LOPEZ-STAYER EX REL. STAYER v. Pitts

• Decision Date: 22 June 2004
• Docket Number: No. 21984-4-III.,21984-4-III.
• Citation: 122 Wash.App. 45,93 P.3d 904
• Parties: Amber D. LOPEZ-STAYER, a minor, By and Through Angela P. STAYER, Guardian ad Litem, Appellant, v. Kevin S. PITTS, M.D., Respondent.
• Court: Washington Court of Appeals

93 P.3d 904

122 Wash.App. 45

Amber D. LOPEZ-STAYER, a minor, By and Through Angela P. STAYER, Guardian ad Litem, Appellant, v. Kevin S. PITTS, M.D., Respondent.

No. 21984-4-III.

Court of Appeals of Washington, Division 3, Panel Nine.

June 22, 2004.

James E. Baker, Seattle, William D. Pickett, Yakima, for appellant.

Mary H. Spillane, William Kastner & Gibbs, Seattle, Dennis L. Fluegge, Yakima, for Respondent.

SWEENEY, J.

The scope and extent of voir dire is vested in the discretion of the trial judge conducting the trial. State v. Frederiksen, 40 Wash.App. 749, 752-53, 700 P.2d 369 (1985). Here, the trial judge refused to let the plaintiff's lawyer use the word "insurance" in the conduct of his voir dire of a jury. The judge did permit extensive inquiry into the jurors' attitudes on medical malpractice litigation, the medical malpractice "crisis," claims, and frivolous lawsuits. We conclude that the limitations imposed by the trial judge fell well within his discretionary authority. And we therefore affirm the judgment and the court's order denying a motion for a new trial.

FACTS

Angela P. Stayer,¹ as guardian ad litem for her daughter, Amber D. Lopez-Stayer, sued Dr. Kevin Pitts. She claims that he negligently managed Amber's delivery. Amber's shoulder stuck behind her mother's pubic bone. This resulted in a condition known as shoulder dystocia. Ms. Stayer argued that Amber suffered permanent injury to her nerves when Dr. Pitts elected to continue with a vaginal delivery. Dr. Barbara Bates, Ms. Stayer's family practice physician, referred the case to Dr. Pitts for a Cesarean section after she identified the shoulder dystocia problem and determined that a vaginal delivery could not be safely performed.

Dr. Pitts moved to exclude mention of liability insurance coverage at trial. Ms. Stayer wanted to question the jury on the malpractice insurance "crisis" and related publicity.

The court permitted broad inquiry into "claims," "lawsuits," and the medical malpractice "crisis" in general, but refused a specific discussion of insurance:

Well, the Court is going to preclude reference to insurance. I looked over the [jury] questionnaire and I don't see that in the questionnaire insurance is referenced at all. Malpractice is referenced. Malpractice crisis is referenced but not insurance, unless I've missed something. The Court is not going to allow inquiry either in voir dire or during the course of the trial about insurance. It would make no sense to allow it in voir dire and then not allow it during the trial. So I think you can phrase your questions, Mr. Baker [²] — I have confidence in you — in the spirit of the questionnaire which doesn't talk about insurance but does talk about problems in the industry, if we can refer to medicine as an industry.

Report of Proceedings (RP) at 51.

Prospective jurors completed a questionnaire as part of the voir dire process. It included the following statements:

a. It is worse to award too little than too much to an injured party in a lawsuit.

Agree

Disagree

No Opinion

b. A bad outcome usually means malpractice has been committed.

Agree

Disagree

No Opinion

c. Lawsuit damages are often the only way to make doctors accountable.

Agree

Disagree

No Opinion

d. Malpractice lawsuits help "police" the medical profession and keep it honest.

Agree

Disagree

No Opinion

Clerk's Papers (CP) at 336. And it included the following questions:

13. Have you seen or heard any advertisements in the last six months criticizing persons who use the judicial system to get money as compensation for personal injuries or damages caused by another? If so, what have you heard or seen?

14. Does anything concern you about medical negligence lawsuits in which money damages are being sought? If so, what is your concern?

15. What are your feelings about people who file lawsuits for money damages for personal injuries?

16. Do you feel that lawsuits are filed too frequently? If so, please state why.

17. What concerns, if any, do you have about awarding money as damages to an injured person?

18. Without having heard any of the evidence or law in this case, do you have a limit of the amount of money you could award as damages to an injured person? If so, what is the limit?

19. This is a medical negligence case. If the jury in this case were to award money damages, would you feel it would have some economic effect on you personally?

[] YES [] NO [] MAYBE

If so, in what way?

20. Do you believe a person should be allowed to sue his or her medical doctor? Why or why not?

21. Based on what you have heard or read about the court system, do you believe jury verdicts overcompensate, undercompensate or adequately compensate medical negligence claimants? Please explain the basis of your belief.

CP at 337-38. Ms. Stayer renewed her request to discuss malpractice insurance during voir dire based on certain of the venire's responses to the questionnaire. She noted that 5 of the first 18 jurors questioned volunteered some concern about the effect of malpractice suits on medical malpractice insurance.

The court responded:

Mr. Baker, my question is this. Why do you have to reference the word "insurance" to inquire about that of this jury? Can't you just reference the word "claims," "lawsuits" or anything else and still get to the same place? I say that because whether or not Dr. Pitts is paying this out of his pocket and, therefore, he has to charge more money per patient or his malpractice, if I can use that word, rates go up because of insurance and he has to pay that out of his pocket, I mean, the difference is the same in my mind.

RP at 63.

The trial judge again prohibited reference to insurance:

I think the Court's first responsibility here is to make sure that both sides have a fair trial, but right behind that is for the Court to try to follow the law as best as the Court can with human frailties, my frailties. My perception of the law is still that the Court should not permit references to insurance, and there are some policy reasons behind that, not just in this particular instance that costs of care may be going up, in fact may be limiting ability of certain people to access medical care in certain parts of the states or certain states — we've all heard and read about those things — but there are other policy reasons, I think, why the word "insurance," at least, should not be discussed before a jury either by the Court or by counsel, such as that well, obviously Mr. Kreutz and Mr. Fluegge [³] are here because they're hired by the insurance company, which has nothing to do with this case.

....

And that any award, should one be made here based on the jury's finding, is not going to be paid specifically by Dr. Pitts and/or his wife but, rather, by an insurance company. Those are places we, I don't think, are to go, and so I'm going to, you know, affirm my prior ruling that counsel should not refer to insurance. Mr. Fluegge is right. Certainly, the jurors may talk about insurance. That issue may come up from their mouths and I have no way to control that, but I do have control over whether counsel talk about insurance. And in this concept of a fair trial — and I certainly understand the importance of selecting a jury that you folks think will be a fair jury, but I think you can get there without saying the word "insurance." I'm convinced that you and Mr. Pickett [⁴] can, without any doubt in my mind at all.

RP at 65-66.

The jury returned a verdict in favor of Dr. Pitts.

Ms. Stayer moved for a new trial on a number of grounds, including the court's failure to allow her to discuss insurance. The court denied the motion.

DISCUSSION

LIMITATION ON VOIR DIRE — ABUSE OF DISCRETION

Our system vests a trial judge with considerable latitude in shaping the limits and extent of voir dire. Murray v. Mossman, 52 Wash.2d 885, 887, 329 P.2d 1089 (1958). This trial judge abused his discretion only if his decision is based on untenable grounds or untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

Voir dire is not a topic that lends itself to appellate review because of the nuances and subtleties presented by each jury case. State v. Davis, 141 Wash.2d 798, 825-26, 10 P.3d 977 (2000). It is for these reasons that "[t]he trial court is vested with discretion (1) to see that the voir dire is effective in obtaining an impartial jury and (2) to see that this result is obtained with reasonable expedition." Frederiksen, 40 Wash.App. at 753,700 P.2d 369. The ultimate test here is not whether the trial judge should or should not have allowed any single question or even line of questioning. The test is whether the court permitted the plaintiff here to ferret out bias and partiality. Id. at 752, 700 P.2d 369. The primary purpose of voir dire is to give a litigant an opportunity to explore the potential jurors' attitudes in order to determine whether the jury should be challenged. Id.

Ms. Stayer's specific assignment of error here is that the trial judge based his ruling on an erroneous understanding of the law — that ER 411⁵ did not permit the introduction into evidence of liability insurance. And a discretionary ruling based on error of law is an abuse of discretion. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 339, 858 P.2d 1054 (1993). We disagree with her assertion for two...