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Thiene T. Nguyen and Kouane Nguyen v. Marc A. Ewers

March 13, 2013

THIENE T. NGUYEN AND KOUANE NGUYEN, PLAINTIFFS-APPELLEES,
v.
MARC A. EWERS, M.D., DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.

The opinion of the court was delivered by: Vogel, P.J.

A defendant appeals the district court's grant of a new trial. REVERSED.

Heard by Vogel, P.J., and Potterfield and Doyle, JJ.

The defendant, Marc A. Ewers, M.D., appeals the district court's decision granting the plaintiffs, Thiene T. Nguyen and Kouane Nguyen, a new trial after a jury verdict for the defense. He argues the district court abused its discretion in granting the new trial because there is no objective evidence or sound judicial reason to overturn the jury verdict. Further, he claims the judge violated Iowa Code of Judicial Conduct 51:2.9 in granting the new trial. The Nguyens respond that the grant of a new trial was appropriate because the verdict did not do substantial justice. Because the record does not support granting a new trial, we reverse.*fn1

I. Background Facts and Proceedings

Only July 14, 2006, Thiene Nguyen underwent an exploratory laparoscopic surgical procedure performed by Ewers. While the surgery is normally an outpatient procedure, post-surgical clinical signs necessitated Thiene's admission to the hospital. Her clinical course worsened over the next seventy-two hours, and after an internal medicine consultation, a computed tomography (CT) scan was performed that showed findings consistent with an "infected fluid/large abscess cavity . . . likely secondary to a colonic perforation." A second surgery was performed by Dr. Robert O. Thompson, M.D. Based on the findings of the second surgery, Ewers testified what likely happened in the first surgery, when he was separating the adhesions, the diverticulum wall was weakened, causing a perforation, and leakage of bowel contents into the abdominal cavity and starting an inflammatory process resulting in abscess formation.

A petition was filed by the Nguyens alleging medical negligence against Ewers for failing to timely discover and diagnose Thiene's colon perforation either during the first surgery or soon after.*fn2 A jury trial was held with testimony from seventeen witnesses, including multiple experts, physicians, and nurses. The jury returned a unanimous defense verdict. On December 16, 2011, the Nguyens filed a motion requesting a new trial on the grounds that "the verdict, report or decision is not sustained by sufficient evidence" pursuant to Iowa Rule of Civil Procedure 1.1004(6) and the court should exercise its "inherent power to set aside a verdict which fails to do substantial justice between the parties."*fn3 The district court granted the motion and found as follows:

Plaintiffs, wife and husband, came to this country from Laos in 1975. They are not fluent in English, although their two daughters who testified were fluent. Several jurors chose not to pay attention to the evidence or the arguments. One juror repeatedly dozed off, causing the Court to invite the jury and others present to stand and stretch or to call recesses. Another juror took absolutely no notes during the trial. The Court was present throughout the trial and concludes that the verdict was unjust and was likely the result, at least in part, due to Plaintiffs' national origin. See Iowa Rule Civil procedure 1.1004.

All experts testified as to the known risk and symptoms of a nicked bowel. Defendant's experts testified that Dr. Ewers met the standards of care in the surgery and follow-up care and treatment.

Plaintiffs' expert testified he did not meet the standard of care in failing to recognize and treat the bowel damage caused.

The Court was shocked at the jury's verdict. The verdict does not do substantial justice between the parties.

A new trial is granted. Ewers appeals.

II. Standard of Review

The scope of our review of a district court's ruling on a motion for new trial depends on the grounds raised in the motion. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001). A claim the verdict fails to effect substantial justice, is reviewed for an abuse of discretion. Estate of Hagedorn v. Peterson, 690 N.W.2d 84, 87-88 (Iowa 2004); see also Pavone v. Kirke, 801 N.W.2d 477, 496 (Iowa 2011) ("To the extent the motion [for new trial] is based on a discretionary ground, we review it for an abuse of discretion."). To show an abuse of discretion, the complaining party must show the court exercised its discretion on grounds clearly untenable or to an extent clearly unreasonable. Hagedorn, 690 N.W.2d at 88. "We are more reluctant to ...


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