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Welch v. Epstein7/31/2000
p. 1999); Taylor v. Medenica, 324 S.C. 200, 479 S.E.2d 35 (1996). A conscious failure to exercise due care constitutes willfulness. McCourt by and through McCourt v. Abernathy, 318 S.C. 301, 457 S.E.2d 603 (1995); Hawkins v. Pathology Assocs. of Greenville, 330 S.C. 92, 498 S.E.2d 395 (Ct. App. 1998). The issue of punitive damages must be submitted to the jury if more than one reasonable inference can be drawn from the evidence as to whether the defendant's behavior was reckless, willful, or wanton. Graham v. Whitaker, 282 S.C. 393, 321 S.E.2d 40 (1984); Hawkins, supra.
There is clear and convincing evidence of Dr. Epstein's reckless culpability justifying an award of punitive damages. Dr. Epstein was aware of the manufacturer's warning concerning the use of the Fentanyl transdermal patch in a post-operative setting. However, he chose to use the patch despite that warning. Dr. Epstein testified on cross examination that he knew more about the drug than "people down here." Dr. Epstein opined his practice was more advanced than others in the area. He stated " his has been a recurrent theme to try to undercut me when I came here because the Augusta physicians and Columbia physicians were practicing like Eisenhower was still in office." There was evidence no other doctor used the Fentanyl transdermal patch in this manner. While Dr. Epstein's expert witness, Dr. Marzouff, did not use Fentanyl in a post-operative setting, he declared it would be acceptable to use the Fentanyl patch in a hospital on a patient under close observation with frequent vital sign checks, especially if the patient "had been on a lot of narcotics before."
This was sufficient evidence to create a jury issue as to recklessness. See McGee v. Bruce Hosp. Sys., 321 S.C. 340, 468 S.E.2d 633 (1996)(package inserts for catheters introduced to support a punitive damages award by showing doctor's awareness of the conditions which may be caused by improper placement of catheter). Therefore, the trial court did not err in denying Dr. Epstein's motions for directed verdict and JNOV as to punitive damages.
B. NEW TRIAL
When a party moves for a new trial based on a challenge that the verdict is either excessive or inadequate, the trial judge must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice or prejudice. Allstate Ins. Co. v. Durham, 314 S.C. 529, 431 S.E.2d 557 (1993). The trial court must set aside a verdict only when it is shockingly disproportionate to the injuries suffered and thus indicates that passion, caprice, prejudice, or other considerations not reflected by the evidence affected the amount awarded. Vinson v. Hartley, 324 S.C. 389, 477 S.E.2d 715 (Ct. App. 1996). In other words, to warrant a new trial absolute, the verdict reached must be so "grossly excessive" as to clearly indicate the influence of an improper motive on the jury. Rush v. Blanchard, 310 S.C. 375, 426 S.E.2d 802 (1993).
The decision to grant or deny a new trial absolute based on the excessiveness of a verdict rests in the sound discretion of the trial court and ordinarily will not be disturbed on appeal. Krepps v. Ausen, 324 S.C. 597, 479 S.E.2d 290 (Ct. App. 1996). An abuse of discretion occurs if the trial court's findings are wholly unsupported by the evidence or the conclusions reached are controlled by an error of law. Id. In deciding whether to assess error when a new trial motion is denied, this Court must consider the testimony and reasonable inferences therefrom in the light most favorable to the nonmoving party. Vinson, supra.
The trial court has wide discretionary power to reduce the amount of a verdict which in his or her
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