Flatt v. Kantak

20030285 Josiah Flatt, by and through his
Natural Guardians Anita Flatt and
James Flatt, Plaintiff and Appellant
Sunita A. Kantak, M.D., MeritCare
Hospital, and State of North
Dakota, Defendants and Appellees

Appeal from: District Court, East Central Judicial District, Cass County
Judge Cynthia Rothe-Seeger
Nature of Action: Personal Injury
Appellant: Zenas Baer Law Office
Appellee: Vogel Law Firm
Appellee: Douglas Alan Bahr , Att. General Office
Term: 05/2004   Argument: 05/12/2004
ND cite: 2004 ND 173
NW cite: 687 N.W.2d 208

Listen to recording of oral argument in MP3 format

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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Docket entries:
109/30/2003 NOTICE OF APPEAL: 09/29/2003
209/30/2003 ORDER FOR TRANSCRIPT: 09/29/2003
310/06/2003 Copy of letter from Gail Wells to Zenas Baer dated 10-3-03 RE: Cost of preparation of transcript
410/20/2003 Letter dated 10-17-03 from Gail E. Wells, w/attach. (preparation of TRA has been suspended for
510/20/2003 AT's failure to make advance payment)
610/24/2003 Letters dated 10-21-03 and 10-22-03 from Zenas Baer re transcript
711/04/2003 Copies of letters from Zenas Baer dated 11-3-03 to Catherine Jorgenson & Gail Wells RE:
811/04/2003 Payments for transcripts
911/06/2003 Letter from Gail Wells to Mr. Baer dated 11-5-03 RE: preparation of transcript no longer suspended
1011/18/2003 MOT. EXT/TIME TRANSCRIPT (Gail Wells)
1111/18/2003 ACTION BY TRIAL COURT (mtr) (Gail Wells). Granted: 12/29/2003
1211/19/2003 MOT. EXT/TIME TRANSCRIPT (Catherine Jorgensen)
1311/19/2003 ACTION BY TRIAL COURT (MTR/Catherine Jorgensen). Granted: 12/28/2003
1412/23/2003 MOT. EXT/TIME TRANSCRIPT (Gail E. Wells)
1512/24/2003 ACTION BY CLERK. Granted: 01/29/2003
1612/30/2003 TRANSCRIPT DATED January 22, 2003
1712/31/2003 DISK - TRA of 1-22-03
1801/21/2004 Transcripts commencing 2-4-03 & volume of Table of Contents (10 vols.)
1901/26/2004 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
2001/26/2004 DISKS (6) (TRA)(Feb. 4, 5, 6, 7, 10, 11, 12, 13, & 14, 2003)
2101/29/2004 Additional pages for 2-12-03 TRA (Vol 7), cert./serv., & certificate of reporter,
2201/29/2004 filed by Kelly Kroke, treated as final TRA
2302/03/2004 RECORD ON APPEAL (4 vols.),Exhibits, & Depositions(14)NOT REC'D: #71-tape,112-tape,128-steno notes,
2402/03/2004 167-steno notes, 194-Pl's Exh.1(Olympic Circumstraint), 196-Pl's Exh. 2(Gomco clamp), 197-Pl's
2502/03/2004 Exh. 3 (Circumcision Tray), 198-Pl's Exh 3A (Circumcision Tray Contents Insert), 199-Pl's Exh. 3B
2602/03/2004 (Absorbent paper wrapper), 200-Pl's Exh. 3C (Sterile Drape), 201-Pl's Exh.3D (2x2 Gauze pads),
2702/03/2004 202-Pl's Exh. 3E (3 swab sticks), 203-Pl's Exh. 3F(disposable scalpel),204-Pl's Exh 3G (Vaseline
2802/03/2004 gauze pressing), 205-Pl's Exh 3H (blunt probe), 206-Pl's Exh. 3I (Safety Pin), 207-Pl's Exh. 3J
2902/03/2004 (Tweezers), 208-Pl's Exh. 3K (scissors), 209-Pl's Exh. 3L (forceps, small), 210-Pl's Exh. 3M
3002/03/2004 (Forceps, medium), 211-Pl's Exh. 3N (forceps, medium), 212-Pl's Exh. 3O (foam base for tray),
3102/03/2004 213-Pl's Exh. 3P (Plastic Tray), 214-Pl's Exh. 3Q(syringe), 223-Pl's Exh. 10 (prescription
3202/03/2004 ibuprofen), 233-Pl's Exh. 12 (keepsakes; manila envelope was received, but nothing inside
3302/03/2004 the envelope was marked Pl's Exh. 12), 288-Def's Exh. 134 (blow-up "illustrative only"),
3402/03/2004 289-Def's Exh. 135 (blow-up "illustrative only"), 290-Def's Exh.136(blow-up "illustrative only"),
3502/03/2004 291-Def's Exh. 137 (blow-up "illustrative only"), 292-Def's Exh.138(blow-up "illustrative only"),
3602/03/2004 293-Def's Exh. 139 (blow-up "illustrative only"), 299-steno notes, 304-steno notes,
3702/03/2004 327-tape, and 335-tape
3803/09/2004 APPELLANT BRIEF
3903/09/2004 APPELLANT APPENDIX (2 Volumes)
4004/16/2004 Corrected table of authorities and page for ATB (inserted)
4104/16/2004 Copy of Judgment for AEA (inserted)
4204/16/2004 DISK - ATB
4304/07/2004 APPELLEE BRIEF (State of ND)
4404/07/2004 DISK (e-mailed) - AEB
4504/12/2004 APPELLEE BRIEF (Sunita A. Kantak, M.D. & MeritCare Hospital)
4604/12/2004 APPELLEE APPENDIX (Dr. Kantak & MeritCare Hospital)
4704/13/2004 DISK - AEB (Dr. Kantak & MeritCare Hospital)
4804/23/2004 SITTING WITH THE COURT: Olson, Everett Nels
4904/27/2004 REPLY BRIEF
5004/28/2004 DISK - RYB
5104/28/2004 Certificate of Reply Brief Length
5205/10/2004 Request for Radio/TV Coverage (KVLY-TV, Fargo) e-mailed letter dated 5-07-04 from Jack McDonald
5305/10/2004 (approved)
5405/10/2004 E-mail dated 5-10-04 from Zenas Baer stating he has no objection to expanded media coverage
5505/12/2004 APPEARANCES:Zenas Baer and Anita Flatt;Angela Elsperger Lord & Douglas A. Bahr, Solicitor General
5605/12/2004 ARGUED: Zenas Baer; Angela Elsperger Lord and Douglas A. Bahr (Vol. Y; Page 240)
5909/03/2004 SPLIT OPINION: VandeWalle, Gerald W.
6009/03/2004 Concurring Specially: Sandstrom, Dale V.: CONCUR
6109/03/2004 Costs on appeal awarded in favor of Appellees.
6209/08/2004 Corrected Opinion Page (Paragraph 18, line 7)
6409/17/2004 Appendix to Petition for Rehearing
6509/20/2004 DISK - PER
6609/28/2004 Corrected Table of Authorities & page 4 for Petition for Rehearing
6709/28/2004 DISK - Corrected Petition for Rehearing
6910/25/2004 DISK - AE Response to PER
7011/02/2004 MOTION FOR REMAND (sua sponte)
7111/02/2004 ACTION BY SUPREME COURT (Mot/remand). Granted
7211/02/2004 ORDER OF REMAND
7312/15/2004 Copy of Memorandum Opinion & Order Modifying Order on Objection to Taxation of Costs signed by
7412/15/2004 Judge Rothe-Seeger dated 12-15-04
7512/22/2004 RECORD ON APPEAL refiled after remand
7601/10/2005 Transcript dated 12/10/04
7701/11/2005 DISK - TRA dated 12/10/04 (e-mailed)
7801/14/2005 Appellant's Brief on Remand of Taxation of Costs
7901/14/2005 Appendix to Brief on Remand of Taxation of Costs (attached to Brief on Remand)
8001/17/2005 DISK (Appellant's Brief on Remand of Taxation of Costs)
8101/17/2005 Request for Oral Argument on the issue of taxation of costs
8201/21/2005 Faxed Letter from Angie E. Lord dated 1-21-05 RE: opposed to Request for Oral Argument
8301/21/2005 E-FILED Response to Request for Oral Argument (faxed letter from Angie E. Lord dated 1-21-05)
8401/26/2005 Appellees' Response Brief on Remand of Taxation of Costs
8501/27/2005 DISK - Appellees' Response Brief on Remand of Taxation of Costs
8601/27/2005 Affidavit of Service by Mail of Appellees' Response Brief on Remand of Taxation of Costs
8702/22/2005 ACTION BY SUPREME COURT (PER). Denied
8802/22/2005 ACTION BY SUPREME COURT (re request for oral argument). Denied
8903/09/2005 MANDATE
9112/08/2010 EXPUNGED - Nonpermanent record items destroyed

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