Fernandez v. Corporacion Insular De Seguros

• Decision Date: 06 December 1995
• Docket Number: No. 95-1288,95-1288
• Citation: 79 F.3d 207
• Parties: Alba FERNANDEZ, et al., Plaintiffs, Appellants, v. CORPORACION INSULAR DE SEGUROS, et al., Defendants, Appellees. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 207

79 F.3d 207

34 Fed.R.Serv.3d 1204

Alba FERNANDEZ, et al., Plaintiffs, Appellants, v. CORPORACION INSULAR DE SEGUROS, et al., Defendants, Appellees.

No. 95-1288.

United States Court of Appeals,First Circuit.

Heard Dec. 6, 1995.

Decided March 21, 1996.

Appeal from the United States District Court for the District of Puerto Rico; Raymond L. Acosta, Senior U.S. District Judge.

Kevin G. Little, Fresno, CA, with whom Law Offices of David Efron was on brief for appellants.

Carlos A. Del Valle Cruz, Hato Rey, PR, for appellees GIC, et al.

Alfonso Miranda Cardenas, San Juan, PR, with whom Pedro J. Cordova, Jose A. Miranda Daleccio, Jose E. O'Neil Font, Carmen M. Vivas Pietri and Jose M. Torres Morales, San Juan, PR, were on brief for appellee Dr. Ricardo Martinez Cortinez.

Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

CYR, Circuit Judge.

Family members filed this medical malpractice action in federal district court following the death of Hiram Fernandez, and a jury ultimately found for the health care

                defendants.   On appeal, plaintiffs challenge several trial court rulings, including the denial of their motion for new trial.   We affirm the district court judgment
                

I BACKGROUND

On November 4, 1991, Hiram Fernandez was taken to the emergency room of Federico Trilla Hospital in Carolina, Puerto Rico, after awakening with chest pains, severe leg cramps, and vomiting. The 64-year-old Fernandez informed Dr. Pedro Rivera Bermudez ("Dr. Rivera") that the chest pain had stopped after he vomited, but the severe leg pain had not abated. Fernandez failed to tell Dr. Rivera that he was taking medication for both asthma and hypertension. Since Fernandez did not complain of recurring chest pain, and his vital statistics were within normal or borderline range, Dr. Rivera tentatively diagnosed a pinched nerve but nonetheless ordered an electrocardiogram (EKG), a urinalysis, and an x-ray of the lumbosacral region and the left leg. All tests were negative.

A few hours later, Dr. Rivera was relieved in the emergency room by Dr. Ricardo Martinez Cortinez ("Dr. Martinez") whose examination confirmed that Fernandez was in stable condition, with no complaints of chest pain. As a blood test showed a slightly elevated white blood count, Dr. Martinez ordered a second urinalysis, as well as a chest x-ray, to rule out any urinary or pulmonary infection which might have been caused by the vomiting. The chest x-ray coincidently revealed that Fernandez had a dilated aorta, which Dr. Martinez attributed to normal borderline hypertension in a patient of Fernandez' age, rather than an emergent symptom of aortal dissection, a condition usually accompanied by excruciating and unrelenting chest pain, fainting spells, profuse sweating, and tachycardia. Like Dr. Rivera, Dr. Martinez diagnosed a pinched nerve. Shortly thereafter Dr. Martinez referred Fernandez to a neuropathic specialist, and discharged him.

The next day, when Fernandez was unable to recognize family members, he was taken to his personal physician, Dr. Abelardo Vargas, who performed a physical examination and another EKG (also negative), and ordered an upper gastrointestinal series to determine whether there was a hiatal hernia. The next day, on his way to undergo these tests, Fernandez collapsed and died. An autopsy revealed the cause of death as a dissected aorta, a condition treatable with surgery in more than 90% of cases.

The decedent's spouse, children, and grandchildren filed a medical malpractice suit in federal district court pursuant to 28 U.S.C. § 1332 (diversity jurisdiction) against Drs. Rivera, Martinez, and Vargas, and against various insurers of the Federico Trilla Hospital, including Global Insurance Company. Subsequently, Dr. Vargas was dismissed as a party defendant.

At trial, Dr. William T. Brown, a Miami-based cardiac specialist, provided expert testimony in behalf of plaintiffs on the applicable duty of care. Drs. Rivera and Martinez testified in their own defense, but presented no independent medical testimony. After the jury returned a verdict for all defendants, plaintiffs unsuccessfully filed a motion for new trial pursuant to Federal Rule of Civil Procedure 59, then brought this appeal.

II DISCUSSION

Appellants challenge four trial court rulings. First, they focus on the denial of their request for rebuttal to the closing argument made by the defense. Although trial court rulings on the conduct, timing, and ordering of closing arguments are reviewed only for abuse of discretion, see Bonilla v. Yamaha Motors Corp., 955 F.2d 150, 155 (1st Cir.1992); see also United States v. Wood, 982 F.2d 1, 4 (1st Cir.1992), appellants insist that civil-action plaintiffs have an absolute right to rebut the closing argument of the defense. See Martin v. Chesebrough-Pond's, Inc., 614 F.2d 498 (5th Cir.1980) (noting that "[n]ormally the party with the burden of proof has the right to open and close," but holding that a particular codefendant had no right to rebuttal as against another codefendant where the two had asserted mutual cross-claims).

Appellants are mistaken. The Martin court did not describe a civil-action plaintiff's "right" to rebuttal as absolute, but merely reconfirmed that the decision to permit rebuttal is a procedural matter which rests within the sound discretion of the trial judge, id. at 501, and rarely (if ever) provides fertile ground for appeal. See Lancaster v. Collins, 115 U.S. 222, 225, 6 S.Ct. 33, 34-35, 29 L.Ed. 373 (1885); Montwood Corp. v. Hot Springs Theme Park, 766 F.2d 359, 364 (8th Cir.1985); Moreau v. Oppenheim, 663 F.2d 1300, 1311 (5th Cir.1981), cert. denied, 458 U.S. 1107, 102 S.Ct. 3486, 73 L.Ed.2d 1368 (1982); Commercial Iron & Metal Co. v. Bache Halsey Stuart, Inc., 581 F.2d 246, 249 (10th Cir.1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (1979).

Appellants further argue that rebuttal was vital to counteract the "inflammatory" statements made in argument by defense counsel, who portrayed, as inexplicable, plaintiffs' voluntary dismissal of their claims against Dr. Vargas. Defense counsel argued to the jury that Dr. Vargas, the decedent's long-time personal physician, was the one most likely to have been negligent since he was the last to treat Fernandez, and more familiar with his medical history. Defense counsel further argued that Dr. Vargas, like the defendant-physicians, had not suspected that the Fernandez symptoms indicated an incipient aortal dissection but rather a hiatal hernia. Appellants therefore contend that they were entitled to remind the jury in rebuttal that: (1) the defendants had the right to implead Dr. Vargas if they believed he was the only negligent party and the sole proximate cause of Fernandez' death, and (2) Dr. Vargas had not treated Fernandez in a hospital; thus, unlike defendants, could not as readily have obtained a chest x-ray.

As plaintiffs failed to challenge the statements made by defense counsel in closing argument, we review only for plain error. See Johnson v. National Sea Prods., Ltd., 35 F.3d 626, 631 (1st Cir.1994). The statements made by the defense in closing were in no sense inflammatory, but rather a measured response to earlier observations by plaintiffs' counsel that "Dr. Vargas [is not] responsible for anything here simply because he did not have the x-rays that these defendants had the benefit of having because he was not in a position of having a full clinical picture." Indeed, plaintiffs not only invited the defense response they now claim gave rise to a vital need for rebuttal, ¹ but their invitation was itself a sufficient "reminder" to the jury that plaintiffs had adduced evidence that Dr. Vargas did not treat Fernandez in a hospital setting where x-rays were readily obtainable. Thus, the district court ruling was well within its sound discretion.

In addition, though Fed.R.Civ.P. 14(a) permits defendants to implead a joint tortfeasor, see also Reyes-Lopez v. Misener Marine Constr. Co., 854 F.2d 529, 535 n. 23 (1st Cir.1988) (citing to Puerto Rico case law allowing joint-tortfeasor contribution), Rule 14 is not mandatory. Appellants do not cite, nor have we found, any authority for the proposition that a jury must be permitted to draw an adverse inference from a defendant's decision to forego a Rule 14 impleader. We therefore conclude that there was no plain error.

Second, appellants claim that it was an abuse of discretion to refuse their timely request to instruct the jury that defendants could have impleaded Dr. Vargas. For the reasons discussed above, we find no abuse of discretion. See Makuc v. American Honda Motor Co., 835 F.2d 389, 393 n. 1 (1st Cir.1987) (noting that proponent must cite to some legal authority which would support its proposed jury instruction).

Third, appellants contend that over-repetition of the district court's unexceptionable jury instruction--that plaintiffs must establish all elements of their negligence claims--constituted reversible error because it exaggerated the burden of proof in the minds of the jury. See United States v. Assi, 748 F.2d 62, 66 (2d Cir.1984). Similar reversible error arose, plaintiffs say, from the district court's over-repetition of its "error in judgment" instruction, viz., that a physician is not liable under Puerto Rico law for a faulty diagnosis or failure to treat if there...