495 F.2d 221 (8th Cir. 1974), 73-1575, Sanden v. Mayo Clinic

Docket Nº:73-1575.
Citation:495 F.2d 221
Party Name:Lorraine SANDEN, Appellant, v. MAYO CLINIC et al., Appellees.
Case Date:April 17, 1974
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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495 F.2d 221 (8th Cir. 1974)

Lorraine SANDEN, Appellant,


MAYO CLINIC et al., Appellees.

No. 73-1575.

United States Court of Appeals, Eighth Circuit.

April 17, 1974

Submitted Feb. 14, 1974.

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[Copyrighted Material Omitted]

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Paul D. Tierney, Minneapolis, Minn., and John J. Doyle, San Francisco, Cal., for appellant.

James H. O'Hagan, Minneapolis, Minn., for appellees.

Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Lorraine Sanden, a registered nurse residing in San Francisco, California, brought an action against the Mayo Clinic, the Mayo Foundation and two surgeons on the Clinic's staff. In her complaint she alleged that defendants had subjected her to extensive anal surgery, which she had not authorized, including a negligently performed radical hemorrhoidectomy, as a result of which her anal sphincter was irreparably injured, causing her permanent incontinence of the feces, as well as other disabilities. Federal jurisdiction was premised on diversity of citizenship and an amount in controversy exceeding $10,000, 28 U.S.C. § 1332.

Following a seven-day trial, the jury returned a verdict in favor of defendants on May 30, 1973. Ms. Sanden appeals from the order of the District Court denying her timely filed motion for new trial. In this appeal, she asserts as prejudicial error a number of trial rulings by the District Judge, all of which are discussed infra.


Ms. Sanden's first assignment of error challenges the defendants' introduction of evidence of fraud at the trial. It was the defendants' position that Ms. Sanden, together with her San Francisco attorney, 1 had planned to bring this lawsuit even before she had submitted to surgery at the Mayo Clinic; that she had faked the disabilities purportedly resulting from that surgery; and that she had attempted to introduce at trial

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fraudulent evidence to substantiate those disabilities. Ms. Sanden argues that since the defendants did not specifically allege fraud in their answer to her complaint, it was error to permit the introduction of such evidence at trial under Fed.R.Civ.P. 8(c). 2 We disagree. Rule 8(c) requires that fraud and other matters in avoidance of the plaintiff's case be specifically pleaded in the defendants' answer when invoked as affirmative defenses. However, 'if the defense involved is one that merely negates an element of the plaintiff's prima facie case * * * it is not truly an affirmative defense and need not be pleaded despite rule 8(c).' 2A J. Moore, Moore's Federal Practice P8.27(2), at 1843 (2d ed. 1974). See Lomartira v. American Automobile Insurance Co., 245 F.Supp. 124 (D.Conn.1965), aff'd, 371 F.2d 550 (2d Cir. 1967). Cf. Goodwin v. Townsend, 197 F.2d 970, 971 (3d Cir. 1952); Feller v. McGrath, 106 F.Supp. 147, 149 (W.D.Pa.1952), aff'd mem. sub nom., Feller v. Brownell, 201 F.2d 670 (3d Cir.), cert. denied, 346 U.S. 831, 74 S.Ct. 24, 98 L.Ed. 355 (1953).

In contending that Ms. Sanden's injuries were feigned and that the lawsuit was no more than a scheme for financial gain, the defendants in no way conceded any color to plaintiff's claim, but were simply attempting to persuade the jury to reject her entire case as untrue. 3 This assignment of error is frivolous.


On the third day of trial, the District Court ordered Ms. Sanden to submit to an examination by defendants' medical expert. The examination was to include an electromyographic study of the plaintiff's anal sphincter; such a study distinguishes healthy and intact nerves from damaged nerves through the placement of electrodes in one's muscles and through analysis of the reaction of those muscles to electro-chemical impulses.

Plaintiff requested that a physician of her choice attend this examination as an observer. The defense counsel objected, and Judge Devitt sustained that objection. The examination was performed on behalf of the defendants by William R. Kennedy, M.D., Professor of Neurology, Director of the Neuromuscular Laboratory in the Department of Neurology, University of Minnesota, in Minneapolis. At trial Dr. Kennedy testified that the electromyograph indicated that the muscles and nerves in question were normal and that any abnormal reactions displayed by Ms. Sanden were the result of her purposeful efforts to determine the outcome of the test. 4 The conclusions so drawn by Dr. Kennedy stand in direct contradiction to the findings of three

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other physicians who examined Ms. Sanden and testified on her behalf. 5

In this appeal, Ms. Sanden urges that Judge Devitt's refusal to allow one of plaintiff's physicians to attend the adverse medical examination performed by Dr. Kennedy constitutes prejudicial error. She contends that this is so particularly because of the importance of the electromyographic study in resolving the disputed questions of fact and because of the conflicting testimony elicited on the test results. We uphold the District Court.

The manner and conditions of a court-ordered medical examination, as well as the designation of the person or persons to conduct such an examination, are vested in the sound discretion of the trial court. Fed.R.Civ.P. 35(a). 6 Although the examined party will usually be permitted to have his or her own physician present, see 4A J. Moore, Moore's Federal Practice P35.04, at 35-24, 35-25 n. 11 (2d ed. 1974); 64 A.L.R.2d 498-500 (1959), we find that under the circumstances of...

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