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Chicoine v. Saint Francis Hospital, Inc.

Court of Appeals of Oklahoma, Division III

December 22, 2017

GERALD DAVID CHICOINE, SHELLY ANNETTE CHICOINE, individually and as next friend of CAYMAN DAVID CHICOINE, Plaintiffs/Appellants,
v.
SAINT FRANCIS HOSPITAL, INC., SAINT FRANCIS HEALTH SYSTEM, INC., and KELLY J. JONES, R.N. Defendants/Appellees.

          Mandate Issued: 03/07/2018

         APPEAL FROM THE DISTRICT COURT OF WAGONER COUNTY, OKLAHOMA HONORABLE DAVID SHOOK, JUDGE

          Jon L. (Lin) McGraw, McKinney, Texas, and Matthew J. Kita, Dallas, Texas, and Charles L. Boudreaux, Paul T. Boudreaux, Raymond S. Allred, Richardson Richardson Boudreaux, Tulsa, Oklahoma, for Plaintiffs/Appellants,

          Mike Barkley, Brad Smith, F. Will DeMier, Jeff L. Wilson, Rachel D. Parrilli, The Barkley Law Firm, Tulsa, Oklahoma, for Defendants/Appellees.

          Bay Mitchell, Presiding Judge.

         ¶1 Plaintiffs/Appellants Gerald David Chicoine and Shelly Annette Chicoine, individually and as next friend of Cayman David Chicoine (collectively "Plaintiffs") appeal the trial court's denial of their Motion for New Trial following the jury's return of a verdict in favor of Defendants/Appellees Saint Francis Hospital, Inc., Saint Francis Health System, Inc., and Kelly J. Jones, R.N. (collectively "Defendants"). Following our review of the record on appeal and the applicable law, the decision of the trial court is AFFIRMED.

         I. Factual and Procedural Background

         ¶2 On July 23, 2009, Cayman Chicoine, a minor child, was admitted to Defendant Saint Francis Hospital ("SFH") for herpes encephalitis, a severe viral infection of the brain. On July 25, 2009, Cayman's treating physician, Dr. Barton, ordered that Cayman, who was then in a medically induced coma, receive 150 milligrams (mg) of pentobarbital to treat the brain seizures caused by the viral infection. Defendant Kelly J. Jones, R.N., unintentionally administered 2, 000 to 2, 500 mg of the medication to Cayman. At that time, the overdose was unknown to SFH staff. Cayman went into cardiac arrest (referred to in the record as a "code"). Nurses in the room then started CPR, and Cayman's condition stabilized after a few minutes. After the code but before he knew of the overdose, Dr. Barton also ordered the placement of a "bolt" to monitor Cayman's intracranial pressure ("ICP"). [1] Plaintiffs presented evidence showing the bolt would not have been needed at that exact moment but for the overdose. Defendants also presented evidence showing the bolt would likely have been required at some point during Cayman's illness and that the bolt was used throughout his treatment to monitor ICP. Cayman survived his bout with herpes encephalitis but left SFH with severe brain injuries.

         ¶3 Plaintiffs brought suit against Defendants alleging the overdose of pentobarbital and Defendants' failure to properly intervene after the overdose resulted in brain damage to Cayman that was materially worse than brain damage that would have been caused by the herpes encephalitis alone. Defendants admitted Cayman received an excess dose of pentobarbital but denied that the excess dose caused any damage to him. Defendants further denied they were negligent in intervening or treating the overdose. Following a three week jury trial, which began February 22, 2016, the jury returned a defense verdict. A poll of the jury showed nine jurors sided with the Defendants with three deciding in favor of Plaintiffs. Following the entry of the Journal Entry of Judgment in Defendants' favor, Plaintiffs filed a Motion for New Trial arguing the jury's verdict was "contrary to law" because the jury ignored the trial court's instructions and alleged the jury was exposed to extraneous prejudicial information in the jury room in the form of one juror's opinion regarding the characteristics of pentobarbital and the effect malpractice claims might have on nurses' insurance premiums. The trial court denied Plaintiffs' Motion for New Trial and, relying on 12 O.S. §2606 (B) and Warger v. Shauers, 574 U.S. ___, 135 S.Ct. 521 (2014), declined to admit the affidavits submitted to support Plaintiffs' allegations the jury was influenced by extraneous prejudicial information. Plaintiffs appeal from this denial of their Motion for New Trial.

         II. Plaintiffs did not properly preserve an evidentiary challenge to the jury's verdict.

         ¶4 Generally, appellate courts review the denial of a motion for new trial for error of a pure question of law or for an abuse of discretion. Robinson v. Okla. Nephrology Associates, Inc., 2007 OK 2, ¶6, 154 P.3d 1250, 1253. Here, Plaintiffs argue that because the jury's verdict was "contrary to law, " we must apply a de novo standard of review to this contention of error. Specifically, Plaintiffs argue the verdict was "inconsistent with the undisputed evidence, the instructions [the jury] received, and the law of this State." Plaintiffs claim the undisputed evidence showed: (1) Defendants caused Cayman to receive an overdose of pentobarbital, (2) the overdose required Cayman to undergo CPR and to have the bolt implanted to monitor ICP, and (3) the act of CPR and bolt placement caused damage to Cayman. Given this undisputed evidence and having received standard jury instructions on negligence, [2] direct cause, [3] and damages, [4] Plaintiffs argue the jury had no option but to return a verdict in their favor and set the amount of damages to be awarded.

         ¶5 Plaintiffs insist they are not arguing the evidence was insufficient to support the jury's verdict, but we see no other way to view Plaintiffs' position. See Reedy v. Weathers, 1970 OK 130, 472 P.2d 914. [5] Put another way, Plaintiffs argue that, as a matter of law, they were entitled, at the close of all the evidence, to a directed verdict on the issue of liability and that they were entitled to be awarded some, or at least nominal, damages. [6] "Whether or not there is sufficient evidence to go to the jury in a law case is a question of law... that must be presented to the trial court by a demurrer to the evidence or motion to direct a verdict...." Id. at ¶15. The trial court must be given the opportunity to make a ruling and the aggrieved party must note their exception to such ruling. Id. Only "then [will an appellate court] review the alleged error of law committed by the trial court in sustaining or overruling such demurrer or motion to direct a verdict." Id. "In order to preserve a challenge to the sufficiency of the evidence, a party must move for directed verdict at the close of all the evidence and before the issues are submitted to the jury." Hebble v. Shell Western E & P, Inc., 2010 OK CIV APP 61, ¶15, 238 P.3d 939, 945 (citing Drouillard v. Jensen Const. Co. of Okla., Inc., 1979 OK 126, ¶5, 601 P.2d 92, 94). Plaintiffs in this case never moved the trial court for a directed verdict. Accordingly, we agree with Defendants that Plaintiffs waived this issue for purposes of their Motion for New Trial and our appellate review. The trial court did not abuse its discretion in denying Plaintiffs' Motion for New Trial on these grounds.

         III. The affidavits supporting Plaintiffs' Motion for New Trial were properly excluded by the trial court.

         ¶6 Plaintiffs also argued in their Motion for New Trial that they should be granted a new trial because extraneous prejudicial information had been introduced into the jury deliberations. The Motion was supported by affidavits of Jurors J.T. and V.B. who claimed that (1) Juror A.S. told the other jurors during deliberations that he learned pentobarbital was not a vasodilating drug while he helped his wife study for her nursing license exam, and (2) when Juror J.T. told the jury members he thought SFH's nurses were lying about their conduct during Cayman's code to keep their liability insurance premiums from increasing, Juror A.S. opined that his wife's liability insurance did not increase when claims were made. According to Plaintiffs, the determination of whether pentobarbital was a vasodilating drug was material to whether SFH met the standard of care in treating Cayman and would explain why Cayman needed CPR after the overdose. Plaintiffs argued Juror A.S.'s statements qualified as extraneous prejudicial information because it was an assertion of fact related to the issue the jurors were to decide. Further, Plaintiffs argued the statements regarding nurses' malpractice insurance bore upon the jurors' determination of witness credibility. Defendants responded with their own juror affidavits generally denying these statements although Juror A.S. did agree that he stated his wife's insurance premiums would not increase significantly with a claim. Additionally, Defendants argued Juror A.S.'s alleged statements were not extraneous prejudicial information because they merely reflected his life experiences. At the hearing on the matter, no witnesses were called, and Plaintiffs relied on the affidavits attached to their Motion. The trial court refused to admit the affidavits under 12 O.S. §2606 (B) and Warger v. Shauers, 574 U.S. __, 135 S.Ct. 521 (2014) and denied Plaintiffs' Motion.

         ¶7 "We review a trial court's order denying a motion for new trial for error of a pure question of law or for an abuse of discretion which is arbitrary, clearly against the evidence, and manifestly unreasonable." Robinson, 2007 OK 2, ΒΆ6. Here, the trial court's decision to deny a new trial also rested on its decision to deny admission of the juror affidavits which purported to show that extraneous prejudicial information was improperly brought to the jury's attention. This decision is also reviewed for manifest error or an abuse of ...


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