379 P.3d 372
Kan. Ct. App.2016Background
- Joel Burnette received epidural steroid injections at PainCARE, P.A.; he later developed infection (bacterial meningitis → arachnoiditis) after an injection and suffered chronic, severe consequences.
- Burnette filed a medical negligence suit; he died by suicide during litigation. His heirs and estate substituted as plaintiffs and pursued wrongful death damages, alleging the suicide was caused by pain and disability from arachnoiditis.
- At trial, a jury found Dr. Kimber Eubanks 75% at fault and the Clinic 25% at fault, awarding damages to the estate and parents; statutory cap applied to certain noneconomic damages.
- Defendants appealed, challenging (1) the jury causation instruction ("caused or contributed to"), (2) admissibility of a social worker’s opinion linking arachnoiditis to the suicide, (3) inclusion of "loss of a complete family" in economic damages, (4) a juror's unsolicited reference to insurance, and (5) permitting a deposition drawing (Exhibit 114) to go to the jury room.
- The court upheld the verdict: it held comparative-fault principles apply to wrongful death (contributing causes qualify as "caused"), admissibility rulings were proper, Wentling pecuniary damages supported the economic award, the insurance comment was cured by instruction, and allowing Exhibit 114 into deliberations was within the trial court's discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper causation instruction in wrongful death ("caused or contributed to") | Instruction correctly tracks comparative-fault law: contributing negligence can be a cause under wrongful death statute | Wrongful death statute uses "caused" only; "contributed to" expands liability improperly and requires sole causation | Affirmed: contributing cause counts as "cause"; comparative negligence governs wrongful death so instruction was legally appropriate |
| Admissibility of clinical social worker's causation opinion | Social worker may testify that arachnoiditis and its symptoms contributed to suicide | Testimony exceeded social-worker authority under K.S.A. 65-6319 and improperly opined on causation | Affirmed: statute did not bar such testimony; trial court did not abuse discretion |
| Inclusion of "loss of a complete family" as economic damage | Plaintiffs sought Wentling-type pecuniary damages including loss of attention/care and related family benefits | Defendants argued "loss of a complete family" is nonpecuniary and Howell bars folding it into economic damages | Court found the phrase was improperly included (departure from PIK/Howell) but not clear error given Wentling evidence and magnitude of award; did not reverse |
| Juror’s unsolicited insurance remark during voir dire | N/A (plaintiffs benefited from cure) | Defense moved to strike venire for prejudice; argued remark likely inflated verdict | Denied: remark was inadvertent, removed juror, curative instruction given; no prejudicial error |
| Allowing deposition drawing (Exhibit 114) into jury room | Exhibit was admissible and useful; limitations on accuracy were on record for jury assessment | Drawing lacked foundation and should not be taken into deliberations | Affirmed: handling of exhibits in deliberations is discretionary; no shown prejudice |
Key Cases Cited
- Allman v. Holleman, 233 Kan. 781 (Kansas 1983) (stating a party is at fault when negligent and negligence caused or contributed to injury)
- Wentling v. Medical Anesthesia Servs., P.A., 237 Kan. 503 (Kansas 1985) (explains proof required for pecuniary damages in wrongful death and that exact monetary certainty is not required)
- Howell v. Calvert, 268 Kan. 698 (Kansas 2000) (clarifies distinction between pecuniary and nonpecuniary wrongful-death damages and rejects conflating certain family-relationship losses as economic)
- Siruta v. Siruta, 301 Kan. 757 (Kansas 2015) (recognizes comparative fault principles apply in wrongful death cases)
- Eurich v. Alkire, 224 Kan. 236 (Kansas 1978) (describes comparative negligence act as comprehensive machinery to apportion fault among multiple parties)