Appellate argument asks court to limit 'loss of chance' instruction after jury confusion in finger-injury case

Speaker 1, an unidentified advocate in the transcript, told the court the trial judge erred in granting a new trial after a jury asked a question in a case where the plaintiff suffered a severe saw injury and ultimately lost his finger. Speaker 1 said the court had submitted a "loss of chance" instruction at trial and that the resulting new-trial order lists multiple reasons that counsel argues are not supported by the record.

The issue centers on whether the jury's question and subsequent deliberative confusion alone justify setting aside a verdict and whether the loss-of-chance instruction — historically applied in death and serious-prognosis cases — should be broadened to the facts here. Speaker 1 told the bench the record contains conflicting expert testimony about prognosis: plaintiff experts suggested part of the finger would be lost, while defense experts testified the whole finger would not survive, and at least one infectious-disease expert said the finger would have been lost regardless of treatment. Speaker 1 said those conflicts show the jury had factual choices to make and that a judge should not substitute their judgment absent clear harmful error.

Counsel repeatedly invoked precedent (identified in the transcript as Kramer and a Rudolph opinion) that requires a trial court to explain why a verdict is wrong before disturbing a jury's decision. Speaker 1 argued the trial court's order did not sufficiently explain why the jury's verdict could not stand, pointing to a one-page post-note record and limited discussion at the charge conference. On the scope of the loss-of-chance doctrine, Speaker 1 warned that expanding the instruction beyond its traditional confines (for example, death or catastrophic-prognosis cases) would increase jury-charge complexity and doctrinal uncertainty.

Speaker 2 posed clarifying questions during the argument, at one point asking whether counsel sought expansion of the doctrine; Speaker 1 responded that expansion should be constrained by the type of expert evidence described in Kramer (a less-than-50% survivability showing). The transcript includes medical detail described by counsel — references to hand surgeons, a crumbling bone observed at surgery, and competing expert percentages (one opinion referenced roughly 40% survivability; other percentages mentioned in argument included figures like 2% and 20%) — which counsel said made the record particularly fact-bound.

The argument closed with Speaker 1 urging the court not to extend the loss-of-chance instruction in a way that would invite judges or juries to apply it beyond cases where expert evidence meets the threshold described in Kramer. The oral argument transcript does not record a decision; the court's ruling, next briefing step, or eventual opinion are not included in the record provided.