DEPARTMENT OF HUMAN RESOURCES v. PHILLIPS et al.
S97A0468
Supreme Court of Georgia
July 16, 1997
Reconsideration Denied July 30, 1997
268 Ga. 316 | 486 SE2d 851
SEARS, Justice.
Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige R. Whitaker, Assistant Attorney General, for appellee.
SEARS, Justice.
In this appeal from a plaintiffs’ verdict in a wrongful death action, we determine that the parties stipulated in the pretrial order that the Georgia Tort Claims Act‘s cap on damages recoverable against the State was applicable to their action, thereby limiting the damages that could be awarded to no more than $1 million per plaintiff. Thus, the trial court erred by entering judgment awarding the two plaintiffs in this case a total of $3.5 million. We also determine that the trial court‘s judgment does not include impermissible punitive damages, and that the trial court did not err in charging the jury, admitting certain evidence, or denying the State‘s directed verdict motion. Therefore, we reverse in part and affirm in part the judgment of the trial court.
When Lisa Phillips was nine months old, she suffered a severe case of colitis accompanied by a persistent high fever that resulted in organic brain damage, and left her severely mentally impaired. Her family cared for Lisa until she was ten years old, when she was institutionalized at Central State Hospital (“the Hospital“). Lisa lived at the Hospital for more than 20 years. In 1992, she was discovered lying on a bathroom floor at the Hospital, in a state of cardiopulmonary arrest. She later was pronounced dead. A subsequent autopsy revealed that she had died of acute aspiration and subsequent car-
Appellee Virginia Phillips, acting both as Lisa‘s personal representative and as administratrix of Lisa‘s estate, filed suit against the Georgia Department of Human Resources (“DHR“), claiming that the Hospital‘s employees’ negligence in caring for Lisa proximately caused her death. Following a ten-day trial, the jury returned a plaintiff‘s verdict, and awarded $2 million for the full value of Lisa‘s life, and $1.5 million for her pain and suffering. Relying upon the damages cap set forth in the Georgia Tort Claims Act (“the Act“),1 DHR moved to combine and reduce the awards to a total of $1 million. Letter briefs were submitted to the trial court, and a hearing was held, on the applicability of the Act‘s damages cap. Thereafter, the trial court entered judgment awarding $1.5 million to the estate, and $2 million to Phillips in her representative capacity.
DHR appealed to the Court of Appeals, which certified to this Court the question raised by Phillips of whether application of the Act‘s cap on damages to this case would abridge the constitutional prohibition against the retroactive application of laws to the detriment of any vested right.2 Subsequently, this Court ordered that the entire appeal be transferred to this Court. For the reasons explained below, we now reverse in part and affirm in part.
1. DHR contends that the trial court erred by entering judgment in the amount of $3.5 million because the pretrial order, agreed upon by the parties and executed by the trial court, stated that “[u]nder the State Tort Claims Act,
The Civil Practice Act provides that once entered, the pretrial order “controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.”4 The pretrial order has been likened to “a rudder to the ship of litigation,”5 and is intended to limit the claims, contentions, defenses, and evidence that will be submitted to the jury, thereby narrowing the course of the action, and expediting its resolution.6 As such, it is an indispensable tool for the efficient disposition of civil litigation matters.
The Code imposes a duty on each party to assist the trial court in formulating the pretrial order by defining the issues for trial, and deciding “such other matters as may aid in the disposition of the action.”7 This process is prescribed “in the hope of promoting efficiency and conserving judicial resources by identifying the real issues prior to trial, thereby saving time and expense for everyone.”8 For all of these reasons, it generally is recognized that, unless the pretrial order is modified at or before trial,9 a party may not advance theories or offer evidence that violate the terms of the pretrial order.10 As noted by one federal court, if pretrial orders are to continue to serve their laudable purposes, “courts and litigants must take them seriously. A final pretrial order should say what it means, and mean what it says.”11
If a party desires modification of a pretrial order, application should be made to the trial judge either before or during the trial.12 Our review of the record shows that Phillips first requested that the
As noted by Phillips, there may be situations in which a trial judge is authorized to modify a pretrial order acting sua sponte in order to “prevent manifest injustice.”13 However, that principle does not encompass an exception to the general rule that modification must be made before or during trial. In any event, we do not believe that a manifest injustice will result in this case if the pretrial order is not modified, as the modification urged by Phillips would tend to work an injustice against DHR. Before trial began, Phillips opted for a strategy that limited recovery to $1 million per plaintiff, and that strategy was memorialized in the pretrial order. To permit Phillips to change that tactic after the jury awarded her $1.5 million more than the pretrial order allowed, when DHR could not have anticipated that such an amount would be recoverable, would unfairly burden DHR‘s ability at trial to limit its damages.14
Relying on the principle that a pretrial order shall be deemed modified to conform to evidence that is admitted at trial without objection,15 Phillips claims that because several times during the trial her counsel argued to the jury that damages in excess of $1 million should be awarded, the pretrial order in this case should be deemed automatically modified to support the $3.5 million judgment. We disagree. In support of this argument, Phillips relies upon comments made during voir dire, opening statements, and closing arguments to the jury advocating damages in excess of $1 million per plaintiff. Of course, it is axiomatic that such attorney arguments are not considered to be evidence, and the trial court in this case correctly charged the jury on that point of law.16 Therefore, such arguments, standing alone and unobjected to, cannot render a pretrial order automatically modified.
In conclusion, because the pretrial order stated that the damages cap in the State Tort Claims Act applied to this case, the trial
2. Phillips contends that her claims against DHR accrued before the Act‘s effective date, and that application of the Act‘s damages cap to the judgment in this case will violate the constitutional prohibition against applying laws retroactively in derogation of a vested substantive right.19 Our ruling in Division 1 disposes of the need to address this enumeration. Pretermitting whether, absent the pretrial order‘s stipulation regarding damages, application of the Act‘s damages cap to Phillips’ claim would violate the constitutional prohibition against retroactivity, it is clear that for purposes of this litigation, the parties agreed that the damages cap would apply. Contrary to the dissent‘s assertion, the trial court‘s failure to enforce the terms of the pretrial order regarding damages did not necessarily “implicitly decide” any constitutional issue, and (as ruled in Division 1) by enforcing the damages cap in the pretrial order, this Court need not, and does not, decide such constitutional questions, either.
Moreover, we note that Phillips actively participated in preparation of the pretrial order, and consented to its entry. It is well established that one cannot complain of a judgment, order, or ruling that her own procedure or conduct procured or aided in causing, nor can she be heard to complain of or question on appeal a judgment which she invokes.20 Thus, even if this claim was not disposed of by our ruling in Division 1, it is waived for purposes of this appeal.
3. DHR complains that the trial court erred by permitting Phillips’ counsel to argue to the jury that punitive damages should be
Contrary to DHR‘s argument, we find that Phillips’ statements to the jury were highly relevant to the issues before the jury, and did not advocate the imposition of punitive damages. Phillips’ statements directly refuted closing arguments made by DHR that detailed difficult aspects of Lisa‘s behavior, and some of the more extreme methods used to restrain such behavior. In her closing argument, Phillips directly referred to DHR‘s statements as an attempt to discount the value of Lisa‘s life, and sought to rebut that attempt with the statements complained of here. Furthermore, in her closing argument, Phillips did not encourage the jury to award damages to punish DHR or to deter DHR‘s future conduct. As such, Phillips’ arguments did not “amount to a plea for punitive damages,”21 that might warrant reversal. Therefore, we reject DHR‘s assertion that the damages awarded were punitive in part, and thus impermissible under the pretrial order.
4. DHR contends that the trial court erred by refusing to give its requested jury charge that, under the terms of the pretrial order and the Act, punitive damages were unavailable. The record shows that DHR requested such a charge, and that the trial court declined to give it because no punitive damages had been asked for by Phillips, and thus the charge was not adjusted to this case.
Our review of the record shows that early in its charge, the trial court properly instructed the jury that Phillips was seeking compensatory damages. Later in its charge, the court explained that damages were available as compensation for any injuries that the jury determined had been inflicted, and that in awarding such damages, the jury should consider the full value of Lisa‘s life as a gauge. The trial court also charged the jury that it could award damages for any pain and suffering that it found Lisa had experienced. Nowhere in its charge did the trial court intimate that punitive damages were available.
Because the charge, when read as a whole, was a correct statement of the law, we reject DHR‘s claim that the trial court erred by not issuing an instruction negating the possibility of punitive dam-
5. DHR complains that the trial court incorrectly denied its directed verdict motion as to the issue of a treating physician‘s negligence. Lisa‘s treating physician, Dr. Grant, had prescribed for her a very high dosage of Serentil, one of the two drugs that, in combination, proximately caused Lisa‘s death. As stated above, the other drug that caused Lisa‘s death, Mellaril, was not prescribed for her. DHR contends that because Phillips introduced no expert testimony to show that the prescribing of an unusually high dosage of Serentil for Lisa constituted malpractice, the trial court erred in not granting a directed verdict motion as to the issue of Dr. Grant‘s professional negligence.
In determining whether the evidence warrants denial of a directed verdict motion, the evidence must be construed most favorably to the party opposing the motion, and the standard used to review the grant or denial of a directed verdict is the ” ‘any evidence’ test.”24 Our review of the record in this case shows that there was ample evidence to support the trial court‘s denial of DHR‘s directed verdict motion. Dr. Grant‘s own testimony was that he initially prescribed Serentil for Lisa at a dosage five times higher than that recommended by the manufacturer, and left to the attending nurses’ discretion whether to administer a dosage that was ten times higher than that recommended by the manufacturer. Dr. Grant also admitted that he instituted no monitoring procedures for Lisa, despite the testimony of Phillips’ expert witness that special monitoring for adverse effects is required for a patient receiving such a high dosage of Serentil.25 Finally, Dr. Grant testified that he was the physician responsible for prescribing and monitoring the medications adminis-
6. Similarly, DHR contends that the trial court erred in charging the jury on physician malpractice, because Phillips did not introduce the medical expert testimony required to make out such a claim. We disagree. As stated above, Phillips introduced expert testimony that special monitoring procedures should have been instituted when Lisa was prescribed the extremely high dosage of Serentil, and the evidence is undisputed that such monitoring was not put in place. Moreover, Dr. Grant‘s own testimony, discussed above, shows that he was the doctor responsible for overseeing the drugs that Lisa ingested, and that she should not have taken the unprescribed Mellaril together with the prescribed Serentil. Thus, there was sufficient evidence to warrant the charge.27 Moreover, Dr. Grant‘s negligence was highly relevant to Phillips’ theory of liability, and thus properly included in the jury charge, because he was an employee of the hospital, which is operated by the named defendant, DHR. In this regard, the trial court correctly charged that the hospital was liable for any tortious acts of its employees, including physicians and nurses.28
7. Finally, we reject DHR‘s contention that the trial court erred by admitting into evidence package inserts for the drugs Mellaril and Serentil, because they are written hearsay not falling within any of the recognized exceptions to rule against hearsay. The inserts were published to the jury without objection from DHR, and thus it has waived its objection to their introduction.29 Moreover, the record shows that DHR itself referred to the inserts when questioning Dr. Grant, and asked him about their contents. Having done so, DHR may not complain of or question on appeal the inserts’ admission into evidence.30
Judgment affirmed in part and reversed in part. All the Justices concur, except Benham, C. J., and Thompson, J., who dissent.
I respectfully disagree with the majority‘s conclusion, formulated in Divisions 1 and 2, that the trial court was without power or authority to amend the pretrial order and was required to enter a judgment which conformed to the unmodified pretrial order.31 I part company with the majority because I believe that the trial court had the authority to exercise its sound discretion and amend the pretrial order sua sponte or in response to a motion, and that this Court should be hesitant to interfere with the result of the trial court‘s exercise of its discretion in that regard. Gilbert v. Meason, 145 Ga. App. 662 (1) (244 SE2d 601) (1978).32
Some additional facts, documented by the record and previously reported in the Court of Appeals’ certification of the case to this Court (223 Ga. App. 520 (478 SE2d 598) (1996)) are important to resolution of this issue. The jury returned its $3.5 million verdict in favor of Mrs. Phillips, was polled, and was excused. The attorney for DHR immediately stated his belief that the pretrial order required that the jury‘s verdict be written down since it was in excess of $1 million, in response to which Mrs. Phillips’ counsel stated the possibility of attacking the constitutionality of the statute which would require such a diminution of the verdict.33 When the trial court mentioned that a motion to modify the pretrial order could be made “sometime during the trial,” counsel for Mrs. Phillips requested that the right to request modification be preserved, as they wished to check into the issue of attacking the constitutionality of the application to this case of the Tort Claims Act‘s statutory cap on damages. The trial court suggested that Mrs. Phillips’ counsel look into modification of the pretrial order, and stated that the trial court “may modify it in . . . the interest of justice.” After receiving letter briefs on the
A trial court has inherent power to sua sponte modify a pretrial order to prevent manifest injustice. Dumas v. Beasley, 218 Ga. 349, 352 (128 SE2d 59) (1962). It is unquestioned that a trial court also has statutory power to modify the pretrial order at trial to prevent manifest injustice.
I believe that the trial court did not abuse its discretion in determining that manifest injustice would result if the trial court failed to examine the constitutional issue before entering judgment. After all, the jury had concluded that DHR was responsible for Ms. Phillips’ death, and that Ms. Phillips’ estate and her mother had proven suffering and damage which justified compensation in the amount of $3.5 million.
The appellate courts are unlikely to find an abuse of discretion where a trial court fails to modify a pretrial order without a motion. Gilbert v. Meason, supra. I suggest that the appellate courts should be just as unwilling to find an abuse of discretion when the trial court does modify the pretrial order. Because the majority rules otherwise, I must respectfully dissent.
I am authorized to state Justice Thompson joins in this dissent.
Notes
This case is brought under the provisions of
Under the State Tort Claims Act