Randy Hoffer v. Scott A. Shappard, D.O.

Citations: 160 Idaho 868; 380 P.3d 681; 2016 Ida. LEXIS 290Docket: Docket 42087

Court: Idaho Supreme Court; September 28, 2016; Idaho; State Supreme Court

Original Court Document: View Document

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Randy and Galyena Hoffer, acting as guardians for their minor child J.H., successfully sued Dr. Scott A. Shappard and associated medical entities for negligence resulting in a jury judgment of $847,974.46. The case centers on the failure to diagnose J.H.'s developmental dysplasia of the hip (DDH), a condition critical to identify early for effective treatment. Despite multiple examinations where signs of DDH, such as asymmetrical skin folds, were evident, Dr. Shappard did not recognize these concerns or the mother’s repeated inquiries regarding J.H.’s leg length and walking patterns. Expert testimony indicated Dr. Shappard breached the standard of care by neglecting obvious indicators and parental concerns during the examinations. Following the trial, the Providers' requests for post-trial relief, including a new trial and judgment notwithstanding the verdict, were denied by the district court. The Supreme Court affirmed the lower court's judgment, upholding the jury's finding of negligence.

J.H. experienced walking difficulties attributed to developmental dysplasia of the hip (DDH), prompting her parents, the Hoffers, to consult orthopedic specialist Dr. Stanley Waters in early 2010. Dr. Waters diagnosed J.H. with DDH but advised against immediate treatment, suggesting that "God and nature will take care" of her condition. In May 2012, the Hoffers sought a second opinion from Dr. Larry Showalter, who identified a significant leg length discrepancy and asymmetrical skin fold. He ordered x-rays and performed open reduction surgery in August 2012, which initially showed favorable results but carried future risks of complications. 

During a nearly two-week trial, the jury heard extensive medical testimony and evidence regarding J.H.'s future damages, including expert opinions that she would likely need multiple hip replacement surgeries, each resulting in a 15% functional loss. The jury found Dr. Shappard negligent and reckless, assigning 20% of the fault to Dr. Waters and 80% to Dr. Shappard. They awarded $289,000 in non-economic damages and $750,000 in economic damages. After the trial, two jurors indicated to Providers' counsel that the jury had mistakenly swapped the amounts for non-economic and economic damages, leading to affidavits being filed. Dr. Waters settled before trial but was included in the verdict for fault allocation. The district court ruled against Providers' motions for judgment notwithstanding the verdict (JNOV), a new trial, and to correct the verdict. Providers appealed the decision.

The standard of review for the appellate court regarding new trial motions involves assessing whether the trial court recognized its discretion, acted within its discretion boundaries, and made reasonable decisions based on witness credibility and evidence persuasiveness. Appellate review focuses on the trial court’s decision-making process rather than the outcome.

The Court reviews jury instructions to ensure they adequately present the issues and applicable law, with such review conducted as a question of law. Reversible error arises if instructions mislead the jury or prejudice a party. The interpretation of evidence rules is assessed de novo. When reviewing a motion for Judgment Notwithstanding the Verdict (JNOV), the Court applies the same standard as the district court, upholding the jury’s verdict if reasonable evidence supports it, without reweighing evidence or assessing witness credibility.

Providers raised several trial issues, particularly regarding the denial of their post-trial motions related to the jury’s access to Exhibit LL, an article containing a diagnostic algorithm for Developmental Dysplasia of the Hip (DDH). The district court declined to provide this exhibit to the jury, reasoning that the jury had sufficient information and that the exhibit might contain unexamined information. Providers contested this decision, arguing for its admissibility under evidentiary rules and claiming prejudice due to defense counsel's statements suggesting the jurors would see the algorithm during deliberations. The trial court can grant a new trial for legal errors, with standards varying based on the grounds cited.

In Goodspeed v. Shippen, the Idaho Supreme Court affirmed the district court's decision not to allow Exhibit LL to be sent to the jury during deliberations, referencing Idaho Rules of Civil Procedure (I.R.C.P.) 59(a)(7) and 61, which dictate that only errors affecting substantial rights are considered. The court highlighted Idaho Rule of Evidence (I.R.E.) 803(18), which permits statements from learned treatises to be read into evidence but not to be provided as exhibits unless good cause is shown. The court noted that it had not previously interpreted the rule regarding jury access to learned treatises. The court also referenced similarities between Idaho and federal rules, indicating that federal decisions may guide interpretations of state rules. 

Exhibit LL, which contained a complete article with a diagnostic algorithm, was deemed too risky to provide to the jury since its relevance had not been fully explored during the trial. The court found that the Providers failed to demonstrate good cause for sending the entire article to the jury, even though the jury had already seen the algorithm during the trial. The Providers' counsel's representation that the jury would have access to the algorithm did not constitute good cause. Moreover, the Providers did not invoke Idaho Code section 9-402, which addresses the admissibility of certain historical and scientific works, and even if they had, the statute would not override the applicable rules of evidence. The court concluded that no basis existed for providing Exhibit LL to the jury, and any alleged violation of the statute could not support the relief sought by the Providers. Lastly, the court noted that the Hoffers may have waived their objection to the exhibit by not raising a hearsay objection in a timely manner.

The Hoffers established that Exhibit LL was admissible solely as a learned treatise, and its exclusion from jury deliberations did not impact Providers’ substantial rights. The jury had access to the algorithm and extensive expert testimony, could take notes, and did not request the exhibit, indicating that its absence was not detrimental. 

Regarding jury instructions, Providers contended that the court should have delayed the recklessness instruction until a finding of negligence against Dr. Shappard. The district court disagreed and provided instructions on both negligence and recklessness. Providers claimed this was unnecessary and potentially confusing, but the Hoffers argued there’s no legal requirement for bifurcation of these instructions, and the jury showed no signs of confusion. 

Citing prior cases, the court noted that there was no mandate to separate the deliberations on negligence and recklessness. The jury's inquiry during deliberations suggested they understood the distinction between recklessness and breach of care standards. Consequently, the court found no error in the decision to instruct the jury on both concepts simultaneously.

The district court's denial of the motion to correct the verdict was upheld, based on Idaho Rule of Evidence 606(b), which prohibits the consideration of juror affidavits regarding alleged errors in the special verdict form. Providers contended that they sought a "ministerial correction" rather than an inquiry into the verdict's "validity." They argued Idaho case law supports such corrections and that Rule 606(b) pertains only to impeachment of the verdict. However, the court clarified that Rule 606(b) does not permit clerical corrections as claimed by Providers. The rule explicitly limits juror testimony to matters concerning extraneous prejudicial information or improper influences, and the interpretation of the rule adheres to the principle that explicit designations exclude all others. Although Providers referenced a historical interpretation of the federal counterpart to Rule 606(b) that allowed for clerical corrections, the 2006 amendments to the federal rule made clear that such exceptions should not extend beyond the rule's text. The court expressed reluctance to create an exception to Rule 606(b) that is not explicitly stated in the rule.

An exception to I.R.E. 606(b) is not warranted, as the rule's text does not support it. The court referenced Umphrey v. Sprinkel, which established that affidavits may clarify a verdict but not impeach it; however, this precedent does not apply post-adoption of Rule 606(b) in 1985, and the court has not amended the rule to allow clerical error exceptions. Consequently, the district court acted correctly in ruling that considering juror affidavits would breach Rule 606(b).

The district court also did not abuse its discretion in denying the Providers' motion for a new trial, which was based on two grounds. Firstly, regarding Idaho Rule of Civil Procedure 59(a)(6), the court found sufficient evidence to support the jury's reckless finding. Providers contested this ruling, claiming the district court ignored conflicting evidence. However, the court's inability to consider juror affidavits about clerical errors rendered the jury's recklessness finding legally insignificant.

Despite this, the court reiterated the sufficiency of trial court findings for appellate review concerning new trial motions. Under Rule 59(a)(6), the trial judge must assess if a verdict aligns with the evidence's clear weight and whether a retrial would yield a different outcome. The district court concluded that evidence indicated recklessness due to ongoing concerns, visible signs of developmental dysplasia of the hip (DDH), and the simplicity of imaging. It ruled that the jury's verdict was not against the evidence's clear weight and a retrial was unlikely to change the result. Although the court did not explicitly cite Rule 59(a)(6), its analysis covered the necessary inquiries. The Providers' claim that the district court inadequately addressed other testimonies and evidence, such as the challenging nature of diagnosing DDH, was noted, but the court maintained that its new trial analysis was not procedurally erroneous.

The district court clarified the differing standards applicable to motions for a new trial, asserting that it is not bound to favor the non-moving party's inferences or accept the prevailing party’s evidence as true. Instead, it independently assesses if the verdict aligns with the clear weight of the evidence. The court's analysis focused on the most compelling evidence, citing Sheridan v. St. Luke’s Reg’l Med. Ctr. to illustrate its discretion in evaluating witness credibility. The court found no error in not thoroughly discussing all trial evidence when denying the motion for new trial under Idaho Rule of Civil Procedure 59(a)(6). 

Regarding Rule 59(a)(5), the court must consider what it would have awarded as the finder of fact and whether the jury's award deviates significantly from this to indicate bias. Although the district court did not explicitly reference Rule 59(a)(5) or analyze differences between it and other subsections, it expressed that the jury's recklessness verdict was not against the clear weight of evidence. Providers argued the jury's special damages award for lost future income was excessive and driven by bias. They cited Quick v. Crane, which mandates that courts clarify the reasoning behind their decisions on new trial motions, highlighting the necessity for transparency in the reasoning process. Despite the district court's lack of specific references to Rule 59(a)(5), its opinion showed a thorough evaluation of the evidence, indicating it had not erred in its decision.

The district court's failure to specify an award amount does not necessitate remand for further findings, as the trial judge's Rule 59(a)(5) analysis only requires an examination of whether the damage award was influenced by passion or prejudice. The court’s JNOV analysis aids in understanding its denial of the motion for a new trial. It is not necessary for the court to reiterate previously analyzed evidence when addressing separate motions if both rely on the same facts. The district court found substantial and complex evidence supporting the conclusion that J.H. faced likely limitations in the workforce and earning capacity, justifying the award for lost future earnings. The denial of the motion for a new trial was not an abuse of discretion. The district court also denied Providers' JNOV motion, affirming that substantial evidence supported the jury's findings of Dr. Shappard's recklessness and J.H.'s $750,000 in economic damages. The appeal primarily challenges the recklessness finding, but the jury’s verdict can be upheld solely on Dr. Shappard's negligence, which Providers do not contest. The dispute involves Idaho Code section 6-1603, which places an inflation-adjusted cap on noneconomic damages, not applicable to willful or reckless misconduct. The jury’s noneconomic damages award of $289,000 remains valid as it is below the statutory cap, and Providers have not provided a legal basis to amend this amount, rendering the recklessness finding legally insignificant.

The court is mandated to overlook errors or defects in proceedings that do not impact the substantial rights of the parties involved. This principle is established in I.R.C.P. 61 and supported by case law, including Goodspeed v. Shippen. The jury’s determination of negligence is sufficient to uphold its award, negating the need to evaluate evidence concerning alleged recklessness by Dr. Shappard. Although the Providers argue that labeling Dr. Shappard’s conduct as reckless could have future implications, they have not demonstrated that such a label affects any substantial right of Dr. Shappard. Consequently, the court declines to address the merits of the Providers' arguments regarding recklessness.

The jury's award of $750,000 for economic damages, which was derived from extensive evidence presented during the trial, is upheld. While the special verdict did not break down this award, it is acknowledged that approximately $438,000 could be attributed to past and future medical expenses, leaving about $312,000 for future lost earnings. Providers contest the sufficiency of evidence supporting the future lost income component, asserting that damages must be proven with reasonable certainty and not based on speculation. Testimony from the Hoffers’ vocational rehabilitation expert indicated that J.H. would likely undergo multiple hip replacement surgeries, resulting in a 15 percent function loss each time, which would lead to reduced employment opportunities limited to sedentary work.

Disabled workers face higher unemployment rates and earn 28% less than their non-disabled counterparts, with perceptions of being "problem workers." J.H., who will require hip replacement surgeries, has incurred past medical expenses of $38,928.82 and is projected to require future medical care amounting to $398,752, totaling $437,680.82. The jury awarded $312,319.18 for future loss of earnings, calculated based on an impairment rating of 25, which aligns with the testimony of economic expert Dennis Reinstein. Providers argue that Crum’s testimony on future earnings lacked medical support, making it speculative. Crum's opinions were based on insights from Dr. Eric Gordon and Dr. Bozic, with the latter not testifying but being referenced in Crum’s disclosures. Although Providers challenge this reliance, the rules of evidence allow such reliance without requiring testimonial support from all cited experts. Dr. Gordon indicated that J.H. may develop arthritis in his 30s or 40s and will likely need a total hip replacement. Additionally, Kelly Lance, a family nurse practitioner, provided significant testimony on J.H.'s future medical needs, contributing to the life care plan.

Lance provided testimony indicating that Dr. Gordon reasonably believed J.H. would need three hip replacement surgeries, spaced approximately twenty years apart. The Providers did not contest this testimony. Although predicting the exact frequency of future surgeries impacting J.H.'s earning capacity is impossible, it is established that the wrongdoer must bear the inherent uncertainty in prospective loss claims. Lost future earnings can be demonstrated with reasonable certainty rather than absolute precision, and the award for these earnings was deemed supported by substantial evidence.

The Hoffers are entitled to attorney fees on appeal, sought under Idaho Code section 12-121. There is disagreement between the parties regarding the frivolity of the Providers' arguments. New standards for attorney fees under this statute, effective March 1, 2017, will align with legislative intent, emphasizing that judges may award reasonable fees to prevailing parties without altering existing statutes regarding such awards. The Court interprets statutes based on their clear language and legislative intent, maintaining that unambiguous laws cannot be modified by the Court. Idaho Code section 12-121 has been in effect since 1976, initially allowing courts broad discretion to award fees, which was later limited in 1979 to cases pursued frivolously or without foundation.

The statute does not reflect a bias against attorney fee awards, unlike the restrictive “frivolous, unreasonable, or without foundation” standard established by court rule. The use of "may" in the legislation indicates legislative intent to give courts discretion in awarding attorney fees to prevailing parties. Idaho Code section 12-121 allows broad discretion without the limitations found in the court rule. Legislative intent has been to enhance this discretion, evidenced by House Bill 263 from 1987, which aimed to ensure prevailing litigants could reclaim attorney fees and costs when justice warranted. The court recognizes that prior applications of Rule 54(e)(1) have distorted the true intent of the statute, and plans to apply the legislative standard moving forward, which allows for recovery of attorney fees when appropriate. This decision acknowledges the impact of stare decisis but asserts that legislative authority to create and amend laws must be respected, emphasizing that the courts cannot amend laws based on personal judgments of their wisdom.

The legal excerpt addresses the constitutional allocation of powers among Idaho's government branches, stating that no collective body may exercise powers belonging to another. A previously applied court rule is deemed inconsistent with this distribution and is therefore no longer applicable. It notes that all parts of a legislative bill become law without a gubernatorial veto, irrespective of their inclusion in the Idaho Code. The excerpt references the case Peterson v. Peterson, where the court ruled that a retroactivity clause within a non-designated bill was improperly dismissed as mere legislative history. The ruling asserts that the entire bill became law upon passage, regardless of its statutory designation. 

Additionally, the excerpt outlines the effective date of a new rule, set for March 1, 2017, which will apply prospectively to all non-final cases. It addresses the Hoffers’ request for attorney fees on appeal, concluding that the Providers' appeal was frivolous and unreasonable, warranting an award of fees to the Hoffers. The judgment of the district court is affirmed, with costs awarded.

In a concurring and dissenting opinion, Justice Burdick expresses disagreement with the majority's decision to repeal Idaho Rule of Civil Procedure 54(e)(2), critiquing the replacement standard of awarding fees “when justice so requires” as vague and lacking guidance for trial judges. This change is seen as undermining the clarity provided by the previous rule's enumerated grounds, potentially complicating appellate review of attorney fee awards. The court voted to amend Rule 54(e) effective March 1, 2017.

The Idaho Legislature has the authority to enact attorney fee statutes, while the judiciary holds the right to establish reasonable procedural rules to assist trial courts in applying these statutes. Rule 54(e)(2) is viewed as a tool to aid judges in determining when justice requires the awarding of attorney fees. Concerns are raised that the majority's analysis will limit access to justice and favor wealthier parties, potentially leading to the adoption of the English Rule, which mandates that the losing party pays the winner's attorney fees. Such broad fee-shifting statutes may elevate litigation stakes, causing parties to litigate not only for judgments but also to secure or evade attorney fees, ultimately chilling litigation and increasing overall costs for litigants in Idaho. This trend could deter parties from pursuing legal action, as demonstrated in the case of Eyer v. Idaho Forest Group, where appellants faced significant attorney fees after a minor claim, highlighting the risk of discouraging legal recourse. The text cites the U.S. Supreme Court and Judge Richard Posner, emphasizing that the English rule can dissuade litigants, especially the less affluent, from seeking justice due to the financial risks involved. The author advocates for more input from judges and attorneys before implementing such significant changes. Justice W. Jones concurs with these views.