Opinion
No. 38887-1-II.
April 12, 2011.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-12409-7, Joseph H. Gordon Jr., J. Pro Tem., entered January 26, 2009.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Worswick, A.C.J., and Van Deren, J.
James Vestal died at St. Clare Hospital on October 2, 2002. His son, Greg Vestal, filed a medical malpractice complaint against Dr. James Lee, Dr. Lorette Meske, and Franciscan Health System-West, the company that operates St. Clare Hospital. A jury found the doctors were not negligent and the trial court entered judgment in favor of all the defendants. Greg appeals, arguing (1) the trial court improperly denied his pre-trial motion to amend his complaint and add a corporate negligence claim against Franciscan; (2) the defendants violated Civil Rule (CR) 12(i) by failing to identify Dr. Maureen Smith as a nonparty at fault; (3) Dr. Lee violated CR 26(e) by failing to supplement his deposition testimony and clarify that his emergency room shift ended at 3:00 pm on October 1, 2002, and responsibility for James's care shifted to Dr. Smith at that time; and (4) a juror committed misconduct during deliberations by asserting that she had been to medical school and offering opinions based on her alleged medical training. Finding no reversible error, we affirm the trial court's rulings.
Because James Vestal and Greg Vestal share the same surname, we refer to them by their first names to avoid confusion.
FACTS I. Health Care at St. Clare Hospital
On October 1, 2002, Greg drove his father to the emergency room at St. Clare Hospital because James was feeling weak and short of breath, and his stool was black. James was 74 years old and suffered from diabetes, high blood pressure, cardiac disease, and deep vein thrombosis (i.e., blood clots) for which he was taking a blood thinner called Coumadin.
They arrived at the emergency room at 12:10 pm. Dr. Lee examined James at 12:30 pm and found James was pale but alert, and his vital signs were normal. Dr. Lee diagnosed James with gastrointestinal bleeding, connected him to a saline intravenous drip and a vital signs monitor, and ordered Vitamin K to counteract the anti-clotting effects of Coumadin. Dr. Lee believed there was no ongoing bleeding and that James's condition was stable, so he ordered matched blood from the blood bank instead of an emergency transfusion of O-negative blood or fresh frozen plasma.
Because emergency department physicians cannot admit patients to St. Clare Hospital, Dr. Lee arranged for Dr. Meske, a member of the Franciscan Inpatient Team, to admit James to the Progressive Care Unit. Dr. Lee explained the blood transfusion process to James and obtained his consent to the procedure at 2:37 pm. Dr. Lee's shift then ended at 3:00 pm and Dr. Smith's emergency room shift began.
James was discharged from the emergency department at 3:30 pm., but he could not be moved to the Progressive Care Unit until 5:00 pm, when a bed became available. When James arrived at the Progressive Care Unit, Dr. Meske observed that he was very pale and "looked like he was in distress." VIII Report of Proceedings (RP) at 1073. She gave him the blood transfusion that Dr. Lee had ordered, but during or shortly after the transfusion, he vomited up black material and his blood pressure dropped rapidly. Dr. Smith, the emergency room physician, responded to the code call and helped Dr. Meske stabilize James.
James was transferred to the Intensive Care Unit, but his condition continued to deteriorate throughout the night and he did not respond to additional blood transfusions or other resuscitation attempts. His family eventually requested that the doctors cease their resuscitation efforts and James died from gastrointestinal bleeding and cardiopulmonary arrest around 6:00 am on October 2, 2002.
II. Complaint and Discovery
In September 2005, Greg filed a medical malpractice and wrongful death complaint against Franciscan, Dr. Lee, and several "John Doe" and "Jane Doe" defendants. The complaint alleged that Dr. Lee and the "Doe" defendants were negligent in caring for James, and that Franciscan was liable for their negligence under the doctrine of respondeat superior or vicarious liability. The trial court scheduled discovery cut-off for January 14, 2008, and trial for March 31, 2008.
During the two-year discovery period, Greg's counsel sent a single interrogatory to Franciscan requesting the name and contact information for "every member of the Franciscan Inpatient Team" who was in any way involved with James's care. Clerk's Papers (CP) at 548. Franciscan provided Dr. Meske's name and information. The parties agreed to join Dr. Meske as a defendant.
Franciscan did not name Dr. Lee or Dr. Smith because they were members of the emergency department, not the Franciscan Inpatient Team. The complaint demonstrated that Greg understood this distinction: it alleged Dr. Lee was an emergency department physician and the "Doe" defendants were members of the Franciscan Inpatient Team.
In July 2007, Greg deposed Dr. Meske and Dr. Lee. Greg's counsel repeatedly asked Dr. Lee where James was located between 3:30 and 5:00 pm, and Dr. Lee consistently responded that James left the emergency room at 3:30 and he did not know where James went after that time. Counsel asked, "How do you know he left the emergency room at 3:30?" Dr. Lee replied, "It's documented on this paper." CP at 692 (Lee Dep. at 45). Counsel also asked, "Do you have any idea of who was responsible for him as a physician . . . between 3:30 p.m. and 5:00 p.m.?" Dr. Lee responded, "No." CP at 692 (Lee Dep. at 48).
During discovery, Greg also produced notes that he had taken while questioning St. Clare Hospital staff in the months following his father's death. The notes included several references to Dr. Smith, including:
Dr. Smith's comments to Dr. Meske in a report, (check contents). . . .
Dr. Meske did not see dad until [Intensive Care Unit] ICU. Dr. Smith responded five to six times. . . .
ER doctors were Lee and Smith. In the ward was Meske. . . .
Dr. Smith came out and told me that they were taking him to ICU. . . .
CP at 551-53, 555.
III. Motion to Amend the Complaint
In May 2008, Greg moved to amend the complaint to allege that Franciscan was directly liable under a corporate negligence theory. In a memorandum supporting the motion, Greg's counsel explained that he had decided to amend the complaint after deposing Dr. Lee and Dr. Meske in July 2007, but he decided to delay filing the motion until after a mediation scheduled for April 2008. Counsel also stated, "[I]t is anticipated that the claims in the amended complaint will be further clarified and supported by additional discovery through the depositions of the other employees or agents of the Defendants." CP at 53.
Franciscan argued that Greg unreasonably delayed moving to amend the complaint until four months before trial, and that it would be prejudiced by this undue delay because a corporate negligence claim would require Franciscan to prepare an entirely new defense after almost three years of litigation. The trial court denied the motion, finding both undue delay and prejudice to Franciscan.
IV. Opening Statements
During opening statements, Dr. Lee's counsel stated that the evidence would show Dr. Lee's shift ended at 3:00 pm on October 1, 2002, and responsibility for the emergency room shifted to Dr. Smith at that time. Greg's counsel responded by asking the trial court to (1) allow him to amend his complaint and add Dr. Smith as a defendant, (2) instruct the jury "that they are not to consider Dr. Lee's shift in any way," or (3) declare a mistrial. CP at 189-90. He argued that he had just learned for "the first time" that "apparently there may[]be some other non-party at fault in this." CP at 183. He argued that Dr. Lee should have identified Dr. Smith as a nonparty at fault under CR 12(i), and that Dr. Lee should have clarified in his deposition testimony that his shift ended at 3:00 pm.
Dr. Lee's counsel responded that Dr. Lee had truthfully answered the deposition questions and that Greg's 2002 notes showed he had been informed that Dr. Smith was one of James's emergency department doctors. He also argued that CR 12(i) did not apply because Dr. Lee was not claiming as an affirmative defense that Dr. Smith was at fault. The trial court denied Greg's requested relief.
V. Motion for a New Trial
The jury found that neither Dr. Lee nor Dr. Meske was negligent and the trial court entered judgment in favor of all defendants. Greg moved for a new trial, renewing his argument that (1) the defendants had violated CR 12(i) by failing to identify Dr. Smith as a nonparty at fault, and (2) Dr. Lee had violated CR 26(e) by failing to supplement his deposition testimony. He also argued that juror 6 committed juror misconduct, based on declarations from jurors 1 and 2.
In his declaration, juror 1 stated that during deliberations, juror 6 "said that she had gone to medical school" and "related her knowledge of symptoms, diagnosis and treatment that we had not heard during the trial." CP at 463. He also stated:
[Juror 6] told us that if in the emergency room Mr. Vestal had serious bleeding he would have had symptoms x, y and z. Then she said that Mr. Vestal did not have symptoms x, y and z, so he must not have had a serious bleed.
CP at 463. Finally, he opined, "[I]t was my impression that the other jurors were influenced by her." CP at 463. Juror 2 stated that juror 6 talked "about her education" and "gave us some information about chemistry, bleeding, drug interactions, strokes and heart attacks that we did not hear in the courtroom." CP at 466. She also opined, "It was my impression that Juror No. 6's ability to speak because of her education and knowledge influenced other jurors in deciding." CP at 466.
During voir dire, juror 6 had disclosed in a questionnaire that she had "some college/junior college" education in "nursing/hematology/lab work" but had never graduated. CP at 684. The defendants submitted a declaration from juror 6 stating, "I have never attended Medical School and have never otherwise trained to be a physician. My background is clearly identified in my completed juror questionnaire and I was questioned about it during jury selection. . . ." CP at 595. She also stated, "The only opinions I offered were based on the evidence presented at trial and my life experiences." CP at 595.
The defendants also submitted declarations from jurors 11 and 13. Both stated that juror 6 referred to science and chemistry classes that she had taken, but neither heard her claim that she had attended medical school. Juror 13 also stated that all the evidence discussed during deliberations was part of the record:
Whenever specifics were discussed, I made sure that we looked at the records to determine if our memories were supported. I do not recall [juror 6] raising any issues that went beyond the evidence presented at trial or in the records. . . .
CP at 600.
The trial court denied the motion for a new trial, ruling that the defendants were not required to identify Dr. Smith under either CR 12(i) or CR 26(e) and that there was insufficient evidence to establish juror misconduct or that the alleged misconduct affected the verdict.
ANALYSIS
Greg assigns error to the trial court's denial of (1) his pre-trial motion to amend the complaint, (2) his multiple requests for relief based on violations of CR 12(i) and CR 26(e), and (3) his post-trial motion for a new trial. We review a trial court's rulings on motions to amend a complaint, the application of civil rules, and motions for a new trial for an abuse of discretion. See Wilson v. Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999); Turner v. Stime, 153 Wn. App. 581, 587-88, 222 P.3d 1243 (2009); Sprague v. Sysco Corp., 97 Wn. App. 169, 171, 982 P.2d 1202 (1999). "A court abuses its discretion when the court's decision is manifestly unreasonable or based on untenable grounds." Turner, 153 Wn. App. at 588.
I. Motion to Amend the Complaint
Once a party's right to amend the complaint has expired, the party may amend "only by leave of court or by written consent of the adverse party." CR 15(a). Leave to amend "shall be freely given when justice so requires," but the trial court's decision "`will not be disturbed on review except on a clear showing of abuse of discretion.'" CR 15(a); Wilson, 137 Wn.2d at 505 (quoting State ex. rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). Factors that the trial court may consider include undue delay, juror confusion, and prejudice to the opposing party. Wilson, 137 Wn.2d at 505-06; Wallace v. Lewis County, 134 Wn. App. 1, 25-26, 137 P.3d 101 (2006). "These rules serve to facilitate proper decisions on the merits, to provide parties with adequate notice of the basis for claims and defenses asserted against them, and to allow amendment of the pleadings except where amendment would result in prejudice to the opposing party." Wilson, 137 Wn.2d at 505.
Greg contends it was reasonable for him to delay amending the complaint until after the April 2008 mediation. The trial court found this argument unpersuasive, ruling it was unreasonable to delay amending the complaint until almost a year after deposing the doctors and learning of the potential new claim: "I find there was undue delay here. I can't make the connection between mediation and failure to bring the motion after the depositions last July, now four months from trial." CP at 525. Additionally, Greg moved to amend almost three years after filing the original complaint and after two years of discovery. Under these circumstances, the trial court's finding of undue delay was not "manifestly unreasonable or based on untenable grounds." Turner, 153 Wn. App. at 588.
But undue delay "constitutes grounds to deny a motion to amend only `where such delay works undue hardship or prejudice upon the opposing party.'" Caruso v. Local Union No. 690, 100 Wn.2d 343, 349, 670 P.2d 240 (1983) (quoting Appliance Buyers Credit Corp. v. Upton, 65 Wn.2d 793, 800, 399 P.2d 587 (1965)). Greg argues that there was no showing of undue hardship or prejudice here. But Greg asserted before the trial court that additional discovery would be necessary to clarify the new claims in the amended complaint, and the trial court found that requiring Franciscan to conduct additional discovery and prepare a new defense just four months before trial would prejudice Franciscan:
[T]his is a new claim, a new type of claim that . . . would certainly require considerable work on the part of Franciscan to prepare for. It's one thing to be liable for the actions of others and another thing to be liable for something that Franciscan itself did wrong.
There are not only to be new experts and new witnesses, but it's pretty clear to me that there would have to be depositions taken. . . .
So work would have to be redone. . . . There would be considerable expense involved in that, and I think that . . . particularly Franciscan is prejudiced by the fact that this motion is being brought four months before the trial date. . . .
CP at 525-26. The court's finding of prejudice was not "manifestly unreasonable or based on untenable grounds." Turner, 153 Wn. App. at 588. Accordingly, we affirm the trial court's denial of Greg's pre-trial motion to amend the complaint.
II. Superior Court Civil Rules
CR 12(i) provides that "[w]henever a defendant or a third party defendant intends to claim for purposes of RCW 4.22.070(1) that a nonparty is at fault, such claim is an affirmative defense which shall be affirmatively pleaded." The rule also provides: "The identity of any nonparty claimed to be at fault, if known to the party making the claim, shall also be affirmatively pleaded." CR 12(i). Greg contends that the defendants violated this rule by failing to identify Dr. Smith as a nonparty at fault prior to trial. But none of the defendants ever asserted as an affirmative defense that Dr. Smith was negligent in caring for James or at fault for his death. CR 12(i) does not apply here.
RCW 4.22.070(1) provides: "In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages. . . ."
CR 26(e) provides that a party must supplement its response to discovery requests in certain situations:
A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to: (A) the identity and location of persons having knowledge of discoverable matters. . . .
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which: (A) he knows that the response was incorrect when made; or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. . . .
Greg contends that Dr. Lee violated this rule when he failed to supplement his deposition testimony and clarify that Dr. Smith was the physician responsible for James between 3:30 and 5:00 pm on October 1, 2002.
When ruling on this issue, the trial court stated that it was "troubled by the fact that Dr. Lee didn't know who was responsible for Mr. Vestal's care from 3 or 3:30 until 5 at the time his deposition was taken." But the court ruled: "I can't find that his answer was wrong at the time it was given or that he knew it was wrong at the time. . . ." RP (Jan. 26, 2009) at 41. Greg deposed Dr. Lee in July 2007, almost five years after Dr. Lee cared for James in October 2002. And it was apparent during Dr. Lee's deposition that he was testifying based on records rather than his actual memory of the events. The court's ruling that Dr. Lee did not know his answer was wrong when given was not "manifestly unreasonable or based on untenable grounds." Turner, 153 Wn. App. at 588.
The trial court also ruled that there was not enough information for it to determine when Dr. Lee realized his responses were incorrect or whether Dr. Lee had a duty to supplement his deposition testimony at that time. But Dr. Lee obviously learned or remembered that Dr. Smith relieved him at 3:00 pm on October 1, 2002, at some point before trial began. And Greg's counsel had directly asked him during the deposition: "Do you have any idea of who was responsible for him as a physician . . . between 3:30 p.m. and 5:00 p.m.?" CP at 692 (Lee Dep. at 48). Dr. Lee arguably had a duty to supplement his response to that question under CR 26(e)(1)(A) or CR 26(2)(B).
But even if Dr. Lee violated this discovery rule, a discovery violation must "`substantially prejudice[] the opponent's ability to prepare for trial'" to warrant reversal and a new trial. See Roberson v. Perez, 123 Wn. App. 320, 336, 96 P.3d 420 (2004) (quoting Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997)); CR 59(a). Greg's 2002 notes show that he knew Dr. Smith was one of James's emergency department doctors and that she was actively involved in his care at St. Clare Hospital. Also, James's medical record contains several reports written by Dr. Smith. Yet Greg's counsel chose not to depose Dr. Smith or question any of the defendants about her role in James's health care.
Because Greg had ample time to investigate through discovery Dr. Smith's role in caring for James between 3:30 and 5:00 pm, Dr. Lee's possible discovery violation did not "substantially prejudice" Greg's ability to prepare for trial. The error, if any, does not warrant a new trial. Roberson, 123 Wn. App. at 336; CR 59(a). We affirm the trial court's denial of Greg's requests for relief based on alleged violations of CR 12(i) and CR 26(e).
III. Juror Misconduct
"`A strong affirmative showing of misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury.'" Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203, 75 P.3d 944 (2003) (quoting State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994)). Deciding whether juror misconduct occurred and whether it affected the verdict are matters for the trial court's discretion. Breckenridge, 150 Wn.2d at 203
Greg contends that juror 6 committed misconduct because during voir dire she "did not speak up that she had gone to medical school" and during deliberations she "injected the extrinsic evidence of attending medical school and related extrinsic evidence of symptoms, diagnosis and treatment." Br. of Appellant at 44. The trial court ruled it was "not persuaded that . . . there was juror misconduct." RP (Jan. 26, 2009) at 40. Because Greg has not made a "strong affirmative showing" that misconduct occurred, we hold the trial court did not abuse its discretion. Breckenridge, 150 Wn.2d at 203.
First, the affidavits do not clearly establish that juror 6 ever attended medical school or asserted that she did. Only juror 1 stated that he heard juror 6 assert she had been to medical school. Juror 6 denied ever making such an assertion, and the affidavits from jurors 2, 11, and 13 stated juror 6 talked "about her education" and referred to science and chemistry classes she had taken, which is consistent with the educational background that she disclosed in voir dire. CP at 446, 600.
Nor do the affidavits clearly establish that juror 6 introduced extrinsic evidence into deliberations. "Extrinsic evidence is `information that is outside all the evidence admitted at trial, either orally or by document.'" Breckenridge, 150 Wn.2d at 199 n. 3 (quoting Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990)). It is misconduct for a juror to introduce extrinsic evidence into deliberations because such evidence has not been subject to objection, cross examination, explanation, or rebuttal. Breckenridge, 150 Wn.2d at 199 n. 3 (citing Balisok, 123 Wn.2d at 118).
Jurors 1 and 2 testified that juror 6 related "her knowledge of symptoms, diagnosis and treatment" and "information about chemistry, bleeding, drug interactions, strokes and heart attacks" to support her opinion that James was not experiencing serious bleeding while in the emergency room. CP at 463, 466. The affidavits conflict over whether juror 6 related information outside the evidence presented at trial. And the jurors heard extensive testimony at trial from Dr. Lee and several medical experts about the symptoms, diagnosis, and treatment of gastrointestinal bleeding and heart attacks. Without more specific allegations regarding what information juror 6 related, it is impossible to determine whether the information was "outside all the evidence admitted at trial." Breckenridge, 150 Wn.2d at 199 n. 3; Richards, 59 Wn. App. at 270.
Furthermore, jurors may rely on their personal life experiences to evaluate the evidence presented at trial. Breckenridge, 150 Wn.2d at 199 n. 3 (citing Richards, 59 Wn. App. at 274). In Richards, 59 Wn. App. at 269, 273-74, Division One of our court held that it was not misconduct for a juror to rely on medical knowledge that she had disclosed during voir dire to analyze the plaintiff's medical records and support her opinion that the plaintiff's birth defects were not caused by medical malpractice. Similarly, it appears that juror 6 merely relied on medical knowledge that she had disclosed in voir dire to evaluate the evidence and support her opinion regarding whether James's death was caused by medical malpractice. Such knowledge is not extrinsic evidence. Richards, 59 Wn. App. at 273-74.
Finally, even when misconduct is found, "great deference is due the trial court's determination that no prejudice occurred." Richards, 59 Wn. App. at 271. The trial court ruled that "even if I were to find that there [was] juror misconduct, I would have to take a second step and find that it probably [a]ffected the verdict and there really is nothing there that would persuade me that that was the case." RP (Jan. 26, 2009) at 40. For all of these reasons, we affirm the trial court's denial of the motion for a new trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, J. and WORSWICK, A.C.J., concur.