Hill v. Porter Memorial Hosp., 95-2716

• Decision Date: 19 July 1996
• Docket Number: No. 95-2716,95-2716
• Parties: , 45 Fed. R. Evid. Serv. 191 Mary HILL, Widow and personal representative for the Estate of Robert J. Hill, Deceased, Plaintiff-Appellant, v. PORTER MEMORIAL HOSPITAL, John L. Swarner, M.D., Antonio D. Zelaya, M.D., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 220

90 F.3d 220

35 Fed.R.Serv.3d 946, 45 Fed. R. Evid. Serv. 191

Mary HILL, Widow and personal representative for the Estate

of Robert J. Hill, Deceased, Plaintiff-Appellant, v. PORTER MEMORIAL HOSPITAL, John L. Swarner, M.D., Antonio D.

Zelaya, M.D., et al., Defendants-Appellees.

No. 95-2716.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 1996.

Decided July 19, 1996.

Priscilla A. Herochik, Merrillville, IN, Timothy O. Malloy (argued), James E. Schreiner, George C. Patrick, Schreiner & Malloy, Schererville, IN, for Plaintiff-Appellant.

Kathleen M. Maicher (argued), John P. McQuillan, Robert D. Brown, Spangler, Jennings & Dougherty, Merrillville, IN, for Porter Memorial Hospital, Hartley M. Thomas and Porter Emergency Physicians Associates, P.C.

David C. Jensen (argued), Alyssa Forman Stamatakos, Eichhorn & Eichhorn, Hammond, IN, for John L. Swarner and Tim Whetsel.

F. Amin Istrabadi, Michael S. Baechle (argued), Baechle & Istrabadi, Merrillville, IN, for Antonio D. Zelaya.

Before POSNER, Chief Judge, and RIPPLE and MANION, Circuit Judges.

MANION, Circuit Judge.

While at work Robert Hill fell from a loading dock onto railroad tracks crushing his face and jaw. He was rushed to a hospital where one day later he suffered respiratory arrest. Further complications, including lack of oxygen to Hill's brain during the respiratory arrest, produced a coma and he eventually died. Hill's widow sued claiming medical malpractice. The defendants asserted Hill's respiratory arrest and death were due to preexisting blocked arteries. A jury found for the defense, and Mrs. Hill appeals, claiming error on a number of evidentiary and other rulings. We affirm the district court's decision on the merits and sanction Mrs. Hill's counsel for failing to include the district court's orders in the appendix as required under Rule 30.

I.

While at work at Bethlehem Steel in northwest Indiana in May 1990, Robert Hill fell eight feet from a loading dock onto railroad tracks. An ambulance transported him to the emergency room at Porter Memorial Hospital. Hill had suffered a serious head injury and fractured nearly every bone in his face. He was in much pain. At times he exhibited agitated, confused, and restless behavior; at others he cooperated with directions from medical personnel. This behavior was consonant with a low level of oxygen in the blood. Hospital personnel gave Hill a sedative and a pain killer. He exhibited no respiratory problems and his blood gases, including oxygen, eventually climbed within acceptable ranges. A CT scan of his head was normal.

The next night Hill went into respiratory arrest. Oxygen was forced into his lungs and doctors made several unsuccessful attempts to place a breathing tube down his throat. After 19 minutes the doctors finally intubated Hill, and his heartbeat, pulse, and blood pressure were restored. Nevertheless, as a result of the respiratory arrest Hill had suffered brain damage, leaving him comatose.

A test administered after the respiratory arrest showed blockage in the blood flow to Hill's brain. Of the two arteries that should nourish his brain stem, one was completely blocked and the other was over 90% narrowed. One doctor described Hill's diseased arteries as "generally inconsistent with life." Of the six other patients in whom that doctor had observed such a condition, five died as a result. The doctor said that the process which blocked these arteries predated by years or decades the respiratory arrest in the hospital.

After eleven weeks Hill was discharged from the hospital. He remained in a coma until he died in January 1991, eight months after the accident. Hill's wife, personal representative for his estate and a registered nurse, blamed her husband's suffering and death on the hospital, his treating physicians, hospital personnel, and a related clinic. As required by Indiana law, Mrs. Hill presented her medical malpractice claim to a medical review panel which unanimously found that the defendants met the applicable standard of care in treating Hill. She then pursued her claim in federal court alleging medical malpractice in the treatment and care of her husband. By consent of the parties and pursuant to Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c), the case was referred to a magistrate judge who conducted an eleven-day trial. One of Mrs. Hill's expert witnesses opined that Hill's respiratory arrest resulted not from brain stem stroke, but from hypoxia, or lack of tissue oxygenation. Mrs. Hill claimed that medications prescribed for her husband suppressed his respiratory drive, leading to oxygen deprivation, cessation of breathing, a coma, and eventually death. Mrs. Hill also claimed that the defendants failed to monitor her husband and to recognize his condition and that the resuscitation effort during and after the respiratory arrest was substandard. A jury rendered a general verdict for the defendants. ¹

II.

On appeal Mrs. Hill raises a myriad of arguments. ² Only two require extended discussion. First, at oral argument Mrs. Hill's counsel was asked to discuss the most grievous error in the district court. He claimed it was a violation of the district court's pre-trial separation of witnesses order pursuant to Fed.R.Evid. 615. Specifically, Mrs. Hill asserts that doctors testifying as defense expert witnesses "tailored" their trial testimony after reviewing a transcript of the trial testimony of one of her expert witnesses. Second, Mrs. Hill challenges the magistrate judge's decision to strike the testimony of two of her expert witnesses because their late disclosure violated the court's scheduling order.

We review the magistrate judge's evidentiary rulings for abuse of discretion. Richardson v. Consolidated Rail Corp., 17 F.3d 213, 216 (1994). We inquire, therefore, not whether we would have ruled differently if we had tried the case, but rather whether the magistrate judge's decisions were reasonable. Antevski v. Volkswagenwerk, 4 F.3d 537, 540-41 (7th Cir.1993).

A. Violation of Witness Separation Order

Before trial the magistrate judge issued a witness separation order pursuant to Fed.R.Evid. 615, which provides that the court shall order witnesses excluded from trial so they cannot hear the testimony of other witnesses. During trial, part of the testimony of Dr. Kelly (a neuroradiologist), one of Mrs. Hill's expert witnesses, was transcribed and presented for review to Drs. Rosen (an internist) and Geremia (a neuroradiologist), expert witnesses retained by the defense. Dr. Kelly testified about a study performed on Hill a week after the accident which assessed the blood supply to certain portions of Hill's brain. Dr. Kelly had never been deposed, and testified during Mrs. Hill's case-in-chief that his findings of arterial blockage were "incompatible with life." Drs. Rosen and Geremia testified that Hill stopped breathing because of a lack of adequate blood supply to the brain stem and that the disease process which produced the blockages had been ongoing for quite a while.

Although a witness called by the plaintiff, Dr. Kelly's trial testimony cut against Mrs. Hill's trial theory that pre-existing arterial blockages had no relationship to Hill's respiratory arrest. Upon realizing that before testifying Drs. Rosen and Geremia had read the trial transcript of Dr. Kelly's testimony, Mrs. Hill's counsel moved that their testimony be stricken, arguing that Drs. Rosen and Geremia "tailored" their expert opinions based on Dr. Kelly's testimony. In the alternative, Mrs. Hill's counsel requested that the jury be instructed concerning the credibility of an expert witness who had reviewed another witness' trial testimony.

The magistrate judge refused to strike the doctors' testimony. He found no evidence that the doctors had tailored their opinions based on Dr. Kelly's testimony. As a cautionary measure the magistrate judge granted Hill's counsel's alternative request and instructed the jury on evaluating the credibility of a witness alleged to have violated the separation order. He also said that Hill's counsel could have the defense's expert testimony transcribed and given to plaintiff's expert rebuttal witnesses.

We scrutinize for abuse of discretion the district court's decision to permit the expert testimony of Drs. Rosen and Geremia notwithstanding that they had read the trial testimony of Dr. Kelly. Federal Rule of Evidence 703 expressly states that an expert can base his opinion on the facts and data learned from attending the trial and listening to testimony. This is precisely the conduct of which Mrs. Hill complains. See, e.g., United States v. Crabtree, 979 F.2d 1261, 1270 (7th Cir.1992) (claim that FBI agent seated at counsel table who testified as expert witness violated Rule 615 order; district court did not abuse its discretion by allowing agent to testify because "there is little if any difference between counsel disclosing prior testimony to an expert and having an expert listen to such testimony in the courtroom"), cert. denied, 510 U.S. 878, 114 S.Ct. 216, 126 L.Ed.2d 173 (1993).

If witnesses fashion their testimony based upon another witness' testimony, Rule 615 is violated. See United States v. Jackson, 60 F.3d 128, 133 (2d Cir.1995) ("Rule 615 codified a well-established common law tradition of sequestering witnesses 'as a means of discouraging and exposing fabrication, inaccuracy, and collusion.' ... [T]his practice ... serves two purposes: it 'exercises a restraint on witnesses "tailoring their" testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid.' ") (quoting Fed.R.Evid. 615 Advisory Committee Notes and Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1335, 47 L.Ed.2d 592 (1976)). These doctors provided expert reports before trial pursuant to Fed.R.Civ.P. 26(a)(2)(A) and gave depositions at which their opinions were memorialized. They maintained and testified to the...