New Trial Granted on Defense Verdict: Supremes Find Trial Judges Guilty of Abuse of Discretion (under new rule decreed hereby)

IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW (TEX. 2009)

EX POST FACTO (CASE) LAW FOR THE OCCASION:

Supreme Court to trial judges: If you follow existing law and grant a new trial in the interests of justice, you may be abusing your discretion. If you did not know, we are telling you now.

Suggestion for bench and bar: Keep in mind how the Supremes would feel about Defendants having a favorable verdict taken from them! And also be nice to the Defense. Don't ask for, and don't grant, default judgment just because the defendant's lawyer went AWOL after the jury was selected.

SUPREME COURT CRACKS DOWN ON JUDGES WHO GRANT NEW TRIALS

Under Texas law, the decision to grant a new trial has long been reserved to the discretion of the trial court judge, who may do so in the interest of justice. No more. Mere justice, without more, will no longer suffice as a reason, after last week's Supreme Court decision in In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson).

Trial judges must now justify themselves, lest they be found guilty of abuse by higher authority.

UNWITTING ABUSE OF DISCRETION

In this case, and in two others decided the same day, the trial court judge followed established precedent in granting a new trial “in the interest of justice” following jury verdicts favorable to the health care providers (and an asbestos defendant in another case).

What were the Supremes to do to assure the “right” outcome for the favorite constituencies when current law does not permit it? The answer is simple: Change the law.

Existing law gave trial judges much discretion in deciding to grant a new trial after a jury verdict “in the interest of justice” No rule or statute required the trial judge to explain the specific reasons why doing so was necessary. Nor would a request for findings of facts and conclusions of law have been appropriate under such circumstances. After all, this type of order is anything but an order disposing of all claims and parties with a final judgment. For the same reason, the ruling for a new trial could not be appealed. Nor is there a statutory basis for an interlocutory appeal from an order granting a new trial.

But not to worry. Where there is power, there is a way.

Existing precedents favoring plaintiffs? So it be. Who says that precedent cannot be made more favorable when med-mal and asbestos defendants suffer the indignity of having the fruits of a favorable jury verdict taken away from them (a fate the Supremes inflict with regularity on tort Plaintiffs and their lawyers). Who says we can't set new precedent?

And so they did. Five of Nine. And that suffices.

Justice O'Neill, joined by Chief Jefferson, Medina, and Green, dissented in jurisprudential disgust at the majority's disrespect for precedent and bewailed the majority's attack on the integrity of the judges below.

SUPREME LAWMAKERS AT WORK

Acknowledging that the type of order at issue could not immediately be appealed because no statutory authorization existed for interlocutory appellate review, much less by the Supreme Court, the majority - spearheaded by Johnson – invokes its discretionary mandamus powers instead as a basis to intervene in the pending proceedings below. The extraordinary writ is necessary, it reasons, because otherwise the defendants would not have a remedy.

The majority, in effect, finds that the trial judges who had ruled against the defendants in the three cases, had abused their discretion by not including specific reasons in their new trial orders, something they had no obligation to do until the majority established such a duty by fiat last Friday.

The lesson: With us, you can't win. If the law is on your side, we will just change the law. If a rule we would like to use to produce the desired outcome does not exists, we'll just create it. And if the legislature has not provided for us to get immediately involved when defendants are unjustly deprived of the courtroom victory they undoubtedly deserve (by authorizing interlocutory appeal), we'll just expand our mandamus powers to call the trial judge to task, and hold them accountable.

So what is the new standard for articulating a sufficient reason for setting aside a jury verdict and granting a new trial? None. The Supremes keep the trial courts guessing. But the message is clear. If you grant a new trial after the defense has had its way with the jury, be prepared to be charged with - and found guilty of - abuse of discretion. And we'll put your name in the written opinion for the whole world to see. After all, we are mandamusing you. We get to meddle with you and how you run your court, but you don't get to mess with us.

The ultimate irony: Mandamus is a remedy to be issued against a specific judge to correct an error. But in at least two of the cases at issue, the original judge is no longer in office. The mandamus goes against successor judges who did not preside over the jury trials. How are they to devine the reasons why their predecessors concluded that something serious enough went awry in those trials to warrant a new trial “in the interest of justice”? How are they to fill the void created by the Supreme's newly established duty to deliver a written justification?

And how are the judges who left office ever to clear themselves of the allegations of abuse with respect to the propriety of their ruling?

SUPREME COURT ORDERS TRIAL COURTS TO EXPLAIN WHY THEY GRANTED NEW TRIALS: "In the Interest of Justice" WILL NO LONGER BE GOOD ENOUGH

In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus
granted) (jury trial, reasons for trial court judge disregarding jury verdict and granting new trial required)
(mandamus granted to order trial court to state specific reasons for setting aside jury verdict and granting a
new trial)
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL
CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County; 5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated; stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT JUDGES, SUPREMES ORDER THE LAST ONE TO COME UP WITH A VALID EXPLANATION WHY NEW TRIAL WAS GRANTED.

In Re Baylor Medical Center at Garland, No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson)
(trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide
reasons for granting new trial)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County;
5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below)
as reinstated, stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

TRIAL JUDGE ORDERED TO FURNISH EXPLANATION FOR GRANTING NEW TRIAL

In Re E.I. Du Pont de Nemours and Co., No. 08-0625 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted: trial court's grant of new trial following jury verdict requires specific explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;
9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

June 22, 2007 - Texas Supreme Court Hands Down One Per Curiam Opinion

The Supreme Court of Texas released a single opinion today, in which it ruled for the defendant doctors in a health care liability suit

Schaub, M.D. et al v. Sanchez, No. 06‑0375 (Tex. Jun. 22, 2007)(per curiam)(medical malpractice)

Full style: Lowry Schaub, M.D. and Kevin Crawford, M.D. v. Janie Sanchez and Kenneth Adams, Spouse
Appellate court below: Seventh Court of Appeals (Amarillo, Texas)
Appellate Cause No. 7‑04‑00057‑CV, ___ S.W.3d ___, Feb. 2, 2006
Disposition: Without hearing oral argument, the Supreme Court reverses the Seventh Court of Appeals' judgment and renders judgment for the defendant doctor.
Per Curiam Opinion (without Justice Johnson's participation)

Find terms: Texas health care liability cases, decisions, opinions, HCLC, medical malpractice cases in Texas, informed consent of patient, failure to obtain informed consent, validity of consent, written consent, oral objection

Kallam v. Boyd (Tex. Jun. 15, 2007)(per curiam)

Texas Supreme Court Decides Not to Hear Medical Malpractice Appeal - Un-grants Petition for Review Following Plaintiff's Death

Kallam, M.D. v. Boyd, No. 05-0027 (Tex. Jun. 15, 2007)(per curiam)(medical malpractice, plaintiff died pending appeal)

Full case style: G. Byron Kallam, M.D.; Mary Angeline Finke, M.D.; The Medical Clinic of North Texas, P.A.; Obstetrical and Gynecological Associates v. Sharon Boyd
Appeals court below: Second Court of Appeals, No. 02-03-00362-CV, ___ S.W.3d ___, (Tex.App.- Fort Worth, Nov. 24, 2004) 2 petitions, e-Briefs in the Supreme Court
Disposition: Motion to substitute party granted; The Supreme Court withdraws its order of September 1, 2006, granting the petitions for review, as the petitions were improvidently granted. The petitions for review are denied.
Find terms: medical malpractice, health care liability claims, HCLC, wrongful death, survival action, estate, affirmative defense of limitations, open courts challenge, constitutionality, effect of death of party on pending appeal

Also see: Comment on Kallam et al v. Boyd by Mary Alice Robbins, Texas Lawyer Blog


PER CURIAM OPINION

Sharon Boyd sued five health care providers for failing to diagnose her colorectal cancer. The trial court granted partial summary judgment dismissing Boyd’s claims of negligence that occurred more than two years before she filed suit as being barred by limitations.[1] That judgment became final by severance, and Boyd appealed. The court of appeals reversed in part, concluding that the Open Courts provision of the Texas Constitution[2] precluded application of the statute of limitations to bar claims before Boyd reasonably could have discovered them, and remanded the case to the trial court.[3] We granted the defendants’ petition for review to decide this issue, but shortly before oral argument, Boyd died.

Boyd’s death does not affect the court of appeals’ judgment or the continuation of this appeal.[4] But because of the change in the posture of the case, we decline to address the important constitutional issue that is presented. On remand, Boyd’s heirs or estate representative may, of course, continue the litigation.[5] Although we have held generally that “wrongful-death and survival claimants cannot establish an open-courts violation because they ‘have no common law right to bring either,’”[6] respondent’s counsel and amicus curiae contend that the rule should be different in this case because Boyd’s death while on appeal resulted directly from the negligent misdiagnoses, and denying Open Courts protection to her family’s statutory claims on these facts would subvert public policy goals. We believe prudence dictates awaiting a case in which this important issue has been fully litigated below “so that we will have the benefit of developed arguments on both sides and lower court opinions squarely addressing the question.”[7]

Accordingly, the order granting the petitions for review is withdrawn as improvidently granted, and the petitions for review are denied.

Opinion delivered: June 15, 2007

[1] Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2052, formerly Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01 (“Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.”) (current version at Tex. Civ. Prac. & Rem. Code § 74.251). The prior law continues in effect for cases like this one, filed before the new Act’s September 1, 2003 effective date.
[2] Tex. Const. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”).
[3] 152 S.W.3d 670, 687.
[4] Tex. R. App. P. 7.1(a)(1) (“Civil Cases. If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court’s judgment will have the same force and effect as if rendered when all parties were living. The decedent party’s name may be used on all papers.”).
[5] Tex. R. Civ. P. 151 (“If the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and upon suggestion of such death being entered of record in open court, may be made plaintiff, and the suit shall proceed in his or their name. If no such appearance and suggestion be made within a reasonable time after the death of the plaintiff, the clerk upon the application of defendant, his agent or attorney, shall issue a scire facias for the heirs or the administrator or executor of such decedent, requiring him to appear and prosecute such suit. After service of such scire facias, should such heir or administrator or executor fail to enter appearance within the time provided, the defendant may have the suit dismissed.”).
[6] Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex. 2000) (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995)).
[7] Yee v. City of Escondido, 503 U.S. 519, 538 (1992) (citing Lytle v. Household Mfg., Inc., 494 U.S. 545, 552 n.3 (1990)).