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Otzenberger v. Park-Hwang5/10/2005
, gynecologist Dr. Ungerleider, complaining of continued painful urination. Dr. Ungerleider prescribed pain medication and advised Otzenberger to complete the treatment unless the pain worsened. Otzenberger completed the course of treatment and continued to see Dr. Ungerleider or nurse practitioners at the office for the next two months, but she continued to experience pain. Eventually, Dr. Ungerleider referred Otzenberger to another physician.
Otzenberger sued Park-Hwang for damages resulting from her continuing vulvar pain, contending that Dr. Park-Hwang and Dr. Ungerleider were negligent in prescribing Efudex for two weeks and that Dr. Park-Hwang had failed to inform Otzenberger of alternative treatments.
Before trial, Park-Hwang moved in limine to exclude 'golden rule' arguments, or those arguments 'urging the jurors to place themselves in the position of one of the parties to the litigation, or to grant a party the recovery they would wish themselves if they were in the same position.' The trial court ordered that any 'golden rule' argument by either party would be improper.
At the February 2003 jury trial, which encompassed eight days of testimony, Otzenberger presented physician testimony that she had never had HPV or VIN and testimony that Dr. Park-Hwang and Dr. Ungerleider's care had fallen below the standard of care and caused her permanent injury, despite various treatment attempts.
Park-Hwang presented testimony that Otzenberger had been diagnosed with both VIN and HPV, that Dr. Park-Hwang and Dr. Ungerleider's treatment of Otzenberger was within the standard of care and, further, that the doctors' treatment had not caused Otzenberger's pain.
A number of Otzenberger's other health care providers testified at trial. Apparently, Otzenberger suffered from a number of health complaints, including psychological disorders. Dr. Gerald Rosen, a clinical psychologist, testified for the defense regarding tests that he had performed on Otzenberger. Over Otzenberger's objection, he testified that Otzenberger 'has a pattern of severe medical complaints that seem to get more complicated with treatment.' 7 Report of Proceedings (RP) at 1083.
Based on apparent scheduling difficulties, Otzenberger was unable to call as rebuttal witnesses her family physician, Dr. Day, and her neurologist, Dr. Chang. But she called her gynecologist, Dr. David Eschenbach.
After the parties rested, defense counsel stated in closing argument:
{VIN} is a precancerous condition. Plaintiffs want you to believe that it's nothing. But none of the doctors, neither Dr. Krebs, nor Eschenbach {plaintiffs' witnesses}, nobody could tell you that Ms. Otzenberger was indeed the one who wouldn't go on to have different symptoms, worse symptoms, or even go on to have cancer somewhere down the line. They didn't tell you that. They said, Oh well, she probably wouldn't have it. Not too many people go on to have cancer. Ask yourselves, would that have been good enough for you or your spouse?
11 RP at 1849-50. Otzenberger did not object.
On February 28, 2003, a jury of 12 rendered a defense verdict in favor of Park-Hwang. On April 11, 2003, the trial court entered a judgment on the verdict.
On April 21, 2003, 52 days after the jury's verdict, Otzenberger timely moved for a new trial under CR 59(a)(1), (2), and (9). The trial court granted a new trial on the ground that defense counsel violated the order in limine regarding 'golden rule' arguments in its closing argument, and that, although Otzenberger did not object, the violation was so flagrant and prejudicial that it merited a new trial. The trial court also gr
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