Court Error – Damages

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WI Court of Appeals – District III

Case Name: Kim Westrich, et al. v. Memorial Health Center, Inc.

Case No.: 2017AP568

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Court Error – Damages

This case is before us for the second time. Kim Westrich fell while sedated following a colonoscopy at Memorial Health Center, Inc. (“the Hospital”). In 2011, a jury found that the Hospital’s negligence exceeded Westrich’s negligence, and it awarded damages to Westrich and his wife, Elizabeth. The Hospital appealed, and we reversed the judgment and remanded for a new trial. Following a second trial in September 2016, a jury again found in favor of the Westriches and awarded them damages.

The Hospital now appeals for the second time, arguing: (1) the circuit court erroneously exercised its discretion by preventing the Hospital from naming new expert witnesses on remand; (2) one of the jurors in the second trial was objectively biased; (3) the circuit court erroneously accepted the Westriches’ offer to waive that portion of their damages representing the jury’s allocation of fault to Westrich, in order to cure an inconsistency in the jury’s verdict; (4) the jury’s verdict violates the five-sixths rule; and (5) the Hospital is entitled to a new trial in the interest of justice due to the cumulative effect of these and other errors. We reject each of the Hospital’s arguments and affirm.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.