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Hoffer v. Shappard

Supreme Court of Idaho

September 28, 2016

RANDY HOFFER and GALYENA HOFFER, husband and wife, as guardians of the minor child plaintiff, J.S.H., Plaintiffs-Respondents,

         2016 Opinion No. 105

         Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Gerald F. Schroeder, Senior District Judge.

         The judgment of the district court is affirmed.

          Powers Tolman Farley, PLLC, Boise, for appellants Scott A. Shappard, D.O. and Genesis Medical Center, P.A. Raymond D. Powers argued.

          Brassey Crawford, PLLC, Boise, for appellant Saint Alphonsus Regional Medical Center. Andrew C. Brassey appeared.

          Rossman Law Group, PLLC, Boise, for respondents. Eric S. Rossman argued.

          HORTON, Justice.

         Scott Shappard, D.O., Genesis Medical Center, P.A., and St. Alphonsus Regional Medical Center (collectively "Providers") appeal from an $847, 974.46 judgment entered against them after a jury trial. Randy and Galyena Hoffer brought this action on behalf of their minor child, J.H. The jury found that Dr. Shappard negligently and recklessly failed to diagnose J.H.'s medical condition. The district court denied Providers' post-trial motions seeking to correct the verdict, a new trial, and judgment notwithstanding the verdict (JNOV). Providers appeal from the denial of these motions and further assert that the district court erred at trial by refusing to send an exhibit back to the jury room for deliberations and in its jury instructions. We affirm.


         This case relates to J.H.'s developmental dysplasia of the hip (DDH), which is an abnormality involving a joint dislocation at the hip. Early diagnosis of DDH in children is important because early treatment is much easier, less invasive, less complicated, and more effective. Risk factors for a child to develop DDH include: breach birth, female gender, premature birth, first-born child, and high birth weight. In order to diagnose DDH, a physician examines the child, looking for palpable hip instability, unequal leg lengths, asymmetrical skin folds, and irregular gait.

         J.H., a female child, was born five weeks short of full term in September of 2008. She was Galyena's first child. Various doctors who examined J.H. during the first six weeks of her life did not observe signs of DDH.

         Between November 13, 2008, and October 5, 2009, Dr. Shappard saw J.H. for five well-baby examinations. Evidence presented at trial indicated that J.H. had an asymmetrical skin fold at all five examinations. Galyena repeatedly asked Dr. Shappard, through verbal and written questions, about the fold but Dr. Shappard did not recognize the fold as a concern. Galyena repeatedly expressed concern, both verbally and in writing, that J.H.'s legs were not the same length. Dr. Shappard did not find a difference in leg length. At J.H.'s final examination by Dr. Shappard, Galyena asked Dr. Shappard about J.H. walking tip-toe on only one leg. Galyena's testimony and notes regarding her questions reflect that Dr. Shappard responded that such tip-toe walking was normal for children until age two. Galyena also testified that Dr. Shappard never asked to see J.H. walk with parental assistance.

         One of the Hoffers' expert witnesses, Dr. David Butuk, opined that Dr. Shappard failed to comply with the community standard of health care practice because of his disregard for the presence of an obvious asymmetrical skin fold, a difference in leg length, and repeated expressions of parental concern. Dr. Butuk testified that: "Any parent complaint that comes on repeated visits of any concern like that, it's a big red flag. The standard of care is that you have to address that and start moving forward with other ways."

         J.H. subsequently had problems while learning to walk that appear to have resulted from DDH. Because of these problems, the Hoffers took her to an orthopedic specialist, Dr. Stanley Waters, for two visits in February and December of 2010. Dr. Waters recognized that J.H. had DDH, but did not tell the Hoffers that she needed immediate treatment. Galyena testified that Dr. Waters told her that "God and nature will take care" of J.H.'s hip.

         In May of 2012, the Hoffers took J.H. to Dr. Larry Showalter. Dr. Showalter identified an inch and a half leg difference and the presence of an asymmetrical skin fold. Dr. Showalter immediately ordered x-rays and subsequently performed open reduction surgery in August of 2012, when J.H. was four years old. He testified that the results of the surgery have "so far" been good, but there are risks of "big complications" in the future.

         The jury received evidence for nearly two weeks. In addition to medical testimony, the jury heard testimony about J.H.'s future damages. The Hoffers' vocational rehabilitation expert, Douglas Crum, testified that J.H. would need two to three hip replacement surgeries during her lifetime, each resulting in about a 15% loss of function. The Hoffers' economic expert, Dennis Reinstein, testified as to the present value of an individual's expected earning capacity based on four different levels of education.

         By special verdict, the jury found that Dr. Shappard had failed to meet the applicable standard of health care practice and that Dr. Shappard's conduct was reckless. The jury apportioned 20% fault to Dr. Waters[1] and the remaining 80% to Dr. Shappard. The jury awarded $289, 000 in non-economic damages and $750, 000 in economic damages. Providers' counsel received permission from two jurors to speak with them. The two jurors told Providers' counsel that the jury had inadvertently switched the numbers for the non-economic and economic damages award on the special verdict form, but the figures were otherwise correct. Affidavits to this effect from both jurors were filed. The other ten jurors, including the presiding juror, did not speak with Providers' counsel.

         The district court entered judgment against Providers. Providers moved for JNOV, a new trial, and to correct the verdict. The district court denied these motions. Providers timely appealed.


"A trial court has broad discretion in ruling on a motion for a new trial." Blizzard v. Lundeby, 156 Idaho 204, 206, 322 P.3d 286, 288 (2014). When considering a challenge to a discretionary decision by the trial court, we consider:
(1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standard applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason.

Id. (quoting Burggraf v. Chaffin, 121 Idaho 171, 173, 823 P.2d 775, 777 (1991)). "The trial court is in a far better position to weigh the demeanor, credibility, and testimony of witnesses, and the persuasiveness of all the evidence. Appellate review is necessarily more limited." Quick v. Crane, 111 Idaho 759, 770, 727 P.2d 1187, 1198 (1986). "Although this Court necessarily must review the evidence, it primarily focuses on the process by which the district court reached its decision, not on the result of the district court's decision." Karlson v. Harris, 140 Idaho 561, 568, 97 P.3d 428, 435 (2004).

         This Court reviews jury instructions to determine "whether the instructions as a whole fairly and adequately presented the issues and stated the law." Schmechel v. Dillé, 148 Idaho 176, 187, 219 P.3d 1192, 1203 (2009). "Whether the jury instructions fairly and adequately present the issues and state the applicable law is a question of law over which this Court exercises free review." Perry v. Magic Valley Reg'l Med. Ctr., 134 Idaho 46, 51, 995 P.2d 816, 821 (2000). "Reversible error occurs if an instruction misleads the jury or prejudices a party." Id.

         "[T]he interpretation of a rule of evidence, like the interpretation of a statute, is reviewed de novo." State v. Moore, 131 Idaho 814, 821, 965 P.2d 174, 181 (1998).

         This Court employs the same standard of review as the district court when reviewing a decision to grant or deny a motion for JNOV. April Beguesse, Inc. v. Rammell, 156 Idaho 500, 509, 328 P.3d 480, 489 (2014).

A jury verdict must be upheld if there is evidence of sufficient quantity and probative value that reasonable minds could have reached a similar conclusion to that of the jury. In reviewing a grant or denial of a motion for JNOV the court may not reweigh evidence, consider witness credibility, or compare its factual findings with that of the jury. The court reviews the facts as if the moving party had admitted any adverse facts, drawing reasonable inferences in favor of the non-moving party.

Id. (quoting Athay v. Rich Cnty., 153 Idaho 815, 825, 291 P.3d 1014, 1024 (2012)).

         III. ANALYSIS

         Providers raise trial-related issues concerning an exhibit and the jury instructions in addition to challenging the denial of their post-trial motions for correction of the verdict, a new trial, and JNOV. We address these issues in turn.

         A. The district court did not abuse its discretion by denying the motion for new trial under Rule 59(a)(7) based upon its refusal to provide the jury with Exhibit LL during deliberations.

         Exhibit LL was an article from Pediatrics, the "Official Journal of the American Academy of Pediatrics." The exhibit contained a diagram depicting a clinical algorithm for use in diagnosing DDH. During the trial, defense counsel used the algorithm to demonstrate that Dr. Shappard followed correct procedures. The parties later disputed whether the exhibit should be provided to the jury during its deliberations. The district court held the jury would not be given Exhibit LL, stating:

The information is before the jury, reference is made to it, they take notes, they know what that is. I don't know what is in the rest of that article other than that diagram, and the risk of sending something in at this point that may have information that has not been explored may or may not exist, but I'm going to treat it as if it does exist, so I will not send that into the jury.

         Afterward, Providers challenged this ruling in the motion for a new trial but the district court did not change its ruling. The district court observed that even if the failure to send the exhibit back to the jury room was error, such error would be harmless because the algorithm was discussed before the jurors who had the opportunity to take notes.

         Providers attack this ruling, arguing that the exhibit should have been admitted under I.R.E. 803(18) and Idaho Code section 9-402, that the Hoffers waived any objection to Exhibit LL's admission by waiting too long to object, and the Hoffers waived their argument that Exhibit LL should not be admitted because they did not object on hearsay grounds. Providers further argue that this resulted in prejudice because defense counsel told the jurors during closing argument that they would be able to view the algorithm during their deliberations.

         Idaho Rule of Civil Procedure 59(a) authorizes a trial court to grant a new trial on several grounds. "[T]he trial court's standard for different grounds enumerated in I.R.C.P. 59(a) varies considerably." Quick, 111 Idaho at 771, 727 P.2d at 1199; see also Carrillo v. Boise Tire Co., 152 Idaho 741, 749, 274 P.3d 1256, 1264 (2012). "Under the Idaho Rules of Civil Procedure, a trial court may order a new trial if it determines that legal error occurred during the trial." Goodspeed v. Shippen, 154 Idaho 866, 870, 303 P.3d 225, 229 (2013) (citing I.R.C.P. 59(a)(7)). However, the Court does not consider errors that do not affect the parties' substantial rights. Id.; see also I.R.C.P. 61.

         The district court did not err by refusing to send Exhibit LL to the jury room during deliberations. Idaho Rule of Evidence 803(18) provides:

Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or arts, established as a reliable authority by testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits, except upon motion and order for good cause shown.

         We have not previously interpreted this rule with regard to allowing learned treatises in the jury room. When a federal rule is identical in material respects to an Idaho rule, this Court may consider decisions of the federal courts interpreting the federal rule when interpreting the Idaho rule. Martin v. Hoblit, 133 Idaho 372, 376 n. 3, 987 P.2d 284, 288 n. 3 (1999). The last sentence of Federal Rule of Evidence 803(18) is materially identical to the Idaho rule, omitting only Idaho's exception which permits the statements to be received as an exhibit upon a showing of good cause. The final sentence of the federal rule has been interpreted as:

A safeguard against jury misuse of the published authority . . . . This provision attempts to prevent jurors from overvaluing the written word and from roaming at large through the treatise thereby forming conclusions ...

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