Galumbeck v. Lopez

Summary

The Supreme Court of Virginia affirmed a jury verdict in favor of Joseph Lopez, administrator of the estate of Maritess Q. Lopez, in a wrongful-death medical-malpractice action against Dr. Matthew Galumbeck and Plastic Surgery of Tidewater, P.C. The court held that the appellant failed to preserve or provide a sufficient record for review of several evidentiary and procedural claims, including issues concerning a surgical log and Dr. Flor’s board certification. The court also held that the trial court did not abuse its discretion in admitting the medical bills or denying a mistrial based on alleged juror misconduct.

Holdings

1. A mistrial is not automatic upon a showing of juror misconduct; the trial court must determine whether the conduct demonstrates that prejudice might result, and the party moving for a mistrial bears the burden of proving probable prejudice. Because the trial court found Juror Conway's explanations credible and Dr. Galumbeck did not establish prejudicial misconduct, denial of the mistrial was not error.
2. An appellate court will not consider an assignment of error when the appellant fails to provide a record sufficient to evaluate the alleged error. Off-the-record sidebar discussions and a unilateral post-adjournment statement made outside opposing counsel's presence did not preserve the evidentiary issues.
3. An issue raised in a pretrial motion in limine is waived when the party fails to obtain a ruling, and an objection made during trial is not reviewable when the actual objection and its grounds were made off the record. A party also waives an objection to evidence by introducing evidence of the same character.
4. The trial court did not abuse its discretion by admitting the medical bills because they were relevant to the plaintiff's theory of the case, even though they were not offered to prove damages or the amount paid to Dr. Galumbeck.

Questions Presented

1. Whether the trial court abused its discretion by denying a mistrial based on alleged juror misconduct and bias.
2. Whether the trial court erred in excluding or declining to consider evidence concerning the surgical log and payment records.
3. Whether the defendants preserved their challenge to evidence concerning Dr. Flor's lack of board certification and the contents of Dr. Galumbeck's website.
4. Whether the trial court abused its discretion by admitting Maritess Lopez's medical bills into evidence.

Disposition

affirmed