Turner v. Univ. of Utah Hosps.

• Decision Date: 22 December 2011
• Docket Number: No. 20091073–CA.,20091073–CA.
• Citation: 271 P.3d 156,698 Utah Adv. Rep. 51,2011 UT App 431
• Parties: Ella TURNER, Plaintiff and Appellant, v. UNIVERSITY OF UTAH HOSPITALS and Clinics, University of Utah, and State of Utah, Defendants and Appellees.
• Court: Utah Court of Appeals

2011 UT App 431

271 P.3d 156

698 Utah Adv. Rep. 51

Ella TURNER, Plaintiff and Appellant,

v.UNIVERSITY OF UTAH HOSPITALS and Clinics, University of Utah, and State of Utah, Defendants and Appellees.

No. 20091073–CA.

Court of Appeals of Utah.

Dec. 22, 2011.

Matthew H. Raty, Sandy, for Appellant.

David G. Williams and Bradley R. Blackham, Salt Lake City, for Appellees.

Before Judges DAVIS, McHUGH, and ROTH.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 Ella Turner appeals a jury verdict in favor of University of Utah Hospitals and Clinics, University of Utah, and State of Utah (collectively, the Hospital), claiming that the trial court committed multiple errors, which deprived her of a fair trial. We affirm.

BACKGROUND ¹

¶ 2 On August 11, 2002, Turner was ejected from an automobile in a single-car rollover accident. At the scene of the accident, emergency responders found Turner “unconscious and unresponsive.” She was first taken to the Central Valley Medical Center in Nephi and then airlifted to the Hospital. Upon arriving at the Hospital, Turner was diagnosed with brain swelling, a scalp laceration, multiple fractures of the cervical, thoracic, and lumbar spine, a liver laceration, and rib fractures. Because of the severity and number of Turner's injuries, the Hospital's doctors determined that the best treatment plan was to admit Turner to the Hospital's Neurocritical Unit (NCC) and to keep her on bed rest with spine precautions. Spine precaution protocol requires that NCC nurses move patients using the log rolling procedure, which means that every time the NCC nurses needed to move Turner to change her linens or bathe her, they were to use at least three health care employees to move her entire body in a single movement. On August 21, the Hospital performed an MRI scan on Turner, which showed injury to Turner's spinal cord and a change in alignment of her spine when compared to images from a CT scan obtained when she was admitted.

¶ 3 In her complaint, Turner alleges that the Hospital's NCC nurses were negligent in their care for her between August 11 and August 22, and that their negligence resulted in the injury to her spinal cord that rendered her paraplegic. Specifically, Turner alleges that the NCC nurse that admitted Turner was required to post a sign at the head of her bed to remind all care providers that Turner was a spine precaution patient and that by failing to do so until August 22, the NCC nurses breached that standard of care. Turner also alleges that the NCC nurses did not utilize the log rolling procedure during the eleven days in question and, as a result, the nurses “failed to adequately protect [Turner's] spinal cord from injury and moved her about so as to cause injury to her spinal cord.”

¶ 4 The case was tried to a jury between October 20 and October 28, 2009. The jury unanimously found that the Hospital's NCC nurses were not negligent. Turner now appeals and requests a new trial.

ISSUES AND STANDARDS OF REVIEW

¶ 5 Turner argues that the trial court committed numerous errors, which deprived her of a fair trial. To begin, Turner argues that the trial court erred by rejecting her challenges for cause to a number of prospective jurors. “[A] trial court's determination of whether to excuse a prospective juror for cause should not be reversed absent an abuse of discretion.” State v. Wach, 2001 UT 35, ¶ 25, 24 P.3d 948.

¶ 6 Next, Turner contends that the trial court exceeded its discretion in its rulings on numerous evidentiary issues. First, she claims that the trial court erred by allowing the Hospital to elicit general standard of care testimony from Dr. Joel MacDonald, one of Turner's treating physicians. Second, she claims that the trial court erred by allowing Dr. MacDonald to testify as to the cause of Turner's injury and by allowing Dr. MacDonald to use a trial exhibit that had not been specifically designated. Third, Turner argues that the trial court erred by allowing Dr. Thomas Zdeblick to testify as to causation because with his testimony the Hospital offered four physicians on causation, as compared to Turner's one causation expert. Turner further claims that the imbalance in the amount of causation testimony was prejudicial. Fourth, Turner contends that the trial court erred by sustaining the Hospital's objection during Turner's cross-examination of one of the NCC nurses because by sustaining the objection Turner was precluded from eliciting damaging testimony. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Daines v. Vincent, 2008 UT 51, ¶ 21, 190 P.3d 1269 (“With regard to our review of the exclusion of evidence, we grant a trial court broad discretion to admit or exclude evidence and will disturb its ruling only for abuse of discretion.”).

¶ 7 Finally, Turner argues that the trial court improperly instructed the jury on alternative treatment methods. “A trial court's ruling concerning a jury instruction is reviewed for correctness.” Butler v. Naylor, 1999 UT 85, ¶ 10, 987 P.2d 41. “A new trial will not be granted unless any error of the trial court was prejudicial, meaning that it misadvised or misled the jury on the law.” Id.

ANALYSIS

I. Jury Selection

¶ 8 Turner contends that the trial court committed prejudicial error by denying four of her for-cause challenges to prospective jurors. According to Turner, this made it impossible for her to remove all biased jurors from the jury because she had only three peremptory strikes. The Utah Supreme Court has adopted the cure-or-waive rule, which means that in order to raise the issue of juror bias on appeal, the appealing party “must [have] exercise[d] a peremptory challenge, if one is available, against the juror unsuccessfully challenged for cause,” and the challenged juror must have actually served on the jury. See State v. Baker, 935 P.2d 503, 510 (Utah 1997). Yet, Turner did not use all of her peremptory strikes on jurors she challenged for cause. Instead, she struck only two of those jurors and used her third strike on a juror she did not challenge for cause but suspected of being a tort reformer, which Turner defines as “one who intentionally conceals biases with the hope of getting on the jury and defeating a tort case.”

¶ 9 Because Turner did not use all of her peremptory challenges on jurors that she challenged for cause, if we determine that one of the four jurors she challenged for cause was not biased, her argument is not preserved. This is so because if one of the four jurors was not biased, Turner would have had enough peremptory challenges to dismiss the remaining three prospective jurors and the trial court's error, if any, in not removing those jurors for cause would be harmless. See id. at 505 (explaining the cure-or-waive rule and stating that because “no ground for reversal exists unless a biased juror is actually retained on the panel,” a party's argument that its for-cause challenge has been erroneously denied is preserved “only if the number of jurors the trial court erroneously refused to dismiss for cause exceeded the number of peremptories available to the [party]”). We undertake that analysis now.

¶ 10 We begin with Turner's argument that the trial court erred by failing to remove for cause a juror (Juror 1), who eventually served as the jury foreperson. In particular, Turner relies on the fact that during voir dire Juror 1 indicated that he had “high regard” for the Huntsman Cancer Center, an institution that is part of the Hospital, because he felt that it had provided excellent care to his dying wife. A trial court's discretion about whether to remove a prospective juror for cause “is limited by the Utah Rules of Civil Procedure” and precedent. See West v. Holley, 2004 UT 97, ¶ 13, 103 P.3d 708. A juror may be removed when “[c]onduct, responses, state of mind or other circumstances ... reasonably lead the court to conclude the juror is not likely to act impartially. No person may serve as a juror, if challenged, unless the judge is convinced the juror can and will act impartially and fairly.” Utah R. Civ. P. 47(f)(6). Further, “[v]oir dire responses revealing evidence of bias or partiality give rise to [the] presumption that a potential juror is biased, and the juror must be dismissed unless that presumption is rebutted.” West, 2004 UT 97, ¶ 14, 103 P.3d 708. But “a presumption of bias cannot be rebutted solely by a juror's bare assurance of [his] own impartiality.... The trial court must focus on the juror's expressions of attitudes, opinions, and feelings about subjects related to the case, rather than on the juror's assessment of [his] own objectivity.” Id. ¶ 15.

¶ 11 Here, the record reflects that the trial court focused on the appropriate criteria when determining whether Juror 1 was impartial. Specifically, the trial court asked Juror 1 about his reference to the excellent care the Huntsman Cancer Center had provided to his late wife. Juror 1 replied, “My thought process was I think I could be fair and unbiased but I don't know, you know, if I feel like she got excellent treatment. So I wouldn't be aware of any bias but I don't know if there's any subconscious influence [that] could be there or not.” The trial court then asked, “I guess what I'm really interested in knowing is taking into consideration what you know about this present case and the experience that you described ... with the Huntsman Cancer Center, can you be fair and impartial in this case?” Juror 1 replied, “I think I can but I try to point out here, I do have a high regard for [the Huntsman Cancer Center] ... but I do believe that I could be fair according to the facts of the case.” After this examination, Turner challenged Juror 1 for cause, arguing that “he couldn't promise that he wouldn't have a subconscious bias and he talked about ... that very emotional time in his life and how he came to highly regard the university and the care they were providing to...