Bradley v. U.S.
| Citation | 866 F.2d 120 |
| Decision Date | 21 February 1989 |
| Docket Number | No. 87-1668,87-1668 |
| Parties | , 15 Fed.R.Serv.3d 1298 Dirk and Cynthia BRADLEY, Individually and as Next Friends for Their Minor Son Brad Alan Bradley, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Ronald E. James, Jack E. Morris, Benson, Pantello, Morris & James, Fort Wayne, Ind., Kae Brockermeyer, Fort Worth, Tex., for plaintiffs-appellants.
Mattie Peterson Compton, Asst. U.S. Atty., James A. Rolfe, U.S. Atty., Fort Worth, Tex., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before KING, WILLIAMS, and SMITH, Circuit Judges.
Plaintiffs Dirk and Cynthia Bradley appeal from a take-nothing judgment entered after a bench trial on their claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b) and 2671 et seq., against the United States for medical malpractice. We conclude that the government purposefully disregarded--indeed, had a policy of disregarding--its duties under the Federal Rules of Civil Procedure, the district court's own local rules, and the court's pretrial order seasonably to identify for the Bradleys the expert witnesses whose testimony it intended to present at trial. For that reason, we vacate and remand.
While her husband was stationed at Carswell Air Force Base ("AFB") near Fort Worth, Texas, Cynthia consulted Dr. Anthony Fasano, a member of the medical staff of the base hospital, on November 7, 1977. Cynthia told Fasano that she had discontinued using birth control pills in May 1977, after which she had had normal menstrual periods in late May and June, that she did not have a menstrual period in July, and that she experienced heavy bleeding in the first week of August. After recording this information and examining Cynthia, Fasano told her that she was 10 to 12 weeks pregnant.
Because Cynthia had delivered a previous child by cesarean section, Fasano and the other doctors who would later become involved in Cynthia's case informed her that she should again deliver by way of an elective, non-emergency cesarean section. The standard practice for performing a repeat cesarean section was to operate before Cynthia went into labor; at the same time, however, the doctors wished to avoid performing the cesarean section too early, lest the infant be delivered prematurely. Thus, estimating the gestational age of Cynthia's fetus became of the utmost importance. Based upon his initial observations, Fasano recorded in Cynthia's medical records that her estimated date of confinement (EDC) was May 14, 1978.
Cynthia saw Fasano again on December 5, 1977, at which time he estimated the fetus to be at 17 weeks gestation. At her third visit on January 3, 1978, Fasano reported that he did not hear any fetal heart tones and that the fetus was at 21 weeks gestation. One week later, however, Fasano reported that he could hear fetal heart tones, that Cynthia's uterus was at her umbilicus, and that the fetus had an estimated gestational age of 21 weeks.
On April 5, 1978, Fasano, noting that the date of Cynthia's last menstrual period was uncertain, requested that an ultrasound examination be performed. Prior to the performance of the ultrasound, Cynthia met with Dr. Vernon Hayes, who, after reviewing her records, determined her EDC to be May 14, 1978, and scheduled her for delivery by cesarean section on May 10, 1978.
Dr. John Coscia, a radiologist, performed the ultrasound requested by Fasano on April 12, and, based upon his measurements, estimated the fetus to be at 35 weeks gestation. On April 28, Fasano again examined Cynthia, estimated her fundus at 39 centimeters, and noted that the "sonogram matches dates exactly."
On May 9, 1978, Cynthia was admitted to the Carswell AFB Hospital. When she was admitted, Dr. Thomas Johnson, Chief of Obstetrics and Gynecology at the hospital, and Dr. Carlos de la Garza both reviewed her charts and confirmed that her EDC as May 14, 1978. One day later, de la Garza, with Fasano and Johnson in attendance, performed a cesarean section on Cynthia.
Brad Alan Bradley was born at 8:08 a.m. on May 10, 1978, weighed 2500 grams, and, according to a Dubowitz exam, had a gestational age of 35-36 weeks, indicating that he had been delivered prematurely. At birth, he was suctioned, began to breath spontaneously, and exhibited a one-minute Apgar score of 9. 1 Shortly thereafter, he suffered severe respiratory distress, resulting in asphyxia when his respirations ceased and his heart rate fell below 60; although he was immediately intubated and resuscitated, his five-minute Apgar score was 4. Because the hospital did not have the facilities to care for a premature infant, Brad was transferred to a neonatal intensive care unit at another hospital, where he remained until May 15, 1978.
According to the district court, Brad's condition was "uneventful" until April 1979, at which time the Bradleys began to notice abnormalities in his development. In August 1979, Brad suffered a seizure requiring hospitalization; a CAT scan revealed that Brad had a large lesion on the left side of his brain caused by an intracranial hemorrhage. It is now certain that Brad suffers from multiple handicaps, including epilepsy, mental retardation, and cerebral palsy, and will require significant care for the remainder of his life.
The Bradleys, after complying with the notice provisions of the FTCA by filing an administrative claim on March 29, 1981, filed the instant suit on March 5, 1984, alleging that the government's doctors negligently scheduled and performed Brad's delivery by cesarean section. On July 17, 1984, the Bradleys served upon the government interrogatories that requested, inter alia, that the government identify "each expert witness whose opinion the Defendant intends to present at [ ] trial," and all of the articles, journals, books, or other sources which the government or its experts intended to assert as authoritative.
The government responded to the interrogatories on September 18, 1984. In answer to the Bradleys' request that it identify its expert witnesses, the government stated: "The Defendant has not selected an expert at this time." Similarly, in response to the Bradleys' request that it identify all authoritative secondary sources which it intended to use at trial, the government, after identifying a standard medical treatise on obstetrics, J. Pritchard & P. MacDonald, Williams Obstetrics (1976), stated that, because it "has not selected an expert at this time [ ] it has therefore not yet selected any articles, journals or other publications as authoritative." These answers were never subsequently altered or amended.
On January 17, 1985, the court ordered that, in accordance with local rules, the parties were to prepare and present to the court a pretrial order by June 10, 1985, and that the case be set for trial on June 24, 1985. The parties submitted a pretrial order to the court on June 10, 1985, in which the government, having been ordered to list all of the expert witnesses it intended to call at trial, again failed to identify any expert witnesses.
Although both parties appeared before the court on June 24, 1985, and announced their readiness to go to trial, the trial was postponed and rescheduled for March 24, 1986, with a joint pretrial order due on March 14, 1986. Neither party amended the joint pretrial order previously submitted to the court, and no new pretrial order was filed; on March 17, 1986, the trial was postponed a second time until July 21, 1986. Finally, on May 22, 1986, the trial was postponed a third time until February 2, 1987, with a joint pretrial order due January 16, 1987.
At no time during these various postponements did either party seek to amend the pretrial order submitted on June 10, 1985, and no new pretrial order was filed prior to the February 2, 1987, trial date. On January 23, 1987, however, the government moved to designate two expert witnesses--a Dr. Alvin Brekken and a Dr. William R. Bernell--out of time. The Bradleys, while filing papers opposing the government's motion, quickly deposed the two witnesses.
On Monday, February 2, 1987, both parties appeared, ready for trial. Although they stated that under the circumstances they did not want the trial to be postponed yet a fourth time, the Bradleys continued to oppose the government's motion. Noting that the Bradleys already had deposed the two witnesses, however, the court granted the government's motion and allowed Brekken and Bernell to testify.
After the trial, the court rendered judgment for the United States. In its findings of fact and conclusions of law, the court concluded that the Bradleys had failed to prove both that the Air Force doctors were negligent in scheduling Brad's delivery and that the doctors' actions were the proximate cause of his handicaps. The Bradleys appeal, contending (1) that the court erred by granting the government's motion to designate the two expert witnesses and allowing them to testify, and (2) that the court's factual findings are clearly erroneous.
Under Fed.R.Civ.P. 26(e)(1), a party
has a duty seasonably to supplement [its] response [to a request for discovery] with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony.
Even the government admits that, at least as to Bernell, it breached this rule; 2 moreover, there is little question that the government failed to comply with either the local rules of the district in which the case was tried 3 or the court's pretrial order, 4 both of which required it to designate its expert witnesses within a certain period.
The breach having been established, the only question remaining is that of remedy....
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