378 P.3d 464
Idaho2016Background
- In July 2010 Krystal Ballard underwent liposuction with fat transfer at Silk Touch Laser (Dr. Brian Kerr). She developed septic shock and died days later; autopsy found gram-negative rods in the right buttock near the injection site.
- Charles Ballard sued Silk Touch and Dr. Kerr for wrongful death/medical malpractice, alleging reusable instruments were not properly cleaned (no enzymatic soak; no biological autoclave indicators) and contaminated the transferred fat.
- First trial (Nov 2013) ended in mistrial after defense expert testified about absence of infections at Silk Touch in violation of an in limine order; second trial (Sept–Oct 2014) produced a plaintiff verdict (breach, proximate cause, recklessness) and substantial damages.
- District court awarded plaintiff discretionary costs and attorney fees for the mistrial; defendant Silk Touch appealed on many grounds (evidentiary rulings, sufficiency of evidence, jury instructions, juror questions, trial judge comments, award of fees). Plaintiff sought fees on appeal.
- The Idaho Supreme Court affirmed the judgment on liability, causation, jury instructions, juror-question procedure, and most evidentiary rulings; it vacated the award of attorney fees for the mistrial (remanded) but affirmed discretionary costs; it awarded plaintiff partial appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence on breach of standard of care | Dr. Sorensen’s testimony, deposition/ interrogatory admissions, and autopsy evidence established breach (no enzymatic cleaning; no biological indicators). | Silk Touch said expert foundation inadequate, conflicting testimony, and guidelines cannot establish community standard. | Substantial evidence supported breach; court declined to address some foundational objections forfeited at trial. |
| Causation (proximate cause) | Chain of circumstantial evidence (sterilization failures → contaminated instruments → fat injection → localized bacteria → sepsis) sufficed. | Defense argued no direct proof instruments were contaminated, left buttock uninfected, other explanations (e.g., E. coli) possible. | Circumstantial evidence and expert pathology testimony supported proximate cause; jury credibility determinations upheld. |
| Admissibility of expert testimony / evidentiary rulings | Plaintiff: Dr. Sorensen was sufficiently familiar with local standard and could opine; various exhibits and impeachment permitted. | Silk Touch: foundational and scope objections to Dr. Sorensen; objections to juror questions, exhibits, and certain testimony. | Most evidentiary rulings affirmed; many defense complaints were unpreserved or harmless; some trial errors cured by instruction. |
| Jury instructions (standard of care, circumstantial evidence, negligence, recklessness) | Plaintiff relied on IDJI and the evidence to submit negligence and recklessness to jury. | Silk Touch argued pattern IDJIs failed to instruct per I.C. § 6-1012 and that recklessness required expert proof. | Instructions adequate as a whole; circumstantial-evidence example permissible; recklessness submission allowed (no statutory requirement of expert proof for recklessness). |
| Juror questions | Plaintiff supported juror questions as discretionary and helpful. | Silk Touch claimed procedural safeguards were insufficient, excessive questions prejudiced defense, and objections not properly handled. | Court did not abuse discretion; Rule 47(q) procedures followed; many specific objections not preserved for appeal. |
| Award of attorney fees & costs for mistrial | Plaintiff obtained fees/costs after mistrial caused by defense expert violating in limine order. | Silk Touch contended mistrial not deliberate misconduct by counsel/party and award improper. | Discretionary costs affirmed; attorney-fee award under I.R.C.P. 47(u) vacated because the court did not expressly find the mistrial was caused by deliberate misconduct of a party or counsel (remanded for reconsideration). |
Key Cases Cited
- Van v. Portneuf Med. Ctr., 156 Idaho 696 (discusses standard for reviewing jury verdicts and admission/exclusion of evidence)
- Mackay v. Four Rivers Packing Co., 151 Idaho 388 (jury verdict review; weight and credibility determinations)
- Bybee v. Gorman, 157 Idaho 169 (expert foundational requirements for local standard of care)
- Mattox v. Life Care Ctrs. of Am., Inc., 157 Idaho 468 (definition of community and standard-of-care framework)
- Jones v. Crawforth, 147 Idaho 11 (admissibility of expert opinions on recklessness/negligence level)
- Easterling v. Kendall, 159 Idaho 902 (proximate-cause elements in medical malpractice)