Wolfe v. Abraham

• Decision Date: 15 October 1993
• Docket Number: No. S-91-728,S-91-728
• Citation: 244 Neb. 337,506 N.W.2d 692
• Parties: Richard WOLFE and Patsy Wolfe, Husband and Wife, Appellees, v. Bobby ABRAHAM, M.D., and Surgical Arts, P.C., Appellants.
• Court: Nebraska Supreme Court

Page 692

506 N.W.2d 692

244 Neb. 337

Richard WOLFE and Patsy Wolfe, Husband and Wife, Appellees, v. Bobby ABRAHAM, M.D., and Surgical Arts, P.C., Appellants.

No. S-91-728.

Supreme Court of Nebraska.

Oct. 15, 1993.

Syllabus by the Court

1. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

2. Verdicts: Appeal and Error. Where a party has sustained the burden and expense of trial and has succeeded in securing a verdict on the facts in issue, that party has the right to keep the benefit of the verdict unless there is prejudicial error in the proceedings by which it was secured.

3. Motions for New Trial: Appeal and Error. A motion for new trial is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred.

4. Motions for New Trial. A motion for new trial is to be entertained with reluctance and granted with caution, because of the manifest injustice in allowing a party to allege that which may be the consequence of its own neglect in order to defeat an adverse verdict, and, further, to prevent fraud and imposition which defeated parties may be tempted to practice to escape the consequences of an adverse verdict.

5. Motions for New Trial. The discretion of a trial court in ruling on a motion for new trial is only the power to apply the statutes and legal principles to all facts of the case; a new trial may be granted only where legal cause exists.

6. Motions for New Trial. A trial court may not grant a new trial merely because it would reach a different result than did the jury.

7. Trial: Juries. Appeals to local sentiment in closing arguments are highly improper and are not to be countenanced; cases are to be argued on their facts without playing to a jury's prejudice.

8. Trial: Waiver: Appeal and Error. One may not waive an error, gamble on a favorable verdict, and, upon obtaining an unfavorable result, assert the previously waived error.

9. Trial: Appeal and Error. In order to preserve, as a ground of appeal, an opponent's misconduct during closing argument, the aggrieved party must have objected to the improper remarks no later than at the conclusion of the argument.

10. Motions for Mistrial: Time. An aggrieved party wishing a mistrial because of an opponent's misconduct during argument is required to move for such before the cause is submitted.

11. Motions for New Trial: Evidence: Proof. In order to warrant the granting of a new trial because of newly discovered evidence, the movant must establish that the evidence at issue could not have been discovered through the exercise of reasonable diligence by either the litigant or counsel, that the evidence is not merely cumulative, and that the evidence is competent, relevant, and material and of such a character as to reasonably justify a belief that its admission would bring about a different result if a new trial were granted.

Stephen W. Kay of Kay & Kay, North Platte, for appellants.

James J. Paloucek and Royce E. Norman of Kelley, Scritsmier & Byrne, P.C., North Platte, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

This is a case of alleged medical malpractice in which a verdict was returned in favor of the defendants-appellants, Bobby Abraham, M.D., and Surgical Arts, P.C. The district court thereafter sustained the motion for new trial filed by the plaintiff-appellee patient, Richard Wolfe, and his wife, the plaintiff-appellee Patsy Wolfe. The defendants challenge that ruling by asserting that the district court erred in determining that a new trial was required because of (1) the defendants' improper closing argument and (2) the existence of newly discovered evidence. We reverse, and remand with direction.

II. SCOPE OF REVIEW

Our scope of review is defined by the rule that a motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Loving v. Baker's Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991); Kumar v. Douglas County, 234 Neb. 511, 452 N.W.2d 21 (1990).

It is well established, however, that where a party has sustained the burden and expense of trial and has succeeded in securing a verdict on the facts in issue, that party has the right to keep the benefit of the verdict unless there is prejudicial error in the proceedings by which it was secured. Thus, a motion for new trial is to be granted only when error prejudicial to the rights of the unsuccessful party has occurred. Kumar v. Douglas County, supra; Bentz v. Nebraska P.P. Dist., 211 Neb. 844, 320 N.W.2d 763 (1982); Bodzek v. Callahan, 211 Neb. 600, 319 N.W.2d 721 (1982); Law v. Gilmore, 171 Neb. 112, 105 N.W.2d 595 (1960). We have also observed that a motion for new trial is to be entertained with reluctance and granted with caution, because of the manifest injustice in allowing a party to allege that which may be the consequence of its own neglect in order to defeat an adverse verdict, and, further, to prevent fraud and imposition which defeated parties may be tempted to practice to escape the consequences of an adverse verdict. Ipock v. Union Ins. Co., 242 Neb. 448, 495 N.W.2d 905 (1993); Fisher Corp. v. Consolidated Freightways, 230 Neb. 832, 434 N.W.2d 17 (1989); Gruenewald v. Waara, 229 Neb. 619, 428 N.W.2d 210 (1988); Smith v. Erftmier, 210 Neb. 486, 315 N.W.2d 445 (1982).

Consequently, the discretion of a trial court in ruling on a motion for new trial is only the power to apply the statutes and legal principles to all facts of the case; a new trial may be granted only where legal cause exists. A trial court may not grant a new trial merely because it would reach a different result than did the jury. Bentz v. Nebraska P.P. Dist., supra.

III. FACTS

The patient saw John L. Batty, M.D., because of upper abdominal pain. Batty suggested a gastroscopy, a procedure whereby a flexible tube with a light source is inserted through the mouth into the stomach, allowing the examiner to look for ulcers or other abnormalities. Batty then contacted Abraham, a solo practitioner practicing under the corporate name Surgical Arts, P.C., who attempted to perform the procedure at a hospital in McCook, Nebraska, where Abraham was the chief of surgery.

During the attempt, Abraham, over a period of approximately 20 minutes, administered 65 milligrams of Valium in four doses. Despite administration of the drug, the patient did not get sleepy as was expected, and he pushed the tube away with his hand whenever Abraham attempted to insert it into the patient's mouth. Abraham terminated the attempt sometime after 9:20 a.m., and a nurse then took the patient to the recovery room for observation. She released him to his wife at 11:30 a.m.

According to the wife, when the patient was brought to her, he was ashen gray and he did not look at her, but just stared straight ahead. Moreover, he could neither step up onto the curb nor get into the vehicle which was waiting for him outside the hospital without her help.

In reply to the plaintiffs' interrogatories, Abraham stated that the patient did not sustain any neurological or psychological damage on the day of the attempted procedure, but Abraham believed that the patient had some preexisting abnormalities.

The evidence at trial is irreconcilably in conflict. On the one hand, there is expert testimony from Colorado physicians that Abraham administered an excessive amount of Valium and that as a result, the patient suffered brain damage. There is also lay testimony that since the attempted procedure, the patient has experienced a reduction of intellectual capacity and physical ability. In addition, the plaintiffs established that physicians refer for guidance in administering drugs to a publication known as the Physicians' Desk Reference, which states that 10 milligrams of Valium or less are generally adequate and that up to 20 milligrams may be given. On the other hand, there is expert testimony from Nebraska physicians that in administering the amount of Valium he did, Abraham met the appropriate standard of care or skill, and, further, that the patient suffered no undesirable effects as a result of the attempted gastroscopy.

In the course of their closing argument, the defendants told the jury:

[W]hat you have here, you have a couple of plaintiffs who are coming in here and saying that your local hospital and a former local doctor violated the standard of care in the treatment of [the patient]. And that's going to be one of the decisions that you're going to have to make up your mind on.

....

And that's all they have. Two doctors from Colorado. They didn't come up with anybody from around here, did they? They didn't come up with anybody from Nebraska. They have to go to Denver to get two doctors, and they have one that testifies to the standard of care and the other one testifies as to causation.

And I don't want to give you the idea that I'm belittling these doctors or anything like that. But if you think--[plaintiffs' counsel] stands up and tells you about that PDR, this drug book, and 65 milligrams. If this was so horrible, don't you think that he could have got some doctors in this area or around this area, in Nebraska, that could come in here and say ... Abraham was wrong in giving 65 milligrams of Valium; ... Abraham caused this problem, that this brain injury--alleged brain injury was caused by the Valium?

And you know why he didn't bring somebody in? He couldn't find one. He had to go to Denver and get somebody that charged $300 an hour--you heard that, $300 an hour--that sat here I don't know how long, but practically a whole full day. You saw that. $300 an hour, to tell you that your local hospital, who I think has an excellent reputation, and ... Abraham, who's a...