ROBERTO A. LANGE, District Judge.
This Court held a jury trial in this case from August 31 to September 3, 2010. The jury found that the Defendant, orthopedic surgeon Dr. Robert A. Callahan, was not negligent in his treatment of Plaintiff Robin Bair. The treatment in question included a spinal surgery involving placement of pedicle screws and rods into Mr. Bair's back. Plaintiffs moved for a new trial under Rule 59 of the Federal Rules of Civil Procedure, based on two arguments:
(Doc. 87) (internal citations omitted). This Court has conducted a review of the record, considered all arguments of counsel, and now denies Plaintiffs' motion for the reasons explained below.
Authority to grant a new trial under Rule 59 "is fully within the discretion of the district court." Larson v. Farmers Coop. Elevator of Buffalo Ctr., 211 F.3d 1089, 1095 (8th Cir.2000); Lampkins v. Thompson, 337 F.3d 1009, 1013 (8th Cir. 2003) ("[t]he authority to grant a new trial. . . is confided almost entirely to the exercise of discretion on the part of the trial court."). The Eighth Circuit "review[s] the district court's decision for a clear abuse of that discretion." Lampkins, 337 F.3d at 1013. "To win reversal, the moving party must show that the trial court's decision to deny the motion and let the verdict stand results in a miscarriage of justice." Id. (quoting Emmenegger v. Bull Moose Tube Co., 324 F.3d 616, 619 (8th Cir.2003)); see also Maxfield v. Cintas Corp., 563 F.3d 691, 694 (8th Cir.2009) (for a court to order a new trial, movant must establish that a "new trial is necessary to prevent a miscarriage of justice."). "A new trial should be granted only if the evidence weighs heavily against the verdict." Maxfield, 563 F.3d at 694 (citing United States v. Rodriguez, 812 F.2d 414, 417 (8th Cir.1987)).
The Eighth Circuit has specified various bases for granting a motion for a new trial. A motion for a new trial may be;
Children's Broad. Corp. v. Walt Disney Co., 245 F.3d 1008, 1017 (8th Cir.2001) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940)). If such a motion is granted, "[t]he district court must articulate its reasons for granting a new trial to permit meaningful review of the decision." Id. "When reviewing a jury verdict to decide whether it is against the weight of the evidence, a district court conducts its own review of the evidence to determine whether a miscarriage of justice has occurred."
Plaintiffs Robin Bair and Francis Zephier, husband and wife, filed a Complaint (Doc. 1) against Dr. Robert A. Callahan, alleging medical negligence arising from a failed back surgery on Mr. Bair performed by Dr. Callahan on September 27, 2007, and the failure by Dr. Callahan to subsequently diagnose and remove pedicle screws that were allegedly misplaced during the surgery. (Doc. 1; T. 35). Ms. Zephier brought a loss of consortium claim, alleging injury to her relationship with Mr. Bair as a result of Dr. Callahan's acts and omissions. (Doc. 1). Dr. Callahan practiced as a board certified orthopedic surgeon at the Yankton Medical Clinic during the period in question. (T. 362-65).
Prior to and during trial, Plaintiffs sought to introduce evidence — through the testimony of Plaintiffs' retained expert Dr. Stanley Gertzbein, the deposition testimony of Dr. Quentin Durward who performed surgery on Mr. Bair and other former patients of Dr. Callahan, and examination of Dr. Callahan himself — of Dr. Callahan's treatment at the Yankton Medical Clinic of Gail Uhing, Jacqueline Nohr, Douglas Haar, and Edward Meng. Each of those four patients brought lawsuits against Dr. Callahan in the United States District Court for the District of South Dakota. See Uhing v. Callahan, 4:08-cv-04200-KES; Nohr v. Callahan, 4:09-cv-04040-RAL; Haar v. Callahan, 4:08-cv-04123-LLP; Meng v. Callahan, 4:09-cv-04035-RAL. The Meng
At the pretrial conference and motion hearing held on August 27, 2010, this Court reserved ruling on most of the motions in limine concerning Dr. Callahan's treatment of other patients. (Doc. 66, at 4). This Court also ruled that depositions generated in the other lawsuits brought against Dr. Callahan could be used only for impeachment purposes, rather than to establish that Dr. Callahan had been sued on other occasions. Id.
Following voir dire, this Court told the parties that it likely would exclude any evidence of Dr. Callahan's treatment of other patients. Accordingly, the Plaintiffs did not discuss that evidence during opening statements. At trial, Plaintiffs called
Dr. Callahan was recalled to the stand during Defendant's case. Between the end of Defendant's direct examination and the beginning of Plaintiffs' cross-examination of Dr. Callahan, Plaintiffs argued that the disputed evidence of Dr. Callahan's past treatment should be admitted for impeachment purposes because Dr. Callahan testified regarding his experience, training, knowledge, and expertise, specifically with regard to spinal fusion surgery involving the placement of pedicle screws. Dr. Callahan's testimony, however, included only basic information about his medical education and training,
(T. 404). Plaintiffs' counsel then asked that single question on cross-examination, to which Dr. Callahan responded, "Yes." (T. 405).
Outside the hearing of the jury, Plaintiffs made an offer of proof of additional testimony by Dr. Gertzbein and a portion of Dr. Durward's videotaped testimony that was not played before the jury. That portion of Dr. Durward's deposition transcript included his opinions concerning Dr. Callahan's medical treatment of Haar and Uhing, whom Dr. Durward also treated with corrective surgery following their surgeries with Dr. Callahan. In this portion of the videotape, Dr. Durward testified that Dr. Callahan had misplaced pedicle screws and failed to correct such misplacements while performing back surgeries on Haar and Uhing. (Doc. 58). Plaintiffs also called Dr. Gertzbein to make an offer of proof regarding his expert opinions concerning other fusion surgery patients treated by Dr. Callahan. Dr. Gertzbein explained that, based on his review of the medical records of Robin Bair, Edward Meng, Jackie Nohr, and Doug Haar, Dr. Callahan misplaced multiple pedicle screws and failed to identify and correct misplaced screws in all of their surgeries, for a total of 13 misplaced pedicle screws out of 22 pedicle screws
The back surgery performed by Dr. Callahan on Mr. Bair was to be a bilateral lumbar fusion. (T. 66-67). For this surgery, Dr. Callahan planned to insert four pedicle screws into Mr. Bair's back: 1) on the right side of the L5 vertebrae; 2) on the left side of the L5 vertebrae; 3) on the right side of the SI vertebrae; and 4) on the left side of the SI vertebrae.
Dr. Callahan initially placed a pedicle screw on the right side of the L5 level, did not feel as if it had sufficient bone purchase, removed that screw, and instead placed a screw on the right side at the L4 level. (T. 69-72). Dr. Callahan testified that when surgery began, he fully intended to fuse the L4 level, but he did not know whether a pedicle screw insertion would be necessary. (T. 71). Because of Mr. Bair's size, Dr. Callahan thought a possibility existed that a screw at the L4 level would have been necessary. (T. 71). The Consent Form for the surgery indicated that it would be L4 to SI. (T. 141). Dr. Gertzbein acknowledged that the pedicle screw on the right at the L4 level was placed within the pedicle. (T. 188). Dr. Gertzbein, however, criticized Dr. Callahan's failure to place the screw properly within the L5 pedicle.
Dr. Callahan testified that the screw positioned at L5 on the left side was "well positioned in the pedicle, with solid bone fixation all around," "with good purchase of the bone, giving what would be good stability." (T. 80-81). Plaintiffs' expert, Dr. Gertzbein, initially opined based on an x-ray
Plaintiffs' witnesses testified that both screws at the SI level were misplaced and that SI and S2 nerve root irritation resulted. (T. 34, Dr. Durward); (T. 153-60, Dr. Gertzbein). Dr. Cusick testified that neither of the sacral screws caused any damage
Dr. Callahan testified that following surgery, x-rays demonstrated "good position of [Mr. Bair's] internal fixation and bone graft." (T. 392). Dr. Callahan maintained, consistent with Mr. Bair's medical records, that Mr. Bair did not report pain different from what would be expected from someone recovering from such a surgery. Dr. Callahan testified that none of the screws were in contact with a nerve root, and that if screws were abutting a nerve root, then Mr. Bair would have exhibited the symptoms of screaming and unrelenting pain, which he did not. (T. 87-90). Dr. Callahan attributed Mr. Bair's pain to scar tissue that developed post-operatively, which may cause radicular pain after surgery. (T. 93, 97). Mr. Bair, however, testified to experiencing extreme pain after the surgery and until Dr. Durward's corrective surgery.
Dr. Callahan testified that he advised Mr. Bair of the risks associated with lumbar fusion surgery, specifically "nerve injury, failure of the hardware to work, failure of the fusion to take, and the need for subsequent surgery or treatment." (T. 375-76). After receiving this advice, Mr. Bair signed a Consent Form to proceed with the surgery. (T. 375-76). Dr. Cusick supported how Dr. Callahan had advised Mr. Bair concerning surgical intervention. (T. 444).
From an x-ray taken during one of Mr. Bair's follow-up visits, Dr. Callahan discovered that a rod had become detached from one of the pedicle screws, which is a risk of the surgery. Dr. Callahan testified that the rod could have detached due to Mr. Bair's size or causes other than medical malpractice. (T. 85-86). Dr. Cusick agreed that the rod failure was an instrumentation failure and not reflective of a deviation from the standard of care. (T. 447). Plaintiffs focused their claim of malpractice on Dr. Callahan's positioning of pedicle screws and failure to detect mispositioned screws, rather than on the disconnected rod. Because of the detached rod, Dr. Callahan discussed doing a second surgery with Mr. Bair. Mr. Bair ultimately underwent a second surgery performed by Dr. Durward, during which Dr. Durward removed all of the hardware and screws placed by Dr. Callahan and placed new pedicle screws and rods.
Mr. Bair's back did not fuse after either surgery, and thus the surgeries failed to achieve their intended result. However, expert testimony established that a nonunion is not necessarily malpractice or reflective of a breach of the standard of care, due to the inherent risks of the procedure. (T. 199, Dr. Gertzbein); (T. 460-61, Dr. Cusick).
Defendant also presented evidence that Mr. Bair's symptoms dated back to 1998. (T. 178). Defendant suspected that the failed fusion resulted from a variety of factors including Mr. Bair's body weight, the manner in which he carries his weight, his underlying diabetes, and possible genetic or metabolic problems. Dr. Gertzbein concurred that an individual's weight and diabetes may reduce fusion rates to some degree. (T. 144). Dr. Cusick also testified that Mr. Bair's size and diabetes affected Mr. Bair's lower back condition. (T. 434-436). Mr. Bair presented evidence that misplaced pedicle screws may contribute to the failure of the fusing of the L5 and SI vertebrae.
In sum, through the testimony of Dr. Gertzbein, Dr. Durward, and Mr. Bair, Plaintiffs presented a case that Dr. Callahan was negligent. Dr. Callahan, however, disputed Plaintiffs' claims and presented competing evidence, including
Plaintiffs contend that they were denied a fair trial by exclusion of evidence of Dr. Callahan's surgeries on Uhing, Haar, Meng, and Nohr. According to Plaintiffs, such evidence was relevant to show that Dr. Callahan did not have the requisite knowledge and skill to perform pedicle screw surgery on Mr. Bair's spine. As a result, Plaintiffs argue that such evidence should have been admitted under Rule 404(b).
Rule 404(b) states:
Fed.R.Evid. 404(b). Thus, evidence of prior bad acts, though not admissible to show that a person acted in conformity therewith, is admissible if probative of some other purpose, such as knowledge. Fed. R.Evid. 404(b).
The Eighth Circuit has articulated a four-part test for admissibility under Rule 404(b): "The evidence must be 1) relevant to a material issue; 2) similar in kind and not overly remote in time to the charged crime; 3) supported by sufficient evidence; and 4) such that its potential prejudice does not substantially outweigh its probative value." Am. Family Mut. Ins. Co. v. Miell, 569 F.Supp.2d 841, 848 (N.D.Iowa 2008) (citing United States v. Williams, 308 F.3d 833, 837 (8th Cir.2002)); see also United States v. Shillingstad, 632 F.3d 1031, 1034-35 (8th Cir.2011); United States v. Turner, 104 F.3d 217, 222 (8th Cir.1997); United States v. Aranda, 963 F.2d 211, 215 (8th Cir.1992). Plaintiffs contend that the Court erred by not expressly weighing each of the four parts when explaining its decision to exclude all evidence of prior failed surgeries (except for the one question to Dr. Callahan concerning whether he had ever previously misplaced pedicle screws while doing surgery at Yankton Medical Clinic). Plaintiffs argue that evidence of Dr. Callahan's inability to correctly perform other pedicle screw back surgeries while practicing at Yankton Medical Clinic is relevant to establish his lack of knowledge and competence to safely perform such surgeries and, therefore, satisfies the Eighth Circuit requirements for admission under Rule 404(b). See In re Yemmanur, 447 N.W.2d 525, 528 n. 3 (S.D.1989) ("In performing professional services for a patient, a physician has the duty to have that degree of learning and skill ordinarily possessed by physicians of good standing engaged in the same type of practice in the same or similar locality.") (internal citations omitted).
This Court did not expressly consider on the record the four-part test, nor did counsel urge the Court to separately consider each factor on the record. This Court, however, did expressly consider the language of Rule 404(b) when deciding to limit Plaintiffs to a single question about Dr. Callahan's treatment of other patients. Considering the four factors expressly
Plaintiffs assert that the other instances of alleged malpractice go to Defendant's "knowledge." Rule 404(b) does not provide an exhaustive list of purposes for which other acts may be admissible, but of the examples in Rule 404(b), Plaintiffs point only to "knowledge." Here, the other acts evidence proffered by the Plaintiffs arguably might be relevant to suggest a possible lack of "knowledge," but the evidence here does not fit with cases allowing such evidence as relevant to "knowledge." See 22 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 5245 (1978 & Supp. 2010). In reality, Dr. Callahan had the knowledge to perform the surgery;
The potential of the proffered other acts evidence for unfair prejudice, confusion of the issues, misleading the jury, and considerations of undue delay substantially outweighed the probative value of the preferred evidence. Had the evidence been admitted, there would have been mini-trials about Dr. Callahan's prior surgeries on Haar, Uhing, Nohr, and Meng. Despite these cases being defended by the same law firm, Dr. Callahan's counsel stated that they were not prepared for such mini-trials.
Several courts have excluded evidence similar to that which Plaintiffs sought to introduce. See Lai v. Sagle, 373 Md. 306, 818 A.2d 237, 247 (2003) (noting that "[t]he fact of prior litigation has little, if any, relevance to whether [defendant] violated the applicable standard of care in the immediate case."); Laughridge v. Moss, 163 Ga.App. 427, 294 S.E.2d 672, 674 (1982) (holding that the trial court did not err in disallowing evidence of alleged previous act of medical malpractice against defendant, noting that "[t]he general rule in a suit for negligence is that evidence of similar acts or omissions on other and different occasions is not admissible."); Cerniglia v. French, 816 So.2d 319, 322-25 (La. App.2002) (holding that evidence of prior similar acts was not proof of medical malpractice or whether the doctor lacked the proper degree of knowledge or skill); Persichini v. William Beaumont Hosp., 238 Mich.App. 626, 607 N.W.2d 100, 105-06 (1999) (holding that mistrial was warranted for trial court allowing questions concerning prior malpractice lawsuits against witness, because "evidence of prior malpractice actions against a witness is not relevant to the witness' competency or knowledge."); Jones v. Tranisi, 212 Neb. 843, 326 N.W.2d 190, 192 (1982) (holding that evidence of prior similar act was not relevant for the purpose of proving doctor's negligence in performing operation at issue on particular occasion). Authority also exists to support the exclusion of evidence of a doctor's success or failure rates. Wlosinski v. Cohn, 269 Mich.App. 303, 713 N.W.2d 16, 21-22 (2005) ("[B]are numerical success rates are not, in themselves, evidence that a doctor did anything wrong.").
Plaintiffs contend that one comment by the Court suggested misinterpretation of Rule 404(b)'s status as a rule of inclusion. See United States v. Jones, 990 F.2d 1047, 1050 (8th Cir.1993) ("Rule 404(b) is considered a rule of inclusion, precluding only evidence that is relevant solely to the defendant's character.") (internal quotation omitted); United States v. Sykes, 977 F.2d 1242, 1246 (8th Cir.1992) ("this court views Rule 404(b) as a rule of inclusion"). At trial, the Court stated, "generally this is not admissible evidence."
(T. 402). Thus, the Court made the statement while discussing why the evidence would be inadmissible under part four of
Plaintiffs argue that the risk of minitrials would have been minimal. In support, Plaintiffs noted that this evidence was admitted under Rule 404(b) in the Haar case,
Plaintiffs finally argue that exclusion of the proffered evidence was prejudicial to Plaintiffs, such that admission upon retrial "would be likely to produce a different result." See Moses.com v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1058-59 (8th Cir.2005) (when considering a motion for new trial, "[a] trial court must determine whether an evidentiary ruling was so prejudicial as to require a new trial which would be likely to produce a different result."). Plaintiffs argue that the excluded evidence was critically important as a central piece of the case, and that Dr. Callahan left a false impression that his inability to safely perform the back surgery on Robin Bair either was an aberration or attributable to various physical characteristics of the patient himself. If the evidence were to be admitted at a new trial, according to Plaintiffs, a jury would conclude that the failed surgery was not an isolated aberration, but rather the direct result of Dr. Callahan's documented lack of knowledge and inability to safely perform this type of surgery during his eight-month tenure at Yankton Medical Clinic. Plaintiffs overlook that Dr. Callahan admitted that he had failed to properly place pedicle screws in other surgeries and that Plaintiffs' counsel then used that concession in closing argument to suggest that Dr. Callahan was negligent. (T. 543). Plaintiffs also overlook that the admission of additional evidence of misplaced pedicle screws would have allowed for Dr. Callahan to testify about his history of successful surgeries and potentially to call satisfied patients and others to testify about his care and performance of surgeries on other patients. Thus, when considering all the evidence, this Court cannot conclude that the other acts evidence would have likely produced a different jury verdict.
At trial, Plaintiffs relied heavily on the case of Kostel v. Schwartz, 2008 S.D. 85, 756 N.W.2d 363, to support admission of the other acts evidence. The ruling of this Court to limit Plaintiffs' questioning of Dr. Callahan about other acts evidence was consistent with Kostel.
In Kostel, the Supreme Court of South Dakota confronted a similar circumstance. Plaintiff Kostel brought a medical malpractice claim against defendant Dr. Schwartz, a neurosurgeon, related to a spinal surgery. 2008 S.D. 85, ¶¶ 1-2, 756 N.W.2d at 367. At trial, the jury found in favor of Kostel and awarded damages of $556,962.96. Id. at ¶¶ 6-7, 756 N.W.2d at 368-69. Both parties appealed and alleged error as a result of various evidentiary
Id. at ¶ 26, 756 N.W.2d at 374-75. The Supreme Court of South Dakota found that the trial court did not abuse its discretion when permitting Kostel to ask the three questions and admitted Dr. Schwartz's answers under South Dakota Rule of Evidence 404(b), which is substantially similar to Rule 404(b) of the Federal Rules of Evidence. Id. at ¶ 31, 756 N.W.2d at 376; compare Fed.R.Evid. 404(b) with S.D.C.L. § 19-12-5. In reaching this decision, the Court noted that, "[f]rom Dr. Schwartz's affirmative answers to the three questions, there was sufficient evidence to reasonably conclude that the jury could find that he had made prior mistakes." Id. at ¶ 31, 756 N.W.2d at 376.
Another issue on appeal in Kostel concerned whether the trial court abused its discretion when precluding Dr. Schwartz from testifying to his training, experience, and knowledge without opening the door to the disclosure of other allegations of malpractice and associated disciplinary proceedings. Id. at ¶ 8, 756 N.W.2d at 369. Dr. Schwartz moved in limine to exclude evidence or testimony concerning other pending malpractice suits and South Dakota State Board of Medical and Osteopathic Examiners proceedings against him. Id. at ¶¶ 10-11. 756 N.W.2d at 369-70. The trial court granted the motion, but conditioned the exclusion of evidence "on Dr. Schwartz refraining from offering any testimony about his training and experience, or opinions as to the applicable standard of care." Id. Dr. Schwartz was permitted to testify about the surgery he performed on Kostel. Id. On appeal, Dr. Schwartz argued that an inquiry into other pending malpractice cases or board proceedings would violate South Dakota's version of Rule 608(b). Id. at ¶ 13, 756 N.W.2d at 370. Recognizing that "where a witness makes an issue of his credibility by favorable direct testimony, he opens the door to impeachment evidence on cross-examination," Id. at ¶ 20, 756 N.W.2d at 373 (citation omitted), the Court found "no prejudice in the trial court's conditional exclusion of evidence related to the other pending malpractice actions and Board proceedings." Id. at ¶¶ 20-22, 756 N.W.2d at 373-74. In reaching its decision, the Court noted that Dr. Schwartz's position was inappropriate because, "had Dr. Schwartz testified as he proposed, Kostel's inquiry on cross-examination would have been based, not on allegations, but rather on Dr. Schwartz's own admissions of malpractice" in deposition
In the case at bar, this Court's rulings were consistent with Kostel. The proffered other acts evidence consisted of allegedly misplaced pedicle screws in spinal surgeries conducted by Dr. Callahan in surgeries performed close in time to Mr. Bair's surgery. By allowing Plaintiffs to ask Dr. Callahan whether he had misplaced pedicle screws on other patients while doing surgery at Yankton Medical Clinic, along with Dr. Callahan's affirmative answer, there was sufficient evidence for the jury to infer that Dr. Callahan had made prior mistakes.
This Court's ruling that Dr. Callahan's testimony did not open the door to detailed cross-examination concerning the other acts evidence also is supported by Kostel. Unlike Dr. Schwartz in the Kostel case, Dr. Callahan had not admitted to any malpractice previously. Instead, Dr. Callahan consistently has maintained that he has not committed malpractice. Dr. Callahan testified only to basic information about his medical education and training, his practice, his board certification, the advent of the use of pedicle screws, and his training on the use of pedicle screws. Dr. Callahan's testimony did not open the door to detailed cross-examination concerning allegations of prior malpractice under Rule 404(b) or 608(b).
As a separate basis for a new trial, Plaintiffs argue that the jury's verdict was contrary to the clear weight of the evidence. The Eighth Circuit has held that "[t]he district court may order a new trial if convinced the verdict goes against the clear weight of the evidence or where a miscarriage of justice will result." Schooley v. Orkin Extermination Co., Inc., 502 F.3d 759, 768 (8th Cir.2007); see also Simco v. Ellis, 303 F.3d 929, 932-33 (8th Cir.2002) (affirming trial court's granting of a motion for a new trial because "[i]t was a miscarriage of justice for the jury to conclude that the defendants were not at fault in causing the fatal crash or that the accident was unavoidable."). "When reviewing a jury verdict to decide whether it is against the weight of the evidence, the district court conducts its own review of the evidence to determine whether a miscarriage of justice has occurred. However, the trial judge may not usurp the functions of the jury, which weighs the evidence and credibility of witnesses." Boesing, 540 F.3d at 890. In Simco, the Eighth Circuit affirmed the district court's granting of a motion for a new trial because defendant truck driver's negligence "was readily apparent from the uncontroverted evidence at trial," and the district court "did not abuse its discretion in deciding that a new trial was required to avoid a miscarriage of justice." 303 F.3d at 933.
Under Plaintiffs' view of the evidence, the jury should have found that Dr. Callahan misplaced three out of four pedicle screws in Mr. Bair's spine during the surgery. If the jury had chosen not to credit the testimony of Dr. Callahan and Dr. Cusick, there certainly was ample evidence to support a Plaintiffs' verdict. However, if the jury credited the testimony of Dr. Callahan and Dr. Cusick and the evidence presented by Dr. Callahan, then the jury reasonably could have found that the evidence and testimony at trial did not establish Dr. Callahan's negligence by the greater convincing force of the evidence. Ultimately, the jury determined that the expert testimony at trial did not establish negligence on the part of Dr. Callahan by
For the foregoing reasons, it is hereby
ORDERED that Plaintiffs' motion for a new trial (Doc. 87) is denied.
