Seabury–peterson v. Jhamb

• Citation: 15 A.3d 746,2011 ME 35
• Decision Date: 22 March 2011
• Docket Number: Docket No. Cum–10–303.
• Parties: Donna SEABURY–PETERSON et al.v.Kristen K. JHAMB et al.
• Court: Supreme Judicial Court of Maine (US)

15 A.3d 746

2011 ME 35

Donna SEABURY–PETERSON et al.

v.Kristen K. JHAMB et al.

Docket No. Cum–10–303.

Supreme Judicial Court of Maine.

Argued: Jan. 12, 2011.Decided: March 22, 2011.

Christopher D. Nyhan, Esq. (orally), Katherine W. Fawcett, Esq., Preti Flaherty, Portland, ME, for Kristen K. Jhamb and Mid–Coast Medical Group.L. Scott Gould, Esq. (orally), Cape Elizabeth, ME, Elliott L. Epstein, Esq., Pickus & Epstein, LLC, Portland, ME, for Donna Seabury–Peterson and Joseph Peterson.Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and JABAR, JJ.JABAR, J.

[¶ 1] A jury awarded Donna Seabury–Peterson and her husband, Joseph Peterson, more than $1.1 million in damages for the negligence of Kristen K. Jhamb, M.D. and Mid Coast Medical Group (collectively Mid Coast) in failing to diagnose Donna's recurrent breast cancer, which had metastasized to her bones. Mid Coast argues that, in reaching its verdict, the jury was motivated by sympathy, confusion, or a prejudicial remark made by the Petersons during their closing argument, and appeals from the Superior Court's (Cumberland County, Crowley, J.) denial of its motions for a mistrial and for a new trial. Finding no abuse of discretion in the denial of either motion, we affirm the judgment.

I. FACTS AND PROCEDURE

[¶ 2] Donna Seabury–Peterson was diagnosed with stage two breast cancer in the fall of 1990, at age forty-three. She underwent a lumpectomy to remove a two-centimeter tumor and received radiation and chemotherapy. Following this treatment, Donna's cancer went into remission.

[¶ 3] Beginning in the summer of 2003, Donna started to experience pain in the area of her right hip. In mid-December 2004, Donna began seeing Dr. Kristen Jhamb of Mid Coast Medical Group as her primary care physician. At her first appointment with Jhamb, Donna disclosed her history of breast cancer, provided Jhamb a copy of her medical records, and described her current hip pain.

[¶ 4] Over the course of the next three years, Donna identified new areas of pain in her neck, chest, back, and sternum. Although over-the-counter pain medication would often supply temporary relief, Donna's pain never completely resolved. She complained of her pain to Jhamb and to various other health care providers who then informed Jhamb. For example, in September 2005, Jhamb received a report from Donna's massage therapist documenting that Donna complained of “8/10 constant pain” in her back and hip that had been “steadily getting worse over the past year” and interfered with her activities. In 2006, Donna showed Jhamb a painful bump on her sternum, which Jhamb considered “fine.” Later that same year, Donna went to the emergency room complaining of acute chest pain, which she feared was a heart attack. Jhamb agreed with the emergency room physician that this pain was likely costochondritis, a temporary inflammation of cartilage in the rib cage. Jhamb's notes documenting Donna's pain and medical history were often incomplete, lacking details about the severity or frequency of Donna's pain and failing to document whether Jhamb had followed up on Donna's pain complaints from prior visits.

[¶ 5] Frustrated by the continuing pain, Donna began requesting procedures in an effort to diagnose herself. No cause was revealed and the pain continued to increase, forcing Donna to reduce her activities. She worked fewer hours as a teacher at a childcare center, even though she loved her job. She traveled less frequently to see her children and grandchildren. Donna stopped painting, boating, and gardening, all hobbies that she had previously enjoyed. Joseph assumed almost all of the responsibilities around the home and was no longer able to share an active lifestyle with his wife.

[¶ 6] In November 2007, due to what was thought to be work-related pain, Donna's employer directed her to Occupational Health Associates (OHA) for physical therapy and chiropractic treatment. When these methods failed to resolve Donna's pain, OHA ordered an MRI. The MRI suggested, and later testing confirmed, that Donna had cancer in her spine, ribs, and sternum—all places where she had previously complained of pain to Jhamb. The cancer was stage four, and it had likely been symptomatic for three to four years.

[¶ 7] Although there is no correlation between early detection of breast cancer metastasized to bone and a longer life expectancy, the point at which the cancer is found may influence treatment. Following her diagnosis, Donna began a regimen of palliative radiation and medication, which was aimed at controlling the cancer and reducing Donna's pain. The radiation was initially effective in reducing her pain, but Donna experienced vertigo and fatigue. In addition, the radiation burned her esophagus and lungs. As a result, Donna takes medication daily to assist with breathing, but shortness of breath prevents her from walking more than one-half mile without rest and some days forces her to rest after brushing her teeth or taking a shower. According to Donna's oncologist, if her cancer had been detected earlier, radiation could have been delayed or possibly even avoided.

[¶ 8] Believing that Mid Coast was negligent in failing to diagnose Donna's metastatic breast cancer, the Petersons filed a complaint in the Superior Court.¹ They alleged that, due to Jhamb's suboptimal medical notes, she failed to detect the progression in Donna's pain that should have led to a diagnosis. The Petersons sought damages for Donna's pain and suffering and medical expenses, and for Joseph's loss of consortium.

[¶ 9] The Petersons presented their case to a jury in April 2010. During their closing argument, they emphasized the deterioration of Donna's quality of life caused by her untreated pain. While making this point, they stated, “No one would want to switch places right now more than Donna Peterson.” Mid Coast objected and moved for a mistrial, arguing that the remark was an impermissible Golden Rule argument.

[¶ 10] The court sustained the objection and instructed the jury to disregard the Petersons' statement, but denied the motion for a mistrial. It also gave a curative instruction expressly condemning “[a]ny argument that invites you to compare or to contrast your situation with [Donna's] situation or [that] talk [s] about swapping places.” Later, the court instructed the jury that in measuring Donna's pain and suffering they could properly consider “to the extent proven by a preponderance of the evidence, ... any fear, pain, discomfort, anxiety or other mental or emotional distress, including the loss of enjoyment of life suffered by [Donna] as a [result] of [Mid Coast's] negligence.” The court also instructed the jury that opening and closing arguments were not evidence and explained that damages could not be awarded “on the basis of prejudice or sympathy.”

[¶ 11] The jury unanimously found Mid Coast negligent and awarded $160,000 for past medical expenses, $700,000 for pain and suffering, and $300,000 for loss of consortium. Mid Coast moved to vacate the verdict as “irrational” and “not based on evidence” because the medical expenses awarded exceeded the amount in evidence; the only documented evidence of Donna's medical expenses was a bill for radiation services totaling $12,267.50.

[¶ 12] The court found that, on its face, the verdict was not “necessarily internally inconsistent,” but that the medical expenses award was inconsistent with the evidence presented. Upon Mid Coast's post-judgment motion for a new trial, the court agreed to grant a new trial unless the Petersons consented to remit the portion of the jury award for Donna's past medical expenses exceeding $12,267.50. See M.R. Civ. P. 59(a). The Petersons accepted the remittitur in lieu of a new trial, and the court then entered an amended judgment reflecting total damages of $1,012,267.50.

II. DISCUSSION

[¶ 13] On appeal, Mid Coast argues that it was entitled to a new trial, asserting two grounds for its contention: (A) the Petersons' remark during closing argument was so prejudicial that declaring a mistrial was the only appropriate remedy, and (B) the jury's disregard for the evidence on medical expenses suggests that all of the jury's determinations were made without regard for the evidence, necessitating a new trial.

[¶ 14] Because the trial court is in the best position to assess the jury's reactions and motivations, we review its decision to deny a motion for a mistrial or a new trial deferentially. See Gilmore v. Cent. Me. Power Co., 665 A.2d 666, 669 (Me.1995); Marston v. Newavom, 629 A.2d 587, 593 (Me.1993). We review a court's denial of a motion for a mistrial for an abuse of discretion and its denial of a motion for a new trial for a “clear and manifest abuse of discretion.” Budzko v. One City Ctr. Assocs., 2001 ME 37, ¶ 17, 767 A.2d 310, 315 (quotation marks omitted). On the record before us, we discern no abuse of discretion in the trial court's denial of either motion.

A. Denial of the Motion for a Mistrial

[¶ 15] It is impermissible for a party to “encourage[ ] the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.” Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir.1988) (quotation marks omitted). The use of such arguments, commonly called Golden Rule arguments, is “universally condemned” because it threatens the essence of a fair trial. Id.

[¶ 16] Despite the impropriety of this type of argument, a mistrial is required only when, in light of the circumstances of the particular case, a curative instruction could not dissipate the ill effects of the prejudicial statement. See id. at 309–10; Budzko, 2001 ME 37, ¶ 18, 767 A.2d at 316. To determine whether a mistrial is necessary, a court may consider “the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments,...