May 29th. The Kansas Supreme Court has issued its opinion in Williams v. Lawton (No. 97,132), an interlocutory appeal from the order of a new trial in a medical malpractice case. In a unanimous decision, written by Justice Marla Luckert, the Court held that under the facts of this case the interlocutory appeal was acceptable, that the District Court did not err in awarding a new trial after information surfaced of jury misconduct and that the prosecution was justified in using its expert witness despite his being retired at the time of the underlying incident taking place.
The case stems from an adult circumcision which Dr Steve Lawton performed on Richard Williams. After complications, Williams sued alleging malpractice. Williams introduced expert witness testimony in support of his case from Dr Philip Diggdon. Lawton objected to Diggdon’s testimony on the grounds that Diggdon was retired at the time of the incident and that Kansas law governing expert witnesses in medical malpractice cases states that “no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident…is devoted to actual clinical practice”. The District Court rejected this argument and allowed Diggdon to testify. The jury returned a verdict, finding the majority of the culpability lay with Lawton and awarding a total of $1.9m in damages.
After the case, Lawton’s counsel interviewed some jurors and discovered a claim that the jury had disregarded their instructions and agreed to award an average of the dollar amounts that each individual thought was right. If true, this would be an impermissible quotient verdict. Lawton brought this to the attention of the Court and the District Judge took testimony from other jurors, and made a determination that a quotient verdict had been delivered, and therefore ordered a new trial. He also certified his rulings for an interlocutory appeal to the Court of Appeals. The Court of Appeals took the questions and reversed the District Court finding fault in the way the Judge had interacted with the Jurors. Lawton then appealed to the Supreme Court.
Before the Supreme Court there were three main issues (though there is a lot of detail in the opinion regarding the procedural posture of the case, which is relevant to anyone examining Kansas Law on interlocutory appeals).
1. Was the interlocutory appeal appropriate and should the Court of Appeals have taken it?
The Court held that it was not an abuse of discretion for the interlocutory appeal to be certified or for the Court of Appeals to rule on it. While discouraged the appeal in this instance promoted judicial economy since it might prevent the need for a new trial. The Court also held that it was appropriate to consider all the questions which had come up in the appeal since they were heavily interconnected with the underlying issue of whether a new trial was needed.
2. Did the District Judge err in his questioning of the jurors?
After dispensing with a procedural argument that the District Court could not by itself recall the jurors to investigate the misconduct claim (since the Defence Counsel moved an oral motion to do this anyway after the judge suggested it), the Court held that the Judge’s questions were allowed. In this it reversed the Court of Appeals which had held that the Judge’s questions of the jurors had extended into the impermissible area of the jury’s thought processes. The key finding in the case was that the jurors had agreed to be bound by an average of their suggested damages. This was not permitted and was not a matter of their mental processes but simply an agreement within the jury room and thus constituted sufficient misconduct for the Judge to order a new trial.
3. Was Dr Diggdon’s testimony permitted?
The Court held that Dr Diggdon’s testimony was allowed. The key to whether an expert witness qualified under the statute was whether in the two-year period prior to the incident 50% of their time had been devoted to clinical practice. Lawton had argued that the ratio had to hold all the way up to the time of the incident, rather than be an average over the preceding two years. The Court held that the Statute was clear that Lawton’s contention was wrong here.
As a result, the case will proceed to a new trial under basically the same conditions as the first.