BRENDA MILLER, as Personal Representative of the Estate of Connie Rae Scribner, Deceased, Appellant (Plaintiff),
SEAN BEYER, M.D.; and EMERGENCY MEDICAL PHYSICIANS, P.C., Appellees (Defendants). SEAN BEYER, M.D.; and EMERGENCY MEDICAL PHYSICIANS, P.C., Appellants (Defendants),
BRENDA MILLER, as Personal Representative of the Estate of Connie Rae Scribner, deceased, Appellee (Plaintiff)
[Copyrighted Material Omitted]
Appeal from the District Court of Natrona County. The Honorable David B. Park, Judge.
Representing Brenda Miller, as Personal Representative of the Estate of Connie Rae Scribner, Deceased: G. Bryan Ulmer, III, and Larissa A. McCalla of The Spence Law Firm, LLC, Jackson, Wyoming; Robert M. Shively of Rob Shively, P.C., Casper, Wyoming. Argument by Mr. Shively.
Representing Sean Beyer, M.D., and Emergency Medical Physicians, P.C.: W. Henry Combs, III, and Andrew F. Sears of Murane & Bostwick, LLC, Casper, Wyoming. Argument by Mr. Sears.
Before BURKE, C.J.[*], HILL, DAVIS, and FOX, JJ., and GOLDEN, J. (Ret.).
GOLDEN, Justice (Ret.).
[¶1] Brenda Miller (Plaintiff), acting as personal representative for Decedent Connie Rae Scribner, filed a wrongful death action alleging medical malpractice against Sean Beyer, M.D. and Emergency Medical Physicians, P.C. (collectively Defendants). The first trial ended in a mistrial and entry of an order requiring Defendants to pay attorney fees and costs. The second trial ended in a jury verdict in favor of Defendants. Following the verdict in the second trial, Plaintiff moved for a new trial on grounds that the district court improperly admitted undesignated expert testimony given by Defendant Dr. Beyer and Defendants' retained expert. The district court denied the motion, and Plaintiff appeals that denial. Defendants cross-appealed, challenging the district court's order declaring a mistrial in the first trial. We affirm both district court orders.
[¶2] Plaintiff frames the issues for our review as follows (footnotes omitted):
Whether the district court erred when it refused to grant the Plaintiff/Appellant's motion for a new trial based on three independently sufficient reasons?
A. The district court improperly admitted opinion testimony from Defendant's expert Dr. Kurt Bernhisel which, in the interest of justice, requires a new trial;
B. The district court improperly admitted testimony regarding CURB-65 which, in the interest of justice, requires a new trial; and,
C. The district court improperly allowed Dr. Beyer to offer speculative, non-designated expert testimony concerning the BUN tests on the 21st and their relation to sepsis which, in the interest of justice, requires a new trial.
[¶3] In their cross-appeal, Defendants state the issue on appeal as follows (footnote omitted):
Whether the district court erred when it granted a mistrial, and subsequently awarded fees and costs, based upon a single unanswered question from defense counsel that, while arguably lacking in form or timing, touched upon relevant and admissible evidence that should have been presented to the jury.
[¶4] In responding to Defendants' cross-appeal, Plaintiff presents the following additional issue concerning the timeliness of Defendants' cross-appeal:
A. The Cross-Appellants failed to timely file their notice of appeal as to the November 6, 2012 Order Allowing Costs and Fees for the mistrial, which was an appealable order because it was a [sic] " [a]n order affecting a substantial right in an action, when such order, in effect, determine[d] the action." Wyo. R. App. P. 1.05(a).
[¶5] On October 20, 2005, Connie Rae Scribner sought treatment at the Wyoming Medical Center emergency room. Ms. Scribner complained of a severe cough, upper respiratory infection, and difficulty breathing. She was evaluated by Defendant Dr. Sean Beyer, and he diagnosed her as suffering from bilateral pneumonia. While in the emergency room, Ms. Scribner was administered intravenous antibiotics and saline, inhalation treatments, cough medication, and Tylenol. After Ms. Scribner spent approximately three and one-half hours in the emergency room, Dr. Beyer noted her condition had improved and discharged her with care instructions and with prescriptions for an antibiotic, a cough syrup with codeine, and an inhaler.
[¶6] The following afternoon, on October 21, 2005, while at home with her twenty-year-old son and her boyfriend, Ms. Scribner stopped breathing. Ms. Scribner's son performed CPR and an ambulance was called, but Ms. Scribner died at the hospital that afternoon. The medical examiner found that
Ms. Scribner died of " panlobar organizing and acute pneumonia."
[¶7] On January 15, 2008, Plaintiff filed a wrongful death complaint against Defendants. In general terms, Plaintiff alleged that Defendants' care of Ms. Scribner fell below the standard of care because they failed to diagnose the seriousness of Ms. Scribner's condition and failed to admit her to the hospital for observation and treatment.
[¶8] A first trial began on August 27, 2012. On the fourth day of the first trial, during cross-examination of Decedent's son, defense counsel asked a question that described Decedent as a drug addict. On August 31, 2012, Plaintiff moved for and was granted a mistrial. On November 6, 2012, the district court entered an Order Allowing Fees and Costs, which awarded Plaintiff approximately $60,000 for costs and fees incurred in connection with the first trial. The orders declaring a mistrial and awarding fees and costs are the subject of Defendants' cross-appeal. Additional facts related to the mistrial will be set forth in the discussion of that issue.
[¶9] A second trial began on March 18, 2013. On April 1, 2013, the case was submitted to the jury, and on that same date the jury returned a verdict finding no negligence in the care and treatment of Ms. Scribner. On April 18, 2013, the district court entered judgment on the verdict. On May 2, 2013, Plaintiff filed a motion for new trial pursuant to Rule 59 of the Wyoming Rules of Civil Procedure. Plaintiff moved for a new trial based on the district court's rulings that allowed testimony, over Plaintiff's objection, by Defendant Dr. Beyer and one of Defendants' expert witnesses concerning theories that Plaintiff contended were not disclosed during discovery. Plaintiff's motion asserted:
On April 1, 2013, after only a few hours of deliberations, the second jury empaneled in the above captioned case returned a verdict finding that Dr. Beyer was not negligent in his care and treatment of the decedent Connie Scribner. The verdict followed nearly seven years of litigation and two weeks of trial during which defendant and his expert for the first time introduced new theories relating to liability and new, undesignated, untested and unreliable surprise opinion testimony. The theories offered by the defendant and his " expert" were based upon an incomplete and inadequate understanding of the very theories they advanced. The surprise opinion testimony was amorphous and changed repeatedly throughout the expert's sworn testimony. The evidence confused and mislead the jury, violated the principles behind expert disclosures, and failed to meet the requirements of relevance and reliability that govern expert testimony, ultimately denying the plaintiff the opportunity for a fair trial.
[¶10] On June 25, 2013, the district court denied Plaintiff's motion for a new trial. The court's denial of Plaintiff's new trial motion is the basis for Plaintiff's appeal. Additional facts relevant to this issue will be set forth in our discussion of the issue.
[¶11] On July 24, 2013, Plaintiff filed her notice of appeal, and on August 6, 2013, Defendants filed notice of their cross-appeal.
STANDARD OF REVIEW
[¶12] The question whether Defendants' appeal from the district court's order declaring a mistrial was timely filed involves the jurisdiction of this Court and is subject to de novo review. Northwest Bldg. Co., LLC v. Northwest Distrib. Co., Inc., 2012 WY 113, ¶ 26, 285 P.3d 239, 245 (Wyo. 2012); Inman v. Williams, 2008 WY 81, ¶ 10, 187 P.3d 868, 874 (Wyo. 2008).
[¶13] A district court's ruling on a motion for mistrial is reviewed for an abuse of discretion. Dollarhide v. Bancroft, 2010 WY 126, ¶ 4, 239 P.3d 1168, 1170 (Wyo. 2010); Hannifan v. Am. Nat'l Bank of Cheyenne, 2008 WY 65, ¶ 36, 185 P.3d 679, 693 (Wyo. 2008); Terry v. Sweeney, 10 P.3d 554, 557 (Wyo. 2000). This Court likewise reviews a
district court's decision whether to grant a new trial for an abuse of discretion. Smyth v. Kaufman, 2003 WY 52, ¶ 13, 67 P.3d 1161, 1165 (Wyo. 2003); Richardson v. Schaub, 796 P.2d 1304, 1308 (Wyo. 1990). We also review a district court's rulings on the admissibility of evidence, including whether to exclude expert testimony, for an abuse of discretion. Black Diamond Energy, Inc. v. Encana Oil & Gas (USA), Inc., 2014 WY 64, ¶ 34, 326 P.3d 904 (Wyo. 2014) (" Rulings on the admissibility of evidence are within the sound discretion of the trial court and will not be disturbed by this Court absent a clear abuse of discretion." ); Wilson v. Tyrrell, 2011 WY 7, ¶ 50, 246 P.3d 265, 279 (Wyo. 2011) (" The question of the admissibility of evidence is primarily a question for the trial court." ).
[¶14] The following will be considered in determining whether a district court has abused its discretion:
" 'Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.'" Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo. 1986)); see also Stroup v. Oedekoven, 995 P.2d 125, 128 (Wyo. 1999).
In determining whether there has been an abuse of discretion, we focus on the " reasonableness of the choice made by the trial court." Vaughn, 962 P.2d 149, 151 (Wyo.1998). If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious.
Jordan v. Brackin, 992 P.2d 1096, 1098 (Wyo. 1999).
Dollarhide, ¶ 4, 239 P.3d at 1170 (quoting Hannifan, ¶ 36, 185 P.3d at 693).
[¶15] Addressing the issues in chronological order, rather than in the order in which they were presented on appeal, we first address Defendants' appeal from the order granting a mistrial in the first trial. We will then turn to the issues related to the admission of expert testimony in the second trial and the denial of Plaintiff's motion for a new trial following the jury's unfavorable verdict in that second trial.
A. Order Granting Mistrial
[¶16] The district court declared a mistrial of the first trial because, on cross-examination of Decedent's son, defense counsel asked a question that described Decedent as a drug addict. The court found the question improper on grounds that the question assumed facts not in evidence, called for speculation, was based on hearsay, was not relevant, and was unfairly prejudicial to Plaintiff. In considering Defendants' appeal of the mistrial order, we will first address Plaintiff's argument that Defendants' appeal was not timely, and then we will consider Defendants' abuse of discretion argument.
1. Timeliness of Appeal
[¶17] On August 31, 2012, Plaintiff moved for a mistrial, and the district court granted that motion. In so ruling, the court directed Plaintiff's counsel to submit an application for costs and fees and indicated it would rule on that application after Defendants' counsel had an opportunity to respond. The court also set a scheduling conference for the purpose of choosing a date for the second trial.
[¶18] On September 5, 2012, the district court issued a Scheduling Order that set a new trial date of March 18, 2013. On September 17, 2012, Plaintiff filed her motion for attorney fees and costs related to the mistrial, and on October 2, 2012, Defendants responded to that motion. On November 6, 2012, the court entered an Order Allowing Costs and Fees.
[¶19] Plaintiff does not contend that the district court's August 31, 2012 order granting Plaintiff's motion for a mistrial was an appealable order. Instead, Plaintiff contends that the court's Order Allowing Costs and Fees was the appealable order and that because Defendants did not file their cross-appeal
until August 6, 2013, their appeal of the mistrial order and Order Allowing Costs and Fees was untimely. We disagree.
[¶20] In arguing that Defendants' appeal was untimely, Plaintiff relies solely on Rule 1.05(a) of the Wyoming Rules of Appellate Procedure. Rule 1.05(a) defines an appealable order as " [a]n order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment." W.R.A.P. 1.05(a). This Court has held that " an appealable order under Rule 1.05(a) has 'three necessary characteristics. . . . It must affect a substantial right, determine the merits of the controversy, and resolve all outstanding issues.'" In re E.R.C.K., 2013 WY 160, ¶ 28, 314 P.3d 1170, 1176 (Wyo. 2013) (quoting In re KRA, 2004 WY 18, ¶ 10, 85 P.3d 432, 436 (Wyo. 2004)). Said another way, to be appealable, an order must leave nothing for future consideration. In re KRA, ¶ 10, 85 P.3d at 436 (citing Public Serv. Comm'n v. Lower Valley Power & Light, Inc., 608 P.2d 660, 661 (Wyo. 1980)). The purpose of these Rule 1.05 requirements is " to avoid fragmentary appeals and decisions made in a piecemeal fashion." Estate of McLean ex rel. Hall v. Benson, 2003 WY 78, ¶ 8, 71 P.3d 750, 753 (Wyo. 2003).
[¶21] Applying these principles, the district court's orders granting a mistrial and awarding costs and fees were not appealable orders. While the question of the mistrial may have been settled once the court issued its order awarding costs and fees, that issue was only one discrete part of the controversy. The parties' controversy would not be fully determined on the merits until after the second trial. The orders declaring a mistrial and awarding costs and fees thus did not determine the action or prevent a judgment as required by Rule 1.05(a), and a ruling that the mistrial orders were immediately appealable would necessarily result in the type of fragmentary appeals and piecemeal decisions that Rule 1.05 was intended to avoid. See Davis v. Davis, 195 Ariz. 158, 985 P.2d 643, 646-47 (Ariz. Ct. App. 1999) (holding that an order granting a mistrial prior to judgment being entered is not an appealable order because such an order neither determines the action nor prevents judgment from which an appeal might be taken); Howard v. Kuehnert, 94 Ohio App.3d 742, 641 N.E.2d 804, 805-06 (Ohio Ct. App. 1994) (interpreting provisions similar to W.R.A.P. 1.05 and holding that orders relating to declaration of mistrial not appealable because a new trial necessarily follows).
[¶22] This case has taken an appellate path similar to that followed in Terry v. Sweeney, a personal injury lawsuit involving a motor vehicle accident. Terry, 10 P.3d at 555. A mistrial was declared in Terry when a witness for the plaintiff, in violation of a pretrial order, referenced the defendant's insurance coverage. Id. at 556. The trial court entered an order awarding costs related to the mistrial, and the matter remained pending for two years because the court would not set a new trial until the plaintiff paid the costs. Id. The plaintiff continued in her failure to pay the award of costs, and, nearly three years after entry of the original order awarding costs, the trial court entered an order of dismissal with prejudice. Id. at 557. The plaintiff then appealed the dismissal order and the orders declaring a mistrial and awarding costs. Id. This Court did not directly address the timeliness of the plaintiff's appeal from the orders declaring a mistrial and awarding costs, but given our willingness to dismiss an appeal on our own motion when we find that an order is not appealable, our acceptance of the appeal and ruling on the issues presented signaled that the appeal had been properly taken. See Bd. of Trustees of Mem'l Hosp. of Sheridan Cnty. v. Martin, 2003 WY 1, ¶ ¶ 9-16, 60 P.3d 1273, 1275-77 (Wyo. 2003) (dismissing appeal on ground that order was not appealable though issue was not raised by parties).
[¶23] Our ruling in Terry implicitly recognized that an order declaring a mistrial is not an appealable order itself and that the proper procedure for appealing such an order is to take an appeal after the parties' controversy is fully determined on the merits. See also Dollarhide, ¶ 16 n.5, 239 P.3d at 1173 n.5 (reviewing the trial court's exercise of discretion in granting a mistrial while at the same time observing the arguable mootness of the issue given that by the time a mistrial ruling makes its way to the Court
on appeal the jury has been released and another trial has taken place).
[¶24] The orders declaring a mistrial and awarding costs and fees did not determine the action or prevent a judgment, and neither order was therefore an appealable order as defined by W.R.A.P. 1.05(a). We thus conclude that Defendants' appeal of the mistrial order was timely and turn then to Defendants' argument that the district court abused its discretion in declaring a mistrial.
2. District Court's Exercise of Discretion in Declaring Mistrial
[¶25] As noted above, the offending question that led the district court to declare a mistrial was one that described Decedent as a drug addict. Evidence relating to Decedent's alleged use of Vicodin and marijuana, her alleged alcohol use, and her alleged drug-seeking behaviors was the subject of motions in limine and multiple arguments to the district court, both pretrial and during trial. At a pretrial motions hearing, Defendants argued that the evidence was relevant to Decedent's cause of death and was therefore admissible. Essentially, Defendants contended that Decedent misused her prescription medications and consumed alcohol and marijuana, and that these actions combined with Decedent's pneumonia to cause her respiratory failure. Plaintiff argued for exclusion of evidence related to Decedent's history of drug and alcohol abuse on grounds that the prejudicial nature of the evidence outweighed its probative value because there was no evidence that showed a recent use of Vicodin or a link between Decedent's marijuana use and her respiratory failure. At a pretrial motions hearing, the district court ruled that evidence related to Decedent's past abuse of Vicodin was not admissible because the allegations were too remote in time. With respect to Decedent's use of marijuana, the court ruled:
THE COURT: My inclination is to grant the motion with regard to the THC. I'm getting different versions of what the experts are going to say, so I am -- I'm reserving to the defendant if they can somehow specifically tie the THC to the cause of death; but, you know, if the argument is, Well, she was smoking marijuana and under the influence and made a bad decision, I don't see any experts willing to say that -- I may have missed that -- but, you know, you have to somehow say she had X number of nanograms in her system and then this is how it affects her judgment. I may have missed it, but I don't see that in any of the designations.
* * * *
THE COURT: It does seem to me to be more prejudicial than probative of anything; but I -- as the testimony develops, I will reconsider that ruling at the request of the defendants.
[¶26] On the first morning of the first trial, defense counsel requested clarification on the district court's rulings concerning Decedent's drug use, and the following exchange took place:
[Defense Counsel]: * * * Due to the delicate nature of a few of the rulings that you've made in the past, the Zithromax and Vicodin and marijuana and so on, we just want to make sure that we all understand what to say and what not to say during voir dire and openings.
So the first question I have, I know there was a motion that you heard about a particular ER record with Connie Scribner, where she admitted she had been seeking Vicodin; and you said there's no reason to reference that record. And that's fine. What we would like to do, however, Your Honor, is establish that she was a drug seeker, because it goes to -- the plaintiffs have made a big deal about who it was that could have possibly consumed the medications at her home. The fact that she's a drug seeker in the past goes to the fact that she sought the high from time to time for whatever medications she could get, and it establishes and provides some background information about who in fact was the most likely person to have taken the extra gabapentin and the codeine cough syrup. So your ruling was specifically tailored to that specific medical record; but we didn't want to violate anything by mentioning other Vicodin or other records that reference that or her history of drug-seeking behavior.
[Plaintiff's Counsel]: * * * Well, I know that your ruling was specific to that record; but it was based upon the idea that the nature of the drugs she had admitted to seeking a year prior, over a year prior, was Vicodin; that there was no Vicodin in her system. It was tested for. There was no evidence that she had engaged in any drug-seeking behavior for at least a year prior to this event. And that it is therefore a prior bad act which should be excluded. And so the -- the discussion was a lot broader than, Oh, can we -- do we erase the reference in this record. I think that was the context in which it came up, but it was because of the remoteness in time and the risk of unfair prejudice relating to it and also that -- that there was no evidence to -- to support admission of such evidence under habit or anything else because of the lack of time and the dissimilarity between that particular drug that is historically an issue and the drugs involved at the time of this event.
[Defense Counsel]: Even though the drug at issue in this case wasn't whether Vicodin killed her, the cause of her death is definitely an issue. And one of the -- our entire theory of the case is that she overmedicated herself. And so it goes to that point, because they have contested that she consumed the cough syrup and they have contested that she consumed the gabapentin without any proof whatsoever that anybody else could have taken it. And so it's important for that, Your Honor, on this particular issue.
THE COURT: You may respond to those things but only those things. As to other drug-seeking proclivities, I will rule on those questions as they come up. But do not address it in your opening.
[¶27] On the second day of trial, the issue of Decedent's drug use again raised its head when Plaintiff's expert referred to Decedent's past " prescription drug issues" during cross-examination by defense counsel. The following exchange then occurred:
[Plaintiff's Counsel]: Through no doing of [Defense Counsel], there was testimony from the doctor that the medical records in the past indicated some prescription drug issues. Right now, I would like to leave that alone. I would like the opportunity -- because we have a motion in limine to preclude that evidence. I think that the doctor is tired because, of course, I informed him of that. I don't want it to go further. I would like the opportunity to discuss with the witness that it is not something he should say. I don't think it was error in any way for [Defense Counsel]. I'm not objecting to that. I don't have a problem with that. I would like the opportunity now to make it not worse, and I do not think that he opened the door to it because he just said issues and not -- didn't define it any more. So I would like to stop it in its tracks.
[Defense Counsel]: * * * I understand that you have ruled that the 2004 incident with regard to the Vicodin is not admissible; and I wasn't really focused on him saying what he said. I don't intend to go further with it right now; but I want you to know that it is my position that her drug-seeking mentality is at issue and it's germane to Dr. Kulig's opinions in this case about what happened to the drugs and what happened to Connie.
THE COURT: All right. I'm not going to make a ruling on that at this point.
[¶28] On the third day of the first trial, another exchange took place between the court and counsel concerning evidence related to Decedent's alleged drug use:
THE COURT: Okay. I want to at least have you prepared to discuss something if you're not now, and I suspect you're not. An issue has come up occasionally -- and my guess is it's going to -- there's going to be [an] increasing chance for it come up the further we go into this case. And I can't remember the phrase that [Defense Counsel] uses, but it has to do with allegations of drug abuse by Ms. Scribner. And you referred to that as high seeking or --
[Defense Counsel]: Drug seeking.
THE COURT: Drug seeking. So I'm not sure what it is that you're trying to establish. Are you trying to establish habit or are you trying to establish character or character through habit? I want some --
I'm trying to prepare for this, so I'm trying to delineate the issue.
* * * *
[Defense Counsel]: It's character. And it comes under 404(b), where it says it's admissible for other purposes, such as proof of motive, opportunity, intent, those sorts of items. And just so they can respond to both of the things, I just want to make sure we don't run into a problem with Adam Scribner.
THE COURT: I just wanted to know what the issue was so I can be prepared. I don't know if you said you want to respond now or not.
[Defense Counsel]: Can I say one more thing? Just because I don't want anybody to be unfairly surprised, and I want to be fair, too.
But with Adam Scribner, there's evidence in the records -- he's claiming damages in this case as a family member based upon his relationship with his mother and what he's lost as a result of her death. There is evidence in the records that she told medical providers that her kids believed she was a drug addict and -- along with other opinions that her kids had of her. But I'm going to ask that question of him, you know, Did you believe your mom was a drug addict. I don't know what he'll say. But it's in the records that she reported that to medical providers. And so it's not to show whether she was a drug addict on the day that she actually died, but it's relevant to the relationship that they had with one another and his claim for damages and the daughter's claim for damages, as well.
* * * *
THE COURT: If this is not going to come up in this next witness, we can postpone this discussion and bring the jury back in and go forward. I didn't mean to get so distracted. I was just trying to delineate the issue. I didn't really mean to get into a full-blown argument on it.
[Defense Counsel]: I believe that Dr. Beyer is the next witness, they will tell you. But if he's the next witness, this probably is not coming up in his testimony.
THE COURT: All right. Let's proceed, then, with the jury; and we'll discuss this. But the parties are going to have to alert me when they anticipate it.
[¶29] On the fourth day of the first trial, defense counsel's cross-examination of Decedent's son, Adam Scribner, led to the following exchange and motion for a mistrial:
Q. Did you ever think of your mom as a drug addict?
A. No, absolutely not.
Q. Do you have any idea why she would report that to any of her health care providers, that her children thought she was a drug addict?
[Defense Counsel]: Your honor, may we approach?
THE COURT: Yes.
THE COURT: So we're here.
[Defense Counsel]: And I'm not going any further.
[Plaintiff's Counsel]: It's too late. Thank ...