321 F.3d 45 (1st Cir. 2003), 01-2539, Macaulay v. Anas

Docket Nº:01-2539
Citation:321 F.3d 45
Party Name:Macaulay v. Anas
Case Date:February 28, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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321 F.3d 45 (1st Cir. 2003)

Katherine MACAULAY, et al, Plaintiffs, Appellants,

v.

Peter P. ANAS, M.D., Defendant, Appellee.

No. 01-2539.

United States Court of Appeals, First Circuit

February 28, 2003

Heard Jan. 6, 2003. Decided .

Andrew D. Swain, with whom Messa & Associates, P.C. was on brief, for appellants.

Joseph L. Doherty, Jr., with whom Martin, Magnuson, McCarthy & Kenney was on brief, for appellee.

Before BOUDIN, Chief Judge, SELYA and LIPEZ, Circuit Judges.

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SELYA, Circuit Judge.

After undergoing an unsuccessful surgical procedure, plaintiff-appellant Katherine Macaulay sued for negligence.1 The case was tried to a jury, which returned a verdict in favor of her surgeon, defendant-appellee Peter P. Anas. Macaulay appeals, assigning error to the district court's actions in (1) refusing to grant her eve-of-trial motion for a continuance, (2) placing certain limitations on the testimony of her principal expert witness, and (3) permitting cross-examination of her treating physician with respect to matters touching upon the standard of care. Concluding, as

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we do, that these claims of error are without merit, we affirm.

1. BACKGROUND

We start by sketching a broad picture of the case. We bring that picture into sharper focus by adding more specific facts during our discussion of particular issues.

The appellant, like many other people, suffers from back problems. In due course, she came under the care of Dr. Anas (a well-known orthopedist). The physician recommended that she undergo spinal fusion surgery, and the appellant acquiesced.

Dr. Anas performed the surgery on September 11, 1992, at New England Baptist Hospital in Boston, Massachusetts. The operation was not a success. When the Macaulay family moved to Philadelphia, the appellant came under the care of a different orthopedist, Dr. Todd Albert. On February 14, 1994, Dr. Albert performed corrective spinal surgery.

Displeased by what had happened on Dr. Anas's watch, the appellant brought a diversity action, 28 U.S.C. §1332(a), in the United States District Court for the District of Massachusetts. She named as defendants Dr. Anas, the hospital,2 and AcroMed Corporation (the manufacturer of the hardware used in the original surgery). She alleged, inter alia, that Dr. Anas had been negligent in using investigational bone screws, in improperly positioning them during the operation, and in failing to remove them afterwards.

Within a matter of weeks, the case was transferred, for purposes of centralized pretrial proceedings, to the Eastern District of Pennsylvania. See 28 U.S.C. § 1407 (describing procedures applicable to multi district litigation). The transfer was prompted by the pendency of hundreds of other cases involving manufacturers of investigational medical hardware. See In re Orthopedic Bone Screw Liab. Litig., 176 F.R.D. 158 (E.D.Pa.1997). When the claims against the manufacturers were resolved, the appellant's case was remitted to the District of Massachusetts. At that point, AcroMed was no longer a defendant.

On August 15, 2000, the district court referred the case to the Massachusetts Medical Malpractice Tribunal (the Tribunal). See Mass. Gen. Laws ch. 231, § 60B. On March 15, 2001, the Tribunal rendered a decision in favor of Dr. Anas, finding that the appellant's case exemplified "an unfortunate medical result." The appellant posted the $6,000 bond required in order to pursue her claim against Dr. Anasin court. See id.

Meantime, the district court had been attempting to compose a timeline leading to trial. The court initially scheduled the trial to commence on November 6, 2000, but postponed it sine die because the Tribunal had not yet acted. After March of 2001, the district court set a number of putative trial dates, but vacated all of them for one reason or another (in several instances to accommodate the appellant's counsel). The court finally settled upon a firm trial date of September 10, 2001, and rebuffed the appellant's eleventh-hour efforts to vacate that assignment.

The trial went forward on September10, but the appellant's principal attorney, Joseph Messa, was not present. Instead, one of Messa's associates, Andrew Swain, took the lead. On September 24, 2001, the

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jury returned a defendant's verdict. This timely appeal ensued.

II. DISCUSSION

We divide our discussion of the issues into three segments, corresponding to the appellant's assignments of error.

A. Refusal to Grant a Continuance.

The appellant calumnizes the district court for its refusal to vacate the September 10 trial assignment, asserting that the court's dogged insistence on going forward effectively deprived her of counsel of her own choosing. In her view, Swain—a relatively inexperienced associate—was no substitute for the highly skilled advocate whom she had hired. She mentions fleetingly a second reason why the district court should have granted a continuance: her house had burned down approximately one month before the trial date.

We review the district court's denial of a continuance for abuse of discretion. United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995); United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1990). We discern none here. After all, a party's right to counsel of her choosing is not absolute, and courts are not required either to wait endlessly for lawyers to make themselves available or to conform their calendars to suit attorneys' preferences. See, e.g., United States v. Woodard, 291 F.3d 95, 106 (1st Cir. 2002); United States v. Noah, 130 F.3d 490, 497 (1st Cir. 1997).

The record reflects that the trial court exhibited great patience in endeavoring to accommodate the appellant's counsel. The appellant requested no fewer than four trial continuances, including requests made in March, May, and June of 2001 due to conflicts with Messa's schedule. On each of these occasions, the district court yielded to counsel's scheduling constraints and delayed the trial. When all was said and done, these serial continuances moved the scheduled start of trial to July 9, 2001.

On July 6, the court held a pretrial conference. With the agreement of both parties, it vacated the July 9 trial assignment. In an effort to accommodate the vacation schedules of all concerned, the court proposed to start the trial on September 4, 2001. Messa asked for special consideration because he was planning to return from vacation that day. The court then suggested September 5, but Messa protested. The court yielded once more; it acceded to Messa's importunings and set trial to commence on September 10. But the court exacted a reciprocal commitment from Messa. It fixed the September 10 trial date only after the lawyer gave what was described as an "ironclad" guarantee that he or someone from his office would be available to try the case that day. On July 12, 2001, Messa confirmed that assurance in writing.

The English satirist, Jonathan Swift, wrote nearly three centuries ago that "promises and pie crusts are made to be broken." J. Swift, Polite Conversation (1738). So it was here. On August 30, 2001, Messa wrote to the district court requesting yet another continuance because he was to start a trial in Pennsylvania on September 10 and neither the appellant nor his Pennsylvania client would consent to having another lawyer appear. On September 4, the district court rejected Messa's request. Noting that the appellant previously had been granted multiple continuances, the court declared: "I picked a date satisfactory to you and you guaranteed me you would be available." Messa renewed his request, this time mentioning that the Macaulays' family home had burned down several weeks earlier. The court responded that it had selected the September 10 date at Messa's urging, that it had blocked off three weeks to

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accommodate the trial, and that it would not continue the case...

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