Patel v. Gayes

Citation984 F.2d 214
Decision Date29 March 1993
Docket NumberNo. 91-2210,91-2210
PartiesBhupendra C. PATEL, also known as "Ben" Patel, and Meena B. Patel, his wife, Plaintiffs-Appellants, v. 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

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.

I BACKGROUND

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.

II

ANALYSIS

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

                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

We must decide whether Drs. Susarla and Robin acquired their opinions about the correct duty of care directly through their treatment of Mr. Patel. If so, the Patels were not required to identify them as expert witnesses under Rule 26(b)(4), and the court erred in excluding their testimony. The Patels contend that they did not have to identify the physicians because "these experts did not become involved in this case in anticipation of litigation, but became involved as treating physicians." Appellant's Br. at 25. Dr. Gayes counters that Drs. Susarla and Robin needed to be identified as experts because their proposed testimony "went beyond the substantive and temporal scope" of their treatment of Mr. Patel. Appellee's Br. at 18. As a result, their opinions "went beyond [their] professional relationship with Ben Patel, and into the realm of pure expert testimony." Id. at 22.

In order to determine if an expert need be identified before trial, Rule 26 focuses not on the status of the witness, but rather on the substance of the testimony. 3 See Nelco Corp., 80 F.R.D. at 414 ("[u]nder Rule 26(b)(4)(A), a witness sought to be discovered may be an 'expert' as to some matters and an 'actor' as to others."); accord Quarantillo, 106 F.R.D. at 437. Under the Federal Rules, an expert must be identified if his testimony does not come from his personal knowledge of the case, Jenkins, 785 F.2d at 728, or if his knowledge was "acquired or developed in anticipation of litigation or for trial." Grinnell Corp. v. Hackett, 70 F.R.D. 326, 331 (D.R.I.1976). The testimony of Drs. Susarla and Robin with respect to the standard of care falls within this category. As Dr. Gayes points out, at least one of the documents upon which the physicians were asked to comment, the electrocardiogram (EKG), was not used by them to treat Mr. Patel. Therefore, their knowledge, in this instance, was not based on their observations during the course of treating his illness. Moreover, the physicians were questioned about their opinion of the general medical standard of care within the community. As the district court determined, this is "classic" expert testimony. A witness would formulate such an opinion only when preparing for litigation. Accordingly, we cannot conclude that the district court's ruling was "manifestly erroneous." 4

2. Jury instructions

The Patels next contend that the district court committed five reversible errors in its handling of the jury instructions. Specifically, the court refused to read four of the Patels' proposed instructions 5 and substituted the words "wrongful conduct" for "negligence" in the proposed jury instruction on damages. Our review of a district court's choice in jury instructions is limited.

"In diversity cases, state law determines the substance of jury instructions, while federal law governs the procedure in formulating the instructions and the manner in which they are given." Simmons Inc. v. Pinkerton's Inc., 762 F.2d 591, 595 (7th Cir.1985). Moreover, we review jury instructions only to determine if "the instructions as a whole were sufficient to inform Proposed Instruction 9 would have instructed the jury that it could draw an adverse inference against Dr. Gayes for failing to introduce into evidence an American Heart Association study upon which a substantial portion of his testimony was based. 7 Instruction 9 is based upon Illinois Pattern Civil Jury Instruction No. 5.01, which by its terms is only appropriate when the evidence withheld was not readily available to the other party. Illinois Pattern Jury Instructions No. 5.01 (West 3d ed. 1992) (hereinafter IPI); Myre v. Kroger Co., 176 Ill.App.3d 160, 125 Ill.Dec. 713, 715, 530 N.E.2d 1122, 1124 (1988). Whether to give IPI No. 5.01 is a matter within the sound discretion of the trial court. Roeseke v. Pryor, 152 Ill.App.3d 771, 105 Ill.Dec. 642, 648, 504 N.E.2d 927, 933 (1987). In the present case, the challenged evidence was a study issued by the American Heart Association, which presumably the Patels could have obtained on their own. Moreover, the Patels were permitted to argue to the jury the fact that the study had not been introduced. Accordingly, we cannot...

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