Peterson v. Willie
| Decision Date | 25 April 1996 |
| Docket Number | No. 94-4608,94-4608 |
| Citation | 81 F.3d 1033 |
| Parties | Mariann PETERSON, as Guardian of Brian Peterson, Plaintiff-Appellant-Cross-Appellee, v. Richard P. WILLIE, individually and as Sheriff of Palm Beach County; Edwin E. Goodbread, Jr.; Earl S. Jackson; Palm Beach County Board of County Commissioners; Burr Prentice; Gail Donald, individually and as Doctors and Nurses employed by Correctional Care, Incorporated and Emergency Medical Services Associates, Incorporated, Defendants, Correctional Care, Inc., a Florida Corporation and wholly-owned subsidiary of Emergency Medical Services Associates, Inc., a Florida Corporation; Emergency Medical Services Associates, Inc., a Florida Corporation; J. Clifford Findeiss, individually and as president of Correctional Care, Inc. and Emergency Medical Services Associates, Inc.; Lawrence Anthony, Dr.; Joyce Jopek-Peters, R.N.; and Mary Ann Irwin, R.N., individually and as a Deputy Sheriff and/or Corrections Officer of the Palm Beach Sheriff's Office and as a nurse employed by Correctional Care, Incorporated and Emergency Medical Services Associates, Incorporated, Defendants-Appellees-Cross-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Barbara A. Heyer, Gold & Heyer, P.A., Ft. Lauderdale, FL, Wayne J. Miller, Birmingham, MI, for appellant.
Janis Brustares Keyser, Gay, Ramsey & Lewis, P.A., West Palm Beach, FL, for appellees.
Appeals from the United States District Court for the Southern District of Florida.
Before COX, Circuit Judge, DYER, Senior Circuit Judge, and GOETTEL *, Senior District Judge.
Plaintiff-appellant Brian Peterson ("Peterson") appeals from judgment entered on a jury verdict in the Southern District of Florida which did not find appellees Correctional Care, Inc., Emergency Medical Services Associates, Inc., J. Clifford Findeiss, Mary Ann Irwin, Dr. Lawrence Anthony, and Joyce Jopek-Peters (collectively "appellees") liable for injuries Peterson sustained while under appellees' care and supervision. Peterson argues that the district court erred in allowing the appellees to present the testimony of an expert witness who had been previously retained and designated as a trial witness by Peterson's original counsel, but later was discharged. Peterson also maintains that the district court erred in allowing appellees to assert his continuing ability to receive "free" medical benefits. Finally, Peterson contends that the jury's verdict was contrary to the great weight of the evidence, and that the district court erred in denying his motion for a new trial.
Appellees cross appeal, asserting that the district court erred in denying their motion for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure. Because we affirm the district court's judgment, we need not address appellees' cross appeal.
Briefly stated, the facts are as follows. Brian Peterson was a pretrial detainee at the Palm Beach County Stockade (the "facility"). Correctional Care, Inc., a wholly owned subsidiary of Emergency Medical Services Associates, Inc., was the provider of medical care for inmates at the Palm Beach County jail facilities. J. Clifford Findeiss was president of both corporations. The remaining appellees, Joyce Jopek-Peters, Mary Ann Irwin, and Dr. Lawrence Anthony were a doctor and the nurses who provided medical services to inmates at the Palm Beach County Stockade.
While Peterson was a pretrial detainee, and had been at the facility for about one month, he was assaulted by another inmate. As a result of this incident, he sustained a brain stem injury leaving him without the ability to walk, talk, or eat any food through his mouth. He retains the ability to comprehend his surroundings.
Peterson brought a § 1983 claim against appellees and several other defendants 1 alleging that their "deliberate indifference" in providing necessary medical care and treatment constituted a violation of his constitutional rights. See Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986). The essence of Peterson's claim was that, because of his medical condition and the appellee's failure to provide him with appropriate medical care, he appeared "retarded." 2 Appearing retarded, Peterson claims that he was subject to abuse from the general inmate population. One such incident involved the assault which caused his injuries.
Peterson asserts that it was common knowledge among the corrections and medical staff that anyone with a physical or mental disability would be a target of abuse by other inmates. To protect such inmates, it was the written policy of Correctional Care, Inc. that the mental health services coordinator would be notified if an inmate was suspected of being mentally retarded or disabled. He would then be evaluated and segregated if necessary. Peterson argues that if he had been properly treated, he would not have been the victim of the assault which caused his injuries.
After a 12 day trial, the jury returned a verdict in favor of the appellees. (Since the jury found that the appellees were not liable for Peterson's injuries, they did not return a verdict on damages.) The trial court entered judgment on the jury verdict on May 5, 1994 and denied Peterson's motion for a new trial.
Two of the three issues Peterson raises on appeal deal with alleged errors at trial that relate to damages. First, he argues that the district court erred in allowing the testimony of Dr. Craig Lichtblau, an expert once retained by him but later discharged. Second, Peterson argues that the district court erred in allowing appellees to assert his continuing ability to receive "free" government medical benefits.
In reviewing both rulings, we must determine whether the district court abused its discretion. U.S. v. Hines, 955 F.2d 1449, 1454 (11th Cir.1992); Scheib v. Willaims-McWilliams Co., Inc., 628 F.2d 509, 511 (5th Cir.1980); Vanskike v. Union Pacific R. Co., 725 F.2d 1146, 1149 (8th Cir.1984). If we find that the district court erred, we must further determine whether the error was harmless. "Errors in evidentiary rulings are not grounds for reversal unless substantial prejudice results." King v. Gulf Oil Co., 581 F.2d 1184, 1186 (5th Cir.1978); Fed.R.Civ.P. 61; Fed.R.Evid. 103. Statements made in oral arguments must be plainly unwarranted and clearly injurious to constitute reversible error. Vanskike, 725 F.2d at 1149. While we find that the district court erred, these errors do not mandate reversal.
Peterson's former attorney retained Dr. Lichtblau, a psychiatrist, and designated him as an expert witness expected to testify at trial pursuant to Federal Rule of Civil Procedure 26(b)(4)(A)(i). Shortly before his scheduled deposition noticed by defendants and not objected to by Peterson, Dr. Lichtblau reexamined Peterson, without Peterson's attorneys' instruction or knowledge. Dr. Lichtblau then testified at the deposition that, as a result of his second examination, his opinion concerning Peterson's future placement had changed. 3 Peterson's current counsel subsequently withdrew the designation of Dr. Lichtblau as a trial expert and filed a motion in limine seeking to preclude him from testifying on behalf of the appellees. The district court later overruled Peterson's objections, and permitted Dr. Lichtblau to testify concerning his opinion as well as the fact that he had been previously retained by an attorney representing Peterson.
Peterson argues that two possible reasons motivated appellees calling Dr. Lichtblau. First, he argues that appellees sought to "buttress" the testimony of one of their other expert witnesses. As such, Peterson argues that Dr. Lichtblau's testimony was improper as merely cumulative. Appellees, of course, disagree, citing Dr. Lichtblau's superior knowledge of local facilities and his observations of Peterson's condition several months prior to their other expert's examination. We do not find that the district court abused its discretion in finding that Dr. Lichtblau's testimony was not merely duplicative and cumulative of appellees' other expert.
Second, Peterson argues that appellees other possible reason for calling Dr. Lichtblau was to inform the jury that Dr. Lichtblau had been originally hired by Peterson's counsel, but had been withdrawn when counsel disagreed with his opinion. Peterson argues that "[t]he coupling of his opinion testimony with the testimony that he had been hired by the Appellant, but was not utilized by the Appellant, gave the jury the ... inference ... that something was being hidden from them by Appellant's counsel." Reply Brief of Appellant and Cross-Appellee's Response Brief, p. 2-3. We agree.
Several courts have noted the prejudice that results from informing a jury that an expert had been originally consulted by the opposing party. See, e.g., Healy v. Counts, 100 F.R.D. 493 (D.Colo.1984). In Granger v. Wisner, 134 Ariz. 377, 656 P.2d 1238, 1242 (1982), the court asserted:
Jurors unfamiliar with the role of counsel in adversary proceedings might well assume that plaintiff's counsel had suppressed evidence which he had an obligation to offer. Such a reaction could destroy counsel's credibility in the eyes of the jury.
In Rubel v. Eli Lilly and Company, 160 F.R.D. 458, 460 (S.D.N.Y.1995), the court, quoting 8 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil § 2032, at 447 (1994), described this prejudicial fact as "explosive."
Courts have differed in their approach to such situations. Some have permitted a party to call a witness originally consulted by the opposing party, but prohibited the party from offering evidence that the witness had been previously consulted by the opposing party. See, e.g., Granger, 656 P.2d 1238; Sun Charm Ranch, Inc. v. City of Orlando, 407 So.2d 938 (Fla. 5th DCA, 1981). This approach may inhibit adequate cross examination. See Gr...
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