LOUETTA J. SMITH, an individual, and RICHARD L. SMITH, an individual , Plaintiff s - Appell ees , vs. FRANK H. HAUGLAND, M.D., Ph.D., an individual, and THE IOWA CLINIC d /b/a HEART AND VASCULAR CARE, an Iowa Corporation , Defendant s - Appell ants .
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IN THE COURT OF APPEALS OF IOWA
No. 8-910 / 07-1697
Filed February 4, 2009
LOUETTA J. SMITH, an individual, and
RICHARD L. SMITH, an individual,
Plaintiffs-Appellees,
vs.
FRANK H. HAUGLAND, M.D., Ph.D.,
an individual, and THE IOWA CLINIC
d/b/a HEART AND VASCULAR CARE,
an Iowa Corporation,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
The defendants appeal from a jury award to plaintiffs in this medical
malpractice action. AFFIRMED.
Robert Rouwenhorst of Rouwenhorst & Rouwenhorst, P.C., West Des
Moines, for appellants.
Marc A. Humphrey of Humphrey Law Firm, P.C., Urbandale, for appellees.
Sara E. Thalman of Shively Law Offices, P.C., Lincoln, Nebraska, for
amicus curiae American College of Cardiology, Iowa Chapter.
Heard by Sackett, C.J., and Potterfield, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
2
POTTERFIELD, J.
The plaintiffs brought this medical malpractice action seeking damages
arising from complications suffered by Louetta Smith after surgical treatment for
benign premature ventricular contractions (PVCs).1 The plaintiffs claimed the
doctor failed to obtain informed consent and failed to pursue a more conservative
course of treatment. These claims were supported by their expert, Dr. Kenneth
Brown, a cardiologist who specialized in nuclear cardiology and had experience
regarding the treatment of this benign condition.
The jury found the
defendants—an electrophysiologist and his medical group—negligent and
awarded plaintiffs $1,628,498.04 in damages. On appeal the defendants assert
the plaintiffs‘ expert was not qualified under Iowa Code section 147.139 (2005) to
give an opinion on the specialized medical care in dispute and that their request
for a new trial should have been granted.
I. Background Facts and Proceedings.
Louetta Smith, age 76, was bothered by intermittent left-sided chest pain
and occasional palpitations of her heart. She was especially concerned because
her father had died of a heart attack when she was ten years old. Louetta had a
fifty-year history with her family physician, Dr. Rahim Bassiri. In November 2002,
on the advice of Dr. Bassiri, Louetta made an appointment with a cardiologist, Dr.
Frank Haugland, to evaluate her chest pain and arrhythmias.
On November 6, Dr. Haugland wrote to Dr. Bassiri concerning his
assessment and plan:
1
In lay terms, PVCs are irregular or extra heartbeats. The doctors who testified in this
suit noted that many people have PVCs and the majority who have them are either not
aware of them or are treated by their primary care physician.
3
Frequent PVCs. Based on the treadmill exercise test these PVCs
appear to be of right ventricular outflow tract origin. In most cases
these PVCs are benign. Based on her examination today she has
a fairly normal cardiac examination. I have requested a cardiac
echo to be obtained to evaluate left ventricular systolic function and
suspected aortic sclerosis. I have recommended a trial of low-dose
Rythmol therapy starting at 75 mg by mouth twice daily. If her
overall left ventricular systolic function is normal we will try to adjust
the dose of Rythmol to suppress her arrhythmias and see whether
or not the rest of her symptoms resolve. If there are significant
abnormalities on the echo or she has persistent symptoms in spite
of suppression of the PVCs I would then likely recommend that she
undergo an Adenosine Cardiolite scan as she has very poor
exercise tolerance during her treadmill to look for any evidence of
myocardial ischemia.
On April 21, 2003, Dr. Haugland wrote to Dr. Bassiri again. Dr. Haugland
noted that Louetta has been taking Rythmol, which is ―less effective as time has
gone by.‖
He further noted Louetta is reporting more episodes of irregular
heartbeat in association with atypical chest pain and that she is having symptoms
of ―palpitations, fatigue, pain in her leg, and night sweats.‖ Dr. Haugland wrote:
Frequent PVCs of right ventricular outflow tract origin. These are
no longer well controlled with Rythmol therapy. I have counseled
her regarding this. She would like to have these fixed, if possible. I
think it is reasonable to proceed with electrophysiology testing and
radiofrequency ablation of the ectopic focus. It is likely that these
are of right ventricular outflow tract origin. There is a small
possibility that these may be actually in the left ventricular outflow
tract. Regarding the testing, I discussed with her the nature of the
procedure, the goals, and risks involved. She understands and
agrees to proceed.
On April 24, 2003, Louetta was to undergo outpatient electrophysiology
testing and radiofrequency ablation—a procedure that is designed to pinpoint the
areas of the heart that are ―misfiring‖ and uses radiofrequency energy to destroy
abnormal electrical pathways in heart tissues. Unfortunately, while performing
the procedure, Dr. Haugland perforated Louetta‘s right ventricular wall, resulting
4
in a cardiac tamponade—the sac around the heart filled with blood and kept the
heart from beating.
Emergency cardiac surgery was required to repair the
perforation and to drain the blood from around the heart. Louetta then developed
cerebral anoxia—lack of oxygen to the brain—and suffered two strokes.
Louetta was placed in intensive care, where she stayed for eighteen days.
She was taken off the ventilator about May 9, 2003.
At that time medical
caregivers noted she was having cognitive difficulties, including confusion,
numbness and weakness to the right foot, slurred speech, and problems with
coordination.
Louetta spent several more days in the hospital and then was transferred
to a rehabilitation unit for sixteen days. She was discharged on June 4, 2003,
and continued to receive outpatient rehabilitative services to help her to regain as
much functioning as she was able.
Louetta and her husband, Richard Smith, brought this suit against Dr.
Haugland and his medical group, Heart and Vascular Care, alleging negligence
and loss of consortium.
Prior to trial, the defendants moved in limine to disallow, among other
things, statements by plaintiffs‘ counsel ―regarding the effect of the verdict to
promote general or special deterance [sic] by using terms such as: ‗punish,‘ ‗set
an example,‘ ‗send a message‘ or similar language associated with punitive or
exemplary damages.‖ Plaintiffs did not resist this aspect of the motion in limine:
the response reads, ―[t]here is no claim for punitive damages and Plaintiffs‘
counsel has no intentions of using such wording in argument or otherwise.‖
5
Defendants also moved to exclude the testimony of the plaintiffs‘ expert
witness, Dr. Kenneth Brown. Relying upon Iowa Code section 147.139,2 the
defendants contended that Dr. Brown was not qualified to testify whether
radiofrequency ablation was an appropriate option for treatment because he was
not an electrophysiologist and could not offer an opinion as to the standard of
care of an electrophysiologist.
A hearing was held just prior to trial on the motions in limine and the
motion to exclude. With respect to the motion concerning ―[c]omments about the
verdict as punishment,‖ plaintiffs‘ counsel stated: ―I don‘t intend to do that‖ and
the district court sustained the motion.
With respect to the motion to exclude, defendants‘ counsel argued that Dr.
Brown, a specialist in nuclear cardiology, was not a heart rhythm specialist and
had never performed an ablation procedure and was thus ―not qualified to
express any opinion in this case as to whether Dr. Haugland was within the
standard of care to give Mrs. Smith the option of a radiofrequency ablation to
treat her arrhythmias.‖ The district court overruled the motion to exclude and the
case proceeded to trial.
Dr. Brown testified that he was board-certified in cardiology, ―the general
practice of cardiovascular medicine, cardiovascular diseases,‖ and boardcertified in the subspecialty of nuclear cardiology, which ―involves the use of
2
―If the standard of care given by a physician and surgeon licensed pursuant to chapter
148, or osteopathic physician and surgeon licensed pursuant to chapter 150A, or a
dentist licensed pursuant to chapter 153, is at issue, the court shall only allow a person
to qualify as an expert witness and to testify on the issue of the appropriate standard of
care if the person‘s medical or dental qualifications relate directly to the medical problem
or problems at issue and the type of treatment administered in the case.‖
6
nuclear scans to evaluate blood flow and contraction of the heart.‖ He testified
he frequently treated patients with PVCs and for the majority of those patients, no
medical treatment was recommended: simple reassurance that the extra
heartbeats were benign was all that was required. For the remainder of his
patients who had benign PVCs, he had successfully controlled their symptoms
with medication.
He testified that he did refer patients with life-threatening
arrhythmias to electrophysiologists for ablation procedures.
Dr. Brown testified that Louetta‘s heart had no underlying abnormality and
that to
recommend and perform a cardiac ablation which has a known risk
of serious events, including death, to someone for a condition that
is completely benign without any increased risk, especially before
an adequate trial of medical treatment to control any symptoms that
might be related to this condition, is a deviation from good and
accepted standard of care.
He testified that Louetta‘s chest pain was not related to the PVCs. He stated that
a patient should be informed about the possible complications, the risk of death,
and that chest pain would not be alleviated by the procedure. He opined that
Louetta had not given informed consent to the ablation procedure.
On cross-examination, Dr. Brown acknowledged he was not involved in
performing ablations.
He also stated ―PVCs are not generally treated by
electrophysiologists, they‘re treated at lower levels.‖ Dr. Brown stated, ―There
may be some very extenuating circumstances in which performing an ablation for
symptomatic PVCs might be appropriate, but it‘s not this patient.‖ He expressed
no opinion as to the radiofrequency ablation technique performed by Dr.
7
Haugland. Dr. Brown also acknowledged that eighty to ninety percent of patients
who receive radiofrequency ablation experience the elimination of PVCs.
Numerous other witnesses testified that Louetta did experience chest pain
and PVCs over the years. Louetta testified she had experienced sharp pains in
her chest off and on for years. She went to see Dr. Haugland for the pain in her
chest and she did not remember whether she also had skipped heartbeats. She
testified about her father dying of a heart attack, which made her wonder about
her own chest pains. She testified she believed the medication Dr. Haugland
placed her on was for the ―pain in my heart.‖ She also testified Dr. Haugland was
going to ―[z]ap a place in [her] heart‖ and that she believed the ablation was to
―stop some of the pain in my heart.‖ She denied knowing about the risks of the
procedure and that if she had known that her heart could have been inadvertently
punctured, ―I wouldn‘t be there.‖ Louetta testified that, since the procedure, she
was not able to clean her house; to ―get the ingredients assembled‖ to cook; to
read the newspaper, except for the headlines; to drive; or, to square dance or
round dance. She described how much she missed that part of her life with
Richard. (Other witnesses supported Louetta‘s testimony as to the changes in
her capabilities.)
On cross-examination, Louetta acknowledged that her signature and
initials were on a written consent, which explained the procedure and listed the
risks of cardiac catheter procedures, including cardiac perforation, bleeding at
the site, infection, and in rare cases death. She testified that she did not and
could not—even before the procedure—read the document.
8
Richard testified that he and Louetta had been married more than fifty
years. He testified that as a couple they loved to travel, camp, hike, and to
dance. Richard testified that Louetta periodically experienced chest pains and
that she was afraid she was having a heart attack. He did not connect her
occasional description of a skipped heartbeat with the chest pain. He testified
that Louetta went to see Dr. Haugland because of the chest pains. As to the
ablation, Richard testified that in April 2003, Dr. Haugland told him ―they would
go up a vein into the heart, and his term was to zap a couple of places up there
and that should take care of this problem. He said it was just a – a simple
outpatient process.‖ Richard stated that Dr. Haugland told him that there was
always a risk involved when you‘re going into the heart, but ―he didn‘t indicate
that it was anything that was life-threatening or would be anything to be too
concerned about.‖ He testified, ―I figured it – if it got rid of the pain, it would be
worth some risk.‖
Q. Did you have any understanding that this ablation
procedure could cause a serious bleeding problem in Louetta‘s
heart which might then damage her brain and affect her life
forever? A. No, I was completely shocked when he reported what
had happened.
Richard described Louetta‘s recovery efforts and her current deficits.
Dr. Haugland testified that at the time of Louetta‘s care there were about
ten doctors in his cardiology group and he was the only electrophysiologist. In
addition, there were three cardiac surgeons and four valvular surgeons.
Dr.
Haugland was asked, ―Would you agree with me that all of the cardiologists in
that group were capable of caring for and treating patients with benign PVCs like
what Louetta Smith had?‖ He responded, ―Yes.‖
9
Dr. Haugland testified that Louetta‘s benign PVCs were not caused by an
underlying heart condition or abnormality and acknowledged that Louetta‘s PVCs
posed no serious health threat. He agreed that greater than ninety percent of
people with benign PVCs like Louetta are treated with simple reassurance by a
doctor and no medication and no ablation. He testified that the risk associated
with an ablation procedure was greater than the risk of the condition and that a
patient should clearly understand that before going forward with the procedure.
Dr. Haugland also testified that Louetta had three types of chest pain: a
―noncardiac chest pain,‖ a costochondritis [inflammation of cartilage], and a ―third
type of chest pain when the heart is skipping, and she can‘t possibly sort it out.‖
He testified that the Rythmol prescription was to help ―sort it out.‖
Defendants moved for a directed verdict, contending the plaintiffs had
failed to provide competent evidence that Dr. Haugland‘s care fell below the
standard of care for an electrophysiologist performing a radiofrequency ablation.
The district court denied the motion, noting that the defendants missed the mark
of the plaintiffs‘ case.
First and foremost, there is no question in this record that the
ablation procedure itself fell below the standard of care.
...
That‘s not where this case pivots and to focus on that area, in this
Court‘s view, would be inappropriate.
The criticism of Dr. Haugland is and must be temporally
before the procedure itself. Clearly Dr. Brown has neither the
education nor the training nor the experience of an
electrophysiologist. That is not, however, his criticism, and it is not
the framework in which this Court believes this case has been
brought and evidentially crafted.
The thrust of the Plaintiffs‘ case here is and must be twofold, as the Court views it. One, it‘s presented as an informed
consent case, whether or not the – cardiologist who provided the
modality of treatment options for the Plaintiff properly informed her
10
of what those options were and the risks, if any, associated with
them.
And the second prong of the Plaintiffs‘ case is, at least in this
Court‘s view, whether or not a more conservative treatment could
have been and should have been pursued before entertaining the
surgical option, i.e., having used an antiarrhythmic whether or not a
beta blocker or a calcium channel blocker should have been
explored and used or offered before the surgical option.
...
It‘s undeniable in the record as to the education and
qualifications of Dr. Brown vis-à-vis your client.
In the defendants‘ case-in-chief, Dr. James Hopson, a cardiologist and
electrophysiologist, testified that radiofrequency ablation presents less risk than
other elective surgeries, because it does not require general anesthesia, in the
absence of complications. He testified that the risk of death associated with
ablation is ―extremely small‖ and the risk of perforation is about half a percent.
He testified he had performed thousands of cardiac ablations during his career.
When asked how many he had done for non-life threatening PVCs, he answered
―[m]aybe 30.‖ Dr. Hopson stated,
Well, my favorite treatment is nothing and reassurance, and
so if patients are asymptomatic or if their symptoms are related to
anxiety and their PVCs per se are not bothering them, then I often
don‘t recommend treatment. And for patients that have distressing
PVC, I will try—I‘ll try medicine, and I‘ll—I‘ll work at medicine along
with reassurance and there are—there are three or four different
medicines that are useful in–for treating PVCs, and I might try one
or a different combination of the medicine. It kind of depends on
the patient. And after taking PVCs that are minimally symptomatic
or can be treated with reassurance to PVCs that are treated with
medicine, the number that–that get to the point of thinking about an
ablation is relatively small.
Dr. Hopson testified that Dr. Haugland‘s choice to treat Louetta with
Rythmol was ―excellent‖ and that the decision to proceed to ablation was
reasonable. He testified it was appropriate to proceed with ablation, but that it
11
―would have been perfectly appropriate not to proceed.‖ Dr. Hopson opined Dr.
Haugland had complied with the standard of care.
Dr. Haugland testified again in the defense‘s case, outlining his
qualifications as a cardiologist and electrophysiologist. He reviewed his care of
Louetta and testified he believed the ablation was reasonable under the
circumstances presented by Louetta‘s case. He testified he did not specifically
remember what he told Louetta concerning the ablation, but described his
standard discussion of the procedure and the potential risks. He testified that the
consent form that Louetta signed was not his and he was not present when it
was signed.
On cross-examination, Dr. Haugland acknowledged that the drug Rythmol,
which he prescribed for Louetta, can potentially increase PVCs, produce
shortness of breath, chest palpitations, weakness, chest pains, and anxiety. He
also acknowledged that the ablation procedure he performed on Louetta was not
medically necessary.
At the close of the evidence, defendants again moved for directed verdict
on the ground that ―Dr. Brown was not qualified to express an opinion against an
electrophysiologist.‖ The court overruled the motion noting its ―assessment of
the case now is as it was at the time‖ the court previously overruled the motion.
Discussion
followed
concerning
the
proposed
jury
instructions.
Defendants objected to the instructions on negligence, again arguing there was
no evidence that Dr. Haugland fell below the standard of care expected of an
electrophysiologist. Counsel also objected to the court‘s statement of the case
as being an overemphasis of the plaintiffs‘ case. The court overruled defendants‘
12
objections. First, the court found the evidence had generated a sufficient jury
question. With respect to the statement of the case, the court noted:
[I]t is written in the manner that it is written for a specific reason.
The – the Plaintiffs‘ theory in this case does not rest upon an errant
ablation procedure. It rests upon the offering of that procedure,
which in this instance, unfortunately, had complications. So it is the
question of treatment options made available and a question of an
explanation as to the risks and benefits of the treatment options
which is subject to review. It‘s important, the Court believes, to
have this statement of the case make clear that the perforation of
the heart during the procedure is not the basis of the malpractice
claim, ergo it is written that way. Your objection is noted and
overruled.
Closing arguments followed.
At the close of his rebuttal argument,
plaintiffs‘ counsel, Mr. Humphrey, summarized:
Folks, you‘ve been incredibly attentive, and we appreciate the
attention and the opportunity to present this case to you. It is an
important case, because even though the experts come in and help
you understand standards of care, it‘s your decision. Your decision
will make a statement to this community and all of the patients – all
of the many, many, many patients who have this benign PVC
problem –
Mr. ROUWENHOURST: Your Honor, may we approach?
THE COURT: Sustained. Please proceed.
MR. HUMPHREY: Your decision is important to this
community. It‘s important to Dr. Haugland, and it‘s important to the
Smiths, and we trust that you will do the right thing. Thank you.
The jury was excused to deliberate and the alternate juror was dismissed.
Defendants then moved for a mistrial based on plaintiffs‘ counsel‘s final
statement. The court noted: ―Just so the record is abundantly clear, you did not
make a motion during the argument, you objected and I sustained the
objections.‖ The court then noted that counsel did again make a statement about
the community, but that the case had been tried in a ―superb fashion.‖ The court
ruled:
13
Based on everything that has taken place and the
attentiveness that this jury has paid throughout the trial and
throughout the closing arguments, this Court has confidence that
they will make a decision based on the facts and based on the law
and would not be swept up in a – in a suggestion of making a –
public statement. I think that was a rhetorical comment. I don‘t
believe that it unduly prejudiced your client.
The next day the jury returned a verdict for the plaintiffs in the total amount
of $1,628,698.40.
For Louetta, the jury awarded: past medical expenses --
$28,598.40; physical and mental pain and suffering -- $200,000; physical and
mental pain and suffering, future --$200,000; loss of full mind and body, past -$300,000; loss of full mind and body, future -- $600,000. For Richard, the jury
awarded loss of consortium, past -- $150,000 and future -- $150,000.
The defendants moved for a new trial, which was denied.
They now
appeal. They first argue that the district court erred in its ruling that Dr. Brown
was qualified to testify as to the appropriate standard of care. They also contend
that their motion for new trial should have been granted because plaintiffs failed
to present a prima facie case, plaintiffs‘ counsel engaged in misconduct, and the
damages were excessive.
II. Expert Witness Qualifications.
The admission of expert testimony rests in the discretion of
the district court, and we will not reverse its decision absent
manifest abuse of that discretion. We are committed to a liberal
rule on the admission of opinion testimony. Moreover, the source
of expert knowledge is not significant, and knowledge from
experience is every bit as good as that acquired academically. A
physician need not be a specialist in a particular field of medicine to
give an expert opinion.
Tappe v. Iowa Methodist Med. Ctr., 477 N.W.2d 396, 402 (Iowa 1991) (internal
quotations and citations omitted.); see also Hutchinson v. Am. Family Mut. Ins.
14
Co., 514 N.W.2d 882, 886 (Iowa 1994) (finding an expert may be qualified on the
basis of experience without being a recognized specialist).
Defendants assert Dr. Brown, plaintiffs‘ expert witness, a cardiologist with
a subspecialty in nuclear cardiology, was not qualified under Iowa Code section
147.139 to give an opinion on the standard of care governing the type of
treatment for benign premature ventricular contractions provided by Dr.
Haugland, a cardiologist and an electrophysiologist. We disagree.
Section 147.139 provides:
If the standard of care given by a physician . . . is at issue,
the court shall only allow a person to qualify as an expert witness
and to testify on the issue of the appropriate standard of care if the
person‘s medical . . . qualifications relate directly to the medical
problem or problems at issue and the type of treatment
administered in the case.
If this case had been tried on the issue of whether the ablation was negligently
performed, the defendants‘ argument might have merit.
In such a case the
expert witness‘s medical qualifications would need to ―relate directly‖ to the
radiofrequency ablation procedure. However, that is not the case that was tried.
As the district court repeatedly clarified, the issue for the jury did not
involve the manner in which the ablation was performed. Rather, the question
was whether ablation was an appropriate treatment choice for Louetta‘s benign
PVCs and whether she gave an informed consent for that treatment. An expert
witness must be generally qualified in a field of expertise and must also be
qualified to answer the particular question propounded. Tappe, 477 N.W.2d at
402. We agree with the district court that Dr. Brown was qualified to answer
whether ablation was an appropriate treatment choice.
15
Louetta‘s medical problem was benign PVCs. All the doctors testifying in
this case agreed that benign PVCs are most often treated by a person‘s primary
care physician. Dr. Haugland himself agreed that all of the cardiologists in his
medical group were capable of caring for and treating patients with benign PVCs.
Dr. Brown—a board-certified cardiologist who is also board-certified in nuclear
cardiology—testified that he frequently treated patients with benign PVCs and
that he had referred patients for ablation treatment. He was qualified to testify as
to the appropriateness of the treatment options available to Louetta and whether
she gave an informed consent to the ablation procedure. The jury was properly
instructed as to the focus of their inquiry.
The district court did not abuse its discretion in allowing Dr. Brown to
testify.
III. Motion for New Trial.
The defendants argue the district court erred in not granting their motion
for a new trial based on the alleged lack of a prima facie case of negligence,
misconduct by plaintiffs‘ counsel in closing arguments, and an award of
excessive damages.
Because the sufficiency of the evidence presents a legal
question, we review the trial court‘s ruling on this ground for the
correction of errors of law. See Estate of Long ex rel. Smith v.
Broadlawns Med. Ctr., 656 N.W.2d 71, 88 (Iowa 2002) (stating
court‘s review depends on grounds asserted in motion for new trial;
if legal question, review is on error); cf. Heinz v. Heinz, 653 N.W.2d
334, 338 (Iowa 2002) (reviewing for correction of errors at law trial
court‘s grant of directed verdict on the basis of insufficient
evidence).
In addition to the grounds for granting a new trial set out in
rule 1.1004(6), the trial court has inherent power to set aside a
verdict when the court concludes ―the verdict fails to administer
substantial justice.‖ Lehigh Clay Prods., Ltd. v. Iowa Dep’t of
16
Transp., 512 N.W.2d 541, 543 (Iowa 1994). We review the court‘s
ruling on a motion for new trial based on this ground for an abuse of
discretion. See id. at 544. To show an abuse of discretion, the
complaining party must show ―the court exercised its discretion ‗on
grounds clearly untenable or to an extent clearly unreasonable.‘‖ Id.
(citation omitted). ―As used in this context, ‗[u]nreasonable‘ means
not based on substantial evidence.‖ Channon v. United Parcel
Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001).
Estate of Hagedorn ex rel. Hagedorn v. Peterson, 690 N.W.2d 84, 87-88 (Iowa
2004).
Defendants‘ assertions concerning the lack of a prima facie case are
grounded upon their belief that Dr. Brown was not qualified to testify as to the
standard of care.
We have already rejected that contention and need not
address it further.
Defendants next assert that plaintiffs‘ counsel‘s statements during closing
argument regarding the importance of the case to the community constituted
prejudicial misconduct requiring a new trial. A new trial is required for improper
conduct by counsel if it appears that prejudice resulted or a different result would
have been probable but for any misconduct. Tratchel v. Essex Group, Inc., 452
N.W.2d 171, 178 (Iowa 1990).
Trial courts have considerable discretion in
determining whether any alleged misconduct was prejudicial.
McGough v.
Gabus, 526 N.W.2d 328, 333 (Iowa 1995).
Here, the district court ruled that the motion for mistrial came too late as it
was not made until after the jury began deliberations. See Rosenberger Enters.,
Inc. v. Ins. Serv. Corp. of Iowa, 541 N.W.2d 904, 907 (Iowa Ct. App. 1995). It
also noted that defendants did not ask for a curative instruction.
17
Even if we assume that defendants did not waive this error, we do not find
counsel‘s argument so impassioned and inflammatory that it likely caused
prejudice. See, e.g., id. at 908 (finding a new trial should have been granted
because the ―cumulative effect of Rosenberger‘s counsel‘s closing argument was
an impassioned and inflammatory speech that likely caused severe prejudice‖
where counsel argued that the jury should find fault on the basis of ability to pay
rather than actual fault, used melodramatic antics throughout final arguments,
and impermissively asserted his personal opinion). We again find no abuse of
discretion.
Lastly, defendants assert that they are entitled to a new trial because the
damages awarded were excessive.
An award that is flagrantly excessive or
unsupported by the evidence may be set aside or altered on appeal. Schmitt v.
Jenkins Truck Lines, Inc., 170 N.W.2d 632, 659 (Iowa 1969).
The jury awarded more than $1.6 million to the plaintiffs. The defendants
contend this award was excessive and without evidentiary support, noting the
advanced age of the plaintiffs. The district court found that the record did not
support a finding that the awards were a product of emotion rather than reason.
The jury‘s charge was to decide the amount of damages that would
compensate Louetta fairly for the resulting pain, disability, and mental anguish,
and Richard for loss of consortium. From the evidence presented, the jury could
conclude that prior to the April 2003 procedure, there was no underlying heart
disease related to Louetta‘s PVCs. Prior to the procedure, Louetta and Richard
led a very full life. They enjoyed dancing several times a week, including square
dancing and round dancing, both of which require that the participants be able to
18
hear and process dance calls. Louetta insisted on keeping a clean house and
enjoyed cooking and reading. After the procedure, Louetta struggled through
many months of difficult rehabilitative effort, but was still unable to regain many
capabilities she previously possessed. Among other things, she did not drive;
she could not process information sufficiently to cook; she was unable to square
dance; reading was difficult. Richard helped her through this difficult time and
had been required to take over many of the day-to-day chores. Their social life
was substantially diminished.
The district court noted that ―there was
unquestionably evidence of great loss in the waning years of life.
Indeed,
because it is short, it may be more precious. Remittitur on this ground would not
be justified.‖
The district court concluded that the amount awarded by the jury was
supported by the evidence and that no remittitur was warranted. We give weight
to the district court‘s refusal to grant a new trial based on the same grounds the
defendants urge here. See id. at 660. The verdict in this case, although large,
does not shock the conscience or go beyond the evidence. We are not willing to
disturb the finding of the jury.
AFFIRMED.
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