608 F.3d 54 (1st Cir. 2010), 09-1471, Martinez v. Cui

Docket Nº:09-1471.
Citation:608 F.3d 54
Opinion Judge:LYNCH, Chief Judge.
Party Name:Eridania MART
Attorney:Hector E. Pineiro, with whom Lizabel M. Negrn-Vargas, Robert A. Scott, and Law Office of Hector Pineiro were on brief, for appellant. Kenneth R. Kohlberg, with whom McCarthy, Bouley & Barry, PC was on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.
Case Date:June 17, 2010
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 54

608 F.3d 54 (1st Cir. 2010)

Eridania MARTÍNEZ, Plaintiff, Appellant,

v.

Hongyi CUI, Defendant, Appellee.

No. 09-1471.

United States Court of Appeals, First Circuit.

June 17, 2010

Heard April 8, 2010.

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[Copyrighted Material Omitted]

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Hector E. Pineiro, with whom Lizabel M. Negrn-Vargas, Robert A. Scott, and Law Office of Hector Pineiro were on brief, for appellant.

Kenneth R. Kohlberg, with whom McCarthy, Bouley & Barry, PC was on brief, for appellee.

Before LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

Eridiana Martínez brought federal and state claims alleging that Dr. Hongyi Cui, a first-year medical resident, sexually assaulted her by digital rape during an examination when she was an emergency-room patient at the UMass Memorial Medical Center. A jury, after trial, rejected her claims.

On appeal, Martínez alleges there was error in the district court's evidentiary rulings and jury instructions. The evidence claim raises the relationship between Rule 403 of the Federal Rules of Evidence, which permits courts to exclude relevant evidence on the ground of prejudice or confusion, and Rule 415, which removes the bar on propensity evidence and permits admission of evidence of similar acts of sexual misconduct in civil cases concerning sexual assault. The instruction claim raises the issue whether the court correctly instructed the jury that Martínez had to show Cui's conduct " shocks the conscience" to prevail on her Fourteenth Amendment substantive due process claim.

We affirm.

I.

After a car accident on February 10, 2003, Eridiana Martínez was brought by ambulance to the emergency department (ED) at UMass Memorial Medical Center in Worcester, Massachusetts. Martínez claims Cui digitally raped her, vaginally and rectally, during an examination. Cui denied that he ever inserted his finger in or examined her vagina, and hospital records supported him. A rectal exam was performed, which the parties agreed was medically appropriate. The jury accepted Cui's version and rejected all of Martínez's claims after about an hour and a half of deliberations.

The hospital records and trial testimony established the following.1 At the ED, Martínez was placed in a cubicle, where

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she had little privacy. At that time, the ED at the UMass medical center was located in a long hallway, without private rooms, which held treatment areas divided into three cubicles by partial curtains. Martínez could hear patients in adjoining cubicles, only a few feet away, complain of pain.

On admission, Martínez complained of severe pain in her neck and on the left side of her body. She was treated by Dr. Cui, a surgical resident in his internship year, who was accompanied by a Spanish interpreter and, at times, a nurse. According to hospital records (the ED Physician Record), Cui performed an initial trauma evaluation and a physical exam around 2:00 p.m. Cui recorded that a rectal exam and stool occult blood test had been performed on Martínez; he crossed out the line for a vaginal exam on the form because he did not perform one. Cui did not specifically recall this patient, but the jury could have found he recorded information about his own examination of her.

As an intern, Cui had to be closely supervised by the attending physician. Cui reviewed his exam with Dr. Brush, the attending physician in the ED, who, in turn, performed his own exam and ordered x-rays and pain medication. Brush also wrote an attending note in the ED Physician Record. Martínez was discharged at 3:45 p.m. Before her discharge, Dr. Brush recorded that he had reviewed the ED Physician Record-which said that no vaginal exam had been performed and that a rectal exam had been performed-with Cui and the patient. Martínez also signed the record.

Martínez testified at trial that Cui initially examined her in front of a nurse and translator and then sent her for x-rays. She claimed she was returned alone to her cubicle after x-rays, and Cui returned, also alone. There, Cui lifted her leg, inserted his finger in her rectum and then her vagina, and touched her clitoris. She testified that she did not scream but asked him not to touch her. She also testified that he was drooling during the exam. This encounter lasted about five minutes, according to Martínez, and ended when someone called for Cui.

Several facts presented at trial undermined Martínez's story. Martínez testified that Cui rectally assaulted her once. Yet even Martínez's expert witness agreed that a rectal examination was within the standard of care under the circumstances, though a vaginal examination was not. A rectal exam was called for to determine whether, among other things, Martínez had suffered internal or spinal injuries. Consistent medical testimony also was that, to perform a rectal exam while a patient is strapped to a stretcher, three people are needed to help turn and hold the patient on her side. Martínez did not explain how Cui could have assaulted her while she was still on the stretcher without anyone present. Martínez also did not recall seeing Dr. Brush at all that day, nor could she explain the presence of her signature next to his on the ED Physician Record.

Martínez also conceded having testified inconsistently at a deposition. Martínez admitted that she had previously testified that she cried for help during the alleged attack; she insisted at trial (though not in the deposition) that she had done so " quietly." She agreed she had testified earlier, but not at trial, that Cui was biting his lip and " getting off" during the alleged attack. And she admitted that she had previously testified that another patient was in the next cubicle, that she could hear the patients in other cubicles, and that someone from radiology walked into her cubicle during her initial exam with Cui.

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In the aftermath of the ED visit, Martínez said, she was so traumatized from Cui's alleged assault that she feared having any form of practitioner treat her who was male. Yet she visited the office of Dr. Ron Tebo, a chiropractor, eighteen times in 2003, beginning just two days after the alleged attack. She tried to reconcile her claim with testimony that Tebo himself touched her only once and never with his hands. Martínez was treated by several other male medical personnel in 2003 after February 10 as well.

Martínez did not make any claim of an inappropriate examination to hospital personnel before she was discharged. Martínez testified that a friend, Mr. Yrure, came into the cubicle shortly after the assault and she reported it to him. Yrure did not testify at trial, and the judge instructed the jury it could draw a negative inference from the absence of any witness.

Martínez testified that she told her primary care provider, Mary Sullivan, a nurse practitioner, on February 14 over the phone that Cui had assaulted her. Sullivan testified that Martínez first told her about the alleged assault at the end of an appointment on February 18, rather than four days earlier as Martínez claimed. Sullivan obtained the ED Physician Record from Martínez's ED visit and went over it with Martínez, who was " upset" and " tearful" when she left. On March 14, 2003, more than a month after the alleged assault, Martínez first filed a formal complaint with the hospital. The Board of Registration in Medicine (the Board) was notified.

More than a year later, on May 19, 2004, the Board initiated disciplinary proceedings against Cui based on Martínez's allegations, as well as allegations by another woman, B.H.,2 who claimed that Dr. Cui, while still a surgical resident in his intern year, inserted his finger in her vagina during a postoperative exam on March 18, 2003. The Division of Administrative Law Appeals (DALA) conducted exhaustive proceedings, which included discovery and testimony from dozens of witnesses. On January 30, 2007, a DALA magistrate found that Cui had committed no misconduct and recommended that the Board dismiss charges against Cui, which the Board did. The jury was not told this history; it was only informed there had been a prior proceeding.

Meanwhile, on February 6, 2006, Martínez had sued Cui in federal court under 42 U.S.C. § 1983, alleging violations of her rights under the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution, as well as several state law claims. Her federal claims alleged that Cui, as a state employee,3 had violated her right to bodily integrity by sexually assaulting her. The district court appropriately characterized this claim as a Fourteenth Amendment substantive due process claim.

Martínez challenges several evidentiary rulings. As to B.H., the court ruled that (a) B.H. could not testify for Martínez about Cui's alleged sexual assault of B.H. and (b) B.H. could not testify as a rebuttal witness that Cui had performed a rectal examination on her without a chaperone.

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The court also ruled that the parties could not refer to the DALA proceedings but could mention a " prior proceeding" when necessary. The court further permitted the defense to impeach Martínez using records from her male chiropractor, Dr. Ron Tebo, which showed that she visited Tebo's offices after Cui's alleged attack. But the court did not permit Martínez to present two rebuttal witnesses to undermine these records.

On February 9, 2009, after about an hour and a half of deliberation, a jury returned a general verdict in favor of Cui on all claims, federal and state. The court denied Martínez's motion for a new trial. Martínez timely appealed.

II.

A. The District Court's Evidentiary Rulings Were Not Error

We review preserved evidentiary objections for...

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