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Veterinarian Malpractice Damages Award Upheld

Posted on Thursday, May 17, 2018

In this veterinary malpractice case, Elvin v Gubert, DVM, No. 326563 and 326566, the Michigan Court of Appeals held that the trial court did not err in calculating damages, instructing the jury, or determining sanctions.

FACTS: The defendant-veterinarian, Karl Gubert, DVM, performed a castration on Larry Elvin’s horse, a two-year-old Pennsylvania Standardbred named Abundance Star. Shortly after the procedure, the horse seized-up, stopped breathing and died. The cause of death was inconclusive, but it was noted in the necropsy that the horse had a small and diseased liver.

Elvin sued Gubert, claiming he hurried the procedure, failed to perform a proper physical and failed to properly monitor the horse during the procedure leading to the death of the horse. Gubert claimed he followed the Standard of Care and that it was the diseased liver that caused the death.

At trial, there was testimony regarding horse racing. The experts agreed that horse racing in Michigan was dead, however, Abundance Star, a Pennsylvania Horse, could race in that state where gaming was state sponsored. The possibility of racing was reflected in the plaintiff’s expert appraisal of the horse, which was $100,000. Defendant’s expert originally valued the horse at $6,600, however, when he learned of the liver disease, he adjusted the value to $500.

The jury found Gubert professionally negligent and awarded Elvin $80,000. The trial court denied Gubert’s motion for a new trial (remittitur) and added $118,049 in case evaluation sanctions to the $80,000 award for a total of $198,049 and an additional $107,121 in attorney fees.

Gubert appealed.

The COA rejected Defendant’s arguments as follows:

  1.  Defendant’s argument that his motion for a new trial should have been granted because of the excessive damages. After reviewing outstanding case law, the COA held the measure of damages was properly limited to the horse’s fair market value at the date of death and was not remote, contingent or speculative.
  2. Defendant’s argument that the trial court was wrong to use Mich Civil Jury Instruction 12.01, which allowed the jury to infer negligence from lack of record keeping. Defendant’s own expert agreed that failure to keep proper or any records was below the standard of care.
  3. Defendant’s argument that the trial court’s attorney’s fee award was based on exorbitant hourly rate—COA held the court properly looked at empirical data as well as the attorneys’ skill, experience and reputation.

The trial court opinion was affirmed.


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