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MACHESNEY v. BRUNI

November 14, 1995

RAYMOND MACHESNEY, Plaintiff,
v.
LARRY BRUNI, M.D., P.C., LARRY BRUNI, M.D., PROVIDENCE HOSPITAL, Inc., and KENNETH L. MCCCOY & ASSOCIATES, Defendants.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on the following post-trial motions: 1) Defendant K.L. McCoy, M.D. & Associates, P.C.'s ("McCoy") motion for judgment as a matter of law; 2) Defendants Larry M. Bruni, M.D. and Larry M. Bruni, M.D., P.C.'s (collectively referred to as "Bruni") motion for judgment as a matter of law; 3) Defendant Bruni's renewed motion for a mistrial; 4) Defendant McCoy's motion for a new trial; 5) Defendant Bruni's motion for a new trial, or in the alternative, remittitur; 6) Defendant McCoy's motion for remittitur; 7) Defendant McCoy's motion to dismiss Bruni's cross-claim, or in the alternative, motion for summary judgment on Bruni's cross-claim; 8) Defendant Bruni's motion for implied or equitable indemnification from McCoy, or in the alternative, for apportionment of damages; and 9) Defendant McCoy's motion for indemnity, or in the alternative, for apportionment of damages; 10) Plaintiff Raymond Machesney's ("Machesney") motion for approval of bill of costs; and 11) Defendant Providence Hospital's motion for approval of bill of costs. The Court will address each motion in turn.

 BACKGROUND

 Plaintiff Raymond Machesney filed this medical malpractice action seeking damages against four defendants. The case went to trial against all four defendants on June 6, 1995. During the course of the trial, Plaintiff set forth evidence that the Defendants Providence Hospital and K.L. McCoy, M.D. and Associates negligently reported HIV tests to the Plaintiff in October and November of 1985 indicating that the Plaintiff was HIV positive, when he was not. The remaining defendants were Dr. Larry M. Bruni, M.D. and his professional corporation. Plaintiff provided evidence that Dr. Bruni negligently treated Plaintiff for the HIV virus for a five year period from April 1987 through May 1992, when another physician discovered that Plaintiff was not HIV positive.

 The case was sent to the jury for deliberations on June 21, 1995. On that same day, the jury returned a verdict for Plaintiff against Defendants Bruni and McCoy in the amount of $ 4.1 million. Defendant Providence Hospital was absolved of all liability by the jury. Judgment was entered in favor of Plaintiff against Defendants Bruni and McCoy on June 28, 1995. These motions followed.

 MOTIONS FOR JUDGEMENT

 AS A MATTER OF LAW BY McCoy AND BRUNI

 Judgment As a Matter of Law Standards1

 Judgment as a matter of law is only proper for the defendant where the Court finds, after viewing all the evidence in the light most favorable to the Plaintiff and after giving the Plaintiff the benefit of every reasonable inference, that no reasonable jury could have found in favor of the Plaintiff. Richardson by Richardson v. Richardson-Merrell, Inc., 273 U.S. App. D.C. 32, 857 F.2d 823, 827 (D.C. Cir. 1988), cert. denied, 493 U.S. 882, 107 L. Ed. 2d 171, 110 S. Ct. 218 (1989); Morgan v. District of Columbia, 263 U.S. App. D.C. 69, 824 F.2d 1049, 1056 (D.C. Cir. 1987). If reasonable people could differ as to the conclusion or there is substantial conflicting evidence, then a defendant's motion for judgment as a matter of law must be denied. Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 727 F.2d 1225, 1227 (D.C. Cir. 1984). When considering the evidence, the Court should not assess the credibility of the witnesses or weigh the evidence. Richardson at 827. The Court's function is limited to "verifying 'only that fair-minded jurors could reach the verdict rendered.'" Morgan at 1056, citing Grogan v. General Maintenance Service Co., 246 U.S. App. D.C. 154, 763 F.2d 444, 447 (D.C. Cir. 1985).

 Analysis with respect to McCoy

 Defendant McCoy contends that it is entitled to judgment as a matter of law because the Plaintiff failed to produce any evidence of negligence and failed to produce expert testimony on the standard of care, on the breach of the standard of care and on causation.

 Plaintiff sets forth several theories of liability with respect to Defendant McCoy: 1) that McCoy failed to perform HIV tests on Plaintiff's blood samples; 2) that McCoy failed to accurately perform and accurately report Plaintiff's HIV blood tests; and 3) that McCoy failed to adequately supervise the handling, processing, testing, and reporting of Plaintiff's HIV blood tests. If the Plaintiff presented sufficient evidence with respect to only one of these theories which would enable a reasonable jury to find in his favor, then judgment as a matter of law for Defendant McCoy must be denied.

 Plaintiff provided sufficient evidence to establish the standard of care owed by Defendant McCoy, its breach by Defendant McCoy and the resulting injury to Plaintiff. There is no dispute that McCoy consisted of a group of pathologists that supervised the operation of the laboratory at Providence Hospital in October and November of 1985, the time during which Plaintiff and Dr. Harris contend Plaintiff's blood was tested at Providence Hospital.

 Plaintiff submitted evidence that his blood was received by Providence Hospital for testing two times. According to Dr. Harris, the first blood sample was taken in his office in October of 1985 and sent to the lab at Providence for analysis. The second blood sample, according to Plaintiff's testimony, was taken at Providence in November of 1985. Dr. Harris testified that the reports generated from the lab with respect to both blood samples indicated that Plaintiff was HIV positive. Plaintiff also provided evidence through the testimony of Dr. Blick that he has never been HIV positive.

 Dr. Brancaccio, a McCoy official, conceded in his testimony that a laboratory has a duty to provide accurate testing of blood. Such a duty requires that the blood actually be tested under the supervision of the testing laboratory. *fn2"

 Under Plaintiff's first theory - that McCoy failed to perform the tests - Plaintiff sustained his burden. No actual records of the blood tests are available. *fn3" McCoy took the position that in 1985 it was not performing HIV blood testing and that it sent blood to be tested for the HIV virus to various reference labs - Mayo Medical Laboratories ("Mayo"), D.C Public Health Service Lab and American Medical Laboratory ("American"). Representatives from both Mayo and American testified that their records from 1985 did not disclose any tests of Plaintiff's blood. A chief at the D.C. Public Health Service Lab testified that his lab was not doing testing for the HIV virus in 1985. Based on this evidence, a jury was entitled to find that the tests were not performed by McCoy. *fn4"

 Plaintiff's evidence that McCoy reported that Plaintiff was HIV positive, when in fact he was not, certainly supports the element of causation. Based on the 1985 test results, Plaintiff believed that he had the deadly HIV virus for over 7 years.

 Assuming that the verdicts are inconsistent, it would be inappropriate for the Court to grant Defendant McCoy judgment as a matter of law under the circumstances of this case. *fn5" For the reasons stated above, the Court has found that Plaintiff provided sufficient evidence to warrant a verdict against McCoy. It would be patently unfair for the Court to credit the jury's verdict in favor of Providence as the "correct verdict" and allow Providence's verdict to inure to the benefit of Defendant McCoy as against the Plaintiff. Plaintiff presented more than enough evidence to withstand judgment as a matter of law.

 Accordingly, the Court denies Defendant McCoy's motion for judgment as a matter of law.

 Analysis with respect to Bruni

 Defendant Bruni contends that judgment should be entered for him as a matter of law because Plaintiff failed to establish a prima facie case on the issue of causation. Specifically, Defendant contends that no reasonable jury could have reached a verdict in favor of the Plaintiff on the issue of whether Plaintiff's alleged damage was caused by Dr. Bruni's failure to obtain Plaintiff's tests or failure to retest Plaintiff.

 Plaintiff proceeded against Dr. Bruni on several theories of liability: 1) failure to retest the plaintiff for HIV before treating him; 2) failure to obtain the plaintiff's medical records; 3) failure to follow the appropriate standard of care in prescribing numerous drugs and medications; and 4) failure to retest the Plaintiff at such time as the standard of care would require. If a reasonable jury could have found for the Plaintiff against Dr. Bruni on any of these theories, then the verdict must stand.

 Plaintiff's experts (Dr. Blick, Dr. Mundey) testified that before Dr. Bruni began treating Plaintiff he had an obligation to retest Plaintiff or obtain his test results from Plaintiff's prior doctor, Dr. Harris. *fn6" Once Dr. Bruni chose not to obtain the test records, *fn7" he was then obligated to retest Plaintiff. Plaintiff presented ample evidence which would indicate that if such testing had been done Plaintiff would have tested HIV negative. Plaintiff established through the testimony of Dr. Blick and Dr. Saah that Defendant Bruni's theory of "seroreversion" (the change in a patient's status from HIV positive to HIV negative) was highly unlikely.

 Plaintiff also presented evidence through the testimony of Dr. Blick that Plaintiff's high T-cell count during Dr. Bruni's treatment raised a red flag that Plaintiff may not have the virus and gave rise to a separate duty to retest Plaintiff after treatment had begun. Again, Plaintiff supported the theory that such a retesting would have indicated that Plaintiff was HIV negative.

 As to Dr. Bruni's failure to follow the appropriate standard of care in prescribing numerous drugs and medications, Plaintiff presented sufficient evidence through Dr. Blick and Dr. Mundey to support this theory of liability. The jury was entitled to determine on the basis of expert testimony that the highly aggressive treatment by Dr. Bruni was outside the standard of care given Plaintiff's stabilized medical condition (e.g. his consistently high T-Cell count).

 After viewing all the evidence in the light most favorable to the Plaintiff and after giving Plaintiff the benefit of every reasonable inference, the Court finds that the a reasonable jury could have found in favor of the Plaintiff against Defendant Bruni. Accordingly, the Defendant Bruni's motion for judgment as a matter of law is denied.

 BRUNI'S RENEWED MOTION FOR MISTRIAL

 Mistrial Standards

 The granting of a mistrial is an extreme measure and should be reserved for those circumstances where the prejudicial effect of an event during the trial cannot be cured. It is within the trial court's sound discretion to determine whether or not to grant a mistrial since the trial court "is in the best position to evaluate the prejudicial effect of a statement or evidence on the jury." Benford v. Richards Medical Co., 792 F.2d 1537, 1541 (11th Cir. 1986).

 Analysis

 This matter comes before the Court on a renewed motion for a mistrial by Defendant Bruni. *fn8" During the opening statement, Plaintiff's counsel mentioned that Plaintiff sought $ 10 million in damages. Defendant Providence Hospital moved for a mistrial, which the other Defendants joined. After Plaintiff's opening argument, the Court gave the jury a curative instruction that it should strike the amount of damages mentioned by Plaintiff's counsel from its consideration. After the conclusion of the opening statements by all the parties, the Court adjourned the trial for the day and requested further briefing from the parties regarding whether a mistrial should be declared on the basis of Plaintiff's opening statement. *fn9"

 When the proceedings commenced the next day, Defendants Bruni and Providence withdrew their motions for a mistrial. Only Defendant McCoy reserved its rights with respect to the motion.

 The Court's research disclosed that under D.C. law it was not improper to mention the amount of damages sought to the jury. *fn10" In the exercise of its sound discretion, the Court determined that granting a mistrial was not warranted and found that the instruction given by the Court was sufficient to cure any prejudice that may have arisen due to the counsel's reference to the amount of damages during his opening statement.

 Counsel for Defendant Bruni wants the court to readdress the issue at this time. He states that based on his discussion with the jury foreperson after the verdict was rendered that the jury members were not able to erase the $ 10 million figure from their minds. Defendant Bruni's withdrawal of his motion for a mistrial constitutes a waiver and Defendant cannot now pursue this issue. *fn11" Accordingly, Defendant Bruni's "renewed motion for a mistrial" is denied.

 McCOY'S AND BRUNI'S MOTIONS FOR NEW TRIAL

 New Trial Standards Pursuant to Rule 59 of the Federal Rules of Civil Procedure, "A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Motions for a new trial are addressed to the sound discretion of the trial court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980). Rule 59 recognizes that it is the duty of the trial judge to set aside a verdict and grant a new trial where the verdict does not comport with the interests of justice. Klein v. Auto Owners Ins. Co., 39 F.R.D. 24 (1965). In ruling on a motion for a new trial, the trial judge has a greater degree of discretion than when ruling on a motion for a for judgment as a matter of law. Crown Central Petroleum Corp. v. Brice, 427 F. Supp. 638 (E.D. Va. 1977). Even if the evidence in support of the verdict is substantial, the trial judge may order a new trial if the verdict is against the clear weight of the evidence, if the damages awarded are excessive, or substantial errors occurred during the proceedings. Starlings v. Ski Roundtop, 493 F. Supp. 507 (M.D. Pa. 1980); Baber v. Buckley, 322 A.2d 265, 266 (D.C. App. 1974) (new trials may be ordered where "there has been a legal error in the proceeding, the damages are excessive, the trial court was unfair, or the verdict was contrary to the weight of the evidence.")

 The trial court, however, is not supposed to supplant the jury's view with that of its own and order a new trial simply because the court would have weighed the evidence differently from the jury. Rather the court's discretion to order a new trial is limited to those situations where the verdict represents a miscarriage of justice. Frank v. Atlantic Greyhound Corp., 172 F. Supp. 190, 191 (D.D.C. 1959) (standard for determining whether verdict is excessive is whether it is so high that it represents a miscarriage of justice); Abrams v. Lightolier, ...


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