Robbie M. Nason v. Timothy Pruchnic

2019 ME 38

• Court: Supreme Judicial Court of Maine
• Decided: March 12, 2019
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2019 ME 38 Docket: Pen-18-10 Argued: October 11, 2018 Decided: March 12, 2019

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

ROBBIE M. NASON

v.

TIMOTHY PRUCHNIC et al.

JABAR, J.

[¶1] Timothy Pruchnic, M.D., and Eastern Maine Medical Center

(collectively, excepted where indicated otherwise, Pruchnic) appeal from a

judgment entered after a jury trial in the Superior Court (Penobscot County,

A. Murray, J.) in favor of Robbie M. Nason on his claim for medical malpractice

against Pruchnic. We affirm the judgment.

I. BACKGROUND

[¶2] The following facts, including all justifiable inferences, are drawn

from the trial record as viewed in the light most favorable to the jury verdict.

See Hansen v. Sunday River Skiway Corp., 1999 ME 45, ¶ 5, 726 A.2d 220.

[¶3] In July 2013, Nason fractured the scaphoid bone of his right wrist

while working. Nason was referred to Pruchnic, a hand surgeon employed at 2

Eastern Maine Medical Center, who determined that surgical intervention was

required for proper healing. Pruchnic performed a surgical implantation of a

compression screw in Nason’s scaphoid bone in September 2013.

[¶4] Throughout the next few months, Pruchnic completed several

imaging studies on Nason’s wrist, but failed to discover any potential problems.

Believing Nason’s wrist to be healing properly, Pruchnic had Nason begin

physical therapy, where he experienced pain and a distinct clicking feeling in

his wrist. Eventually, Pruchnic realized that the screw he had placed in Nason’s

wrist was protruding from the scaphoid bone and into the surrounding

cartilage.

[¶5] Due to Nason’s extended absence from work, his workers’

compensation agent scheduled him to be examined by another surgeon. Upon

examining Nason, the surgeon immediately recognized that the screw was

protruding from Nason’s scaphoid bone and performed surgery to remove the

screw, during which the surgeon observed extensive damage to the cartilage of

Nason’s right wrist. The surgeon performed a second surgery in an attempt to

clean up as much damage as possible. Despite these efforts, Nason continued

to experience pain in his right wrist, and several injections proved ineffective. 3

Ultimately, the surgeon completed a third surgery on Nason, removing his

scaphoid bone along with two other bones.

[¶6] Nason brought an action against Pruchnic and Eastern Maine

Medical Center, alleging negligence in Pruchnic’s attempted surgical repair of

his scaphoid bone, leaving him with permanent pain and impairment of his

wrist. The jury unanimously found Pruchnic and Eastern Maine Medical Center

negligent and awarded damages of $2,000,000.1 Pruchnic moved for a new

trial, or in the alternative, remittitur, on the ground that the jury verdict was

excessive. The Superior Court denied Pruchnic’s motion. This appeal followed.

II. DISCUSSION

[¶7] Pruchnic argues that he was entitled to a new trial, or in the

alternative, remittitur, on the ground that the jury awarded excessive damages.

Pruchnic also argues that the trial court erred by giving a jury instruction

pursuant to Lovely v. Allstate Ins. Co., 658 A.2d 1091 (Me. 1995), admitting only

redacted portions of radiology reports, and instructing the jury to disregard

mentions of workers’ compensation.

1 The trial court instructed the jury, by agreement, that Pruchnic’s employer, Eastern Maine

Medical Center, was liable for any negligence that it found on the part of Pruchnic. 4

A. Excessive Damages

[¶8] The assessment of damages “is the responsibility of the jury and

generally its judgment must stand. However, the trial court may intervene to

set aside an excessive verdict if the moving party is able to demonstrate that

the jury acted under some bias, prejudice, or improper influence, or has made

some mistake of fact or law.” Seabury-Peterson v. Jhamb, 2011 ME 35, ¶ 18,

15 A.3d 746 (alteration and citation omitted) (quotation marks omitted).

Because the trial court has the opportunity to observe the trial, “it is in a far

better position than an appellate court to determine whether the damages are

rationally supported by the evidence and whether the jury had an improper

motive for awarding excessive damages.” Id. ¶ 19. Accordingly, we review a

trial court’s refusal to grant a new trial or remittitur based on an allegedly

excessive jury verdict for a clear and manifest abuse of discretion. See Marston

v. Newavom, 629 A.2d 587, 593 (Me. 1993).

[¶9] In reviewing a claim that a jury verdict is excessive, the trial court

first “examines the evidence in the light most favorable to the verdict” to

determine if the verdict bears a rational relationship to the evidence.

Seabury-Peterson, 2011 ME 35, ¶ 19, 15 A.3d 746. A rational relationship exists

if there is any competent evidence in the record to support the verdict. See 5

Bourette v. Dresser Indus., Inc., 481 A.2d 170, 174 (Me. 1984). If no rational

relationship exists between the evidence in the record and the damages award,

then the trial court must evaluate the jury’s basis for awarding the allegedly

excessive damages. See Seabury-Peterson, 2011 ME 35, ¶ 19, 15 A.3d 746. If an

excessive award stems from an improper basis, “such as passion or prejudice,

a new trial is the appropriate remedy.” Id. However, when the excessive award

stems from a good faith mistake, remittitur to the maximum amount that

rationally could be found by a jury is the appropriate remedy. Id.

[¶10] Contrary to Pruchnic’s contentions, there is competent evidence in

the record to support the trial court’s determination that there was a rational

relationship between that evidence and the jury’s damage award. Due to

Pruchnic’s negligence, three bones were removed from Nason’s wrist, leaving

him permanently and significantly impaired. This impairment has caused

demonstrated changes in Nason’s daily life and activities. Nason has further

experienced emotional distress based on a fear of unemployability should he

lose his job and a reduced self-worth due to his inability to engage in activities

as he did before the surgery performed by Pruchnic. Moreover, because of the

impairment, Nason was required to take a new position at work, resulting in

the loss of significant overtime wages. 6

[¶11] Because the court could reasonably determine that the evidence

bears a rational relationship to the jury’s award of $2,000,000, it was not a clear

and manifest abuse of discretion for the court to deny Pruchnic’s motion for a

new trial, or in the alternative, remittitur.2 We may not intervene merely

because of the amount of the award or because another jury may have awarded

less. See Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 122

(Me. 1970). This is particularly true where, as here, the jury was given a general

verdict form, making it impossible to specifically determine the components of

damages assessed by the jury that led to the overall verdict. See Withers v.

Hackett, 1999 ME 117, ¶ 8, 734 A.2d 189 (“Where damages cannot be

specifically calculated from the record and are based on the subjective

judgment of the fact finder, the issue is properly one for a jury.”).

B. The Lovely Jury Instruction

[¶12] Pruchnic next contends that it was error for the trial court to give

a jury instruction pursuant to Lovely v. Allstate Ins. Co., 658 A.2d 1091

2 As an additional argument for a new trial, Pruchnic contends that the trial court’s exclusion of

references to Nason’s smoking in his medical records was error. Pruchnic argues that had the jury been apprised of Nason’s smoking, the jury would not have awarded such significant damages because smoking shortens a person’s life expectancy and reduces the person’s ability to heal from trauma. However, Pruchnic failed to designate an expert to testify on the issue, and despite objecting to the court’s redaction of the medical records, failed to provide an argument as to why the evidence was relevant and admissible or an offer of proof to preserve his objection. See M.R. Evid. 103(a)(2); State v. Williams, 462 A.2d 491, 492 (Me. 1983). Thus, we find no abuse of discretion in the trial court’s exclusion of this evidence or denial of a new trial based on its exclusion. 7

(Me. 1995), because the evidence adduced at trial did not warrant such an

instruction. A trial court must give the jury instructions that are generated by

the evidence presented in the case. See Bratton v. McDonough, 2014 ME 64,

¶ 20, 91 A.3d 1050. We will not disturb a judgment on the ground that a jury

instruction was given in error unless, viewing the jury instructions in their

entirety, the “instructions fail to inform the jury correctly and fairly in all

necessary respects of the governing law.” Niedojadlo v. Cent. Me. Moving

& Storage Co., 1998 ME 199, ¶ 8, 715 A.2d 934. When, as here, an objection to

the trial court’s jury instructions is properly preserved, “we will vacate the

[trial] court’s judgment only if the erroneous instruction resulted in prejudice.”

Caruso v. Jackson Lab., 2014 ME 101, ¶ 12, 98 A.3d 221.

[¶13] In Lovely, we explained that the “single injury rule places any

hardship resulting from the difficulty of apportionment on the proven

wrongdoer and not on the innocent plaintiff.” 658 A.2d at 1093; see also

Palleschi v. Palleschi, 1998 ME 3, ¶ 3, 704 A.2d 383 (“Our decision in Lovely

. . . makes clear the policy choice that, as between an innocent victim and a

tortfeasor, the law burdens the wrongdoer with the difficulties of

apportionment.”). “The issue of apportionment will be present whenever the

defendant, in response to the damage claimed, produces evidence of a 8

preexisting or subsequent injury which the defendant asserts is the cause of

some portion of the plaintiff’s problems.” Lovely, 658 A.2d at 1094 (Lipez, J.,

concurring).

[¶14] The evidence presented to the jury, including that presented by

Pruchnic, raised the issue of apportionment such that a Lovely instruction was

appropriate. In his opening statement, Pruchnic pointed out that “there were

other abnormalities in [Nason’s] wrist which have nothing to do with the

screw.” Pruchnic’s expert testified that the extent of injury to Nason’s wrist

could be due to wear and tear from an active life, degenerative changes, and the

potential trauma from having multiple surgeries. On cross-examination of the

surgeon who removed the screw from Nason’s wrist, Pruchnic developed

testimony that the damage to Nason’s wrist could have been due to early

arthritis or trauma from the surgery. Finally, during closing arguments

Pruchnic stated that “there’s other things going on in Mr. Nason’s hand in

different areas of the wrist,” and that there was “evidence of cysts and a

degenerative process even before the screw [was] placed.” The evidence and

arguments presented by Pruchnic raised the issue of a preexisting or

subsequent injury causing at least some portion of Nason’s problems. See id.

Thus, it was not error for the court to instruct the jury pursuant to Lovely. 9

C. Radiology Reports

[¶15] Pruchnic also argues that he was prejudiced by the trial court’s

redaction of several radiology reports in which the radiologists offered

opinions as to potential causes of Nason’s wrist problems based on their review

of Nason’s imaging studies. Pruchnic asserts that the records were admissible

in their entirety pursuant to 16 M.R.S. § 357 (2018), or, alternatively, as facts

forming the basis of an expert’s opinion and statements made for medical

diagnosis and treatment. See M.R. Evid. 703, 803(4).

[¶16] Section 357, in its relevant part, states that

[r]ecords kept by hospitals and other medical facilities licensed under the laws of this State . . . shall be admissible[] as evidence in the courts of this State so far as such records relate to the treatment and medical history of such cases and the court shall admit copies of such records, if certified by the persons in custody thereof to be true and complete, but nothing therein contained shall be admissible as evidence which has reference to the question of liability.

16 M.R.S. § 357.

[¶17] Section 357 “provides a method of authenticating the hospital

records and provides an exception to Rule 802 of the Maine Rules of Evidence,

which, as a general matter, bars the admission of hearsay evidence.” State v.

Jones, 2019 ME 33, ¶ 12, --- A.3d ---. However, this does not “override the

application of other Maine Rules of Evidence not pertaining to hearsay.” Id. 10

¶ 13; see also State v. Caron, 2011 ME 9, ¶ 15, 10 A.3d 739 (“Medical records

may, and often must, be admitted in redacted form. . . .”); Cyr v Hurd, 554 A.2d

345, 346-47 (Me. 1989). Rather, “for the proper admission of a hospital record

pursuant to section 357, the party offering the record must (A) establish that

the report is relevant to the matter before the court; (B) satisfy the

requirements of section 357; and (C) establish that the Maine Rules of Evidence

do not otherwise require the exclusion of the medical record.” Jones, 2019 ME

33, ¶ 14, ---A.3d --- (internal citations omitted).

[¶18] Here, there is no doubt that the documents at issue were medical

records and were properly authenticated. Therefore, the section 357 exception

to the hearsay rules applied to any parts of the documents that were related to

treatment and medical history.3 See id. ¶ 15.

[¶19] Even though the radiologists reports were medical records within

the purview of section 357, the court excluded the reports as the opinions of

nondesignated experts. See M.R. Evid. 702; State v. Marden, 673 A.2d 1304,

1311 n.5 (Me. 1996) (stating that “opinion testimony that . . . is not within the

common knowledge of an ordinary person . . . may not be given by a lay

3 Because, in accordance with section 357, the medical records are not subject to the general rule

that excludes hearsay, we do not reach Pruchnic’s other arguments as to whether the records could be admissible pursuant to an exception to the hearsay rule. 11

witness”). The portions of the records that Pruchnic sought to admit were the

statements of nontreating and nontestifying radiologists offering their expert

opinions as to potential causes of visual findings. Because Pruchnic failed to

designate the radiologists as experts, the court acted correctly in excluding,

without reference to section 357, those portions of the records containing the

undesignated expert witnesses’ opinions. See Mitchell v. Kieliszek, 2006 ME 70,

¶ 19, 900 A.2d 719 (“We have consistently held that it is an appropriate

exercise of the trial court’s discretion to exclude expert testimony when the

party seeking to elicit the opinion failed to designate the witness as an expert

. . . .”); M.R. Civ. P. 16A(a), (b).

D. Worker’s Compensation

[¶20] Lastly, Pruchnic argues that the trial court erred by instructing the

jury to disregard all references to workers’ compensation after allowing those

references to be made throughout the trial. This, Pruchnic argues, confused the

jury and allowed Nason a double recovery.

[¶21] Pruchnic did not object to the testimony regarding workers’

compensation, nor did he object to the jury instruction given by the court.

“When the claimed error has not been preserved, we review the instruction for

obvious error.” Morey v. Stratton, 2000 ME 147, ¶ 10, 756 A.2d 496. An error 12

is obvious only when it “constitutes such a serious injustice that reversal is

necessary because we could not in good conscience let the judgment stand.”

Coyne v. Peace, 2004 ME 150, ¶ 14, 863 A.2d 885.

[¶22] The collateral source doctrine typically precludes the admission of

evidence of workers’ compensation because “a plaintiff who has received

compensation for [his] damages from sources independent of the tortfeasor

remains entitled to a full recovery [from the tortfeasor].” Grover v. Boise

Cascade Corp., 2004 ME 119, ¶ 24, 860 A.2d 851 (quotation marks omitted).

However, such evidence “may be admissible for purposes other than mitigation

of damages that are recoverable from the tortfeasor.” Id. Where evidence of a

collateral source comes to the attention of the jury, “[a] curative instruction is

often sufficient to avert the danger of prejudice . . . .” Theriault v. Swan, 558 A.2d

369, 371 (Me. 1989).

[¶23] Here, the only references to workers’ compensation were elicited

to explain why Nason left Pruchnic’s care. The court, in response, instructed

the jury that it must “completely disregard” references to workers’

compensation, and that it “may not consider what benefits were received, what

they amounted to, or what rights existed based upon the payment of those

benefits.” We must assume that the jury followed the court’s instruction, which 13

was straight-forward and—contrary to Pruchnic’s assertion—not confusing.

See id.; State v. Franzen, 461 A.2d 1068, 1073 (Me. 1983) (“We cannot presume

that the jury was too ignorant to comprehend the law given to them in [the]

case and to apply the same to the facts . . . .”). Therefore, we find no obvious

error in the court’s workers’ compensation jury instruction.

The entry is:

Judgment affirmed.

Ernest J. Babcock, Esq. (orally), Adria Y. LaRose, Esq., and Janna Gau, Esq., Eaton Peabody, Bangor, for appellants Timothy Pruchnic and Eastern Maine Medical Center

Jodi L. Nofsinger, Esq. (orally), and Taylor A. Asen, Esq., Berman & Simmons, P.A., Lewiston, for appellee Robbie M. Nason

Penobscot County Superior Court docket number CV-2015-137 FOR CLERK REFERENCE ONLY