Robbie M. Nason v. Timothy Pruchnic ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 38Docket: Pen-18-10
Argued: October 11, 2018
Decided: March 12, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
ROBBIE M. NASON
v.
TIMOTHY PRUCHNIC et al.
JABAR, J.
[¶1] Timothy Pruchnic, M.D., and Eastern Maine Medical Center
(collectively, excepted where indicated otherwise, Pruchnic) appeal from a
judgment entered after a jury trial in the Superior Court (Penobscot County,
A. Murray, J.) in favor of Robbie M. Nason on his claim for medical malpractice
against Pruchnic. We affirm the judgment.
I. BACKGROUND
[¶2] The following facts, including all justifiable inferences, are drawn
from the trial record as viewed in the light most favorable to the jury verdict.
See Hansen v. Sunday River Skiway Corp., 1999 ME 45, ¶ 5, 726 A.2d 220.
[¶3] In July 2013, Nason fractured the scaphoid bone of his right wrist
while working. Nason was referred to Pruchnic, a hand surgeon employed at
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Eastern Maine Medical Center, who determined that surgical intervention was
required for proper healing. Pruchnic performed a surgical implantation of a
compression screw in Nason’s scaphoid bone in September 2013.
[¶4] Throughout the next few months, Pruchnic completed several
imaging studies on Nason’s wrist, but failed to discover any potential problems.
Believing Nason’s wrist to be healing properly, Pruchnic had Nason begin
physical therapy, where he experienced pain and a distinct clicking feeling in
his wrist. Eventually, Pruchnic realized that the screw he had placed in Nason’s
wrist was protruding from the scaphoid bone and into the surrounding
cartilage.
[¶5] Due to Nason’s extended absence from work, his workers’
compensation agent scheduled him to be examined by another surgeon. Upon
examining Nason, the surgeon immediately recognized that the screw was
protruding from Nason’s scaphoid bone and performed surgery to remove the
screw, during which the surgeon observed extensive damage to the cartilage of
Nason’s right wrist. The surgeon performed a second surgery in an attempt to
clean up as much damage as possible. Despite these efforts, Nason continued
to experience pain in his right wrist, and several injections proved ineffective.
3
Ultimately, the surgeon completed a third surgery on Nason, removing his
scaphoid bone along with two other bones.
[¶6] Nason brought an action against Pruchnic and Eastern Maine
Medical Center, alleging negligence in Pruchnic’s attempted surgical repair of
his scaphoid bone, leaving him with permanent pain and impairment of his
wrist. The jury unanimously found Pruchnic and Eastern Maine Medical Center
negligent and awarded damages of $2,000,000.1 Pruchnic moved for a new
trial, or in the alternative, remittitur, on the ground that the jury verdict was
excessive. The Superior Court denied Pruchnic’s motion. This appeal followed.
II. DISCUSSION
[¶7] Pruchnic argues that he was entitled to a new trial, or in the
alternative, remittitur, on the ground that the jury awarded excessive damages.
Pruchnic also argues that the trial court erred by giving a jury instruction
pursuant to Lovely v. Allstate Ins. Co., 658 A.2d 1091 (Me. 1995), admitting only
redacted portions of radiology reports, and instructing the jury to disregard
mentions of workers’ compensation.
1 The trial court instructed the jury, by agreement, that Pruchnic’s employer, Eastern Maine
Medical Center, was liable for any negligence that it found on the part of Pruchnic.
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A. Excessive Damages
[¶8] The assessment of damages “is the responsibility of the jury and
generally its judgment must stand. However, the trial court may intervene to
set aside an excessive verdict if the moving party is able to demonstrate that
the jury acted under some bias, prejudice, or improper influence, or has made
some mistake of fact or law.” Seabury-Peterson v. Jhamb, 2011 ME 35, ¶ 18,
15 A.3d 746 (alteration and citation omitted) (quotation marks omitted).
Because the trial court has the opportunity to observe the trial, “it is in a far
better position than an appellate court to determine whether the damages are
rationally supported by the evidence and whether the jury had an improper
motive for awarding excessive damages.” Id. ¶ 19. Accordingly, we review a
trial court’s refusal to grant a new trial or remittitur based on an allegedly
excessive jury verdict for a clear and manifest abuse of discretion. See Marston
v. Newavom, 629 A.2d 587, 593 (Me. 1993).
[¶9] In reviewing a claim that a jury verdict is excessive, the trial court
first “examines the evidence in the light most favorable to the verdict” to
determine if the verdict bears a rational relationship to the evidence.
Seabury-Peterson, 2011 ME 35, ¶ 19, 15 A.3d 746. A rational relationship exists
if there is any competent evidence in the record to support the verdict. See
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Bourette v. Dresser Indus., Inc., 481 A.2d 170, 174 (Me. 1984). If no rational
relationship exists between the evidence in the record and the damages award,
then the trial court must evaluate the jury’s basis for awarding the allegedly
excessive damages. See Seabury-Peterson, 2011 ME 35, ¶ 19, 15 A.3d 746. If an
excessive award stems from an improper basis, “such as passion or prejudice,
a new trial is the appropriate remedy.” Id. However, when the excessive award
stems from a good faith mistake, remittitur to the maximum amount that
rationally could be found by a jury is the appropriate remedy. Id.[¶10] Contrary to Pruchnic’s contentions, there is competent evidence in
the record to support the trial court’s determination that there was a rational
relationship between that evidence and the jury’s damage award. Due to
Pruchnic’s negligence, three bones were removed from Nason’s wrist, leaving
him permanently and significantly impaired. This impairment has caused
demonstrated changes in Nason’s daily life and activities. Nason has further
experienced emotional distress based on a fear of unemployability should he
lose his job and a reduced self-worth due to his inability to engage in activities
as he did before the surgery performed by Pruchnic. Moreover, because of the
impairment, Nason was required to take a new position at work, resulting in
the loss of significant overtime wages.
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[¶11] Because the court could reasonably determine that the evidence
bears a rational relationship to the jury’s award of $2,000,000, it was not a clear
and manifest abuse of discretion for the court to deny Pruchnic’s motion for a
new trial, or in the alternative, remittitur.2 We may not intervene merely
because of the amount of the award or because another jury may have awarded
less. See Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 122
(Me. 1970). This is particularly true where, as here, the jury was given a general
verdict form, making it impossible to specifically determine the components of
damages assessed by the jury that led to the overall verdict. See Withers v.
Hackett, 1999 ME 117, ¶ 8, 734 A.2d 189 (“Where damages cannot be
specifically calculated from the record and are based on the subjective
judgment of the fact finder, the issue is properly one for a jury.”).
B. The Lovely Jury Instruction
[¶12] Pruchnic next contends that it was error for the trial court to give
a jury instruction pursuant to Lovely v. Allstate Ins. Co., 658 A.2d 10912 As an additional argument for a new trial, Pruchnic contends that the trial court’s exclusion of
references to Nason’s smoking in his medical records was error. Pruchnic argues that had the jury
been apprised of Nason’s smoking, the jury would not have awarded such significant damages
because smoking shortens a person’s life expectancy and reduces the person’s ability to heal from
trauma. However, Pruchnic failed to designate an expert to testify on the issue, and despite objecting
to the court’s redaction of the medical records, failed to provide an argument as to why the evidence
was relevant and admissible or an offer of proof to preserve his objection. See M.R. Evid. 103(a)(2);
State v. Williams, 462 A.2d 491, 492 (Me. 1983). Thus, we find no abuse of discretion in the trial
court’s exclusion of this evidence or denial of a new trial based on its exclusion.
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(Me. 1995), because the evidence adduced at trial did not warrant such an
instruction. A trial court must give the jury instructions that are generated by
the evidence presented in the case. See Bratton v. McDonough, 2014 ME 64,
¶ 20, 91 A.3d 1050. We will not disturb a judgment on the ground that a jury
instruction was given in error unless, viewing the jury instructions in their
entirety, the “instructions fail to inform the jury correctly and fairly in all
necessary respects of the governing law.” Niedojadlo v. Cent. Me. Moving
& Storage Co., 1998 ME 199, ¶ 8, 715 A.2d 934. When, as here, an objection to
the trial court’s jury instructions is properly preserved, “we will vacate the
[trial] court’s judgment only if the erroneous instruction resulted in prejudice.”
Caruso v. Jackson Lab., 2014 ME 101, ¶ 12, 98 A.3d 221.
[¶13] In Lovely, we explained that the “single injury rule places any
hardship resulting from the difficulty of apportionment on the proven
wrongdoer and not on the innocent plaintiff.” 658 A.2d at 1093; see also
Palleschi v. Palleschi, 1998 ME 3, ¶ 3, 704 A.2d 383 (“Our decision in Lovely
. . . makes clear the policy choice that, as between an innocent victim and a
tortfeasor, the law burdens the wrongdoer with the difficulties of
apportionment.”). “The issue of apportionment will be present whenever the
defendant, in response to the damage claimed, produces evidence of a
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preexisting or subsequent injury which the defendant asserts is the cause of
some portion of the plaintiff’s problems.” Lovely, 658 A.2d at 1094 (Lipez, J.,
concurring).
[¶14] The evidence presented to the jury, including that presented by
Pruchnic, raised the issue of apportionment such that a Lovely instruction was
appropriate. In his opening statement, Pruchnic pointed out that “there were
other abnormalities in [Nason’s] wrist which have nothing to do with the
screw.” Pruchnic’s expert testified that the extent of injury to Nason’s wrist
could be due to wear and tear from an active life, degenerative changes, and the
potential trauma from having multiple surgeries. On cross-examination of the
surgeon who removed the screw from Nason’s wrist, Pruchnic developed
testimony that the damage to Nason’s wrist could have been due to early
arthritis or trauma from the surgery. Finally, during closing arguments
Pruchnic stated that “there’s other things going on in Mr. Nason’s hand in
different areas of the wrist,” and that there was “evidence of cysts and a
degenerative process even before the screw [was] placed.” The evidence and
arguments presented by Pruchnic raised the issue of a preexisting or
subsequent injury causing at least some portion of Nason’s problems. See id.Thus, it was not error for the court to instruct the jury pursuant to Lovely.
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C. Radiology Reports
[¶15] Pruchnic also argues that he was prejudiced by the trial court’s
redaction of several radiology reports in which the radiologists offered
opinions as to potential causes of Nason’s wrist problems based on their review
of Nason’s imaging studies. Pruchnic asserts that the records were admissible
in their entirety pursuant to 16 M.R.S. § 357 (2018), or, alternatively, as facts
forming the basis of an expert’s opinion and statements made for medical
diagnosis and treatment. See M.R. Evid. 703, 803(4).
[¶16] Section 357, in its relevant part, states that
[r]ecords kept by hospitals and other medical facilities licensed
under the laws of this State . . . shall be admissible[] as evidence in
the courts of this State so far as such records relate to the treatment
and medical history of such cases and the court shall admit copies
of such records, if certified by the persons in custody thereof to be
true and complete, but nothing therein contained shall be
admissible as evidence which has reference to the question of
liability.
16 M.R.S. § 357.
[¶17] Section 357 “provides a method of authenticating the hospital
records and provides an exception to Rule 802 of the Maine Rules of Evidence,
which, as a general matter, bars the admission of hearsay evidence.” State v.
Jones, 2019 ME 33, ¶ 12, --- A.3d ---. However, this does not “override the
application of other Maine Rules of Evidence not pertaining to hearsay.” Id.10
¶ 13; see also State v. Caron, 2011 ME 9, ¶ 15, 10 A.3d 739 (“Medical records
may, and often must, be admitted in redacted form. . . .”); Cyr v Hurd, 554 A.2d
345, 346-47 (Me. 1989). Rather, “for the proper admission of a hospital record
pursuant to section 357, the party offering the record must (A) establish that
the report is relevant to the matter before the court; (B) satisfy the
requirements of section 357; and (C) establish that the Maine Rules of Evidence
do not otherwise require the exclusion of the medical record.” Jones, 2019 ME
33, ¶ 14, ---A.3d --- (internal citations omitted).
[¶18] Here, there is no doubt that the documents at issue were medical
records and were properly authenticated. Therefore, the section 357 exception
to the hearsay rules applied to any parts of the documents that were related to
treatment and medical history.3 See id. ¶ 15.
[¶19] Even though the radiologists reports were medical records within
the purview of section 357, the court excluded the reports as the opinions of
nondesignated experts. See M.R. Evid. 702; State v. Marden, 673 A.2d 1304,
1311 n.5 (Me. 1996) (stating that “opinion testimony that . . . is not within the
common knowledge of an ordinary person . . . may not be given by a lay
3 Because, in accordance with section 357, the medical records are not subject to the general rule
that excludes hearsay, we do not reach Pruchnic’s other arguments as to whether the records could
be admissible pursuant to an exception to the hearsay rule.
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witness”). The portions of the records that Pruchnic sought to admit were the
statements of nontreating and nontestifying radiologists offering their expert
opinions as to potential causes of visual findings. Because Pruchnic failed to
designate the radiologists as experts, the court acted correctly in excluding,
without reference to section 357, those portions of the records containing the
undesignated expert witnesses’ opinions. See Mitchell v. Kieliszek, 2006 ME 70,
¶ 19, 900 A.2d 719 (“We have consistently held that it is an appropriate
exercise of the trial court’s discretion to exclude expert testimony when the
party seeking to elicit the opinion failed to designate the witness as an expert
. . . .”); M.R. Civ. P. 16A(a), (b).
D. Worker’s Compensation
[¶20] Lastly, Pruchnic argues that the trial court erred by instructing the
jury to disregard all references to workers’ compensation after allowing those
references to be made throughout the trial. This, Pruchnic argues, confused the
jury and allowed Nason a double recovery.
[¶21] Pruchnic did not object to the testimony regarding workers’
compensation, nor did he object to the jury instruction given by the court.
“When the claimed error has not been preserved, we review the instruction for
obvious error.” Morey v. Stratton, 2000 ME 147, ¶ 10, 756 A.2d 496. An error
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is obvious only when it “constitutes such a serious injustice that reversal is
necessary because we could not in good conscience let the judgment stand.”
Coyne v. Peace, 2004 ME 150, ¶ 14, 863 A.2d 885.
[¶22] The collateral source doctrine typically precludes the admission of
evidence of workers’ compensation because “a plaintiff who has received
compensation for [his] damages from sources independent of the tortfeasor
remains entitled to a full recovery [from the tortfeasor].” Grover v. Boise
Cascade Corp., 2004 ME 119, ¶ 24, 860 A.2d 851 (quotation marks omitted).
However, such evidence “may be admissible for purposes other than mitigation
of damages that are recoverable from the tortfeasor.” Id. Where evidence of a
collateral source comes to the attention of the jury, “[a] curative instruction is
often sufficient to avert the danger of prejudice . . . .” Theriault v. Swan, 558 A.2d
369, 371 (Me. 1989).
[¶23] Here, the only references to workers’ compensation were elicited
to explain why Nason left Pruchnic’s care. The court, in response, instructed
the jury that it must “completely disregard” references to workers’
compensation, and that it “may not consider what benefits were received, what
they amounted to, or what rights existed based upon the payment of those
benefits.” We must assume that the jury followed the court’s instruction, which
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was straight-forward and—contrary to Pruchnic’s assertion—not confusing.
See id.; State v. Franzen, 461 A.2d 1068, 1073 (Me. 1983) (“We cannot presume
that the jury was too ignorant to comprehend the law given to them in [the]
case and to apply the same to the facts . . . .”). Therefore, we find no obvious
error in the court’s workers’ compensation jury instruction.
The entry is:
Judgment affirmed.
Ernest J. Babcock, Esq. (orally), Adria Y. LaRose, Esq., and Janna Gau, Esq., Eaton
Peabody, Bangor, for appellants Timothy Pruchnic and Eastern Maine Medical
Center
Jodi L. Nofsinger, Esq. (orally), and Taylor A. Asen, Esq., Berman & Simmons,
P.A., Lewiston, for appellee Robbie M. Nason
Penobscot County Superior Court docket number CV-2015-137
FOR CLERK REFERENCE ONLY