Klonoski v. Mahlab CV-95-153-M 05/05/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Estate of Jolanta K. Klonoski, Plaintiff,
v. Civil No. 95-153-M
Beniamin Mahlab, M.D.; Hitchcock Clinic, Inc.; and Mary Hitchcock Memorial Hospital, Inc., Defendants.
O R D E R
This medical malpractice case arises from Jolanta Klonoski's
death while a maternity patient at the Dartmouth-Hitchcock
Medical Center in Hanover, New Hampshire. Jurisdiction is based
upon diversity of citizenship.
The case was tried to a jury, and a verdict was returned in
favor of the defendants.The plaintiff estate now moves for a
new trial (document no. 136) under Federal Rule of Civil
Procedure 59, asserting two basic grounds. First, plaintiff says
the jury's verdict was against the clear weight of the evidence.
Second, plaintiff says the interests of justice warrant a new
trial because particular evidence presented to the jury was
unfairly prejudicial.
I. Is the verdict against the clear weight of evidence? Had this been a bench trial, the court would have reached a
conclusion different from that represented by the jury's verdict.
But the case was not tried to the court, and, in the end,
defendants are quite right in saying that the critical fact
issues turned on conflicting medical opinion evidence. The
critical issues, for purposes of the pending motion, were not
whether the treating physician. Dr. Mahlab, met the applicable
standard of care in all respects (defendants conceded that he did
not), or whether some of the attending nurses behaved
unprofessionally and inappropriately when, despite their belief
that Mrs. Klonoski was severely preeclamptic, in dire straits,
and not receiving adequate medical care from Dr. Mahlab, they
inexplicably failed to seek help from a supervising physician
designated by hospital policy to assist in precisely that type of
situation. (Though not conceded by defense counsel, it is
apparent to the court that, in general, the nurses attending Mrs.
Klonoski did not act either professionally or in her best
interests.)
Rather, the critical fact issues were whether Mrs.
Klonoski's intracerebral hemorrhage, the cause of her death, was
the result of a preeclamptic hypertensive bleed substantially
caused by inadequate medical care, or the result of an
unanticipated arteriovenous malformation ("AVM") rupture. And,
2 if death was the result of an AVM rupture, whether Dr. Mahlab's
failure to adequately treat Mrs. Klonoski's preeclampsia
substantially caused or contributed to cause either the AVM
rupture itself, or the fatal extent of her subsequent brain
hemorrhaqe.
"Proof of causation is . . . more difficult in a medical
malpractice case than in a routine tort case because a jury must
often qrapple with scientific processes that are unfamiliar and
involve inherent uncertainty." Lama v. Borras, 16 F.3d 473, 478
(1st Cir. 1994). Proof of causation in this case was essentially
analytical in nature; the jury was particularly dependent upon
expert opinion testimony in resolvinq the medical fact issues.
Both parties presented very hiqhly qualified, experienced, and
knowledqeable medical experts — experts who fundamentally
disaqreed as to the cause of death, but who qenerally aqreed that
their opinions necessarily derived from analytical judqments
reqardinq medical probabilities, and that no one could say for
certain what caused Mrs. Klonoski's death.1
The jury apparently chose to believe that defendants'
experts were more likely correct in concludinq that Mrs.
Klonoski's death resulted from an unanticipated AVM rupture.
1 Because no autopsy was performed there was no conclusive evidence of the existence or absence of a ruptured AVM.
3 either coincidentally or due to the stresses of pregnancy itself,
but not due to any deficiency in Dr. Mahlab's medical treatment
of her preeclampsia. Or, perhaps the jury determined that
notwithstanding some relationship between Mahlab's malpractice
and the extent of the AVM bleed — the bleed would have occurred
and its size would have been fatal even absent additional
bleeding caused by Dr. Mahlab's malpractice. Of course, the jury
also could have decided that the medical experts' disagreement
established, if anything, that both plaintiff's and defendants'
causal theories were egually plausible and, thus, plaintiff
failed to meet its burden of persuasion on causation.
As noted, the court would have decided the medical fact
issues differently, but the court is in no better position than
the jury to decide those open and contested fact issues. This is
not a case in which the evidence, particularly in light of the
opposing medical opinions, resoundingly favored one side or the
other. One's view of the evidence as a whole necessarily turns
upon one's assessment of the credibility, reliability, and
persuasiveness of the medical experts, and that function is well
suited to a jury's collective wisdom and judgment.
The court cannot in good conscience say that the verdict was
against the great weight of the credible evidence presented, or
that the jury was seriously mistaken to the extent it found the
4 opposing medical experts equally credible, or found defendants'
experts more credible. While a judge's discretion to order a new
trial was at one time considered virtually unlimited, and is
still sometimes referred to as "great," in reality the exercise
of that discretion has limits — it "must be exercised with due
regard to the rights of both parties to have questions which are
fairly open resolved finally by the jury at a single trial."
Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir. 1982)
(citations and explanatory footnote omitted). The critical
liability questions in this case were "fairly open."
Recognizing that "the [trial] judge's duty is to exercise a
more limited discretion" and he or she "should not interfere with
the verdict 'unless it is quite clear that the jury has reached a
seriously erroneous result,'" I must deny the motion for new
trial. Coffran, 683 F.2d at 6 (quoting Borras v. Sea-Land Serv.
Inc., 586 F.2d 881, 887 (1st Cir. 1978)). I cannot say on this
record that the verdict was against the clear weight of the
evidence, though I do disagree with the verdict.2 See Coffran,
2 Plaintiff also seems to argue, without much elaboration or reference to any legal authority, that the jury's verdict surely must be seen as against the clear weight of the evidence at least to the extent that Dr. Mahlab's conceded breaches of duty necessarily caused some compensable pain and suffering, or prolongation of pain and suffering (related to decedent's mistreated severe preeclampsia) that otherwise would not have occurred had he provided adequate care. Although the issue was not raised by plaintiff before or during trial, and has not been
5 683 F.2d at 6 (trial judge should not set a verdict aside just
because he or she would have reached a different result in a
bench trial); Freeman v. Package Machinery Co., 865 F.2d 1331,
1334 (1st Cir. 1988) ("If the weight of the evidence is not
grotesguely lopsided, it is irrelevant that the judge, were he
sitting jury-waived, would likely have found the other way.");
Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988)
("[A] trial judge cannot displace a jury's verdict merely because
he disagrees with it or would have found otherwise in a bench
trial.") .
II. The Interest of Justice
Plaintiff raises several arguments under this heading, but
they too are unavailing. Taking the points in order, the court
rules as follows.
A. Duration of Jury Deliberation
adeguately briefed by plaintiff now, the short answer would seem to be that "[a]t common law there was no action for wrongful death nor did tort actions for [personal] injuries survive." Costoras v. Noel, 101 N.H. 71 (1957) (citations omitted). Therefore, if plaintiff is claiming that the verdict is against the weight of the evidence because the evidence unguestionably established breaches of duty by Dr. Mahlab which proximately caused personal injury to Mrs. Klonoski before her death in the nature of unnecessary pain and suffering related to preeclampsia, that tort claim did not survive Mrs. Klonoski's death. (The wrongful death claim, however, is statutorily allowed.)
6 The court is not persuaded that the jury's deliberation was
inappropriately short, or that the two plus hours of deliberation
necessarily indicates, much less establishes, that the jury
failed to follow the court's instructions. The jury heard a
great deal of testimony but, as discussed above, the causation
issue was critical. The jury could easily have focused on that
issue first, determining after a short while that it was in
agreement with defendants' experts. Or, it could have agreed
that, given the plausible medical opinions on each side,
plaintiff simply did not meet its burden of proof on causation.
B. Undisclosed Marital Evidence
Decedent's husband. Dr. Richard Klonoski, took the stand to
testify that while his marriage had not been perfect, it had
been, overall, a strong, healthy and happy one, and would likely
have continued to be strong into the future. Plaintiff also
introduced family photographs and a brief family video to support
that contention. The video, redacted in part after court review,
depicted a recent family wedding, just before Mrs. Klonoski died,
at which Dr. and Mrs. Klonoski were shown in church and later
dancing together at the reception.
This evidence was offered by plaintiff on the issue of
hedonic damages — fair compensation for Mrs. Klonoski's loss of
7 enjoyment of life. Without belaboring the record discussions on
this issue, the court admitted the evidence for that limited
purpose and fairly advised plaintiff's counsel that contradictory
evidence — to show that the marriage was not all that wonderful —
would also be admissible on hedonic damages.
Defendants' counsel represented to the court, on the record,
that only after trial started did they discover and obtain copies
of letters that were written by the decedent, close to the time
of her death, that dramatically contradicted Dr. Klonoski's
testimony about the marriage. Investigators hired by defendants
in Poland (Mrs. Klonoski's country of birth) obtained the letters
from Mrs. Klonoski's sister, Marta. The copies were faxed to New
Hampshire and translated while Dr. Klonoski was testifying. The
letters, in their entirety, were guite contradictory — painting
an entirely different picture of the Klonoski marriage than Dr.
Klonoski had described.
The court asked plaintiff's counsel if she wished a
continuance to respond to this late discovered evidence, but she
declined. Defendants were allowed to use only very limited
excerpts from the letters to cross-examine Dr. Klonoski. That
is, the court identified specific statements in the letters that
directly contradicted his testimony, but precluded use of most of
the contents on grounds that the sentiments expressed and language used might prove unfairly distracting. Several times
during the trial the court told both counsel that they seemed to
be making much over a relatively small matter — whether the
marriage was happy or unhappy would seem to say comparatively
little about the decedent's future loss of enjoyment of life.
But, both parties pursued the matter anyway under the guise of
hedonic damages, plaintiff perhaps to engender some collateral
sympathy and defendants to perhaps engender some collateral
animosity. So, the court took the added precaution of carefully
explaining to the jury the very limited purpose of that evidence,
giving the following pointed instruction after closing arguments
(which the jury had in writing as well):
B. Damages to the Estate of Jolanta Klonoski
1. Calculation of Damages
In determining the amount to award as damages to the Estate of Jolanta Klonoski, you may consider the following items of loss or harm: •k -k -k
4. Reasonable compensation for Jolanta Klonoski's loss of enjoyment of life - past and future.
Ladies and gentlemen, as to this last item - loss of enjoyment of life, you have heard a fair amount of evidence related to alleged discord in the Klonoski marriage, and I want to make sure you understand what that evidence is relevant to, and what it is not relevant to - it is relevant only on the issue of damages, and even then, only in a limited way. You should keep in mind that under applicable New Hampshire law, a cause of action (or a claim) based on someone's allegedly wrongful death belongs to the decedent's estate, and does not belong to the decedent's surviving spouse or surviving children. So, in this case, if you find legal fault and are considering damages, the damages you award for Mrs. Klonoski's wrongful death are awarded to her estate. As I have instructed you, one among other factors you may consider in determining a proper award would be Mrs. Klonoski's loss of enjoyment of life, factor number 4 mentioned above. It is of course, Mrs. Klonoski's loss of enjoyment of life that you will be considering, not Dr. Klonoski's loss of enjoyment of life, and not their children's loss of enjoyment of life. Dr. Klonoski and the Klonoski children have no claims pending before you, and you must not award damages to them.
Now, to the extent you find, based on the evidence, that there was discord in her marriage you may take that into account and may give it such weight as you deem appropriate in fairly assessing the effect of marital discord on the loss of enjoyment of life Mrs. Klonoski suffered as part of your determination of a full and fair compensatory award. On the verdict form that you will be provided, I will ask you to break out, or designate, that part of any total compensatory award that represents the amount, if any, awarded for loss of enjoyment of life.
The court is satisfied that the jury fully understood and
followed its instructions regarding the "marital discord"
evidence.
Plaintiff's counsel suggests that had she known Mrs.
Klonoski's letters existed and were so patently inconsistent with
Dr. Klonoski's more favorable perceptions of the marriage, her
trial strategy would have been different. But, she also says, as
Dr. Klonoski said to the jury upon being recalled, his different
perceptions were honestly held. The jury could certainly
10 appreciate the apparent difference in perception between Dr. and
Mrs. Klonoski, and could have easily put the "marital discord"
evidence in proper perspective had it reached the issue of
hedonic damages.
The important points here are that the letters were in fact
late discovered (nothing to the contrary has been shown); it was
not unfair to permit defendants to use limited excerpts to cross-
examine Dr. Klonoski about the marriage (to the extent that
mattered in awarding hedonic damages), particularly given his own
dramatic statements and video evidence on direct; the evidence
was relevant to damages but only in a limited way; the jury never
reached the damages issue; and, the jury was carefully instructed
on the limited relevance of the "marital discord" evidence.
Under these circumstances, the court cannot conclude that
the jurors returned a defendants' verdict because they were
blindly prejudiced against Mrs. Klonoski's estate by her own
negative comments about the guality of her marriage. The jurors
may well have looked less favorably on Dr. Klonoski after the
letters were brought to light, and his credibility in other
respects might or might not have suffered, but he had no claim
pending before the jury, and that fact was made very clear to the
jury.
11 C. The Headache Evidence
Both sides presented evidence tending to show that Mrs.
Klonoski suffered from headaches during the later stages of her
pregnancy. Defendants also presented witnesses who said Dr.
Klonoski was aware of those headaches.
Plaintiff apparently wanted to show that Dr. Sailer (an
original defendant who provided prenatal care) should have
recorded those headaches in Mrs. Klonoski's medical records, and
that, had he done so. Dr. Mahlab would likely have diagnosed the
later preeclampsia in a timely fashion. Defendants, on the other
hand, wanted to show that Mrs. Klonoski did have headaches, that
they were increasingly severe and freguent, and they were
consistent with a subseguent AVM rupture.
Plaintiff seems to argue in its motion for new trial that
the testimony regarding Dr. Klonoski's knowledge of Mrs.
Klonoski's headaches was improperly admitted, and worse, was
relied upon by defense counsel to subtly argue in closingthat
Dr. Klonoski was "contributorily negligent" in some manner (New
Hampshire is a comparative fault state).
Plaintiff's counsel did not timely object to defense
counsel's closing argument, so the issue is waived. But putting
waiver aside for discussion purposes, headache evidence was
offered by defendants to show that their AVM hypothesis was both
12 supportable and supported. Defendants properly tried to prove
that Mrs. Klonoski suffered from increasingly severe and frequent
headaches, and that those headaches were symptoms consistent with
"warning bleeds" that sometime precede an AVM rupture. The
defendants' points were that an AVM rupture occurred, and, had
they been told early on of the increasingly severe and frequent
headaches, the course of Mrs. Klonoski's medical treatment might
have differed — perhaps testing for a possible AVM might have
been done, and, if an AVM had been found, perhaps an alternative
delivery method would have been used in an effort to avoid an AVM
rupture, or perhaps corrective surgery would have been
recommended prior to decedent's giving birth. In short, Mrs.
Klonoski's death in childbirth might have been averted.
Defendants also suggested, properly, that perhaps the reason they
were not told of the headaches was that neither Dr. Klonoski, who
was aware of them, nor Mrs. Klonoski thought they were
significant or unusual.
In any event, defense counsel did not argue "contributory
negligence" in closing, and the evidence of Mrs. Klonoski's
experiences with headaches and Dr. Klonoski's awareness of her
headaches was properly admitted and was not unfairly prejudicial
such that a new trial is warranted.
13 D. The Testimony of the Nurses
Virtually all of the nurses employed by Dartmouth-Hitchcock
Medical Center who were called to testify claimed varying degrees
of forgetfulness regarding the relevant facts and circumstances
surrounding Mrs. Klonoski's hospitalization and death. Excepting
Nurse Bowers, the court perceived the nurses' trial testimony to
be generally evasive, obfuscating, unreliable, and not credible.
For reasons discussed in earlier orders in this case relative to
privilege, and on the record at trial, the court permitted
plaintiff's counsel to deal with this collective forgetfulness by
introducing as full exhibits the comprehensive statements each
nurse gave to the hospital's claims adjustor, Mr. Burke, as
recorded by Burke during interviews he conducted shortly after
Mrs. Klonoski's death.
Plaintiff argues for a new trial on grounds that the nurses'
suspect trial testimony (presumably their claimed lack of memory)
so unfairly prejudiced plaintiff's case as to warrant a new
trial. In the court's view, the nurses' assertions of memory
failure were indeed highly dubious. But, if they had remembered
all that they once knew, it is unlikely that they would have had
anything of a substantive nature to say at trial beyond what they
said to Burke, the medical center's claims adjustor. The
statements given to Burke were also likely to have been full and
14 candid, for the nurses undoubtedly recognized at the time that
the hospital was attempting to determine exactly what had
happened in order to protect against avoidable errors in the
future. The statements themselves reveal that the nurses held,
and freely expressed, very strong impressions and opinions about
what had gone wrong and why. The statements were taken by Burke
when memories were fresh and details were clear; certainly the
statements give the impression of complete candor. Burke was
also revealed, by plaitiff's counsel, to be an experienced and
thorough investigator who at the time was acting on behalf of the
medical center and hospital, the nurses' employer.
Plaintiff makes no proffer regarding what information any of
the nurses might have offered, beyond what was contained in
Burke's recordings, if their memories had been intact at trial.
The nurses' full statements to Burke were not only allowed into
evidence, but plaintiff's counsel was given wide lattitude in
using them. She was permitted to read extensively from them, and
she freely confronted the nurses, Burke, Dr. Mahlab, and other
witnesses with them. It is difficult to see what more could have
been done to overcome any possible prejudice from the nurses'
claimed lack of memory and to reveal the facts to the jury as the
nurses remembered them at the relevant time. A new trial is not
15 warranted on this ground, at least not as described, asserted, or
supported by plaintiff in its motion.
Conclusion
For the reasons discussed, the court declines to exercise
its discretion to grant a new trial on the grounds asserted.
Plaintiff's motion for new trial (document no. 136) is denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
May 5, 1997
cc: Donald J. Williamson, Esg. Joan A. Lukey, Esg. James P. Bassett, Esg.