Palanki v. Vanderbilt University

• Citation: 215 S.W.3d 380
• Parties: Joseph Wayne PALANKI, a Minor by Next Friend and Mother, Michelle Elizabeth PALANKI v. VANDERBILT UNIVERSITY, et al.
• Decision Date: 13 November 2006
• Court: Court of Appeals of Tennessee

215 S.W.3d 380

Joseph Wayne PALANKI, a Minor by Next Friend and Mother, Michelle Elizabeth PALANKI v. VANDERBILT UNIVERSITY, et al.

Court of Appeals of Tennessee, Middle Section, at Nashville.

August 18, 2006 Session.

November 13, 2006.

Published Pursuant to Rule 11, Tennessee Court of Appeals.

Todd A. Rose, Paris, Tennessee; Les Jones, Memphis, Tennessee; Rosella M. Shackelford, Clarksville, Tennessee, for the appellant, Joseph Wayne Palanki, a Minor by Next Friend and Mother, Michelle Elizabeth Palanki.

Andree Sophia Blumstein, Steven D. Hurd, Steven E. Anderson, Sara F. Reynolds, Nashville, Tennessee, for the appellee, Vanderbilt University.

OPINION

WILLIAM B. CAIN, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., P.J., M.S., and FRANK G. CLEMENT, JR., J., joined.

Minor, through mother and next friend, filed a medical malpractice action against hospital for the admittedly negligent removal of ninety percent of the minor's bladder. The jury rendered a verdict in favor of Plaintiff for $16,000,000.00. The trial court suggested a remittitur that reduced the amount of Plaintiff's judgment to $6,500,000.00. Plaintiff accepted the remittitur under protest and filed the instant appeal, seeking a reinstatement of the jury's verdict and prejudgment interest. The hospital cross-appealed seeking an increase in the trial court's suggested remittitur, arguing that the judgment was excessive in light of other medical negligence actions and that the trial court erred in admitting testimony about improbable risks of medical complications as a result of infant's injuries and admitting evidence of pre-majority medical expenses. The decision of the trial court is affirmed in all respects.

Joseph Palanki was born without complication on February 8, 1999, to Ms. Michelle Craig. His pediatrician described him as a healthy child during his first eleven months. In December 1999, Ms. Craig took Joseph to visit Dr. John Pope, a pediatric urologist at Vanderbilt, for treatment of a condition known as a hydroceles. On January 20, 2000, Dr. Pope was scheduled to perform outpatient surgery on Joseph in order to correct the hydroceles. However during the procedure, Dr. Pope removed ninety percent of Joseph's bladder.

On January 22, 2000, Dr. Pope attempted to repair Joseph's bladder by closing the remaining bladder tissue. On February 18, 2000, Joseph underwent another surgery at Vanderbilt to augment his bladder in which a cross-section of Joseph's large intestine, small intestine, and appendix, were sewn to the remaining portion of Joseph's bladder. In addition, Dr. Pope attached Joseph's appendix to his belly button in order to form a tube running from his bladder to his belly button. The tube, known as the Mitrofanoff Channel, now provides a catheter access to Joseph's bladder in order to drain urine from the bladder.

Following the two corrective surgeries, Joseph experienced chronic urinary tract infections and a failure to thrive. His pediatrician attributed his low weight to his body's need to use digested calories to fight his chronic urinary tract infections rather than using the calories to grow. Since January 20, 2000, Joseph has been unable to urinate spontaneously and must void by catheterization through a permanent opening in his navel. Joseph has also experienced kidney reflux which involves the urine moving backwards from the bladder to the kidneys. In order to combat the complications resulting from his condition, Joseph has taken prescription medications everyday since his injury on January 20, 2000. His prescriptions have included Bactrim, Macrodantin, and Gentamicin to prevent infections and Ditropan for kidney reflux.

Joseph, through his mother and next friend, filed the instant action against Vanderbilt on January 16, 2003. Although Vanderbilt admitted vicarious liability and did not seriously contest the negligence of Dr. Pope, the amount of damages was disputed. On May 18, 2005, the jury rendered a verdict in favor of Plaintiff in the amount of $16,400,000.00. The verdict included $300,000.00 for medical expenses until the age of eighteen, $1,100,000.00 for medical expenses after the age of eighteen, and $15,000,000.00 in non-economic damages. The trial court directed Plaintiff to draw the judgment for $16,0000,000.00, the amount sought in the complaint.

On August 15, 2005, the trial court denied Defendant's motion for a new trial but suggested a remittitur that reduced Plaintiff's award to $6,500,000.00. The court also denied Plaintiff's motion for prejudgment interest. Plaintiff accepted the remittitur under protest and filed this notice of appeal seeking a reinstatement of the jury's verdict and prejudgment interest. Defendant cross-appeals claiming that the amount of remittitur suggested by the trial court should be increased because (1) the verdict is excessive when compared with other medical negligence cases; (2) the trial court erred in admitting testimony about improbable risks of medical complications; and (3) the trial court erred in admitting evidence of pre-majority medical expenses.

I. REMITTITUR

The remittitur statute contained in Tennessee Code Annotated section 20-10-102(b) provides the standard of review for a trial court's suggestion of remittitur. The statute states:

The court of appeals shall review the action of the trial court suggesting a remittitur using the standard of review provided for in Rule 13(d) of the Tennessee Rules of Appellate Procedure applicable to decisions of the trial court sitting without a jury. If, in the opinion of the court of appeals, the verdict of the jury should not have been reduced, but the judgment of the trial court is correct in other respects, the case shall be reversed to that extent, and judgment shall be rendered in the court of appeals for the full amount originally awarded by the jury in the trial court.

Tenn.Code Ann. § 20-10-102(b).

According to Tennessee Rule of Appellate Procedure 13(d), "review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." However, conclusions of law are not afforded the same presumption. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn.2002).

The primary issue on appeal concerns whether the trial court erred in suggesting a remittitur which reduced Plaintiff's verdict from $16,000,000.00 to $6,500,000.00. We first note that:

[A]ppellate courts customarily conduct a three-step review of a trial court's adjustment of a jury's damage award. First, we examine the reasons for the trial court's action since adjustments are proper only when the court disagrees with the amount of the verdict. Burlison v. Rose, 701 S.W.2d [609] at 611 [(Tenn.1985)]. Second, we examine the amount of the suggested adjustment since adjustments that "totally destroy" the jury's verdict are impermissible. Foster v. Amcon Int'l, Inc., 621 S.W.2d [142] at 148 [(Tenn.1981)]; Guess v. Maury, 726 S.W.2d 906, 913 (Tenn.Ct. App.1986). Third, we review the proof of damages to determine whether the evidence preponderates against the trial court's adjustment. See Tenn.Code Ann. § 20-10-102(b).

Long v. Mattingly, 797 S.W.2d 889, 896 (Tenn.Ct.App.1990).

By order dated August 15, 2005, the trial court clearly disagreed with the amount of the judgment rendered by the jury and reduced such amount accordingly. Said the court:

Having weighed the evidence in support of all the categories of damages to which Plaintiff was legally entitled, see Overstreet v. Shoney's Inc., 4 S.W.3d 694 (Tenn.Ct.App.1999), having determined that the award of medical expenses was excessive, and having determined that the evidence on both economic and non-economic damages was insufficient to support the award of $16,000,000.00, the Court suggests a remittitur of the judgment in the amount of $9,500,000.00, thereby resulting in a judgment of $6,500,000.00 in favor of Plaintiff.

We also note that Plaintiff does not contend on appeal that the amount of the remittitur "totally destroys" the jury's verdict and we cannot make such a finding here. Therefore, we will now review the proof of damages to determine whether the evidence preponderates against the trial court's adjustment.

In a civil jury trial, the trial court acts as the thirteenth juror and therefore may set aside a jury's verdict and order a new trial when justice so requires. James E. Strates Shows, Inc. v. Jakobik, 554 S.W.2d 613, 616 (Tenn.1977). Alternatively, the court may suggest a remittitur of the jury award, Tenn.Code Ann. § 20-10-102(a), to correct an excessive jury verdict without the time and expense of a new trial. Hunter v. Ura, 163 S.W.3d 686, 705 (Tenn.2005). Although the amount of an award is primarily a consideration for the jury to determine, the trial court may suggest a remittitur when the amount of the verdict is excessive, beyond the range of reasonableness, or is excessive as the result of passion, prejudice, or caprice. Poole v. Kroger Co., 604 S.W.2d 52, 54 (Tenn.1980). However, there is no precise mathematical formula which the court can use to assure that judgments in negligence cases are uniform. S. Ry. Co. v. Sloan, 56 Tenn.App. 380, 407 S.W.2d 205, 211 (1965). Said the Court:

There is no exact yardstick, or measurement, which this court may use as a guide to determine the size of verdicts which should be permitted to stand in cases of this kind. Each case must depend upon its own facts and the test to be applied by us is not what the amount the members of the court would have awarded had they been on the jury, or what they, as an appellate court, think should have been awarded, but whether the verdict is patently excessive. The amount of damages awarded in similar cases is persuasive but not conclusive, and, in evaluating the award in other cases, we should note the date of...