Kaplan v. Mayo Clinic, Mayo Found., Mayo Found. for Med. Educ. & Research, Mayo Rochester, Inc., Civil No. 07–3630 (JRT/JJK).
| Decision Date | 28 May 2013 |
| Docket Number | Civil No. 07–3630 (JRT/JJK). |
| Citation | 947 F.Supp.2d 1001 |
| Parties | Elliot KAPLAN and Jeanne Kaplan, Plaintiffs, v. MAYO CLINIC, Mayo Foundation, Mayo Foundation for Medical Education and Research, Mayo Rochester, Inc., Mayo Clinic Rochester, Inc., and Lawrence J. Burgart, Defendants. |
| Court | U.S. District Court — District of Minnesota |
OPINION TEXT STARTS HERE
James F.B. Daniels, McDowell, Rice, Smith & Buchanan, PC, Kansas City, MO, for plaintiffs.
William R. Stoeri and Andrew B. Brantingham, Dorsey & Whitney LLP, Minneapolis, MN, for defendants.
This case arises out of a surgery performed on Elliot Kaplan (“Kaplan”) by a surgeon at Mayo Clinic to treat pancreatic cancer, a condition which post-surgery testing revealed that Kaplan never had. Kaplan and has wife Jeanne Kaplan (collectively, “the Kaplans”) filed lawsuit against Mayo Clinic and its affiliated entities (collectively, “Mayo”), as well as Dr. David Nagorney (“Dr. Nagorney”), the doctor who performed Kaplan's surgery, and Dr. Lawrence J. Burgart (“Dr. Burgart”), the doctor who erroneously diagnosed Kaplan with pancreatic cancer. The Court granted summary judgment in favor of Dr. Nagorney. The case proceeded to trial against the other defendants on the Kaplans' claims of breach of contract and negligent failure to diagnose. At the close of the Kaplans' case, the Court granted judgment as a matter of law against them on their breach of contract claim. The jury returned a verdict for Mayo and Burgarton the Kaplans' claim for negligent failure to diagnose, and the Court entered judgment on that verdict.
On appeal, the Eighth Circuit reversed as to the breach of contract claim concluding that a reasonable jury could find that Nagorney, on behalf of Mayo, formed a contract with Kaplan when Nagorney told Kaplan that he would perform an intraoperative biopsy to confirm the cancer diagnosis before proceeding with the surgery. The Eighth Circuit found that Nagorney breached this contract when he failed to perform the promised biopsy. The Eighth Circuit remanded for further proceedings on the breach of contract claim.
The case is now before the Court on Mayo's motions in limine regarding the presentation of damages evidence at the remand trial on the Kaplans' breach of contract claim. Mayo requests that the Court (1) preclude the Kaplans from presenting evidence of pain and suffering and emotional damages in support of their breach of contract claim; (2) dismiss Mrs. Kaplan's loss of consortium claim; and (3) limit the Kaplans' evidence of damages to documents and information disclosed prior to the December 30, 2012 disclosure deadline. For the reasons explained below, the Court will grant Mayo's motion to exclude evidence of pain and suffering and emotional damages and will dismiss Mrs. Kaplan's loss of consortium claim. The Court will deny Mayo's motion to limit the Kaplans' evidence to damages information disclosed prior to December 30, 2012.
In July 2003, Kaplan was hospitalized in Missouri after experiencing severe abdominal pain. A CT scan showed that Kaplan had an enlarged pancreas, and doctors in Missouri proceeded to perform a needle biopsy on the pancreas. A pathologist affiliated with the Missouri hospital reviewed the biopsy and, based on that review, Kaplan was diagnosed with pancreatic cancer.
In August 2003, Kaplan sought a second opinion from Mayo, and sent Mayo the pathology slides that the Missouri doctors had prepared in conjunction with the needle biopsy. Dr. Burgart, a Mayo pathologist, reviewed the pathology slides and diagnosed Kaplan with grade 2 infiltrating pancreatic cancer. Another Mayo doctor made an independent diagnosis of pancreatic cancer based on the slides. Given Dr. Burgart's diagnosis, Dr. Nagorney, a Mayo surgeon, recommended that Kaplan undergo a pancreatoduodenectomy, or “Whipple” procedure, which involves excising portions of the pancreas and stomach as well as the entire pylorus and duodenum.
Kaplan was concerned about the validity of the cancer diagnosis, and expressed this concern to Dr. Nagorney. When asked if he could confirm the diagnosis during the surgery, Dr. Nagorney allegedly replied that he would do a biopsy of the mass to verify that it was cancer, and if there was no cancer, Dr. Nagorney would not complete the procedure. On August 14, 2003, Dr. Nagorney performed the Whipple procedure on Kaplan. Dr. Nagorney did not perform an intraoperative biopsy on Kaplan's pancreatic tissue, and completed the Whipple procedure. After examining the pancreatic tissue postoperatively, Mayo pathologists concluded that Kaplan did not have pancreatic cancer.
In 2007, the Kaplans filed a complaint against Mayo, Dr. Nagorney, and Dr. Burgart, alleging claims for medical malpractice, negligent nondisclosure, breach of contract, and loss of consortium. ( See Am. Compl., Sept. 17, 2007, Docket No. 4.)
In 2008, the Court granted summary judgment in favor of Dr. Nagorney, finding that the Kaplans' expert affidavit opined only on medical negligence with respect to Kaplan's medical diagnosis, and not with respect to the surgical procedure performed on Kaplan. (Order at 14–15, Oct. 27, 2008, Docket No. 87, 2008 WL 4755797.) Consequently, the Court dismissed all of the Kaplans' claims against Dr. Nagorney with prejudice. ( Id. at 15.)
The case proceeded to trial against the other defendants on claims of breach of contract and negligent failure to diagnose. ( See Pl.'s Statement of the Case at 5, Mar. 23, 2009, Docket No. 116.) Before conclusion of the trial, the Court granted defendants' motion for judgment as a matter of law on the breach of contract claims. (Minute Entry, Apr. 14, 2009, Docket No. 165.) The Court determined that the breach of contract claim, which arose “out of the diagnosis, care and treatment of [Kaplan],” failed because the Kaplans had not presented expert testimony relating to the standard of care to determine whether there had been a breach. (Tr. at 986–87, July 15, 2010, Docket No. 202.)
After the evidence was presented, the jury returned a verdict for Mayo and Dr. Burgart on the Kaplans' claims for negligent misdiagnosis. (Special Verdict Form at 1, Apr. 15, 2009, Docket No. 166.) Because the jury found that neither Mayo nor Dr. Burgart was negligent in the care or treatment of Kaplan, the jury did not answer any questions regarding damages. ( Id. at 1–2.) The Court entered judgment on the verdict. (J., Apr. 17, 2009, Docket No. 169.) The Court then denied the Kaplans' motion for a new trial, and the Kaplans appealed. (Order, Apr. 20, 2010, Docket No. 184, 2010 WL 1576784; Notice of Appeal, May 20, 2010, Docket No. 190.)
On appeal, the Eighth Circuit denied the Kaplans' request for a new trial on their claim for negligent failure to diagnose, and affirmed the Court's judgment with respect to that claim. Kaplan v. Mayo Clinic, 653 F.3d 720, 724–26 (8th Cir.2011). The Eighth Circuit also affirmed the Court's grant of judgment in favor of Dr. Burgart on the Kaplans' breach of contract claim. Id. at 727. But the Eight Circuit concluded that the Court erred in granting judgment as a matter of law to Mayo on the Kaplans' breach of contract claim. Id. at 729.
Viewing the evidence in the light most favorable to the Kaplans, the Eighth Circuit reviewed the Court's grant of judgment as a matter of law to determine whether any reasonable jury could have found in favor of the Kaplans on their breach of contract claim. Id. at 727. To establish a claim for breach of contract the Kaplans were required to show formation of a contract, breach, and resulting damages. Id. at 726 (citing Briggs Transp. Co. v. Ranzenberger, 299 Minn. 127, 217 N.W.2d 198, 200 (1974)).
The Eighth Circuit first determined that a reasonable jury could have found that Dr. Nagorney, acting on behalf of Mayo, formed a contract when he allegedly told Kaplan that Dr. Nagorney would perform an intraoperative biopsy to confirm the cancer diagnosis. Id. at 727. As consideration “Mr. Kaplan authorized Dr. Nagorney and his colleagues to perform the Whipple procedure and paid them for that surgery.” Id. Although Dr. Nagorney testified that he never made such a promise, the Eighth Circuit determined that “this testimony merely raises factual question for the jury as to whether there was an agreement.” Id. The Eighth Circuit also determined that a jury could conclude the contract was breached, because it “is undisputed”that Dr. Nagorney failed to perform an intraoperative biopsy. Id. at 728.
With respect to damages, the Eighth Circuit concluded that a reasonable jury could have made the requisite finding of damages. To recover on a breach of contract the damages must have resulted from the breach. Id. The Eighth Circuit determined that the Kaplans needed to demonstrate two different steps to show causation as to damages. Id. First, the Kaplans “had to offer evidence to support a finding that the intraoperative biopsy results would have been negative for cancer,” and the Eighth Circuit concluded the Kaplans had made such a showing. Id. Second, the Kaplans would have to establish that “Dr. Nagorney would not have performed the Whipple procedure if the promised biopsy was negative.” Id. Finally, the Eighth Circuit determined that the Kaplans had “provided sufficient evidence of economic damages resulting from that procedure—though the amount was greatly disputed—to meet the final requirement for making out their contract claim.” Id.
The Eighth Circuit also found that the Kaplans' breach of contract claim did not simply restate a medical malpractice claim—a claim that would require expert testimony. Id. at 729. The Eighth Circuit noted that “Minnesota law requires plaintiffs to file an expert-witness affidavit in any action against a health care provider for ‘malpractice, error, mistake, or failure...
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