              IN THE SUPREME COURT OF IOWA
                                No. 13–0257

                           Filed January 23, 2015


MARY E. JACK, Individually and as Parent and Next Friend of
ELLA JACK and OWEN JACK and LAWRENCE LAIRD JACK III,
Individually,

      Appellants,

vs.

JENNIFER R. BOOTH,

      Appellee,

JOHN GERRAD SWEETMAN,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Douglas F.

Staskal, Judge.



      A physician seeks further review of a court of appeals decision

reversing the district court’s judgment and granting a new trial to the

plaintiffs after the physician’s codefendant rendered medical assistance

to a juror during trial.     DECISION OF THE COURT OF APPEALS

AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE

REMANDED.



      Eric M. Updegraff of Stoltze & Updegraff, P.C., Des Moines, for

appellants.
                                   2



     Robert C. Rouwenhorst of Rouwenhorst & Rouwenhorst, P.C.,

West Des Moines (until withdrawal), then Frederick T. Harris and

Stacie M. Codr of Finley, Alt, Smith, Scharnberg, Craig, Hilmes &

Gaffney, P.C., Des Moines, for appellee Sweetman.



     Thomas J. Shomaker and Mark M. Schott of Sodoro, Daly,

Shomaker & Selde, PC, LLO, Omaha, Nebraska, for appellee Booth.
                                    3

MANSFIELD, Justice.

      A juror fainted in the middle of a medical malpractice trial against

two physicians. One of the physicians rose to assist her immediately.

The juror quickly recovered and was excused.          The district court

interviewed the remaining jurors regarding the impact of this incident,

denied the plaintiffs’ motion for mistrial, and ordered the trial to

continue.     The jury ultimately returned defense verdicts for both

physicians.   The district court entered judgment on the verdicts.    The

court of appeals, however, reversed, ordering a new trial as to both

defendants.

      The physician who did not help the stricken juror now seeks

further review of the court of appeals decision.      Thus, we have to

determine whether the district court abused its discretion when it

allowed the jury verdict to stand as to the physician who had not

rendered medical assistance. We conclude it did not. The claims against

the two physicians were distinct and arose out of separate acts of alleged

malpractice at different times. We do not believe plaintiffs’ arguments

that one physician defendant’s actions engendered a sense of undue

goodwill and respect in the jury toward the medical profession generally

are a sufficient basis for overturning the district court’s on-the-scene

exercise of discretion. We therefore affirm the judgment of the district

court and vacate the decision of the court of appeals on this point. We

remand to the district court for further proceedings consistent with this

opinion.

      I. Background Facts and Proceedings.

      On February 17, 2009, Mary E. Jack was admitted to Mercy

Medical Center in Des Moines, complaining of pelvic pain.        She was

thirty-five weeks pregnant. Upon her arrival, Jack was diagnosed with
                                          4

high blood pressure and preeclampsia. Dr. Jennifer Booth, an obstetrics

and gynecology specialist, was on call and performed an emergency

cesarean      section   after   attempting    to   initiate   preterm    labor   and

discovering a prolapsed umbilical cord.            As a result of the cesarean

section, Jack suffered blood loss, and her blood pressure dropped.

       The next day, February 18, Dr. Booth performed a second surgery

to treat Jack’s low blood pressure and blood loss. During this surgery,

Jack underwent a full hysterectomy.

       In preparation for the second surgery, Dr. John Sweetman, an

anesthesiologist, inserted an IV into Jack’s right arm.                 During that

second surgery, Jack’s arm became discolored and swollen, apparently

because the IV infiltrated. 1

       Later on February 18, Jack underwent a third surgery to relieve

internal pressure in her right arm and hand. On February 24, Jack went

through a fourth and final surgery to close the incision made earlier to

relieve the arm and hand pressure.

       On December 30, 2010, Jack, individually and on behalf of her

children, sued both Dr. Booth and Dr. Sweetman. 2 The petition alleged

in the first count that Dr. Booth was negligent in performing the
cesarean section and monitoring Jack’s postoperation bleeding and

complications.     In the second count, Jack alleged Dr. Sweetman had

acted negligently with respect to the infiltrated IV in Jack’s right arm. 3

       1An   infiltrated IV occurs when the fluid from an IV that is supposed to be
entering the vein enters tissue outside the vein instead. Dr. Sweetman did not deny
that the IV in Jack’s right arm infiltrated but contended it was not the result of his
negligent or improper monitoring.
       2The Jacks also sued Catholic Health Initiatives—Iowa, Corp. d/b/a Mercy
Medical Center—Des Moines but later dismissed their claims against Mercy and
proceeded only against Dr. Booth and Dr. Sweetman.
       3As  the district court later put it, “Ms. Jack claimed both physicians were
negligent but in independent, unrelated, ways that resulted in two separate injuries.”
                                     5

      In both counts, Jack sought damages for past and future medical

expenses, pain and suffering, loss of body function, loss of wages, future

impairment of earning capacity, and loss of consortium with her

husband and two children. A separate claim for loss of consortium was

included against each defendant on behalf of Jack’s husband, Lawrence.

      Dr. Booth and Dr. Sweetman answered the petition separately.

Each was represented by separate counsel, and each denied having acted

negligently in rendering his or her respective medical services to Jack.

The case proceeded to a jury trial commencing on November 5, 2012.

      On November 7, a juror was taken ill during Dr. Booth’s testimony.

The district court described the situation as follows:

             THE COURT: I just want to make the record clear as to
      exactly what happened because I’m not sure in this
      discussion that there was an actual description of what
      occurred. What occurred was one of the jurors fainted while
      she was sitting in her chair in the jury box, and it wasn’t
      noticed immediately by the court when it was. The juror
      next to her was trying to, you know, revive her, wake her up,
      so to speak.

             At that point everyone in the courtroom noticed what
      was going on. Dr. Sweetman got up from where he’s sitting
      in the gallery and went over into the jury box and began
      treating, so to speak, the juror. And he was talking to her,
      and . . . was assessing her condition, and she clearly had
      fainted and was ill. And she eventually laid down on one of
      the pews in the courtroom, and within the next 15 or 20
      minutes she was okay, and we took our lunch break. When
      this happened the rest of the jurors were obviously all
      present sitting in the -- or standing and sitting in the jury
      box, obviously observing what was going on. But within two
      or three minutes of this beginning, the court directed the
      rest of the jurors to go to their lounge and they did. So they
      did not observe the entire -- or were not in the courtroom
      during the entire episode.

      After this incident, the plaintiffs orally moved for a mistrial.   As

plaintiffs’ counsel explained,
                                         6
             Personally I’m not trying to criticize Dr. Sweetman. He
       did exactly what I would hope he would do in that
       circumstance. Obviously, the juror’s health and well-being
       [are] much more important than this jury trial, and we’re
       glad that he did that. But it does create a problem for our
       case where we don’t think that jurors who have witnessed
       him in action, for lack of a better term, are going to be able
       to be unbiased or unprejudiced by that when considering a
       medical malpractice action against him.

       The district court decided to dismiss the juror who had been ill,

but denied the motion for mistrial. It did leave open the possibility of

reconsidering that ruling after the court polled the remaining jurors. The

court then personally inquired of each juror, seeking to ascertain his or

her ability to remain fair and neutral. 4 These interviews occurred in the
presence of counsel but out of the presence of the other jurors. During

the interviews, the court gave counsel the opportunity to ask questions.

After receiving responses from all remaining jurors that they could be fair

and impartial, the district court allowed its prior ruling to stand.

       Before the case was submitted to the jury, the Jacks renewed their

motion for a mistrial. The district court again denied the motion, stating,

“The Court believes the steps it took by removing the juror that Doctor

Sweetman attended to and in individually voir diring the other jurors

indicated that proceeding with the trial with the remaining jurors would
not prejudice the plaintiffs.”

       Jury instruction number 12 stated in part, “You must judge the

acts or omissions of each of the defendants separately.” The jury was

also given separate negligence instructions for each defendant:

                         INSTRUCTION NO. 14

              As to their claim of negligence against Dr. Booth, the
       plaintiffs must prove all of the following propositions:


       4The juror who was excused also was interviewed. She said that she was feeling
better and added that she had been suffering from a stomachache and a headache.
                               7
      1. Dr. Booth was negligent in one or more of the
      following ways:

             (a) by replacing Ms. Jack’s uterus after
             performing a Cesarean section without achieving
             hemostasis; and/or

             (b) by failing to meet the standard of care in her
             monitoring and management of Ms. Jack after
             completing the Cesarean section delivery.

      2. Dr. Booth’s negligence was a cause of damages to
      the plaintiffs.

      3. The nature and amount of the plaintiffs’ damages.

      If the plaintiffs have failed to prove any of these
propositions, they are not entitled to recover any damages
against Dr. Booth. If the plaintiffs have proved all of these
propositions, you will determine what amount of damages
the plaintiffs are entitled to recover, as explained in
Instruction No. 16.

                   INSTRUCTION NO. 15

     As to their claim against Dr. Sweetman, the plaintiffs
must prove all of the following propositions:

      1. Dr. Sweetman was negligent in failing to properly
      monitor Ms. Jack during the laparotomy and
      hysterectomy surgery performed by Dr. Booth.

      2. Dr. Sweetman’s negligence was a cause of the
      plaintiff’s damages.

      3. The nature and amount of the plaintiffs’ damages.

      If the plaintiffs have failed to prove any of these
propositions, they are not entitled to recover against Dr.
Sweetman.     If the plaintiffs have proved all of these
propositions, the plaintiffs are entitled to recover some
amount of damages against Dr. Sweetman as explained in
Instruction No. 16.

                   INSTRUCTION NO. 16

      ....

      The phrase “damages related to the Cesarean section”
means damages related to the procedures performed on Ms.
Jack, and the care and treatment provided to her, by Dr.
Booth.
                                   8
           The phrase “damages related to Ms. Jack’s hand and
     arm” means damages related to the procedures performed on
     Ms. Jack, and the care and treatment provided to her, by Dr.
     Sweetman.

      The verdict form likewise separated the claims against the two
doctor defendants:

     Question No. 1: Was Dr. Booth negligent by replacing Ms.
     Jack’s uterus after performing a Cesarean section, without
     achieving hemostasis? (Answer “yes” or “no”).

           ....

     Question No. 2: Was Dr. Booth negligent by failing to meet
     the standard of care in her monitoring and management of
     Ms. Jack after completing the Cesarean section delivery?
     (Answer “yes” or “no”).

           ....

     [If your answer is “no” to both Questions No. 1 and 2, do not
     answer Questions No. 3, 4 or 5 and go to Question No. 6.
     Otherwise, go to Question No. 3]

     Question No. 3: Was Dr. Booth’s negligence a cause of any
     item of damage to the plaintiffs? (Answer “yes” or “no”).

           ....

     Question No. 4:

     As to each item below . . . , what amount of damages related
     to the Cesarean section (this phrase is defined in Instruction
     No. 16), if any, did the plaintiffs sustain that were caused by
     the negligence of Dr. Booth? . . .

           ....

     Question No. 5:

     NOTE: DO NOT ANSWER THIS QUESTION IF YOU HAVE
     ANSWERED “NO” TO QUESTION NO. 1.

     As to each item below . . . , what amount of damages related
     to the Ms. Jack’s hand and arm (this phrase is defined in
     Instruction No. 16), if any, did the plaintiffs sustain? . . .

           ....

     Question No. 6: Was Dr. Sweetman negligent?           (Answer
     “yes” or “no”).
                                    9
            ....

      [If your answer is “no”, do not answer any more questions
      and sign the verdict form signature page in the appropriate
      place. If your answer is “yes”, go to Question No. 7]

      Question No. 7: Was Dr. Sweetman’s negligence a cause of
      any item of damage to the plaintiffs? (Answer “yes” or “no”).

            ....

      Question No. 8:

      As to each item below . . . , what amount of damages related
      to Ms. Jack’s hand and arm (this phrase is defined in
      Instruction No. 16), if any, did the plaintiffs sustain that
      were caused by the negligence of Dr. Sweetman? . . .

      NOTE: IF YOU HAVE ANSWERED QUESTION NO. 5, YOUR
      ANSWER TO THIS QUESTION MUST BE THE SAME AS
      YOUR ANSWER TO QUESTION NO. 5.

In short, the jury was not asked to apportion fault between the two

doctors. The claims against them were connected only to the extent that

the court directed the jury to include Jack’s hand and arm injuries in the

damages recoverable from Dr. Booth if          the jury concluded the

hysterectomy surgery resulted from her negligence.      This made sense,

because in that event, the surgery and the resulting infiltrated IV would

never have occurred.
      The jury answered “no” to questions 1, 2, and 6, finding no

negligence on the part of either Dr. Booth or Dr. Sweetman. Based on

the verdicts, the court entered judgment for both defendants on

November 15.

      On November 29, the plaintiffs filed a motion for a new trial raising

again the incident of the juror who had become ill.         The plaintiffs

asserted that “the warm feelings and regard that the jury gained toward

Dr. Sweetman during this incident created an unfair and prejudicial
                                          10

attitude toward the Plaintiffs’ case.” They sought a new trial as to both

defendants.

       Following briefing and a hearing, the district court denied the

motion on January 28, 2013.              With respect to Dr. Booth, the court

found,

       [T]he court first concludes that the plaintiffs’ motion as to
       the defendant, Dr. Booth, should be denied without a great
       deal of discussion. Dr. Booth did not attend to the ill juror,
       other than to, perhaps, along with others who were in the
       room, offer her a glass of water. There was simply nothing in
       Dr. Booth’s behavior during the incident that could have
       engendered any particular good will in her favor or provided
       a basis for judging her professional competence. 5

       After a more extensive analysis, the district court also denied the

motion for new trial as to the claims against Dr. Sweetman. The court

acknowledged that appellate courts in other jurisdictions had ordered a

mistrial when a defendant physician rendered medical aid to an ill juror,

but declined to find these authorities required a new trial against Dr.

Sweetman in this instance:

       [I]f, as the court understands the current state of the law,
       this is a matter that rests in the exercise of the trial court’s
       discretion, then, in this court’s judgment, this incident was
       simply not so dramatic as to compel the conclusion that it
       would deflect jurors – consciously or otherwise – from
       deciding the case on the basis of their evaluation of the
       evidence.

       The plaintiffs appealed the denial of their motion for a new trial as

to both defendants. We transferred the case to the court of appeals. The


        5At the hearing on the motion for new trial, Dr. Booth submitted three affidavits

from persons who were present in the courtroom, including her own affidavit. All
attested that she had offered no aid to the stricken juror, but simply stepped down from
the witness stand and stood watching with others while Dr. Sweetman rendered
assistance. The Jacks’ attorney recalled that Dr. Booth offered a glass of water to the
juror, but was not certain whether that offer occurred after the other jurors had been
excused from the courtroom. For purposes of this appeal, the Jacks do not claim that
Dr. Booth provided any assistance to the juror.
                                    11

court of appeals reversed and remanded the case for a new trial as to

both Dr. Sweetman and Dr. Booth. Concerning Dr. Booth, the court of

appeals acknowledged she did not provide medical help to the ill juror,

but nevertheless concluded a new trial was warranted as to her:

             We conclude that medical assistance furnished by a
      doctor, who is a party in a medical malpractice case, to a
      juror in the presence of the jury seriously compromises the
      integrity of the trial. Such compromise to the integrity of the
      trial cannot be cured by retrial against some, but not all,
      defendants. We therefore reject Dr. Booth’s request that a
      new trial should not be ordered against her.

      Dr. Booth alone applied for further review, and we granted her

application. Dr. Sweetman did not seek further review of the court of

appeals decision.

II. Standard of Review.

      The scope of our review of a district court’s ruling on a
      motion for new trial depends on the grounds raised in the
      motion. To the extent the motion is based on a discretionary
      ground, we review it for an abuse of discretion.

Pavone v. Kirke, 801 N.W.2d 477, 496 (Iowa 2011) (citation and internal

quotation marks omitted). Here, the Jacks sought a new trial based on

Iowa Rule of Civil Procedure 1.1004, which states in relevant part:

      On motion, the aggrieved party may have an adverse verdict,
      decision, or report or some portion thereof vacated and a
      new trial granted if any of the following causes materially
      affected movant’s substantial rights:

              1.1004(1) Irregularity in the proceedings of the court,
      jury, master, or prevailing party; or any order of the court
      . . . or abuse of discretion which prevented the movant from
      having a fair trial.

            ....

            1.1004(8) Errors of law occurring in the proceedings,
      or mistakes of fact by the court.
                                    12

      Because the statutory grounds asserted by the Jacks are

permissive rather than mandatory, we review the trial court’s ruling for

abuse of discretion. See Pavone, 801 N.W.2d at 496. “In ruling upon

motions for new trial, the district court has a broad but not unlimited

discretion in determining whether the verdict effectuates substantial

justice between the parties.” Iowa R. App. P. 6.904(3)(c). “Generally, we

are reluctant to interfere with a jury verdict and give considerable

deference to a trial court’s decision not to grant a new trial.”   Condon

Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 594 (Iowa 1999).

      III. Analysis.

      We can grant relief only to parties who timely seek further review

after the court of appeals renders a decision. See In re H.S., 805 N.W.2d

737, 744 (Iowa 2011) (“Because Steven did not file a timely application

for further review, the court of appeals decision became final as to him.”

(Internal quotation marks omitted.)); Peppmeier v. Murphy, 708 N.W.2d

57, 62 (Iowa 2005) (holding the party who failed to file an application for

further review waived her right to contest the court of appeals decision).

Thus, whether the district court abused its discretion in denying a new

trial as to the Jacks’ claims against Dr. Sweetman is not before us. The

court of appeals decision reversing the district court and directing a new

trial on those claims has become final.

      This leaves the claims against Dr. Booth. It is possible for a new

trial to be granted as to less than all the defendants involved in a case.

See Olinger v. Tiefenthaler, 226 Iowa 847, 850, 285 N.W. 137, 138 (1939)

(“It is true, as contended by appellant, that the court may, on a motion

for new trial, sustain the motion as to some defendants and deny it as to

others of the defendants . . . .”); Weyer v. Vollbrecht, 208 Iowa 914, 919–

20, 224 N.W. 568, 570 (1929) (upholding grant of a new trial in an
                                    13

alienation of affections case as to some but not all defendants where the

liability could be either joint or several and the evidence did not support

a verdict against two of the defendants); Pearse v. Balm, 152 Iowa 422,

424, 132 N.W. 821, 821 (1911) (stating the trial court was authorized to

grant a new trial as to only those defendants against whom the evidence

was insufficient). Rule 1.1004 also seems to support this outcome. As

noted above, it provides that “[o]n motion, the aggrieved party may have

an adverse verdict, decision, or report or some portion thereof vacated

and a new trial granted.” Iowa R. Civ. P. 1.1004 (emphasis added).

      In Houvenagle v. Wright, a pedestrian who was injured when

struck by a moving car sued both the car’s driver (alleging negligence)

and the dealership that had sold the car (alleging a defective carburetor).

340 N.W.2d 783, 784–85 (Iowa Ct. App. 1983). The jury did not make an

award against either defendant, and the district court ordered a new trial

against the driver only, reasoning there was no evidence the carburetor

had been defective. Id. at 785. The court of appeals upheld the grant of

a new trial as to one defendant only. Id. at 785–86. The court explained,

“In general, a new trial may be granted in favor of any of the parties

where that can be done without affecting the rights of the other parties.”

Id. at 786.

      The foregoing Iowa authority appears to be consistent with the

general rule. See 58 Am. Jur. 2d New Trial § 29, at 102 (2012) (“The

granting of a new trial as to one defendant does not require that the

plaintiff be granted a new trial with regard to claims against another

defendant.”).

      Although this principle was recognized long ago in Iowa, we have

not had occasion to apply it in recent years. Courts in other jurisdictions

have more recently set forth standards for evaluating when it is
                                    14

appropriate for a court to grant a new trial against fewer than all

defendants.   See, e.g., Williams v. Slade, 431 F.2d 605, 608 (5th Cir.

1970) (“[P]artial new trials [as to one defendant and not as to another]

should not be resorted to unless no injustice would result.”); Buffett v.

Vargas, 914 P.2d 1004, 1010 (N.M. 1996) (stating the standard governing

partial new trials should be “ ‘whether there is a clear showing that the

issues in the case are so distinct and separable that a party may be

excluded without prejudice’ ” (quoting Watson v. Navistar Int’l Transp.

Corp., 827 P.2d 656, 682 (Idaho 1992))); Hutson v. Sureddi, 41 P.3d 993,

998 (Okla. Civ. App. 2001) (“[I]n granting a new trial to only one

defendant, a trial court must consider the furtherance of justice and any

potential prejudice to the remaining parties.”).

      In Sheridan v. St. Luke’s Regional Medical Center, the plaintiffs

sued a hospital and pediatrician for the negligent medical treatment their

newborn son received during his first few days of life. 25 P.3d 88, 92, 97

(Idaho 2001).     The trial court determined the jury verdict in the

pediatrician’s favor was against the weight of the evidence and

consequently granted the plaintiffs a new trial as to both the doctor and

the hospital. Id. at 94–95. The hospital argued that the trial court erred

in determining a new trial was warranted against both defendants. Id. at

97. The Idaho Supreme Court explained the standard a court should use

to determine whether a grant of a new trial should apply to all or only

some defendants:

      The test for determining whether a party can be excluded
      from an order for a new trial is whether there is a clear
      showing that the issues in the case are so distinct and
      separable that a party may be excluded without prejudice.

Id.
                                   15

      In Hutson, the Oklahoma court ordered a new trial on the claims

against the defendant doctor after learning he had previously treated one

of the jurors. 41 P.3d at 994–95. Yet the appellate court also directed a

new trial on the claims against the defendant hospital, reasoning, “The

relationship between Hospital and Dr. Sureddi and the duty of care owed

to a patient are so intertwined in this case that it is necessary for the

jury in the new trial to reconsider the conduct of both the hospital and

the surgeon.” Id. at 999.

      In the present case, a new trial could be ordered against Dr.

Sweetman alone.    Dr. Sweetman’s alleged negligence pertained to the

monitoring of an IV in Jack’s arm during the second surgery; Dr. Booth’s

alleged negligence related to treatment decisions before the second

surgery. As the instructions and the verdict forms make clear, the jury

assessed each defendant’s negligence independently.       Dr. Sweetman

could not and did not assert that Dr. Booth had any involvement with

the IV monitoring. Nor did he ask the jury to allocate a percentage of

fault for Jack’s arm and hand injuries to Dr. Booth.      See Iowa Code

§ 668.3(2) (2013). Thus, it would be possible to order a new trial as to

Dr. Sweetman and not as to Dr. Booth without resulting in unfair

prejudice to either the Jacks or Dr. Sweetman.

      There are relatively few reported cases even presenting the

question whether a new trial should be ordered when a physician

defendant treats a juror during trial. Those decisions do not specifically

address the need for conducting a new trial as to other defendants. See,

e.g., Campbell v. Fox, 498 N.E.2d 1145, 1147 (Ill. 1986) (ordering a new

trial against a surgeon who aided a juror during trial where that

physician was the only named defendant); Haukedahl v. St. Luke’s Hosp.,

No. L-92-011, 1993 WL 496681, at *1, *3 (Ohio Ct. App. Dec. 3, 1993)
                                       16

(granting a new trial against the two defendant doctors who assisted an

ill juror, but not discussing whether there were additional codefendants

and whether a new trial would be required as to them).

         For instance, in Heidt v. Argani, the court directed a new trial as to

both the doctor who helped the stricken juror and the medical clinic that

was a codefendant but did not discuss the possibility of only a partial

new trial. 214 P.3d 1255, 1259 (Mont. 2009). In any event, the doctor

was an employee of the clinic.         Id. at 1256.   Similarly, in Reome v.

Cortland Memorial Hospital, where two doctor defendants came to the aid

of the ill juror, the court required a new trial against both of them. 543

N.Y.S.2d 552, 553–54 (App. Div. 1989).

         Our case is distinguishable from the foregoing malpractice cases in

which the courts ordered new trials against all defendants. Those cases

involved a single injury and claims for that injury against both the doctor

who treated the plaintiff and the facility where the treatment took place.

See Sheridan, 25 P.3d at 97; Heidt, 214 P.3d at 1256–57; Hutson, 41

P.3d at 999. Here, however, the alleged negligence of Dr. Sweetman and

that of Dr. Booth arose in different circumstances. There was no legal

relationship, such as an employment or credentialing relationship,

between them.         The jury was asked to and did determine each

defendant’s negligence separately without any weighing of comparative

fault.

         Thus, the issues are not “so intertwined as to necessitate a new

trial for both” defendants.     Sheridan, 25 P.3d at 97. If Dr. Sweetman

must go through a new trial without Dr. Booth, the second surgery

would simply be accepted as medically necessary, and a new jury would
                                           17

then determine whether Dr. Sweetman was negligent in monitoring the

IV during that surgery and, if so, what the resulting damages were. 6

       Having determined that a new trial as to only one defendant is

feasible here, we now need to decide whether that is the correct outcome.

This situation is unlike the cases in which both doctor defendants

provided medical assistance to the stricken juror. Reome, 543 N.Y.S.2d

at 553; Haukedahl, 1993 WL 496681, at *1. Yet the Jacks argue that a

new trial also should have been ordered as to Dr. Booth because “Dr.

Sweetman’s humanitarian efforts benefit anyone in his profession.” 7

       This single assertion is not enough for us to conclude that the

district court abused its considerable discretion in denying the plaintiffs

a new trial against Dr. Booth. Dr. Sweetman was the only person who

actually helped the ailing juror. The district court, which witnessed the

entire scene, found “nothing in Dr. Booth’s behavior during the incident

that could have engendered any particular good will in her favor.”

       Normally, we judge people as individuals, not as members of a

group, or at least we try to follow that approach. It is just as possible

that Dr. Booth’s failure to render care would be held against her as that

Dr. Sweetman’s acts would transfer sympathy to Dr. Booth. 8 And what

about the physician who testified as an expert witness against Dr.

Booth? By plaintiffs’ logic, the jury’s warm feelings would have extended

to him as well. For all these reasons, we cannot find the district court

       6In    other words, consistent with the verdict forms and the actual verdict in the
first trial, Dr. Sweetman could not attempt to apportion fault to Dr. Booth.
       7As  noted above, the court of appeals reasoned that the assistance rendered by
Dr. Sweetman “compromise[d] the integrity of the trial” and “[s]uch compromise to the
integrity of the trial cannot be cured by retrial against some, but not all, defendants.”
Yet these statements beg the question of how, exactly, Dr. Sweetman’s assistance would
have tainted the fairness of the proceedings as to Dr. Booth.
       8We  do not mean to criticize Dr. Booth’s courtroom behavior.       It appears the
situation was under control once Dr. Sweetman began rendering aid.
                                    18

abused its discretion in denying the plaintiffs a new trial on their claims

against Dr. Booth.

      IV. Conclusion.

      For the foregoing reasons, we affirm that part of the judgment of

the district court denying a new trial on the Jacks’ claims against

Dr. Jennifer Booth.    We vacate the court of appeals decision as to

Dr. Booth; however, the court of appeals decision will stand as to Dr.

John Sweetman. We remand this case to the district court for further

proceedings consistent with this opinion.

      DECISION OF THE COURT OF APPEALS AFFIRMED IN PART

AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED

IN PART, REVERSED IN PART, AND CASE REMANDED.
