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Estate of Marilyn Marie Conners v. O'Connor

filed: October 4, 1993.

ESTATE OF MARILYN MARIE CONNERS, BY ITS ADMINISTRATOR, HOWARD MEREDITH; HOWARD MEREDITH; LILLIAN BEATTY, INDIVIDUALS, AS SOLE HEIRS OF MARILYN MARIE CONNERS, PLAINTIFFS-APPELLEES, CROSS-APPELLANTS,
v.
DENNIS M. O'CONNOR; THADDEUS KOSTRUBALA, DEFENDANTS-APPELLANTS, CROSS-APPELLEES.



Appeal from the United States District Court for the Northern District of California. DC No. CV-86-01898-FMS. Fern M. Smith, District Judge, Presiding

Before: Browning and Canby, Circuit Judges, and Kelleher,*fn* District Judge

MEMORANDUM

This civil rights action under 42 U.S.C. § 1983 arises from the death of a patient at Napa State Hospital ("NSH"), a California mental institution. Dr. Dennis Michael O'Connor, the former Executive Director of NSH, and Dr. Thaddeus Kostrubala, the Medical Director of NSH, appeal the jury verdict against them. The consolidated cross-appeals challenge the district court's award of attorney's fees to the plaintiffs. We affirm in part and reverse in part.

FACTS & PROCEDURAL BACKGROUND

In 1979, John Duncan was committed to NSH pursuant to Cal. Penal Code § 1026, after having pleaded not guilty by reason of insanity to a murder charge. In 1982, Marilyn Marie Conners was civilly committed to NSH after suffering injuries in an automobile accident that left her mentally disabled. In April 1985, on the grounds of NSH, Duncan raped and murdered Conners.

In 1986, Conners's parents and the administrator of her estate brought this section 1983 action against four doctors and administrators at NSH. In a prior interlocutory appeal, this court affirmed the district court's denial of the defendants' motion for summary judgment based on qualified immunity. Estate of Conners v. O'Connor, 846 F.2d 1205 (9th Cir. 1988), cert. denied, 489 U.S. 1065 (1989). In September 1991, the case went to trial. The district court denied the defendants' motions for a directed verdict, and the jury returned a verdict of $280,785 against Drs. O'Connor and Kostrubala. These defendants moved for judgment notwithstanding the verdict ("JNOV") or, in the alternative, for a new trial. The district court denied the motion, and Drs. O'Connor and Kostrubala appealed. Both sides appealed from the district court's award of attorney's fees to the plaintiffs.

ANALYSIS

I. Motion for JNOV

Drs. O'Connor and Kostrubala contend that the jury verdict against them is not supported by substantial evidence and, therefore, that the district court erred by denying their motion for JNOV. We review de novo the denial of a motion for JNOV. Erickson v. Pierce County, 960 F.2d 801, 804 (9th Cir.), cert. denied, 113 S. Ct. 815 (1992). Without considering the credibility of the witnesses or weighing the evidence, we must determine whether the evidence and its inferences, considered as a whole and viewed in the light most favorable to the nonmoving party, can reasonably support a judgment in favor of the nonmoving party. The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1151 (9th Cir. 1988) (citations omitted). We may not substitute our judgment for that of the jury, but rather must determine whether the verdict is supported by substantial evidence. Id. A patient committed to a state mental institution has a constitutionally protected liberty interest in personal security and reasonably safe conditions of confinement. Youngberg v. Romeo, 457 U.S. 307, 324 (1982). In a section 1983 action against officials of such an institution:

[A] decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

Id. at 323 (footnote omitted).

A. Case Against Dr. Kostrubala

The case against Dr. Kostrubala focused primarily on Duncan's receipt in March 1985 of a "P-card," which conferred on him the privilege of moving about the grounds. Duncan committed the murder while out on the grounds pursuant to this P-card. Dr. Kostrubala argues that there was insufficient evidence to establish that he participated in the decision to grant grounds privileges to Duncan, and that therefore he did not fail to exercise professional judgment. We reject this argument.

The evidence at trial demonstrated that on December 13, 1984, Duncan's P-card was revoked for ninety days because he was found "to be out of bounds with a female visitor." After this ninety-day period, Duncan's P-card was reissued. A written policy at NSH required that, before a revoked P-card was reissued, the patient had to be evaluated by his treatment team, and reissuance of the card had to be approved by the program director. Duncan's file, however, contained no record of any such assessment prior to the reissuance of his P-card on March 13, 1985. The plaintiffs' theory at trial was that the reissuance of Duncan's P-card without, at a minimum, compliance with the NSH policy, represented gross negligence and a substantial departure from accepted professional judgment. The plaintiffs presented substantial evidence that Kostrubala had the ultimate responsibility for the issuance of P-cards to penal code patients, and that Kostrubala was familiar with Duncan and his propensity for violence. The plaintiffs also presented evidence that, approximately two weeks before Conners's death, Kostrubala told the executive director of NSH that he was surprised that Duncan had a P-card; Kostrubala further stated that he intended to "pull" the card. Moreover, the plaintiffs provided expert testimony that supported their claim that Dr. Kostrubala's failure to prevent the reissuance of Duncan's P-card in March 1985 constituted such a substantial departure from accepted professional judgment that it was not based on professional judgment. This evidence and its inferences, viewed in the light most favorable to the plaintiffs, reasonably supports the verdict against Kostrubala. Accordingly, we conclude that the district court did not err by denying his motion for JNOV. See The Jeanery, 849 F.2d at 1151.*fn1

B. Case Against Dr. O'Connor

Dr. O'Connor was the Executive Director of NSH from October 1977 until October 1983, when he became the Director of the California Department of Mental Health. The plaintiffs' case against O'Connor was based on his failure in 1982-1983 to transfer Duncan from NSH to Atascadero State Hospital ("Atascadero"), a higher-security institution. Dr. ...


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