|
COURT OF
APPEALS DECISION DATED AND
RELEASED January
25, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2232
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
SUSAN
HANMER, EUGENE HANMER,
CRAIG
HANSON AND RAYMOND E. KREK,
AS
GUARDIAN AD LITEM OF REBECCA
HANSON
A/K/A REBECCA HANMER,
Plaintiffs-Appellants,
v.
WYETH
LABORATORIES, INC.,
WYETH
LABORATORIES, AMERICAN HOME
PRODUCTS
CORPORATION,
FORT
ATKINSON MEDICAL CENTER, S.C.,
FRANK
BERAN, M.D.,
JOHN
DOE AND/OR JANE DOE,
COUNTY
OF JEFFERSON,
COUNTY
OF JEFFERSON HEALTH AGENCY
AND
WISCONSIN PATIENTS COMPENSATION FUND,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Jefferson County: ROBERT G. MAWDSLEY, Judge. Affirmed.
Before
Eich, C.J., Gartzke, P.J., and Vergeront, J.
PER
CURIAM. Susan Hanmer and her daughter, Rebecca Hanson, appeal
from a judgment dismissing their medical malpractice action against Dr. Frank
Beran and Fort Atkinson Medical Center, S.C.
They contend that the trial court erroneously exercised its discretion
by not admitting into evidence certain interrogatories and by not granting a
mistrial or giving a curative instruction following improper remarks in the
closing argument of defense counsel. We
reject these arguments and affirm.
Rebecca
was born on January 26, 1974. Dr. Beran
was the attending physician at her birth.
Rebecca saw Dr. Beran at the Fort Atkinson Medical Center for follow-up
"well baby" check-ups.
Rebecca received a smallpox vaccination on April 29, 1975, at the
Jefferson County Courthouse from Jefferson County Clinic nurses. She subsequently sustained serious
neurologic injury, ultimately resulting in a temporal lobectomy, which she and
her mother attribute to the vaccination.
Hanmer's
and Rebecca's claims against Dr. Beran and the Fort Atkinson Medical Center
rest on their contention that Dr. Beran recommended to Hanmer that Rebecca
receive the smallpox vaccination.
Hanmer testified that she was given an immunization guide by Dr. Beran
or his nurse. The guide listed the
smallpox vaccination as a vaccination which should be given to children. She testified that she discussed the
smallpox vaccination with Dr. Beran.
According to Hanmer's testimony, Dr. Beran recommended to her that
Rebecca receive a smallpox vaccination; that it would be less expensive to take
Rebecca to the Jefferson County Clinic for the vaccination; and that it would
be better for Rebecca to receive the vaccination as an infant than as an
adult. Hanmer testified that
Dr. Beran had his nurse call the clinic to determine when the smallpox
vaccinations would next be given and that Dr. Beran then gave those dates to
her.
The
immunization guide was printed in June of 1971. In September 1971, the United States Public Health Service
recommended that the smallpox vaccination not be used routinely for infants in
the United States because the risk of injury from the vaccination surpassed the
risk of contracting the disease.
Dr.
Beran testified that he did not recall the exact conversations he had with
Hanmer twenty years ago, but he did know the "routine" that he used
in similar situations during that time period.
Based on his recollection of this routine, Dr. Beran testified that if
Hanmer had asked him about giving Rebecca the smallpox vaccine, he would have
told her that he was not giving the vaccination and that the center had stopped
giving routine smallpox immunizations in 1972.
He testified that in 1974 or 1975 he would have recommended the smallpox
vaccination only for someone who was planning to travel to certain locations
overseas where smallpox was still active.
Dr. Beran testified that he would not have discussed the smallpox
vaccination unless he was asked about it and that, other than the baby book,
"there's no other information that's routinely given at the
clinic." He acknowledged that
either he or his nurse gave Hanmer the immunization guide.
The
jury found that Hanmer and Rebecca had failed to prove that Dr. Beran had
recommended the smallpox vaccination to Hanmer. Plaintiffs' motions after verdict were denied, and judgment was
entered in favor of Dr. Beran and the Fort Atkinson Medical Center on November
1, 1994.
Hanmer
and Rebecca contend that the trial court erroneously exercised its discretion
by not admitting into evidence the following interrogatory questions and
answers:
INTERROGATORY
NO. 32: Please set forth any and all
information given to Susan Hanmer in writing or orally by Dr. Beran and any
member of the staff of Fort Atkinson Medical Center concerning smallpox vaccine
and/or smallpox the disease. For your
response, please include: [dates,
copies, etc.].
ANSWER: None was given.
INTERROGATORY
NO. 34: Please set forth and describe in
detail any and all information provided routinely to patients in 1975
concerning smallpox vaccine by Dr. Beran, Fort Atkinson Medical Center, its
agents or employees. For your response, please include: [dates, descriptions, etc.].
ANSWER: None was given.
INTERROGATORY
NO. 35: Please set forth any and all
information you provided to Susan Hanmer on or before April 29, 1975 regarding
smallpox vaccine by Dr. Beran, Fort Atkinson Medical Center or its employees. For your response, please include: [date, description, etc.].
ANSWER: Object
that this interrogatory is vague and overbroad. Subject to those objections, no information was given to Susan
Hanmer regarding smallpox vaccinations for Rebecca Hanmer.
Decisions
regarding the exclusion of evidence at trial are left to the discretion of the
trial court. State v. Clark,
179 Wis.2d 484, 490, 507 N.W.2d 172, 174 (Ct. App. 1993). We affirm a discretionary decision by the
trial court if the trial court examined the relevant facts, applied the proper
standard of law and used a demonstrated rational process in reaching a
reasonable conclusion. Loy v.
Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175, 184 (1982).
Under
§ 904.03, Stats., a trial
court is given discretion to exclude relevant evidence if its probative value
is substantially outweighed by the danger of confusion or if its presentation
is cumulative of other evidence.
The
court stated that the responses to the interrogatories could be interpreted in
three potentially different ways: that
Dr. Beran routinely gave no information regarding smallpox in 1975; that Dr.
Beran had no specific recall of giving such information to Hanmer; or that Dr.
Beran believed the response "none was given" was in reference to
giving a smallpox vaccine to Rebecca.
The court noted the confusion this could cause the jury, calling
interrogatories "crude discovery tools." The court then balanced the value of the interrogatories against
this potential for confusion by noting that the interrogatories did not contain
information that was not covered elsewhere in admitted evidence.
Given
the ambiguities in the interrogatory responses, we cannot say that this was an
erroneous exercise of discretion. The
trial court applied the proper standard of law, examined the relevant facts and
used a rational process in deciding to exclude the interrogatory responses.[1]
Hanmer's
and Rebecca's second argument is that the trial court erroneously exercised its
discretion in failing to grant a mistrial or give a curative instruction after
improper remarks in closing argument by defense counsel. Defense counsel stated that after seven
years of testimony from dozens of witnesses, the plaintiffs did not bring
forward any other people who had been "steered" by Dr. Beran after
1972 to the county clinic for smallpox vaccinations. Defense counsel also stated, inaccurately, that Hanmer and
Rebecca had access to "anything they wanted from Dr. Beran, and there's no
evidence that anyone else was steered."
Hanmer and Rebecca moved for a mistrial and asked the court for a
curative instruction that they had no ability to obtain the names of patients
without the patients' consent; that they did not have access to patients'
names; and that defense counsel knew these things when he made his closing
argument.
The
decision not to grant a mistrial is within the discretion of the trial
court. Haskins v. State,
97 Wis.2d 408, 419, 294 N.W.2d 25, 33 (1980).
Similarly, the instructions given to a jury on an issue are within the
discretion of the trial court. Fischer
v. Ganju, 168 Wis.2d 834, 849, 485 N.W.2d 10, 16 (1992).
The
trial court chose to remedy the impropriety by allowing Hanmer's and Rebecca's
counsel to make responsive comments in closing argument. Their counsel was allowed to argue that Dr.
Beran alone had the ability to bring in his other patients to testify, implying
that the failure to do so really weighed against him, not Hanmer and Rebecca.
The
court did not give the requested curative instruction because it considered the
Wis J I—Civil 110 instruction to
adequately address the problem. That
instruction states that arguments by attorneys in closing are just arguments
and should not be considered by the jury as evidence.
We
conclude the trial court did not erroneously exercise its discretion by failing
to grant a mistrial or give the requested curative instruction. The trial court applied the correct law to
the relevant facts in a rational process and reached reasonable
conclusions. The decisions not to grant
a mistrial and not to give the requested jury instruction do not constitute an
erroneous exercise of the trial court's discretion.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.