Plunkett v. Christus St. Michael Health Sys.
| Decision Date | 19 December 2016 |
| Docket Number | No. 06-16-00010-CV,06-16-00010-CV |
| Parties | KAY PLUNKETT, INDIVIDUALLY AND AS SURVIVING SPOUSE OF CURTIS PLUNKETT; CHANDRA ANDERSON, INDIVIDUALLY AND AS SURVIVING CHILD OF CURTIS PLUNKETT; AND JEFF PLUNKETT, INDIVIDUALLY AND AS SURVIVING CHILD OF CURTIS PLUNKETT, Appellants v. CHRISTUS ST. MICHAEL HEALTH SYSTEM; CHRISTUS HEALTH ARK-LA-TEX D/B/A CHRISTUS ST. MICHAEL HEALTH SYSTEM, JACOB DUKE, D.D.S., JACK L. ROYAL, M.D., THOMAS A. HUNLEY, M.D., GREGG ANDERSON, CRNA, JASON YOST, M.D., AND MARK SUTHERLAND, M.D., Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 202nd District Court Bowie County, Texas
Before Morriss, C.J., Moseley and Burgess, JJ.
The tragic death of Curtis Plunkett, herein called Curtis, came six days after a breathing crisis he experienced just hours after Jacob Duke, D.D.S., had treated Curtis' broken jaw and had wired it shut at Christus St. Michael Hospital.1 Just why the breathing crisis and the resulting death occurred was the focus of the conflicting evidence heard by a jury, which found in favor of Duke and the Hospital. From a take-nothing judgment, Curtis' family members,2 herein collectively called Plunkett, appeal complaining of three particular rulings of the trial court.
We affirm the trial court's judgment, because (1) it was not error to overrule Plunkett's for-cause challenge of jury panelist Jones, (2) it was not error to admit the testimony of expert witness Stephen Koch, M.D., and (3) it was not error to admit the testimony of expert witness Charles Bloomer, D.D.S.
Curtis was admitted to the Hospital in April 2010, after he fell at home and fractured his jaw. Duke performed an open reduction with internal fixation of the jaw. At the conclusion of the procedure, Duke wired Curtis' jaw closed. Duke also placed a Dobhoff tube for feeding purposes. Plunkett contends that this tube was grossly malpositioned. After a brief recovery in the post-anesthesia care unit, Curtis was transferred to a patient room. Approximately fifteen minutes following this transfer, Curtis experienced breathing problems, and a "Code Blue" was called.Although efforts were made to restore his ability to breathe, Curtis suffered severe respiratory acidosis resulting in brain damage.3 Curtis died after life support was withdrawn six days later.
Plunkett sued the Hospital and Duke4 for alleged medical malpractice causing an upper airway obstruction leading, sequentially, to respiratory arrest, cardiac arrest, severe anoxic brain injury, and death.5 A jury found no negligence on the part of the Hospital or Duke.
During jury selection, Plunkett's counsel explained that the burden of proof in a civil case is a preponderance of the evidence. To provide clarity, this burden was contrasted with that of clear and convincing evidence. Counsel addressed the panel on this point:
This is a case about money damages, and so the law says we have to prove our case by a simple preponderance of the evidence. So again, if we've got 50 pounds on the left, 50 pounds on the right, it's dead even and the Plaintiffs have not proven their case by a preponderance of the evidence. However, if a single feather of the greater weight and degree of credible evidence is on the Plaintiffs' side on the left, then we've proven our case by a preponderance of the evidence, and under the law and the instructions to be given you by the judge if you're on the jury, you must return a verdict for the Plaintiffs. Does everybody understand that? A feather, folks. That's all it takes.
Counsel then asked the panel if they would require "more than a feather" in a malpractice case. Panel member Angela Jones, among others, gave a positive response to this question by raisingher juror card. When asked to describe her feelings on this issue, Jones stated that she performs investigations as a social worker in which she has to look at both sides. She stated that she would need something "along the line" of clear and convincing evidence before she could find against a hospital or a doctor in a malpractice case, even though she has not heard any evidence. Questioning continued at the bench, whereon Jones indicated that she would follow the law and that her decision would be based solely on the law and the evidence presented. Jones further affirmed to counsel for Plunkett that she "would go by what the law states . . . regardless of what [her] belief would be."
At the conclusion of jury selection, Plunkett's counsel told the trial court that Jones, among others, "unequivocally expressed [her] bias or prejudice and disqualification," claiming that the record taken as a whole clearly reflected as much. Counsel argued that the ultimate recantation was not sufficient to prevent disqualification. The trial court concluded otherwise:
Based on Cortez and the standards set forth by Cortez, the Court, taking all the factors, the record as a whole, taking in consideration the veniremen's tone and demeanor, the quickness when the follow-up questions were asked when they all indicated, each of the three indicated that they could follow the Court's instructions provided, the Court is satisfied that there was a level of confusion in the original set of questions, not a full understanding due to lack of experience, whatever the factors may in fact be, the Court is satisfied that when they were explained fully all aspects of what is being required, to follow the facts that were provided as well as the Court's instructions, they did clearly indicate that they could follow the Court's instructions. So the Court is satisfied that they were not unequivocal at the time that they entered their previous statements, so the Court will stand by its rulings as previously entered.
Because Plunkett's for-cause challenge to Jones was overruled and because she wanted Jones off the jury, she was forced to use a peremptory challenge on Jones, and the process empaneled another veniremember that Plunkett did not want.
Plunkett claims that the trial court abused its discretion in denying her for-cause challenge to Jones.6 Plunkett points to Jones' initial statement that she would require Plunkett to prove her case by clear and convincing evidence as demonstrating "unequivocal bias," in spite of Jones' apparent rehabilitation on questioning by the trial court. The entirety of the record leaves little doubt, Plunkett claims, that Jones was biased against Plunkett's medical malpractice claims. See Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 92 (Tex. 2005) ().
A person who has a bias or prejudice in favor of or against a party is disqualified to serve as a petit juror in that case. TEX. GOV'T CODE ANN. § 62.105(4) (West 2013); Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008). "Voir dire examination protects the right to an impartial jury by exposing possible improper juror biases that form the basis for statutory disqualification." Vasquez, 189 S.W.3d at 749. "Statements of partiality may be the result of inappropriate leading questions, confusion, misunderstanding, ignorance of the law, or merely 'loose words spoken inwarm debate,' and do not necessarily establish disqualification." Murff, 249 S.W.3d at 411 (quoting Cortez, 159 S.W. 3d at 92).
In Cortez, for example, an automobile insurance claims adjuster stated that he "would feel bias" sitting as a juror in a negligence case against a nursing home because his experience might have given him "preconceived notions" and that he had seen lawsuit abuse many times. The panel member felt that the defendant was "in a way . . . starting out ahead." Cortez, 159 S.W.3d at 90. The panel member agreed, however, that he did evaluate automobile claims that had merit and that he was "willing to try" to decide the case based on the law and the evidence. The trial court denied Cortez' challenge for cause.
In concluding that the challenge for cause was appropriately denied, the high court recognized that "bias, in its usual meaning, is an inclination toward one side of an issue . . . but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality." Id. at 94 (quoting Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963)).
The "relevant inquiry is not where jurors start but where they are likely to end," and "an initial 'leaning' is not disqualifying if it represents skepticism rather than an unshakeable conviction." Id.
Here, Jones expressed an apparent bias to the effect that she would require something "along the line" of clear and convincing evidence when a doctor or a hospital is sued. When a panel member expresses "what appears to be bias," nothing prohibits "further questioning that might show just the opposite or at least clarify the statement." Id. at 93. Further questioning willeither reinforce the genuine nature of the bias or it may prevent a mistaken disqualification of an impartial panel member. Id. Although Jones initially expressed a problem with the standard of proof in light of the example of a "feather" of more credible evidence, she later stated that she would apply the appropriate standard of a preponderance of the evidence:
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