Flatt v. Kantak
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| 20030285 |
Josiah Flatt, by and through his
Natural Guardians Anita Flatt and
James Flatt, Plaintiff and Appellant
v.
Sunita A. Kantak, M.D., MeritCare
Hospital, and State of North
Dakota, Defendants and Appellees
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| Appeal from: |
District Court,
East Central Judicial District,
Cass County
Judge Cynthia Rothe-Seeger |
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Nature of Action: |
Personal Injury
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| Counsel: |
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| Term: |
05/2004 Argument: 05/12/2004 01:30pm
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| ND cite: |
2004 ND 173
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| NW cite: |
687 N.W.2d 208
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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| Issues: |
Appellant's Statement of the Issues:
1. Did the Trial Court err in preventing Plaintiff's experts, Dr. Christopher Cold and Dr. Robert S. Van Howe from testifying as to the standard of care for medical doctors in obtaining informed consent for an elective medical procedure on an
infant?
2. The District Court erroneously excluded relevant, nonprejudicial evidence including a videotape showing the different circumcision procedures, circumcision tools, circumstraint, Gomco Clamp, photos of an intact penis, meeting minutes and billing
statements, and denied cross-examination of expert witnesses which affected a substantial right of the Plaintiff.
3. The Jury Instructions as a whole were misleading and prejudicial to the Plaintiff when, amongst other things, the Court attempted to blend the "reasonable patient standard" and the "professional standard", which misled and confused the jury.
4. Even if any single error of law is not sufficient to grant a new trial, the cumulative effect of the multiple errors deprived the Plaintiff of the substance of a fair trial.
5. The District Court abused its discretion in taxing the costs when the proper procedure was not followed denying the Plaintiff the opportunity to contest the reasonableness of the expert witness fees.
6. The District Court erred as a matter of law in dismissing the equal protection constitutional claims challenging the constitutionality of N.D.C.C. 12.1-36-01 on the basis of lack of standing.
Appellant's Reply Brief Issues
I. North dakota has codified the standard of informed consent. A decision to subject an incapacitated infant to cosmetic surgery must be predicated on an analysis of the "best interests" of the child.
II. The supreme court needs to weigh in on the issue of whether or not the "patient rule" controls informed consent claims, particularly for non-therapeutic cosmetic procedures performed on an infant child.
III. The exclusion of a videotape procedure showing a circumcision, the surgical tools and instruments, the circumstraint, photographs, and other documentary evidence in light of the "best interest" Standard, prejudiced a substantial right of the
plaintiff, denying him a fair trial.
IV. Applying either federal or state constitutional standing principles, the plaintiff has demonstrated a specific injury in fact to allow review of the constitutional issue.
Appellee's Statement of the Issues:
I. To have standing, a plaintiff must have suffered some threatened or actual injury resulting from the challenged action. Plaintiff, a male minor, challenges the constitutionality of N.D.C.C. 12.1-36-01. Section 12.1-36-01 criminalizes the
surgical alteration of a female minor's normal, healthy, functioning genital tissue. Section 12.1-36-01 has not been applied against plaintiff and does not interfere in plaintiff's right (or the right of his guardian) to make informed medical
decisions. Has plaintiff suffered some threatened or actual injury due to section 12.1-36-01?
II. To have standing, a plaintiff must have suffered some threatened or actual injury resulting from the challenged action. Plaintiff challenges the constitutionality of N.D.C.C. 12.1-36-01. Section 12.1-36-01 criminalizes the surgical alteration
of a female minor's normal, healthy, functioning genital tissue. Plaintiff, a male minor, alleges injury due to a circumcision performed with parental consent. Does plaintiff's circumcision result from section 12.1-36-01?
III. The courts do not issue advisory opinions. Plaintiff challenges the constitutionality of N.D.C.C. 12.1-36-01 because it permits him (or his guardian) to make an informed medical decision regarding whether to be circumcised. If N.D.C.C.
12.1-36-01 is struck down as unconstitutional, plaintiff (or his guardian) will still be permitted to make an informed medical decision regarding whether to be circumcised. Is Flatt seeking an impermissible advisory opinion?
Appellee's Statement of the Issues:
I. Did the trial court abuse its discretion when it excluded testimony by Flatt's experts that attempted to erroneously instruct the jury on the legal standard for a physician's duty of disclosure and when the experts ultimately testified about
their opinions?
II. Did the trial court abuse its discretion when it excluded evidence unrelated to informed consent that was cumulative, prejudicial, and a waste of time?
III. Did the trial court accurately instruct the jury about a physician's duty of disclosure when the instruction quoted controlling precedent of this Court, and Flatt's requested instruction also included the language to which Flatt objects?
IV. Did Flatt fail to preserve issues for appeal by failing to raise them in the motion for new trial, which is required by this Court?
V. Did the trial court abuse its discretion in taxing expert fees in favor of Dr. Kantak and MeritCare Hospital as prevailing parties when Flatt received notice of the requested costs and was heard regarding objections, and the trial court taxed
expert fees only for the amounts that were incurred by the defense?
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 Add Docket 20030285 RSS
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| 1 | | 09/30/2003 | |
NOTICE OF APPEAL: 09/29/2003 |
| 2 | | 09/30/2003 | |
ORDER FOR TRANSCRIPT: 09/29/2003 |
| 3 | | 10/06/2003 | |
Copy of letter from Gail Wells to Zenas Baer dated 10-3-03 RE: Cost of preparation of transcript |
| 4 | | 10/20/2003 | |
Letter dated 10-17-03 from Gail E. Wells, w/attach. (preparation of TRA has been suspended for |
| 5 | | 10/20/2003 | |
AT's failure to make advance payment) |
| 6 | | 10/24/2003 | |
Letters dated 10-21-03 and 10-22-03 from Zenas Baer re transcript |
| 7 | | 11/04/2003 | |
Copies of letters from Zenas Baer dated 11-3-03 to Catherine Jorgenson & Gail Wells RE: |
| 8 | | 11/04/2003 | |
Payments for transcripts |
| 9 | | 11/06/2003 | |
Letter from Gail Wells to Mr. Baer dated 11-5-03 RE: preparation of transcript no longer suspended |
| 10 | | 11/18/2003 | |
MOT. EXT/TIME TRANSCRIPT (Gail Wells) |
| 11 | | 11/18/2003 | |
ACTION BY TRIAL COURT (mtr) (Gail Wells). Granted: 12/29/2003 |
| 12 | | 11/19/2003 | |
MOT. EXT/TIME TRANSCRIPT (Catherine Jorgensen) |
| 13 | | 11/19/2003 | |
ACTION BY TRIAL COURT (MTR/Catherine Jorgensen). Granted: 12/28/2003 |
| 14 | | 12/23/2003 | |
MOT. EXT/TIME TRANSCRIPT (Gail E. Wells) |
| 15 | | 12/24/2003 | |
ACTION BY CLERK. Granted: 01/29/2003 |
| 16 | | 12/30/2003 | |
TRANSCRIPT DATED January 22, 2003 |
| 17 | | 12/31/2003 | |
DISK - TRA of 1-22-03 |
| 18 | | 01/21/2004 | |
Transcripts commencing 2-4-03 & volume of Table of Contents (10 vols.) |
| 19 | | 01/26/2004 | |
ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning |
| 20 | | 01/26/2004 | |
DISKS (6) (TRA)(Feb. 4, 5, 6, 7, 10, 11, 12, 13, & 14, 2003) |
| 21 | | 01/29/2004 | |
Additional pages for 2-12-03 TRA (Vol 7), cert./serv., & certificate of reporter, |
| 22 | | 01/29/2004 | |
filed by Kelly Kroke, treated as final TRA |
| 23 | | 02/03/2004 | |
RECORD ON APPEAL (4 vols.),Exhibits, & Depositions(14)NOT REC'D: #71-tape,112-tape,128-steno notes, |
| 24 | | 02/03/2004 | |
167-steno notes, 194-Pl's Exh.1(Olympic Circumstraint), 196-Pl's Exh. 2(Gomco clamp), 197-Pl's |
| 25 | | 02/03/2004 | |
Exh. 3 (Circumcision Tray), 198-Pl's Exh 3A (Circumcision Tray Contents Insert), 199-Pl's Exh. 3B |
| 26 | | 02/03/2004 | |
(Absorbent paper wrapper), 200-Pl's Exh. 3C (Sterile Drape), 201-Pl's Exh.3D (2x2 Gauze pads), |
| 27 | | 02/03/2004 | |
202-Pl's Exh. 3E (3 swab sticks), 203-Pl's Exh. 3F(disposable scalpel),204-Pl's Exh 3G (Vaseline |
| 28 | | 02/03/2004 | |
gauze pressing), 205-Pl's Exh 3H (blunt probe), 206-Pl's Exh. 3I (Safety Pin), 207-Pl's Exh. 3J |
| 29 | | 02/03/2004 | |
(Tweezers), 208-Pl's Exh. 3K (scissors), 209-Pl's Exh. 3L (forceps, small), 210-Pl's Exh. 3M |
| 30 | | 02/03/2004 | |
(Forceps, medium), 211-Pl's Exh. 3N (forceps, medium), 212-Pl's Exh. 3O (foam base for tray), |
| 31 | | 02/03/2004 | |
213-Pl's Exh. 3P (Plastic Tray), 214-Pl's Exh. 3Q(syringe), 223-Pl's Exh. 10 (prescription |
| 32 | | 02/03/2004 | |
ibuprofen), 233-Pl's Exh. 12 (keepsakes; manila envelope was received, but nothing inside |
| 33 | | 02/03/2004 | |
the envelope was marked Pl's Exh. 12), 288-Def's Exh. 134 (blow-up "illustrative only"), |
| 34 | | 02/03/2004 | |
289-Def's Exh. 135 (blow-up "illustrative only"), 290-Def's Exh.136(blow-up "illustrative only"), |
| 35 | | 02/03/2004 | |
291-Def's Exh. 137 (blow-up "illustrative only"), 292-Def's Exh.138(blow-up "illustrative only"), |
| 36 | | 02/03/2004 | |
293-Def's Exh. 139 (blow-up "illustrative only"), 299-steno notes, 304-steno notes, |
| 37 | | 02/03/2004 | |
327-tape, and 335-tape |
| 38 | | 03/09/2004 | |
APPELLANT BRIEF |
| 39 | | 03/09/2004 | |
APPELLANT APPENDIX (2 Volumes) |
| 40 | | 04/16/2004 | |
Corrected table of authorities and page for ATB (inserted) |
| 41 | | 04/16/2004 | |
Copy of Judgment for AEA (inserted) |
| 42 | | 04/16/2004 | |
DISK - ATB |
| 43 | | 04/07/2004 | |
APPELLEE BRIEF (State of ND) |
| 44 | | 04/07/2004 | |
DISK (e-mailed) - AEB |
| 45 | | 04/12/2004 | |
APPELLEE BRIEF (Sunita A. Kantak, M.D. & MeritCare Hospital) |
| 46 | | 04/12/2004 | |
APPELLEE APPENDIX (Dr. Kantak & MeritCare Hospital) |
| 47 | | 04/13/2004 | |
DISK - AEB (Dr. Kantak & MeritCare Hospital) |
| 48 | | 04/23/2004 | |
SITTING WITH THE COURT: Olson, Everett Nels |
| 49 | | 04/27/2004 | |
REPLY BRIEF |
| 50 | | 04/28/2004 | |
DISK - RYB |
| 51 | | 04/28/2004 | |
Certificate of Reply Brief Length |
| 52 | | 05/10/2004 | |
Request for Radio/TV Coverage (KVLY-TV, Fargo) e-mailed letter dated 5-07-04 from Jack McDonald |
| 53 | | 05/10/2004 | |
(approved) |
| 54 | | 05/10/2004 | |
E-mail dated 5-10-04 from Zenas Baer stating he has no objection to expanded media coverage |
| 55 | | 05/12/2004 | |
APPEARANCES:Zenas Baer and Anita Flatt;Angela Elsperger Lord & Douglas A. Bahr, Solicitor General |
| 56 | | 05/12/2004 | |
ARGUED: Zenas Baer; Angela Elsperger Lord and Douglas A. Bahr (Vol. Y; Page 240) |
| 57 | | 05/12/2004 | |
ORAL ARGUMENT WEBCAST |
| 58 | | 09/03/2004 | |
DISPOSITION: AFFIRMED |
| 59 | | 09/03/2004 | |
SPLIT OPINION: VandeWalle, Gerald W. |
| 60 | | 09/03/2004 | |
Concurring Specially: Sandstrom, Dale V.: CONCUR |
| 61 | | 09/03/2004 | |
Costs on appeal awarded in favor of Appellees. |
| 62 | | 09/08/2004 | |
Corrected Opinion Page (Paragraph 18, line 7) |
| 63 | | 09/17/2004 | |
PETITION FOR REHEARING |
| 64 | | 09/17/2004 | |
Appendix to Petition for Rehearing |
| 65 | | 09/20/2004 | |
DISK - PER |
| 66 | | 09/28/2004 | |
Corrected Table of Authorities & page 4 for Petition for Rehearing |
| 67 | | 09/28/2004 | |
DISK - Corrected Petition for Rehearing |
| 68 | | 10/25/2004 | |
APPELLEE'S RESPONSE BRIEF IN OPPOSITION TO PETITION FOR REHEARING |
| 69 | | 10/25/2004 | |
DISK - AE Response to PER |
| 70 | | 11/02/2004 | |
MOTION FOR REMAND (sua sponte) |
| 71 | | 11/02/2004 | |
ACTION BY SUPREME COURT (Mot/remand). Granted |
| 72 | | 11/02/2004 | |
ORDER OF REMAND |
| 73 | | 12/15/2004 | |
Copy of Memorandum Opinion & Order Modifying Order on Objection to Taxation of Costs signed by |
| 74 | | 12/15/2004 | |
Judge Rothe-Seeger dated 12-15-04 |
| 75 | | 12/22/2004 | |
RECORD ON APPEAL refiled after remand |
| 76 | | 01/10/2005 | |
Transcript dated 12/10/04 |
| 77 | | 01/11/2005 | |
DISK - TRA dated 12/10/04 (e-mailed) |
| 78 | | 01/14/2005 | |
Appellant's Brief on Remand of Taxation of Costs |
| 79 | | 01/14/2005 | |
Appendix to Brief on Remand of Taxation of Costs (attached to Brief on Remand) |
| 80 | | 01/17/2005 | |
DISK (Appellant's Brief on Remand of Taxation of Costs) |
| 81 | | 01/17/2005 | |
Request for Oral Argument on the issue of taxation of costs |
| 82 | | 01/21/2005 | |
Faxed Letter from Angie E. Lord dated 1-21-05 RE: opposed to Request for Oral Argument |
| 83 | | 01/21/2005 | |
E-FILED Response to Request for Oral Argument (faxed letter from Angie E. Lord dated 1-21-05) |
| 84 | | 01/26/2005 | |
Appellees' Response Brief on Remand of Taxation of Costs |
| 85 | | 01/27/2005 | |
DISK - Appellees' Response Brief on Remand of Taxation of Costs |
| 86 | | 01/27/2005 | |
Affidavit of Service by Mail of Appellees' Response Brief on Remand of Taxation of Costs |
| 87 | | 02/22/2005 | |
ACTION BY SUPREME COURT (PER). Denied |
| 88 | | 02/22/2005 | |
ACTION BY SUPREME COURT (re request for oral argument). Denied |
| 89 | | 03/09/2005 | |
MANDATE |
| 90 | | 03/28/2005 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 91 | | 12/08/2010 | |
EXPUNGED - Nonpermanent record items destroyed |