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Ditto v. McCurdy11/6/1997
n on plain negligence is unnecessary. We therefore affirm, without further comment, the jury's finding of negligence.
3. The jury's calculation of punitive damages
We are unable, however, to conclude from the record that the erroneous jury instructions did not prejudicially influence the jury in its calculation of punitive damages. The court gave the jury separate instructions on fraud and punitive damages, and the jury found Dr. McCurdy separately liable for each. Nevertheless, the jury gave only one award for punitive damages, and it is possible that the jury based part of its award on evidence of Dr. McCurdy's fraud
In fact, Ditto's counsel expressly told the jury that, in determining the amount to award for punitive damages, it should take into account, inter alia, a doctor's failure to discuss with a patient his or her qualifications. Specifically, Ditto's counsel argued in closing:
And there is a fourth issue. The last little piece. Punitive damages. The Judge is going to instruct you that you may award damages in this case that are intended to punish Dr. McCurdy for what he has done, and you may award them to deter others from engaging in similar conduct, if you choose. I don't know what the proper figure should be in the punitive damages box. But in deciding that, think about the other people in this community. Think about the unsuspecting women, girls mature adults, who end up going to see doctors who don't tell them all they ought to have told them about hair credentials, about surgery, about what they are getting into. That should help you.
(Emphasis added.)
Because the special verdict form did not specifically delineate punitive damages for fraud, gross negligence, and willful misconduct, it is impossible to apportion the punitive damages award. Nor can we let the award stand for gross negligence or willful misconduct, given counsel's argument before the jury and the evidence of fraud presented at trial that may have inflated the punitive damages award.
Accordingly, we vacate the jury's $600,000 award of punitive damages.
III. Conclusion
For the foregoing reasons, we: (1) reverse the jury's finding of liability with respect to fraud; (2) vacate the jury's award of punitive damages; and (3) remand with instructions to the trial court to dismiss the fraud count and conduct a new trial solely on the issue of the amount of punitive damages owed.
Ronald T.Y. Moon
Robert G. Klein
Steven H. Levinson
Paula A. Nakayama
Mario R. Ramil
Page 1 2 3 4 5 6 7 8 Hawaii Personal Injury Attorneys
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