Archive for the ‘Torts’ Category

Decision: Williams v. Lawton

June 5, 2009

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.


Decision: Dodge City Implement, Inc v. Board of Barber County Commissioners

April 25, 2009

April 24th. The Kansas Supreme Court has issued its opinion in Dodge City Implement, Inc v. Board of Barber County Commissioners (No. 96,784) a negligence suit arising out of a truck-train collision in 2003. In a unanimous decision, written by Justice Beier, the court affirmed the Court of Appeals (the opinion of which was quoted extensively) decision which in turn affirmed the District Court’s dismissal of the suit as barred under Kansas’ “one-action” rule. Note: this was the only decision issued this week.

In September 2003, a DCI truck was hit by a Burlington Northern and Santa Fe train at a railroad crossing in Barber County. The collision resulted in damage to the truck and the derailment of the train. BNSF sued DCI, who ultimately settled for $3m in damages. DCI then initiated a case against Barber County (and subsequently Moore Township, following discovery findings regarding responsibilities for the crossing). DCI sought the $3m from the BNSF settlement, plus around $90,000 in damages to their truck. The District Court dismissed the case in a summary judgement finding that since Barber County and Moore Township had not been joined to BNSF’s lawsuit, DCI could not bring a separate case against them under Kansas’ “one-action” rule. The District Court also dismissed the separate negligence claim for $90,000, finding that DCI’s notification to the defendants under the Kansas Tort Claims Act did not meet the statutory requirements.

DCI appealed these rulings and lost in the Court of Appeals. DCI appealed to the Kansas Supreme Court, where it also lost. The Kansas Supreme Court decision spends the bulk of its time reviewing the “one-action” rule, its origins and its apparent exceptions. It concludes that the rule (which basically requires all liability claims to be handled through a single case in which comparative fault between several parties can be determined) remains valid. The rule has its origins in a 1974 law, but had been confused by a line of cases which did not seem to apply it. The Court’s opinion investigates these and differentiates them from the main rule, which it applies in this case. As indicated above, a sizable portion of the Court’s opinion is actually a direct quote from the Court of Appeals opinion of Judge Nancy Caplinger, which is effusively praised by Justice Beier.

On the second point (the $90,000 claim) the Kansas Supreme Court also rules against DCI. It notes that the Court of Appeals has decided multiple cases regarding the Kansas Tort Claims Act based on a kind of checklist of the notice requirements of that statute. In this opinion the Kansas Supreme Court declines to make an endorsement or otherwise of that approach, but finds that the notices sent by DCI in this case were so deficient that they could not meet the statutory rule.

Decision: Tilzer v. Davis, Bethune and Jones

April 13, 2009

April 3rd. The Kansas Supreme Court has issued its decision in Tilzer v. Davis, Bethune and Jones (No. 99,678), a legal malpractice suit. In a unanimous opinion, written by Justice Johnson, the Court reversed a summary judgment issued by the Johnson County District Court to dismiss an action brought by the Tilzer family against their former attorneys over a class action lawsuit in Missouri. Note: This case was argued in the January sitting of the Court, after former Chief Justice Kay McFarland’s retirement. District Judge David King served as the seventh member of the court hearing the case.

The exact details of the case are unclear, due to the the records being under seal. The background is that the Tilzer family were among a group of people who sued Eli Lilly and Bristol-Myers Squibb for negligently allowing a pharmacist to dilute cancer drugs. They hired the Davis, Bethune and Jones law firm to act as their attorneys. This action was brought in Missouri. The pharmaceutical companies settled and the Missouri court established a process using two special masters to assess each claim and allocate money out of a capped settlement pot. The facts of the case, and documents obtained during the case were sealed as part of the settlement. The Tilzer’s objected to the terms of the settlement, but were compelled by a court order of the Missouri court to go along with it. Their attorneys filed an attorney’s lien to get their payment for services rendered from the Tilzers.

The Tilzers attempted to resist this, arguing that the terms of the settlement constituted an aggregate settlement, which would have required their attorneys to disclose certain information which they had not done. The Missouri court rejected this argument, but stated that its ruling did not foreclose any legal malpractice action they might want to bring. The Tilzers did not appeal the ruling in Missouri, but instead brought a fresh action alleging legal malpractice in Kansas.

Missouri has a rule which states that if one of two parties in a lawsuit might bring their counterargument as a separate claim, they cannot do so but must rather bring the matter up in the instant case (couterparty claim rule). Davis, Bethune and Jones successfully argued in the Kansas District Court that the legal malpractice claim should have been brought under this rule in the attorney’s lien hearing (the trial judge’s comments notwithstanding). In addition, the District Court also ruled that the Tilzer’s claim was blocked under collateral estoppel since it was already litigated in the Missouri actions. During the Kansas case the pharmaceutical companies intervened in the case to ensure the continued sealing of the documents. The other matter decided in the District Court was that that Court ruled that the settlement of the Missouri action was not an aggregate settlement.

In its decision the Kansas Supreme Court reverses the District Court on all but the sealing of the documents. On that point it held that the public policy interests of out of court settlement of class action lawsuits were served by the documents remaining under seal, while the Tilzers suffered no ill effects from the sealing. The Court noted that the proper venue for having challenged the sealing of the documents would have been an appeal in Missouri of the original settlement.

On the remaining points the Court ruled for the Tilzers:

Counterparty claim rule – the District Court had expanded the Missouri counterparty claim rule beyond its normal parameters influenced greatly by a decision in New Mexico regarding a similar rule. During the time the case has been on appeal the New Mexico Supreme Court overturned that decision, rather undercutting the logic behind the District Court’s decision. Therefore the Court determined that “Missouri’s compulsory counterclaim rule does not require a client to litigate a claim for legal malpractice in response to an attorney’s motion to enforce an attorney’s fee lien in the underlying action that gave rise to both the malpractice claim and the attorney’s fee lien”.

Collateral Estoppel – the Kansas Supreme Court ruled that the case was not collaterally estopped. It bases its decision on some disagreements with the Missouri Court’s process for arriving at a ruling which foreclosed certain avenues to the Tilzers to make their case which are open in the fresh case. Based on Missouri’s more lenient rules around collateral estoppel the Court held that there were sufficient parts of the Tilzer’s case which had not been adjudicated completely or properly to prevent them litigating them in the legal malpractice case.

Aggregate Settlement – in perhaps the most significant aspect of the decision, the Court held that the settlement in the Missouri case was an aggregate settlement, despite the ruling of the Missouri Court saying otherwise. The Court based this decision on a report compiled by the American Law Institute to define what exactly an aggregate settlement is. In this case the fact that the damages awarded to each participant in the lawsuit was not purely based on the facts of the case but influenced by the fact that the settlement pot was capped. This created an interdependency between the various claimants (since they shared in the award), which the Court held was the abiding mark of an aggregate settlement.

The case was therefore remanded to District Court for further proceedings on the merits of the Tilzer’s case.

Decision: Kelly v. VinZant

December 19, 2008

December 12th. The Kansas Supreme Court has issued its decision in Kelly v. VinZant (No. 94, 648), a torts case. In a unanimous opinion, authored by Justice Luckert, the Court partly affirmed and partly reversed the Court of Appeals and District Court’s decisions terminating a case brought by William Kelly against Whitney VinZant, a surgeon. While blocking Kelly’s suit for fraud based by malpractice (since a prior jury had rejected his malpractice claim) and also blocking his attempt to sue for battery (on statute of limitations grounds), the Court left the door open to Kelly to pursue a claim against VinZant under the Kansas Consumer Protection Act (KCPA). In doing so it held that a 2007 amendment to the KCPA, passed by the legislature in response to a previous decision of the Court was not retroactive. All suits which predated the enactment of that amendment are therefore preserved.

VinZant had performed a series of three operations on Kelly. The first two were not wholly successful and culminated in Kelly losing one of his testicles. Kelly brought three suits (one for each of the operations) which alleged medical malpractice, fraud (VinZant had claimed he did ‘not do bad surgeries’), a violation of the KCPA (related to the fraud claim) and battery by way of fraud (that an operation without consent is battery and the consent was obtained by fraud). The District Court combined these suits and severed the claims. After a jury acquitted VinZant of malpractice the Judge dismissed the other suits since there was no malpractice, there was no fraud. The KCPA claim had been dismissed on the grounds that it did not apply to a medical setting (as opposed to advertisments for professional services).

On Appeal the Court of Appeals affirmed the District Court. It held that the battery claim was initiated outside of the statute of limitations, and that the fraud could not stem from the malpractice since there was none. It noted that after the District Court had ruled, the Supreme Court had decided Williamson v. Amrani which held that a medical practitioner could be sued under the KCPA. However, the Court of Appeals held that in this case the District Court was right for the wrong reason in that the KCPA claim was also barred by the jury’s finding of no malpractice.

The Supreme Court agrees with the Court of Appeals on the fraud. Kelly had sought to argue that the fraud was disconnected to the malpractice since it related to his decision making to allow the operations. Nevertheless the Supreme Court held that since the alleged fraud was connected to the surgeries that it is not a separate complaint but falls under medical malpractice. Therefore, the jury’s verdict foreclosed the fraud claim.

The Supreme Court also agrees with the lower courts on the battery claim. Kelly had argued that since he did not consider the consent to the operations to be fraudulently obtained until much later (at the conclusion of the three treatments) the statute of limitations on battery should run from there, just as the one for fraud runs from the moment of discovery of the fraud. The Court disagreed, holding that the statute of limitations for battery is one year from the physical incident and contains no exceptions.

Where the Supreme Court disagreed with the lower courts was over the KCPA. In doing so it brings to a close an issue which has involved all three branches of the State Government. In Williamson v. Amrani the Court had held that the KCPA applies medical situations where a physician’s statements to the patient constitute deceptive practices and not purely to other contexts such as advertising. In this case the ‘I not do bad surgeries’ statement might qualify. In 2007 the Legislature attempted to modify the KCPA to overturn Williamson (SB 55). The Governor vetoed SB 55, whereupon the Legislature again modified the KCPA via HB 2451, which became law. The Court examined the text of the amendment and held that it was not retroactive since there was no indication that it was intended that way, therefore while future suits are blocked, those already in progress may proceed. A footnote here is that the original text of the vetoed bill says ‘nothing in this act shall be construed to…’ while the amendment which made it into law says ‘the KCPA does not allow…’. Whether the Court would have considered SB 55 retroactive is a question which there will never be an answer to.

As a result of its ruling, Kelly’s various claims are terminated except for the KCPA case, which is remanded to the District Court for further proceedings.

Decision: Hale v. Brown

December 16, 2008

December 5th. The Kansas Supreme Court has issued its decision in Hale v. Brown, No. 97,232, the Court declined to widen the type of action which could give rise to liability in negligence cases, as urged by one Mary Hale. In a unanimous opinion, authored by Justice Rosen the decision of the Court of Appeals and the District Court to dismiss Hale’s suit against a Jason Packard and the Topeka Electric Construction for allegedly causing her car to be struck by Judy Brown, resulting in injuries to Ms Hale. Packard had passed out and crashed his vehicle (owned by his employer, Topeka Electric Construction) on I-470 in Topeka. Some 35 minutes after the accident, Hale slowed down while driving past and was hit from behind by Brown, who did not. Hale has settled her claim against Brown already.

Hale argued that due to Kansas adopting the principle of comparative negligence in personal injury cases, the old common law principle that a tort must have a proximate cause no longer applied. She also argued that since this was the case the attribution of fault (and compensation) between Brown and Packard becomes a fact-based decision to be left to the Jury. The Court rejected both arguments, since proximate cause was still a valid concept in its case law and since the intervening time between Packard’s accident and Hale’s meant that the chain of events between the accidents had been broken. Since this was an appeal of a motion to dismiss the Court based its ruling on an assumption that the events were entirely as alleged by Hale.

As a result of this decision, the Kansas Courts will not be flooded with many more lawsuits seeking to take advantage of a loosening of personal injury law, something which was a real possibility had the Court ruled the other way.