UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RUTH S. DANIEL,
Plaintiff-Appellee,

v.

DAVID C. PEARCE, M.D.,

Defendant-Appellant,
                                                                   No. 99-1405
and

ROGER W. JONES, M.D.; DANIEL G.
JENKINS, M.D.; WILLIAMSBURG
OBSTETRICS AND GYNECOLOGY, P.C.,
a Virginia Corporation,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
James E. Bradberry, Magistrate Judge.
(CA-96-24-4)

Argued: April 7, 2000

Decided: April 28, 2000

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Carolyn Porter Oast, HEILIG, MCKENRY, FRAIM &
LOLLAR, Norfolk, Virginia, for Appellant. Henry London Anderson,
Jr., ANDERSON, DANIEL & COXE, Wrightsville Beach, North
Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ruth Daniel brought suit for professional malpractice in the East-
ern District of Virginia against her obstetrician, David Pearce, M.D.,
and his associates, Roger Jones, M.D., and Daniel Jenkins, M.D., and
their professional group practice corporate entity, Williamsburg
Obstetrics & Gynecology, P.C. ("Williamsburg Obstetrics"). In her
lawsuit, Ms. Daniel alleged medical malpractice by her doctors' fail-
ure to diagnose and appropriately treat her preterm labor while she
was pregnant with twins. At the conclusion of the trial on October 5,
1998, the jury returned a verdict for the plaintiff and against Dr.
Pearce for $2 million. The district court1 reduced the jury's verdict to
$1 million, pursuant to the Virginia statutory maximum.2 See Va.
Code Ann. § 8.01-581.15 (limiting medical malpractice recovery to
one million dollars). Dr. Pearce appeals the district court's denial of
his post-trial motion for judgment as a matter of law, or in the alterna-
tive for a new trial. Finding no reversible error, we affirm.

I.

In 1994, Ms. Daniel and her husband decided they were ready to
_________________________________________________________________
1 By consent, this suit was tried by the United States Magistrate Judge
in Newport News. See 28 U.S.C. § 636(c)(1).
2 After presentation of the evidence, the district court granted judgment
as a matter of law in favor of both Dr. Jones and Williamsburg Obstet-
rics. The jury found Dr. Jenkins was not liable. The disposition of the
case with respect to these parties is not at issue in this appeal.

                     2
have children. Ms. Daniel, a school teacher, was a patient of Wil-
liamsburg Obstetrics, and Dr. Pearce was her primary physician. In
September 1994, Ms. Daniel became pregnant but soon thereafter
spontaneously aborted. Shortly afterward, in late 1994, Ms. Daniel
became pregnant again.

On January 12, 1995, a standard test for birth defects was adminis-
tered to Ms. Daniel during a routine prenatal care visit; this test pro-
duced an unusually low score. As a result, Ms. Daniel had an
ultrasound performed on January 20, which revealed that she was car-
rying twins with a gestational age of approximately fourteen weeks.
On February 9, at her next regular prenatal care visit, Ms. Daniels
complained to Dr. Jones (Dr. Pearce's associate) of a backache and
of being tired. On February 23, at another regular visit, Ms. Daniels
saw Dr. Pearce and she again complained of a backache and of being
tired. She declined Dr. Pearce's suggestion of physical therapy.

In an unscheduled visit on March 7, Ms. Daniel complained to Dr.
Jones of back pain, a hard stomach, and vaginal itching. She also
advised him that she was experiencing what she believed were con-
tractions. Dr. Jones performed a pelvic examination, and he pre-
scribed a cream for relief of her itching symptoms. However, her pain
continued, unrelieved. On March 11, Ms. Daniel found it necessary
to leave a baby shower early because of the pain that she was experi-
encing.

On Sunday, March 12, Ms. Daniel's pain increased and included
severe back pain and a hard stomach. She called her doctor's emer-
gency telephone number, and she advised Dr. Jenkins (another asso-
ciate of Dr. Pearce) of her symptoms and that she thought she was
having contractions. He recommended that she take aspirin and that
she call the office in the morning if her pain continued. Ms. Daniel
did not call the doctors' office the next day, but she did ask for a sub-
stitute teacher for her elementary school class because she was suffer-
ing from too much pain to report to work.

On March 14, Ms. Daniel went to work, but was in so much pain
that she had to lie down on the floor before the children came to her
classroom. She spent approximately half of the day in the nurse's
office at the school, in pain. At approximately nine o'clock that eve-

                     3
ning, Ms. Daniel developed a pinkish vaginal discharge. Her husband
called the doctors' emergency telephone number on his wife's behalf,
and Dr. Pearce returned his call. According to both Mr. and Ms. Dan-
iel, they had reviewed the handbook on pregnancy provided to them
by the obstetricians, and, based on the handbook's information, they
were concerned that Ms. Daniel's symptoms indicated that she was
experiencing preterm labor. Also according to the Daniels -- disputed
by Dr. Pearce -- they expressed this concern to Dr. Pearce, who
asked if she was having contractions. Ms. Daniel testified that she
described her symptoms to Dr. Pearce, advised him that she had had
diarrhea for several days, and asked him if she needed to go to the
hospital. Dr. Pearce directed her to come to his office the next morn-
ing.

Early in the morning of March 15, 1995, Ms. Daniel found herself
in extreme pain. She was unable to finish her shower because of the
intense pain. Her husband called the Williamsburg Obstetrics office,
but his call was not returned (apparently due to an administrative
error by the answering service). The Daniels then drove to Walter
Reed Emergency Room in Gloucester, Virginia, which has no obstet-
rical facilities but which was the most accessible hospital under the
traffic conditions at the time. A physician at Walter Reed examined
her. Finally, at approximately 9:30 a.m., the Walter Reed physician
reached Dr. Jones, who instructed him to have Ms. Daniel come by
car to the group practice's office. En route to the Williamsburg
Obstetrics office, Ms. Daniel's water broke and she began delivery.
When Mr. and Mrs. Daniel arrived at the Williamsburg Obstetrics
office, Dr. Pearce directed that Ms. Daniel be taken to the nearby Wil-
liamsburg Memorial Hospital by ambulance. Within seven minutes of
her arrival at the hospital, the first baby was delivered, weighing 505
grams (approximately eighteen ounces). Two minutes later, the sec-
ond of the twins was delivered, weighing 530 grams. Both of the new-
borns had heartbeats. However, no neonatal preparations had been
made for the twins because preterm delivery was not expected.
Within two hours, both of the twins had died.

II.

Ms. Daniel initiated this diversity action in February, 1996, alleg-
ing that she suffered physical and emotional injuries due to her obste-

                    4
tricians' medical malpractice in failing to recognize and properly treat
her symptoms of preterm labor. In Virginia, a claim of medical mal-
practice requires that the plaintiff establish the requisite standard of
care, prove a deviation from the standard, and also prove that such
deviation was the proximate cause of the asserted damages. See, e.g.,
Raines v. Lutz, 

, 196 (Va. 1986). Often, but not
always, a plaintiff must provide expert opinion to establish the ele-
ments of a medical malpractice claim. See Dickerson v. Fatehi, 

, 881-82 (Va. 1997).

In this case, the district court qualified Dr. Robert G. Dillard as an
expert witness for the plaintiff. Dr. Dillard is a Professor and Chief
of Neonatology in the Department of Pediatrics at Bowman Gray
School of Medicine of Wake Forest University in Winston-Salem,
North Carolina. He teaches obstetrical residents and medical students
about the treatment of high risk patients, including premature labor.
Some of Dr. Dillard's former students are now practicing obstetri-
cians in Virginia, and others are obstetrical faculty members at medi-
cal schools in Virginia. Dr. Dillard's communications with doctors in
Virginia confirmed that professionals in Virginia and North Carolina
are taught and in fact apply the same standard of care with respect to
the diagnosis and treatment of preterm labor and with respect to the
management of high-risk obstetrical patients with twins. He has pub-
lished articles relating to the management of high-risk obstetrical
patients and the diagnosis and treatment of those with preterm labor.
Dr. Dillard testified that he is also familiar with professional literature
authored by doctors in Virginia on the standard of care with respect
to the treatment of premature labor. He participates in the care for
women with high-risk pregnancies at a high-volume child delivery
service in North Carolina. Dr. Dillard also provides hands-on man-
agement of patients, involving diagnosing and treating preterm labor.
He jointly formulates, with obstetricians, management plans for
women with high-risk pregnancies, including regular reassessment of
the patient and consideration of whether to provide her with antibiot-
ics and tocolytic agents.

To establish Dr. Pearce's negligence, Ms. Daniel presented the jury
with expert testimony by Dr. Dillard that "on March 14, 1995, [Dr.]
Pearce violated the standard of care, essentially ignoring the symp-
toms that had been ongoing for some period of time and failed to have

                     5
[Ms. Daniel] examined at that time, rather than in the morning." Two
maternal fetal medicine experts who testified for the defense, Dr.
Boehm and Dr. Branch, agreed that if the Daniels' version of the facts
were correct, the standard of care required Dr. Pearce to have recog-
nized the symptoms of preterm labor on March 14, 1995, and to per-
form a cervical examination on that date. Also, the handbook Dr.
Pearce provided to Ms. Daniel, "ACOG Guide to Planning for Preg-
nancy, Birth, and Beyond," published by the American College of
Obstetricians and Gynecologists, advises under the heading "Signs of
Preterm Labor" to "[c]all your doctor right away if you notice . . .
vaginal discharge; . . . low, dull backache; abdominal cramps, with or
without diarrhea; regular contractions or uterine tightening," and fur-
ther states that "[a cervical examination] is the only way to confirm
preterm labor."

On the issue of proximate cause of injury, Dr. Dillard testified that,
in his opinion and to "[a reasonable degree of medical certainty] the
failure to diagnose and treat [Ms. Daniel's] preterm labor resulted in
her pain and physical injury prior to March 15th." Had Ms. Daniel
been correctly diagnosed, her pain would likely have been amelio-
rated, indeed, Dr. Pearce testified that his practice's success rate with
the use of tocolytic drugs3 in treating preterm labor is greater than
ninety percent.

III.

On appeal, Dr. Pearce raises three issues. First, he contends that the
district court abused its discretion by qualifying Dr. Dillard as an
expert witness. We review the district court's decision to qualify a
witness as an expert for "manifest error." See, e.g., Salem v. United
States Lines Co., 

, 35 (1962) (citation omitted) (stating
that "the trial judge has broad discretion in the matter of the admis-
sion or exclusion of expert evidence, and his action is to be sustained
unless manifestly erroneous."); Thomas J. Kline, Inc. v. Lorillard,
Inc., 

, 799 (4th Cir. 1989) (citation omitted).
_________________________________________________________________

3 "Tocolysis" is the inhibition of uterine contractions. Dorland's Illus-
trated Medical Dictionary 1716 (28th ed. 1994).

                     6
The district court viewed as controlling the Virginia statute govern-
ing the qualifications of an expert witness in a medical malpractice case.4
The court found that Dr. Dillard regularly deals in high-risk pregnan-
cies with the goal of extending those pregnancies as long as possible,
and concluded that by doing so, Dr. Dillard demonstrated his expert
knowledge of the standards of Dr. Pearce's specialty in Virginia, as
required by the statute. The district court further found that, despite
extensive pre-trial discovery and proceedings to test Dr. Dillard's cre-
dentials, Dr. Pearce "never evoked a scintilla of evidence to suggest
that [Dr.] Dillard does not know the standard of care." The district
court noted that two eminently qualified defense expert obstetrician
witnesses corroborated Dr. Dillard's testimony as to the negligence,
assuming the facts testified to by Ms. Daniel. He also praised highly
both the quality and the clarity of the expert testimony presented by
both sides in this case.

Next, Dr. Pearce asserts that the district court's denial of his
motions for judgment as a matter of law, or for a new trial in the alter-
native, was error. He claims there was insufficient evidence to estab-
lish that Ms. Daniel experienced a compensable injury under Virginia
law and that her injury was proximately caused by Dr. Pearce's devia-
tion from the standard of care. We review de novo the denial of a
motion for judgment as a matter of law, to determine whether sub-
stantial evidence exists upon which the jury could find for the appel-
lee, viewing the evidence in the light most favorable to the non-
moving party, in this case, Ms. Daniel. See Benedi v. McNeil-P.P.C.,
_________________________________________________________________
4 The district court applied the Virginia standard for qualifying an
expert to the admission of Dr. Dillard's testimony. Under the Federal
Rules of Evidence, either of two standards might apply to the question
of expert qualification in certain diversity cases. In a civil action in
which state law supplies the rule of decision, the competency of a wit-
ness shall be determined in accordance with that law. Fed. R. Evid. 601;
cf. Fed. R. Evid. 702 (federal courts' standard for testimony by experts);
see also Ralph v. Nagy, 

, 328-29 (6th Cir. 1991) (noting, but
not deciding between, two different standards for qualifying an expert in
a medical malpractice case); Peck v. Tegtmeyer , 

, 908-
09 (W.D. Va. 1992) (concluding that Virginia law governs the qualifica-
tion of an expert witness in medical malpractice action). We need not
decide which standard is appropriate here, because our decision does not
turn on any distinction between the Virginia rule and the federal rule.

                    7
Inc., 

, 1382 (4th Cir. 1995). We review the denial of a
motion for a new trial for abuse of discretion. Id.

On the issue of whether Ms. Daniel experienced compensable
injury, the district court found in its written opinion that the record is
"replete with testimony describing the [physical] pain experienced by
plaintiff between March 7, 1995, and the delivery date, March 15,
1995," and described that testimony with several pages of detail. The
district court further described other witnesses' corroborating testi-
mony on the issue. Virginia law plainly recognizes extreme physical
pain and discomfort as compensable physical injury. See, e.g., How-
ard v. Alexandria Hosp., 

, 25 (Va. 1993) (holding that
plaintiff's evidence of physical pain and discomfort experienced due
to post-negligence prophylactic treatment was "positive, physical
. . . hurt to the claimant" that established a prima facie case of physi-
cal injury); Modaber v. Kelley, 

, 237 (Va. 1986)
(affirming that the aggravated effects of a mother's pregnancy condi-
tion, due to the obstetrician's inaction, and the physical pain caused
to the mother by injury to her unborn child, were compensable
injury).

On the issue of causation, the district court found that there was
sufficient evidence to support the jury's verdict, in that Dr. Dillard
specifically testified about Dr. Pearce's breach of the standard of care
and the direct causal relationship between that breach and plaintiff's
physical and emotional experiences. The district court concluded that
sufficient evidence supported the jury's verdict in favor of Ms. Dan-
iel.

Finally, Dr. Pearce argues that the district court abused its discre-
tion by refusing to consider as evidence for purposes of Dr. Pearce's
motion for a new trial a post-trial affidavit that purported to under-
mine Dr. Dillard's professional qualifications. This issue inextricably
relates to the admissibility of Dr. Dillard's testimony, and, as we have
noted, we review the district court's evidentiary rulings for abuse of
discretion. Id. In this instance, the district court concluded that Dr.
Pearce had ample notice of the plaintiff's intention to rely on Dr. Dil-
lard's expert testimony, and that Dr. Pearce had presented no basis to
justify admitting the post-trial affidavit. Reviewing this issue for an
abuse of discretion, we are unable to conclude that the district court

                     8
erred when it refused to consider the affidavit in connection with the
request for a new trial.

IV.

We have carefully considered the briefs and oral argument pre-
sented on behalf of the parties to this appeal, and we have thoroughly
examined the record pertinent to their respective positions. We find
no reversible error, and we are content to adopt the comprehensive
opinion of the district court and affirm on its reasoning. See Daniel
v. Jones, No. 4:96CV24 (E.D. Va. Feb. 19, 1999).

AFFIRMED

                    9