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Franzen v. Kruger

Court of Appeals of Iowa

September 25, 2019

EDWARD FRANZEN, Plaintiff-Appellee,

          Appeal from the Iowa District Court for Fayette County, John C. Bauercamper, Judge.

         A dentist appeals post-trial rulings following a jury verdict for his patient in a malpractice action. REVERSED AND REMANDED.

          Thomas F. Ochs and Raymond R. Stefani II of Gray, Stefani & Mitvalsky, P.L.C., Cedar Rapids, for appellants.

          Jeffrey R. Tronvold of Eells & Tronvold Law Offices, P.L.C., Cedar Rapids, for appellee.

          Heard by Tabor, P.J., and Mullins and May, JJ.

          TABOR, Presiding Judge.

         Edward Franzen brought a malpractice suit against Dr. Alan Kruger and his practice, West Union Dental Associates. A jury found Dr. Kruger breached the standard of care while extracting Franzen's tooth, causing Franzen to aspirate a surgical bur and eventually lose part of his lung. The damage award totaled $400, 000. Dr. Kruger challenges rulings on several post-verdict motions.

         In this appeal, we focus on the admission of hearsay evidence during the testimony of Franzen's expert witness. Because the district court did not require Franzen to lay a proper foundation for offering survey responses used to bolster his expert's standard-of-care opinion, we reverse and remand for a new trial.

         I. Facts and Prior Proceedings

         Franzen raises cattle and corn on his family's farm in Fayette County. In 2014, Franzen experienced pain from an abscessed tooth. Because his previous dentist had retired and West Union was close to his farm, Franzen called Dr. Kruger's office for an appointment.

         After taking x-rays, Dr. Kruger discovered Franzen had a cracked molar.[1]The dentist believed the best option was extraction. Because the molar sat close to Franzen's sinuses, the dentist used a resection method. That method required Dr. Kruger to chop the tooth into three parts for removal by operating a drill-like handpiece. Before starting the resection, the dentist inserted a surgical bur into the handpiece. The bur-like a drill bit[2]-spins to function as a rotary cutting instrument. During the third step of the resection, Franzen felt something hit the back of his throat. He started to cough and gag. Dr. Kruger stopped the handpiece and looked for the bur. He couldn't find it.

         After finishing the tooth extraction, Dr. Kruger recommended Franzen have his lungs checked in case the missing surgical bur had lodged there.[3] Two x-rays and a CT scan later, doctors confirmed a two-and-one-half centimeter metallic foreign object had drifted deep into the right lower lobe of Franzen's lung.

         A surgeon advised Franzen of the risks of leaving the bur in his lung. Those risks included progressing disease, recurrent infections, pneumonia, and lung collapse. Franzen decided to have the surgery after harvest season. Surgeons removed the right lower lobe of his lung. As it turned out, the bur was not in that lobe. But surgeons used a bronchoscope to remove the bur from its migrated location further inside the lung.

         Franzen recovered from the surgery in about a month. But he testified his work as a farmer is now harder. For example, he "runs out of wind" when trying to catch calves to vaccinate them. He has to slow down and take more breaks to catch his breath when doing chores or hunting. And he cannot hold a note as long when singing in his church choir. His lung capacity measured on "the low side of normal."

         In 2016, Franzen sued Dr. Kruger and West Union Dental Associates for malpractice. After a six-day trial, a jury found Dr. Kruger was negligent and his negligence harmed Franzen. The jury awarded $400, 000 in damages, including $320, 000 in future damages.

         After the jury returned this verdict, Dr. Kruger moved for a new trial and for judgment notwithstanding the verdict (JNOV). He also argued the verdict was excessive and asked for a new trial conditioned on Franzen accepting a remittitur of the amount of future damages. The district court denied those post-verdict motions. Dr. Kruger now appeals.

         On appeal he raises four issues:

(1) The district court should have granted a new trial based on the improper testimony of Franzen's expert, dentist Cheri Lewis, on the standard of care. Dr. Kruger complains that Dr. Lewis relied on impermissible hearsay when she testified she conducted a survey of oral-surgery program directors about the use of "bite blocks" and gauze "throat packs" to protect patients during extractions.
(2) The district court should have granted a new trial because the damages were excessive and without support in the record.
(3) The district court should have granted JNOV because Dr. Lewis did not properly define the standard of care or show that Dr. Kruger breached the standard.
(4) The district court abused its discretion in denying Dr. Kruger's alternative motion for a conditional new trial.

         Because we find the first issue dispositive, we need not address his remaining claims.

         II. Scope and ...

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