Brenda Miller, as Personal Representative of the Estate of Connie Rae Scribner

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 84APRIL TERM, A.D. 2014
July 1, 2014
BRENDA MILLER, as Personal
Representative of the Estate of Connie
Rae Scribner, Deceased,
Appellant
(Plaintiff),
v.
SEAN BEYER, M.D.; and
EMERGENCY MEDICAL
PHYSICIANS, P.C.,
Appellees
(Defendants).
S-13-0204, S-13-0205
SEAN BEYER, M.D.; and
EMERGENCY MEDICAL
PHYSICIANS, P.C.,
Appellants
(Defendants),
v.
BRENDA MILLER, as Personal
Representative of the Estate of Connie
Rae Scribner, deceased,
Appellee
(Plaintiff).
Appeal from the District Court of Natrona County
The Honorable David B. Park, Judge
Representing Brenda Miller, as Personal Representative of the Estate of Connie Rae
Scribner, Deceased:
G. Bryan Ulmer, III, and Larissa A. McCalla of The Spence Law Firm, LLC,
Jackson, Wyoming; Robert M. Shively of Rob Shively, P.C., Casper, Wyoming.
Argument by Mr. Shively.
Representing Sean Beyer, M.D., and Emergency Medical Physicians, P.C.:
W. Henry Combs, III, and Andrew F. Sears of Murane & Bostwick, LLC, Casper,
Wyoming. Argument by Mr. Sears.
Before BURKE, C.J.*, HILL, DAVIS, and FOX, JJ., and GOLDEN, J. (Ret.)
* Justice Kite, who is recused from this case, was Chief Justice at time of oral argument
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
GOLDEN, Justice (Ret.).
[¶1] Brenda Miller (Plaintiff), acting as personal representative for Decedent Connie
Rae Scribner, filed a wrongful death action alleging medical malpractice against Sean
Beyer, M.D. and Emergency Medical Physicians, P.C. (collectively Defendants). The
first trial ended in a mistrial and entry of an order requiring Defendants to pay attorney
fees and costs. The second trial ended in a jury verdict in favor of Defendants.
Following the verdict in the second trial, Plaintiff moved for a new trial on grounds that
the district court improperly admitted undesignated expert testimony given by Defendant
Dr. Beyer and Defendants' retained expert. The district court denied the motion, and
Plaintiff appeals that denial. Defendants cross-appealed, challenging the district court's
order declaring a mistrial in the first trial. We affirm both district court orders.
ISSUES
[¶2] Plaintiff frames the issues for our review as follows (footnotes omitted):
Whether the district court erred when it refused to grant the
Plaintiff/Appellant's motion for a new trial based on three
independently sufficient reasons?
A. The district court improperly admitted opinion
testimony from Defendant's expert Dr. Kurt Bernhisel which,
in the interest of justice, requires a new trial;
B. The district court improperly admitted testimony
regarding CURB-65 which, in the interest of justice, requires
a new trial; and,
C. The district court improperly allowed Dr. Beyer to
offer speculative, non-designated expert testimony
concerning the BUN tests on the 21st and their relation to
sepsis which, in the interest of justice, requires a new trial.
[¶3] In their cross-appeal, Defendants state the issue on appeal as follows (footnote
omitted):
Whether the district court erred when it granted a mistrial,
and subsequently awarded fees and costs, based upon a single
unanswered question from defense counsel that, while
arguably lacking in form or timing, touched upon relevant
and admissible evidence that should have been presented to
the jury.
1
[¶4] In responding to Defendants' cross-appeal, Plaintiff presents the following
additional issue concerning the timeliness of Defendants' cross-appeal:
A. The Cross-Appellants failed to timely file their notice
of appeal as to the November 6, 2012 Order Allowing Costs
and Fees for the mistrial, which was an appealable order
because it was a [sic] "[a]n order affecting a substantial right
in an action, when such order, in effect, determine[d] the
action." Wyo. R. App. P. 105(a).
FACTS
[¶5] On October 20, 2005, Connie Rae Scribner sought treatment at the Wyoming
Medical Center emergency room. Ms. Scribner complained of a severe cough, upper
respiratory infection, and difficulty breathing. She was evaluated by Defendant Dr. Sean
Beyer, and he diagnosed her as suffering from bilateral pneumonia. While in the
emergency room, Ms. Scribner was administered intravenous antibiotics and saline,
inhalation treatments, cough medication, and Tylenol. After Ms. Scribner spent
approximately three and one-half hours in the emergency room, Dr. Beyer noted her
condition had improved and discharged her with care instructions and with prescriptions
for an antibiotic, a cough syrup with codeine, and an inhaler.
[¶6] The following afternoon, on October 21, 2005, while at home with her twenty-
year-old son and her boyfriend, Ms. Scribner stopped breathing. Ms. Scribner's son
performed CPR and an ambulance was called, but Ms. Scribner died at the hospital that
afternoon. The medical examiner found that Ms. Scribner died of "panlobar organizing
and acute pneumonia."
[¶7] On January 15, 2008, Plaintiff filed a wrongful death complaint against
Defendants.1 In general terms, Plaintiff alleged that Defendants' care of Ms. Scribner fell
below the standard of care because they failed to diagnose the seriousness of Ms.
Scribner's condition and failed to admit her to the hospital for observation and treatment.
[¶8] A first trial began on August 27, 2012. On the fourth day of the first trial, during
cross-examination of Decedent's son, defense counsel asked a question that described
Decedent as a drug addict. On August 31, 2012, Plaintiff moved for and was granted a
mistrial. On November 6, 2012, the district court entered an Order Allowing Fees and
Costs, which awarded Plaintiff approximately $60,000 for costs and fees incurred in
connection with the first trial. The orders declaring a mistrial and awarding fees and
1
The complaint also named Wyoming Medical Center as a defendant, but by the time the matter reached
trial, the only remaining defendants were Dr. Beyer and Emergency Medical Physicians.
2
costs are the subject of Defendants' cross-appeal. Additional facts related to the mistrial
will be set forth in the discussion of that issue.
[¶9] A second trial began on March 18, 2013. On April 1, 2013, the case was
submitted to the jury, and on that same date the jury returned a verdict finding no
negligence in the care and treatment of Ms. Scribner. On April 18, 2013, the district
court entered judgment on the verdict. On May 2, 2013, Plaintiff filed a motion for new
trial pursuant to Rule 59 of the Wyoming Rules of Civil Procedure. Plaintiff moved for a
new trial based on the district court's rulings that allowed testimony, over Plaintiff's
objection, by Defendant Dr. Beyer and one of Defendants' expert witnesses concerning
theories that Plaintiff contended were not disclosed during discovery. Plaintiff's motion
asserted:
On April 1, 2013, after only a few hours of
deliberations, the second jury empaneled in the above
captioned case returned a verdict finding that Dr. Beyer was
not negligent in his care and treatment of the decedent Connie
Scribner. The verdict followed nearly seven years of
litigation and two weeks of trial during which defendant and
his expert for the first time introduced new theories relating to
liability and new, undesignated, untested and unreliable
surprise opinion testimony. The theories offered by the
defendant and his "expert" were based upon an incomplete
and inadequate understanding of the very theories they
advanced. The surprise opinion testimony was amorphous
and changed repeatedly throughout the expert's sworn
testimony. The evidence confused and mislead the jury,
violated the principles behind expert disclosures, and failed to
meet the requirements of relevance and reliability that govern
expert testimony, ultimately denying the plaintiff the
opportunity for a fair trial.
[¶10] On June 25, 2013, the district court denied Plaintiff's motion for a new trial. The
court's denial of Plaintiff's new trial motion is the basis for Plaintiff's appeal. Additional
facts relevant to this issue will be set forth in our discussion of the issue.
[¶11] On July 24, 2013, Plaintiff filed her notice of appeal, and on August 6, 2013,
Defendants filed notice of their cross-appeal.
STANDARD OF REVIEW
[¶12] The question whether Defendants' appeal from the district court's order declaring a
mistrial was timely filed involves the jurisdiction of this Court and is subject to de novo
3
review. Northwest Bldg. Co., LLC v. Northwest Distrib. Co., Inc., 2012 WY 113, ¶ 26,
285 P.3d 239, 245 (Wyo. 2012); Inman v. Williams, 2008 WY 81, ¶ 10, 187 P.3d 868,
874 (Wyo. 2008).
[¶13] A district court's ruling on a motion for mistrial is reviewed for an abuse of
discretion. Dollarhide v. Bancroft, 2010 WY 126, ¶ 4, 239 P.3d 1168, 1170 (Wyo.
2010); Hannifan v. Am. Nat’l Bank of Cheyenne, 2008 WY 65, ¶ 36, 185 P.3d 679, 693
(Wyo. 2008); Terry v. Sweeney, 10 P.3d 554, 557 (Wyo. 2000). This Court likewise
reviews a district court’s decision whether to grant a new trial for an abuse of discretion.
Smyth v. Kaufman, 2003 WY 52, ¶ 13, 67 P.3d 1161, 1165 (Wyo. 2003); Richardson v.
Schaub, 796 P.2d 1304, 1308 (Wyo. 1990). We also review a district court’s rulings on
the admissibility of evidence, including whether to exclude expert testimony, for an abuse
of discretion. Black Diamond Energy, Inc. v. Encana Oil & Gas (USA), Inc., 2014 WY
64, ¶ 34, 326 P.3d 904, 913 (Wyo. 2014) ("Rulings on the admissibility of evidence are
within the sound discretion of the trial court and will not be disturbed by this Court
absent a clear abuse of discretion."); Wilson v. Tyrrell, 2011 WY 7, ¶ 50, 246 P.3d 265,
279 (Wyo. 2011) ("The question of the admissibility of evidence is primarily a question
for the trial court.").
[¶14] The following will be considered in determining whether a district court has
abused its discretion:
"'Judicial discretion is a composite of many things, among
which are conclusions drawn from objective criteria; it means
a sound judgment exercised with regard to what is right under
the circumstances and without doing so arbitrarily or
capriciously.'" Vaughn v. State, 962 P.2d 149, 151 (Wyo.
1998) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.
1986)); see also Stroup v. Oedekoven, 995 P.2d 125, 128
(Wyo. 1999).
In determining whether there has been an abuse of
discretion, we focus on the "reasonableness of the
choice made by the trial court." Vaughn, 962 P.2d 149,
151 (Wyo.1998). If the trial court could reasonably
conclude as it did and the ruling is one based on sound
judgment with regard to what is right under the
circumstances, it will not be disturbed absent a
showing that some facet of the ruling is arbitrary or
capricious.
Jordan v. Brackin, 992 P.2d 1096, 1098 (Wyo. 1999).
Dollarhide, ¶ 4, 239 P.3d at 1170 (quoting Hannifan, ¶ 36, 185 P.3d at 693).
4
DISCUSSION
[¶15] Addressing the issues in chronological order, rather than in the order in which they
were presented on appeal, we first address Defendants' appeal from the order granting a
mistrial in the first trial. We will then turn to the issues related to the admission of expert
testimony in the second trial and the denial of Plaintiff's motion for a new trial following
the jury's unfavorable verdict in that second trial.
A. Order Granting Mistrial
[¶16] The district court declared a mistrial of the first trial because, on cross-
examination of Decedent's son, defense counsel asked a question that described Decedent
as a drug addict. The court found the question improper on grounds that the question
assumed facts not in evidence, called for speculation, was based on hearsay, was not
relevant, and was unfairly prejudicial to Plaintiff. In considering Defendants' appeal of
the mistrial order, we will first address Plaintiff's argument that Defendants' appeal was
not timely, and then we will consider Defendants' abuse of discretion argument.
1. Timeliness of Appeal
[¶17] On August 31, 2012, Plaintiff moved for a mistrial, and the district court granted
that motion. In so ruling, the court directed Plaintiff's counsel to submit an application
for costs and fees and indicated it would rule on that application after Defendants'
counsel had an opportunity to respond. The court also set a scheduling conference for the
purpose of choosing a date for the second trial.
[¶18] On September 5, 2012, the district court issued a Scheduling Order that set a new
trial date of March 18, 2013. On September 17, 2012, Plaintiff filed her motion for
attorney fees and costs related to the mistrial, and on October 2, 2012, Defendants
responded to that motion. On November 6, 2012, the court entered an Order Allowing
Costs and Fees.
[¶19] Plaintiff does not contend that the district court's August 31, 2012 order granting
Plaintiff's motion for a mistrial was an appealable order. Instead, Plaintiff contends that
the court's Order Allowing Costs and Fees was the appealable order and that because
Defendants did not file their cross-appeal until August 6, 2013, their appeal of the
mistrial order and Order Allowing Costs and Fees was untimely. We disagree.
[¶20] In arguing that Defendants' appeal was untimely, Plaintiff relies solely on Rule
1.05(a) of the Wyoming Rules of Appellate Procedure. Rule 1.05(a) defines an
appealable order as "[a]n order affecting a substantial right in an action, when such order,
in effect, determines the action and prevents a judgment." W.R.A.P. 1.05(a). This Court
5
has held that "an appealable order under Rule 1.05(a) has 'three necessary characteristics.
. . . It must affect a substantial right, determine the merits of the controversy, and resolve
all outstanding issues.'" In re E.R.C.K., 2013 WY 160, ¶ 28, 314 P.3d 1170, 1176 (Wyo.
2013) (quoting In re KRA, 2004 WY 18, ¶ 10, 85 P.3d 432, 436 (Wyo. 2004)). Said
another way, to be appealable, an order must leave nothing for future consideration. In re
KRA, ¶ 10, 85 P.3d at 436 (citing Public Serv. Comm'n v. Lower Valley Power & Light,
Inc., 608 P.2d 660, 661 (Wyo. 1980)). The purpose of these Rule 1.05 requirements is
"to avoid fragmentary appeals and decisions made in a piecemeal fashion." Estate of
McLean ex rel. Hall v. Benson, 2003 WY 78, ¶ 8, 71 P.3d 750, 753 (Wyo. 2003).
[¶21] Applying these principles, the district court's orders granting a mistrial and
awarding costs and fees were not appealable orders. While the question of the mistrial
may have been settled once the court issued its order awarding costs and fees, that issue
was only one discrete part of the controversy. The parties' controversy would not be fully
determined on the merits until after the second trial. The orders declaring a mistrial and
awarding costs and fees thus did not determine the action or prevent a judgment as
required by Rule 1.05(a), and a ruling that the mistrial orders were immediately
appealable would necessarily result in the type of fragmentary appeals and piecemeal
decisions that Rule 1.05 was intended to avoid. See Davis v. Davis, 985 P.2d 643, 646-47
(Ariz. Ct. App. 1999) (holding that an order granting a mistrial prior to judgment being
entered is not an appealable order because such an order neither determines the action nor
prevents judgment from which an appeal might be taken); Howard v. Kuehnert, 641
N.E.2d 804, 805-06 (Ohio Ct. App. 1994) (interpreting provisions similar to W.R.A.P.
1.05 and holding that orders relating to declaration of mistrial not appealable because a
new trial necessarily follows).
[¶22] This case has taken an appellate path similar to that followed in Terry v. Sweeney,
a personal injury lawsuit involving a motor vehicle accident. Terry, 10 P.3d at 555. A
mistrial was declared in Terry when a witness for the plaintiff, in violation of a pretrial
order, referenced the defendant's insurance coverage. Id. at 556. The trial court entered
an order awarding costs related to the mistrial, and the matter remained pending for two
years because the court would not set a new trial until the plaintiff paid the costs. Id. The
plaintiff continued in her failure to pay the award of costs, and, nearly three years after
entry of the original order awarding costs, the trial court entered an order of dismissal
with prejudice. Id. at 557. The plaintiff then appealed the dismissal order and the orders
declaring a mistrial and awarding costs. Id. This Court did not directly address the
timeliness of the plaintiff's appeal from the orders declaring a mistrial and awarding
costs, but given our willingness to dismiss an appeal on our own motion when we find
that an order is not appealable, our acceptance of the appeal and ruling on the issues
presented signaled that the appeal had been properly taken. See Bd. of Trustees of Mem'l
Hosp. of Sheridan Cnty. v. Martin, 2003 WY 1, ¶¶ 9-16, 60 P.3d 1273, 1275-77 (Wyo.
2003) (dismissing appeal on ground that order was not appealable though issue was not
raised by parties).
6
[¶23] Our ruling in Terry implicitly recognized that an order declaring a mistrial is not
an appealable order itself and that the proper procedure for appealing such an order is to
take an appeal after the parties' controversy is fully determined on the merits. See also
Dollarhide, ¶ 16 n.5, 239 P.3d at 1173 n.5 (reviewing the trial court's exercise of
discretion in granting a mistrial while at the same time observing the arguable mootness
of the issue given that by the time a mistrial ruling makes its way to the Court on appeal
the jury has been released and another trial has taken place).
[¶24] The orders declaring a mistrial and awarding costs and fees did not determine the
action or prevent a judgment, and neither order was therefore an appealable order as
defined by W.R.A.P. 1.05(a). We thus conclude that Defendants' appeal of the mistrial
order was timely and turn then to Defendants' argument that the district court abused its
discretion in declaring a mistrial.
2. District Court's Exercise of Discretion in Declaring Mistrial
[¶25] As noted above, the offending question that led the district court to declare a
mistrial was one that described Decedent as a drug addict. Evidence relating to
Decedent's alleged use of Vicodin and marijuana, her alleged alcohol use, and her alleged
drug-seeking behaviors was the subject of motions in limine and multiple arguments to
the district court, both pretrial and during trial. At a pretrial motions hearing, Defendants
argued that the evidence was relevant to Decedent's cause of death and was therefore
admissible. Essentially, Defendants contended that Decedent misused her prescription
medications and consumed alcohol and marijuana, and that these actions combined with
Decedent's pneumonia to cause her respiratory failure. Plaintiff argued for exclusion of
evidence related to Decedent's history of drug and alcohol abuse on grounds that the
prejudicial nature of the evidence outweighed its probative value because there was no
evidence that showed a recent use of Vicodin or a link between Decedent's marijuana use
and her respiratory failure. At a pretrial motions hearing, the district court ruled that
evidence related to Decedent's past abuse of Vicodin was not admissible because the
allegations were too remote in time. With respect to Decedent's use of marijuana, the
court ruled:
THE COURT: My inclination is to grant the motion with
regard to the THC. I'm getting different versions of what the
experts are going to say, so I am – I'm reserving to the
defendant if they can somehow specifically tie the THC to the
cause of death; but, you know, if the argument is, Well, she
was smoking marijuana and under the influence and made a
bad decision, I don't see any experts willing to say that – I
may have missed that – but, you know, you have to somehow
say she had X number of nanograms in her system and then
7
this is how it affects her judgment. I may have missed it, but
I don't see that in any of the designations.
****
THE COURT: It does seem to me to be more prejudicial than
probative of anything; but I – as the testimony develops, I
will reconsider that ruling at the request of the defendants.
[¶26] On the first morning of the first trial, defense counsel requested clarification on the
district court's rulings concerning Decedent's drug use, and the following exchange took
place:
[Defense Counsel]: * * * Due to the delicate nature of a few
of the rulings that you've made in the past, the Zithromax and
Vicodin and marijuana and so on, we just want to make sure
that we all understand what to say and what not to say during
voir dire and openings.
So the first question I have, I know there was a motion
that you heard about a particular ER record with Connie
Scribner, where she admitted she had been seeking Vicodin;
and you said there's no reason to reference that record. And
that's fine. What we would like to do, however, Your Honor,
is establish that she was a drug seeker, because it goes to –
the plaintiffs have made a big deal about who it was that
could have possibly consumed the medications at her home.
The fact that she's a drug seeker in the past goes to the fact
that she sought the high from time to time for whatever
medications she could get, and it establishes and provides
some background information about who in fact was the most
likely person to have taken the extra gabapentin and the
codeine cough syrup. So your ruling was specifically tailored
to that specific medical record; but we didn't want to violate
anything by mentioning other Vicodin or other records that
reference that or her history of drug-seeking behavior.
[Plaintiff's Counsel]: * * * Well, I know that your ruling was
specific to that record; but it was based upon the idea that the
nature of the drugs she had admitted to seeking a year prior,
over a year prior, was Vicodin; that there was no Vicodin in
her system. It was tested for. There was no evidence that she
had engaged in any drug-seeking behavior for at least a year
8
prior to this event. And that it is therefore a prior bad act
which should be excluded. And so the – the discussion was a
lot broader than, Oh, can we – do we erase the reference in
this record. I think that was the context in which it came up,
but it was because of the remoteness in time and the risk of
unfair prejudice relating to it and also that – that there was no
evidence to – to support admission of such evidence under
habit or anything else because of the lack of time and the
dissimilarity between that particular drug that is historically
an issue and the drugs involved at the time of this event.
[Defense Counsel]: Even though the drug at issue in this case
wasn't whether Vicodin killed her, the cause of her death is
definitely an issue. And one of the – our entire theory of the
case is that she overmedicated herself. And so it goes to that
point, because they have contested that she consumed the
cough syrup and they have contested that she consumed the
gabapentin without any proof whatsoever that anybody else
could have taken it. And so it's important for that, Your
Honor, on this particular issue.
THE COURT: You may respond to those things but only
those things. As to other drug-seeking proclivities, I will rule
on those questions as they come up. But do not address it in
your opening.
[¶27] On the second day of trial, the issue of Decedent's drug use again raised its head
when Plaintiff's expert referred to Decedent's past "prescription drug issues" during cross-
examination by defense counsel. The following exchange then occurred:
[Plaintiff's Counsel]: Through no doing of [Defense
Counsel], there was testimony from the doctor that the
medical records in the past indicated some prescription drug
issues. Right now, I would like to leave that alone. I would
like the opportunity – because we have a motion in limine to
preclude that evidence. I think that the doctor is tired
because, of course, I informed him of that. I don't want it to
go further. I would like the opportunity to discuss with the
witness that it is not something he should say. I don't think it
was error in any way for [Defense Counsel]. I'm not
objecting to that. I don't have a problem with that. I would
like the opportunity now to make it not worse, and I do not
think that he opened the door to it because he just said issues
9
and not – didn't define it any more. So I would like to stop it
in its tracks.
[Defense Counsel]: * * * I understand that you have ruled
that the 2004 incident with regard to the Vicodin is not
admissible; and I wasn't really focused on him saying what he
said. I don't intend to go further with it right now; but I want
you to know that it is my position that her drug-seeking
mentality is at issue and it's germane to Dr. Kulig's opinions
in this case about what happened to the drugs and what
happened to Connie.
THE COURT: All right. I'm not going to make a ruling on
that at this point.
[¶28] On the third day of the first trial, another exchange took place between the court
and counsel concerning evidence related to Decedent's alleged drug use:
THE COURT: Okay. I want to at least have you prepared to
discuss something if you're not now, and I suspect you're not.
An issue has come up occasionally – and my guess is it's
going to – there's going to be [an] increasing chance for it
come up the further we go into this case. And I can't
remember the phrase that [Defense Counsel] uses, but it has
to do with allegations of drug abuse by Ms. Scribner. And
you referred to that as high seeking or –
[Defense Counsel]: Drug seeking.
THE COURT: Drug seeking. So I'm not sure what it is that
you're trying to establish. Are you trying to establish habit or
are you trying to establish character or character through
habit? I want some – I'm trying to prepare for this, so I'm
trying to delineate the issue.
****
[Defense Counsel]: It's character. And it comes under
404(b), where it says it's admissible for other purposes, such
as proof of motive, opportunity, intent, those sorts of items.
And just so they can respond to both of the things, I just want
to make sure we don't run into a problem with Adam
Scribner.
10
THE COURT: I just wanted to know what the issue was so I
can be prepared. I don't know if you said you want to
respond now or not.
[Defense Counsel]: Can I say one more thing? Just because I
don't want anybody to be unfairly surprised, and I want to be
fair, too.
But with Adam Scribner, there's evidence in the
records – he's claiming damages in this case as a family
member based upon his relationship with his mother and what
he's lost as a result of her death. There is evidence in the
records that she told medical providers that her kids believed
she was a drug addict and – along with other opinions that her
kids had of her. But I'm going to ask that question of him,
you know, Did you believe your mom was a drug addict. I
don't know what he'll say. But it's in the records that she
reported that to medical providers. And so it's not to show
whether she was a drug addict on the day that she actually
died, but it's relevant to the relationship that they had with
one another and his claim for damages and the daughter's
claim for damages, as well.
****
THE COURT: If this is not going to come up in this next
witness, we can postpone this discussion and bring the jury
back in and go forward. I didn't mean to get so distracted. I
was just trying to delineate the issue. I didn't really mean to
get into a full-blown argument on it.
[Defense Counsel]: I believe that Dr. Beyer is the next
witness, they will tell you. But if he's the next witness, this
probably is not coming up in his testimony.
THE COURT: All right. Let's proceed, then, with the jury;
and we'll discuss this. But the parties are going to have to
alert me when they anticipate it.
[¶29] On the fourth day of the first trial, defense counsel's cross-examination of
Decedent's son, Adam Scribner, led to the following exchange and motion for a mistrial:
11
Q. Did you ever think of your mom as a drug addict?
A. No, absolutely not.
Q. Do you have any idea why she would report that to any of
her health care providers, that her children thought she was a
drug addict?
[Defense Counsel]: Your honor, may we approach?
THE COURT: Yes.
[Bench Conference]
THE COURT: So we're here.
[Defense Counsel]: And I'm not going any further.
[Plaintiff's Counsel]: It's too late. Thank you very much.
I request a mistrial. This is subject to a motion in
limine to preclude prior drug use. We talked about it three
times, not less than that. And now you're coming up and
you're asking him in front of the jury, Do you know why your
mom would tell health care providers she's a drug addict. Not
only is this something that's been the subject of motions in
limine but it's also hearsay.
[¶30] The district court then excused the witness, recessed for the day, and instructed
counsel to reconvene the following morning for further discussion of Plaintiff's motion
for a mistrial. The next morning, August 31, 2012, the hearing on Plaintiff's mistrial
motion was held. At the outset of the hearing, the court described its concerns with the
question asked by defense counsel:
There are many, many problems with this question.
First, it assumes a fact not in evidence. Not only does it
assume a fact not in evidence, it assumes a fact unlikely to be
in evidence.
Secondly, when a question starts "Do you have any
idea," that certainly is a red flag that it's going to call for
speculation. And in this case, it does. So it requires the
witness to speculate.
12
Third, it is hearsay based on hearsay; arguably, double
hearsay; and depending on the context of the question, triple
hearsay.
Fourth, it has questionable, at best, relevance. If the
question is offered to show Adam's impression of his mother,
putting aside all of the other problems that I mentioned, then
it proves nothing, because you can't determine from the
context of the question whether assuming he said that – and
I'm only assuming that for purposes of this limited discussion
– he was asking for help, he was being critical of her, or he
was not doing either. And, again, that's assuming he asked
for it, and I'm not making that assumption. If it is offered to
show Ms. Scribner's character, then it doesn't establish
anything.
Finally, it is extremely prejudicial for two reasons.
First, it is the use of the term "drug addict." It did not say use
drugs, controlled substance, or prescription medicine. It did
not even say abused drugs or controlled substances or
prescription medicine. And I think the term "drug addict" for
many of us brings up or conjures visions of people in alleys
shooting up with needles in dirty places.
It is also prejudicial because it can't be answered. It's
worse than when did you stop beating your dog. If Adam
were to say he has no idea why his mother would say that, it
still leaves open the suggestion that he thought his mother
was a drug addict or worse, that she was a drug addict. If he
says he has no idea and he didn't say that, it still leaves open
the suggestion that his mother might have said it; and he
obviously has no ability to respond to that question.
So the question clearly can't stand. And there wasn't
formally an objection; but I assume for all practical purposes
there was, and that objection is sustained.
The question should not have been asked. I have to
believe that very little critical thought was given to that
question. It is difficult for me to say this, because I have
known [Defense Counsel] for many years – I think she
appeared in front of me when I was a county judge – but the
13
fact of the matter is I think that's the worst question I've ever
heard posed to a witness in my legal career.
You notice that in my discussion I have not considered
the impact of the liminal motions on Vicodin or marijuana.
There are a couple of problems with that. No orders have
been entered that I can find. I did review my oral rulings.
They are not specifically on point, but it's difficult for me to
believe that anybody who was present for those hearings
didn't understand I had any serious reservations about any
mention of any other drugs. But that's not part of my analysis
nor am I considering this part of my analysis, my belief that I
thought the parties would approach first before these kinds of
things were brought up. That may not have been clear, and so
I'm not really considering that.
But as I said, the question was – the objection is
sustained. It should not have been presented. And so we're
now going to focus on what the remedy is.
[¶31] After additional discussion and argument concerning possible curative
instructions, Plaintiff renewed her motion for a mistrial. The district court granted the
motion, stating:
I think that the remarks made by counsel were not
made in bad faith. It was a momentary lapse in judgment and
that's all, and everybody is susceptible to that. But they are
such that objection and instructions to disregard them cannot
cure the resulting prejudice. So I will grant the motion for a
mistrial.
[¶32] Defendants argue that the district court abused its discretion in granting a mistrial.
In so arguing, Defendants challenge the court's conclusion that the healthcare record on
which defense counsel based her question, and Decedent's alleged statement contained in
that record, were inadmissible. As the linchpin of their analysis, Defendants contend that
neither the healthcare record nor Decedent's statement contained within that record
constituted inadmissible hearsay. They assert:
Absolutely no analysis was made as to whether the statements
were subject to hearsay exceptions. This is particularly
problematic, because even a rudimentary inquiry into the
hearsay exclusionary rule and its exceptions would have
likely yielded a different result. Given the absence of any
14
meaningful discussion or reference to the actual hearsay rules,
the court's conclusions were not reasonable or based upon
sound judgment.
[¶33] The Defendants follow this statement with a detailed argument as to why the
record and Decedent's statements therein were not hearsay. The record shows, however,
that Defendants' hearsay arguments were not presented to the district court. Not only did
Defendants not argue to the district court that the healthcare record and Decedent's
statement therein were not hearsay, defense counsel informed the court that she had no
intention of seeking admission of the healthcare record. Defense counsel stated, our
emphasis added:
They are asking for a lot of money for damages. And
he continually described this very good relationship he had
with his mom. And in the record I was referencing, I didn't
put it in evidence and I didn't plan to, because there was
more in that record; but it was from Central Wyoming
Counseling Center, I believe. And it referenced that – her
horrible relationship with her kids. They think I'm a drug
addict. I wasn't going to be cruel to Adam and point out what
his mom thought of her kids. There's so many references in
many of the medical records that she was less than fond of
her children. And I wasn't going to ever go that direction.
That would be cruel. But the fact is they were talking about
their opinions of one another, their relationship. He had
already talked about his conviction for a couple of drug-
related crimes. And so it went right to that issue in my mind.
Apparently, it was very poor judgment. And I – believe me;
I'm very apologetic for that. I – I thought I alerted everybody
to that. And I – maybe I'm ignorant about how harmful that
question could have been. It was not intentional.
[¶34] This Court has repeatedly stated that it will not consider arguments made for the
first time on appeal. State ex rel. Dep't of Family Serv. v. Kisling, 2013 WY 91, ¶ 14, 305
P.3d 1157, 1162 (Wyo. 2013); BP America Prod. Co. v. Dep’t of Revenue, 2006 WY 27,
¶ 33, 130 P.3d 438, 468 (Wyo. 2006). And we have explained why new arguments are
particularly problematic when we are reviewing a court's decision for an abuse of
discretion:
It simply is not appropriate for this Court to reverse a district
court ruling on grounds that were never presented to it.
Whitten v. State, 2005 WY 55, ¶ 24, 110 P.3d 892, 898 (Wyo.
2005). This is particularly true when our review is for an
15
abuse of discretion because to determine whether there was
an abuse we necessarily must consider the arguments and
evidence presented to the district court. Amoco Prod. Co. v.
Dep’t of Revenue, 2004 WY 89, ¶ 53, 94 P.3d 430, 449 (Wyo.
2004). Plainly stated, a party cannot fail to present an
argument and then argue on appeal that the district court
abused its discretion in not considering the argument the party
did not present.
Sundance Mtn. Resort, Inc. v. Union Tel. Co., 2007 WY 11, ¶ 17, 150 P.3d 191, 196
(Wyo. 2007).
[¶35] In arguing against the motion for mistrial, defense counsel did not contest the
district court's characterization of the question as being based on inadmissible hearsay,
assuming facts not in evidence, or calling for speculation. Instead, defense counsel
argued that: 1) she did not believe her question violated any of the court's orders; 2) that
the question went to the quality of Decedent's relationship with her children and was
therefore relevant to damages; and 3) that the question was not unfairly prejudicial to
Plaintiff. Defense counsel concluded her argument:
The Court, of course, granting a mistrial is an extreme
and drastic remedy that should be resorted to only in the face
of an error so prejudicial that justice could not be served by
proceeding with trial. So the question remains what potential
prejudice does exist with the jury. At the time that question
was asked, the jury already knew that Ms. Scribner had high
levels of codeine in her system; that she had alcohol in her
system; that she was on multiple medications for her bipolar
disorder; that she had gone to Wyoming Medical Center
emergency room in excess of 40 times; and that she had
smoked pot with her son as early as two weeks before her
death. They didn't object to any of that. And so the jury
already had that information about her. This and what a –
whether he knew what his mom told the medical care
provider, to me, doesn't add anything more detrimental or
more damaging than what the jury already knew about Ms.
Scribner. And so I think we're lacking the prejudice
necessary to grant a mistrial.
I agree wholeheartedly that you should give a
cautionary – or a curative instruction to the jury and blame it
on me and say that I asked an inappropriate question. I'm fine
with that. * * *
16
So I would just ask that an instruction be given to the
jury that questioning by [Defense Counsel] to Adam Scribner
regarding drug-addict questions were improper and
inappropriate and that they should disregard them, you know,
judge the case based on the evidence, the questions of
attorneys are not evidence, that kind of thing.
I'm sorry, other than that.
[¶36] Given that defense counsel did not argue before the district court that the court
was wrong in its conclusion that the offending question was based on inadmissible
hearsay, assumed facts not in evidence, or called for speculation, we will not consider
Defendants' arguments to that effect on appeal. Instead, we will confine our review to the
question of whether the district court abused its discretion in finding that the question was
so prejudicial as to warrant a mistrial.
[¶37] The district court found defense counsel's question "extremely prejudicial"
because of its use of the term "drug addict" and the negative connotations associated with
that term and because the question could not be answered in a meaningful way by the
witness. We have previously explained why it is difficult for this Court to second-guess
such a determination by a trial court:
The gravamen of the mistrial motion, as well as the
district court’s rationale for granting the motion, was that
Dollarhide’s counsel had irrevocably tainted the jury by
telling it, in effect, that Judge Guthrie had found Dollarhide to
have a valid case against the defendants. The reason that we
must affirm the district court is that it is impossible to show
that the mistrial decision was unreasonable or arbitrary or
capricious under these circumstances. While it is the law that
“[g]ranting a mistrial is an extreme and drastic remedy that
should be resorted to only in the face of an error so
prejudicial that justice could not be served by proceeding with
trial[,]” it is also the law that “[t]he trial court is also in the
best position to assess the prejudicial impact of such error.”
Warner v. State, 897 P.2d 472, 474 (Wyo. 1995); see also
Martin v. State, 2007 WY 2, ¶ 19, 149 P.3d 707, 712 (Wyo.
2007). We are in no position to second-guess the trial court’s
on-site, real-time assessment. Dollarhide argues that, “even if
the statement was improper, it could have been cured by an
instruction.” Obviously, we also are in no position to test the
accuracy of that assumption.
17
Dollarhide, ¶ 16, 239 P.3d at 1173 (footnote omitted).
[¶38] The question of Decedent's alleged drug abuse and whether evidence would be
permitted regarding those and related allegations was the subject of multiple arguments
and discussions between counsel and the district court. The record clearly illustrates that
the court was sensitive to the potential prejudice of such evidence and intended to allow
its use for only limited purposes when appropriate. The district court was in the best
position to assess how evidence was being received and whether an improper question
had so crossed a line that the unfair prejudicial taint was irrevocable. Based on the record
before us, we cannot find that the court's assessment was unreasonable, arbitrary or
capricious.
B. Order Denying Plaintiff's Motion for New Trial
[¶39] We turn then to Plaintiff's appeal. We will begin our discussion of Plaintiff's
appeal with an overview of the parties' competing theories concerning whether the
standard of care required that Decedent be hospitalized. Against that backdrop, we will
discuss the district court's admission of testimony by Defendant Dr. Beyer and
Defendants' emergency medicine expert, Dr. Kurt Bernhisel, and Plaintiff's objections to
that testimony and motion for new trial based on that testimony.
1. Overview
[¶40] As noted earlier, in general terms, Plaintiff alleged that Defendant Dr. Beyer's care
of Decedent fell below the standard of care because he failed to diagnose the seriousness
of Decedent's condition and failed to admit her to the hospital for monitoring and
treatment. More particularly, Plaintiff's theory, presented through her emergency
medicine expert, Dr. Anthony Haftel, was that Defendant Dr. Beyer should have
diagnosed Decedent as suffering from sepsis, which is a toxic response to an infection,
and should have recommended hospitalization to treat the sepsis.
[¶41] In offering this theory, Dr. Haftel testified to a definition of sepsis, which he
described as a nationally accepted guideline. Dr. Haftel defined sepsis as an infection
plus SIRS, which is the acronym for systemic inflammatory response syndrome. He
explained that SIRS occurs when a patient has two or more of the following symptoms:
1) a temperature greater or equal to 38 degrees Celsius (100.4 degrees Fahrenheit); 2) a
pulse rate over 90 beats per minute; 3) a respiratory rate over 20 breaths per minute; and
4) a white blood cell count greater than 12,000. Essentially, Dr. Haftel testified that a
patient has sepsis if the patient has an infection, such as pneumonia, and two of the four
SIRS symptoms.
18
[¶42] Dr. Haftel testified as to the danger of sepsis, explaining that sepsis can progress
on a continuum: sepsis to severe sepsis to septic shock to multiple organ dysfunction and
eventually to death. He further testified that this progression can occur in some cases
within twenty-four hours and that a diagnosis of sepsis requires hospitalization.
[¶43] Dr. Haftel concluded that when Decedent first presented to the emergency room
on October 20th, she had pneumonia and met two of the four SIRS criteria: her white
blood cell count was elevated above 12,000 and her pulse rate was greater than 90. He
further concluded that when Decedent was discharged from the emergency room, a few
hours later, her condition had worsened and she met all four of the SIRS criteria. On this
basis, Dr. Haftel opined that Decedent had sepsis and that the standard of care required
that she be admitted to the hospital for monitoring and treatment.
[¶44] Defendants did not dispute Plaintiff's definition of sepsis. Defendant Dr. Beyer
testified, on examination by Plaintiff's counsel:
Q. [Dr. Haftel] talked about the four criteria for systemic
inflammatory response syndrome. And are those accurately
reflected there?
A. They are.
Q. Okay. And you know and knew in 2005 that it only takes
two or more of those criteria to conclude that a patient has
systemic inflammatory response syndrome?
A. Yes.
Q. And do you agree that pneumonia is an infection in the
lungs?
A. Yes.
Q. And so if somebody has pneumonia and two or more of
these criteria, would you agree that they have – they meet the
definition for sepsis?
A. Yes.
[¶45] Defendants did not dispute the SIRS plus infection definition of sepsis. What they
instead challenged was Plaintiff's assertion that the standard of care requires
hospitalization of any patient who presents with symptoms meeting that definition of
sepsis. Defendants presented testimony, through Defendant Dr. Beyer and through
19
Defendants' expert, Dr. Bernhisel, that the SIRS plus infection definition of sepsis is not a
good prognostic tool for predicting whether a patient will progress through the sepsis
spectrum from sepsis to severe sepsis to septic shock to organ failure and death.
Essentially, Defendants' position was that the SIRS plus infection definition of sepsis is
an overly cautious and overly sensitive guideline for determining when a patient must be
hospitalized. In keeping with that view, Dr. Bernhisel testified on direct examination by
defense counsel:
Q. How many pneumonia patients have three or four of the
SIRS criteria and an infection?
A. A lot. I don't have – I don't know if there's a statistic that
would tell you – tell you that. But we see a lot of
pneumonias, and the majority of them have SIRS criteria.
Q. Do you admit the majority of them or send the majority of
them home?
A. We send the majority of them home.
[¶46] Defendants offered alternative guidelines, known by the acronyms CURB-65 and
PORT, which Defendants contended were more accurate predictors of mortality risk
associated with pneumonia and provided better guidance on whether a patient should be
hospitalized. CURB-65 is a pneumonia severity index, with each letter of the acronym
signifying a condition in the patient. Broken down, the letters stand for: C-confusion; U-
urea, requiring an elevated blood urea nitrogen (BUN) level; R-respiration, requiring a
respiratory rate elevated to more than 30 breaths per minute; B-blood pressure, requiring
a systolic blood pressure below 90 or a diastolic blood pressure below 60; and 65 stands
for an age of 65 or greater. The index specifies that a patient meeting one or two of these
criteria may be discharged home and a patient meeting three criteria should be considered
for hospital admission or very close monitoring.
[¶47] PORT is an acronym that refers to the title of a study: "Pneumonia Patient
Outcomes Research Team (PORT) validation study (1991)." The PORT guideline
requires consideration of factors such as demographic features, physical exam features
and initial vital signs, including age, altered mental status, pulse, blood pressure, and
respiratory rate, and, then based on those factors, classifies the level of the patient's
mortality risk.
[¶48] Defendant Dr. Beyer testified that application of the CURB-65 criteria to
Decedent's symptoms on October 20 indicated that it was acceptable to discharge her
home. Dr. Bernhisel testified that based on application of either the CURB-65 criteria or
20
the PORT criteria, Decedent had a low mortality risk and it was acceptable to discharge
her home.
[¶49] With this background on the parties' competing theories, we will turn to Plaintiff's
objections to certain of the testimony by Drs. Beyer and Bernhisel.
2. Plaintiff's Objections
a. Dr. Bernhisel's Testimony
Dr. Bernhisel's Testimony Re: SIRS Plus Infection Definition of Sepsis
[¶50] During trial, Plaintiff's counsel objected to two aspects of Dr. Bernhisel's
testimony. His first objection was to Dr. Bernhisel's testimony that although the SIRS
plus infection definition of sepsis is useful in a research setting, it is not useful in a
clinical setting for predicting whether a patient will progress further on the sepsis
continuum or for assessing whether a patient should be hospitalized. Specifically, Dr.
Bernhisel testified concerning a follow-up study on the SIRS plus infection definition of
sepsis, explaining:
Then the next conclusion was that these definitions do
not allow for precise staging or prognostication of the host
response to infection. That's kind of gobbledygook, but let
me try to give you what I think it says. That these definitions,
the SIRS sepsis definition, are not such that you can say,
Well, if you've got two of these or three of these, you're more
severe than somebody that has just two of them, or four
means that they are sicker than three. I think you heard
testimony that Dr. Haftel said if they had four of them, that
was worse than three. And there is no staging. It's not – it's
not – it's not that type of a – of a system. So – and you can
also not prognosticate. There are – which means predict.
You can't predict from this how the host – it's a great word; it
means patient. But when you're a scientist and academician,
you're going to use a word like "host." Clinicians often use
"patient." You can't predict how each patient is going to
respond to these SIRS definition. It's SIRS sepsis. It's – it's –
they can't look at that and say, Yes, because you've got this, it
means that you're sicker than – than something else. So the –
it's a very nonpredictive tool. Okay?
And the other important thing says, While SIRS
remains a useful concept, the diagnostic criteria for SIRS
21
published in 1992 are overly sensitive and nonspecific. It's
just like I've been saying. You – you – how you use that
information is – is so hard. You're – you're taking everything
in on your – so sensitive it gets all kinds of – of patients that
may not be clinically relevant and labeled as SIRS sepsis. So
it's – it's a – it's a useful tool to have this concept of a
continuum of sepsis; but it may not be as useful clinically
when you're seeing a patient that has some of these findings
or all of the findings. You still have to have a lot of other
information. It's – it's – it's a piece of information, but it's not
a predicting piece of information.
[¶51] Dr. Bernhisel further testified that the definition of sepsis that he finds useful in
the clinical setting is termed "clinical sepsis," which he explained is the same as "severe
sepsis" on the SIRS plus infection sepsis continuum. Plaintiff objected to all of this
testimony on the ground that it was not designated in Dr. Bernhisel's expert designation
and amounted to unfair surprise.
[¶52] On the question of whether Dr. Bernhisel's opinions were disclosed in his expert
designation, defense counsel agreed at trial that Dr. Bernhisel's designation did not
reference the SIRS plus infection definition of sepsis or Dr. Bernhisel's opinions
concerning the clinical value of the definition. Defense counsel also pointed out,
however, that Plaintiff's expert designation for Dr. Haftel did not disclose that he would
advocate the SIRS plus infection definition of sepsis or that he would opine that any
patient that presents with symptoms meeting that definition of sepsis must be
hospitalized. Our review of the expert designations for Drs. Haftel and Bernhisel
confirms that neither designation addressed these opinions. Plaintiff's designation of Dr.
Haftel did not attach an expert's report, and instead specified that Dr. Haftel would testify
to facts and matters contained in his deposition should one be taken. The designation
further provided, in relevant part:
Dr. Haftel is expected to testify as to his conclusions relating
to the care and treatment provided to Connie Scribner while
at the Emergency Department of the Wyoming Medical
Center and under the care of emergency room physician, Dr.
Beyer. He is expected to testify that Dr. Beyer's care fell
below the accepted standard of care and that his failures
ultimately led to Connie Scribner's death through a failure to
properly treat her diagnosed bilateral pneumonia and failure
to secure her admission to the hospital. * * * Based upon her
presentation at the emergency department, her physical signs,
blood work, vitals and x-rays she met admission requirements
and should have been admitted to the hospital for care and
22
follow-up treatment. By failing to seek admission, Dr.
Beyer's care fell below the standard of care.
[¶53] Defendants’ designation of Dr. Bernhisel included an attached report that
explained Dr. Bernhisel's review of Decedent's condition, treatment and death, set forth
his opinion concerning the standard of care and his opinion that Defendants provided care
in keeping with that standard, and set forth his opinions as to the cause of Decedent's
death, which he did not attribute to Defendants' care. The designation of Dr. Bernhisel
further provided, in relevant part:
Dr. Bernhisel will testify in accordance with the
applicable standards of care for emergency medicine
physicians. He will testify that the care and treatment
provided to Connie Scribner by the defendants met the
standard of care.
****
Additionally, Dr. Bernhisel may testify in rebuttal, on
all issues, to any evidence presented by the plaintiff's expert
or lay witnesses.
[¶54] The district court ultimately was not concerned with the lack of specificity in
Plaintiff's designation of Dr. Haftel's testimony because the court believed that
Defendants had received adequate notice of Dr. Haftel's opinions from his testimony in
the first trial. Our review of the transcripts confirms the court's recollection. Although
not presented in precisely the same manner as in the second trial, Plaintiff during the first
trial presented testimony from Dr. Haftel that an emergency room physician should know
the SIRS plus infection definition of sepsis and that it was his opinion that if a patient is
diagnosed with sepsis, that patient must be hospitalized.
[¶55] Our review of the first trial also revealed, however, that Defendant Dr. Beyer
testified during that trial that he does not agree with Dr. Haftel's opinion that any patient
who is diagnosed with sepsis using the SIRS plus infection definition must be
hospitalized. Dr. Beyer characterized the SIRS plus infection definition as "overly
cautious" and "overly broad," and he cited studies that described the definition as a "poor
prognostic indicator." The first trial ended in a mistrial before Dr. Bernhisel testified, so
we do not of course know whether his testimony would have been along similar lines.
Dr. Beyer's testimony was at least some notice to Plaintiff, though, that Defendants
intended to challenge the usefulness of the SIRS plus infection definition of sepsis as a
predictor of when hospitalization of a patient is required.
23
[¶56] We need not, however, necessarily resolve the question of the adequacy of
Defendants' designation. On appeal, Plaintiff argues the district court abused its
discretion in admitting Dr. Bernhisel's testimony because the testimony was an unfair
surprise and an irregularity in the proceedings that led to juror confusion. We note,
though, that despite Plaintiff's varying characterizations of the defects in the ruling, the
prejudice that Plaintiff argues she suffered as a result of the admission all sounds in
unfair surprise—specifically, that the undesignated testimony surprised Plaintiff and
made effective cross-examination, challenge and impeachment of the evidence
impossible. Where the claim is one of unfair surprise, this Court has repeatedly held that
"the appropriate response from a surprised party who wishes to counter testimony is a
request for a continuance, and the failure to request one precludes a claim of prejudice."
In re MC, 2013 WY 43, ¶ 48, 299 P.3d 75, 85 (Wyo. 2013) (quoting Betts v. Crawford,
965 P.2d 680, 685 (Wyo. 1998)); see also Parrish v. Groathouse Constr. Co., 2006 WY
33, ¶ 15 n.4, 130 P.3d 502, 507 n.4 (Wyo. 2006) ("Since trial counsel did not request a
continuance at the time the trial court overruled his objection, the objection of unfair
surprise is effectively waived."); Meyer v. Rodabaugh, 982 P.2d 1242, 1245 (Wyo. 1999)
(failure to request a continuance on the ground of surprise precludes a party from
contending on appeal that he was prejudiced).
[¶57] The district court approached the concerns with Dr. Bernhisel's testimony with
great caution, and, while the court admitted Dr. Bernhisel's testimony, it also offered
Plaintiff the option of taking a continuance at the conclusion of defense counsel's direct
examination of Dr. Bernhisel. The court ruled:
* * * I don't believe the plaintiff was properly advised
of [Dr. Bernhisel's testimony]. And so the issue is how do we
address that. I'm not going to strike the testimony. I'm
certainly not going to declare another mistrial. But I will do
this: At the conclusion of Dr. Bernhisel's testimony, I will
allow plaintiffs additional time to prepare for cross-
examination as they require. And that can be a reasonable
time but not later than reconvening the trial Monday morning.
So, basically – and I'll have the plaintiffs tell me at the
conclusion of the trial, out of the presence of the jury, how
much additional time they wish to prepare, later this
afternoon, tomorrow morning, tomorrow afternoon, or
Monday morning, but not later than Monday morning.
[Plaintiff's Counsel]: Okay.
THE COURT: And that's to give them additional time not
only to prepare for cross-examination and do such
24
consultation as they need, if they need some; but in addition,
to determine whether they want to present rebuttal testimony.
Now, obviously, I'm not directing that they take
additional time, but I'm giving the opportunity to request that.
[¶58] At 10:39 a.m. on Wednesday, March 27, of the second trial, Defendants completed
their direct examination of Dr. Bernhisel. At 10:50 that morning, Plaintiff's counsel
declined the continuance and proceeded with cross-examination of Dr. Bernhisel. Setting
aside the questions of whether Defendants properly designated Dr. Bernhisel's testimony
and whether Plaintiff was in fact surprised by Dr. Bernhisel's testimony, Plaintiff not only
did not request a continuance but turned down a continuance that could have extended
from Wednesday morning to Monday morning. Under these circumstances, Plaintiff has
waived any claim of prejudice related to the asserted surprise of Dr. Bernhisel's testimony
concerning the clinical value of the SIRS plus infection definition of sepsis.
Dr. Bernhisel's Testimony Re: PORT and CURB-65
[¶59] As noted above, Dr. Bernhisel testified that the PORT and CURB-65 pneumonia
severity indices were better predictors of whether a pneumonia patient requires
hospitalization and that Dr. Beyer's decision to discharge Decedent was in keeping with
the PORT and CURB-65 guidelines. Plaintiff objected to Dr. Bernhisel's testimony
concerning PORT and CURB-65 and its application to Dr. Beyer's discharge decision on
the grounds reflected in the following exchange:
[Defense Counsel]: * * * And then, also, Your Honor, with
the CURB-65, that – like we said before, that was part of Dr.
Bernhisel's deposition. There is over nine pages where Mr.
Ulmer asked Dr. Bernhisel how the PORT score and the
CURB-65 score are used in the clinical setting.
THE COURT: Okay. He didn't object on that ground.
****
[Plaintiff's Counsel]: My objection with respect to the PORT
score was – was that – not that it wasn't designated. It was.
****
[Plaintiff's Counsel]: My objection related to 403 and
relevance and that it was confusing and misleading because it
wasn't something used at the time. And so it shouldn't be
25
allowed to the jury to have them make a determination that,
oh, Dr. Beyer was thinking all of the right things when he
made his decisions, because he didn't use it. So that is – that
is the objection on the PORT score.
[¶60] The district court allowed Dr. Bernhisel's testimony over Plaintiff's objection, as
follows:
First of all, I'm going to allow Dr. Bernhisel –
Bernhisel – if I'm pronouncing it correctly – to testify
regarding the PORT scores. I understand that it is an after-
the-fact test that is being used to say that his clinical judgment
was correct. And if the – I think that can be brought out
clearly on cross-examination. And if the plaintiffs want an
instruction to that effect, then they should draft that
informally, and I'll give that. That takes care of that issue.
[¶61] Before the jury began their deliberations, the court gave Instruction No. 24, which
instructed the jury on the PORT and CURB-65 testimony:
There has been testimony about PORT scores and
CURB 65 scores during this trial. These are methods
sometimes used to analyze pneumonia symptoms. Testimony
concerning these methods is not intended to say that Dr.
Beyer properly applied such methods in his care and
treatment of Connie Scribner and the testimony shall not be
considered by you as such. The weight of this testimony
concerning these methods is for you to decide.
[¶62] During Dr. Bernhisel's testimony, Plaintiff further objected to testimony
concerning CURB-65, and in particular Dr. Bernhisel's testimony concerning Decedent's
BUN levels, on grounds that the testimony called for speculation and was outside Dr.
Bernhisel's designation. The court again overruled Plaintiff's objection.
[¶63] On appeal, Plaintiff instead argues that the CURB-65 testimony, by both Dr.
Beyer and Dr. Bernhisel, was a "well organized and preconceived ambush." Plaintiff
further argues that Dr. Bernhisel lacked expertise in application of CURB-65 and she was
precluded in showing this through cross-examination because of the surprise nature of the
testimony. Regarding the surprise nature of Dr. Bernhisel's testimony, Plaintiff argues on
appeal:
Dr. Bernhisel's report does make mention of the
existence of CURB-65 as such a metric but does not discuss it
26
in the body of his report or in his deposition. At the time, he
was more taken with the PORT Score criteria that he
presumably had to abandon because Dr. Beyer had not done
enough of the lab tests to obtain a score for Connie Scribner.
[¶64] Our review of the record indicates that Dr. Bernhisel did in fact discuss CURB-65
in his deposition. During his deposition taken by Plaintiff's counsel, Dr. Bernhisel
testified, in part:
Q. * * * Is there any lab or study that can be done that would
give the emergency room doctor an understanding of the
severity of the pneumonia?
A. Well, your clinical judgment's probably one of the critical
things, but we do have some guidelines that have been drawn
up and studied that look at that that give us some information
that we can use, in addition to our clinical judgment, to
determine how we treat these patients and who can we treat as
an inpatient, who do we treat as an outpatient. So we do have
some guidelines that we use on a regular basis.
Q. Are those like the pneumonia severity indexes?
A. The two that we use the most are the PORT score and the
CURB-65. Those are the two that – at the University of Utah,
and I believe nationally, are used probably of the most
frequently for pneumonia.
[¶65] This testimony by Dr. Bernhisel was followed by several pages of further
examination by Plaintiff's counsel concerning CURB-65 and PORT. Dr. Bernhisel's
testimony concerning PORT and CURB-65 was therefore in keeping with his expert
designation. We therefore find no abuse of discretion in the district court's admission of
Dr. Bernhisel's testimony. 2
2
Additionally, we note again that even if Plaintiff was surprised by Dr. Bernhisel's testimony, Plaintiff
failed to request a continuance. Thus, Plaintiff's claims of prejudice relating to the alleged surprise
testimony, namely an inability to effectively impeach and confront the testimony, are waived by her
failure to request a continuance. See In re MC, ¶ 48, 299 P.3d at 85. Finally, although Plaintiff argues
jury confusion as a result of the district court's rulings on Dr. Bernhisel's testimony, those claims likewise
seem to stem from unfair surprise and the resulting inability to properly confront Dr. Bernhisel's
testimony. They do not stem from the ground argued at trial that the testimony regarding PORT and
CURB-65 was confusing and misleading because Dr. Beyer used neither guideline in treating Decedent
and making his discharge decision. Certainly, Plaintiff has presented no argument on appeal as to how
the district court's instruction was in any way inadequate to address the concerns related to Dr. Beyer's
27
b. Dr. Beyer's Testimony
[¶66] As noted above, Defendant Dr. Beyer testified that application of the CURB-65
criteria to Decedent's symptoms on October 20 supported his discharge decision. This
testimony occurred during Plaintiff's direct examination of Dr. Beyer in her case in chief.
Plaintiff's counsel asked the first question regarding CURB-65 early in his direct
examination of Dr. Beyer.
Q. And do you remember [Defense Counsel] was asking Dr.
Haftel about the CURB-64 [sic]? Do you remember him
asking that?
A. Yes.
Q. And that's a – kind of a pneumonia severity index;
correct?
A. That is correct.
Q. And you don't use pneumonia severity indexes in your
practice; correct?
[Defense Counsel]: Actually, I asked him about CURB-65.
[Plaintiff's Counsel]: Thank you. CURB-65.
Q. You don't – the CURB-65 is a pneumonia severity index;
correct?
A. Correct.
Q. And you don't use pneumonia severity indexes in your
practice; correct?
A. Not – not very often; that is true.
[¶67] The next day, during his continuing direct examination of Dr. Beyer, Plaintiff's
counsel asked Dr. Beyer about his ability to determine how Decedent's body was
functioning internally without performing tests, and the following exchange occurred:
use or non-use of the guidelines in making his discharge decision. We therefore do not give that claim
any further consideration.
28
Q. And those things are things that you can't tell just by
looking at somebody; true?
A. True.
Q. Okay.
A. But there are – there are a set of – of prognostic criteria
set forth that give you – that predict mortality for community-
acquired pneumonia.
Q. Now –
A. The CURB-65. The CURB-65.
Q. Perfect. Perfect. Let's talk about that again, because I
want to go back to that. And I would like to –
[THE COURT]: [Plaintiff's Counsel], before we start a new
topic, I wonder if this would be a good time for a break.
****
Q. Okay. Right before we took a break, you mentioned that
there is other prognosticators, like the CURB-65; correct?
A. Correct.
Q. But yesterday when we talked, you said that you didn't
use the CURB-65 when you were treating Connie Scribner.
Do you recall that testimony?
A. Correct.
Q. All right. And that's true; correct?
A. Correct.
Q. And that you don't use at all in your practice any kind of
pneumonia severity index; true?
A. Correct.
29
[¶68] Defendant Dr. Beyer also testified to the following on direct examination by
Plaintiff's counsel:
Q. But in terms of recognizing problems – and you're talking
about pneumonia – but the problems that are associated with
sepsis, those are problems that require medical monitoring
that cannot be done by the average person at home; correct?
A. Correct.
Q. Right.
And that is why, when somebody presents in the
emergency department with a bilateral pneumonia and sepsis,
they are not sent home; they are admitted to the hospital –
A. That is not –
Q. -- where they are monitored?
A. That is not always the case. It's not.
Q. It's not what you did?
A. It's not what I did. My – that is correct. My judgment
was to discharge her. And there are – you know, there are
good studies showing that that is appropriate in some cases.
And she qualifies actually as one of those patients that can be
given a safely discharged home to be monitored.
Q. Well, okay.
The studies that you just referenced saying that she
was somebody who could be safely sent home to be
monitored, those aren't studies that you had available to you,
consulted with, looked at, considered when you made the
decision to take and send Connie Scribner home; correct?
A. That is true. They do confirm my clinical impression at
the time of discharge.
30
[¶69] During cross-examination by defense counsel, Dr. Beyer testified as follows,
without objection:
Q. [Plaintiff's Counsel] was talking to you about what
appears to be a continuum, an ongoing study of individuals
with pneumonia and the relationship that that pneumonia has
to sepsis and severe sepsis.
A. Yes.
Q. Why is there such a continual amount of attention paid to
that particular subject?
A. Because it's – you know, it's a very frustrating thing to
treat. It is – we're constantly trying to come up with new
ways to treat it better and diagnose it. And so there is a lot of
research going on in this – in this field.
Q. In the field, what has been the result of this definition?
A. This definition has been shown to be, again, overly broad;
and particularly in the case of community-acquired
pneumonia, the CURB-65 criteria have been shown compared
to SIRS plus sepsis, that those – that those exact symptoms –
or symptom complexes and the studies have been done
comparing the two in terms of prognosis. And the CURB-65
trial has been – has shown that the CURB-65 is much better
at predicting mortality and outcome in community-acquired
pneumonia as opposed to using the SIRS plus sepsis more
general criteria.
Q. SIRS plus sepsis, does that result in a large number of
unnecessary admissions?
A. Yes, it does.
Q. And so to cut down on the unnecessary admissions, you
identify the dangerous cases. Is that the reason for the study?
A. Yes. They were trying to – this was in the journal Thorax
from the Britain's thoracic society, and it's a – they found that
– that was one of their purposes, was to compare a lot of the –
the symptom complexes and symptoms to try to figure out
31
what is the best way to –to find that balance between treating
– you know, admitting appropriately too often versus
discharging folks you don't want to discharge. And, actually,
that study showed that the CURB-65 criteria are better at both
predicting those patients that are going to get worse and is
also better at predicting those that are going to – are not going
to – are – are going to get better that the SIRS plus an
infection.
[¶70] On continued cross-examination by defense counsel, Dr. Beyer testified
concerning application of the CURB-65 criteria, including his conclusions concerning
Decedent's blood urea nitrogen level as it related to the "U" in the CURB-65 analysis.
Q. All right. And the urea would be the BUN that we just
discussed?
A. Would be the BUN, correct.
Q. Connie's BUN when she presented in full cardiac arrest at
the emergency room was normal?
A. It was normal.
Q. And so what does that tell you what it would have been 24
hours before that?
A. It would be normal.
[Plaintiff's Counsel]: Object; calls for speculation.
THE COURT: Well, wait.
[Defense Counsel]: I was going to clear up the speculation if
I could.
Q. Can you make an extrapolation based upon your
education, training, and experience about whether a normal
urea on the day that she is in cardiac arrest would be normal
24 hours before that?
A. Yes. In theory –
32
[Plaintiff's Counsel]: Your Honor, I'm going to offer an
objection. If he wants to talk about it, I guess during the
direct, that's fine. But this is beyond the scope of my cross.
And I think that we're getting into an area that's also never
been designated from the witness.
THE COURT: Was this witness designated as an expert? I
can't remember.
[Defense Counsel]: Well, Your Honor, he's the defendant in
the case.
THE COURT: I know.
[Defense Counsel]: And he –
THE COURT: Does he have to be designated?
[Defense Counsel]: Well, I haven't designated him as an
expert witness, but –
THE COURT: You may ask the question. Go ahead.
Q. Can you extrapolate 24 hours before that?
A. Yes. I mean, if this – if Connie, when she arrived in the
hospital on the 21st, was – had – unconscious, was having
CPR done, if this would have been due to severe septic shock,
the BUN creatinine should be abnormal. And so if it was
normal when she was in this much extremis, then you can
pretty much assuredly say it was normal the previous day.
[¶71] On redirect examination by Plaintiff's counsel, the following exchange took place:
Q. You had mentioned this article from Thorax. Do you
recall that, the British magazine?
A. Yes.
Q. When did you review that?
A. In the last few days.
33
Q. Okay. And so you hadn't reviewed the article about
Thorax and CURB-65 and its relation to SIRS and its relation
to sepsis at any time prior to your treatment of Connie
Scribner; correct?
A. Correct.
Q. And, in fact, we talked about the fact that the CURB-65 is
not even something that you use; correct?
A. Correct. It does –
THE COURT: Wait a minute.
Q. Just a second.
[Plaintiff's Counsel]: Your Honor, I think that I would move
to strike any testimony about the BUN and the CURB-65,
anything directing the Thorax article as having been
undesignated testimony. He's offering it as an expert witness,
and it's never been designated.
[Defense Counsel]: Your Honor, he is simply defending
himself in a medical malpractice case. And I think that that
information is relevant. He's entitled to do his research of the
literature in his own defense, and that's what he did.
THE COURT: I will not strike the testimony.
[¶72] The Court did not strike the testimony, but Plaintiff's counsel was permitted the
opportunity to review the Thorax article and examine Defendant Dr. Beyer concerning
the article when Dr. Beyer was called during Defendants' case. After additional
testimony on redirect examination of Dr. Beyer by Plaintiff's counsel, Plaintiff's counsel
again objected to Dr. Beyer's testimony concerning CURB-65 and moved to strike the
testimony:
[Plaintiff's Counsel]: Your Honor, once again, I would move
to strike the testimony regarding CURB-65 because it is not
something that he used in his care and treatment of Connie
Scribner; and to talk about it as justification for his care and
treatment now is confusing and highly prejudicial, and it
shouldn't be something that the jury would have to – to wade
through in their deliberations.
34
[¶73] The court again overruled Plaintiff's objection and denied the motion to strike.
The court then gave the following instruction to the jury:
I'm going to instruct the jury that the doctor is not
testifying that he relied upon this CURB-65 or the CRB-65
when he made his decision to discharge Ms. Scribner. That is
not the basis for his testimony. He is only saying that it
confirms that what he did was right. Now, that is ultimately
your decision, but you are to consider testimony on this
CURB-65 only for that limited purpose.3
[¶74] On appeal, Plaintiff argues that the district court abused its discretion in admitting
Dr. Beyer's testimony concerning CURB-65 and Decedent's BUN levels because 1) the
testimony was undesignated expert testimony that unfairly surprised Plaintiff; and 2) the
testimony misled and confused the jury concerning the standard of care. We disagree
that Dr. Beyer's testimony should have been excluded as undesignated expert testimony,
and we also reject Plaintiff's contention that the testimony should have been excluded as
misleading or confusing.
[¶75] Rule 26(a) of the Wyoming Rules of Civil Procedure did not require designation
of Defendant Dr. Beyer's testimony. Rule 26(a) provides, in relevant part:
(2) Disclosure of expert testimony.
(A) In addition to the disclosures required by
paragraph (1) or (1.1), a party shall disclose to other parties
the identity of any person who may be used at trial to present
evidence under Rules 702, 703, or 705 of the Wyoming Rules
of Evidence.
(B) Except as otherwise stipulated or directed by the
court, this disclosure shall, with respect to a witness who is
retained or specially employed to provide expert testimony in
the case or whose duties as an employee of the party regularly
involve giving expert testimony, be accompanied by a written
report prepared and signed by the witness or disclosure signed
by counsel for the party. The report or disclosure shall contain
a complete statement of all opinions to be expressed and the
basis and reasons therefor; the data or other information
considered by the witness in forming the opinions; any
3
This instruction is in addition to the earlier-referenced written instruction the court read to the jury
before it began its deliberations.
35
exhibits to be used as a summary of or support for the
opinions; the qualifications of the witness, including a list of
all publications authored by the witness within the preceding
ten years; the compensation to be paid for the study and
testimony; and a listing of any other cases in which the
witness has testified as an expert at trial or by deposition
within the preceding four years.
(C) These disclosures shall be made at the times and in
the sequence directed by the court. In the absence of other
directions from the court or stipulation by the parties, the
disclosures shall be made at least 90 days before the trial date
or the date the case is to be ready for trial or, if the evidence
is intended solely to contradict or rebut evidence on the same
subject matter identified by another party under paragraph
(2)(B), within 30 days after the disclosure made by the other
party. The parties shall supplement these disclosures when
required under subdivision (e)(1).
W.R.C.P. 26(a)(2) (emphasis added).
[¶76] Defendants' expert witness designation stated that "Defendants reserve the right to
elicit expert testimony from treating physicians to the extent that those physicians have
opinions within their fields of expertise which relate to the issues of liability and
causation in this case." Defendants thus identified Defendant Dr. Beyer as a witness who
"may be used at trial to present evidence under Rules 702, 703, or 705 of the Wyoming
Rules of Evidence," as required by Rule 26(a)(2)(A). Beyond that, no further designation
was required. Rule 26(a)(2)(B), by its plain terms, applies to witnesses retained or
specially employed to provide expert testimony in a case. Dr. Beyer was neither. He was
a defendant, not an expert retained or employed to provide testimony.
[¶77] Moreover, we have held that a party cannot seek to exclude evidence when he
"opens the door" to inquiry about it. See Roden v. State, 2010 WY 11, ¶ 14, 225 P.3d
497, 501 (Wyo. 2010); Lawrence v. State, 2007 WY 183, ¶ 14, 171 P.3d 517, 521-22
(Wyo. 2007). Plaintiff's counsel called Dr. Beyer as a witness in Plaintiff's case-in-chief
and explored all manner of opinion testimony including the definition of sepsis, the
requirement that a physician know how to identify sepsis, the progression of sepsis, rules
an emergency room physician must follow in treating any patient, and the standard of
care as to when a pneumonia patient must be hospitalized. Additionally, as to Decedent's
BUN level, Plaintiff's counsel asked Dr. Beyer how he could know how Decedent's
bodily functions were performing, such as her kidneys, without having requested the
specific lab tests on the date he saw her in the emergency room. Plaintiff's counsel asked
a similar line of questions concerning how Dr. Beyer could know whether there were any
36
signs or symptoms of severe sepsis if he had not requested the specific lab tests when he
saw her. Having opened the door to Dr. Beyer's opinions, Plaintiff was not in a position
to seek exclusion of the relevant testimony.
[¶78] Finally, on the question of unfair surprise, the district court made allowances for
Plaintiff's counsel to review the article relied upon by Dr. Beyer in his testimony, and
gave him leeway to further examine Dr. Beyer on the article when Dr. Beyer was called
in Defendants’ case. At trial, Plaintiff's counsel commented on that relief, stating, "I
would say that – Your Honor, that Dr. Beyer talked about CURB-65 being a better
predictor of mortality than SIRS. And I'm aware of that. And I had the weekend to read
it. And I am prepared on that." It is apparent that to the extent Plaintiff felt blind-sided
by Dr. Beyer's CURB-65 testimony, the court adequately addressed that issue at trial. To
the extent that Plaintiff asserts any further prejudice as a result of unfair surprise, such as
the ability to impeach Dr. Beyer's reliance on a particular article or the ability to fully
confront Dr. Beyer's extrapolation of BUN values and the significance of those values,
we find these claims to be waived by Plaintiff's failure to request a continuance. See also
Parrish, ¶ 15 n.4, 130 P.3d at 507 n.4 ("Since trial counsel did not request a continuance
at the time the trial court overruled his objection, the objection of unfair surprise is
effectively waived.").
[¶79] We turn last to Plaintiff's argument that Dr. Beyer's testimony should have been
excluded as misleading and confusing to the jury on the question of the standard of care.
In making this argument, Plaintiff cites to Wyo. Stat. Ann. § 1-12-601, which sets forth a
plaintiff's burden of proof in a medical malpractice action. In particular, the provision
requires that a plaintiff prove that the defendant physician "failed to act in accordance
with the standard of care adhered to by that national board or association." Wyo. Stat.
Ann. § 1-12-601(a)(i) (LexisNexis 2013). Based on this provision, Plaintiff argues that
Dr. Beyer's testimony was confusing and misleading because the testimony advocated for
a standard of care that was not followed by Dr. Beyer and was based on a study published
in 2006, after Dr. Beyer's treatment and discharge decisions in the care of Decedent.
[¶80] Plaintiff's argument is flawed for the fundamental reason that it attempts to shift
the burden of proof. In a medical malpractice action, it is clear that a plaintiff carries the
burden of establishing: 1) the standard of care; and 2) that the defendant physician
deviated from that standard of care. Id.; Witherspoon v. Teton Laser Center, LLC, 2007
WY 3, ¶ 16, 149 P.3d 715, 726-27 (Wyo. 2007). A defendant is not required to establish
the standard of care.
[¶81] In this case, Plaintiff asserted that the definition of sepsis is SIRS plus infection
and that the standard of care required hospitalization of any pneumonia patient meeting
that definition. The studies cited by Dr. Beyer, and by Dr. Bernhisel, showed that the
standard of care asserted by Plaintiff was not supported by studies of pneumonia patients
and their responses to sepsis. The studies otherwise showed that other guidelines are
37
better predictors of mortality among pneumonia patients. That evidence was relevant to
rebut Plaintiff's proffered standard of care. Dr. Beyer's testimony, again echoed by Dr.
Bernhisel, was not that Dr. Beyer followed the alternative guidelines, but rather that his
exercise of clinical judgment was consistent with these guidelines. This too was relevant
to rebut Plaintiff's evidence that Dr. Beyer deviated from the standard of care.
[¶82] The district court's repeated instructions to the jury that testimony concerning
alternative guidelines was not testimony that Dr. Beyer followed those particular
guidelines adequately guarded against any confusion that could arise from either Dr.
Beyer's or Dr. Bernhisel's testimony. We find no abuse of discretion in the admission of
Dr. Beyer's testimony concerning CURB-65 or Decedent's extrapolated BUN levels.
CONCLUSION
[¶83] The district court did not abuse its discretion in declaring a mistrial or in admitting
the testimony of Defendant Dr. Beyer and Defendants' emergency medicine expert
specified in Plaintiff's statement of her issues on appeal. Affirmed.
38