14 F.3d 684 (1st Cir. 1994), 93-1470, Daigle v. Maine Medical Center, Inc.

Docket Nº:93-1470.
Citation:14 F.3d 684
Party Name:Dawn DAIGLE, Plaintiff, Appellant, v. MAINE MEDICAL CENTER, INC., Defendant, Appellee.
Case Date:January 31, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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14 F.3d 684 (1st Cir. 1994)

Dawn DAIGLE, Plaintiff, Appellant,


MAINE MEDICAL CENTER, INC., Defendant, Appellee.

No. 93-1470.

United States Court of Appeals, First Circuit

January 31, 1994

Heard Dec. 6, 1993.

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[Copyrighted Material Omitted]

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Christine M. Rockefeller, with whom Paul R. Cox and Burns, Bryant, Hinchey, Cox & Schulte, P.A., Dover, NH, were on brief, for plaintiff, appellant.

Gerald F. Petruccelli, with whom Mary Mitchell Friedman and Petruccelli & Martin, Portland, ME, were on brief, for defendant, appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

This appeal seeks to test the constitutionality of Maine's Health Security Act, Me.Rev.Stat.Ann. tit. 24, Secs. 2851-2859 (West 1990) (the Health Act), the mechanics of its application in diversity suits, and the appropriateness of sundry evidentiary rulings made during the course of trial in the district court. After assembling the test results, we affirm.



On or about April 9, 1987, while in her thirty-first week of pregnancy, plaintiff-appellant Dawn Daigle, a New Hampshire resident, developed symptoms associated with pregnancy-induced hypertension. She sought treatment at Frisbie Memorial Hospital, Rochester, New Hampshire. There, Daigle's treating obstetrician advised her that she required an immediate cesarean section. Because Frisbie Memorial Hospital maintained only rudimentary neonatal facilities, the obstetrician suggested that the surgery be performed at a tertiary-care hospital.

Following her doctor's suggestion, Daigle presented herself at Maine Medical Center (MMC) in the early morning hours of April 10, 1987. Examination confirmed her obstetrician's diagnosis and hospital personnel prepared her for immediate surgery. The preparations did not go smoothly: while a catheter was being inserted into the jugular vein to monitor blood pressure and provide access to medications, Daigle's carotid artery was punctured. A hematoma then formed in Daigle's neck, deviating her trachea. Consequently, although the delivery was otherwise successful, the attending physicians were forced to intubate Daigle while she was fully awake. Daigle was discharged from the hospital on April 17, 1987.


The Health Act

Because many of the arguments on appeal relate to the Health Act, we offer an overview of the statutory scheme.

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The Maine legislature passed the Health Act in response to an emergent crisis that threatened the availability of medical malpractice insurance. The legislature designed the Health Act in an effort to stem the proliferation of medical malpractice litigation, weed out nonmeritorious claims, and promote early settlement of meritorious claims. See Me.Rev.Stat.Ann. tit. 24, Sec. 2851(1)(A) & (B); see also Sullivan v. Johnson, 628 A.2d 653, 655-56 (Me.1993). By its terms, the Act requires parties to submit medical malpractice claims to a prelitigation screening panel as a condition precedent to court access, unless both sides agree to bypass the panel hearing. See Me.Rev.Stat.Ann. tit. 24, Sec. 2853. Each screening panel is composed of a person with judicial experience (such as a retired jurist), an attorney, and either one or two health care professionals, depending on the circumstances of the particular case. See id. Sec. 2852(2).

A screening panel is authorized to conduct evidentiary hearings and render a decision. See id. Secs. 2854-2855. A party who submits to the screening process is entitled to proceed with her court case regardless of the outcome of the panel deliberations. See id. Sec. 2858. Withal, the panel's findings (the Findings) are admissible as evidence in subsequent litigation if they are unanimous. See id. When admissible, the Findings are to be introduced "without explanation." Id. Sec. 2857(1)(B).


Proceedings Below

On June 28, 1988 Daigle sued MMC in the United States District Court for the District of New Hampshire. Invoking diversity jurisdiction, see 28 U.S.C. Sec. 1332 (1988), she alleged negligence relating to treatment rendered during her hospital stay. MMC challenged the court's in personam jurisdiction, and, failing in its jurisdictional objection, defended on the merits. 1

In due season, the district court determined that Maine law applied to Daigle's suit and that, therefore, the Health Act pertained. Under the compulsion of that ruling, Daigle first presented her case to a prelitigation screening panel which consisted of a retired jurist, two physicians, and an attorney. After an evidentiary hearing, the panel found no acts of negligence attributable either to MMC or to Daigle's attending physicians at MMC, viz., Dr. Constance Taylor and Dr. David Bryce. 2

Notwithstanding the panel's adverse decision, Daigle decided to go forward. At trial, the district court, noting the panel's unanimity, allowed the Findings to be introduced into evidence. Thereafter, Daigle attempted to impeach the panel proceedings, but to no avail; the court sustained MMC's objections. The jury returned a verdict in MMC's favor on March 10, 1993. Daigle moved unsuccessfully for a new trial and then appealed. We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).




The Constitutional Challenges

Appellant's main offensive comprises a host of challenges to the constitutionality of the Health Act. She asserts, inter alia, that the statute violates principles of equal protection and due process, and also impermissibly abridges her right to trial by jury. Despite this asseverational array, the constitutional sortie need not occupy us for long.

The short of the matter is that appellant failed to raise these claims or otherwise to challenge the constitutionality of the Health Act in the district court. Our law is clear that a party ordinarily may not raise on appeal issues that were not seasonably advanced (and, hence, preserved) below. See,

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e.g., United States v. Slade, 980 F.2d 27, 30 (1st Cir.1993); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987) (collecting cases). The raise-or-waive rule applies with full force to constitutional challenges. See Cohen v. President & Fellows of Harvard Coll., 729 F.2d 59, 60-61 (1st Cir.), cert. denied, 469 U.S. 874, 105 S.Ct. 233, 83 L.Ed.2d 161 (1984).

To be sure, the raise-or-waive rule is not totally inelastic; there are exceptions to it, but, for the most part, the exceptions are narrowly configured and sparingly dispensed. We will, for example, relax the rule upon a showing of plain error, see United States v. Griffin, 818 F.2d 97, 99-100 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987), but appellant's constitutional claims do not qualify for such treatment. "Plain error" requires the proponent to show that softening the rule is necessary to prevent a clear miscarriage of justice, see id. at 100, and the "errors" assigned here are, in all events, likely to prove a losing proposition. 3 We can also relax the rule in an "exceptional case," United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir.1990), but we invoke that exception only when, at a bare minimum, the omitted ground is so compelling as virtually to ensure an appellant's success. See Slade, 980 F.2d at 31. Obviously, Daigle cannot clear this hurdle. See supra note 3.

We hold, therefore, that appellant's constitutional claims are procedurally defaulted. 4


The Section 2857 Challenge

Next, appellant launches a barrage of interrelated reasons aimed at showing why the district court erred, on evidentiary grounds, in admitting the Findings into evidence. These theories do not withstand scrutiny.

1. The Meaning of "Without Explanation". First, appellant claims that the district court erred in giving literal effect to the Health Act, which provides that unanimous panel decisions, i.e., Findings, may be admitted into evidence at an ensuing trial "without explanation." Me.Rev.Stat.Ann. tit. 24, Sec. 2857. The district court interpreted "without explanation" as preventing either side from eliciting testimony concerning the circumstances of, and deliberative process at, the panel hearing, but as permitting counsel for the parties to comment upon the Findings in opening statements and closing arguments (a prerogative which MMC desired and which appellant would sooner have seen by the wayside).

In arguing that this protocol constitutes error, appellant is whistling past the graveyard. Her position is entirely undone by the recent opinion in Sullivan v. Johnson, 628 A.2d 653 (Me.1993), a case in which Maine's Supreme Judicial Court interpreted "without explanation" in precisely the manner that the district judge anticipated. The Sullivan court elected to read the statute "as a whole with a view toward effectuating the Legislature's purpose of encouraging pre-trial resolution of these claims." Id. at 655-56. Proceeding in this fashion, the court found that because the "Legislature's intent [was] to force final disposition of ... claims [that the panel unanimously determines to be without merit] short of trial," the statutory language only barred "explanation of the panel deliberations

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or proceedings." Id. at 656. In that vein, the court specifically held that "it is permissible for the [parties] to utilize [in opening statements and-or closing arguments] the admissible panel findings as they would any other piece of admissible evidence." Id.

A federal court sitting in diversity jurisdiction and called upon in that role to apply state law is absolutely bound by a current interpretation of that law formulated by the state's highest tribunal. See Commissioner v. Estate of Bosch, 387 U.S. 456, 464-65, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). So it is here. Sullivan categorically disposes of appellant's plaint.

2. The Erie Initiative. Appellant also contends that the lower court erred, as a matter of...

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