Burnette v. Eubanks

No. 112,429
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
VERNON A. BURNETTE and GAIL BURNETTE,
as the Heirs-at-Law of
VERNON "JOEL" BURNETTE, Deceased,
and VERNON A. BURNETTE, as the Personal Representative of the Estate of
VERNON "JOEL" BURNETTE, Deceased,
Appellees,
v.
KIMBER L. EUBANKS, M.D.,
and
PAINCARE, P.A.,
Appellants.
SYLLABUS BY THE COURT
1.
A party who contributes to a wrongful death is a cause of that death as
contemplated by the wrongful death statute.
2.
The wrongful death statute expresses the policy that a party can recover for
wrongful death. The law of comparative negligence controls how that party can recover
for wrongful death.
3.
Recognizing that there are many forces that can create harm in a single incident,
the legislature embraced comparative negligence as a means for just compensation for
negligent wrongs.
1
4.
By directing the imputation of a decedent's fault to the party claiming wrongful
death damages, it is clear that the legislature intended that wrongful death recovery
should be governed by comparative fault principles.
5.
The wrongful death statute and the statutes dealing with comparative negligence
must be interpreted with a view of making them work in harmony in order to achieve the
goals of both pieces of legislation.
6.
Kansas follows the traditional concept of proximate cause, i.e., individuals are not
responsible for all possible consequences of their negligence but only those consequences
that are probable according to ordinary and usual experience.
7.
"Proximate cause" is that cause which in natural and continuous sequence,
unbroken by an efficient intervening cause, produces the injury and without which the
injury would not have occurred, the injury being the natural and probable consequence of
the wrongful act.
8.
A party preserves an instruction error claim on appeal by timely objecting at trial
and by stating the grounds for the objection.
9.
When raising new grounds challenging an instruction, the issue is treated as a
failure to object to the instruction and clear error analysis applies.
2
10.
A clear error determination must review the impact of the erroneous instruction in
light of the entire record including the other instructions, counsel's arguments, and
whether the evidence is overwhelming.
Appeal from Johnson District Court; PAUL C. GURNEY, judge. Opinion filed May 27, 2016.
Affirmed.
Steven C. Day and Christopher S. Cole, of Woodard, Hernandez, Roth & Day, LLC, of Wichita,
and Bruce Keplinger and Christopher Lucas, of Norris & Keplinger, LLC, of Overland Park, for appellants.
John M. Parisi, Scott E. Nutter, and Daniel A. Singer, of Shamberg, Johnson & Bergman
Chartered, of Kansas City, Missouri, and Michael W. Blanton, of Blanton Law Firm, of Evergreen,
Colorado, for appellees.
Before GARDNER, P.J., HILL and POWELL, JJ.
HILL, J.: In the third year of the pendency of his medical malpractice lawsuit, Joel
Burnette killed himself. His heirs and his estate are now pursuing a wrongful death claim.
They received a money judgment after a jury found a doctor, Kimber Eubanks, M.D., and
a clinic, PainCARE, P.A., negligent.
The doctor and the Clinic appeal, contending the trial court improperly instructed
the jury because its causation instruction said: "A party is at fault when he or she is
negligent and that negligence caused or contributed to the event which brought about the
claim(s) for damages." In their view, this instruction is erroneous when applied to
wrongful death cases because the statute authorizing wrongful death claims only states
"caused" and does not use the phrase "contributed to."
3
Recovery for negligence in Kansas is governed by principles of comparative
negligence. We hold that in wrongful death claims, one who contributes to a wrongful
death is a cause of that death as contemplated by the wrongful death statute. We reject
any construction of the wrongful death statute to mean that only those who are the sole
cause of a wrongful death can be pursued for damages under the wrongful death statute.
We must also address questions of the admissibility of certain opinion evidence
and the request for a certain type of damage. Additionally, we examine the propriety of
allowing an exhibit to be taken back with the jury during its deliberations and a brief
reference to insurance made during the voir dire examination of potential jurors. In the
end, we affirm.
Joel sought relief at a pain clinic.
In May 2008, Vernon "Joel" Burnette sought treatment at PainCARE, P.A., for his
chronic lower back pain. We will refer to The PainCARE, P.A., as the Clinic.
Subsequently, Dr. Daniel Bruning treated Joel with steroid injections to the facet joints
on the right side of Joel's back at several thoracic and lumbar vertebrae. Dr. Bruning saw
Joel again on December 15, 2008, where he performed additional facet joint injections on
the right side, together with a piriformis muscle injection.
A little over a month later, Joel returned to the Clinic. This time Dr. Kimber
Eubanks performed an epidural steroid injection and bilateral trochanteric bursa
injections in the L5-S1 area.
On January 12, 2009, Erich Helfer, a physical therapist at the Clinic, performed a
physical therapy assessment on Joel. Helfer's notes indicated the presence of kyphosis
and edema on Joel's back between the L4 and S1 vertebrae. Kyphosis is a change in the
bony alignment of the spine itself. Edema means swelling or fluid retention in a certain
4
region of the body and can indicate the possibility of an infection. The next day, Joel
returned to see Dr. Eubanks at the Clinic. Dr. Eubanks performed an L5-S1 epidural
steroid injection on the right side of Joel's spine.
Just a week later, on January 21, 2009, Joel went to the emergency room at St.
Luke's Hospital suffering from fever, headache, and a stiff neck. Dr. Sarah Linderman
performed a lumbar puncture seeking a spinal fluid specimen, which produced green,
cloudy puss. Evidently, the epidural steroid injection to Joel's back had passed through
the edema, which was infected, causing the infection to spread. As a result, Joel
contracted bacterial meningitis—an inflammation of the meninges covering the spinal
cord. This developed into arachnoiditis, an incurable disease of the central nervous
system. The arachnoiditis caused many problems for Joel. He suffered from pain, and he
had problems with his balance, bowel function, gait, and walking. It produced dizziness,
fatigue, and sexual dysfunction.
Joel seeks legal compensation.
In December 2010, Joel filed a medical negligence claim against Dr. Eubanks, Dr.
Bruning, and the Clinic alleging that the negligent treatment by all three caused his
injuries and damages. Dr. Bruning was later dismissed from the lawsuit.
Joel's negligence claims can be condensed into two theories. Dr. Eubanks was
negligent by giving Joel a lumbar steroid injection despite signs and symptoms of a
localized infection. By pushing the needle through the infection and beneath the dura, the
infection was spread into Joel's spinal fluid and resulted in arachnoiditis. The Clinic was
liable through the negligence of its employee, Erich Helfer, the therapist who was
negligent when he failed to report to Dr. Eubanks the presence of kyphosis and edema on
Joel's back. Also, the nursing staff failed to note Joel's reports of a raised or swollen area
on his lower back.
5
As the case slowly progressed, Joel committed suicide on February 12, 2013. He
left a note to his parents, which revealed that he was taking his life because he "couldn't
live one more day with this pain." Joel further stated, "I tried. So damn hard. I tried. For
three long years I tried. And now, I'm tired. So tired. Tired of the pain. Tired of the
frustration. Tired of failing. Tired. So very, very tired."
Eventually, the trial court substituted Joel's heirs—his parents—Vernon and Gail
Burnette, and his estate as successor plaintiffs in the lawsuit. They, in turn, filed an
amended petition asserting a wrongful death claim, contending that Joel committed
suicide due to pain associated with the arachnoiditis he suffered following the
substandard treatment by Dr. Eubanks and the Clinic.
Before trial, Helfer, the therapist at the Clinic, acknowledged during his deposition
that notes of his January 12, 2009, treatment of Joel, which he considered accurate,
indicated the presence of an area of kyphosis and edema on Joel's back between the L4
and S1 vertebrae. On an anatomical drawing of the back, marked as deposition exhibit 5,
Helfer drew two circles in the L4-S1 areas in which he observed kyphosis and edema on
Joel's back. Defense counsel objected on the basis of speculation but clarified that to the
extent the markings were an "approximation" there was no objection. When asked, Helfer
described a red circle he had marked on Exhibit 5 as "the circle where I, based on the
evaluation, saw the edema between L4 and S1." Helfer clarified that he remembered the
edema on Joel's back was located between L4 and S1 in terms of the upper and lower
limits of Joel's spine, but he did not recall its location laterally and the circle he had
drawn on Exhibit 5 depicting the area of edema was a "general approximation."
We recount some pertinent trial events.
Dr. Eubanks and the Clinic sought to exclude Exhibit 5 from Helfer's deposition
from admission into evidence at trial on the basis that the markings on Exhibit 5 were
6
based solely upon Helfer's review of his notes, not upon his independent recollection.
Helfer had admitted the marks he made might not have accurately shown how far the
edema extended laterally. The district court denied the motion to exclude Exhibit 5,
finding that it was not improper for Helfer to rely on his notes to mark on the drawing
and that any argument regarding how far the edema extended laterally was an argument
for the jury.
During voir dire questioning, a prospective juror made an unsolicited comment
regarding insurance. Defense counsel moved to strike the entire venire panel. The district
court removed the prospective juror, gave a limiting instruction, and denied the motion to
strike the panel. When Helfer testified at trial, Exhibit 5 from Helfer's deposition was
marked as Plaintiffs' Exhibit 114 and admitted over defense counsel's objection.
Plaintiffs' Exhibit 114 was displayed during trial and allowed to go to the jury room
during the jury's deliberations.
The jury returned a verdict finding for the Burnettes on liability, assessing 75
percent of the fault to Dr. Eubanks and 25 percent to the Clinic. No fault was attributed to
Joel. The jury awarded total damages of $2,060,317.84 (medical expenses: $465,757.84;
economic loss [lost income]: $134,560; noneconomic loss: $1,460,000) to Joel's estate,
and $820,062 (past loss [of] attention, care, and loss of a complete family: $50,000;
future loss of attention, care, and loss of a complete family: $500,000; funeral expenses:
$20,062; past noneconomic loss: $50,000; future noneconomic loss: $200,000) in total
damages to the Burnettes.
After applying the $250,000 statutory damage cap under K.S.A. 60-19a02(d) to
the jury's award of $1,460,000 for the noneconomic loss suffered by Joel's estate, the
district court entered judgment in favor of Joel's estate against Dr. Eubanks for
$637,738.38 and against the Clinic for $212,579.46. The district court entered judgment
7
in favor of the Burnettes against Dr. Eubanks for $615,046.50 and against the Clinic for
$205,015.50.
We reject the claim that one who contributes to a wrongful death is not liable for that
death.
Dr. Eubanks and the Clinic contend that the trial court must be reversed because it
instructed the jury in this case that a "party is at fault when he or she is negligent and that
negligence caused or contributed to the event which brought about the claims for
damages." In their view, that statement of the law is inaccurate when dealing with
wrongful death actions. They base their argument on K.S.A. 2015 Supp. 60-1901(a). It
simply states:
"If the death of a person is caused by the wrongful act or omission of another, an action
may be maintained for the damages resulting therefrom . . . ."
Dr. Eubanks and the Clinic argue that the wrongful death statute limits liability
only to those who cause a wrongful death and does not extend to those who contribute to
the death. Contending this is a plain language question, they argue this means such
actions must be limited to those instances when there is but one cause of the wrongful
death.
The wrongful death statute expresses the policy that one can recover for wrongful
death. The law of comparative negligence controls how one can recover for wrongful
death.
In Kansas, recovery for various types of losses is controlled by the various laws
that govern actions arising from that type of loss. Thus, motor vehicle negligence actions
are controlled by motor vehicle law. Product liability actions are controlled by the laws
dealing with product liability. Medical negligence claims are controlled by the law of
8
medical negligence. The wrongful death statute controls none of these subjects even
though death can be a result in all of those cases.
A brief review of comparative negligence law is helpful here. Its enactment took
Kansas tort law into a new direction. One of the results of enacting comparative
negligence in 1974 was that plaintiffs are now not barred from recovery for their injuries
and damages if they are negligent as they would have been in the days when the doctrine
of contributory negligence was the law of the land. Also, the doctrine of joint and several
liability among joint tortfeasors is now extinct. Under that doctrine, a joint tortfeasor
could be responsible for all of the damages even though his or her negligence was less
than that of another wrongdoer.
The new doctrine erased the old. The law was a comprehensive reform. With
comparative negligence, damages are awarded on the basis of a tortfeasor's percentage of
fault. One is responsible for the amount of harm he or she caused and not more. See
Brown v. Keill, 224 Kan. 195, 197, 580 P.2d 867 (1978).
Recognizing that there are many forces that can create harm in a single incident,
the legislature embraced comparative negligence as a means for just compensation for
negligent wrongs. Indeed, the Supreme Court has held rights and liabilities should be
determined in one action:
"[T]he Kansas comparative negligence act is a multipurpose act which goes far beyond a
basic comparison of the contributing negligence of each of the parties to the cause of an
accident or injury. The act comprehensively provides machinery for drawing all possible
parties into a lawsuit to fully and finally litigate all issues and liability arising out of a
single collision or occurrence, and apportion the amount of total damages among those
parties against whom negligence is attributable in proportion to their degree of fault.
"[W]e believe it was the intent of the legislature to fully and finally litigate all
causes of action and claims for damage arising out of any act of negligence subject to
9
K.S.A. 60-258a. The provision for determining the percentage of causal negligence
against each person involved in a negligence action contemplates that the rights and
liabilities of each person should be determined in one action." Eurich v. Alkire, 224 Kan.
236, 237-38, 579 P.2d 1207 (1978).
The comparative negligence statute, K.S.A. 2015 Supp. 60-258a(a), states:
"The contributory negligence of a party in a civil action does not bar that party or
its legal representative from recovering damages for negligence resulting in death,
personal injury, property damage or economic loss, if that party's negligence was less
than the causal negligence of the party or parties against whom a claim is made . . . ."
In fact, that statute goes on to direct that "[i]f a party claims damages for a
decedent's wrongful death, the negligence of the decedent, if any, must be imputed to that
party."
Clearly then, that statute shows the legislature intended that wrongful death
recovery should be governed by comparative fault principles. The only bar to recovery
that remains is if the decedent's negligence is greater than the causal negligence of the
other parties to the incident that resulted in the death.
Caselaw recognizes that comparative fault law applies in wrongful death cases.
See Siruta v. Siruta, 301 Kan. 757, 775, 348 P.3d 549 (2015). In addition, it applies in
wrongful death medical malpractice actions. See Maunz v. Perales, 276 Kan. 313, 326,
76 P.3d 1027 (2003).
Dr. Eubanks and the Clinic invite us to err. If we were to agree with them, it would
mean, in a practical sense, that there could never be any recovery for a wrongful death
when there are complex facts and several different forces are engaged in an incident that
results in death. Accumulated wrongs can cause a death just as surely as one.
10
Does this mean only one tortfeasor can be held responsible? If we were to adopt
the view urged upon us by Dr. Eubanks and the Clinic, it would. If several people
contribute to a wrongful death, none would be legally responsible because they could not
be the sole cause of death, even though all contributed to the death.
We do not share this limited view of the wrongful death statute that isolates it
from our primary system of recovery for negligence—comparative fault. Dr. Eubanks
and the Clinic ask us to ignore 30 years of precedent and reverse the district court. This
we will not do.
We must interpret the wrongful death statute and those dealing with comparative
negligence with a view of making them work in harmony in order to achieve the goals of
both pieces of legislation. When construing statutes to determine legislative intent, we do
so with a view of reconciling and bringing all provisions into workable harmony if
possible. Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d
1255 (2013).
A look at the language used here persuades us further to reject Dr. Eubanks'
theory. Black's Law Dictionary 265 (10th ed. 2014) defines contributing cause as "a
factor that—though not the primary cause—plays a part in producing a result." If we
employ that definition in this case, the jury must have concluded that the negligence of
the Clinic employees and the negligence of Dr. Eubanks were contributing causes. That
is, both played a part in producing the arachnoiditis which led to Joel's death.
We hold that a contributing cause is a cause as the term is used in the wrongful
death statute, K.S.A. 60-1901. In other words, if your negligence contributes to the cause
of death and it is foreseeable, then you can be held liable for that death in proportion to
your percentage of fault.
11
We see no error in the jury instruction used by the court on this point.
Dr. Eubanks asserts that the district court erred by using language from PIK Civ.
4th 105.01 in Instruction No. 11 which defined the causation element for the Burnettes'
medical malpractice claim seeking wrongful death damages. He acknowledges that the
issue presented here on appeal only "involves the legal appropriateness of the
instruction." Thus, this issue centers solely on whether Instruction No. 11 accurately
stated the law.
Appellate courts employ a four-step inquiry when addressing challenges to jury
instructions. First, this court exercises unlimited review over questions of appellate
jurisdiction and issue preservation. Second, we have unlimited review to determine
whether the instruction was legally appropriate. Third, if this court finds the instruction
was legally appropriate, we look to the record in the light most favorable to the
requesting party to determine whether sufficient evidence supported giving the
instruction. Finally, if the district court erred, we determine whether the error was
harmless under State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct.
1594 (2012). See Foster v. Klaumann, 296 Kan. 295, 301-02, 294 P.3d 223 (2013).
Basically, a trial court is required to give an instruction supporting a party's theory
of the case if there is sufficient evidence supporting the theory. Puckett v. Mt. Carmel
Regional Med. Center, 290 Kan. 406, 419, 228 P.3d 1048 (2010). This means that in
order for the Burnettes to establish Dr. Eubanks' and the Clinic's responsibility, they had
to establish a prima facie case of negligence.
As with all negligence cases, the Burnettes' burden began with their obligation to
establish that Dr. Eubanks and the Clinic owed a duty to Joel. See Miller v. Johnson, 295
Kan. 636, Syl. ¶ 15, 289 P.3d 1098 (2012). The district court relied on PIK Civ. 4th
123.12 (Duty of Medical Specialist) and PIK Civ. 4th 123.01 (Duty of Health Care
12
Provider) in Instruction Nos. 13 and 14, respectively, to inform the jury about the
applicable standards of care for each party and that a violation of this standard constituted
negligence.
To explain the causation element of the case to the jury, the Burnettes requested an
instruction on fault identical to Instruction No. 11 ultimately given by the district court.
Instruction No. 11 is identical to the PIK instruction's definition for "fault" found in PIK
Civ. 4th 105.01, entitled, "Comparative Fault Theory and Effect." Specifically, the
district court instructed the jury: "A party is at fault when he or she is negligent and that
negligence caused or contributed to the event which brought about the claim(s) for
damages." (Emphasis added.)
The Notes on Use to PIK Civ. 4th 105.01 state: "This instruction should be used
in every comparative fault case." Instruction No. 12 mirrored the PIK instruction for
explaining the verdict in a comparative fault case—PIK Civ. 4th 105.03—or to which
parties the jury could assign fault—Dr. Eubanks, the Clinic, or both. The Notes on Use
for this PIK instruction state that this instruction "applies to all causes of action where
there is a question of more than one of the parties being negligent." PIK Civ. 4th 105.03,
Notes on Use.
A legally appropriate instruction fairly and accurately states the applicable law
when viewed in isolation and is supported by the particular facts of the case. Dickerson v.
Saint Luke's South Hospital, Inc., 51 Kan. App. 2d 337, 348, 346 P.3d 1100 (2015)
(citing State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 [2012]). This court exercises
unlimited review when deciding whether the instruction was legally erroneous. See
Foster, 296 Kan. at 301.
Dr. Eubanks points out that the wrongful death statute, K.S.A 60-1901, speaks in
terms of "caused" and does not specifically use the phrase "caused or contributed." That
13
statute provides: "If the death of a person is caused by the wrongful act or omission of
another, an action may be maintained for the damages resulting therefrom if the former
might have maintained the action had he or she lived . . . ." (Emphasis added.) K.S.A 60-
1901.
In his challenge to Instruction No. 11, Dr. Eubanks argues that the PIK Civil
Advisory Committee's decision to include the word "contributed" in the definition of fault
resulted in "a fatally flawed statement of the rules of proximate cause" in wrongful death
cases arising from allegations of medical malpractice. This is based on the fact that the
verb "contributed" is not used in the wrongful death statute; only the verb "caused" is
used.
Some legal base points need to be set here. Kansas follows the traditional concept
of proximate cause, i.e., "individuals are not responsible for all possible consequences of
their negligence, but only those consequences that are probable according to ordinary and
usual experience." Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008); accord Sly v.
Board of Education, 213 Kan. 415, 424, 516 P.2d 895 (1973).
Kansas appellate courts have consistently defined "proximate cause" as that cause
which "in natural and continuous sequence, unbroken by an efficient intervening cause,
produces the injury and without which the injury would not have occurred, the injury
being the natural and probable consequence of the wrongful act." Idbeis v. Wichita
Surgical Specialists, 285 Kan. 485, 499, 173 P.3d 642 (2007).
This traditional statement of proximate cause incorporates concepts that fall into
two categories: causation in fact and legal causation. See, e.g., Corder v. Kansas Board
of Healing Arts, 256 Kan. 638, 655, 889 P.2d 1127 (1994); Hammig v. Ford, 246 Kan.
70, 72, 785 P.2d 977 (1990). To prove causation in fact, a plaintiff must prove a cause-
and-effect relationship between a defendant's conduct and the plaintiff's loss by
14
presenting sufficient evidence from which a jury could conclude that more likely than
not, but for the defendant's conduct, the plaintiff's injuries would not have occurred. See
Baker v. City of Garden City, 240 Kan. 554, 559, 731 P.2d 278 (1987).
To prove legal causation, the plaintiff must show that it was foreseeable that the
defendant's conduct might create a risk of harm to the victim and that the result of that
conduct and contributing causes were foreseeable. Puckett v. Mt. Carmel Regional Med.
Center, 290 Kan. 406, 421, 228 P.3d 1048 (2010).
That is what the Burnettes proved here—causation in fact and legal causation. The
ultimate question the jury had to decide here was whether Joel's death was a result of Dr.
Eubanks' negligence, the Clinic's negligence, or both. The Burnettes alleged two parties
were at fault. Certainly then, within the context of the jury's assessment of comparative
fault, the use of the word "contributed" is appropriate. We are mindful that the jury here
could have found Dr. Eubanks caused the wrongful death and set his fault at 100 percent
or the Clinic at 100 percent. Instead, the jury assessed fault at 75/25 percent, respectively.
With these principles of the law of proximate cause in view, we fail to see the
significance of Dr. Eubanks' argument. Every negligent act of the doctor and the Clinic
employees lead to a conclusion of cause in fact as well as legal cause. But for their
negligence, it was forseeable that Joel would have become infected. Then, due to the
infection, Joel contracted arachnoiditis and because of the arachnoiditis, Joel committed
suicide.
The fundamental rules of fault compel our rejection of Dr. Eubanks' argument on
this point. In Allman v. Holleman, 233 Kan. 781, Syl. ¶ 4, 667 P.2d 296 (1983), a
wrongful death medical malpractice action, the Kansas Supreme Court held explicitly:
"A party is at fault when he is negligent and his negligence caused or contributed to the
15
event which brought about the injury or damages for which the claim is made." This
holding mirrors the language at issue in PIK Civ. 4th 105.01.
Because Dr. Eubanks, in challenging Instruction No. 11, does not argue the
instruction was factually erroneous, i.e., whether the evidence supported comparing the
fault of himself and the Clinic, step three of the Foster analysis is not before us. See
Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) (issue
not briefed by the appellant is deemed waived and abandoned). And, given our holding
that the district court did not err in giving Instruction No. 11, we need not reach the
harmless error analysis in step four. See Siruta, 301 Kan. at 773.
The trial court did not err when it used PIK Civ. 4th 105.01 to instruct the jury.
The clinical social worker's testimony was admissible.
Dr. Eubanks claims the district court erred in allowing a clinical social worker to
testify at trial about the connection between Joel's arachnoiditis and his decision to
commit suicide. Specifically, Dr. Eubanks argues the testimony was prohibited under
K.S.A. 65-6319. We view this as a matter of trial court discretion. Manhattan Ice & Cold
Storage v. City of Manhattan, 294 Kan. 60, 70, 274 P.3d 609 (2012).
The statute Dr. Eubanks cites, K.S.A. 65-6319, did not bar the social worker's
testimony. During the pretrial conference, the district court addressed the admissibility of
the deposition testimony of Sharleen Clauser, a licensed clinical social worker. In her
deposition, Clauser testified that Joel's arachnoiditis and the associated symptoms
contributed to his suicide. Dr. Eubanks and the Clinic argued that Clauser did not have
authority under K.S.A. 65-6319 as a social worker to offer causation opinions at trial or
to testify that Joel's arachnoiditis contributed to causing his suicide. The district court
found that Clauser's testimony was admissible because the act of committing suicide was
16
not a medical condition and K.S.A. 65-6319 "talks about diagnosing and treating, not
rendering opinion."
K.S.A. 65-6319 actually calls upon the worker to continue treatment of patients:
"The following licensed social workers may diagnose and treat mental disorders
specified in the edition of the diagnostic and statistical manual of mental disorders of the
American psychiatric association designated by the board by rules and regulations: (a)
A licensed specialist clinical social worker . . . . When a client has symptoms of a mental
disorder, a licensed master social worker shall consult with the client's primary care
physician or psychiatrist to determine if there may be a medical condition or medication
that may be causing or contributing to the client's symptoms of a medical disorder. . . . A
licensed master social worker may continue to evaluate and treat the client until such time
that the medical consultation is obtained or waived." (Emphasis added.)
We hold that K.S.A. 65-6319 does not affect the admissibility of Clauser's
testimony in this case. In Welch v. State, 270 Kan. 229, 233-36, 13 P.3d 882 (2000), the
Kansas Supreme Court clarified that the import of K.S.A. 65-6319 was to give licensed
specialist clinical social workers the ability to diagnose and treat mental disorders and
describe any such diagnosis to the jury. Here, Clauser's testimony did not concern the
diagnosis or treatment of a mental disorder found in the manual specified by the statute.
Dr. Eubanks argues that the italicized language in K.S.A. 65-6319 above
prohibited Clauser from testifying as to whether symptoms of Joel's "long-standing
psychiatric diagnoses" may be associated with a medical condition or Joel's suicide. Dr.
Eubanks points to no authority to support his claim that suicide is a medical condition.
And the statute certainly does not bar her testimony.
The jury was free to weigh Clauser's opinion and any other evidence offered at
trial regarding Joel's quality of life in deciding whether Joel's arachnoiditis caused by Dr.
17
Eubanks' and the Clinic's negligence subsequently caused or contributed to Joel's suicide.
If, as Dr. Eubanks suggests, Joel's history of medical and psychiatric illness that predated
the alleged medical malpractice here might have played a role in his suicide, Dr. Eubanks
and the Clinic were not prevented by the admission of Clauser's testimony from asking
the jury to take into account Joel's mental health history when determining fault. See
Maunz v. Perales, 276 Kan. 313, 76 P.3d 1027 (2003).
The district court did not abuse its discretion in finding Clauser's testimony
admissible. We turn to the issue of the necessity of expert testimony.
Because there was expert testimony admitted in this case, we need not address the issue
raised by Dr. Eubanks.
Dr. Eubanks asserts that the Burnettes were required to show with expert
testimony that Joel's suicide was caused by the claimed medical negligence here. He
questions the reliability of Wozniak v. Lipoff, 242 Kan. 583, 750 P.2d 971 (1988), a prior
case that rules to the contrary. Dr. Eubanks contends the ruling in Wozniak is simply
wrong.
We need not rule on this claim. Dr. Eubanks acknowledges that Dr. Steven Simon
testified at trial that the pain Joel suffered as the result of his arachnoiditis contributed to
cause his suicide. Also, Clauser testified that the pain and disabilities that resulted from
Joel's arachnoiditis contributed to cause Joel's suicide. Thus, there was expert testimony
here.
Additionally, the jury could consider Joel's own anguished words that most
eloquently spoke of his continuing pain that led him to take his own life.
18
We will not alter the damage award in this case.
Dr. Eubanks raises two arguments when challenging the Burnettes' wrongful death
claim. He contends the phrase "loss of a complete family" in Instruction No. 19 was not
legally appropriate, and he claims there was insufficient evidence to support the district
court's decision to instruct the jury on the Burnettes' claim for economic damages under
Wentling v. Medical Anesthesia Services, P.A., 237 Kan. 503, 701 P.2d 939 (1985).
A party preserves an instruction error claim on appeal by timely objecting at trial
and by stating the grounds for the objection. See K.S.A. 2015 Supp. 60-251(c)(1),
(c)(2)(A), and (d)(1)(A). We question whether Dr. Eubanks has preserved these issues for
review.
Instruction No. 19 told the jury it could consider the following categories of
economic damages: "Loss of attention, care, and loss of a complete family." Instruction
No. 19 clarified that for these economic damages the jury "should allow an amount that
you believe would be equivalent to the benefit plaintiffs Vernon and Gail Burnette could
reasonably have expected to receive from the continued life of the deceased."
At the instruction conference, Dr. Eubanks and the Clinic objected to the district
court giving Instruction No. 19 on the basis that there was insufficient evidence to
support Wentling damages. Specifically, defense counsel stated, "Our objection is that it
submits Wentling damages. And we think under the Wentling and subsequent cases that
evidence needs to be presented, that was not presented in this case, to justify Wentling
damages, which would be a financial loss beyond a noneconomic loss to the parents."
Based on this objection, Dr. Eubanks has only preserved one of his arguments for
appellate review.
19
Dr. Eubanks has not preserved his argument challenging the inclusion of the
phrase "loss of a complete family" in Instruction No. 19. The objection did not refer to
the phrase "loss of a complete family," nor did Dr. Eubanks or the Clinic argue, as they
do here, that the inclusion of this language was error.
When raising new grounds challenging an instruction, the issue is treated as a
failure to object to the instruction and clear error analysis applies. State v. Cameron, 300
Kan. 384, 388, 329 P.3d 1158 (2014). Consequently, while we will review Dr. Eubanks'
"loss of a complete family" argument to determine whether the instruction was legally
appropriate, we will only reverse based on this argument if we find clear error. In other
words, if we find error we must be firmly convinced the jury would have reached a
different verdict (or award) without the error. See Siruta, 301 Kan. at 774. Finally,
because Dr. Eubanks preserved the Wentling argument, we will reverse if there is an error
under Wentling and a reasonable probability that the error affected the outcome of the
trial (or award) in light of the entire record. Siruta, 301 Kan. at 773.
Dr. Eubanks argues that Instruction No. 19 was improper because "loss of a
complete family" is not a compensable category of economic damages in wrongful death
actions in Kansas. He contends it does not fairly and accurately state the applicable law.
See Foster, 296 Kan. at 308.
The district court instructed the jury that it could award both economic and
noneconomic damages. Instruction No. 19 provided:
"Economic damages include:
1. Loss of attention, care, and loss of a complete family.
2. Reasonable funeral expenses.
For item 1 above, you should allow an amount that you believe would be
equivalent to the benefit plaintiffs Vernon and Gail Burnette could reasonably
have expected to receive from the continued life of the deceased.
20
"Noneconomic damages include:
1. Mental anguish, suffering, or bereavement.
2. Loss of society, loss of comfort, or loss of companionship.
For noneconomic damages, there is no unit value and no mathematical formula
the court can give you. You should allow an amount that you find to be fair and
just under all the facts and circumstances."
Dr. Eubanks argues this issue is controlled by Howell v. Calvert, 268 Kan. 698, 1
P.3d 310 (2000). In Howell, the plaintiff, in an action for wrongful death and damages for
personal injuries arising out of a traffic accident, appealed in part from the district court's
refusal to instruct the jury on the plaintiff's theory of economic damages. The jury
instruction on noneconomic damages followed PIK Civ. 3d 171.32, "Wrongful Death of
A Child," defining nonpecuniary loss. The plaintiff sought an instruction on economic
loss that included damages for "loss of the value of a continued family relationship
through the existence of a living child" and "loss of enjoyment and entertainment."
The Kansas Supreme Court in Howell held that the economic damages sought for
loss of "continued family relationship" and "loss of enjoyment and entertainment" were,
in fact, noneconomic damages. Relying on how PIK Civ. 3d 171.32 categorized and
defined economic and noneconomic losses, the court stated:
"Without explicitly saying so, [plaintiff] advocates a change in the law.
'Continued family relationship' and 'loss of enjoyment and entertainment' are strikingly
similar to loss of society, comfort or companionship-nonpecuniary damages. By
requesting that the pecuniary damage instruction include these items, [plaintiff's]
requested instruction goes beyond the traditional definition of pecuniary loss." 268 Kan.
at 707.
In finding that the district court did not err, the Howell court found that the district
court's instruction following PIK Civ. 3d 171.32 for the plaintiff's claim of economic
damages for "[l]oss of services, attention, care, protection, and advice and counsel" was
21
consistent with the PIK instruction and caselaw. 268 Kan. at 707-08. Specifically, the
court cited Wentling, 237 Kan. 503, and Cerretti v. Flint Hills Rural Electric Co-op.
Ass'n, 251 Kan. 347, 365, 837 P.2d 330 (1992). Howell, 268 Kan. at 708.
In response to this argument, the Burnettes point to both Cerretti and the Kansas
federal court ruling found in Griffith v. Mt. Carmel Medical Center, 842 F. Supp. 1359
(D. Kan. 1994), as authority for the inclusion of loss of complete family economic
damages. We will examine both cases.
In Cerretti, the Kansas Supreme Court upheld a jury's award of pecuniary
damages to the children of a deceased mother after letting stand jury instructions
indicating that economic loss included
"loss of services, attention, parental care, advice and protection, loss of their
mother's nurturing, loss of the educational assistance of their mother, loss of the counsel
and advice of their mother, loss of the moral training and guidance of their mother, loss of
the value of a complete family, and loss of financial support which [the mother] would
have provided during the children's minority." (Emphasis added.) 251 Kan. at 365.
In Griffith, the federal court found that under Kansas law damages for "loss of
nurturing, loss of moral training and guidance, loss of educational assistance, and loss of
the value of a complete family" were economic in nature. 842 F. Supp. at 1368-69. Citing
to the holding in Cerretti, 251 Kan. at 366, allowing a jury instruction on economic
damages for "loss of the value of a complete family," the federal court thought the
Kansas Supreme Court intended to do what it did:
"[o]ne must ask why the court found it necessary to even mention the trial court's
instruction on what constitutes pecuniary damages. Surely, if the court, having reviewed
the trial court's pecuniary damages instruction, believed that it erroneously included
elements of nonpecuniary damages, the court would have said so. This court must assume
22
that the Kansas Supreme Court was mindful that by repeating the trial court's instruction
and deciding not to disturb the jury's pecuniary damages award, it was casting favor upon
the use of that instruction in future cases in Kansas district courts as well as diversity
actions in this court." 842 F. Supp. at 1368.
We are not persuaded that the Burnettes' position on this is correct. First, Cerretti
and Griffith predate Howell, which clearly was not casting favor on economic damages
for loss of a complete family when the jury is similarly instructed on noneconomic
damages. Second, there is no indication in Cerretti whether the instruction on
noneconomic damages in that case raised the same concern as the one in Howell where
the jury was also instructed it could award loss of society, comfort, or companionship
noneconomic damages. Third, Griffith is distinguishable because the plaintiff had
dismissed any claim for nonpecuniary damages. Thus, in rejecting the argument that it
was improper to include "loss of the value of a complete family" in a wrongful death
damages instruction and finding such damages consistent with Wentling, the concern in
Howell was not before the federal court. 842 F. Supp. at 1369.
Here, the same concern as that in Howell about the repetitive nature of the
economic and noneconomic instructions is present. Instruction No. 19 included a claim
for "[l]oss of attention, care, and loss of a complete family" economic damages and
"[l]oss of society, loss of comfort, or loss of companionship" noneconomic damages.
More importantly, Instruction No. 19, with the inclusion of the phrase, "loss of a
complete family," departs from how PIK Civ. 4th 171.32 categorizes and defines
economic and noneconomic damages. Economic loss includes: "1. Loss of filial care,
attention, or protection." Nonpecuniary loss includes: "1. Mental anguish, suffering, or
bereavement," and "2. Loss of society, loss of comfort, or loss of companionship." PIK
Civ. 4th 171.32.
23
It is reasonable to interpret Howell to mean that if a jury is instructed on loss of
society, comfort, or companionship as elements of nonpecuniary damages in addition to
loss of complete family as a category of economic damages, then the ability or inability
to recover for the loss of a complete family is more properly directed to the weight of the
evidence to support the instruction, not the ability of the plaintiff to recover.
Here, the Burnettes acknowledge on appeal that the evidence they presented at
trial was only consistent with the evidence Wentling found sufficient to support a claim
for loss of attention and care. The district court might have believed its inclusion of the
"loss of a complete family" economic damages category in the instructions and verdict
form was an attempt to tailor the instructions and verdict form to reflect the evidence.
However, the evidence in the record, even if viewed in the light most favorable to the
Burnettes, does nothing to distinguish loss of a complete family economic damages from
loss of society, comfort, or companionship nonpecuniary damages. See Foster v.
Klaumann, 296 Kan. 295, 301-02, 294 P.3d 223 (2013). Just as in Howell, 268 Kan. at
707, the jury instruction goes too far.
Accordingly, the district court erred in including the language "loss of a complete
family" in Instruction No. 19.
We find no clear error in the damages instruction.
Given our determination that the inclusion of the "loss of a complete family"
component of economic damages in Instruction No. 19 was not legally and factually
appropriate, coupled with Dr. Eubanks' failure to preserve this argument, we must find
clear error under step four of our analysis in order to reverse on this point. See Siruta,
301 Kan. at 774. Accordingly, we turn to the question whether we are firmly convinced
the jury would have reached a different verdict (award) without the error. See State v.
Clay, 300 Kan. 401, 408, 329 P.3d 484 (2014). The clear error determination must review
24
the impact of the erroneous instruction in light of the entire record, including the other
instructions, counsel's arguments, and whether the evidence is overwhelming. In re Care
& Treatment of Thomas, 301 Kan. 841, 849, 348 P.3d 576 (2013). Of note, Dr. Eubanks
does not brief step four of our analytical framework—whether it was clear error to issue
Instruction No. 19. See Superior Boiler Works, 292 Kan. at 889.
As mentioned, the jury awarded $550,000 for "loss of attention, care, and loss of a
complete family." Given that the issue was not itemized separately, we have no means to
differentiate between how the jury viewed the three claims or apportioned its award.
However, reversal is not warranted, having already determined there was ample evidence
substantiated in the record to establish under Wentling that there was a close family
relationship and the pain suffered by Joel's parents is obvious. Ordinarily, reversal would
be warranted under the clear error standard if "there was no evidence at all to establish
the element of loss upon which the award in issue was based." Wentling, 237 Kan. at 511.
We are aware that we may find clear error if the award was so excessive or
contrary to the evidence that it shocks our conscience. See Wentling, 237 Kan. at 511.
This award does not shock our conscience. The award here was not so large to indicate
that it was the product of passion or prejudice. It is comparable to other cases. See
Cerretti, 251 Kan. at 365 (upholding award of $200,000 to a surviving husband and
$850,000 to three surviving children based on testimony of husband and economist,
observing "there can be no serious contention that the care, guidance, and services of a
spouse and parent lack monetary value"); Leiker v. Gafford, 245 Kan. 325, 348, 778 P.2d
823 (1989), overruled on other grounds by Martindale v. Tenny, 250 Kan. 621, 829 P.2d
561 (1992) (upholding award of $1,000,000 for economic damages in part for loss of
parental care and attention and loss of maternal training and guidance); Wentling, 237
Kan. at 514 (approving award of $761,166.64 for economic losses); Huffman v. Thomas,
26 Kan. App. 2d 685, 693, 994 P.2d 1072, rev. denied 268 Kan. 886 (1999) (upholding
award of $907,732.52 in economic damages).
25
Accordingly, while the district court should not have instructed the jury on loss of
a complete family economic damages, we are not convinced the jury would have reached
a different award. Therefore, we hold this was not clear error.
We move on to examine the factual basis for the instruction on damages.
Under the next step of our inquiry, we must determine whether sufficient evidence
supported the Burnettes' theory of economic damages. See Foster, 296 Kan. at 301. In
this context, there must be evidence supporting the Burnettes' theory of economic
damages which, if accepted as true and viewed in the light most favorable to the
Burnettes, is sufficient for reasonable minds to reach different conclusions based on the
evidence. See Foster, 296 Kan. at 302 (citing Puckett v. Mt. Carmel Regional Med.
Center, 290 Kan. 406, 419, 228 P.3d 1048 [2010]). Taking into account the erroneous
inclusion of "loss of a complete family" in Instruction No. 19, if reasonable people could
disagree over whether the Burnettes suffered damages for "[l]oss of attention, care," then
the district court should have instructed the jury to determine such damages.
In Kansas, parents have long been able to recover economic damages for the death
of a majority-age child. See Railway Co. v. Fajardo, 74 Kan. 314, 324, 86 P. 301 (1906).
The Kansas Supreme Court has defined economic or pecuniary damages as follows:
"Pecuniary damages are '[s]uch as can be estimated in and compensated by money . . . .'
[Citation omitted.]. . . Pecuniary loss or damages in a wrongful death case should be
equivalent to those pecuniary benefits or compensation that reasonably could have been
expected to have resulted from the continued life of the deceased." McCart v. Muir, 230
Kan. 618, 626, 641 P.2d 384 (1982); see Wentling, 237 Kan. at 507.
In Wentling, the Kansas Supreme Court considered in detail what kind of proof is
necessary to support an award of damages for economic loss. The Wentling case included
an instruction identifying "[l]oss of services, attention, parental care, advice, and
26
protection" as pecuniary damages. 237 Kan. at 505. Our Supreme Court clarified that a
plaintiff in a wrongful death case is not required to establish his or her economic loss
with mathematical certainty. Rather, a plaintiff may satisfy the burden of proof by
establishing the nature and extent of the losses asserted. 237 Kan. at 510. Once such
evidence is presented, the jurors are presumed to be capable of converting the losses into
monetary equivalents based on their own knowledge and experience. 237 Kan. at 510;
see Cerretti, 251 Kan. at 363 (stating that a jury is not bound by expert economic
testimony in estimating future loss); Huffman v. Thomas, 26 Kan. App. 2d at 692
(applying standard for Wentling damages).
Dr. Eubanks argues that even though Joel "had a close relationship with his
parents," the Burnettes presented no evidence of Wentling damages because the record is
devoid of "any evidence [Joel] provided services, counsel, guidance, financial support or
anything else of an economic nature." (Emphasis added.) Dr. Eubanks appears to be
asking this court to limit pecuniary damages to only those certain services that can be
equated to a specific monetary value. Dr. Eubanks, however, interprets pecuniary
damages too narrowly.
In Wentling, the Kansas Supreme Court explained that a pecuniary loss may arise
from a "'deprivation of benefits that could reasonably be expected to have been received,
originating from no more than a moral obligation.'" 237 Kan. at 509. Wentling further
clarified: "'The fact that such matters as loss of care, training, advice, guidance and
education are not readily reduced to a present money value does not mean that those
factors need not be taken into consideration.'" 237 Kan. at 509. In stressing that the
inability of the plaintiff to translate the loss of certain services or care by his wife into a
specific monetary figure was not fatal to recovery, the court considered testimony
regarding the closeness of their marriage and the extent of attention and marital care he
received from his wife that had been lost sufficient to support the award of damages.
Wentling, 237 Kan. at 513-14.
27
In Huffman, the parents brought a medical malpractice action alleging a surgeon's
negligence caused their son's death. This court considered whether the evidence was
sufficient to award $907,732.52 in pecuniary damages for separate claims of "loss of
services, loss of attention, loss of filial care, [and] loss of protection." 26 Kan. App. 2d at
693. In holding that the evidence was sufficient to support the amount of the award, this
court pointed to testimony regarding specific services or "contributions around the house"
by the son that had been lost. However, with respect to the claims for loss of attention
and care, this court noted the evidence of "the companionship" the son provided.
Specifically, this court pointed to evidence supporting "the loving relationship" between
the parents and their child, that "[t]he family spent a lot of time together," and that the
son was a "caring person." 26 Kan. App. 2d at 693.
Here, the record reveals that multiple witnesses testified that "Joel devoted great
care to his parents, that Joel engaged in numerous and regular activities with his parents,
that Joel was very attentive to the needs of his parents, and that Joel was very close to his
parents." Even Dr. Eubanks concedes on appeal that "[w]ithout question, Joel Burnette
had a close relationship with his parents" and "[n]o one doubts the closeness of the
family."
The Burnettes' evidence, which if accepted as true and viewed in the light most
favorable to them, supports their claim for pecuniary damages under Wentling. And,
while neither party attempted to place a specific dollar value on the economic damages
through expert testimony, "the triers of fact are presumed to be capable of converting the
losses into monetary equivalents on the basis of their own experience." Wentling, 237
Kan. at 514. In other words, because the jury has wide discretion in determining the
amount of an award of damages, we should be predisposed toward upholding the jury's
application of the district court's instructions. See Wentling, 237 Kan. at 511. Sufficient
evidence, therefore, supported the district court giving Instruction No. 19 on Wentling
damages.
28
We turn to the two concluding issues.
There are two final arguments brought by the Clinic and Dr. Eubanks—one deals
with a comment by a prospective juror and the other is a claim of error when the court
allowed the jury to take an exhibit back to the jury room.
During voir dire, a prospective juror made an unsolicited comment that Dr.
Eubanks and the Clinic had insurance coverage. Counsel moved to strike the entire venire
panel. The district court denied the motion but removed the prospective juror. The court
instructed the jury that it was not to consider the existence or lack of insurance during its
deliberations. The judge told the jury the existence or lack of insurance should not be
interjected at trial. Dr. Eubanks contends the district court erred when it failed to strike
the venire panel. He contends the prospective juror's inadvertent comment prejudiced the
jury's award to such an extent that it warrants reversal of the judgment. We are not so
convinced.
We view this as a matter of discretion. See Foster v. Stonebridge Life Ins. Co., 50
Kan. App. 2d 1, 25, 327 P.3d 1014 (2012).
Here is what was said:
"Honestly I feel like the insurance company with the doctors can be paying the
money. So if the doctor did anything wrong, he's really not ever going to feel the pain for
it. So ultimately it's accomplishing a zero reward because there is no benefit for some sort
of a loss of a loved one, yes, but actually I'm not sure what it is actually accomplishing.
But that is how insurance works." (Emphasis added.)
In ruling upon this motion, the trial judge patiently entertained all arguments on
the request. The court heard further arguments during the afternoon break. The court
informed the parties that it intended to instruct the jury that insurance would not be a part
29
of the case or considered. At the completion of the Burnettes' voir dire examination, the
court admonished the jury panel that it could not consider insurance:
"The existence of any insurance coverage or the lack of any insurance coverage
shall not enter into your consideration or deliberation of this case. Kansas law is very
clear on this point, and your failure to follow the law will be a violation of your sworn
duties as jurors."
The next day the judge denied Dr. Eubanks' motion to strike the venire panel,
explaining that the juror's comment was unsolicited; was made by a prospective juror
during jury selection, not by a witness in trial; and was a general statement not directed to
any particular party. The court pointed to the limiting instruction as making it clear that
any aspect of insurance is not an issue.
The collateral source rule is alive and well in Kansas. See K.S.A. 60-454; Kansas
Med. Mut. Ins. Co. v. Svaty, 291 Kan. 597, 629, 244 P.3d 642 (2010). In fact, our
Supreme Court has made it clear that the deliberate injection of insurance into trial
testimony constitutes prejudicial and reversible error. See Unruh v. Purina Mills, LLC,
289 Kan. 1185, 1198, 221 P.3d 1130 (2009). But we are not dealing with a deliberate
insertion of insurance into the issues of this case.
Historically, the Kansas Supreme Court has considered the inadvertent mention of
insurance not to be a prejudicial error. In Langley v. Byron Stout Pontiac, Inc., 208 Kan.
199, 202, 491 P.2d 891 (1971), the court considered whether a prospective juror's
question during voir dire—"'What about the insurance that we've been paying for? Isn't
that supposed to take care of these little things?'"—was prejudicial error. Noting that
there was no evidence of insurance introduced during the trial, the court held: "[w]hen
the mention of insurance during a trial is purely inadvertent and is not brought into the
case by intentional misconduct of plaintiff's counsel prejudicial error has not been
30
committed thereby." 208 Kan. at 203. This ruling has been reaffirmed in Unruh, 289 Kan.
at 1199. Unruh acknowledged that when the subject of insurance is inadvertently injected
into a trial, a district court may remedy the error by issuing a curative instruction.
Dr. Eubanks does not dispute the district court's finding that the prospective juror's
reference to insurance during voir dire was inadvertent and not solicited by counsel, nor
does he point to any other evidence in the trial that is contrary to the collateral source
rule.
Nevertheless, Dr. Eubanks asks us to depart from the ruling in Langley and Unruh
and find that prejudice can arise from an inadvertent reference to insurance during voir
dire when the verdict is challenged as excessive even if a curative instruction is given. He
cites Borth v. Borth, 221 Kan. 494, 561 P.2d 408 (1977); Bott v. Wendler, 203 Kan. 212,
453 P.2d 100 (1969); and Pool v. Day, 141 Kan. 195, 40 P.2d 396 (1935). We are not
convinced. None of these cases actually support Dr. Eubanks' position.
In Pool, the plaintiff twice voluntarily injected testimony into the case referring to
insurance. In ruling, the Kansas Supreme Court emphasized that the district court had a
duty to see the prejudicial matter did not reach the jury and stated:
"[w]hether or not objections and motions to strike out have been promptly made,
it has been held to be the duty of the trial court to carefully exclude all highly prejudicial
matter from the jury, and admonish the jury to wholly disregard the same in the hope
thereby of avoiding a mistrial or the necessity of a new trial on account of the possible
prejudice and passion created thereby in the minds of the jurors." (Emphasis added.) 141
Kan. at 200.
Indeed, the Supreme Court reversed the judgment of the district court after holding
that the plaintiff's reference to insurance was prejudicial and was likely to create passion
and prejudice and increase the amount of the verdict, which the court found was
31
excessive. Dr. Eubanks seizes upon this, arguing that the critical factor was the excessive
verdict in Pool.
Essentially, Dr. Eubanks maintains that the presence or absence of an excessive
award is dispositive in determining whether an inadvertent interjection of insurance into a
trial prejudiced and inflamed the jury against the defendant, even if the district court gave
a curative instruction. Dr. Eubanks is misreading the facts in Pool. The Supreme Court, in
discussing the two instances when the plaintiff in Pool voluntarily injected testimony of
insurance, noted that the first reference to insurance was not objected to, nor was there a
request to admonish the jury. The court then noted in the second instance, such a motion
was made and plaintiff's counsel promptly agreed, but nothing further was done in the
way of withdrawing it from the jury or admonishing the jury to disregard it. Clearly, the
impact of the curative instruction on the jury was not a question in Pool. This is evident
when the court emphasized the district court's duty to see that prejudicial matters do not
reach the jury by admonishing it. 141 Kan. at 203.
Basically, Pool stands for the proposition that irrespective of whether a party
raises an objection, if the district court does not promptly advise the jury not to consider
the matter of insurance inadvertently interjected into a trial and further instruct the jury to
that effect, it is error if the verdict is excessive. Given the district court's curative
instruction to the jury in this case, the factual scenario in Pool simply is not the same.
Besides, the ruling in Pool predates the clear holding in Langley, 208 Kan. at 203, that no
prejudicial error occurs when the mention of insurance is purely inadvertent and not
intentional.
Turning to the other two cases that Dr. Eubanks relies upon, in Bott, the Kansas
Supreme Court addressed whether the probability and fact that the defendants were
covered by liability insurance was injected into the case materially prejudiced the
defendants. During trial, witnesses had mentioned the name of a person who was an
32
insurance agent. The defendants moved for a mistrial, which was denied. Our Supreme
Court found that any reference to the defendants being covered by automobile liability
insurance was indirect, inadvertent, and within the general knowledge of the jury, so no
prejudicial error arose. 203 Kan. at 228. Dr. Eubanks hangs his hat on the following
statement about the lack of effect on the award:
"As indicated, the district court and counsel did not consider the award excessive, and
defendants have never contended the verdict was not supported by the medical evidence.
Against this background, the argument that the jury's award was accelerated by the
alleged insurance factor is not persuasive." 203 Kan. at 228.
Bott is not helpful. Like Pool, no curative instruction was given in Bott. It seems to
us that the holding in Bott is more in line with Langley, which specifically cites Bott to
support its holding regarding the nonprejudicial impact of the inadvertent mention of
insurance even without a curative instruction. See Langley, 208 Kan. at 203.
Finally, in Borth, the Kansas Supreme Court found the plaintiff's unresponsive
answer during cross-examination indicating the defendant had insurance was inadvertent
and a curative instruction admonishing the jury cured any possible prejudice. 221 Kan. at
497. The court then stated: "The size of the verdict, $9,500, is modest compared to the
actual damages of over $20,000 claimed, and the total recovery of $250,000 sought." 221
Kan. at 497. Dr. Eubanks argues that this statement in Borth indicates that our Supreme
Court finds "the presence or absence of an excessive damage award . . . important in
determining whether the jury was prejudiced and inflamed against the defendant by the
inappropriate insurance reference."
We view this follow-up statement by the Supreme Court to be dicta. Our appellate
courts since Borth have repeatedly acknowledged the principle that the inadvertent
mention of insurance may be cured by an instruction to the jury to disregard it. See
33
Unruh, 289 Kan. at 1199; Tetuan v. A.H. Robins Co., 241 Kan. 441, 479, 738 P.2d 1210
(1987); Kelty v. Best Cabs, Inc., 206 Kan. 654, 656, 481 P.2d 980 (1971); Tamplin v. Star
Lumber & Supply Co., 16 Kan. App. 2d 352, 359-60, 824 P.2d 219 (1991), aff'd as
modified 251 Kan. 300, 836 P.2d 1102 (1992).
In conclusion, we find no prejudicial error in this case from the inadvertent
mention of insurance during voir dire. The district court cured any possible prejudice
when it properly admonished the jury not to consider the existence or absence of
insurance coverage during its deliberation. We find no abuse of discretion in not striking
the venire panel.
For his ultimate issue, Dr. Eubanks claims that the district court erroneously
admitted Exhibit 114, a drawing that Helfer marked during his deposition, without
foundation or applied the wrong legal standard in determining the admissibility of the
drawing. Dr. Eubanks does not dispute that both he and the Clinic at trial only objected to
the jury viewing Exhibit 114 during its deliberations. Given this concession, the sole
question before us is whether it was error to give the jury Exhibit 114 to take back into
the jury room. The manner in which exhibits are handled at trial is within the trial court's
discretion and will not be disturbed except in cases of abuse. See State v. Fenton, 228
Kan. 658, 667, 620 P.2d 813 (1980).
In Fenton, the Supreme Court stated that once a case is submitted to the jury for
deliberations, the jury is ordinarily given the exhibits to take into the jury room where the
jurors can examine the exhibits as many times as they desire. 228 Kan. at 667. Here,
Helfer, during the course of his testimony at trial, explained the limitations of Exhibit 114
and made it clear that his marks on the exhibit were only approximations based upon his
notes from January 12, 2009. The jury had the opportunity to view Exhibit 114 and
formulate opinions during the course of Helfer's testimony and then consider Helfer's
testimony after hearing from Dr. Carl Bakken. Dr. Eubanks has not demonstrated how
34
Exhibit 114 being allowed into the jury room results in any prejudice. We find no abuse
of discretion on this point.
Affirmed.
35