984 F.2d 214 (7th Cir. 1993), 91-2210, Patel v. Gayes

Docket Nº:91-2210.
Citation:984 F.2d 214
Party Name:Bhupendra C. PATEL, also known as
Case Date:January 21, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 214

984 F.2d 214 (7th Cir. 1993)

Bhupendra C. PATEL, also known as "Ben" Patel, and Meena B.

Patel, his wife, Plaintiffs-Appellants,


Richard C. GAYES, M.D., Thomas Engel, M.D., and Evangelical

Health Systems Corporation, doing business as Good

Shepherd Hospital, an Illinois

corporation, Defendants-Appellees.

No. 91-2210.

United States Court of Appeals, Seventh Circuit

January 21, 1993

Argued April 2, 1992.

Rehearing and Rehearing En Banc

Denied March 29, 1993.

Page 215

[Copyrighted Material Omitted]

Page 216

Kenneth C. Chessick, John W. Fisk (argued), Daniel L. Giudice, Schaumburg, IL, for plaintiffs-appellants.

John Joseph Mustes (argued), Thomas P. Hartnett, Kathleen A. Bridgman, Connelly, Mustes, Schroeder, John N. Seibel, Cassiday, Schade & Gloor, Chicago, IL, for defendants-appellees.

Before FLAUM and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

RIPPLE, Circuit Judge.

This is an appeal from a jury verdict for the defendant, Dr. Richard Gayes, in a medical malpractice action. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1988). For the reasons that follow, we affirm.



On October 9, 1986, Bhupendra Patel underwent a cardiac stress test arranged by his physician, Dr. Richard Gayes, and performed by Dr. Thomas Engel, a cardiologist. The test revealed abnormal activity that indicated that Mr. Patel was suffering from heart disease. Dr. Engel informed Dr. Gayes of the results. That same day, Dr. Gayes informed Mr. Patel that the results of the test were abnormal, but he did not instruct him to take any special precautions. Two days later, Mr. Patel moved and serviced a sump pump weighing thirty pounds. Early the following morning, he suffered a heart attack. Following his heart attack, Mr. Patel was treated by Drs. Susarla and Robin.

Mr. Patel and his wife, Meena Patel, brought the present civil action against Dr. Gayes for negligent malpractice. Specifically, they allege that the heart attack could have been prevented had Dr. Gayes cautioned Mr. Patel to avoid strenuous or stressful activities until further tests were performed. The Patels brought their claim in federal court pursuant to 28 U.S.C. § 1332 (diversity jurisdiction). A jury found Dr. Gayes was not liable, and the district court subsequently denied the Patels' request for a new trial. For the reasons that follow, we now affirm.



Mr. Patel and his wife allege four separate trial errors: (1) that the court erred in excluding opinion testimony from two of the physicians who treated Mr. Patel; (2) that the court erred in not reading four proposed jury instructions, and in altering the language of a fifth; (3) that the court

Page 217

erred in preventing certain hypothetical questions from being asked to the Patels' expert witness; and (4) that the court erred in excluding certain evidence on the scope of damages. We address each of these contentions in turn.

  1. Exclusion of expert testimony from treating physicians

    During discovery, Dr. Gayes served an interrogatory pursuant to Rule 26(b)(4)(A) of the Federal Rules of Civil Procedure. He sought the names of all experts who would testify at trial, the subject matter on which they were expected to testify, and the substance of the facts and opinions that they were expected to give. The Patels responded that their only expert would be Dr. John Vyden, a cardiologist.

    Prior to trial, Dr. Gayes filed a motion in limine to prevent Drs. Susarla and Robin, Mr. Patel's subsequent treating physicians, from giving expert testimony because they had not been identified as experts in the Patels' response to the Rule 26(b)(4) interrogatory. Dr. Gayes had deposed both doctors during discovery. In an in limine proffer of testimony, both Dr. Susarla and Dr. Robin gave opinions on the standard of care to which Dr. Gayes should have adhered. After defense objections, the court disallowed this testimony because the Patels had not identified these two physicians as experts under Rule 26.

    As a preliminary matter, we note that "we review a district court's decision to exclude expert testimony under an abuse of discretion standard, and the trial court's determination will be affirmed unless it is 'manifestly erroneous.' " Mercado v. Ahmed, 974 F.2d 863, 871 (7th Cir.1992) (citations omitted). Federal Rule of Civil Procedure 26(b)(4)(A)(i) 1 provides:

    A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

    If a party fails to adhere to the standards of Rule 26(b), the district court may, in its discretion, bar the party from presenting that expert's testimony. Blumenfeld v. Stuppi, 921 F.2d 116, 117 (7th Cir.1990).

    The text of Rule 26(b)(4) would appear to require the disclosure of all persons who would provide expert testimony at trial. However, the Advisory Committee Notes and cases interpreting the rule apply a more narrow interpretation. Specifically, the Notes state that "the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness." Fed.R.Civ.P. 26(b)(4)(A), Advisory Committee Note. Consequently, an expert need not be identified if he was "a viewer or actor with regard to the disputed question." Jenkins v. Whittaker Corp., 785 F.2d 720, 728 (9th Cir.), cert. denied, 479 U.S. 918, 107 S.Ct. 324, 93 L.Ed.2d 296 (1986). 2

    Page 218

    We must decide whether Drs. Susarla and Robin acquired their opinions about the correct duty of care directly...

To continue reading