No. 30846 Jessie L. Graham v. David A. Wallace,
Starcher, C. J., dissenting:
I dissent to
the majority decision.
After the first trial of this
case, a 3-2 majority of this Court reversed the first jury's verdict _ which
was for the patient, Mr. Graham.
The majority of this Court,
in the first case, said that the oral surgeon, Dr. Wallace, did not get a fair
chance to call rebuttal witnesses to counter a last-minute suggestion that Dr.
Wallace had possibly manufactured documents. These documents related to when
Dr. Wallace contacted Mr. Graham after the TMJ implants were recalled by the
manufacturer. So the majority in the first case ordered a second trial.
I dissented to that decision,
because Dr. Wallace explained the document issue to the jury, and I agreed with
the trial judge that the jury had enough evidence to decide what did or did
not happen about the documents.
I noted in my dissent in the
first case that in trials, people are always
claiming they need to put
on rebuttal witnesses, basically so that they can get the last word.
But our law is that it is almost entirely up to a trial judge's discretion to
deal with these rebuttal requests. In twenty years as a trial judge, I very
rarely allowed rebuttal witnesses.
In other words, I thought the
first trial was a fair trial, and the majority made a mistake to reverse a proper
Now, after a second trial, a
second jury heard basically the same evidence -- and ruled this time for the
oral surgeon, Dr. Wallace. And again, I find myself dissenting. This time I
again dissent to a 3-2 majority decision to reverse the second jury's verdict,
and to grant yet a third
This time the majority wants
to overturn the jury's verdict because an expert witness for Dr. Wallace testified
about an X-ray dye test that was done by a radiologist.
Mr. Graham's lawyer argued that
this testimony was a complete surprise, and also that it was irrelevant and
misleading. However, Dr. Wallace's lawyer said in advance of trial that his
expert would testify about radiographic studies, and no one disputes
that radiographic studies included the dye tests. Moreover, Mr.
Graham's lawyer asked the expert about the dye tests in a deposition before
Did the lawyer ask enough questions?
Perhaps not. But that is not Dr. Wallace's fault, and there was no unfair surprise.
The majority opinion argues
that the expert's dye test evidence was entirely irrelevant, but it is somewhat
hard to follow this argument, which makes me think that _ as in the first trial
of this case _ the majority is again straining to find a reason to reverse a
As I see it, the expert explained
why he thought the dye test evidence, although inconclusive, was
marginally useful. Mr. Graham's lawyer tried to make the expert look foolish
before the jury (and did a pretty good job, too) for saying that Dr. Wallace
could rely in any fashion on an inconclusive dye test. I think the
jury got the point and was not misled about the dye test.
When it comes to the relevance
of evidence like the expert and the dye test, this evidence is just like the
rebuttal evidence in the first trial. That is, our law says that we ordinarily
leave whether evidence has any relevance to the call of the trial judge, unless
the judge's ruling is blatantly wrong. The trial court did not err, I think,
in letting the expert say what he did.
Also, when Mr. Graham's lawyer
raised this issue after trial, the judge decided that Mr. Graham had not made
a persuasive case for a new trial based on this issue.
Our law again is that the trial
judge ordinarily has the best opportunity to see and decide if these sorts of
claimed errors about evidence are serious enough to require a new trial. Because
the trial judge has the best opportunity, we give the judge's determination
In this case, the judge decided
that the jury had a good understanding of the evidence, and that Mr. Graham
and Dr. Wallace had a fair chance to put on their cases. We should defer to
the trial judge's opinion. Moreover, if we were to follow the position advocated
by the majority, even though narrowly stated, it could be interpreted by some
trial counsel as an opportunity to have a mini-trial each time an expert says
something that is arguably outside of their Rule 26 disclosure statement. That
is not a fair or sensible procedure, and it is certainly not the intent of the
So -- in the first case, I voted
to uphold a jury's verdict for the patient
, Mr. Graham. Then, in the
second case, I voted to uphold a jury's verdict for the oral surgeon
The reader may ask, how could
that be right? Which one should win? Who is right and who is wrong? It's a good
question, and the answer is that our system doesn't know who should
Under our system, we have a
to handle these tough decisions, where people strongly disagree.
We take these cases before a jury, and we have a fair trial, and then we live
with the jury's verdict.
In very rare cases, where a
jury's verdict is very clearly wrong, a judge has the power to correct it, and
order the case it to go before a new jury. But that is not what we have here.
Both of these juries were right
-- because they both reached
their verdicts after a fair trial.
However, in my judgment, the
second trial never should have happened. (But my judgment was in the minority
in the first case, which is also part of how our system works.)
Now, in the second case, my
judgment is that the second jury verdict is the result with which we should
live. (And again, my judgment is in the minority.)
At least I have been consistent
-- although I must say that fairness and compassion should always trump consistency.
For these reasons, I dissent.
I would affirm the trial court's order refusing to grant a new trial. I am authorized
to say that Judge Gary Johnson, sitting by temporary assignment, joins in this
separate dissenting opinion.