Bair v. Callahan

• Citation: 775 F.Supp.2d 1163
• Decision Date: 25 February 2011
• Docket Number: CIV. No. 4:09–cv–04009–RAL.
• Parties: Robin BAIR and Francis Zephier, Plaintiffs,v.Robert A. CALLAHAN, M.D., Defendant.
• Court: U.S. District Court — District of South Dakota

775 F.Supp.2d 1163

Robin BAIR and Francis Zephier, Plaintiffs,

v.Robert A. CALLAHAN, M.D., Defendant.

CIV. No. 4:09–cv–04009–RAL.

United States District Court, D. South Dakota, Southern Division.

Feb. 25, 2011.

John P. Blackburn, Blackburn & Stevens, Prof. L.L.C., Yankton, SD, Ronald A. Parsons, Jr., Scott N. Heidepriem, Pamela R. Bollweg, Shannon Falon, Johnson, Heidepriem & Abdallah, LLP, Sioux Falls, SD, for Plaintiffs.Kathryn Jean Hoskins, Jeffrey L. Bratkiewicz, Siegel, Barnett & Schutz, L.L.P., Sioux Falls, SD, for Defendant.

OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR NEW TRIAL

ROBERTO A. LANGE, District Judge.I. INTRODUCTION

This Court held a jury trial in this case from August 31 to September 3, 2010. The jury found that the Defendant, orthopedic surgeon Dr. Robert A. Callahan, was not negligent in his treatment of Plaintiff Robin Bair. The treatment in question included a spinal surgery involving placement of pedicle screws and rods into Mr. Bair's back. Plaintiffs moved for a new trial under Rule 59 of the Federal Rules of Civil Procedure, based on two arguments:

1. Plaintiffs were prejudiced by the exclusion of certain evidence regarding Dr. Callahan's lack of competence and lack of knowledge in performing substantially similar pedicle screw surgeries on other patients while practicing at the Yankton Medical Clinic in 2007; and

2. The defense verdict in Dr. Callahan's favor is contrary to the clear weight of the evidence and would result in a miscarriage of justice.

(Doc. 87) (internal citations omitted). This Court has conducted a review of the record, considered all arguments of counsel, and now denies Plaintiffs' motion for the reasons explained below.

II. STANDARD OF REVIEW

Authority to grant a new trial under Rule 59 “is fully within the discretion of the district court.” Larson v. Farmers Coop. Elevator of Buffalo Ctr., 211 F.3d 1089, 1095 (8th Cir.2000); Lampkins v. Thompson, 337 F.3d 1009, 1013 (8th Cir.2003) (“[t]he authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court.”). The Eighth Circuit “review[s] the district court's decision for a clear abuse of that discretion.” Lampkins, 337 F.3d at 1013. “To win reversal, the moving party must show that the trial court's decision to deny the motion and let the verdict stand results in a miscarriage of justice.” Id. (quoting Emmenegger v. Bull Moose Tube Co., 324 F.3d 616, 619 (8th Cir.2003)); see also Maxfield v. Cintas Corp., 563 F.3d 691, 694 (8th Cir.2009) (for a court to order a new trial, movant must establish that a “new trial is necessary to prevent a miscarriage of justice.”). “A new trial should be granted only if the evidence weighs heavily against the verdict.” Maxfield, 563 F.3d at 694 (citing United States v. Rodriguez, 812 F.2d 414, 417 (8th Cir.1987)).

The Eighth Circuit has specified various bases for granting a motion for a new trial. A motion for a new trial may be;

bottomed on the claim that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury.

Children's Broad. Corp. v. Walt Disney Co., 245 F.3d 1008, 1017 (8th Cir.2001) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940)). If such a motion is granted, “[t]he district court must articulate its reasons for granting a new trial to permit meaningful review of the decision.” Id. “When reviewing a jury verdict to decide whether it is against the weight of the evidence, a district court conducts its own review of the evidence to determine whether a miscarriage of justice has occurred.”

Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir.2008) (quoting Peterson v. Gen. Motors Corp., 904 F.2d 436, 439 (8th Cir.1990)). As required, this Court has conducted a review of the evidence and record.III. FACTS

Plaintiffs Robin Bair and Francis Zephier, husband and wife, filed a Complaint (Doc. 1) against Dr. Robert A. Callahan, alleging medical negligence arising from a failed back surgery on Mr. Bair performed by Dr. Callahan on September 27, 2007, and the failure by Dr. Callahan to subsequently diagnose and remove pedicle screws that were allegedly misplaced during the surgery. (Doc. 1; T. 35). Ms. Zephier brought a loss of consortium claim, alleging injury to her relationship with Mr. Bair as a result of Dr. Callahan's acts and omissions. (Doc. 1). Dr. Callahan practiced as a board certified orthopedic surgeon at the Yankton Medical Clinic during the period in question. (T. 362–65).¹

A. Evidentiary Ruling Concerning Dr. Callahan's Treatment of Other Patients

Prior to and during trial, Plaintiffs sought to introduce evidence—through the testimony of Plaintiffs' retained expert Dr. Stanley Gertzbein, the deposition testimony of Dr. Quentin Durward who performed surgery on Mr. Bair and other former patients of Dr. Callahan, and examination of Dr. Callahan himself—of Dr. Callahan's treatment at the Yankton Medical Clinic of Gail Uhing, Jacqueline Nohr, Douglas Haar, and Edward Meng. Each of those four patients brought lawsuits against Dr. Callahan in the United States District Court for the District of South Dakota. See Uhing v. Callahan, 4:08–cv–04200–KES; Nohr v. Callahan, 4:09–cv–04040–RAL; Haar v. Callahan, 4:08–cv–04123–LLP; Meng v. Callahan, 4:09–cv–04035–RAL. The Meng ² and Nohr cases currently are pending before this Court, while the Uhing and Haar cases have been settled. All the cases alleged that Dr. Callahan committed medical malpractice during back surgeries by misplacing pedicle screws and failing to remove misplaced screws. The plaintiffs in each case hired the same law firm representing Mr. Bair and Ms. Zephier. Consequently, Mr. Bair and Ms. Zephier's counsel, and in turn their experts, received access to the medical records of Uhing, Nohr, Haar, and Meng. Dr. Callahan moved in limine to exclude such records and all evidence or testimony pertaining to the treatment of Uhing, Nohr, Haar, and Meng. (Doc. 45, at 1–2). Plaintiffs opposed Dr. Callahan's motions in limine, seeking to introduce such evidence under Rule 404(b) or, alternatively, for impeachment purposes under Rule 608, or as habit evidence under Rule 406.

At the pretrial conference and motion hearing held on August 27, 2010, this Court reserved ruling on most of the motions in limine concerning Dr. Callahan's treatment of other patients. (Doc. 66, at 4). This Court also ruled that depositions generated in the other lawsuits brought against Dr. Callahan could be used only for impeachment purposes, rather than to establish that Dr. Callahan had been sued on other occasions. Id.

Following voir dire, this Court told the parties that it likely would exclude any evidence of Dr. Callahan's treatment of other patients. Accordingly, the Plaintiffs did not discuss that evidence during opening statements. At trial, Plaintiffs called Dr. Callahan adversely, Dr. Durward by videotaped deposition, and Dr. Gertzbein. This Court did not permit Plaintiffs to ask these witnesses any questions concerning Dr. Callahan's treatment of Uhing, Nohr, Haar, or Meng.

Dr. Callahan was recalled to the stand during Defendant's case. Between the end of Defendant's direct examination and the beginning of Plaintiffs' cross-examination of Dr. Callahan, Plaintiffs argued that the disputed evidence of Dr. Callahan's past treatment should be admitted for impeachment purposes because Dr. Callahan testified regarding his experience, training, knowledge, and expertise, specifically with regard to spinal fusion surgery involving the placement of pedicle screws. Dr. Callahan's testimony, however, included only basic information about his medical education and training,³ his practice, his board certification, the advent of the use of pedicle screws and his training on the use of pedicle screws. Following argument on the admissibility of the disputed evidence under Rule 608(b), this Court discussed the application of the Federal Rules of Evidence and issued the following ruling from the bench:

Here is what the Court is going to allow. It's consistent with the Kostel [ v. Schwartz, 2008 S.D. 85, 756 N.W.2d 363] case. The Court is going to allow the Plaintiffs to ask the question, “Did you misplace pedicle screws on other patients while doing surgery at Yankton Medical Clinic?”

If he answers that question “yes,” that's the end of the testimony on that subject. If he answers the question “no,” there's a question about credibility or truthfulness that comes up. So that is the one and only question about credibility or truthfulness that comes up.

(T. 404). Plaintiffs' counsel then asked that single question on cross-examination, to which Dr. Callahan responded, “Yes.” (T. 405).

Outside the hearing of the jury, Plaintiffs made an offer of proof of additional testimony by Dr. Gertzbein and a portion of Dr. Durward's videotaped testimony that was not played before the jury. That portion of Dr. Durward's deposition transcript included his opinions concerning Dr. Callahan's medical treatment of Haar and Uhing, whom Dr. Durward also treated with corrective surgery following their surgeries with Dr. Callahan. In this portion of the videotape, Dr. Durward testified that Dr. Callahan had misplaced pedicle screws and failed to correct such misplacements while performing back surgeries on Haar and Uhing. (Doc. 58). Plaintiffs also called Dr. Gertzbein to make an offer of proof regarding his expert opinions concerning other fusion surgery patients treated by Dr. Callahan. Dr. Gertzbein explained that, based on his review of the medical records of Robin Bair, Edward Meng, Jackie Nohr, and Doug Haar, Dr. Callahan misplaced multiple pedicle screws and failed to identify and correct misplaced screws in all of...