Kunnanz v. Edge

Decision Date20 April 1994
Docket NumberNo. 930198,930198
Citation515 N.W.2d 167
PartiesErnest KUNNANZ and Alouise Kunnanz, Plaintiffs and Appellants, v. Stephen Leon EDGE, Defendant and Appellee. Civ.
CourtNorth Dakota Supreme Court

Roger R. Sundling (argued) and Alice R. Senechal (argued), Robert Vogel Law Office, PC, Grand Forks, for plaintiffs and appellants.

Donald L. Peterson, McGee, Hankla, Backes & Wheeler, Ltd., Minot, for defendant and appellee. Submitted on brief.

MESCHKE, Justice.

Ernest and Alouise Kunnanz [Kunnanzes] appeal from a judgment, entered upon a jury verdict, dismissing their medical malpractice action against Dr. Stephen Edge. We reverse and remand.

On November 5, 1987, Ernest sought emergency room treatment for what was diagnosed as a kidney stone in his upper ureter. Ernest's physician, Dr. Charles Swensen, sent him to Dr. Edge, a specialist in urology. Dr. Edge recommended an ureteroscopy, a procedure that inserts an ureteroscope, an instrument resembling a small telescope, through the urethra and bladder into the ureter to remove the kidney stone.

According to Dr. Edge, he informed the Kunnanzes about the risks from an ureteroscopy and about alternative treatments. Dr. Edge performed the ureteroscopy on Ernest the same day, and during the procedure, the stone was pushed from Ernest's upper ureter into his kidney and was not removed. Dr. Edge's "report of operation" stated Ernest's ureter was "very narrow ..., [t]here was need to dilate the ureter every 4 or 5 cm.", and "[t]he ureteroscope was then adequately passed up to the level of the renal pelvis; however, no attempt was made at inspecting the renal calices because of the difficulty in passing the ureteroscope due to the size of the ureter." After the operation, Dr. Edge inserted a ureteral stent into Ernest's ureter to allow urine to flow from the kidney to the bladder while irritations to the lining of the ureter healed.

Dr. Edge removed the stent two weeks later and treated Ernest through December 16, 1987, when an x-ray revealed a partial obstruction near the top of Ernest's ureter. Ernest then asked Dr. Swensen to refer him to another doctor for a second opinion, and he was sent to Dr. John Hulbert, an urologist at the University of Minnesota Hospital. On December 22, 1987, Dr. Hulbert performed another ureteroscopy on Ernest. Tests after the second ureteroscopy showed two perforations and a submucosal tunnel in Ernest's upper ureter. Further examination by another urologist determined that Ernest's upper ureter had been damaged, and in March 1988, his ureter and kidney were removed.

Kunnanzes separately sued Dr. Edge in North Dakota and Dr. Hulbert in Minnesota, alleging negligence in the ureteroscopy performed by each. Kunnanzes alleged that Dr. Edge negligently performed the first ureteroscopy and failed to provide them informed consent about alternative treatments for kidney stones, including a non-invasive shock-wave procedure called extracorporeal shock wave lithotripsy (ESWL). They asserted Dr. Edge pushed the kidney stone from Ernest's upper ureter into his kidney where it could not be removed without damaging the ureter and kidney. They contended that accepted standards of medical care required Dr. Edge to end the ureteroscopy then but, instead of stopping the procedure, Dr. Edge continued attempts to remove the stone, causing damage to Ernest's upper ureter and kidney. Dr. Edge responded that he was not negligent and contended that Ernest's injuries happened at the University of Minnesota Hospital.

After a Minnesota jury found in favor of Dr. Hulbert in Kunnanzes' action against him, a North Dakota jury found in favor of Dr. Edge in this action. Kunnanzes appealed from the judgment exonerating Dr. Edge.

1. Minnesota Lawsuit

Kunnanzes contend that the trial court erred in excluding evidence that a jury found in favor of Dr. Hulbert in their Minnesota lawsuit. We agree.

The trial court allowed Dr. Edge to introduce Kunnanzes' summons and complaint in their Minnesota action, but refused to allow Kunnanzes to introduce evidence of the defense verdict in that lawsuit and, instead, instructed the jury:


Evidence has been introduced in this case of previous litigation between the Plaintiffs Ernest and Alouise Kunnanz against John C. Hulbert, David Hunter, and the Regents of the University of Minnesota. This litigation was brought in the District Court in Hennepin County, Minnesota.

You are instructed and admonished to give no consideration or speculation as to the outcome or disposition of this litigation.

After the court decided to give this cautionary instruction, the court refused Kunnanzes' requested instruction that "[t]he law does not allow Mr. and Mrs. Kunnanz to receive double recovery and they are not seeking double recovery in this lawsuit." Kunnanzes argue that the exclusion of the result in their Minnesota lawsuit allowed the jury to believe that the injuries happened at the University of Minnesota Hospital and that Kunnanzes were seeking double recovery here.

Subject to relevancy, a party's factual statements in another pleading are generally received as an evidentiary admission by that party. Vincent v. Louis Marx & Co., Inc., 874 F.2d 36 (1st Cir.1989); Enquip, Inc. v. Smith-McDonald Corporation, 655 F.2d 115 (7th Cir.1981); Continental Insurance Co. of New York v. Sherman, 439 F.2d 1294 (5th Cir.1971). See 2 McCormick, Evidence p 257 (4th ed. 1992); 4 Weinstein's Evidence p 801(d)(2)(A) (1993); 4 Louisell & Mueller, Federal Evidence, Sec. 425 (1980); 29 Am.Jur.2d, Evidence Secs. 687, 695 (1967). However, the party against whom the pleading is used must be allowed to explain the admission. Vincent; Enquip; see 30 Am.Jur.2d, Evidence Sec. 1099 (1967). That requirement corresponds to the rule of completeness in N.D.R.Ev. 106, directing that "[w]henever a writing ... is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it." The rule of completeness is a rule of "fairness" (N.D.R.Ev. 106, explanatory note) that applies to the introduction of writings such as admissions in prior pleadings. 29 Am.Jur.2d, Evidence Sec. 689. In this case, the Kunnanzes were not afforded a fair opportunity to provide a full and complete explanation of their prior pleading.

Courts have recognized an exception to the general rule of evidentiary use of prior pleadings as admissions where claims are pleaded alternatively in multiple-party litigation. Garman v. Griffin, 666 F.2d 1156 (8th Cir.1981); Continental; see Enquip. See generally 29 Am.Jur.2d, Evidence Sec. 692. In Continental, 439 F.2d at 1298, the court explained:

Strictly applied, however, this rule [of admissibility of prior pleadings] would place a litigant at his peril in exercising the liberal pleading and joinder provisions of the Federal Rules of Procedure in that inconsistent pleadings under Rule 8(e)(2) could be used, in the proper circumstances, as admissions negating each other and the allegations in third-party complaints and cross-claims seeking recovery over in the event of liability in the principal action could be used in that action as admissions establishing liability. Thus, as a necessary exception to the general rule, there is ample authority that one of two inconsistent pleas cannot be used as evidence in the trial of the other.

Although Kunnanzes separately sued Dr. Edge and Dr. Hulbert in different jurisdictions, the procedural posture of these two lawsuits is essentially like alternative and inconsistent pleading. On retrial, the trial court is free to consider excluding the Minnesota pleadings, if otherwise practical, in lieu of extending the trial by their use and explanations.

The evidence demonstrates that Ernest's injuries arose after he received medical care. Dr. Edge's own expert, Dr. Irving Thorne, testified that the damage to Ernest's ureter was caused by a doctor. Kunnanzes' position in this lawsuit was that Ernest's injuries were caused by Dr. Edge, or by both Dr. Edge and Dr. Hulbert. Dr. Edge repeatedly asserted that Ernest's injuries occurred at the University of Minnesota Hospital. Once Kunnanzes' pleadings from their Minnesota lawsuit were introduced into evidence in this case, basic fairness entitled them to an opportunity to provide a complete explanation of those pleadings to avoid misleading the jury about the effect of the prior litigation.

Rules of evidence "shall be construed to secure fairness in administration ... to the end that the truth may be ascertained and proceedings justly determined." N.D.R.Ev. 102. Although the trial court gave a cautionary instruction about the other lawsuit, the posturing of this case without letting the jury know about the outcome of the Minnesota claim presented an incomplete picture of that action and resulted in an unfair advantage to Dr. Edge. See Slaubaugh v. Slaubaugh, 466 N.W.2d 573 (N.D.1991) (unfair posturing of case required retrial). We believe the trial court's refusal to allow Kunnanzes to introduce evidence of the result in the Minnesota lawsuit deprived them of a fair opportunity to fully explain their prior pleading.

We hold that the trial court's refusal to allow Kunnanzes to introduce evidence of the outcome in the Minnesota lawsuit was reversible error. We reverse and remand for a new trial.

Kunnanzes raise additional questions about admission of evidence and jury instructions, and we consider those that are likely to arise on retrial. See Oanes v. Westgo, Inc., 476 N.W.2d 248 (N.D.1991). Next, we examine other evidentiary rulings that Kunnanzes complain about.

2. Evidentiary Rulings
A. Kunkel Lawsuit

Kunnanzes assert that the trial court erred in refusing to allow them to introduce evidence of similar medical care by Dr. Edge to another patient. According to Kunnanzes, one week before Ernest's operation, Dr. Edge...

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