*1 Representative KUHNKE, JOHN Individually, and as Personal Kuhnke, Deceased, f of Annabelle o Estate Douglas FISHER, W. Appellant, v. JOHN Plaintiff A. Hospital, Deaconess Defendants and Bozeman Respondents. No. 86-159. 4, March 1987. Submitted May 1987. Decided

Rehearing Aug. Denied 740 P.2d 625. *2 Falls, Paul Baucus, argued, Great & John Alexander Alexander Vernon, Beck, Wash., argued, Monte D. Bozeman Luvera Mount Kuhnke. Jr., Huppert, Livingston argued, for Wellcome.

Arnold Missoula, Robinson, argued, & Lohn Garlington, Lohn Sherman V. Mo., for Aetna Ins. *3 Bozeman, Tollefsen, Coil, Berg, argued, E.

Berg, & Ben Jr. Stokes for Fisher. Bozeman, for

Wellcome, Bartlett, argued, Page & Frost Wellcome Alvord. Opinion Court.

MR. delivered the JUSTICE HUNT upon Plaintiff, Kuhnke, entered appeals from John defend- favor of Eighteenth in the Judicial District verdict Alvord, In- Aetna Fisher, M.D., Douglas W. M.D. ants A. and John appeal Company for Dr. Alvord surance and counsel affirm We for trial misconduct. imposing Court order sanctions part, part reverse and remand. Kuhnke, pregnant, con- May 1, 6-8 months

On Annabelle An- physician. her to act as with Dr. John Fisher of Bozeman sulted preg- her ninth obese, experiencing years age, and nabelle was pregnancy. nancy. high to a risk All contributed of these factors The record is Alaska. family recently from The Kuhnke had moved Her last seen an obstetrician. had not clear as to when Annabelle to Dr. Fisher. forwarded records were not Alaska medical two visits to May 1 and 8. The on Dr. Fisher examined Annabelle However, doing fine. af- Fisher’s officeindicated that Annabelle was check-up May began experiencing ter extreme abdomi- she pain emergency nal and went to the room at Bozeman Deaconess Hospital. prescribed Fisher tablets to five Percodan be taken days. over the next two May 11, 1978, p.m., approximately

On at 7:00 Annabelle was ad- Hospital in an mitted Bozeman Deaconess exhausted condition. experienced sleeplessness days, She evidenced shock. She had vomiting day. had and had all Dr. Fisher was diarrhea been con- infusion, gave telephone urinalysis, he tacted and orders for fluid complete and a blood count.

Attending Nurse Shaklin had nail beds observed Annabelle blue lips poor and indicating collapsed blue circulation. Her had veins impossible making it pressure. pulse to monitor blood Annabelle’s respiration abnormally high. were Shanklin was unable start Alford, an IV making so she contacted Dr. an internist rounds at the assistance, they time. With Alvord’s starting were successful in therapy. IV shortly Dr. Fisher arrived thereafter.

Dr. Fisher examined Annabelle’s abdomen and uterus. He deter- mined that there nothing was extra fluid in the uterus but serious. Closer abruptio placentae (sepa- examination of the uterus ruled out uterus). placenta ration of the exper- from the Annabelle was not iencing pain costovertebral which Dr. Fisher believed ruled out possibility kidney diagnosed infection. Dr. Fisher problems hydramnios, layer to be an excess of fluid in the inner sur- fetus, rounding gastro-enteritis, inflammation stomach by vomiting dehydration. and intestines caused Infu- sion of electrolytes dehydration. fluids and given

Both Fisher and Alvord believed that Annabelle was in shock when By p.m., improved pulse, admitted. 9:00 her condition had with res- piration, pressure and blood back to normal. Dr. Alvord left to finish. Annabelle, his rounds. Dr. Fisher remained with who had recovered sufficiently p.m. to converse him. Dr. Fisher left at 10:30 con- doing home, vinced that Annabelle was fine. At he called at 11:30 p.m. bed, going before and was told that Annabelle was stable. p.m.,

At 11:30 Weigand Nurse An- relieved Nurse Shanklin. *4 signs began midnight nabelle’s vital to deteriorate around res- with piration pulse rising. No At 2:00 call was made to either doctor. a.m., emesis, taking the nurse the vitals noticed a no radial small pulse, pressure. pulse and she was Arterial unable to take a blood respiration per was 160 with of 40 minute.

66 a.m., report at home to Weigand called Alvord

At 3:00 Nurse and told signs. not sound concerned Annabelle’s vital Dr. Alvord did Later, Dr. Alvord Weigand with the fluid orders. Nurse to continue specifically, that he say the call but would he didn’t remember a.m., skin was cold emergency. By 4:00 Annabelle’s didn’t sense an blue, turning pulse her re- clammy, her extremities were nursing supervi- Weigand her abnormally high. Nurse called mained Annabelle, making inappropriate They who was now sor. monitored a.m., Dr. was At 5:15 oxygen. in need of remarks and was pro- a.m. Annabelle was he at a.m. At 5:50 called and arrived 5:35 nounced dead. (a sepsis, poison- hypothesized the cause of death to be

Dr. Alvord at blood), catastrophe. Dr. Fisher arrived ing or obstetrical Dr. Fisher heart tones. hear fetal He was unable to 6:00 a.m. dehydra- from severe as irreversible shock listed the cause of death remains Annabelle’s death gastroenteritis. The cause of due to tion performed. autopsy to have an for Mr. Kuhnke declined unknown hospital and against the malpractice action Mr. Kuhnke filed a verdict trial resulted and Fisher. The first Drs. Alvord However, remanded this Court reversed and favor of defendants. Wellcome, counsel for Page trial due to the misconduct of a new (Mont. 1984), Kuhnke v. Fisher Alvord. St.Rep. mo- trial, 21 of 23 granted the District Court

Prior to the second guarantee attempt to by plaintiff’s in an in limine filed counsel tions The trial commenced during the trial. proper counsel conduct 1, 1985, days. and lasted October experts testified testimony Plaintiff’s is voluminous.

The trial re- Annabelle’s to insure up have been conducted to 19 tests should urinalysis ordered that the covery All witnesses noted from shock. have results would performed, and the Dr. Fisher was never An- experts concluded likely provided Plaintiff’s some answers. did Fisher Drs. Alvord and and that should not have died nabelle exercise due care. not methods, yet ad- treatment their and Fisher defended

Drs. Alvord allowed have urinary which would catheter inserting mitted any- at not void She did fluid balance. to monitor Annabelle’s them their believed and Fisher Drs. Alvord subsequent to admission. time victim. appropriate for a shock treatment was sub- The case was during trial. settled be at- allowing negligence to special verdict jury on a mitted to the *5 2) 4) 1) 3) Annabelle; Fisher; hospital; Dr. Dr. Al- to: tributed jury solely negligent. to vord. The found judgment Plaintiff a notwith- filed motion new trial and/or standing Page the verdict for sanctions and motion Wellcome for The District the mo- trial misconduct. Court denied judgment notwithstanding tions for new trial and but $20,000 against ordered in the of sanctions Wellcome and Company, Aetna carrier. Insurance Alvord’s insurance appeal, On following issues are raised: 1) denying plaintiff’s Whether the District Court erred motion upon for new trial based the trial misconduct of for Dr. counsel Alvord?

2) Whether the assessment of sanctions the District Court was proper?

3) plaintiff’s Whether the granted District Court should have mo- tion for notwithstanding the verdict?

4) Whether the District in submitting Court erred to contributory issue of part on the of Annabelle? 5) Whether the District Court erred in submitting to the question percentage party7 settling fault of the

Plaintiff raises innumerable instances of misconduct counsel Alvord, during dire, testimony, closing voir witness ar- gument. deprived Plaintiff contends this misconduct him of a fair trial. plaintiff

Defendant Dr. argues may not raise relating issues presented plaintiff to the evidence at trial because provided partial has transcript appeal filing without notice of plaintiff such. technically While has violated Rule M.R.App.Civ.P., portions we find the omitted are not relevant to appeal. issues on I,

In Kuhnke we reversed and remanded for a new trial to due 1) 2) good counsel’s: argument; argument Samaritan the ver- 3) reputation; dict’s effect on Alvord’s numerous comments that expert and the witnesses were from out of town and other 4) states; unpaid reference Kuhnke A funeral bill. review transcript again of the second trial reveals Wellcome raised the first arguments. three of these trial, prohib-

Prior to the District Court entered an in limine order iting inquiry concerning various matters not relevant to the case. 1) specific prohibitions Wellcome including: violated several of the Winnebago; living reference to the fact in a that the Kuhnke’s 2) witness; 3) previous questioning trial com- reference to the presence family in regarding ments of Dr. Alvord’s the court- reputation. room and the effect the lawsuit on Alvord’s determining whether a The standard review for appropriately is manifest abuse mistrial was denied is whether there Evans discretionary power. Walter v. of the District Court’s broad (Mont. 1983), 613, 616, 40 Products Co. St.Rep. 1844, 1847. case, Court, con carefully

The District in this considered the offending attorney, possibly prejudicial duct of effect which may jury, his statements have had on the fairness *6 parties. trial in judge the Court heard the entire and is District attorney’s position the prejudicial the best the effect of determine jury. blatant misconduct on the

Although by plaintiff’s for flagrant disregard there was Wellcome by limine, admonitions, objections warnings motions in and court (which sustained), opposing repeatedly were counsel parties. The District Court judged Court that the trial was fair to all “a) magnitude of that concluded that the misconduct was not the (b) trial, in the first Kuhnke that the context found and viewed trial, impact jury to improper the entire the conduct did not the an such extent as to warrant a new trial.” the supports The record shows credible evidence which substantial by separate hearing the juries verdict on occasions reached two two a third unlikely same facts. It is that a third trial heard before produce will a different result. Dr. and affirm the and favor Fisher

We verdict Dr. Alvord. way in no con-

By grant appellant, are refusing to a retrial we re- doning His comments ignoring or antics. Wellcome’s courtroom Samaritan,” of the verdict garding “good Dr. Alvord as the effect a en- reputation, and out of record statements Alvord’s tirely suggest the settlement It that improper. was also adequate plaintiff’s recovery hospital and made with the was tes- law, only internist could improperly claiming that state improper state- tify against There were numerous other an internist. consid- by which cannot be arguments ments made Wellcome ered to mistakes. be inadvertent solely case, finding

In returned verdict light In death. of this liable Annabelle Kuhnke’s record, the misconduct complete Court determined that District attorney substantially prejudicial. We Alvord’s was not will not disturb that decision. facts, present appropriate adequately

Under the solution to protect by against unprofessional coun such and unethical behavior imposed sel future is severe sanctions. District $20,000 Company against Insurance sanction Wellcome and Aetna (Aetna). order, post-trial judge In the the district listed extensive by blatantly disregarded trial misconduct Wellcome. Wellcome rulings throughout court’s the trial. 37-61-421, MCA, provides any attorney party

Section or that who unreasonably multiplies required proceedings “may in a case satisfy costs, personally expenses court to the excess at- torney reasonably fees incurred of such because conduct.” I, 37-61-421, after Kuhnke

Although MCA, Section it was enacted inwas effect at the applicable. time retrial and is We hold I, responsible that Wellcome was for the retrial of Kuhnke and for attempting to cause a imposed second mistrial. Sanctions entirely District Court appropriate. him are In view of the claims of the court did not allow an adequate Kuhnke retrial, to cover the fees of costs and we direct the in light District Court to examine the issue of Section 37-61-421, MCA.

The record indicates prior that Aetna did receive notice that the motion for sanctions included Aetna in addition As to Wellcome. remanding award, we are proper sanction the issue of notice moot. Whether Aetna should be held liable for miscon- Wellcome’s *7 duct is an issue to be addressed the District Court.

The third issue is whether the District Court should have granted plaintiff’s motion for notwithstanding the verdict. We the denying find Court District was correct the The motion. conflicting evidence is properly jury. the A case was sent to the proper complete directed verdict is not unless there is a absence of Jacques v. Montana evidence to jury. warrant the submission to National Guard (1982), 493, 1319, 504, 199 Mont. 649 P.2d cit 1325 (5th Launey Cities Service Oil Co. v. 537; ing 1968), Cir. 403 F.2d Wright (Mont. see also Rudeck v. 1985), 41,] 709 P.2d Mont. [218 St.Rep. 42 1380. Plaintiff’s next is contention that the District Court erred in submitting jury contributory to the of negligence an issue the part jury contributorily of Annabelle. The did not find Annabelle negligent, so the issue is moot and need be not addressed.

70 appeal percentage of

The last issue raised on is whether the fault hospital jury. of the should be submitted to the 27-1-703(2), MCA, provides than one Section that where “more person proximate is to the in found to have as a cause contributed of, complained degree apportion shall the trier fact the persons. proportional to the among fault such Contribution shall be recovery negligence parties against is Al whom allowed.” factor”) (“substantial though legal used the rule Court (“but for”) proof proximate as the burden of instead of the cause Rudeck, 27-1-703, rule, 628-629, Section MCA is useful P.2d at may determining settling party responsible held whether a settling party contributory negligence. general rule that a is allowed,” recovery “parties against whom is does fall under party plaintiff, longer required he is no to con once a settles with a Rather, plaintiff’s recovery is tribute. the diminished the State ex paid by settling the concurrent tortfeasor. consideration (Mont. rel. Deere v. 1986), Co. District 396, 404-405, St.Rep. Typically, multiple are concurrent when there defendants situation, which is attributa percentage negligence jury. settling party properly put to a before the ble would not be bar, however, after In the settled commence- case at with a situation ment of trial at issue. court was faced concerning hospital’s already where the had heard evidence research, contributory negligence. After much consideration gave following jury instruction: District Court Bozeman plaintiff “In this has a settlement case the made been dis- Hospital. Deaconess The amount of the settlement has jury. closed to the court but not plaintiff you that the “If find under the Court’s instructions should Fisher, A. M.D. John is entitled to recover defendant’s damages Alvord, M.D., you then shall award Douglas W. and/or if you would have awarded no for the same amount made. such settlement had been of this settle-

“In deduct the amount such event court will later your verdict will be re- your from ment the amount of award accordingly.” duced reasonably may dif- situation,

In record such “In court must divisibility negligence. that event the fer as to the so, harm and may if to do divide the jury that able instruct it *8 (1979), Billings City apportion damages.” Azure v. therefore the of 460, 182 Mont. hospital’s negli- To ask the in this case to consider the gence concerning after heard evidence the as a co- 1) jury to ig- defendant and concurrent tortfeasor would: force the heard; 2) already and, comparative nore it had that which allocate opportunity compare negligence without of all to potentially culpable defendants. presumed hospital’s

It can be that some settlement had impact jury’s on but to what extent known. will never be carefully given safeguards worded instruction the court against possibility recovery jury denying plaintiff to due to a belief that would then receive a double award. The accurately instruction states the current law Montana. only way jury’s to have hospi- avoided the consideration of the

tal’s negligence would have been to declare a the time mistrial at of settlement. grant deny Whether or mistrial was within the dis- cretion of the court and will not we disturb decision of the Dis- trict barring a clear abuse of that discretion. Under unique complex case, and facts we find no abuse discretion or error and affirm the decision the District Court to submit hospital’s negligence jury. to the in part,

Affirmed in part reversed and remanded. MR. CHIEF JUSTICE TURNAGE and MR. HARRI- JUSTICES SON and WEBER concur. GULBRANDSON,

MR. JUSTICE specially concurring dissenting:

I opinion concur except all the Court’s the discussion and attorney’s characterization of the defense conduct the remand attorney consideration of against additional sanctions said liability insurer for Dr. I Alvord. would also vacate the award of $20,000 as a Company sanction Aetna Insurance inasmuch party Aetna was not the action and had no notice motion for sanctions. SHEEHY,

MR. JUSTICE dissenting: I disagree majority must opinion. with the incongruous It that the District Court could hold that Wellcome’s actions had no effect verdict on hand, they require enough one but serious sanctions of $20,000 against concepts him on two so militate the other. Those *9 required is against each other that a new trial of all issues I Dr. Alvord. would sustain the verdict as to Fisher. majority liable The state that Aetna should be held “whether by Wellcome’s is issue to be addressed the District misconduct Court.” There is no issue Wellcome was Aetna’s because & Property Union Cas See National Farmers’ agent without doubt. (U.S.C.A. 9), 60, (1964), ualty Co. v. in O’Daniel 329 F.2d decided arising the Ninth Circuit and out of Montana. company policy gives

Because the insurance the insurance pick actions, litigations, to right to all to control defend counsel, responsible solely improper it is for the actions of counsel during personally is for costs under Section trial. Counsel liable 37-61-42, MCA, principal. The but Aetna is likewise liable as grew Judge in the a decision Ninth Circuit case out of (D. 1962), v. Jessen O’Daniel in J. Mont. William Jameson F.Supp.317 Judge Ninth Jameson on and the Circuit Court affirmed attorney being agent of the the issue of the in that case company. insufficient, and that

It is true that the amount of sanctions here is must Court for a redetermina- the case be returned to the District argument tion of the sanctions. For that reason the notice-to-Aetna However, opinion. majority in moot as stated recompense Dr. Fisher for Court must further consider sanctions to Dr. Fisher not caus- second The evidence shows that was trial. ought ally responsible as a matter of law. retrial cause limited to between the decedent and Alvord. a case negligent in this case determined the decedent was negligent, since way of law was no she could have been matter there The retrial or of the time. she was semi-conscious in a coma most guilty was solely question whether Alvord should consider proximate cause of legal or a cause acts which were full I to find the her death. would instruct made. regard that have been damages without settlements care of after settlements could be taken The reduction for rel. Deere & plaintiff. State ex it if it for the returns found (1986), 730 P.2d Co. v. District St.Rep. 2270. have been keeps coming two cases that through

What is that recovery far, been denied thus in this case had tried the decedent and that result is brought absurd. It is a result that has been about each case actions of Wellcome. He and his com- pany pick up should parties the tab for the costs the other thus (except discovery far upon costs which must be used the third trial) propose and I would a further sanction that Wellcome could longer represent no Aetna or this case since he is unable comply strongly expressed rulings of the trial court and this Court and the canons of ethics.