Defense Argument Defeats Motion for New Trial in Medical Negligence Case

Lowis & Gellen partner Mark Smith represented the defendant physician in a case tried to verdict involving the death of a two year old girl. A pharmacy, named as co-defendant, settled prior to trial, paying $90,000. At trial, the girl's mother testified that she had administered viscous lidocaine to her daughter by mouth. The issue in the case was whether the defendant doctor had properly instructed the mother on how the medication was to be administered. The doctor testified that he had told the mother to administer the medication by applying to it to the sores in the girl’s mouth with a Q-Tip. The mother testified that she received no such instruction, even though the first time she administered the medication, she administered it using a Q-Tip. A verdict was returned in favor of the plaintiff with the jury finding that the defendant doctor and mother were both 50% negligent. A judgment was entered in favor of the plaintiff in the amount of $75,000, but this amount was subject to a set off in the amount of the co-defendant's prior settlement, resulting in a net obligation of $0 for Mark's client. This award was not based on any evidence as to economic damages but was solely for the loss of society suffered by the parents and three siblings.

The plaintiff was dissatisfied with the jury's award of damages and moved for a new trial. Joan M. Kubalanza, also a partner at Lowis & Gellen, wrote the Defendant's Response to the Plaintiff's Motion for a New Trial. Joan argued that in a case involving the award of non-economic damages, such as involved in this case, the award of damages is peculiarly a question of fact for the jury and that the jury's decision in such cases should not be disturbed, especially when there are no allegations of improper jury instructions or other trial errors. The trial court agreed with the arguments made in the defendant's response brief and denied the plaintiff's motion for a new trial.