Williams v. Lawton

• Decision Date: 26 October 2007
• Docket Number: No. 97,132.,97,132.
• Citation: 170 P.3d 414
• Parties: Richard WILLIAMS, Appellee/Cross-appellant, v. Dr. Steve LAWTON, Appellant/Cross-appellee.
• Court: Kansas Court of Appeals

170 P.3d 414

Richard WILLIAMS, Appellee/Cross-appellant, v. Dr. Steve LAWTON, Appellant/Cross-appellee.

No. 97,132.

Court of Appeals of Kansas.

October 26, 2007.

Amy S. Lemley, James D. Oliver, and Brooke Bennett Aziere, of Foulston Siefkin, LLP, of Wichita, for appellant/cross-appellee.

Lawrence W. Williamson, Jr., of Shores, Williamson, and Ohaebosim, LLC, of Wichita, for appellee/cross-appellant.

Peter S. Johnston and Dustin J. Denning, of Clark, Mize, & Linville, Chartered, of Salina, for amicus curiae Kansas Association of Defense Counsel.

Before RULON, C.J., GREENE, J., and LARSON, S.J.

GREENE, J.

In this interlocutory appeal in a medical malpractice case, the district court certified three questions for review, all of which arise from its order granting a new trial after a verdict finding defendant Dr. Steve Lawton 54% at fault for injuries to plaintiff Richard Williams and awarding $200,000 for past and present pain and suffering and $1,750,000 for future pain and suffering. We review and answer the certified questions, but we also view the certified questions as being inextricably linked to the entirety of the order granting a new trial, and we reverse that order and remand with directions to reinstate the verdict of the jury.

Factual and Procedural Background

Williams was an adult father of four upon becoming a patient of Lawton on January 24, 2002, complaining of a urological lesion that would not heal. The medical history form did not specifically request information about diabetes, and no urinalysis was ordered by Lawton. On February 1, 2002, Lawton performed an outpatient surgery on Williams. Thereafter, a host of severe problems developed including pain, an unusual protrusion, urination issues, a lack of sensation, and other unusual symptoms. Williams remained in Lawton's care until May 2002, after which he sought advice from another physician.

On August 11, 2004, Williams filed an action against Lawton alleging negligence in failing to order a urinalysis prior to the surgery, which would have alerted Lawton to undiagnosed diabetes. Additionally, Williams alleged that when he did not heal properly after the surgery, Lawton was negligent in failing to treat the postoperative problems.

After the district court concluded Williams' standard of care witness qualified as an expert under K.S.A. 60-3412, Philip Diggdon, M.D., testified he had completed thousands of such surgeries, including hundreds on adults, and that Williams should have been checked for diabetes before surgery. Diggdon explained that diabetes left uncontrolled in any surgical patient "is fraught with many, many complications," including fungal infections. Diggdon testified Lawton's failure to check for diabetes before surgery was a departure from the standard of care.

Ultimately, the jury found Lawton 54% at fault for Williams' injuries and Williams 46% at fault. The jury awarded $200,000 for past and present pain and suffering and $1,750,000 for future pain and suffering. The jury was polled, and each juror confirmed the verdict was that of 10 or more jurors.

Lawton then filed a motion for the cap on damages be applied to the verdict, a motion for judgment not withstanding the verdict, and a motion to reconsider the decision qualifying Diggdon as an expert. Lawton also filed a motion for new trial based upon the expert witness issue, juror misconduct, and attorney misconduct. The motion was supported with the affidavit of a juror, which counsel procured after a postverdict systematic telephone poll of all jurors. The affidavit stated, among other complaints, that "the verdict was reached by averaging all of the jurors' opinions." Based on this affidavit, the district court acted sua sponte in recalling all the jurors for postverdict interviews. Eight of the 12 jurors appeared for the questioning and separately testified in response to the court's questions; counsel were not permitted to directly participate in the questioning. The scope and result of these juror interviews will be discussed below.

The district court ultimately granted Lawton's motion for a new trial based on juror misconduct having "substantially prejudiced" Lawton's rights. A new trial was scheduled for November 7, 2006, but the court granted the parties' request to seek an interlocutory appeal on three issues only: (i) the court's admission of Diggdon's expert testimony; (ii) the court's authority to recall the jury sua sponte; and (iii) the court's decision to question the jurors itself, without permitting direct participation by counsel during the recall. This court granted the defendant's interlocutory appeal on September 7, 2006. A subsequent order granted the plaintiff's cross-appeal. Timely docketing followed.

What is the Proper Scope of this Interlocutory Appeal?

The three questions certified by the district court were appealed respectively by the party aggrieved by each; i.e., Lawton appealed the court's decision to permit the plaintiff's expert to testify, and Williams appealed the court's decisions in connection with the jury recall. Lawton argues, however, that Williams has attempted to expand the scope of the appeal by raising other issues related to the order for new trial and seeking a reinstatement of the jury verdict. Accordingly, Lawton suggests that the order granting a new trial was not itself appealed or appealable and that this court should refrain from addressing any issues beyond the specific questions certified. We disagree.

First, we note that addressing the specific certified questions related to jury recall without considering whether a new trial was warranted would require us to issue a mere advisory opinion, which would be prohibited. See Cady v. Cady, 224 Kan. 339, 345, 581 P.2d 358 (1978) (courts do not render advisory opinions on abstract questions of law absent actual controversy). Surely the district court had no such naive expectation in certifying the questions related to the jury recall; it seems far more logical that the district court believed there was legitimate room for difference of opinion on the entire procedure employed for the jury recall and questioning, and the court expected us to review the key questions of law and determine whether jury recall and its outcome adequately supported the order for a new trial. In fact, the district judge clearly expressed his understanding of the scope of this appeal by stating, "And it's my understanding if I make interlocutory findings, that what goes up is the whole motion for new trial and not just whatever issue I say goes up."

Second, our Supreme Court has recognized that the proper scope of an interlocutory appeal is not necessarily restricted to the specific certified questions. In Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, Syl. ¶ 2, 997 P.2d 681 (2000), the court held: "Where an appealable issue in an interlocutory appeal is inextricably intertwined with other issues that do not themselves meet the criteria for an interlocutory appeal, the latter issues may also be reviewed to allow meaningful review and promote judicial economy." In so holding, the court considered federal authority, specifically Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1365 (11th Cir.1997). It appears the federal courts are consistent on this principle of pendant interlocutory jurisdiction.

The federal courts recognize the permissible scope of an interlocutory appeal is not limited to the precise questions that may have been certified by the district court, but rather the appeal should be limited to the order or orders implicated by the certified questions. See, e.g., Paper, Allied-Industrial v. Continental, 428 F.3d 1285 (10th Cir. 2005) (appellate court can and should address a different legal question if it controls the disposition of the order from which the certified questions were taken); J.S. ex rel. N.S. v. Attica Cent. Schools, 386 F.3d 107 (2d Cir.2004), cert. denied 544 U.S. 968, 125 S.Ct. 1727, 161 L.Ed.2d 616 (2005) (appeal is not necessarily limited to certified issue, and the court has discretion to consider any aspect of the order from which appeal was taken); McFarlin v. Conseco Services, LLC, 381 F.3d 1251 (11th Cir.2004) (appellate jurisdiction is not tied to the particular questions formulated by the district court but rather applies to the order certified); Dailey v. National Hockey League, 987 F.2d 172 (3d Cir.), cert. denied 510 U.S. 816, 114 S.Ct. 67, 126 L.Ed.2d 36 (1993) (review in interlocutory appeal is not constrained by question certified but may address any issue necessary to decide the appeal); Pinney Dock and Transport Co. v. Penn Cent. Corp., 838 F.2d 1445 (6th Cir.1988), cert. denied 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988) (issues not properly certified for interlocutory appeal are subject to discretionary power of review if otherwise necessary to the disposition of the case); Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976 (5th Cir. 1985) (district court articulation of certified issues of interlocutory appeal in effect certified entire order for review); In re Oil Spill by Amoco Cadiz, Etc., 659 F.2d 789 (7th Cir.1981) (appellate court free to consider such questions as are basic to and underlie the orders supporting the appeal).

Our discussion of the permissible scope of an interlocutory appeal should not be misunderstood. We adhere to the long-standing policy in Kansas to discourage interlocutory appeals and avoid piecemeal and fractionalized litigation. See McCain v. McCain, 219 Kan. 780, 783, 549 P.2d 896 (1976). Notwithstanding certification of an interlocutory appeal by a district court, granting permission for such an appeal is solely within our sound discretion. K.S.A. 60-2102(c). Generally, an order granting a new trial would not be subject to interlocutory review. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 485, 15 P.3d 338 (2000). Our review of such an order in this case...