluded that Appellanthad not proven that Dr. Zondag had failed to meet the standard of care applicable to practitioners of pain medicine, and it therefore rendered a defense verdict.

DISCUSSION

[¶ 12] Appellant contends that its liminal motion sufficed to preserve its present claim of error for appeal even though it did not object to the testimony of the two defense experts. The construction of court rules, like the construction of statutes, is a question of law, which we review de novo. Dorr v. Smith, Keller & Assocs., 2010 WY 120, ¶ 11, 238 P.3d 549, 552 (Wyo.2010). To determine whether Appellant's contention is correct, we must first look to Wyoming Rule of Evidence 103, which states in pertinent part:

(a) Effect of erroneous ruling.—Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection.—In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record[.]

W.R.E. 103(a). The committee note to that portion of Rule 103 states that a party need not “make a further objection at the time of trial to evidence which has previously been ruled admissible on” a prior pretrial motion in limine. However, that statement does not completely convey the intent of the rule in light of the avowed purpose of the drafters to conform Wyoming's evidentiary rules to those of similar federal rules. See the August 26, 1977 Order of this Court (effective January 1, 1978) adopting the Wyoming Rules of Evidence and the committee note prefacing those rules.

[¶ 13] The original version of F.R.E. 103(a) was identical to the current Wyoming rule. In 2000, the federal rule was amended to change subsection (b) to the following:

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to...