Smallwood v. Dick
761 P.2d 1212
Idaho
1988
Check Treatment

*1 860

contained may such things. be ad- opening scheme [in The sentence of contracts] justed by any time, Afton I/III the Commission at defined the issue as follows: the Commission determines such The presented today an basic issue is wheth- adjustment “fair, er the Idaho Public Utilities just is Commission and reason- (Commission) has to order an able”.... utility purchase power electric to from precise The quote from I/III is: Afton cogenerator power producer or small The fair, Commission apply should (CSPP) for a term according fixed to just standard, and reasonable ain man- cost previously approved avoided rates ner not inconsistent with law to federal by Commission. may extent that it applicable, to 107 Idaho at P.2d at 693 428. determine whether the rates need to be requires The reason PURPA fixed adjusted particular type this of con- is promote term/fixed rate contracts co- tract. generation by financing making possible. 107 Idaho at 693 P.2d 439. at utility plants issuing by When finances bonds, 20-year carry The words “not those bonds a fixed inconsistent with federal term, interest rate for their which interest key law” are the to the standard. Al- is not subject change through rate though footnote mentions those words rate-making process year from to year. sentence, the next way it does so in a which seeks significance to minimize their by sug- type same stability The is needed gesting open question cogenerators it is an financing whether and their as to institu- Thus, the adopted tions. standard there is we preemption brings federal stability by in Afton I/III creates that those play. words into permitting change PUC rate In the paragraph next he mischaracter- utility experiencing unless the that ex- izes III they and IV when he states Afton arising level of treme distress to the level recognized “... potential preemp- “public review standard” interest tion resulting from Energy the Federal concept rates. contract Such is “not Regulatory regulations prom- and the Act inconsistent with federal law” as coun- ulgated (Emphasis supplied). thereunder.” Regulatory Utilities tenanced Public being concept Act—that the fixed contrary, On the whether there is federal cogenerator’s rate term/fixed contract preemption hotly was one of the most con- subject price under the revision issues, tested parties and the both most unusual and extreme circumstances. Court, firmly members of and ruled we regulations that PURPA and the under it

preempt and control. in refusing adopt Commission Ida- proffered

ho language Power’s merely carrying out the directives im- 761 P.2d 1212 posed implementing PURPA James V. Lillian SMALLWOOD regulations. (Emphasis supplied). FERC Smallwood, wife, husband Idaho at P.2d at 434. Plaintiffs-Respondents, opinion proceeds Our “II then to Section specifically Tenth Amendment” where we DICK, M.D., N. Carole reject address and Idaho Power’s conten- Defendant-Appellant. preemption tion that violate PURPA would No. 17023. by usurping powers the Tenth Amendment reserved to the states. Supreme of Idaho. Court

Sept. 7, 1988. II. why I

There is a reason the matters significance some in the

discuss are of *2 Quane, Smith, Hull, Boise, physician telephoned Howard & Dick Dr. and told her defendant-appellant. Quane A. pain Jeremiah had Smallwood his lumbar argued. spine and Dr. low back. Dick told the treating physician x-rays showed Racine, Olson, Nye, Cooper Budge, & *3 only arthritis in that area. No further Pocatello, plaintiffs-respondents. for W. x-rays suggested by were Dr. Dick. Nye argued. Marcus W. Early morning 19,1981 on the of October JOHNSON, Justice. bed, hospital Smallwood arose from felt his back, pain a in fell his to the floor. It malpractice This is a medical case. The was then determined that had a Smallwood primary presented whether tri- fracture of the tenth thoracic vertebra that al granting court abused its discretion in complete severing had caused the of his damages only new trial on the issue of if spinal resulting paraplegia. cord in rejected. an additur were We hold that the erroneously trial court determined it did sought damages Smallwood and his wife not have the authority to consider treating physicians, hospital from the trial on the liability pursu- new treating physicians and Dr. Dick. The 59(d). ant to I.R.C.P. We reverse and re- hospital settled the claims of the Small- by mand for reconsideration the trial court. against woods them. The Smallwoods appeal We also hold that the properly brought against this action Dr. Dick be- filed, that the standards for alleged negligence in cause of Dr. Dick’s Constitution, trials do not violate the Idaho failing report to see and the fractured ver- that the trial court did not its discre- abuse tebra, failing treating phy- to advise by allowing physician testify tion to x-rays sicians that were not rebuttal, properly and that the trial court proper quality, failing request and in jury. instructed the x-rays that additional of different views be

taken. I. radiologist At trial a board-certified testi- fied that Dr. Dick had breached the stan- THE FACTS AND PRIOR applicable dard of care to a board-certified PROCEEDINGS. radiologist community. in the Falls Twin 16, On October James Smallwood primary treating physician The testified injured in an automobile accident near find, diagnose that Dr. Dick’s failure Falls. He Twin was cared for at the scene report fractured a sub- vertebra was transported by of the accident and then causing spi- stantial factor in Smallwood’s hospital ambulance to a in Twin Falls. severed, resulted nal cord be emergency There in the he was examined paraplegia. This doctor testified that his hospital room and admitted to the for ob- reported the frac- Dr. Dick had found and X-rays servation. were ordered ture, he immobilizedSmallwood would have emergency physician. the morn- room On precautionary other and would have taken 17, ing appellant, of October Dr. Car- measures, restricting including his move- Dick, diagnostic ole a board-certified radiol- ment. ogist, x-rays. Additional x- reviewed Dr. Dick and two other board-certified rays treating physi- ordered were radiologists testified that Dr. Dick had not 18, cians on 1981. Dr. Dick re- October comply applicable with the stan- failed to x-rays these and discussed them viewed radiologists dard of care board-certified treating physi- one of with Smallwood’s community. practicing in the Falls Twin that afternoon. Dr. Dick did not see cians in the any evidence of fractured vertebrae rebuttal, another board-certified ra- On x-rays on either 17 or she reviewed October diologist testified that Dr. Dick failed 18, 1981. October care applicable meet the standard of sug- reviewing x-rays again, or approximately p.m. 5:00 on October At taken, treating gesting x-rays primary that new when Smallwood’s primary treating physician Dr. Dick at 12 and that I.A.R. the trial court had not .told p.m. about 5:00 on October 1981 that pursuant executed a certificate to I.R.C.P. pain Smallwood had a in his spine 54(b). lumbar previously We have denied this mo- or low back. tion. The Smallwoods have reasserted and asked us to reconsider the motion. We The unrebutted evidence at indi- continue to adhere to our denial of the cated that sustained, Smallwood had motion. sustain, approximately $777,500 would wages, loss medical care appeal At the time this was filed and household services paraple- due to his 11(a)(5)granted right I.A.R. appeal gia. special rendered a refusing order a new “[a]n *4 finding that there negligence was on the 1, 1987, trial.” Effective November after part of Dr. Dick proximately causing Small- filed, appeal this portion this injury wood’s and awarded Smallwood rule was amended to include “such orders damages in $259,162.12. the amount of grant which contain a conditional or denial jury also awarded Mrs. Smallwood subject of a new trial to additur and remit $97,552 for loss of consortium. though appeal titur.” Even was filed The Smallwoods filed in- a motion to 11(a)(5) before the amendment to I.A.R. additur, crease the verdict by a motion effective, became we construe the amended for a trial damages, new on and a motion rule not category to describe a new judgment n.o.v. Dr. Dick filed a mo- orders that appealable, are but to clar tion to alter or judgment amend the and for ify that an order refusing judgment granted n.o.v. The trial court appealable, new trial is even when the or the motion for a new trial on the issue der includes the condition grant damages, rejection conditioned on the subject denial is to additur or remittitur. Dr. Dick of an additur increasing the total 11(a)(5) We hold that I.A.R. as it read be verdict for $1,033,530, the Smallwoods to gave fore the amendment Dr. Dick the subject to $375,000, an offset of represent- right appeal grant court’s order ing the amount received the Smallwoods ing 17(e)(1) trial. I.A.R. entitles Dr. in settlement from treating physicians Dick to raise the other presented issues and the hospital. The trial court then is- here that arise from the and the sued Judgment” an “Order of in which a post-trial other orders. new trial was awarded on single as to the amount of damages, unless Dr.

Dick twenty within days filed an additur III. agreed

and accept a total verdict of $1,033,530 subject $375,000. to the offset of THE TRIAL COURT HAD A SUFFI- days Within ten after judg- this order of CIENT BASIS FOR A GRANTING ment Dr. Dick filed a motion to alter or NEW TRIAL ON THE ISSUE OF amend judgment, the order of or alterna- DAMAGES.

tively, for a new trial on all issues. The Dr. Dick contends that the trial court trial court denied this Dr. motion. Dick abused its discretion in a new trial appealed has post-trial from the orders. on the issue only, conditioned additur, rejection of an and asks us

II. accept the test Leipert contained in v. Honold, 462, (1952) 39 Cal.2d 247 P.2d 324 THE APPEAL WAS as the measure for determining whether PROPERLY FILED. the trial court abused its discretion Following filing appeal by Dr. granting the new trial. Dick, the Smallwoods moved to dismiss the appeal grounds on the that the orders from twenty-five Over years.ago this Court appeal which the ap- were taken were not Leipert directing cited a trial court to pealable 11(a), under I.A.R. that this Court exercise its discretion in determining given permission had not appeal under “whether or not the issues to be retried 864 solely

should be limited to the amount of (Ci- considered with the utmost caution. plaintiff.” sustained Men omitted.), tations doubts MacGregor denhall Triangle Co., 83 should be resolved in favor of 145, 151, 860, (1961). Idaho P.2d 863 complete (Citation omitted.) new trial. involving While was a Mendenhall case limiting The decision on the new trial allegedly inadequate excessive rather than appropriately rests in the discretion of damages, applied this Court has also Men judge. presumed trial It is request denhall where the for a new trial passing upon the motion he has weighed allegedly inadequate based on dam the evidence the possibility preju- ages. Finch, Dinneen v. Idaho dice to the defendant. His decision will 624-25, (1979). 603 P.2d 578-79 In appeal be reversed on unless an pointed Dineen we out that whether the (Citations abuse of discretion is shown. verdict is assailed as excessive or as inade omitted.) quate, procedure determining Such an abuse is shown when the dam- granted whether a new trial will be ages inadequate, are the record discloses same. at P.2d Id. at 578. Recent close, that the issue of ly we have confirmed that the same rules other circumstances indicate that the ver- apply when a court is asked to consid *5 probably prejudice, dict was the result of er upon a new trial based either compromise sympathy, or or that for inadequate damages. excessive or Soria v. liability some the other reason issue has Airlines, Inc., Sierra 111 Idaho Pacific actually not been determined. 594, 608, 706, (1986); Quick 726 P.2d 720 v. Crane, 759, 768, 1187, 111 Idaho 727 P.2d 247 P.2d at 327. (1986); 1196 Galey, Sanchez v. 112 Idaho considering In court in this case the trial 609, 614, 1234, (1986). 733 P.2d 1239 the motion of the Smallwoods for a new Today we reaffirm that the test for de- damages only, pursu- trial on the issue of termining trial whether a court has abused 59(a)(5),properly ant to I.R.C.P. acknowl- its discretion in a new trial on the edged responsibility that its under Din- set forth in Leipert, as Quick neen and by Mendenhall, cited in this Court is the weigh compare the evidence appropriate test in this state. In Leipert jury’s award to that which the court the California court stated: would had there have awarded been no power The appellate of a trial or court to jury. disparity Where the between the order a new trial on fewer than all the computations great is so ap- two that it generally recognized, (citations issues is pears given the award was under the omitted). prejudice, passion influence of or the ver- purpose limited of retrials is to dict should fall. expedite justice by of administration R. 96. avoiding repetition. costly Such retrials weighing After evidence the trial however, granted, only should be if it is court it would have concluded that awarded injustice

clear that no will result. Gas- total to the Smallwoods in the Champlin v. oline Products Co. Refin- $1,033,530. Comparing amount of this to 494, 499, Co., ing 51 S.Ct. U.S. the amount awarded the Smallwoods 1188; (citation omitted). 75 L.Ed. $356,714.12, of court found expressed Some courts have reluctance great “is so disparity that this that after a cases, in negligence to limit new trials full in this it review of the record can only rarely suggesting step that is such a only be that the verdict ren- (Citations omitted.) concluded proper. in Even passion influence of California, dered under the new trials limited where prejudice, and it cannot stand.” R. 113. It frequently the issue of granted was on the court approved personal injury in this basis that been actions, wrongful it new trial Dr. Dick’s not death has been held conditioned $658,800. request accepting such a trial that a should be additur judgment Leipert. the first factor of the test in In the order of that was issued We court, the trial the trial court stated that are unsure whether statement appeared judgment es- in “that the evidence at trial trial court its order of tablished the for the at trial “the evidence established the liabili- [Dr. Dick] injuries by the as a injuries suffered for the suffered ty of [Smallwoods] Dick] [Dr. matter of R. In its decision law.” 112-13. as a matter of law” was [Smallwoods] on the motion for a new the trial court finding intended stated that careful Therefore, review in liability was close this case. “[a] disclose, manner, in record does not part this we defer consideration of compromise how this verdict was a ver- Leipert proceed test and to consider the dict.” R. 104. third factor. findings required While fact are nothing in The trial found 52(a) under I.R.C.P. when trial courts are disclosing compro record that this was a ruling on motions for new trial under I.R.C. mise verdict. We conclude that this find 59(a), P. we consider this a situation to be ing clearly was not erroneous. While presented similar to that Shelton Dia- jurors signed special nine of the twelve Corp., 108 Idaho mond International verdict, in itself does not demonstrate (1985). 703 P.2d held that in There we compromise. Any that the verdict was a considering whether a trial court had implication may arise from this fact its abused discretion relief weighs being favor from a default under I.R.C.P. dissenters, compromise, since the whether 60(b)(1), where court had made they would have voted for no findings fact, findings where those were concur, damages, for more did not erroneous,” clearly “not where the trial *6 therefore, compro could not have caused properly applied the of the criteria jury mise. The fact that the awarded the facts, rule involved to those and where the plaintiffs special less than the amount

trial court’s logically decision followed damages supported by that was the unre application from the of the criteria to the prove at trial also does not butted evidence found, facts we would not overturn the compromise. that the verdict was a Dr. grounds trial court's decision on the Melody Dick cites Rose v. Lane Wil abuse of discretion. 703 P.2d at Id. at (1952), shire, 335 39 Cal.2d P.2d approach 702. We conclude that the same Supreme decided the California Court on findings should taken to the be trial court’s day Leipert, the same as a new trial in this case. proposition that the failure to the award In order to determine that the trial undisputed special damages and to make court abused its discretion in general damages no award for where the on the only, new trial issue of plaintiff’s injuries painful have been estab necessary would us to conclude that only lishes that “the reasonable conclusion (1) jury the awarded the were jurors compromised is the issue of that the (2) inadequate, liability, and a new trial limited to the close, (3) indicated other circumstances damage improper.” issue is Id. 247 P.2d at probably that the verdict was the result of However, 340. the court in on Rose went prejudice, sympathy, compromise, or cir to examine whether there were other reason, that for some other indicating compromise, cumstances as re actually by the issue was not determined quired by Leipert. pointed The court out jury. only An abuse of discretion exists during jurors deliberations the had three factors are If when all established. requested re-reading testimony of the any one of these factors not estab were testimony only of a witness whose related lished, applying Leipert test we liability, which was an indication that the uphold the would decision of trial court. jurors debating liability. were still We find The trial court itself found that the dam- no other circumstances such as this in the ages inadequate, fulfilling indicating awarded were compromise. record here Dick suggests

Dr. that the combination are not another indicating circumstance ques- instruction no. 11 and the second compromise, verdict was a even special tion in the verdict combined to mis- though damages might have been re- jury apportioning damages, lead the into duced. if jury Even were misled into thus, rendering compromise verdict. apportioning due to the Small- Instruction no. 11 stated: woods, that would not compro- have been a

You physician, are instructed that no mise. It would not tainted jury’s hospital or provider health care other verdict that Dr. Dick was liable to the than the party defendant is a to this Smallwoods. question you action. The before Since the lack of one of the three defendant, negligence, any, if factors contained in the Leipert test Any testimony others. or other evidence uphold sufficient to the exercise of a trial as to physi- the conduct of such other court’s discretion in cians, hospitals providers or health care damages only, the issue of and since we should by you be considered in rela- have concluded that the trial court’s find- negligence, tion to any, if ing compromise that there was no verdict is defendant. erroneous, clearly pre- we would be question special

The second in the pared to affirm the trial court’s order form asked: granting a new trial on the issue of dam- What is damages, the total amount of ages only, if it were not for another facet any, plaintiff, sustained James V. of the trial court’s decision which we ad- Smallwood, proximately which were dress next. negligence? caused the defendant’s Dr. Dick cites Vannoy Uniroyal Tire IV. Co., (1985) Idaho 726 P.2d 648 support the contention that this instruction THE TRIAL COURTHAD THE AUTHOR- question and this combined to invite the ITY TO CONSIDER GRANTING A apportionment, to make an argues TRIAL ALL NEW ON ISSUES. physicians, hospitals the other In its memorandum decision on providers might health-care who have been post-trial motions the trial court stated that *7 injury liable for the to Smallwood should requested Dr. Dick had a new trial have been included on the form. verdict 59(a) pursuant to I.R.C.P. and that “this Vannoy distinguishable since it was a is, therefore, authority court without the comparative negligence case in which the liability review the verdict of under that negligence verdict form directed that the rule.” R. 104. itWhile is true that Dr. plaintiffs attributed to the and the defend time, not, Dick had at that made a motion up ants must add The absence of 100%. trial, for a new and while the motion of the potentially responsible the other individuals Smallwoods was limited to a new trial on companies or could have affected the com only, the issue of the court mis parative negligence of the defendant and perceived its under I.R.C.P. 59 to plaintiffs necessary that was to deter granting consider a new trial on both the Here, liability. mine the defendant’s there damages. and the issue of is no contention that the Smallwoods were 59(d), I.R.C.P. as it existed at the time the negligent. attending physi Whether the considering the motion of cians, hospital, and other health-care provided the Smallwoods for a new trial providers might also have been liable to the follows: Smallwoods is irrelevant. Dr. Dick would days entry than 10 Not later after Smallwoods, negli be liable to the her judgment the court on its own initiative gence proximate inju cause of the were may any Smallwood, order a new trial for reason for regardless ries sustained might granted which it have a new trial degree responsibility any others. party. may on motion of a The court The combination of instruction no. 11 and trial, grant question special timely the second of the a motion for a new served, in the V. for a reason not stated motion. In either such order shall giving parties

be made after A THE OF TRIAL COURT DISCRETION opportunity to notice and an be heard A TRIAL TO GRANT NEW DOES matter, specify in and the court shall THE RIGHT A NOT VIOLATE TO grounds the order the therefor. BY UNDER THE IDA- TRIAL JURY essentially rule is the same as Rule This HO CONSTITUTION. 59(d) Federal Rules of Civil Proce- Dr. Dick contends that the standard dure. Under the Federal Rules “once granting a new trial under I.R.C.P. finality suspend- has been 59(a)(5) permit adequate an does review motion, by proper pending ed which is of the decision of the trial court order to undecided, 59(d) the last sentence of Rule right by jury guaranteed insure the to trial giving it clear that after ... makes by art. 7 of the Idaho Constitution. § parties opportunity and an to be notice contends that the trial court failed to She heard, power the trial court has the occurred, what unfair behavior articulate trial, initiative, grant a on its own against party exhibited which days entry judg- more than 10 after the prejudice, causing passion or might ment for reason for of the new trial. She asserts granted a new trial on motion of a impossible re makes it for this Court to

party.” 6A Moore’s Federal Practice the trial court’s decision a manner view (2nd 1986). 59.11 at 59-268-69 ed. See 1Í right by jury. her to trial preserve that will Roy Volkswagenwerk Aktienge- also v. (9th Cir.1985). sellschaft, 781 F.2d 670 recently This Court has on two occasions au- Our decision that court had ruling held that when on motions for new 59(d) thority under I.R.C.P. to consider his rea judge trial “the trial must disclose a' new trial on both denying soning for motions unnecessary makes it for us to remittitur or additur a new trial and/or decide whether Dr. Dick’s motion for a new unless those reasons are obvious from trial, which was served mail one month Quick Crane, 111 Idaho record itself.” judgment on after the the verdict and one 759, 772, (1986); 727 P.2d Soria judgment, week after the order of Inc., 111 Airlines Idaho v. Sierra Pacific 59(b). timely filed under I.R.C.P. At that 594, 600, (1986). 726 P.2d This 59(b) required time I.R.C.P. motions for requirement any constitutional is resolves new trials to be served no later than ten sue raised here. days entry judgment.” “after the thoroughly The trial court reviewed the While the motion for a new trial of concerning evidence pending, had Smallwoods was the court *8 concluded should have trial court been 59(d) authority under I.R.C.P. to consider After deter- awarded to the Smallwoods. granting liability a trial on the issue of disparity damages mining the between the damages, despite the well as the issue of that the trial court would have awarded Dr. Dick had not filed a motion fact that awarded, jury trial and those that the the a trial at that time. Since the trial for new disparity so court concluded that “the authority did not it had court believe great that after a full review of the record liability review the verdict of under I.R. in this it can be concluded that the decision of the trial C.P. we reverse the influ- the verdict was rendered under granting court a new trial on the issue of passion prejudice, and it cannot ence of or damages only, and remand the case require- This fulfilled the stand.” R. 103. proceedings. instruct the trial further We Quick findings by ments for established court to reconsider its decision a deficiency any and cured and Soria damages only, of in new trial on the issue might have existed constitution- otherwise light discretionary authority it has of the ally preservation Dr. Dick’s 59(d) as to the of grant a on under I.R.C.P. new trial jury. setting In aside an liability right by also. to a trial the issue granted order remittitur or in court new trial The trial the motion to 609, 616, alter the judgment by offsetting 112 Idaho or amend Galey, Sanchez $375,000 (1986) against the this settlement the total P.2d Court focused purposes determining for the on the fact that the trial court “made no an additur. R. 105. Since we have indi- finding that the amount of the verdict cated that we would affirm the decision of given ‘appeared to have been under the ” the court trial on trial the passion prejudice.’ influence of or Such accept- conditioned on the finding by was made in this court Dick, by ance if of an additur Dr. we were finding case. fulfilled both the re- confronted with the failure trial Quick quirements and The Ida- Soria. recognize grant court to its require ho Constitution does not more. pursuant trial the issue of also 59(d), necessary I.R.C.P. or VI. appropriate for us to the failure review the trial court to amount of offset the the THERE WAS NO BASIS TO OFFSET against in jury’s settlement the fa- THE SETTLEMENT AMOUNT vor of the Smallwoods. There will be ei- AGAINST THE VERDICT OR TO ther trial on or a new a new trial GRANT JUDGMENT N.O.V. damages. In on both and either event, opportu- trial court will the the Dr. Dick contends that the nity with to deal anew the offset the granted should have her motions to alter or amount of the settlement. We are confi- judgment judgment and for amend dent trial court will read I.C. 6-805 § by offsetting the amount in n.o.v. received and the releases deal with matter by the Smallwoods settlement from appropriately. treating physicians hospital. and the Since the amount of the settlement calculat- Dr. Dick’s The trial court denied motion $375,000,if ed the court to be the settle- reviewing n.o.v. all the after against ment had been offset amounts making evidence all the inferences in jury, to the awarded Smallwoods Smallwoods, concluding favor of the nothing would have received Smallwoods justi- that there was substantial evidence from Dr. Dick. fy submitting damages to the issue of jury. provided for This is the standard support position In of her Dr. Dick cites Quick, affirm the trial court’s deci- and we 6-805, provides: which I.C. § sion on this motion. (1) injured person A release of one tortfeasor, joint before or after whether VII. discharge other judgment, does not DR. HALVERSON’S TESTIMONY WAS pro- unless the release so tortfeasors PROPERLY ADMITTED ON vides, against but the claim reduces REBUTTAL. in the other tortfeasors amount release, paid for the consideration The trial court allowed Small- proportion amount or of Dr. present the evidence Hal woods to provides radiologist, the total claim shall verson, release re a board-certified reduced, proportion repeatedly attorney such amount Dick’s buttal. Dr. ob *9 paid. grounds greater jected testimony the consideration on than testimony have been that this should of Quick Crane, supra, Dr. Dick also cites in chief of the part fered as case that support position. of her We note was rebuttal. proper and Smallwoods by releases settlement was documented part Dr. of her defense parties that the Dick testified express the intent that she had paid telephone about the conversation releases intended that the amounts treating physi- primary with any claims that Smallwood’s in settlement reduced approximately cian he called at against any other tort- when her had Smallwoods 18(b). 1981. She stated 18(a) p.m. 5:00 on October R. and feasor. treating physician that the “negligence,” said that Small- When I use the term I complain wood had continued to perform duty lumbar mean the failure to im- spine pain during hospital- posed by low back his law. ization. Dick Dr. stated that she told the performing In professional services for treating physician x-rays that there were patient, provider as health care such— spine Smallwood’slumbar and that the provider of a health care such as the

thing x-ray she could see on these defendant, who holds herself out as a evidence of arthritis. Dr. Dick testified specialist particular in a field of medi- opinion that in her nothing there was else cine, legally imposed duty pro- has a she should have done as a result of this health care applica- vide which meets the conversation, specifically that the conversa- practice ble standard of health care require tion did not suggest that she to the specialists in community, prac- the same treating physician x-rays other ticing in the same field and under similar spine. taken of Smallwood’s circumstances. Tr., IX, Vol. 1801.

Dr. testimony Halverson’s on rebuttal that, was limited opinion to his based language While the of instruction no. 12 the conversation between Dr. Dick and the 6-1012, was not identical to that of I.C. § treating physician, together with the fact the combination of instructions nos. 8 previously. that Dr. Dick had x- seen two 12 sufficiently informed the of the rays chest, of Smallwood's Dr. Dick did not legal standard contained in 6-1012. I.C. § meet the standard of care in the Twin Falls Any deviations from the words of the stat- community. In opinion, Dr. Halverson’s significant ute were not and were not er- Dr. Dick x-rays should have reviewed the ror. something to see if there was she hadn’t seen before or should have obtained more IX. x-rays spine of the to better demonstrate patient’s pain. area of the Because of CONCLUSION. testimony, Dr. Dick’s proper this was re- We reverse the order of the trial court buttal. granting the Smallwoods a new trial on the only, and remand the

VIII. case to the trial court proceed- for further ings opinion. consistent with our We in- THE COURT’S INSTRUCTIONS ON struct the trial court to reconsider whether NEGLIGENCE WERE PROPER. grant a new trial on the issue damages, as well as on the issue pursu- Dr. Dick contends that 59(d). ant to I.R.C.P. giving court erred in not re defendant’s quested instead, instruction no. gave ruling Because of our mixed in this the court’s instructions nos. 8 and 12. no attorney costs or fees are awarded on appeal. requested

Defendant’s instruction no. 9

essentially recited the elements for medical malpractice 6-1012, plus SHEPARD, C.J., contained I.C. and OLIVER and § requirement negligence TOWLES, Tern., JJ. Pro concur. doctor proximate must have been the cause TOWLES, Tern., Judge specially Pro injury damage plaintiffs. to the concurs. The court’s instruction no. 8 described the proof had, burden of that the Smallwoods I objection While have no to the trial including requirement they must court’s reconsideration of the issue of the prove that Dr. Dick negligent and that a new trial on the *10 negligence proximate her was the liability, my cause of it is view that the trial court injury the to Smallwood. previous finding, Instruction no. was correct in its that 12 stated: liability was established as a matter of law.

Hence, liability [meaning of to in consid- the ultimate conclusion dict do so trial court’s ering liability] a grant correct. of a new trial on was defendant/appellant because [Dr. OLIVER, Tern., BISTLINE, J. J., Pro requested. not so The trial court had Dick] concur. taking on simply was note that there was BISTLINE, Justice, concurring and defendant/appellant file no mo- Dick] [Dr. dissenting. liability, tion for trial on and that a new by the de- having rule not been invoked PART I. CONCURRING fendant/appellant, the court had no author- I concur with Johnson has all that Justice rule, i.e., ity 59(a). under that reversing written other than his and re- Moreover, to the trial court’s statement manding language, and other than the rea- hanging in that effect not a statement was soning gets him to such a conclusion. air, open paragraph rather the end of a but said, fear of con- where it can be without PART II. DISSENTING tradiction, the district court demonstrates page opinion On of Justice Johnson’s the defendant/appel- that did consider paragraph the first of Part IV states: a that should be argument lant’s there post- In its memorandum decision on whole new trial: the court that trial motions trial stated has considered the This court defend- requested Dr. Dick a trial had not new ant’s argument that a trial on new 59(a) pursuant and that to I.R.C.P. required I.R.C.P. is under is, therefore, “this court without the 59(a)(5), re- trial also be a new would authority verdict to review the liabil- of liability. De- quired the issue on of 104. ity under R. that rule.” argues that the verdict was fendant particular opening sentence of Part IV This verdict, finding compromise the that begin- practically a restatement the of was so intertwined with defendant/appellant’s Dr. ning of Dick liability, any found finding prejudice of on one issue: brief inextricably damage the award would be that De- The trial court held because respect jury’s with linked to the verdict request a did not fendant/Appellant liability. to A review of careful pursuant Idaho trial Rule disclose, of man- not record does 59(a), and Plaintiffs/Re- Procedure Civil ner, compromise this verdict was a how a new on the spondents requested trial the de- It must be noted that verdict. damages only, the trial court pur- requested trial fense a new has authority without review was is, 59(a), this court suant to Rule liability. verdict re- therefore, authority without that under view the verdict was an inaccurate recitation Such Therefore, rule. a new trial on wrote, Dr. and the the trial court what accepts unless defendant ordered misguided ma- obviously has Dick brief additur. this court’s Entirely the lan- opinion. different is jority used the district court: guage very well the court understood trial has that defense It must be noted argument defendant/appellant’s pursuant trial requested a new compromise Defend- verdict verdict. is, therefore, 59(a), and this Rule 16) filed in ant/appellant (p. in her brief to review the verdict authority without “Thus, states, ignoring even this court Therefore, rule. under court had Rule damages is ordered unless a new liability, and to decide review the accepts this court’s addi- defendant question the verdict of whether tur. compro- Plaintiff Smallwood was James humbly I submit that in mised verdict.” Dick Dr. brief It is seen that, exactly “decide the did trial court did trial court held saying that error plain- the verdict question of whether review the ver- authority to without itself *11 compromise tiff James Smallwood a following pursuant was entered to the 20 Finding not, verdict.” that it was after a page MEMORANDUM DECISION ON record, careful review the new trial MOTIONS, POST-TRIAL de- was was limited to the damages. findings clared to constitute the court’s presented. conclusions on the issues open An reasoning mind can draw no order rulings: recited the court’s four main other conclusion from the trial court’s own language: That the verdict of the in the sum of $356,714.12 inadequate was and rendered argues

Defendant that the verdict was a under verdict, passion preju- the influence of compromise finding and that the dice and in of was not accordance wit the was so intertwined with the finding presented evidence as at the liability, any prejudice in trial. found sidered itself without authority to consider It cannot be said that the trial court con- linked to the how dict. record does liability. damage this verdict was a award would be jury’s A disclose, careful verdict with compromise in any review inextricably manner, respect ver- by That the evidence 530.00. greatly in excess of the amount awarded strated that Plaintiffs suffered [******] [******] jury, namely conclusively the sum of $1,033,- demon- with the erroneous conclusion that the trial guage it. majority opinion, which, conceded and said that the district fact did consider the defendant’s dict I mention also a was on the issue of at p. compromise contention that the 761 P.2d at problem liability. issue, entitling taken and did rule on with some lan- It has to be it to a new jury’s together ver- That the Defendant is entitled to an off- total mining an Additur. set in the sum of injuries matter That the evidence at trial established [******] liability suffered law. for the $375,000 Defendant the Plaintiffs as a purposes against the of deter- for the The Memorandum purport Decision did not court did not independent know of the au- order; merely provided be an thority trials, to award new seems to be the court’s passing ratio decedeni in on the predicate thought justify which is re- presented. required; issues An order was versing the trial court: the order was entered. We are unsure whether the statement the trial court in its order of expressed The concern in Justice John- that ‘the evidence at trial established the opinion ruling, i.e., son’s is the third does liability of injuries for the ruling finding [Dr. Dick] that amount to a that liabili- suffered as a matter ty Or, put, [Smallwoods] a close issue? otherwise of law’ finding was intended to be a that intending say trial court liability was close in this case. liability was a close issue? adjust To my capabilities it to own of read- One would surmise that if the trial court ing comprehension, I have broken it down thought issue, this to abe close and intend- into two sentences: so, say ed to the court was articulate The trial court stated that ‘the evidence enough say so. If that were the at trial established [Dr. the court would not have ruled that injuries suffered Dick] defendant was plaintiffs liable to the as a as a matter law.’ We [Smallwoods] only express great matter of law. I can are unsure whether that statement was concern that plain court’s lan- intended to be finding guage can be so misunderstood. “As a awas close issue. matter of law” constitutes words of art First, appeared i.e., it is noted that this many applications, an that have in passing Judgment Order of summary judgment, which the trial court on motions pass- *12 verdicts, ing on in gence might expect motions for directed and as one to encounter. passing on judgment motions for n.o.v. This defendant of doctor the exercise her Attorneys may not know what “as a matter specialty failed the to observe observable. day forward, of law means” from this but clearly The trial court was of the view they have known is heretofore that it liability the defendant’s not a that equivalent saying given to that on a issue issue, obviously close and would have reasonable minds could not differ. In this plaintiff a n.o.v. on granted the particular case the trial court used that liability jury had the mis-fired on that is- language ruling do a which had to with necessary In it not regard sue. that is to argument new the defendant’s for a trial rely upon speculate, merely but to the liability, claiming on the issue of liability that court’s statement was estab- compromise at verdict. had arrived a of lished as a matter law. may very disheartened The trial bar be credulity stretching is assert It too to problem appellate jurists having to a see of all that court—in case well-recognized plainly with written and the of Rule provisions cases—did not know English language peculiar which is to the 59(d). legal There was no basis for the court to profession. defendant/appellant a grant the majority result achieved motion, even on second trial her own solely Judge upon based the view that motion, had one defendant/appellant’s a impres- under the incorrect Hurlbutt was defendant/appellant only been made. The independently sion he order that could not verdict, sought argue compromise did to a liability. explic- a trial on To be more so, against correctly and court ruled it, at p. opinion P.2d 1218 the at A trial better than the contention. misper- it is stated that trial “court over recognize] appellate its court knows case ceived an [failed weeks, and, presided under I.R.C.P. 59 consider for it has three which and new trial on both to consid- ordinarily is said to entitled damages.” In support the issue of of that findings are chal- erable deference when its (d) paragraph of Rule 59 cited statement lenged. quoted. years ago, filed This action was five any judges I at doubt that our Idaho although Judge Oli- Judge like Towles and 59(d), any are not aware of Rule level ver, register objection” I to Justice “no of more practitioners also that most trial proposal to for the re- remand Johnson’s years experience than are likewise three of a motion the trial court consideration thing say, It is as did aware. one upon, I see no reason already ruled can has court, hav- trial that without the defendant realize doing, so and until now did not 59(a) motion, ing grant filed a could object. simply disagree. I I To could that quite another an unmade motion—but delight, defendant/appellant’s I am cer- thing not know imply that the court did tain, the effort to lead some members assuming power that it of its own to do so— astray has How- this Court succeeded. doing so. perceived compulsion some ever, seen more judge will be as Why any court feel such com- should the and more acute. learned defendant, know- pulsion when the full well record, may not bother dif- ing Publishing Company the state of the did West A any such motion? review of writing to make for this ficulty in the headnotes mind of the trial court record satisfied the say are which There three votes case. liable as matter that the defendant was ruling not in error in trial court was meet that Court does not of law. This defendant/appellant was liable as issue, the trial court’s does not overrule law, certainly does a matter of How, ruling after review. now? considered liability was the issue on indicate that three votes from it. And with close. Far case, than other is close This more holding from as a surface West negli- that should being ipsa loquitur case res long as it which so stands is the law of the case.

761 P.2d LOPEZ, personal repre-

Elias Roberto Lopez,

sentative of the Estate of Eda

deceased, and as conservator of the Es- Lopez,

tate of Robert Diaz Steven Elias

Lopez, Lopez, and Juanita Esmeralda Lopez,

the minor children of Eda Diaz

deceased, Lopez, and Elias Roberto

Plaintiff-Appellant,

Jeffrey Frank LANGER and Frank

Langer, Defendants-Respondents.

No. 16781.

Supreme of Idaho. Court

Sept. 1988.