Kuhn v. Schall

• Decision Date: 19 April 2010
• Docket Number: No. 62554-3-I.,62554-3-I.
• Citation: 228 P.3d 828
• Court: Washington Court of Appeals
• Parties: Jonathan KUHN, an individual; and Joan Kuhn and Dan Kuhn, husband and wife and their marital community, Respondents, v. Bill S. SCHALL, M.D., and Janet G. Schall, husband and wife and their marital community; Richmond Pediatric Clinic, Inc., P.S., a Washington professional service corporation, Appellants. Jeff Hawley, an individual; Paul Hawley, an individual; and Rich Hawley and Bev Hawley, husband and wife, Respondents, v. Bill S. Schnall, M.D., and Richmond Pediatric Clinic, Inc., P.S., a Washington professional service corporation, Appellants. Daniel Fewel, an individual; and Kathleen Fewel and Joe Fewel, husband and wife, Respondents, v. Bill S. Schall, M.D., and Janet G. Schall, husband and wife and their marital community; Richmond Pediatric Clinic, Inc., P.S., a Washington professional service corporation, Appellants.

228 P.3d 828

Jonathan KUHN, an individual; and Joan Kuhn and Dan Kuhn, husband and wife and their marital community, Respondents, v. Bill S. SCHALL, M.D., and Janet G. Schall, husband and wife and their marital community; Richmond Pediatric Clinic, Inc., P.S., a Washington professional service corporation, Appellants.

Jeff Hawley, an individual; Paul Hawley, an individual; and Rich Hawley and Bev Hawley, husband and wife, Respondents, v. Bill S. Schnall, M.D., and Richmond Pediatric Clinic, Inc., P.S., a Washington professional service corporation, Appellants.

Daniel Fewel, an individual; and Kathleen Fewel and Joe Fewel, husband and wife, Respondents, v. Bill S. Schall, M.D., and Janet G. Schall, husband and wife and their marital community; Richmond Pediatric Clinic, Inc., P.S., a Washington professional service corporation, Appellants.

No. 62554-3-I.

Court of Appeals of Washington, Division 1.

April 19, 2010.

COPYRIGHT MATERIAL OMITTED

Daniel W. Ferm, Mary H. Spillane, Timothy E. Allen, Bennett Bigelow & Leedon, Seattle, WA, Karen O. Kasey, Hoffman Hart & Wagner, Portland, OR, for Appellants.

Ronald Scott Bemis, Anne Melani Bremner, Peter J. Mullenix, Seattle, WA, for Respondents.

ELLINGTON, J.

¶ 1 Most of the several plaintiffs in this action were awarded some damages, albeit considerably less than they requested. The court granted a new trial on grounds of juror misconduct (material nondisclosure and injection of extrinsic evidence) and misconduct by defense counsel in closing argument. Plaintiffs were not required to show the damage awards were so inadequate as to indicate passion or prejudice in order to seek a new trial on other grounds. The court did not abuse its discretion in granting a new trial, and we affirm.

BACKGROUND

¶ 2 Dr. Bill Schnall started working as a pediatrician at the Richmond Pediatric Clinic in Shoreline, Washington in 1976. Plaintiffs Jeff Hawley, born November 22, 1982, his brother Paul Hawley, born February 24, 1986, Jonathan Kuhn, born November 6, 1986, and Daniel Fewel, born December 11, 1989, became Schnall's patients when they were babies or young boys.

¶ 3 In August 2005, the Medical Quality Assurance Commission formally alleged that Schnall had "violated proper physician-patient boundaries with some of his patients, including violations that were sexual in nature, and was progressively testing boundaries with others."¹ Among the three patients whose cases were discussed in the statement of charges were Jeff Hawley and Daniel Fewel.

¶ 4 Schnall's license was summarily suspended. In March 2006, Schnall stipulated that he "practiced outside the standard of care by violating appropriate physician-patient boundaries" and that he "committed unprofessional conduct in violation of RCW 18.130.180(4) and (24) (abuse of a client or patient)."² He surrendered his medical license.

¶ 5 The present lawsuits soon followed. Jeff and Paul Hawley, Jonathan Kuhn, Daniel Fewel, and their parents allege that Schnall conducted excessive and inappropriate genital exams, took excessive and inappropriate sexual history, failed to adhere to appropriate physician-patient boundaries in numerous ways and became overly involved in their lives, improperly prescribed psychiatric medication, and improperly conducted behavior modification therapy in an attempt to groom them for sexual contact. They sued Schnall and the Richmond Pediatric Clinic in three separate lawsuits, later consolidated. The patient-plaintiffs alleged that Schnall's conduct constituted medical negligence, sexual battery, outrage, and negligent infliction of emotional distress.³ Against the clinic they alleged corporate medical negligence and vicarious liability. The parent-plaintiffs alleged loss of consortium.

¶ 6 The court allowed plaintiffs to amend their complaints to assert claims for attorney fees under RCW 9.68A.130 based on allegations that Schnall had communicated for immoral purposes with the patient-plaintiffs while they were minors, in violation of RCW 9.68A.090.⁴ This question was to be decided after the verdict on the principal claims. The jury was not informed about the court's decision to bifurcate the trial. The court excluded any reference to criminal probable cause or the fact that Schnall was never arrested or charged with any crime. The court also excluded any reference to the fact that plaintiffs' claim of communication with a minor for immoral purposes was related to attorney fees.

¶ 7 Trial lasted more than six weeks. On the afternoon of July 16, 2008, the jury returned its verdict. The jury found that Schnall violated the standard of care as to three of the four patient-plaintiffs (all except Paul Hawley), resulting in damages to each, and that his actions were within his scope of his employment with the clinic. The jury also found that Schnall negligently inflicted emotional distress upon three of the four patient-plaintiffs (all except Jonathan Kuhn), but this distress had proximately caused damages only to Jeff Hawley. The jury found that Schnall's negligent infliction of emotional distress was not within the scope of his employment with the clinic.

¶ 8 The jury found the clinic did not violate its duty to protect the four patient-plaintiffs. Although it found that the clinic negligently supervised Schnall, it found that the clinic's negligent supervision was not a proximate cause of any of the patient-plaintiffs' damages.

¶ 9 The jury awarded damages ranging between $12,400 and $300,000 to all of the patient-plaintiffs (except Paul Hawley) and to the Kuhns and the Fewels (but not the Hawleys). Except for Daniel Fewel, all the plaintiffs were found contributorily negligent and their awards were subject to 15 to 25 percent reductions.

¶ 10 Immediately after the verdict was entered, the court instructed the jury for the second phase of deliberations, the parties argued their positions, and the jury again retired to deliberate.

¶ 11 The defendants had proposed, and the court had rejected, an instruction that would have required the jury to find that Schnall's communications with the minor patient-plaintiffs had "the predatory purpose of promoting the patient-plaintiffs' exposure to and involvement in sexual misconduct."⁵ The court instead instructed the jury it had to find that the communications were "for immoral purposes of a sexual nature."⁶

¶ 12 During closing argument, however, Schnall's counsel showed the jury an enlarged printout of a Washington Supreme Court opinion containing the "predatory purpose" language. He then argued twice, over sustained objections, that the jury needed to find a "predatory purpose" of promoting "severe sexual misconduct."⁷

¶ 13 The jury began deliberating that afternoon. That evening, the Seattle Times and the Seattle Post-Intelligencer (in their online editions) and at least one television station, KOMO TV, published reports about the phase one verdict and the anticipated purpose of phase two. The July 17 print edition of the Seattle Times repeated the earlier reports on the trial. Both newspapers reported that Schnall had never been charged with communicating with minors for immoral purposes or with any other crime and that the purpose of phase two was to decide whether plaintiffs should be awarded attorney fees. The articles included a quote from one of the plaintiffs' attorneys saying that the fees amounted to $1.8 million.

¶ 14 Like the newspaper articles, the KOMO TV story included reports on the phase one verdict and the fact that Schnall had never been charged. The story also reported that the plaintiffs could request the court to increase the damages awards, referenced the Medical Quality Assurance Commission's findings, and included an on-air statement from Schnall's attorney saying that the commission dropped all charges of sexual motivation against Schnall.⁸

¶ 15 The next day the jury announced its phase two verdict, finding that Schnall did not communicate for immoral purposes with any of the four patient-plaintiffs while they were minors.

¶ 16 Plaintiffs moved for posttrial relief. Among other things, they requested a new trial on grounds of juror and attorney misconduct and damages so inadequate as to indicate passion or prejudice.⁹

¶ 17 The allegation of attorney misconduct was premised on defense counsel's "predatory purpose" closing argument. The allegations of jury misconduct were premised upon two grounds: nondisclosure of material information by two jurors and injection into deliberations of extrinsic evidence in the form of information in media reports and sexual abuse experiences. In support of their motion, plaintiffs submitted declarations from three jurors.

¶ 18 Juror 4 declared as follows: On the final morning of deliberations, a copy of the Seattle Times article was in the jury room. There was a generalized discussion of the media coverage, including references to the two newspaper articles and the KOMO TV report. A juror read the article aloud to seven or eight others then-present, including Juror 4. The information in the article prompted a discussion among the jurors that "the plaintiffs were trying to get more money."¹⁰ Juror 4 did not indicate the timing of these events.

¶ 19 Juror 9 declared as follows: Juror 6 (the jury foreperson) and Juror 1 stated they had seen the television coverage the night before. Juror 1 told those who were considering voting for the plaintiffs, "If you knew what we were voting on you would probably change your vote."¹¹ A copy of the Seattle Times article was brought into the jury room by a juror. The jurors then began discussing that "the plaintiffs were trying to get more money."¹² Juror 9 read the article aloud to other jurors after the verdict form was filled out but before the jury announced its verdict in court.

¶ 20 Juror 11 declared as follows: During deliberations on the first verdict, Juror 6, the foreperson, "broke down at one point"¹³ and revealed she had been sexually abused...