Lange v. Schultz, 79-1949

• Decision Date: 30 July 1980
• Docket Number: No. 79-1949,79-1949
• Citation: 627 F.2d 122
• Parties: Jeffrey T. LANGE, a Minor, by and through his Father and Next Friend, George T. Lange, and George T. Lange, Individually, Appellants, v. Richard D. SCHULTZ, S. Patrick Adley, Individually and Anesthesia Associates, P. C., a Professional Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 122

627 F.2d 122

Jeffrey T. LANGE, a Minor, by and through his Father and Next Friend, George T. Lange, and George T. Lange, Individually, Appellants, v. Richard D. SCHULTZ, S. Patrick Adley, Individually and Anesthesia Associates, P. C., a Professional

Corporation, Appellees.

No. 79-1949.

United States Court of Appeals,

Eighth Circuit.

Submitted May 22, 1980.

Decided July 30, 1980.

John J. Higgins, Jr., Eisenstatt, Higgins, Kinnamon & Okun, Omaha, Neb., argued, for appellants; Dennis M. Mahoney, Johnson & Mahoney, Denver, Colo., on brief.

William M. Lamson, Jr., Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., argued, for appellee, Schultz; Lyman L. Larsen, Omaha, Neb., on brief.

Lyle E. Strom, Fitzgerald, Brown, Leahly, Strom, Schorr & Barmettler, Omaha, Neb., for appellee, Adley.

Before HEANEY, Circuit Judge, GIBSON, Senior Circuit Judge, and ROSS, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Jeffrey T. Lange and his father, George T. Lange, appeal from a jury verdict rendered in this diversity case in the United States District Court for the District of Nebraska. ¹ The jury found the defendants Dr. Richard D. Schultz, Dr. S. Patrick Adley, and Anesthesia Associates, a corporation, not negligent in the administration of an anesthetic during an operation on Jeffrey Lange. On appeal, Jeffrey Lange, through his father George T. Lange, and George T. Lange in his individual capacity contend that the trial court erred in refusing to grant their motion to quash the jury panel, in failing to object sua sponte to the defendants' closing argument, and in giving its instructions to the jury. Appellants also contend the trial court erred in failing to grant their motion for a new trial. We affirm the District Court.

I.

On July 21, 1975, eleven-year-old Jeffrey Lange was admitted to the hospital at Fort Dodge, Iowa, with various complaints including sore throat, headache, cough, fever, pain in his left chest, nausea, and stiffness of the neck. Jeffrey had a history of respiratory problems. Upon admission, a chest X-ray was taken which revealed a dense pneumonitic infiltrate in the left upper lobe of the left lung. Antibiotics were prescribed but they failed to clear up the pneumonia symptoms. On August 1, 1975, Jeffrey was admitted to St. Joseph's Hospital in Omaha, Nebraska, under the care of Dr. Joseph Campbell, Jr., a pulmonary specialist. Further chest X-rays were taken and additional tests were performed to determine the source of the pneumonia. Antibiotic treatment was continued and Jeffrey was discharged on August 14. On the same day Jeffrey's mother telephoned Dr. Campbell to inform him that her son had had a severe coughing episode and had coughed up some hair. Dr. Campbell concluded that Jeffrey may have a dermoid cyst or tertoma (a form of nonmalignant tumor) of the upper left lung and ordered him readmitted to the hospital. Dr. Campbell recommended that a thoracotomy be performed in order to remove the tumor and that Dr. Richard D. Schultz, a thoracic and cardiovascular surgeon, perform the operation. Prior to the date of the operation, August 18, 1975, Jeffrey failed to cough up any more hair or tumor contents.

On the morning of the operation, Dr. Schultz discussed with Dr. Stephen Adley, the anesthesiologist, the case history and forthcoming operating procedure. At this time the physicians decided to check Jeffrey's bronchial tubes by using a bronchoscope to attempt to determine whether the tumor or its contents had broken through or into the tubes from his lungs.

The operation began with the check of Jeffrey's bronchial tubes. Dr. Schultz found them to be apparently clear of debris. Dr. Adley then placed the endotracheal tube to afford an airway to ventilate Jeffrey's lungs. Jeffrey was placed on the operating table with his left side up. Midway into the operation, Dr. Schultz noticed a slowed heart rate, a bradycardia. After administering a drug to counteract the slow heartbeat, Dr. Adley noticed marked resistance to respiration while ventilating the patient. Dr. Adley then checked the endotracheal tube and found a lack of suction, which he diagnosed to be an obstruction beyond the endotracheal tube, perhaps in the right main stem bronchus.

Dr. Schultz immediately suspected that the contents of the tumor had spilled. He removed the endotracheal tube and inserted the bronchoscope, allowing suctioning and ventilation to begin again. The bronchoscope was used to pull out the blockage, which consisted of the tumor's filling, a cheese-like matter. Once the airway was cleared, Dr. Adley inserted a tube all the way into the right stem bronchus. The remainder of the operation was uneventful.

As a result of the temporary stoppage of the flow of oxygen to Jeffrey's brain he suffered hypoxia to the brain and suffered some neurological damage. As of the present date, Jeffrey appears to have made significant progress in overcoming his brain damage.

At trial, plaintiff presented two medical experts, Dr. Stephen Bell, an anesthesiologist, and Dr. John Burrington, a surgeon, both of whom had taught at the University of Colorado Medical Center. Both of these physicians testified that in their opinion Drs. Schultz and Adley should have utilized a method of ventilation involving the insertion of a tube beyond the bronchial tube and into the lower right lung, a technique called one-lung intubation. This manner of ventilation would have prevented the cloggage of Jeffrey's airway passage. In fact, after the tumor spilled, Dr. Adley utilized the one-lung intubation method for the remainder of Jeffrey's operation.

The defendants, in rebuttal, presented three experts, Dr. Herbert Reese, Dr. Randolph Ferlic, and Dr. Watland, ² who testified that the one-lung intubation method had a risk associated with its use which must be weighed against the risk of spillage involved when the ordinary endotracheal tube method is used. The physicians testified that, with the one-lung intubation method, the placement of the tube must be exact or the supply of oxygen would be significantly reduced, causing hypoxia. The physicians testified that the endotracheal tube method combined with use of the bronchoscope was consistent with the standard of care in the Omaha community, given the nature of Jeffrey's ailment.

On July 3, 1979, the jury returned a verdict for the defendants. On July 10, 1979, the plaintiffs filed a motion for a new trial which was denied by the court on October 5, 1979.

II.

A. Jury selection

Appellants (hereinafter referred to as Lange), after receiving a copy of the jury list for the June 11, 1979 panel, moved to quash the panel on the grounds that it did not contain a representative cross-section. By affidavit, Lange asserted that approximately one-sixth of the panel was in some way related to the medical or insurance profession. The trial court, after a hearing on June 11, 1979, overruled the motion. Lange alleges that during voir dire he was forced to use peremptory challenges to remove these individuals, thereby denying him the opportunity to use the challenges at a time of his choosing. Lange claims he was denied a fair and impartial jury.

After the trial court's ruling on the motion, the parties proceeded with selecting and impanelling the jury. Lange alleges that he utilized two peremptory challenges to remove two registered nurses from the jury. Lange, however, made no challenge of any potential juror for cause to the trial court. We find no error in the trial court's failure to grant Lange's motion to quash the jury panel.

If Lange is alleging that the selection procedure violated the statutory scheme set forth in the Jury Selection and Service Act of 1968, Pub.L.No. 90-274, 82 Stat. 54 (codified at 28 U.S.C. §§ 1861-1874 (1976)), then 28 U.S.C. § 1867 provides the exclusive procedure to be used in making the challenge. Lange must submit "a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title * * *." Id. at § 1867(d). In his affidavit, Lange asserted that, of a total of sixty-three jurors on the panel, four jurors were nurses, two jurors were married to women in the medical field, and four jurors were employed in the insurance industry.

We note that it is somewhat unusual for a party challenging a jury panel to do so on the grounds that it overrepresents, rather than excludes, certain economic groups in the community. Nevertheless, the systematic overrepresentation of certain groups could result in discrimination against other groups who are displaced. See Regents of the University of California v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 2757-2758, 57 L.Ed.2d 750 (1978). Lange, however, has not met his burden of demonstrating systematic overrepresentation. As we stated in United States v. Williams, 421 F.2d 529, 532 (8th Cir. 1970):

Appellant's burden was to show that the selection process was discriminatory and even positive proof that one particular product of that process, i. e., one jury panel does not represent a cross-section of the larger popular community cannot establish a discriminatory process, unless compounded with additional probative proof that a more than coincidental number of previous panels were similarly constituted.

Lange did not present any factual evidence or make any factual allegations that the juror selection process was skewed in favor of medical and insurance employees. At the most, Lange's affidavit suggested that when ten jurors out of sixty-three are in some way related to the medical or insurance field a statistical aberration may have occurred in the selection of this particular panel. ³ Lange failed to meet his burden of demonstrating discrimination in the selection process.

If Lange was concerned about the bias or prejudice of particular members of the jury, then he should have challenged these jurors for cause during voir dire. The fact that Lange instead chose to use...