Coffran v. Hitchcock Clinic, Inc., 80-1090

• Decision Date: 29 June 1982
• Docket Number: No. 80-1090,80-1090
• Citation: 683 F.2d 5
• Parties: Marion V. COFFRAN, et al., Plaintiffs, Appellees, v. HITCHCOCK CLINIC, INC., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 5

683 F.2d 5

Marion V. COFFRAN, et al., Plaintiffs, Appellees, v. HITCHCOCK CLINIC, INC., Defendant, Appellant.

No. 80-1090.

United States Court of Appeals, First Circuit.

Argued Feb. 8, 1982.

Decided June 29, 1982.

Michael P. Lehman, Concord, N. H., with whom Sulloway, Hollis & Soden, Concord, N. H., was on brief, for defendant, appellant.

David L. Nixon, Manchester, N. H., with whom Frank E. Kenison, and Brown & Nixon Professional Assn., Manchester, N. H., were on brief, for plaintiffs, appellees.

Before ALDRICH and CAMPBELL, Circuit Judges, and TORRUELLA, ^* District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Marion Coffran has permanent injuries caused by hepatitis, which was first diagnosed on her admission to the Mary Hitchcock Memorial Hospital on June 18, 1970. Mrs. Coffran had two hernia operations at the Hospital in 1970, on April 15 and June 5. These were performed by doctors who were members of the Hitchcock Clinic, Inc. In 1975 Mrs. Coffran, with her husband as co-plaintiff, commenced this diversity action in the United States District Court for the District of New Hampshire against the Clinic and the Hospital, contending that her hepatitis was caused by the anesthetic "halothane," which was used for both the April and June operations. She asserted that these administrations of halothane were inconsistent with reasonable medical care. An 11-day jury trial was held, which resulted in verdicts for both defendants. The district court, however, granted plaintiffs' motion for a new trial in respect to the defendant Clinic, appellant herein. The court denied plaintiffs' motion for judgment n. o. v., and therefore its decision to grant the new trial was interlocutory and unappealable at the time. A second jury trial was held, before another judge, resulting in verdicts and sizeable judgments for the plaintiffs. On appeal from those judgments, defendant focuses exclusively on the issue of whether the judge who presided over the first trial had abused his discretion in ordering the new trial.

The district court granted the new trial on the ground that the verdict in favor of the Clinic was against the weight of the evidence. This court has described the proper standards in that situation, both for the trial judge's decision and for our own review, in Borras v. Sea-Land Service, Inc., 586 F.2d 881, 886-87 (1st Cir. 1978). We said there that the judge has a duty to set aside the verdict and grant a new trial if he is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a clear miscarriage of justice, quoting Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir. 1941). Only if the trial judge commits an abuse of discretion in granting or denying a motion of this character will an appellate court reverse his decision. We went on to observe in Borras, however, that a "trial judge should not act merely as a '13th juror' and set a verdict aside simply because he would have reached a different result had he been the trier of fact." 586 F.2d at 887. Rather the judge's duty is to exercise a more limited discretion. He should not interfere with the verdict " 'unless it is quite clear that the jury has reached a seriously erroneous result.' " Id., at 887, quoting 6A Moore's Federal Practice P 59.08(5), at 59-160. We observed that the modern trend when reviewing the granting of new trials on the ground that the verdict is contrary to the great weight of the evidence is away from earlier decisions that the trial judge's discretion is virtually unlimited. Thus, the trial judge's discretion, although great, must be exercised with due regard to the rights of both parties to have questions which are fairly open resolved finally by the jury at a single trial. See Borras, 586 F.2d at 887, quoting Lind v. Schenley Industries, Inc., 278 F.2d 79, 90 (3d Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960). ¹ Applying these standards after a careful review of the record, we are constrained to conclude that the district court erred in granting plaintiffs' motion for a new trial, and that the jury's verdict in favor of the defendant Clinic must be reinstated. It is true that the court below expressly found that "the jury reached a seriously erroneous result-a result which was contrary to the clear weight of the evidence and which, if allowed to stand, would constitute a patent and grave miscarriage of justice." But in our opinion the record does not support that conclusion. Rather, while it was established that Mrs. Coffran's care was deficient in certain respects, the medical evidence was conflicting as to whether the hepatitis she contracted was causally related to those deficiencies. On the evidence presented, we do not see how a defendant's verdict could be considered as contrary to the clear weight of the evidence. Rather it reflected a jury's resolution of what was factually a very close and difficult case.

A brief review of the facts will be necessary before analyzing the district court's decision and reasoning in more detail. Mrs. Coffran was admitted to the Hospital for her hernia problem on April 14, 1970. She was operated on the next day, at which time she received halothane, an anesthetic which defendant's expert testified is used in one-third of all operations, and is considered in most instances particularly safe and effective. This was the second time in her life that halothane had been administered to her, the first being in 1964. The April hernia repair was not completely satisfactory, and Mrs. Coffran was re-admitted on June 4, 1970 for further surgery. During the operation on June 5, she again received halothane. After returning home, she became jaundiced about June 15. She returned to the Hospital on June 18, and was diagnosed as suffering from hepatitis. Her condition worsened, resulting in some brain damage due to hepatic encephalopathy. Her treating physician, Dr. McCleery, diagnosed Mrs. Coffran as suffering from hepatitis caused by the June exposure to halothane.

Although it was known in 1970 that a tiny number of patients who received halothane later contracted hepatitis, there was some question among experts within the medical profession whether the hepatitis was actually caused by the halothane. Those who believed that halothane caused hepatitis-and the evidence suggests that the believers outnumbered the disbelievers-posited a "sensitization" theory, as follows. A patient who is susceptible to halothane hepatitis is sensitized to halothane by exposure; there is no hepatitis at this time. After a subsequent exposure to halothane, however, the sensitized patient does contract hepatitis. This sensitization process is to be distinguished from direct toxic disease reactions, whereby liver damage is caused by the first exposure to a drug, and by a very different mechanism. Those doctors who did not accept the validity of the halothane sensitization thesis believed that halothane had been mistakenly incriminated in cases of viral hepatitis which became clinically evident after operations using halothane. Regardless of whether the halothane actually caused the hepatitis, or was merely innocently associated with it, the incidence of hepatitis following use of halothane was very rare: one study of fatal hepatic occurrences reported only nine otherwise unexplained fatal hepatic occurrences out of 250,000 administrations of halothane. Two points are vital. First, there was not at the time of trial, or in 1970, a preoperative test which could definitively identify those patients who would be susceptible to halothane sensitization, or who already were sensitized. Second, once hepatitis was contracted, there was no test which could distinguish between "halothane hepatitis" (if indeed it existed) and other forms, such as viral hepatitis.

Plaintiffs' theory was that Mrs. Coffran's hepatitis was caused by her exposure to halothane in June, following sensitization by the April 1970 or 1964 administrations of halothane. They argued that while there was no single test to predict halothane sensitivity, Mrs. Coffran exhibited certain "markers" of sensitivity that should in the exercise of due care have been recognized, resulting in the choice of a different anesthetic (or in at least the administration of additional tests that might have further suggested sensitivity). Plaintiffs also asserted that the Clinic negligently omitted certain pre-operative tests in June which, had they been done, would have shown halothane sensitivity. The Clinic contended that Mrs. Coffran's hepatitis was not caused by halothane; that even if it was, its doctors were not negligent in failing to recognize her alleged markers of sensitivity; and that even if it was negligent in failing to perform the pre-operative tests, this failure was not a cause of Mrs. Coffran's hepatitis, since the tests would not have shown anything to contraindicate the use of halothane.

Plaintiffs presented four expert witnesses at trial: Dr. Bricker, a general practitioner and expert in "legal medicine"; Dr. McCleery, a gastroenterologist ² and member of the Clinic, who was Mrs. Coffran's primary treating physician since the onset of her hepatitis; Dr. Sy, ³ the anesthesiologist who prescribed halothane for Mrs. Coffran in April and June; and Dr. Barnett Greene, an anesthesiologist who was widely published, but had written nothing specifically about halothane. Defendant presented one expert, Dr. Nicholas Greene, the chairman of the Yale Medical School's Department of Anesthesiology, whose publications included work on halothane.

Plaintiffs' evidence suggested a number of different negligent acts or omissions by the Clinic with respect to the April operation. These, however, could not have directly caused Mrs. Coffran's injury since it was not plaintiffs' theory that Mrs. Coffran contracted halothane hepatitis at that time. ⁴ Plaintiffs also...