Ditto v. McCurdyDitto v. McCurdy
Lead Opinion
Following a jury trial upon remand from this court, the First Circuit Court, Honorable Gary W.B. Chang presiding, entered judgment in favor of plaintiff-appellee Janie Ditto and against defendant-appellant John A. McCurdy, Jr., M.D. (Dr. McCurdy) for punitive damages in the amount of $676,700. The trial upon remand was conducted pursuant to this court’s decision in Ditto v. McCurdy,
I. BACKGROUND
This medical malpractice case originally arose out of a breast augmentation surgery and several follow-up surgeries and procedures performed by Dr. McCurdy in 1986 and 1987. Further details are described in Ditto I and in the corresponding Intermediate Court of Appeals (ICA) opinion. See Ditto I and Ditto v. McCurdy,
In motions in limine before retrial, Ditto sought to preclude Dr. McCurdy from introducing evidence concerning the medical standard of care as to Dr. McCurdy’s actions and to preclude Dr. McCurdy from arguing that the jury could award zero dollars in punitive damages. Ditto pointed out that, pursuant to this court’s decision in Ditto I, Dr. McCur-dy’s liability for punitive damages had already been determined. Accordingly, Ditto sought to prevent Dr. McCurdy from relit-igating the issue. Ditto acknowledged that, in order to determine the amount of punitive damages, “the jury must hear what evidence provides the basis for the award.” Ditto maintained, however, that “the ICA and the Hawai'i Supreme Court have already done that for the jury. The ICA and the Supreme Court have set out the precise evidence which formed the basis for the punitive damages award[,]” citing to a portion of this court’s opinion in Ditto I (described infra at 126,
As a valid, final and binding statement of the law in this state and in this case, the jury can simply be read this portion of [Ditto /], whether by the Plaintiff or by the Court, and will thus be furnished with the evidence that served as the basis for the punitive damages award itself.
At a pretrial hearing, Ditto requested that the trial court take judicial notice of the aforementioned passage in Ditto I. Dr. McCurdy objected on the grounds that Ditto I did not identify the specific facts conclusively supporting the first jury’s findings of gross negligence. After considering these arguments and reviewing additional memo-randa submitted by the parties, the trial court ultimately ruled that: (1) Dr. McCurdy could not introduce evidence concerning the standard of care as to his actions; (2) Dr. McCurdy could argue to the jury that it had the discretion to award zero dollars in punitive damages; and (3) it would take judicial notice of this court’s discussion in Ditto I of the evidence supporting liability for punitive damages.
Trial commenced on June 3, 1999. During opening statements, Ditto told the jury that “[yjou’ll hear what the Supreme Court, your Supreme Court, the highest judicial officers in your judicial system, said about Dr. McCurdy’s conduct.” During her ease-in-chief, Ditto testified, inter alia, that Dr. McCurdy: did not ask her questions about her medical history during her initial consultation with him; did not explain the risks of the initial procedure or of any of the subsequent procedures she underwent to deal with complications from the original procedure; discharged her from the recovery room after she experienced complications from the initial procedure, telling her that he had to make room for other patients;
On cross-examination, Ditto acknowledged that: she was “groggy” and “not fully awake” during one of the conversations that she described in her testimony; she could not completely remember the details of her discussion with Dr. McCurdy concerning informed consent and acknowledged that Dr. McCurdy “probably” told her of at least one potential complication of the initial procedure; some of her testimony concerning the informed consent issue may have been inconsistent with testimony she provided in the first trial; and Dr. McCurdy had offered to pay for follow-up treatment with other surgeons with whose treatment recommendations he agreed.
Following Ditto’s testimony, the trial court took judicial notice of the disputed passage in Ditto I, explaining to the jury:
The Plaintiffs entitlement or right to recover punitive damages has already been affirmed by the Hawaii Supreme Court; and in the process of the Hawaii Supreme Court issuing its written decision on the question of punitive damages, the Court made certain observations regarding the state of the evidence relating to the entitlement to punitive damages.
And so at this time, the Court will read from page 92 of the [Supreme] Court’s decision, a limited passage relating to the circumstances, the factual bases that could have—the facts which could have provided the factual basis for the punitive damage award.[2 ]
Reading nearly verbatim from Ditto I, the court then stated:
“We determine that there was indeed an abundance of clear and convincing evidence upon which the jury could rely to find that Dr. McCurdy’s care of Ditto from the outset was grossly negligent and, therefore, reckless and consciously indifferent to the consequences that could arise.[”]
“For example, there was substantial evidence produced at trial, which, if believed, revealed that the medical history portion of Dr. McCurdy’s consultation was woefully inadequate.[”]
“Dr. McCurdy did not perform”—excuse me—“Dr. McCurdy did not properly inform Ditto of the risks or complications involved in the initial surgical procedure or any of the subsequent surgical procedures. He sent Ditto home after her second surgery despite continued complications to make room for other patients in his recovery room.[”]
“He failed to properly suture her incisions, resulting in constant [bloody] discharges. He failed to document medications allegedly prescribed to Ditto. He ... allowed his medical assistant to suture Ditto’s incision when he was not physically present.”[3 ]
In his defense, portions of Dr. McCurdy’s testimony from the transcript of the previous trial were read to the jury.
You also heard this from another reliable source, the Hawai'i Supreme Court, the highest court in your state. The Supreme Court and, in fact, the Chief Justice said that, quote, Dr. McCurdy’s care of Ditto from the outset was grossly negligent; and, therefore, reckless and consciously indifferent to the consequences that could arise. Sounds like a pretty great degree of malice, oppression, or gross negligence. In fact, those are the exact words the Supreme Court uses, gross negligence.
The Chief Justice also said that 'Dr. McCurdy’s medical history consultation was woefully inadequate. That he did not properly inform [Ditto] of the risks or complications involved in the first surgery or any of the four surgeries that he performed on her. That he sent her home after her second surgery, even though she had continued complications, was not ready to go, but he needed to make room for other patients.
(Emphases added.)
In his closing argument, Dr. McCurdy accused Ditto’s counsel of “embellish[ing]” some of the facts in the case. Dr. McCurdy proceeded step-by-step through his own testimony, attempting to show that he acted with appropriate concern at each instance when Ditto experienced complications. He pointed to inconsistencies in Ditto’s testimony and argued that, although Ditto was understandably upset about the complications resulting from her surgery, Dr. McCurdy’s conduct was not uncaring, indifferent, or in any way malicious so as to justify any amount of punitive damages greater than zero.
In rebuttal, Ditto argued:
According to [counsel for Dr. McCurdy], I’ve embellished the facts of this case; and the interesting thing is I didn’t have to. What I told you about the facts of this case comes straight from the Hawai'i Supreme Court’s opinion. What the Court read to you on the first day of trial is how I relayed the facts to you earlier. What the Court read to you from the opinion is evidence.
[Counsel for Dr. McCurdy] contends there is no evidence of indifference, gross negligence, et. cetera. I quoted to you from the opinion, which is evidence for you to consider, in which the Supreme Court describes his conduct as grossly negligent, reckless and consciously indifferent. His conduct was so bad I didn’t have to embellish it. That’s how they wrote it.
(Emphasis added.) A short while later, Ditto argued that:
Two people, the Supreme Court and Janie Ditto, tell the same story that you heard. You hear1 a third story by someone who’s not even here ....
(Emphasis added.)
The trial court instructed the jury in relevant part that:
The Court must take judicial notice of facts or events which are matters of common knowledge. When the Court declares that it will take judicial notice of some fact or event, the jury must accept the Court’s declaration as evidence and regard as conclusively proved the fact or event which the Court has judicially noticed.
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In this case, the issue of Defendant’s liability for punitive damages has already been decided in favor of the Plaintiff. Therefore, the only question for you to decide is the amount of damages to award to Plaintiff.
(Emphasis added.) During deliberations, the jury requested “a copy of the statement drafted by the Supreme Court that was read at the trial relating to the Defendant’s conduct[,]” which the trial court provided.
The jury returned a verdict for $676,700. Final judgment for this amount was entered on July 14, 1999. Following the trial court’s
II. STANDARD OF REVIEW
Different standards of review are applied to trial court decisions regarding the admissibility of evidence, depending on the requirements of the particular rule of evidence at issue. “When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard. However, the traditional abuse of discretion standard should be applied in the case of those rules of evidence that require a ‘judgment call’ on the part of the trial court.” Kealoha v. County of Hawai‘i,
III. DISCUSSION
Dr. McCurdy contends that it was improper for the trial court to take judicial notice of this court’s opinion in Ditto I by reading the passage that described the evidence upon which this court affirmed liability for punitive damages. According to Dr. McCurdy, this court’s description of the allegations did not conclusively establish their truthfulness. Consequently, Dr. McCurdy essentially submits that taking judicial notice of the passage unduly influenced the jury by implying that the allegations had been conclusively determined to be true. We agree.
To examine Dr. McCurdy’s contentions, we turn to the doctrine of “the law of the case.” This court recently described the doctrine as “a determination of a question of law made by an appellate court in the course of an action becomes the law of the case and may not be disputed by a reopening of the question at a later stage of the litigation.” Fought & Co., Inc. v. Steel Eng’g and Erection, Inc.,
There is no question that Ditto I unequivocally affirmed that Dr. McCurdy had been grossly negligent and was liable for punitive damages. This legal determination is therefore the law of the case and cannot be relitigated. Instructing the jury on this point—as the trial court did—was proper and was all that was required. The disputed passage, however, went further. It contained the reasoning of this court which referred to, as examples, evidence pertaining to six specific allegations upon which the Ditto I jury could have determined that Dr. McCur-dy was grossly negligent.
In this case, however, assuming arguendo that the law of the case doctrine encompasses factual matters, it would still not serve to bar relitigation of the allegations discussed in the disputed passage of Ditto I. In context, the disputed passage in Ditto I merely examines whether there was sufficient evidence to support a finding of liability for punitive damages. This court’s conclusion, which was contained in a portion of the opinion not read to the jury, was that, given the sum total of these allegations, it was clear that the jury most certainly would have found Dr. McCur-dy grossly negligent notwithstanding any possible confusion due to erroneous fraud instructions. See Ditto I,
Ditto maintains that the trial court properly took judicial notice of the disputed
Mandatory judicial notice of law. The court shall take judicial notice of (1) the common law, (2) the constitutions and statutes of the United States and of every state, territory, and other jurisdiction of the United States, (3) all rules adopted by the United States Supreme Court or by the Hawai'i Supreme Court, and (4) all duly enacted ordinances of cities or counties of this State.
Ditto submits that, pursuant to HRE Rule 202(b)(1), Ditto I is part of the common law of this state, and, therefore, the trial court was required to take judicial notice of it. Ditto is correct that Ditto I is part of the common law of this state. The common law has been described as the “sum total of a people’s past legal experience or as their legal hei’itage and background!)]” O’Brien v. Walker,
In light of our holding that the trial court erred by permitting Ditto to present the disputed passage as conveying conclusively determined facts, we next address whether the trial court’s error was harmful. See Hawai'i Revised Statutes (HRS) § 641-2 (1993).
The amount you are to award in punitive damages depends upon the degree of malice, oppression or gross negligence that forms the basis for the award and the amount of money required to punish the [defendant in light of his financial condition and to deter future conduct.
In determining the degree of malice, oppression, or gross negligence attributable to the defendant, the analysis focuses on the defendant’s state of mind at the time of the act. See id. Testimony as to Dr. McCurdy’s actions was thus important as a means of inferring Dr. McCurdy’s state of mind at the time of the actions in question.
In that regard, Ditto’s testimony in this case conflicted with Dr. McCurdy’s testimony in several material instances, which would have influenced the jury’s assessment of Dr. McCurdy’s state of mind. These included claims that Dr. McCurdy had not bothered to perform an adequate medical assessment, did not obtain proper consent from Ditto on several occasions, prematurely discharged Ditto from the recovery room to make room for other patients, and callously allowed an unsupervised assistant to treat her. The passage from Ditto I, which implied to the jury that these facts had been conclusively determined, bolstered Ditto’s testimony on all of these points at the expense of Dr. McCurdy’s testimony. Moreover, Ditto expressly argued that this court’s opinion was determinative of
Moreover, the importance of considering Dr. McCurdy’s state of mind cannot be overemphasized because if all that was required was for the court to read the disputed passage, as the dissent seems to suggest, the passage could not provide the jury with any reasonable basis to determine the amount of damages. Actual testimony that would establish what Dr. McCurdy said, when he said it, how he appeared when he said it, and other similar actions is the means by which the jury can infer the degree of oppression, malice, or gross negligence—a key factor in determining the amount of the award. If so, in the presence of testimony from both parties, the passage itself was superfluous and, as indicated, only served to bolster Ditto’s testimony at the expense of Dr. McCurdy’s.
IV. CONCLUSION
Based on the foregoing, we vacate the trial court’s judgment awarding $676,700 in punitive damages to Ditto and remand for retrial on the amount of punitive damages.
Notes
. The surgical and other procedures in question were "outpatient” procedures that were performed in Dr. McCurdy's office.
. Out of the presence of the jury, Dr. McCurdy again objected at this time.
. After initially reading from Ditto I, the trial court corrected and struck a portion of its reading, as indicated in the above description by the bracket and the ellipse, respectively. The statement described above is the corrected version of the court's reading.
.Dr. McCurdy did not attend the trial in the current case.
. Ditto I actually refers to seven allegations, but one of those allegations—that Dr. McCurdy had failed to properly diagnose an infection—was not read to the jury because no evidence was presented concerning this allegation.
. Ditto, in particular, asserts that the doctrine of collateral estoppel, or issue preclusion, is applicable. "Collateral estoppel is an aspect of res judicata which precludes the relitigation of a fact or issue which was previously determined in a prior suit on a different claim between the same parties or their privies.” Dorrance v. Lee, 90 Hawai'i 143, 148,
. The dissent writes that, "[i]n the absence of an affirmance by this court [in Ditto I ] that the facts as determined by the jury [were] clearly erroneous, this court could not have properly determined that the plaintiff [was] entitled to punitive damages.” Dissent at 132,
The dissent relies upon Kent v. A.O. White, Jr., P.C.,
In Kent v. A.O. White, Jr., P.C.,
. Given tire foregoing two sentences, we disagree with the dissent that the trial court did not present the allegations as "facts.” See dissent at 133,
. The dissent contends that "[wjhether Ae court erred in permitting Ditto to present the disputed passage as conveying conclusively determined facts is not an issue on appeal, nor was there even an objection voiced at trial.” Dissent at 133,
Moreover, the pretrial ruling that Ae passage would be read was an unequivocal ruling that, by itself, was sufficient to preserve Ae issue for appeal. See Craft v. Peebles,
. HRS § 641-2 provides, in relevant part, that "[n]o judgment, order or decree shall be reversed, amended or modified for any error or defect unless the court is of the opinion that it has injuriously affected the substantial rights of the appellant.”
Dissenting Opinion
Dissenting Opinion of
I respectfully dissent because I disagree that the allegations concerning the factual basis for our determination that Dr. McCur-dy was grossly negligent are not also law of the case. As noted by the majority, “the disputed passage ... examines whether there was sufficient evidence to support a finding of liability for punitive damages.” Majority at -,
The Georgia Court of Appeals decided a case similar to the present case. In Kent v. A.O. White, Jr. Consulting Engineer, P.C.,
In this case, the trial court read the law and facts to the jury from the [sic] this Court’s prior opinion as determined applicable for this ease and thus, limited and defined this jury’s special duties and responsibility on retrial of damage issues only. The reading from this Court’s opinion defined for the jury what them limited role would be and did not involve facts that they were to decide in this new trial ....
Thus, the court rejected Kent’s argument, and held that “[t]o charge the jury on the law, and even the facts, as affirmed on appeal is not reversible error where such facts have been precluded from re-litigation under the law of the case.” Id.
The present case is entirely analogous to the case before the Georgia Court of Appeals. The trial judge read the law and the
I also note that even without characterizing the facts as law of the case, this court cannot properly hold that the trial court erred. This is because, assuming that the disputed passage does not conclusively establish the facts of the case, the trial court’s recitation to the jury did not present the allegations any differently than we did in our opinion. In fact, the trial court emphasized that the facts may not have been conclusively established. The trial court stated, “And so at this time, the Court will read from page 92 of the [Supreme] Court’s decision, a limited passage relating to the circumstances, the factual bases that could have—the facts which could have provided the factual basis for the punitive damage award.” See majority at 126,
Furthermore, the majority improperly relies on Ditto’s use of the passage to find error with the trial court’s taking of judicial notice. See majority at 130,
Finally, it is difficult to argue that the excerpt did not adequately place the facts in context. In fact, before the court read the passage to the jury, the trial counsel for Defendant stated, “I don’t object to the specific passage. I object to the reading of anything; but if something is going to be read, I have no objection to that passage.” Tr. 6/3/99 at 104.
Accordingly, I would hold that the trial court did not en* in taking judicial notice of our opinion in Ditto I.