Williams v. Lawton, 97,132.

Decision Date29 May 2009
Docket NumberNo. 97,132.,97,132.
PartiesRichard WILLIAMS, Appellee/Cross-appellant, v. Dr. Steve LAWTON, Appellant/Cross-appellee.
CourtKansas Supreme Court

James D. Oliver, of Foulston Siefkin LLP, of Overland Park, argued the cause, and Amy S. Lemley and Brooke Bennett Aziere, of the same firm, of Wichita, were with him on the briefs for appellant/cross-appellee.

Lawrence W. Williamson, Jr., of Shores, Williamson, and Ohaebosim, LLC, of Wichita, argued the cause and was on the brief for appellee/cross-appellant.

G. Andrew Marino and Shannon L. Holmberg, of Gilliland & Hayes, P.A., of Wichita, and Peter S. Johnston and Dustin J. Denning, of Clark, Mize & Linville, Chartered, of Salina, were on separate briefs for amicus curiae Kansas Association of Defense Counsel.

The opinion of the court was delivered by LUCKERT, J.:

This interlocutory appeal follows a district judge's decision to grant a new medical malpractice trial because of jury misconduct. More specifically, the district judge found the defendant was prejudiced by the jury's agreement to average each juror's assessment of negligence and to accept the resulting quotient as the jury's verdict. Subsequently, the district judge certified three questions for interlocutory appeal: (1) Was it error to admit the testimony of the plaintiff's medical malpractice liability expert who had retired from clinical practice several months before the medical treatment that gave rise to this case? (2) Was it error to sua sponte recall the jury? and (3) Did the judge commit error by questioning the jurors without allowing the attorneys to directly participate in the questioning?

After accepting the interlocutory appeal, the Court of Appeals broadened the scope of the issues, finding defense counsel's conduct in interviewing the jurors to be inappropriate and determining that the issue of whether a new trial should be granted was inextricably intertwined with the interlocutory issues. Then, finding error in the procedure followed in recalling the jurors, in the district judge's questioning of the jurors, and in the district judge's decision that there had been a prejudicial quotient verdict, the Court of Appeals reversed the district court's grant of a new trial. Williams v. Lawton, 38 Kan.App.2d 565, 170 P.3d 414 (2007).

Dr. Steve Lawton filed a petition for review, raising several issues relating to the Court of Appeals' jurisdiction and holdings. Upon our review, we conclude the Court of Appeals had jurisdiction over all the issues it considered, but we reverse the holding that the district judge erred in granting a new trial because the determination of whether there was a quotient verdict is inherently factual and substantial competent evidence supports the district judge's findings.

District Court Proceedings

This medical malpractice action was filed after Richard Williams suffered complications from an adult circumcision performed by Lawton. A jury found Lawton 54 percent at fault for Williams' injuries and awarded $200,000 for past and present pain and suffering and $1.775 million for future pain and suffering.

Lawton subsequently filed several motions, including a motion for a cap on damages to be applied to the verdict pursuant to K.S.A. 60-19a02 and a motion for judgment as a matter of law (notwithstanding the verdict) or, in the alternative, a motion for new trial. See K.S.A. 60-250(b). Lawton's motion for a new trial was based on several issues, including two that are pertinent to this appeal. First, Lawton renewed pretrial and trial objections to the qualifications of Williams' standard-of-care expert witness, Philip Diggdon, M.D. Lawton argued that K.S.A. 60-3412 required Diggdon's disqualification because Diggdon had retired approximately 3 months before Lawton treated Williams. Because Diggdon's professional time at the time of the incident was entirely devoted to legal consulting, Lawton argued the expert was disqualified.

Second, Lawton's motion for a new trial alleged juror misconduct, an argument he supported by the affidavit of a juror, Juror A.S., which defense counsel procured after conducting postverdict systematic telephone interviews of the jurors. The affidavit stated in part that "the verdict was reached by averaging all of the jurors' opinions."

After holding a hearing and considering the affidavit of Juror A.S. and the affidavits of two other jurors submitted by the plaintiff's counsel, the district judge issued an order requesting that all the jurors return for questioning. Eight of the 12 jurors appeared and separately testified in response to the judge's inquiries. The district judge conducted the questioning; the attorneys were not permitted to directly participate.

Based upon the jurors' responses, the district judge found, inter alia, there was juror misconduct by means of an improper quotient verdict and the misconduct "substantially prejudiced" Lawton's rights. Consequently, the district judge granted Lawton's motion for a new trial. Subsequently, the proceedings were stayed when the district judge granted the parties' request to seek an interlocutory appeal.

Court of Appeals' Decision

The Court of Appeals granted Lawton's request for an interlocutory appeal and, by subsequent separate order, granted Williams' interlocutory cross-appeal.

Scope of Interlocutory Appeal

From the start, the parties disagreed about the scope of issues in this appeal. In their appellate briefs, each party focused on the certified question or questions corresponding with their individual grievances. Lawton appealed the district judge's decision to admit Diggdon's expert testimony, and Williams questioned the procedures that led to the recall of the jury. Lawton argued, however, that Williams inappropriately attempted to broaden the Court of Appeals' scope of review by raising other issues related to the district judge's order granting a new trial and seeking a reinstatement of the jury's verdict. Lawton asserted that the Court of Appeals' jurisdiction was limited to consideration of the three issues certified for interlocutory appeal by the district judge and, therefore, the district judge's order granting a new trial was neither appealed nor appealable.

The Court of Appeals, in a split decision, disagreed with Lawton's contention that the scope of the interlocutory appeal should be so limited and stated two reasons for its decision. First, the majority stated that if it were to address the specific certified questions related to jury recall without considering whether a new trial was warranted, any decision issued would be merely advisory, which is prohibited. 38 Kan.App.2d at 570, 170 P.3d 414. As support for this reasoning, the majority noted that the district judge expected the Court of Appeals "to review the key questions of law and determine whether jury recall and its outcome adequately supported the order for a new trial." 38 Kan. App.2d at 571, 170 P.3d 414. As the Court of Appeals majority observed, the district judge noted that only legal questions can be certified for interlocutory appeal and the question of whether there was a quotient verdict was factual but "that what goes up is the whole motion for new trial and not just whatever issue I say goes up." 38 Kan.App.2d at 571, 170 P.3d 414.

Second, the Court of Appeals majority stated that each of the three certified questions "were derived from and were the lynchpins" for the district judge's order granting a new trial. 38 Kan.App.2d at 572, 170 P.3d 414. The majority cited Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, Syl. ¶ 2, 997 P.2d 681 (2000), where this court held that issues not meeting the criteria for an interlocutory appeal may be reviewed along with appealable issues where the issues are "`inextricably intertwined'" and must be reviewed "`to allow meaningful review and promote judicial economy.'" 38 Kan.App.2d at 571, 170 P.3d 414.

Retired Justice, now Senior Judge Edward Larson, assigned to the Court of Appeals panel concurred in part with and dissented in part from the majority opinion. 38 Kan. App.2d at 586-97, 170 P.3d 414. As to the question of scope, Senior Judge Larson would have held that the district judge improperly certified the questions for interlocutory appeal and that the Court of Appeals improvidently granted consideration of the same. 38 Kan.App.2d at 586, 170 P.3d 414 (Larson, J., dissenting in part). Nevertheless, because the interlocutory appeal was accepted by the Court of Appeals, Senior Judge Larson concurred with the majority's view that the issues relating to jury recall and the granting of a new trial were inextricably intertwined and, thus, it was necessary to consider all issues pertaining to the district judge's order for a new trial. 38 Kan. App.2d at 587-88, 170 P.3d 414 (Larson, J., concurring in part).

Qualification of Plaintiff's Expert Witness

Having determined there was no procedural bar to the consideration of the substantive issues, the Court of Appeals addressed the certified question which is the subject of Lawton's appeal: Did the district judge err in finding the plaintiff's sole expert witness, Diggdon, met the criteria set forth in K.S.A. 60-3412 and in rejecting the argument that the error was a basis for ordering a new trial? The majority, with Senior Judge Larson concurring, concluded that the record supported the district judge's finding that Diggdon spent at least 50 percent of his professional time during the 2 years preceding the incident in his actual clinical practice, regardless of the fact that he retired approximately 3 months before the incident and became a full-time consultant thereafter. 38 Kan.App.2d at 574, 170 P.3d 414, 38 Kan. App.2d at 588-89 (Larson, J., concurring in part). The Court of Appeals held that the district judge correctly interpreted and applied K.S.A. 60-3412, Diggdon properly testified on behalf of Williams, and the admission of Diggdon's expert testimony was not...

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