Miller v. Beyer

329 P.3d 956

Brenda MILLER, as Personal Representative of the Estate of Connie Rae Scribner, Deceased, Appellant (Plaintiff),

v.Sean BEYER, M.D.; and Emergency Medical Physicians, P.C., Appellees (Defendants).

Sean Beyer, M.D.; and Emergency Medical Physicians, P.C., Appellants (Defendants),

v.Brenda Miller, as Personal Representative of the Estate of Connie Rae Scribner, deceased, Appellee (Plaintiff).

Nos. S–13–0204, S–13–0205.

Supreme Court of Wyoming.

July 1, 2014.

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.

ISSUES

[¶ 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).

FACTS

[¶ 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.¹ 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...