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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 32571

PAULA PUCKETT,

 Plaintiff-Respondent-Cross Appellant,

v.

JOSEPH VERSKA, M.D.,

 Defendant-Appellant-Cross Respondent.

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Boise, February 2007 Term

2007 Opinion No. 48

Filed: March 28, 2007

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District of the State

of Idaho, for the County of Ada. Hon. Michael R. McLaughlin, District

Judge.

The district court’s pre-trial, trial and post-trial orders are affirmed.

Hall, Farley, Oberrecht & Blanton, P.A., Boise, for appellant. Raymond

D. Powers argued.

Yturri Rose, LLP, Fruitland, for respondent. Timothy J. Helfrich argued.

_____________________

JONES, Justice

Dr. Joseph Verska appeals several rulings in the medical malpractice litigation

between himself and his patient, Paula Puckett. Specifically, he appeals rulings on a

motion to reconsider, a jury instruction, a motion in limine, a motion for new trial or

additur, the award of discretionary costs to Puckett, and the denial of discretionary costs

to Verska. We affirm.

I.

On September 2, 1999, Puckett underwent an anterior cervical diskectomy and

fusion with autograft at St. Luke’s Regional Medical Center in Boise. Verska performed

the surgery. Puckett’s spinal cord suffered a contusion caused by a bone graft coming
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into contact with it. As a result, she experienced partial left-sided paralysis following

surgery. In June 2002 Puckett sued Verska for medical malpractice and lack of informed

consent.

Puckett filed her initial expert witness disclosure on March 4, 2003, wherein she

failed to list an expert who would opine about the community standard of care. Verska

moved to strike her expert witnesses because she allegedly failed to comply with the

pretrial order. In response, Puckett filed a supplemental expert witness disclosure on

May 27, wherein she disclosed that one of her original experts, Dr. Joel Seres, would also

testify as to the standard of care. Verska moved for summary judgment the next day on

the basis that Puckett could not produce testimony about the standard of care. In an

affidavit submitted with Puckett’s memorandum opposing summary judgment, Dr. Seres

stated that he consulted with two neurologists in Boise and Nampa, neither of whom were

surgeons, and an orthopedic surgeon in Ontario, Oregon, regarding the community

standard of care in Boise (“June 11 affidavit”).

On June 24, 2003, the district court denied Verska’s motion to strike but granted

him additional time to depose Dr. Seres at Puckett’s expense and to supplement his

summary judgment motion. The district court held a hearing on summary judgment the

next day where Puckett offered another affidavit from Dr. Seres, stating that he had

consulted with Dr. Timothy Floyd, a Boise orthopedic surgeon, on the standard of care

(“June 25 affidavit”). The district court struck the June 25 affidavit because Dr. Floyd

had served on a pre-litigation screening panel considering Puckett’s claim.

Consequently, the district court found that Dr. Seres lacked the requisite familiarity with

the community standard of care and granted Verska’s motion for summary judgment.

Puckett filed a motion for reconsideration, providing another affidavit from Dr.

Seres, which the district court allowed in, wherein he stated that he consulted with three

additional doctors – orthopedic spine surgeons in Boise and Caldwell and a neurosurgeon

in Boise – about the standard of care (“August 1 affidavit”). The district court granted

the motion for reconsideration because Dr. Seres was now familiar with the applicable

standard of care and was qualified to testify. Thus, summary judgment was inappropriate

because a material fact was in dispute regarding whether Verska met the applicable
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standard of care. The district court later clarified that summary judgment was appropriate

as to informed consent. The case proceeded to trial.

The first trial took place in December 2004. Although the district court had

instructed the jury about the potential claims in the matter, on the second day of trial

Puckett voluntarily dismissed her claim regarding Verska’s alleged negligence in

recommending surgery (“indications for surgery claim”). The district court declared a

mistrial after the jury could not reach a verdict. Verska sought costs and attorney fees for

his preparation of a defense to the indications for surgery claim, based on I.C. §§ 12-121,

12-123 and I.R.C.P. 41 and 54. The district court denied the motion because it found that

Verska was not yet a prevailing party.

The second trial took place in August 2005. Before trial, Puckett filed a motion in

limine to prevent admission of any evidence about the terms and contents of any

informed consent forms or agreements that Puckett may have signed prior to surgery.

The district court ruled that Verska could examine Puckett’s expert witnesses regarding

the “inherent, potential risk of paralysis from [the] operation” but could not examine her

personally on the issue. The district court indicated it would instruct the jury that Verska

properly informed Puckett of the surgical risks, which could include paralysis.

Verska requested a jury instruction that:

A plaintiff in a medical malpractice action is required to prove a breach of

the community standard of care. The mere fact that an undesirable or

unfortunate result occurs following medical care rendered by a defendant

does not, by itself, establish a breach of the standard of care by the

defendant.

The district court refused to give the instruction though it had been given in the first trial.

Specifically, the district court disallowed the instruction because it believed that other

instructions adequately covered the law on the standard of care, that the Idaho cases cited

by Verska were distinguishable, and that the instruction impermissibly commented on the

evidence. At the end of the trial, the jury found for Puckett, awarding $92,720 in

economic damages and $50,000 in non-economic damages.

The district court awarded discretionary costs of $120,714.85 to Puckett because

she prevailed and it found that her expenses were extraordinary and vital to the

presentation of her case. Puckett moved for a new trial on damages or, alternatively, for
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an additur on the basis that the awarded damages were inadequate, unsupported by the

clear weight of the evidence, and unreasonably disproportionate to the actual losses

suffered. The district court awarded an additur, noting that the jury’s verdict shocked the

court’s conscience and that the jury must have been influenced by passion or prejudice

regarding testimony of Puckett’s prior abuse of prescription medication. The district

court increased the award of economic damages to $289,971.22 and non-economic

damages to $400,000. The district court provided, however, that Verska could request a

new trial on the issue of damages instead of accepting the additur. Verska now appeals to

this Court.

II.

In this opinion, we address six issues, namely whether the district court: 1) erred

in granting Puckett’s motion for reconsideration; 2) properly instructed the jury; 3) erred

in granting Puckett’s motion in limine; 4) erred in awarding an additur to Puckett; 5)

erred in granting Puckett’s discretionary costs after the second trial; and 6) erred in

denying Verska’s discretionary costs after the first trial.

Five of these issues require us to review whether the district court abused its

discretion so we note at the start that this entails a “three-part inquiry: (1) whether the

lower court rightly perceived the issue as one of discretion; (2) whether the court acted

within the boundaries of such discretion and consistently with any legal standards

applicable to specific choices; and (3) whether the court reached its decision by exercise

of reason.” Schwan’s Sales Enters., Inc. v. Idaho Transp. Dept., 142 Idaho 826, 831, 136

P.3d 297, 302 (2006).

A.

Verska contends that the district court erred in granting Puckett’s motion for

reconsideration because it should not have considered Dr. Seres’ August 1 affidavit in

reaching its decision. The decision to grant or deny a request for reconsideration

generally rests in the sound discretion of the trial court. Carnell v. Barker Mgt., Inc., 137

Idaho 322, 329, 48 P.3d 651, 658 (2002). Verska argues that Puckett can only rely upon

those affidavits timely filed before the summary judgment hearing, but not those filed

afterwards, such as the August 1 affidavit.
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Verska relies on Jarman v. Hale, 122 Idaho 952, 957 n. 2, 842 P.2d 288, 293 n. 2

(App. 1992), for the proposition that the district court may not consider affidavits

submitted after summary judgment. Such reliance is misplaced because the Court of

Appeals holding – that a party may not submit new affidavits in support of a request for

reconsideration of an order granting summary judgment – was erroneous in two respects.

First, the Court of Appeals erroneously characterized the order granting summary

judgment as a final order, rather than an interlocutory order. Id. at 957 n.2, 842 P.2d at

293 n.2. However, until a final judgment has been entered, an order granting summary

judgment is an interlocutory order and subject to reconsideration pursuant to I.R.C.P.

11(a)(2)(B). Idaho First Natl. Bank v. David Steed & Assocs., 121 Idaho 356, 361, 825

P.2d 79, 84 (1992). Second, when reviewing a motion for reconsideration, the district

court “should take into account any new facts presented by the moving party that bear on

the correctness of the interlocutory order. The burden is on the moving party to bring the

trial court’s attention to the new facts.” Coeur d’Alene Mining Co. v. First Natl. Bank,

118 Idaho 812, 823, 800 P.2d 1026, 1037 (1990); see also David Steed & Assocs., Inc.,

121 Idaho at 361, 825 P.2d at 84 (trial court should have considered affidavit submitted

with motion for reconsideration). Thus, the district did not err in considering the August

1 affidavit and vacating the summary judgment.

B.

“This Court exercises free review when determining whether the district court

properly instructed the jury.” Gunter v. Murphy’s Lounge, LLC, 141 Idaho 16, 27, 105

P.3d 676, 687 (2005). Regarding jury instructions, the standard of review “is limited to a

determination of whether the instructions, as a whole, fairly and adequately present the

issues and state the law.” Newberry v. Martens, 142 Idaho 284, 287, 127 P.3d 187, 190

(2005). “A requested jury instruction need not be given if it is either an erroneous

statement of the law, adequately covered by other instructions, or not supported by the

facts of the case.” Craig Johnson, LLC v. Floyd Town Architects, P.A., 142 Idaho 797,

800, 134 P.3d 648, 651 (2006).

Verska argues on appeal that the district court should not have rejected his

proposed standard of care jury instruction, which had been given in the first trial. He

argued it was necessary in order to inform the jury that a bad medical result did not, in
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and of itself, establish a breach of the standard of care. Verska asserts that the instruction

was not duplicative and that it was necessary to prevent jury confusion on the standard of

care issue.

The instructions actually given to the jury adequately covered what Puckett

needed to prove regarding the standard of care for a medical malpractice action. The

district court offered four jury instructions regarding the standard of care. First, it offered

an instruction based on IDJI 2.10.3, which stated that Puckett had the burden of proving

that Verska failed to meet the applicable standard of care, that she was injured, and that

Verska’s acts proximately caused her injuries. Second, it offered an instruction based on

IDJI 2.10.1, which provided that Verska had a duty to possess and exercise a degree of

skill similar to other specialists in the community. Third, similar to the wording of Idaho

Code § 6-1012, it stated that Puckett must prove that Verska failed to meet the standard

of health care practice in Boise with respect to his specialty as it existed on the date of

surgery. Last, it instructed the jury on the definition of community, using the statutory

definition provided in Idaho Code § 6-1012. Because the jury instructions adequately

covered the requisite elements to show the standard of care, we need not address whether

the proposed jury instruction was an erroneous statement of law or unsupported by the

facts.

C.

Verska argues on appeal that the district court abused its discretion when it

granted Puckett’s motion in limine to limit examination of Puckett on informed consent

because it restricted his ability to present relevant evidence on the risks associated with

her surgery. Trial courts have broad discretion when ruling on a motion in limine so we

review the district court’s decision to grant or deny a motion in limine for abuse of

discretion. Gunter, 141 Idaho at 25, 105 P.3d at 685.

The district court did not abuse its discretion in granting the motion in limine to

limit cross-examination of Puckett on the issue of informed consent. The district court

recognized its discretion to grant or deny the motion. On summary judgment, the district

court had already held that Verska properly informed Puckett of the surgical risks and,

thus, there was no need to cross-examine her in light of concerns that such evidence

could be construed to mean that she assumed those risks. The district court stated Verska
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could argue that the surgical procedure in question involved certain inherent risks and it

permitted him to examine both his and Puckett’s expert witnesses regarding those risks.

The district court also instructed the jury that Verska properly informed Puckett of the

risks involved, which included paralysis. The district court exercised reason in acting

within the bounds of its discretion.

The district court took appropriate steps to remedy any testimony on the issue of

informed consent. Puckett testified at trial that Verska told her it would be a simple

surgery. Verska’s counsel also questioned Puckett about whether Verska discussed the

inherent risks of the surgery with her. She answered that he downplayed the risks. The

district court sustained Puckett’s objection to the questioning, struck that testimony at

Verska’s request and restated the instruction that Verska properly informed her of the

risks. Previously, we have not found reversible error where a witness made a statement

contrary to a motion in limine, received an admonishment, and the district court later

issued a curative instruction. See Van Brunt v. Stoddard, 136 Idaho 681, 686-7, 39 P.3d

621, 626-7 (2001). In this case, the district court admonished both sides, struck the

testimony and instructed the jury again on the undisputed facts. Other witnesses’

testimony only incidentally mentioned preoperative discussions. The district court acted

within its discretion in remedying any conflicts with its motion in limine.

D.

On appeal, Verksa contends that the district court erred in awarding an additur on

both economic and non-economic damages because substantial evidence supported the

jury’s original verdict. The district court may grant a new trial or additur for “excessive

damages or inadequate damages, appearing to have been given under the influence of

passion or prejudice.” I.R.C.P. 59(a)(5). The district court should make such an award

only if, after assessing the credibility of the witnesses and weighing the evidence, it

determines that “the verdict is not in accord with the clear weight of the evidence.”

Hudelson v. Delta Intl. Mach. Corp., 142 Idaho 244, 248, 127 P.3d 147, 151 (2005).

When the district court believes that substantial and competent evidence supports the

verdict but its assessment of damages substantially diverges from the jury’s award of

damages such that only passion or prejudice could explain it, then it should grant a new

trial or an additur. Collins v. Jones, 131 Idaho 556, 558, 961 P.2d 647, 649 (1998). We
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review the grant or denial of a new trial or an additur for an abuse of discretion. Id. We

“primarily focus upon the process used by the trial judge in reaching his or her decision,

not upon the result of that decision” because the district court is best able to assess the

witnesses and evidence presented. Hudelson, 142 Idaho at 248, 127 P.3d at 151.

In this case, the district court found that “the verdict shocked the conscience of

the Court because the verdict was excessively low given the nature and extent of the

Plaintiff’s permanent and debilitating injuries.” No one factor is appropriate to award a

new trial or an additur because “how substantial the disparity must be differs with each

factual context and with the trial judge’s sense of fairness and justice.” Collins, 131

Idaho at 558, 961 P.2d at 649 (citing Quick v. Crane, 111 Idaho 759, 769, 727 P.2d 1187,

1197 (1986)). Moreover, Puckett did not need to prove that passion or prejudice affected

the jury’s verdict; the appearance alone was sufficient to justify a new trial or additur.

Dinneen v. Finch, 100 Idaho 620, 625-6, 603 P.2d 575, 580-1 (1979). Regarding the

amount of the damage award, the district court stated that the jury was unduly prejudiced

by testimony of Puckett’s prior abuse of prescription medication. The additur for noneconomic damages was based on Puckett’s life expectancy and to compensate her for the

pain and weakness she would suffer in that timeframe. As for economic damages, the

district court noted that Verska did not present evidence to refute Puckett’s medical

expense and income claims. The district court acted within the bounds of its discretion

and exercised reason, finding that passion or prejudice appeared to have affected the

award of damages. We hold that the district court did not abuse its discretion in granting

the motion for an additur or new trial.

If Verska believes the additur was too generous, the district court provided an

alternative to address that concern – he may opt for a new trial on the issue of damages.

The district court may conditionally grant a new trial subject to an additur. I.R.C.P. 59.1.

If Verska requests a new trial, the district court restricted it to damages alone. In

determining if the district court abused its discretion in restricting a trial to the issue of

damages, we must “conclude that (1) the damages awarded by the jury were inadequate,

(2) the issue of liability was close, and (3) other circumstances indicated that the verdict

was probably the result of prejudice, sympathy, or compromise, or that for some other

reason, the liability issue was not actually determined by the jury.” Smallwood v. Dick,
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114 Idaho 860, 865, 761 P.2d 1212, 1217 (1988). Verska argues that the question of

liability was close because the first trial resulted in a hung jury. He does not account,

however, for Puckett’s presentation of additional expert testimony, the different jury

instructions given, or the motion in limine granted at the second trial. Moreover, Verska

does not point to any particular circumstances in the record to suggest that the verdict on

liability was subject to compromise. Because the last two prongs of the Smallwood test

are not met, we hold the district court did not abuse its discretion in restricting a new trial

to the issue of damages.

E.

Verska argues that the district court’s award of discretionary costs was an abuse

of its discretion because it unduly stressed the necessity of expert testimony in medical

malpractice cases in reaching its decision, without also showing that the requested costs

were exceptional. The district court may award discretionary costs “upon a showing that

said costs were necessary and exceptional costs reasonably incurred, and should in the

interest of justice be assessed against the adverse party.” I.R.C.P. 54(d)(1)(D). The party

opposing an award of discretionary costs bears the burden of demonstrating that the

district court abused its discretion. Hayden Lake Fire Protec. Dist. v. Alcorn, 141 Idaho

307, 314, 109 P.3d 161, 168 (2005).

Verska did not demonstrate that the district court abused its discretion in awarding

discretionary costs to Puckett. Verska argues that the district court did not consider

whether the requested costs were exceptional and necessary, pointing to the district

court’s statement that “the Defendant argues that travel expenses and expert witness fees

incurred in personal injury cases cannot be considered exceptional and therefore should

be disallowed under Idaho Rule of Civil Procedure 54(d)(1)(D). However, that rule also

awards necessary costs reasonably incurred.” (emphasis original). While this wording is

somewhat awkward, the entirety of the district court’s order showed that it considered

both necessity and exceptionality. The district court concluded that the costs incurred

were necessary and reasonable considering the statutory requirement for experts in

medical malpractice cases. The district court also found that the costs were in the

interests of justice because of the case’s length and complexity and that “the cost of

obtaining such experts in order to prevail at trial should not prohibit legitimate claims
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from being pursued.” Contrary to Verksa’s assertion, the district court considered the

exceptionality of the costs in light of the “long course of litigation and complexity of this

case.” The district court acted within the bounds of its discretion in examining whether

Puckett’s requested costs were necessary, exceptional, reasonable, and in the interests of

justice.

Verska argues that costs should not be allowed for the first trial. The district court

noted in addressing this contention that “the language of [Rule 54(d)(1)] looks to the end

result of the entire course of litigation rather than compartmentalizing the determination

of a prevailing party into separate proceedings.” Indeed, in determining who prevailed

and, thus, is entitled to costs, “the court must consider, among other things, the extent to

which each party prevailed relative to the ‘final judgment or result.’” West Wood Invs.,

Inc. v. Acord, 141 Idaho 75, 88, 106 P.3d 401, 414 (2005). In opposing Puckett’s motion

for costs, Verska asserted that “the most significant trial preparation on the part of

plaintiff would have occurred prior to the first trial.” Rather than supporting Verska’s

position, this may well show that substantial groundwork for the result of the second trial

was laid in the preparation for the first trial. We hold that the district court did not abuse

its discretion in finding that Puckett prevailed below and was entitled to discretionary

costs.

Verska argues that the district court abused its discretion by not considering

whether each individual discretionary cost claimed was necessary and exceptional. We

have held that “express findings as to the general character of requested costs and

whether such costs are necessary, reasonable, exceptional, and in the interests of justice is

sufficient to comply with this requirement.” Hayden Lake Fire Protec. Dist., 141 Idaho

at 314, 109 P.3d at 168 (citing Inama v. Brewer, 132 Idaho 377, 384, 973 P.2d 148, 155

(1999); Fish v. Smith, 131 Idaho 492, 494, 960 P.2d 175, 177 (1998)). Thus, the district

court need not evaluate the requested costs item by item. Id. The district court’s express

findings as to the general character of the travel expenses, expert witness fees and other

litigation costs were sufficient.

If Verska opts for a new trial on damages, the award of discretionary costs will be

vacated. Following the outcome of any new trial, the district court will need to determine

anew any allowable costs.
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F.

Verska argues that I.C. §§ 12-121, 12-123 and I.R.C.P. 54 provided a basis to

award costs and attorney fees to him after the first trial, even though Puckett voluntarily

dismissed her indications for surgery claim. He acknowledges that these provisions are

within the district court’s discretion but contends that the district court abused that

discretion because it did not recognize that it could find that he was a prevailing party in

part and that not all of Puckett’s claims needed to be frivolous to justify an award. The

district court’s determination of who is a prevailing party will not be disturbed absent an

abuse of discretion. West Wood Invs., Inc., 141 Idaho at 88, 106 P.3d at 414. Also, the

district court’s determination whether an action was brought, pursued or defended

frivolously, unreasonably or without foundation will not be disturbed absent an abuse of

discretion. Win of Michigan, Inc. v. Yreka United, Inc., 137 Idaho 747, 754, 53 P.3d 330,

337 (2002).

The district court concluded that neither party prevailed after the first trial and

that Puckett’s dismissed claim was not brought frivolously. The statutes cited by Verska

require either a prevailing party or a finding of frivolousness to award attorney fees. I.C.

§§ 12-121 (“judge may award reasonable attorney’s fees to the prevailing party”), 12-

123(2)(a) (“court may award reasonable attorney’s fees to any party...adversely affected

by frivolous conduct”). In determining a prevailing party, the district court must

“consider the final judgment or result of the action in relation to the relief sought by the

respective parties.” I.R.C.P. 54(d)(1)(B). While the district court may find a prevailing

party in part, the district court denied costs and attorney fees because no final judgment

was entered after the first trial and Puckett’s indications for surgery claim was dismissed

without prejudice so she could still pursue it. The district court should evaluate whether

“all claims brought or all defenses asserted are frivolous or without foundation” before

awarding attorney fees under I.C. § 12-121. Bingham v. Montane Resource Assocs., 133

Idaho 420, 427, 987 P.2d 1035, 1042 (1999). Puckett’s claims were not all frivolous.

Considering the options available to it, the district court exercised reason in reaching its

holding and, thus, did not abuse its discretion.
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III.

We affirm the district court on the issues raised in this appeal. Pursuant to

I.R.C.P. 59.1(b), Verska shall have fourteen days from the date of the issuance of the

appellate remittitur to either: 1) accept the district court’s award of an additur and

discretionary costs to Puckett, or 2) reject the additur and opt for a new trial on the issue

of damages. If Verska elects to have a new trial, then the district court’s award of

discretionary costs to Puckett is also vacated though the parties may raise the issue again

after such trial. Costs are awarded to Puckett on appeal.

Chief Justice SCHROEDER and Justices TROUT, EISMANN and BURDICK

CONCUR.