Williston v. Ard
| Decision Date | 20 November 1992 |
| Citation | 611 So.2d 274 |
| Parties | Dr. William C. WILLISTON v. Annette ARD, individually and as mother and next friend of Amanda Lynn Ard, a minor. 1901862. |
| Court | Alabama Supreme Court |
John N. Leach, Jr. of Helmsing, Lyons, Sims & Leach, P.C., Mobile, and Samuel N. Crosby of Stone, Granade, Crosby & Blackburn, P.C., Bay Minette, for appellant.
Andrew T. Citrin, James A. Yance and Robert T. Cunningham, Jr. of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellee.
The defendant Dr. William C. Williston appeals from a judgment entered on a jury verdict in a medical malpractice suit.
In January 1986, the minor plaintiff, Amanda Lynn Ard, entered South Baldwin Hospital to undergo a routine appendectomy. During the surgery, Amanda suffered irreversible brain damage, leaving her cortically blind and permanently unable to walk, talk, or care for herself. Subsequently, Amanda, by and through her mother and next friend, Annette Ard; and her mother, individually; sued Dr. Williston, alleging medical malpractice. 1 The jury returned a $4,500,000 verdict for Amanda and a $1,000,000 verdict for the mother. Dr. Williston moved for a judgment notwithstanding the verdict, or, in the alternative, to alter or amend the judgment, or, in the alternative, for a new trial or a remittitur. The trial court denied Dr. Williston's post-judgment motion. Dr. Williston appeals. We affirm the $4,500,000 judgment for Amanda; and we affirm the judgment for the mother conditioned upon her accepting a remittitur of $590,133.22, within 30 days of the date of this opinion (November 20, 1992), which will result in a judgment for the mother of $409,866.78.
Dr. Williston contends that the trial court erred in denying a new trial because, he says, certain jurors, including the foreperson of the jury, failed to respond correctly to questions asked of them on voir dire.
In Union Mortgage Co. v. Barlow, 595 So.2d 1335 (Ala.1992), cert. denied, 506 U.S. 906, 113 S.Ct. 301, 121 L.Ed.2d 224 (1992), recognizing that parties in litigation are entitled to true and honest answers from prospective jurors so that they can "The proper inquiry on a motion for a new trial based on improper or nonexistent responses to voir dire questions is whether the response, or the lack of response, resulted in probable prejudice to the movant. Not every failure of a prospective juror to respond correctly to a voir dire question will entitle the losing party to a new trial.
exercise their right to strike a juror, this Court set forth the standard of review applicable to this issue:
595 So.2d at 1342-43 (citations omitted). See, Land & Associates, Inc. v. Simmons, 562 So.2d 140 (Ala.1989), cert. denied, 499 U.S. 918, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991); Ensor v. Wilson, 519 So.2d 1244 (Ala.1987); Alabama Gas Corp. v. American Furniture Galleries, Inc., 439 So.2d 33 (Ala.1983).
In this case, the plaintiffs' counsel asked the prospective jurors the following question during voir dire:
Following the trial, an investigation revealed that three of the jurors (including the foreperson) or members of their families had been involved in events that required an affirmative response, but none of them responded accordingly. One of the jurors failed to disclose that her husband had been a defendant in a lawsuit over "$713 due on account"; another failed to disclose that a member of her family had been a defendant in a suit over a failure to pay a promissory note; and the foreperson failed to disclose that she had been a defendant in two suits filed in small claims court and that her father had been a defendant in seven collection matters (six resolved either through consent judgments or by simply being marked "satisfied" following payment and the seventh being an action based on a "Bill for Sale for Division" filed in May 1989 and disposed of in August 1990).
Applying our standard of review on the issue of jurors' improper responses, we cannot hold that the trial court abused its discretion in finding that there had been no prejudice to Dr. Williston. From the evidence, the trial court could have found inadvertence on the part of the jurors or a misunderstanding of the question as it related to them. See Ensor v. Wilson, supra. In fact, in its order denying Dr. Williston's post-trial motions, the trial court construed the phrase "a lawsuit for damages" to summarily exclude collection cases from consideration and found that Dr. Williston "suffered no injury or prejudice when several potential jurors failed to disclose that they or members of their family had been defendants in debt collection cases."
Under the circumstances, we find no error in the trial court's ruling.
Dr. Williston next contends that he was entitled to a new trial because of what he says was the prejudicial effect of the testimony of Sandy McGill, the administrator of South Baldwin Hospital; he says that that testimony injected insurance coverage into the case.
McGill was called during the plaintiffs' case-in-chief to testify with respect to Dr. Williston's relationship with South Baldwin Hospital. After a lengthy examination by the plaintiffs' counsel, who had called McGill as an adverse witness, counsel for South Baldwin Hospital questioned McGill concerning how a physician obtained staff The determining factor in those cases in which a witness gives an unresponsive answer mentioning "insurance" is whether the remark concerning insurance was prejudicial; i.e., in this case we must consider whether Dr. Williston was prejudiced to such an extent that any improper influence of the subject of insurance could not be eradicated from the jurors' minds. See Thompson-Weinman & Co. v. Robinson, 386 So.2d 409 (Ala.1980). Because the trial judge is present and is an eyewitness to all the proceedings, the judge's action in denying the motion for new trial will not be disturbed unless it affirmatively appears from the entire record that the statements involved were prejudicial. Id.
privileges with the hospital. In response to one of these questions, McGill made a general reference to insurance, stating that one of the requirements for a physician to practice at the hospital was that he had to present evidence that "he is covered with insurance." No one objected at that point in the examination. Only after further examination of the witness did Dr. Williston object, at which time the plaintiffs requested that the trial court instruct the jury to "ignore whatever they heard about insurance," rather than grant a mistrial. The trial court offered to give a curative instruction to eradicate the prejudicial effect of the evidence, if any, see Lloyd Noland Foundation, Inc. v. Harris, 295 Ala. 63, 322 So.2d 709 (1975), but Dr. Williston rejected that offer because, he said, a curative instruction might "magnify or emphasize" the point. In his new trial motion Dr. Williston argued that the injection of insurance into the trial ineradicably prejudiced the jurors' minds
In his written order denying Dr. Williston's post-judgment motions, the trial judge stated:
(Emphasis added.)
Based on the foregoing, it is clear that the trial court found that the injection of insurance into the trial was an unsolicited, inadvertent reference that caused no prejudice to Dr. Williston. From our review of the entire record, we agree. Therefore, we hold that the trial court did not abuse its discretion in denying Dr. Williston's post-judgment motion on this issue.
Dr. Williston also maintains that the trial court erroneously refused to allow the testimony of Rosemary Hart, a special education coordinator in the Baldwin County school system. He proffered Hart's testimony as to the availability of programs in the Baldwin County School System for multi-handicapped children like Amanda. The trial court held that testimony as to any services provided by the Baldwin County Board of Education [was] subject to the collateral source rule and therefore inadmissible.
The collateral source rule provides that an amount of damages is not decreased by benefits received by a plaintiff from a source wholly collateral to and independent of the wrongdoer, including services provided by the state at government expense or decreased by institutionalization at government expense. See Ensor v. Wilson, supra, wherein this Court applied the collateral source rule to special education opportunities available to the plaintiff as of right.
Under the facts of this case, because Hart's testimony pertained to the special services available to Amanda through governmental sources, the...
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