Wardell v. McMillan, Nos. 91-66

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore MACY; MACY; CARDINE; CARDINE; URBIGKIT, Justice, concurring in part and dissenting in part, in which GOLDEN; McKay
Citation844 P.2d 1052
Decision Date31 December 1992
Docket Number91-67 and 91-68,Nos. 91-66
PartiesMack WARDELL, as Conservator of Neal Wardell, a minor, Appellant (Plaintiff), v. Jon McMILLAN, M.D. and Stan Peters, M.D., Appellees (Defendants). Stan PETERS, M.D., Appellant (Defendant), v. Mack WARDELL, as Conservator of Neal Wardell, a minor, Appellee (Plaintiff). Jon McMILLAN, Appellant (Defendant), v. Mack WARDELL, as Conservator of Neal Wardell, a minor, Appellee (Plaintiff).

Page 1052

844 P.2d 1052
Mack WARDELL, as Conservator of Neal Wardell, a minor, Appellant (Plaintiff),
v.
Jon McMILLAN, M.D. and Stan Peters, M.D., Appellees (Defendants).
Stan PETERS, M.D., Appellant (Defendant),
v.
Mack WARDELL, as Conservator of Neal Wardell, a minor, Appellee (Plaintiff).
Jon McMILLAN, Appellant (Defendant),
v.
Mack WARDELL, as Conservator of Neal Wardell, a minor, Appellee (Plaintiff).
Nos. 91-66, 91-67 and 91-68.
Supreme Court of Wyoming.
Dec. 31, 1992.

Page 1054

James E. Fitzgerald, Sharon A. Fitzgerald, and A.G. McClintock of Fitzgerald Law Offices, Cheyenne, and Donald W. Molloy of Molloy Law Offices, Billings, MT, for plaintiff.

William F. Downes, Jeffrey C. Brinkerhoff, and Jon B. Huss of Brown and Drew, Casper, for defendant McMillan.

Page 1055

Robert M. Shively and Rex O. Arney of Murane & Bostwick, Casper, for defendant Peters.

John E. Stanfield of Smith, Stanfield & Scott, Laramie, and George Santini of Graves, Santini & Villemez, P.C., Cheyenne, for amicus curiae Wyoming Trial Lawyers Ass'n.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT * and GOLDEN, JJ.

MACY, Chief Justice.

Mack Wardell, as the conservator of Neal Wardell, a minor, filed medical malpractice suits against Jon M. McMillan, M.D. and Stan Peters, M.D. Wardell alleged that the doctors negligently treated his son, Neal, and proximately caused his quadriplegia. Following a lengthy trial, the jury returned a verdict favorable to the doctors, and the court entered a judgment. On appeal, Wardell asserts that the trial court denied him a fair trial by: (1) unduly restricting jury selection; (2) erroneously instructing the jury that medical professionals are presumed to have acted with due care; and (3) improvidently denying Wardell's motion in limine to exclude references at trial to prior settlements.

We reverse and remand.

Wardell raises the following issues on appeal:

I. Did the trial court erroneously restrict plaintiff's jury selection? Specifically:

A. Did the trial court err when, although it called two alternate jurors, it failed to afford each side an additional peremptory challenge, as required by Rule 47(b), W.R.C.P.?

B. Did the trial court err in giving the two defendants twice the number of peremptory challenges afforded plaintiff when defendants were allied and, in fact, presented a coordinated and mutually supportive defense?

C. Did the trial court abuse its discretion in failing to excuse for cause two potential jurors who were biased against plaintiff and in favor of the defense?

D. Did the trial court err in failing to permit plaintiff to voir dire on the alleged "lawsuit crisis?"

II. Did the trial court err in instructing the jury that the defendants were presumed to have acted with due care, even though

A. Plaintiff presented a prima facie case of negligence; and

B. Plaintiff's preponderance burden of proof was properly set forth in other instructions?

III. Did the trial court err in denying plaintiff's motion in limine to exclude references to plaintiff's prior settlements with a non-party and a former party, where defendants did not contend that either of those entities had any proportionate fault with respect to plaintiff's injuries? 1

The doctors restated the issues in separate briefs. The issues as rephrased by McMillan are illustrative:

A. Was the jury selection fair?

1. Was the failure to grant an extra peremptory challenge for the alternate juror error and, if so, was it harmless error?

2. Did the trial court properly give each defendant three peremptory challenges?

3. Did the trial court properly refuse to excuse jurors Wasmuth and Brown for cause?

4. Did the trial court properly restrict voir dire concerning the alleged "lawsuit crisis"?

B. Did the trial court properly instruct the jury that the defendant doctors were entitled to a presumption of reasonable care which could be overcome by expert testimony?

Page 1056

C. Did the trial court erroneously grant Plaintiff's request to inform the jury of settlements with others, or did the Plaintiff invite error?

In a separate cross-appeal, McMillan raises the following issue:

1. Did the trial court err in issuing its October 31, 1990 Protective Order denying Defendant/Appellant Jon M. McMillan the ability to fully discover the expert opinions and testimony of a treating physician?

Peters raises the following issue in another separate cross-appeal:

1. Did the trial court err in issuing its October 31, 1990 Protective Order denying Defendant/Appellant Stan Peters the ability to fully discover the expert opinions and testimony of a treating physician, Dr. E. Larry McCleary?

Background

On May 13, 1987, Neal Wardell fell on a rock while he was playing at school. After recess, Neal complained of pain between his shoulder blades and experienced difficulty holding a pencil. School authorities summoned an ambulance. The ambulance transported Neal to Cody's West Park Hospital. At the hospital, Peters, an emergency room physician, and McMillan, an orthopedic surgeon, examined Neal. While he was under the care of McMillan and Peters, Neal underwent numerous radiographic studies. The x-rays failed to demonstrate any apparent fractures, dislocations, or other abnormalities of the cervical spine. Despite the lack of radiographic evidence of an injury, Neal progressively lost neurological functioning. The doctors decided to transport Neal by helicopter to St. Vincent's Hospital in Billings, Montana. Neal arrived at St. Vincent's during the evening hours of May 13, 1987, and was placed into the care of James Johnson, M.D. Neal's condition continued to deteriorate at St. Vincent's, and Neal was transported to Children's Hospital in Denver, Colorado, on May 14, 1987. At Children's Hospital, Neal was treated by Robert Hendee, Jr., M.D. and by E.L. McCleary, M.D. Neal was released from Children's Hospital as a quadriplegic.

Wardell filed a negligence action against McMillan and West Park Hospital on May 12, 1989. He alleged that McMillan was negligent in failing to immobilize Neal's neck, in performing a range-of-motion test, and in permitting Neal to move about when he knew or should have known that Neal had suffered a spinal cord injury. On November 13, 1989, Wardell filed a separate action against Peters. He alleged that Peters was negligent for substantially the same reasons as he cited in the complaint against McMillan and the hospital. These cases were consolidated for trial by a court order filed on January 19, 1990.

In addition to filing civil actions, Wardell filed a claim with Big Horn County School District No. 1 pursuant to the Wyoming Governmental Claims Act. Wardell alleged that the school district was negligent in failing to maintain a safe playground. The school district and the hospital settled the respective claims alleged against them prior to trial.

Jury selection began on November 13, 1990, and the trial began on November 15, 1990. Wardell presented expert testimony to support his theory that Neal's injuries were proximately caused by negligent medical treatment. The doctors, in turn, presented expert testimony to support their theory that "the die was cast" when Neal fell on the playground; i.e., the fall, and not the subsequent medical care, caused Neal's paralysis. On December 7, 1990, the jury returned a special verdict, finding no negligence by McMillan, Peters, the school district, the hospital, or Dr. Johnson. Wardell appeals.

Jury Selection

W.R.C.P. 47(b) 2

Wardell claims that the trial judge committed reversible error by denying him his right to an additional peremptory challenge to be used against alternate jurors as was required by W.R.C.P. 47(b). Specifically,

Page 1057

Wardell contends that his right to a fair trial was implicated when he was forced to use his statutory allotment of three peremptory challenges against a panel of fourteen prospective jurors. We agree.

The record discloses that the trial judge informed trial counsel prior to jury selection that fourteen prospective jurors would be seated in the jury box. Trial counsel were to proceed with voir dire as if they were qualifying fourteen jurors. Trial counsel, but not the jurors, knew in advance that those individuals seated in positions three and thirteen would be the alternate jurors. Upon being advised of the jury selection process, Wardell objected as follows:

[COUNSEL FOR WARDELL]: Well, I understand what the Court's doing. Let me say I have an objection insofar as I may be required to use both of my peremptory challenges on people who are going to be alternates, and all the more reason I need more.

THE COURT: That can be possibly true for any party to the case.

[COUNSEL FOR WARDELL]: I see that, Your Honor. But knowing in advance[ ] that three and thirteen will be alternates, I would much prefer to be able to exercise an extra challenge to the alternate because[,] as it is, I am being permitted to use my three statutory challenges on a panel of fou[ ]rteen, when in fact only twelve will most likely try the case.

THE COURT: If I granted that, then I would have to grant each of the other parties the opportunity to do the same thing.

So the objection is noted on the record and overruled.

Wardell again objected to the procedure near the end of the jury selection process:

[COUNSEL FOR WARDELL]: I am now going to exercise my third peremptory challenge. I am being forced to use it on the alternate, therefore, not getting three peremptory challenges. I am going to exercise it on Mrs. Kaelberer. I also at this time, if I were afforded equal number of defense challenges, would strike Mr. Daniels, who has been treated by the doctors. I would strike Mrs. Miller, who has been reported to us to have a bias against Mormons, and the Wardells are obviously a Morm[o]n family, and Mr. Klentz, who expressed concern about whether he can be fair to our side.

The trial judge erred as a matter of law in overruling Wardell's...

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23 practice notes
  • Ellis v. Wyoming Dep't of Family Servs. (In re Termination of Parental Rights to LDB), S-19-0050
    • United States
    • United States State Supreme Court of Wyoming
    • December 18, 2019
    ...in the context of litigation, means "litigant or a group of litigants having essentially common interests."Wardell v. McMillan, 844 P.2d 1052, 1060-61 (Wyo. 1992) (quoting Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 917 (Tex. 1979)).[¶14] A trial court's task in allocating peremptory chal......
  • Matter of LDB, S-19-0050
    • United States
    • United States State Supreme Court of Wyoming
    • December 18, 2019
    ...in the context of litigation, means "litigant or a group of litigants having essentially common interests." Wardell v. McMillan , 844 P.2d 1052, 1060-61 (Wyo. 1992) (quoting Patterson Dental Co. v. Dunn , 592 S.W.2d 914, 917 (Tex. 1979) ). [¶14] A trial court's task in allocating peremptory......
  • State v. Cochran, No. 4116.
    • United States
    • Court of Appeals of South Carolina
    • May 30, 2006
    ...State v. Ramos, 211 Wis.2d 12, 564 N.W.2d 328 (1997); Westcom v. Meunier, 164 Vt. 536, 674 A.2d 1267 (1996); Wardell v. McMillan, 844 P.2d 1052 To the contrary, however, there is precedent of this Court indicating a showing of actual prejudice is required to find reversible error in the den......
  • Johnson Cnty. Ranch Improvement #1, LLC v. Goddard, S-19-0251
    • United States
    • United States State Supreme Court of Wyoming
    • September 1, 2020
    ...¶ 26, 150 P.3d 1202, 1211 (Wyo. 2007) (illuminating circumstances where the invited error doctrine does not apply); Wardell v. McMillan , 844 P.2d 1052, 1065 (Wyo. 1992) (same).[¶47] Although not entirely clear, it appears SCRPA and JCRI believe there is an exception to the invited error do......
  • Request a trial to view additional results
23 cases
  • Ellis v. Wyoming Dep't of Family Servs. (In re Termination of Parental Rights to LDB), S-19-0050
    • United States
    • United States State Supreme Court of Wyoming
    • December 18, 2019
    ...in the context of litigation, means "litigant or a group of litigants having essentially common interests."Wardell v. McMillan, 844 P.2d 1052, 1060-61 (Wyo. 1992) (quoting Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 917 (Tex. 1979)).[¶14] A trial court's task in allocating peremptory chal......
  • Matter of LDB, S-19-0050
    • United States
    • United States State Supreme Court of Wyoming
    • December 18, 2019
    ...in the context of litigation, means "litigant or a group of litigants having essentially common interests." Wardell v. McMillan , 844 P.2d 1052, 1060-61 (Wyo. 1992) (quoting Patterson Dental Co. v. Dunn , 592 S.W.2d 914, 917 (Tex. 1979) ). [¶14] A trial court's task in allocating peremptory......
  • State v. Cochran, No. 4116.
    • United States
    • Court of Appeals of South Carolina
    • May 30, 2006
    ...State v. Ramos, 211 Wis.2d 12, 564 N.W.2d 328 (1997); Westcom v. Meunier, 164 Vt. 536, 674 A.2d 1267 (1996); Wardell v. McMillan, 844 P.2d 1052 To the contrary, however, there is precedent of this Court indicating a showing of actual prejudice is required to find reversible error in the den......
  • Johnson Cnty. Ranch Improvement #1, LLC v. Goddard, S-19-0251
    • United States
    • United States State Supreme Court of Wyoming
    • September 1, 2020
    ...¶ 26, 150 P.3d 1202, 1211 (Wyo. 2007) (illuminating circumstances where the invited error doctrine does not apply); Wardell v. McMillan , 844 P.2d 1052, 1065 (Wyo. 1992) (same).[¶47] Although not entirely clear, it appears SCRPA and JCRI believe there is an exception to the invited error do......
  • Request a trial to view additional results

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