May 19, 2019

Archives for August 14, 2013

Tenth Circuit: $7 Million Jury Award in Medical Negligence Case Affirmed; Remittitur for Loss of Consortium Reversed

The Tenth Circuit Court of Appeals published its opinion in Prager v. Campbell County Memorial Hospital on Monday, August 12, 2013.

Appellees filed a motion to publish the order and judgment previously issued on July 2, 2013. The motion was granted. The published opinion is filed nunc pro tunc to that date.

This appeal arises from a diversity action based on a claim of medical negligence. The injured plaintiff, Louis Prager, alleged that Campbell County Memorial Hospital and its employee, Dr. Brian Cullison together, the Hospital Defendants, negligently failed to diagnose Mr. Prager’s broken neck following an automobile accident, resulting in serious nerve damage to his left arm. After a trial, the jury awarded damages to Mr. Prager. Mr. Prager’s wife, Becky, was awarded damages for loss of consortium.

The jury awarded seven million dollars to Mr. Prager and two million dollars to Ms. Prager. Displeased with the jury’s decision, the Hospital Defendants asked the district court to order a new trial or reduce the Pragers’ award of damages. The district court declined to disturb the verdict in favor of Mr. Prager but ordered Ms. Prager’s damages reduced to $500,000. The Hospital Defendants appealed, and Ms. Prager cross-appealed the district court’s remittitur of her loss-of-consortium award.

On appeal, the Hospital Defendants argued that the district court erred in (1) allowing Dr. Linscott to offer previously undisclosed opinions at trial; (2) permitting testimony that Mr. Prager had suffered a “traumatic brain injury”; (3) excluding evidence of collateral-source payments of Mr. Prager’s medical bills; (4) letting Mr. Prager testify about the amounts of his medical bills without adequate personal knowledge of their contents; (5) denying them judgment as a matter of law regarding Mr. Prager’s “speculative” damages; and (6) denying their post-trial motion for remittitur or, in the alternative, a new trial as to Mr. Prager’s $7,000,000 in damages.

First, the court found no abuse of discretion by the district court in allowing Dr. Linscott to testify about his interpretations of the radiological images of Mr. Prager’s neck. The court concluded that the trial judge’s evidentiary rulings landed within the realm of rationally available choices in the context of the litigation. Second, the district court’s pretrial order stated that the Pragers could not refer to or make claims of permanent traumatic injury of the brain. However, nobody alleged at trial that Mr. Prager had suffered a permanent brain injury. Any mention of brain injury came within the proper context of discussing whether Mr. Prager might have been experiencing the effects of a concussion or similar head trauma immediately after his accident, during which he was believed to have briefly lost consciousness.

Third, the court held that the district court correctly applied the collateral-source rule in keeping out evidence of the payments made by Wyoming Workers’ Compensation. The collateral-source rule holds that payments made to or benefits conferred on the injured party from other sources are not credited against a tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable. Fourth, the Tenth Circuit concluded that the district court did not abuse its discretion in allowing Mr. Prager to testify about his medical bills.

Fifth, there is a medical device known as a spinal-cord stimulator, which is implanted in some patients as a way of controlling chronic pain. Dr. Siegler testified that (due to the nature of Mr. Prager’s injuries and ongoing pain) it was reasonably likely that Mr. Prager would eventually be implanted with a spinal-cord stimulator as part of his medical treatment. Calling Dr. Siegler’s testimony impermissibly speculative, the Hospital Defendants moved for judgment as a matter of law. The district court denied the motion. The Tenth Circuit held that Dr. Siegler adequately conveyed to the jury—to a reasonable degree of medical probability—his professional opinion that Mr. Prager would at some point require implantation of the device.

Finally, the court lacked jurisdiction to consider Defendants’ challenge to the district court’s denial of the motion as to Mr. Prager’s damages. As to Ms. Prager’s damages, the Tenth Circuit held that the jury acted within the reasonable bounds of its wide latitude and discretion, and that the district court abused its discretion in reducing her jury award from $2,000,000 to $500,000.

The Tenth Circuit AFFIRMED the judgment in favor of Mr. Prager and REVERSED the district court’s remittitur of Ms. Prager’s damages, with instructions to reinstate the full amount of the jury’s award.

Tenth Circuit: Statutory Maximum Sentence for Mailing a Threatening Communication to a State Judge Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Naramor on Monday, August 12, 2013.

Defendant Robbie Lynn Naramor pleaded guilty in the United States District Court for the Eastern District of Oklahoma to mailing a threatening communication to a state judge. The district court varied upward from the sentencing range calculated under the United States Sentencing Guidelines and sentenced Defendant to 60 months’ imprisonment, the statutory maximum for the offense.

Defendant appealed his sentence, arguing (1) that the district court erred in using a prior state conviction to calculate his criminal-history category because he had not validly waived his right to counsel in those proceedings; (2) that the court erred in permitting the government to withdraw a motion to award Defendant a reduction to his offense level for acceptance of responsibility; (3) that his sentence was procedurally unreasonable because the court increased his sentence to serve his rehabilitative needs; and (4) that the sentence was substantively unreasonable.

The Tenth Circuit AFFIRMED. The court held that the district court could properly find that Defendant had not proved that he had been denied the right to counsel in his state-court proceedings. It did not err in permitting the government to withdraw its motion to reduce Defendant’s offense level for acceptance of responsibility because the withdrawal was not motivated by an unconstitutional purpose and was rationally related to legitimate government ends. The court did not rely on rehabilitation as a reason for increasing Defendant’s sentence. And Defendant’s sentence was substantively reasonable because of his history of violence.

Tenth Circuit: In Trademark Infringement Case, Brand Name Not Likely to Cause Confusion with Senior User’s Trademark

The Tenth Circuit Court of Appeals published its opinion in Water Pik v. Med-Systems on Monday, August 12, 2013.

The parties to this trademark dispute make consumer products for rinsing sinus cavities. Med-Systems, Inc., the earlier entrant in this market, sells its products under the federally registered trademark SinuCleanse. Water Pik, Inc., registered the trademark SIN– USENSE with the intention of selling sinus-irrigation devices under the brand name “SinuSense.” It brought an action against Med-Systems seeking a declaratory judgment that its use of the SinuSense brand name did not infringe on any of Med-Systems’ marks. Med-Systems counterclaimed for trademark infringement and unfair competition under the Lanham Act. Ruling that the SinuSense brand was not likely to cause consumer confusion, the district court awarded summary judgment to Water Pik on the counterclaims. Med-Systems appealed.

Section 32 of the Act allows the owner of a registered mark to bring an infringement action against any person who:

use[s] in commerce any reproduction, counterfeit, copy, or colorable
imitation of a registered mark in connection with the sale, offering
for sale, distribution, or advertising of any goods or services on or in
connection with which such use is likely to cause confusion, or to cause
mistake, or to deceive . . . .

15 U.S.C. § 1114(1)(a). And § 43(a) of the Act provides:

Any person who, on or in connection with any goods or services, or
any container for goods, uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any false designation
of origin, false or misleading description of fact, or false or misleading
representation of fact, which . . . is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation, connection, or association of
such person with another person, or as to the origin, sponsorship, or
approval of his or her goods, services, or commercial activities by another
person . . . shall be liable in a civil action by any person who believes that
he or she is or is likely to be damaged by such act.

Id. § 1125(a).

The central inquiry is whether the junior user’s mark (Water Pik) is likely to cause confusion with the senior user’s mark (Med-System). In evaluating whether there is a likelihood of confusion, the Tenth Circuit examined six non-exhaustive factors: (1) evidence of actual confusion; (2) the strength of the contesting mark; (3) the degree of similarity between the competing marks; (4) the intent of the alleged infringer in adopting the contested mark; (5) the degree of care that consumers are likely to exercise in purchasing the parties’ products; and (6) the similarity of the parties’ products and the manner in which they market them. See Vail Assocs., Inc. v. Vend–Tel–Co., Ltd., 516 F.3d 853, 863 (10th Cir. 2008).

First, Med-System’s survey strongly suggested an insignificant likelihood of actual confusion, and the other instances cited by Med-Systems were isolated episodes with minimal probative value on whether reasonable consumers as a whole were actually confused by Water Pik’s trademark. Second, the court held the SinuCleanse mark was a weak one, so the differences between it and Water Pik’s mark made confusion highly unlikely. Third, considering the marks as a whole as they are encountered by consumers in the marketplace, the court did not find enough distinction between the marks to cause confusion, although the court granted that “SinuCleanse” and “SinuSense” had several visual similarities. Fourth, the evidence supported the district court’s conclusion that the SinuSense name arose not from an intent to confuse consumers by copying SinuCleanse, but from a thorough process to create a trademark. Fifth, Med-Systems did not dispute Water Pik’s contention that consumers are likely to be more discriminating than usual when they purchase healthcare products. Finally, evidence in the district court established that Water Pik’s sinus irrigation products were very similar to Med-Systems’ and were marketed through nearly identical channels. This last factor favored Med-Systems.

Since the court’s analysis showed that only the last factor favored Med-Systems, the Tenth Circuit AFFIRMED the district court’s grant of summary judgment in favor of Water Pik.