RANDY HOFFER and GALYENA HOFFER, husband and wife, as guardians of the minor child plaintiff, J.S.H., Plaintiffs-Respondents,
SCOTT A. SHAPPARD, D.O.; SAINT ALPHONSUS REGIONAL MEDICAL CENTER, dba SAINT ALPHONSUS MEDICAL GROUP; and GENESIS MEDICAL CENTER, P.A., Defendants-Appellants, and STANLEY J. WATERS, M.D; STANLEY J. WATERS, dba AMERICANA ORTHOPAEDICS; SHANA L. TUBACH, M.D.; and SAINT ALPHONSUS PHYSICIANS, P.A., an Idaho corporation, Defendants.
Opinion No. 105
from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Hon. Gerald F. Schroeder,
Senior District Judge.
judgment of the district court is affirmed.
Tolman Farley, PLLC, Boise, for appellants Scott A. Shappard,
D.O. and Genesis Medical Center, P.A. Raymond D. Powers
Brassey Crawford, PLLC, Boise, for appellant Saint Alphonsus
Regional Medical Center. Andrew C. Brassey appeared.
Rossman Law Group, PLLC, Boise, for respondents. Eric S.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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
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.
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.
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.
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 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'
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
STANDARD OF REVIEW
"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,
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.
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).
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
Id. (quoting Athay v. Rich Cnty., 153 Idaho
815, 825, 291 P.3d 1014, 1024 (2012)).
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.
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
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.
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.
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
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.
district court did not err by refusing to send Exhibit LL to
the jury room during deliberations. Idaho Rule of Evidence
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.
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 ...