## Facts

- Lillian K. Walters, age 32, married with four minor children, was referred to surgeon C. Thomas Hitchcock, M.D., for surgical removal of diseased thyroid tissue.
- Walters was advised the procedure was relatively low risk, with a short expected hospital stay and minimal scarring.
- During the January 22, 1980 thyroid surgery, tissue specimens were sent to pathology; no malignancy was detected.
- The day after surgery, Walters rapidly deteriorated, including severe swelling, temporary blindness, and extreme respiratory distress requiring intensive care and intubation.
- Pathology later reported that a piece of esophageal tissue was attached to the thyroid specimen, indicating inadvertent removal/injury to the esophagus during surgery.
- On re-operation, Hitchcock found a significant esophageal defect, concluded repair was not possible, and permanently closed the esophagus.
- Walters could initially be fed only via a tube into her stomach and later underwent multiple hospitalizations and surgeries, including colon interposition to create a bypass for swallowing.
- Walters sued for medical malpractice; a jury awarded $2,000,000, largely for pain and suffering, and judgment was entered on the verdict.

## Issues

1. Whether the trial court erred in refusing to recall jurors for inquiry into alleged juror misconduct under Kansas Supreme Court Rule 181.
2. Whether the trial court abused its discretion by restricting defense expert testimony.
3. Whether plaintiff’s counsel’s closing argument constituted reversible misconduct requiring a new trial.
4. Whether the $2,000,000 verdict was so excessive as to require remittitur or a new trial.

## Decision

- The Kansas Supreme Court affirmed the judgment for Walters.
- The trial court properly refused to recall jurors; counsel’s affidavit recounting alleged juror statements was an insufficient basis to compel post-verdict inquiry.
- The trial court did not abuse its discretion in limiting the defense expert’s testimony.
- The challenged closing argument did not warrant a new trial; the remarks were within permissible advocacy and were not treated as reversible misconduct.
- The $2,000,000 damages award was supported by evidence of catastrophic, permanent injury and did not “shock the conscience.”

## Legal Principles

- A party seeking juror recall for misconduct inquiry under Kansas Supreme Court Rule 181 bears the burden to show necessity; an attorney affidavit repeating purported juror statements is generally insufficient to require juror interrogation.
- Trial courts have broad discretion to control the scope and relevance of expert testimony; appellate review is for abuse of discretion.
- Regulation of closing argument is committed to the trial court; a new trial is warranted only when improper argument results in prejudice rising to reversible error.
- A jury damages award in a medical malpractice action will be upheld on appeal unless it is so excessive that it “shocks the conscience” or indicates passion, prejudice, or corruption.

## Conclusion

The Kansas Supreme Court upheld a $2 million malpractice verdict arising from catastrophic surgical injury, holding that the trial court acted within its discretion on juror-recall, expert-testimony, and closing-argument rulings, and that the damages award did not meet the stringent “shock the conscience” threshold for appellate interference.


Walters v. Hitchcock, 697 P.2d 847 (Kan. 1985)