Reems v. St. Joseph's Hosp. and Health Center, 940333

Decision Date29 August 1995
Docket NumberNo. 940333,940333
Citation536 N.W.2d 666
PartiesRicky L. REEMS and Linda Reems, on behalf of their daughter, Beth Reems, Plaintiffs and Appellants, v. ST. JOSEPH'S HOSPITAL AND HEALTH CENTER, and Rodgers & Gumper Clinic, P.C., Defendants and Appellees. Civ.
CourtNorth Dakota Supreme Court

William P. Zuger (argued), Zuger Law Offices, Bismarck, and Stephen D. Little, Dietz & Little, Bismarck, for plaintiffs and appellants.

Paul G. Kloster (argued), and Michael C. Waller, Mackoff, Kellogg, Kirby & Kloster, PC, Dickinson, for defendant and appellee St. Joseph's Hosp. and Health Center.

Lance D. Schreiner (argued), and Brenda L. Blazer, Zuger, Kirmis & Smith, Bismarck for defendant and appellee Rodgers & Gumper Clinic, P.C.

VANDE WALLE, Chief Justice.

Ricky and Linda Reems, on behalf of their daughter, Beth Reems, appealed a judgment on a jury verdict in the district court, Southwest Judicial District, finding St. Joseph's Hospital & Health Center and Rodgers & Gumper Clinic, P.C., free of any negligence which could have proximately caused Beth's injuries. We affirm.

Anticipating the delivery of her fourth child, Linda Reems checked into the emergency room of St. Joseph's Hospital in Dickinson, North Dakota on December 31, 1982, at 6:40 p.m. She was experiencing contractions two to three minutes apart. At that time it was decided that, in order to save an extra day's hospital expense, Linda would wait until after midnight before being admitted to the hospital. Her doctor apparently permitted this arrangement if Linda stayed in Dickinson and did not return to her home in Killdeer. The Reemses visited a relative in the hospital, "went to a drive-up" for a burger, and drove around looking at Christmas lights. They returned to the hospital around 8:30 p.m. and sat in the "OB waiting room" to wait for midnight to arrive.

Linda Reems was admitted to the hospital at 12:02 a.m. on January 1, 1983. Her doctor was notified of her admission at 12:05 and arrived at the hospital at 12:18. Beth Reems was born at 12:39 a.m.

At birth Beth exhibited some cyanotic condition. She was placed in an Isolette and administered thirty percent oxygen. The records of attending nurses reflect that her condition improved. Linda Reems testified at trial that her memory of the blueness in Beth's appearance conflicts with the records of the nurses and that she was deeply concerned about Beth's condition. When Beth was released from the hospital five days later, Linda was still concerned about her condition. However, the hospital records do not reflect the same concern among Beth's care givers and, according to testimony of hospital personnel and several expert witnesses, there was no apparent cause for concern.

In late March, 1983, Beth was tested by a Bismarck doctor and was found to have severe brain damage. According to Linda Reems's trial testimony, the doctor recommended an infant-stimulation program and stated that "the goals that he would set for [Beth] in life would be to learn to smile, to sit up in a wheelchair and to be able to hold her own head."

On behalf of Beth, 1 the Reemses, in 1992, filed suit against Dr. Dennis Wolf, the attending doctor, a consulting physician, the Rodgers & Gumper Clinic, with which Dr. Wolf was a partner, and St. Joseph's Hospital. They alleged that actions and omissions by Dr. Wolf and hospital personnel directly preceding and during Beth's delivery and during the first hours of Beth's life proximately caused Beth's condition. Eventually, the Reemses dropped the claim against the two doctors and proceeded with the suit against the clinic and the hospital. The trial was bifurcated and, in the first stage of the trial, the jury was asked only to decide the liability issue.

At trial the Reemses presented evidence to support their theory that a moderate meconium aspiration combined with a mild asphyxia suffered during the birth process to cause Beth's injuries. They argued that the seriousness of Beth's condition was underappreciated by the attending professionals and, therefore, Beth was not given the appropriate care. The defense countered with experts who testified that the doctor's and nurses' notes reflect a fairly ordinary delivery and aftercare which were well within the contemporary professional standards. Defense experts also testified that Beth's brain injuries could not have been caused as the Reemses alleged. In their opinion, the injury occurred some weeks prior to delivery.

During pretrial and during trial, the Reemses requested that Beth be allowed to attend the proceedings. The trial court decided that her "pathetic" appearance would be a "distraction" and that under rule 403, N.D.R.Evid., she would be excluded. The court did, however, leave open the possibility that it would modify this ruling if Beth's appearance would provide evidence relevant to some expert testimony. At one point during trial, the Reemses moved to have Beth appear in order to counter a defense expert's reference to her having "peg" teeth. This motion was denied.

Just before the noon hour of the second day of jury deliberations, the jury sent the judge a note asking for a definition of proximate cause. The word "proximate" was underlined. After consulting with the attorneys, the trial judge responded with: "For now, I can only ask you to refer back to the definition of proximate cause given to you starting near the bottom of page 12 of the Jury Instructions. If I am able to give you additional help, I will provide that shortly after your lunch is completed." The jury returned with the verdict about three quarters of an hour after receiving the judge's response.

Several weeks after trial, the Reemses were made aware of a newspaper advertisement promoting the reelection campaign of the trial judge. The advertisement, in the July 16, 1994, issue of the Dunn County Herald, listed the lead attorney for St. Joseph's Hospital as a finance co-chair of the judge's reelection committee. It also listed Dr. Harlan C. Larsen as an advisor to the reelection campaign. The Reemses recognized Dr. Larsen as an associate of Dr. Wolf, the physician who attended at the birth of Beth Reems, and as someone they had seen observing the trial in the company of Dr. Wolf's wife. On August 24, 1994, the Reemses filed a motion under rule 60(b)(vi), N.D.R.Civ.P., to vacate the judgment and order a new trial with a different judge. They argued that the "relationship between the presiding judge[,] the defendant[,] and defendant's counsel, required the trial judge to recuse himself" or "[a]t an absolute minimum, such a breach can allow the presiding judge to continue to preside only upon the execution of a written waiver, signed on behalf of all parties by all counsel to the proceeding." The judge denied the motion in a written memorandum to all the attorneys which is dated December 13, 1994.


On appeal the Reemses contend that the trial court's exclusion of the plaintiff, Beth Reems, was reversible error. Ordinarily, allowing the presence in the courtroom of those children who are parties to the action will not be an abuse of discretion. Bartholomay v. St. Thomas Lumber Co., 148 N.W.2d 278 (N.D.1966). Due process and the right to a fair trial ordinarily preclude courts from excluding those parties who are able to understand the proceedings and to assist counsel in the presentation of their actions. E.g., Helminski v. Ayerst Lab., Div. of Am. Home Prod. Corp., 766 F.2d 208, 217 (6th Cir.1985) [recognizing that "under limited circumstances a party's involuntary exclusion might be justified"]. However, courts must have the ability "to provide all parties with a fair trial." E.g., id. Thus, a trial court has broad discretion to decide whether other parties may be present. Bartholomay, supra.

In a case with facts similar to this one, the Oregon Supreme Court adopted

"the standard that a plaintiff who is unable to comprehend, meaningfully participate in the proceedings, or assist his or her lawyer in the presentation of a case may be excluded from the liability portion of a bifurcated trial if the trial court, in the exercise of informed discretion, determines that the party's presence would be unfairly prejudicial.... [T]he preferred method is for the trial court to hold a formal hearing and personally view the party before it makes a ruling on whether to exclude that party from the liability phase of trial."

Bremner v. Charles, 312 Or. 274, 821 P.2d 1080, 1086 (1991). See also Francis M. Dougherty, Annotation, Physical Condition of Plaintiff in Personal Injury Action as Affecting Right to be Present at Trial, 27 A.L.R.4th 583 (1984).

The Bremner court noted that there was "nothing in the record about how [the plaintiff's] personal presence in the courtroom could have aided the jury in determining whether defendants were negligent and, if so whether that negligence caused [the] injuries." 821 P.2d at 1086. See also Helminski, 766 F.2d at 217 ["Exclusion of a party from the damages portion of the proceedings is, however, inappropriate."]. The Bremner court also noted that the plaintiff was represented and his interests were protected by his mother and his attorney. 821 P.2d at 1086. See also, Dickson v. Bober, 269 Minn. 334, 130 N.W.2d 526, 530 (1964) ["The rights of [the] plaintiff were protected by the general guardian who brought the action for him and by the attorney selected to represent his interests during the trial."].

Beth Reems was excluded from the courtroom only after the trial court viewed "a day in the life of ..." video of her, decided that her presence would be "distracting" and prejudicial to the defense, and further concluded that her appearance lacked relevance to the liability portion of the bifurcated trial. Even then the court left open the possibility of admitting her to the courtroom when and if her appearance became relevant. The trial court acted well within its discretion.


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