Boburka v. Adcock, 91-6105

• Decision Date: 11 January 1993
• Docket Number: No. 91-6105,91-6105
• Citation: 979 F.2d 424
• Parties: Theodore T. BOBURKA, Plaintiff-Appellee, v. Frank ADCOCK, M.D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 424

979 F.2d 424

24 Fed.R.Serv.3d 265

Theodore T. BOBURKA, Plaintiff-Appellee, v. Frank ADCOCK, M.D., Defendant-Appellant.

No. 91-6105.

United States Court of Appeals, Sixth Circuit.

Argued May 11, 1992.

Decided Nov. 9, 1992.

Rehearing Denied Jan. 11, 1993.

Daniel D. Warlick (argued and briefed), Warlick, Todd & Huffstutter, Nashville, Tenn., Dan T. Bing, Memphis, Tenn., for plaintiff-appellee.

John J. Thomason (argued and briefed), Elizabeth T. Collins, Thomason, Hendrix, Harvey, Johnson & Mitchell, Memphis, Tenn., for defendant-appellant.

Before: RYAN, BOGGS, and BATCHELDER, Circuit Judges.

RYAN, Circuit Judge.

This is an appeal by the defendant physician from an adverse jury verdict in a medical malpractice action. Among a host of issues defendant raises on appeal, we shall address only one because it is dispositive:

Whether there is sufficient competent evidence in the record to support the jury's finding of defendant's negligence, given the speculative nature of the testimony by the plaintiff's expert witness.

Before discussing this issue, however, we must address the plaintiff's threshold argument that the court is without jurisdiction to entertain this appeal because the defendant's notice of appeal is inadequate.

For the reasons to be explained, we conclude that jurisdiction lies, and that the judgment for the plaintiff should be set aside because there is insufficient evidence on the issue of causation to support it.

I.

A.

In 1984, plaintiff Theodore T. Boburka was a 46-year-old Florida resident with a history of heart trouble. Boburka was a construction engineer and his job required him to travel to oversee projects. Boburka's physicians recommended that while traveling, he keep copies of his EKGs with him and make contact with a physician in each location where he was assigned.

In July 1984, Boburka was assigned to Memphis, and his daughter Heather accompanied him to that city. While in Memphis, he had occasion to visit Dr. William Burrow, to whom he had been referred by a medical referral service. Boburka related to Dr. Burrow his history of heart trouble and described the medication he was presently taking. On August 15, 1984, while traveling, Boburka exerted himself by running through an airport and then lifting heavy luggage. He experienced severe pain. The next day, August 16, he again visited Dr. Burrow who performed an EKG and diagnosed muscle strain.

On the very early morning of August 18, Boburka woke up with severe pain and his daughter drove him to the Methodist Hospital South emergency room. A nurse took his vital signs, and he was examined by the defendant, Dr. Frank Adcock. Dr. Adcock's examination, according to Boburka, consisted of poking him on his left shoulder blade a few times. Dr. Adcock was told of Boburka's history of muscle strain and was advised that a recent EKG had been taken, but he did not order a new EKG or a chest x-ray. Dr. Adcock diagnosed Boburka's condition as muscle strain and prescribed a small dose of Demerol, a pain medication.

After returning home, Boburka continued to suffer severe pain. He returned to the hospital emergency room at 6:45 a.m. and was again seen by Dr. Adcock who gave Boburka another dose of the same pain medication. Boburka then returned home and fell asleep.

Later that same day, Boburka visited a Dr. Mellor, a physician in Dr. Burrow's clinic. Dr. Mellor received Boburka's history and diagnosed muscle strain, not a heart attack. Two days later, on August 20, Boburka visited Dr. Burrow, who also diagnosed muscle strain. On August 24, Boburka began suffering severe pain and had difficulty breathing. He returned to the Methodist Hospital South emergency room where he was seen briefly by Dr. Adcock. After Boburka passed out, another physician completed the examination. Boburka was diagnosed as suffering from congestive heart failure and was sent to Methodist Hospital Central where, several days later, successful bypass surgery was performed. The surgery, however, did not alleviate the effect of the earlier heart attack which Boburka's expert testified had been occurring during Boburka's second visit to the emergency room on August 18, 1984, and which caused significant injury to Boburka's heart muscle. Trial testimony revealed that this injury significantly reduced Boburka's longevity and endurance.

B.

Boburka filed a complaint in federal court, claiming diversity jurisdiction. In due course, Dr. Adcock moved for summary judgment. Boburka filed no reply and the district court denied the motion.

Six months prior to trial, Dr. Adcock filed a motion in limine to exclude the testimony of Dr. Franklin T. Tew, a physician Boburka intended to call as an expert witness. The district court referred the motion to a magistrate judge who denied it. Dr. Adcock filed exceptions to the magistrate judge's order, but the district court permitted the ruling to stand, and the case proceeded to trial.

At the close of the plaintiff's case, Dr. Adcock moved for a directed verdict. The motion was denied. After presenting his own case, Dr. Adcock again moved for a directed verdict and the motion was again denied. The district court then instructed the jury and provided it with a special verdict form. After several days of deliberation, which included a supplemental instruction, the jury returned a verdict for Boburka in the amount of $600,000.

Dr. Adcock moved for judgment notwithstanding the verdict or, in the alternative, for new trial or remittitur. The district court denied the motion. Dr. Adcock then moved to reconsider and the district court denied that motion. Dr. Adcock appeals from the denial of these two motions.

II.

A. Jurisdiction and Standard of Review

Boburka advances as a threshold issue the argument that this court lacks jurisdiction over Dr. Adcock's appeal because the notice of appeal did not specify that Dr. Adcock was appealing from the final judgment, but only that he was appealing from the denials of the motion for a JNOV or, alternatively, a new trial or remittitur, and the denial of the motion for reconsideration.

Dr. Adcock's notice of appeal specifies that he appeals from the denial of his two post-trial motions. However, his brief before this court argues that the district court erred in failing to grant his motion for a directed verdict, as well as failing to grant his post-trial motions. Strictly construed, the notice of appeal does not preserve the denial of the directed verdict issue.

Nevertheless, Dr. Adcock's intent is clear. In Peabody Coal Co. v. Locals 1734, 1508 & 1548, 484 F.2d 78 (6th Cir.1973), this court held that certain defects in a notice of appeal are not always fatal:

The present case involves a motion to reconsider, which is in the nature of a Rule 59 motion to alter or amend judgment....

"[T]his defect is not fatal where it can be reasonably inferred from the notice of appeal that the intent of the appellant was to appeal from the final judgment, if it also appears that the appellee has not been mislead."....

Peabody's contention that this Court lacks jurisdiction to consider the appeal because of the improper notation on the notice of appeal is without merit.

Id. at 81-82 (quoting Lumbermen's Mutual Ins. Co. v. Massachusetts Bonding & Ins. Co., 310 F.2d 627, 629 (4th Cir.1962)). The Fifth Circuit recently concurred in this reasoning, noting that "every Circuit ... has treated an appeal from an order denying a motion for new trial as an appeal from the adverse judgment itself." Osterberger v. Relocation Realty Serv. Corp., 921 F.2d 72, 73 (5th Cir.1991). We conclude that Dr. Adcock's notice of appeal adequately preserved for appeal all the issues he raises before this court. Therefore, we shall review the district court's denial of Dr. Adcock's trial motion for directed verdict and his post-trial motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial.

On a motion for judgment notwithstanding the verdict or for a directed verdict, the district court must determine whether there was sufficient evidence to raise a material issue of fact for the jury. Monette v. AM-7-7 Baking Co., 929 F.2d 276, 280 (6th Cir.1991). The motion should be granted " 'if there is a complete absence of pleading or proof on an issue or issues material to the cause of action....' " Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1015 (6th Cir.1987) (citation omitted). This court applies the same standard when reviewing trial court decisions. Monette, 929 F.2d at 280.

We review a trial court's grant or denial of a motion for a new trial for abuse of discretion, which is defined as a " 'definite and firm conviction that the trial court committed a clear error of judgment.' " Id. (quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.1989)).

B. Sufficiency of the Evidence on Causation

Dr. Adcock argues that the testimony of plaintiff's expert, Dr. Tew, was mere speculation and does not establish sufficient evidence of a causal nexus between Dr. Adcock's acts or omissions and Boburka's increased heart injury. After weighing the relevant Tennessee statute and case law, we agree.

When its jurisdiction is grounded in diversity, this court is bound by state law with regard to sufficiency of the evidence. Gold v. National Sav. Bank, 641 F.2d 430, 434 (6th Cir.), cert. denied, 454 U.S. 826, 102 S.Ct. 116, 70 L.Ed.2d 100 (1981). In Tennessee, the rule is that the appellate court must accept all the evidence for the prevailing party as true, and all reasonable inferences in the party's favor. " 'However, it is also clear that under Tennessee law there must be substantial and material evidence from which the jury could have based a verdict for the prevailing side.' " Jarrett v. Epperly, 896 F.2d 1013, 1017 (6th Cir.1990) (quoting Gold, 641 F.2d at 434).

The theory of Boburka's case is that Dr. Adcock owed a duty of care to Boburka to examine him completely when he visited Dr....