A panel of the state Court of Appeals has upheld a Cobb County judge who said she was “in uncharted territory” when she declared a mistrial in a medical malpractice case last year.

State Court Judge Kathryn Tanksley declared the mistrial after learning the jury had reached an agreement on one defendant—the hospital where the plaintiffs’ severely brain-damaged baby was born—but not on the delivering obstetrician. After learning the jury had been prepared to rule in its favor, the hospital challenged the mistrial on appeal, but the Nov. 27 appeals court ruling says the hospital can’t win on that basis because it went along with the judge when she called the trial to an end.

The appeals panel also addressed a trendy trial tactic: the plaintiffs’ attempts to prohibit the defense from expressing sympathy for them in front of the jury. The appeals panel didn’t rule on the propriety of such practices, saying the doctor’s lawyer had acquiesced in Tanksley’s decision to limit expressions of sympathy, and lawyers say there’s little to no case law on that issue. Plaintiffs lawyers have been increasingly asking for restrictions on defense expressions of sympathy since 2005, when tort law changes said that medical providers’ apologies or condolences couldn’t be used against them in a subsequent lawsuit.

The underlying case, in which plaintiffs attorney Tommy Malone asked the jury for $50 million, stems from the delivery of a now-4-year-old boy, Tucker Sutton. His parents contended at trial that their 11-pound baby, whose shoulder became trapped in the birth canal during delivery, would have been born healthy if nurses had reacted to signs of trouble and their doctor had delivered the baby three hours earlier by cesarean section. Instead, it took 19 minutes of resuscitation efforts to get his heart beating after delivery.

The defendant doctor, Gregg Alan Bauer, and his practice, Marietta OB-GYN Associates, countered that a C-section would not have made a difference because the mother had an infection that started the baby’s brain damage before birth. The hospital defendant, WellStar Health System Inc., argued that nurses worked heroically to save the baby’s life.

The August 2011 trial hit a snag when, following a day and a half of deliberations, the jurors sent the judge a note saying they had reached a verdict as to WellStar but were unable to agree on Bauer. For the next three hours, Tanksley tried to reach a resolution that would avoid a mistrial, including urging the jurors to keep deliberating and encouraging the lawyers to try again for a settlement.

No verdict on one defendant

Tanksley, who delayed showing the lawyers the note but later revealed to them that the jurors said they had agreed on the hospital’s fate, said she would not accept a verdict on just one of the defendants because she feared the state’s apportionment requirements would lead to reversal on appeal. Malone argued the judge should take a verdict on one defendant but place the damages award on hold until the Georgia Supreme Court could offer guidance on how to handle the apportionment issue. But Tanksley declined.

The Court of Appeals panel concluded that during the trial, the doctor’s attorney also expressed concerns about apportionment, asserting that a mistrial should be declared if there was a verdict as to only one defendant. The hospital’s lawyer indicated at the time that he agreed with that position, saying specifically that a verdict against one defendant but not the other would require a mistrial, according to the appeals court.

Curiously, the lawyers’ positions appeared to be premised on the assumption that the plaintiff had prevailed against the hospital, but they were incorrect. Armed with affidavits from three jurors saying the jury was prepared to rule for the hospital, WellStar asked the court to set aside the mistrial and declare judgment in its favor. Tanksley denied the motion but allowed the defendants to bring an appeal before any retrial.

On appeal, WellStar argued that Tanksley had erred by not asking the jury whether it had found for or against the hospital. While acknowledging its attorney had argued at trial that a unanimous decision against WellStar without a unanimous decision as to Bauer would constitute a mistrial, the hospital argued on appeal that the situation would be different if the jury were prepared to rule in favor of WellStar. In that case, the hospital argued, Tanksley had a duty to enter a judgment on the jury verdict in the hospital’s favor.

The Court of Appeals panel—Judges Anne Elizabeth Barnes, A. Harris Adams and Christopher McFadden—said WellStar wasn’t in any position to complain about a mistrial. “[E]ven if there were any error, it was invited by WellStar,” wrote McFadden. “WellStar twice joined with co-defendant Bauer in arguing to the trial court that if the jury reached a verdict as to one defendant and remained deadlocked as to the other, then a mistrial was warranted.”

The panel said Tanksley, who is one of 16 finalists being vetted for an opening on the state Court of Appeals, hadn’t erred in declining to set aside the mistrial and enter judgment on the jury’s decision because there was no verdict upon which to enter judgment. There’s no verdict until the jury’s decision is read in open court, McFadden wrote. “Although the jury sent a note to the judge indicating some unspecified decision as to WellStar,” wrote McFadden, “the jury did not write out a verdict, have it signed by the foreman, deliver it to the clerk, or have it read in open court.”

Showing the jury some heart

Bauer and his practice challenged Tanksley’s restrictions on expressions of sympathy, and the appeals panel similarly said they were not in a place to complain.

According to McFadden’s opinion, the Suttons filed a motion in limine to prevent the defendants and their counsel from expressing sympathy for the plaintiffs in front of the jury. In a hearing before Tanksley, the doctor’s attorney, Daniel Huff of Huff, Powell & Bailey, said he was concerned that defense lawyers would not be allowed to say “something along the lines of … we’re personally sorry about what happened.”

“There is a line where you can make sure the jury understands that you’re not cold-hearted as a lawyer for the doctor,” the judge told Huff.

“That’s really what I’m worried about,” Huff responded, according to the appeals court ruling. “We have to … be able to do what you’ve pointed out, which is at least give the jury some impression that we’re not just these … completely cold-hearted people who don’t care anything about it.”

Tanksley went on to grant the plaintiffs’ motion and forbid expressions of sympathy, sorrow and regret, but she allowed the defense to make “very limited statements … as to it being a sad situation or something of that nature.”

Tanksley “did exactly what [defense] counsel asked,” wrote McFadden, “which was to allow the defense attorneys to show the jury that they were not cold-hearted by making limited statements regarding the sad situation.”

According to Eric Frisch of Carlock Copeland & Stair, a civil defense lawyer not involved in the case, motions such as the Suttons’ have become more common in the wake of 2005 Georgia tort law changes that said a doctor’s expression of sympathy couldn’t be used against him in court. Blessed by the Georgia Trial Lawyers Association, the so called “apology immunization” clause was supposed to promote early resolution of complaints of medical errors by allowing medical practitioners to speak candidly about bad outcomes.

Frisch surmised that plaintiffs didn’t want defendants to take advantage of the new rule by making humanizing statements in front of the jury. “That’s why it started becoming a little more in vogue to file these motions in limine,” said Frisch.

But Frisch said expressing regrets in front of the jury can be a double-edged sword for a defendant, who might appear insincere. Additionally, said Frisch, “the concern from the defense side is that if we say, ‘we’re sorry,’ we’re sorry for doing something wrong.”

“It would be hard for me to say that the judge did anything wrong in that regard, because there’s not a lot of case law,” Frisch added.

Adam Malone, who represented the plaintiffs in the Sutton case with his father and handled the motion in limine, said the 2005 statute made it clear that expressions of sympathy are inadmissible, period—whether it’s a pre-trial statement by a doctor that a plaintiff seeks to put before the jury, or a defendant’s attempt to humanize himself during trial. He said he’s filed a similar motion in limine in every case he has tried since the 2005 rule change went into effect—and he can’t remember a trial judge denying the motion.

“Whether the defendant is sorry is really not relevant to whether he was negligent,” said Malone.

Tommy Malone said he wasn’t surprised with the appeals court’s decision to uphold the declaration of a mistrial. He noted that he had wanted to have the jury return its verdict but the defense objected. “There was no verdict; that’s the bottom line,” he said.

Tommy Malone said the hospital’s lawyer, David Sapp of Green & Sapp, told him prior to the Court of Appeals ruling that he would ask the state Supreme Court to review the case if the hospital lost its initial appeal.

Sapp declined to comment on the Court of Appeals ruling. Huff, the doctor’s lawyer, could not be reached for comment.

One likely difference in any retrial will be the jury instructions. In response to a defense complaint on appeal, the plaintiffs conceded that a jury instruction about the defendants’ burden of proof on their theory of what caused Sutton’s injuries was erroneous.

The cases are WellStar Health System v. Sutton, No. A12A1426, and Bauer v. Sutton, No. A12A1427.