Marchand v. Mercy Medical Center

• Decision Date: 25 April 1994
• Docket Number: No. 92-36733,92-36733
• Citation: Marchand v. Mercy Medical Center, 22 F.3d 933 (9th Cir. 1994)
• Parties: Kevin F. MARCHAND, Plaintiff-Appellee, v. MERCY MEDICAL CENTER, an Idaho corporation; et al., Defendant, and Neil K. Farris, D.O., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 933

22 F.3d 933

28 Fed.R.Serv.3d 771

Kevin F. MARCHAND, Plaintiff-Appellee, v. MERCY MEDICAL CENTER, an Idaho corporation; et al., Defendant and Neil K. Farris, D.O., Defendant-Appellant.

No. 92-36733.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 2, 1994.

Decided April 25, 1994.

Bruce R. McAllister, Quane, Smith, Howard & Hull, Boise, ID, for defendant-appellant.

J. Charles Hepworth, Hepworth, Nungester & Lezamiz, Boise, ID, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before: WRIGHT, REAVLEY ^*, and LEAVY, Circuit Judges.

Opinion by Judge EUGENE A. WRIGHT.

EUGENE A. WRIGHT, Circuit Judge.

A jury awarded Kevin Marchand $4.2 million in a medical malpractice action. He then petitioned to recover attorneys' fees and costs under Fed.R.Civ.P. 37(c), because three defendants failed to admit key requests for admission that he proved at trial. The district court ordered Dr. Neil Farris to pay Marchand's reasonable expenses. Farris appeals this award and we affirm.

BACKGROUND

Kevin Marchand was seriously injured in an industrial accident. To prevent movement of his neck, paramedics placed him on a back board with a cervical neck collar, sandbags on both sides of his head, and tape stretched across his forehead between the sandbags. The immobilization devices were used to prevent movement of his neck. An ambulance rushed him to Mercy Medical Center. Several physicians treated him in the emergency room, the radiology department, and the intensive care unit (ICU).

Farris provided care to Marchand in the emergency room and radiology department. He and the other doctors agreed to order a full set of cervical spine x-rays. While in the radiology department Farris removed Marchand's cervical collar. He said this was necessary because Marchand was experiencing respiratory distress and Farris needed to examine his patient's jugular vein. No other person at Mercy Medical Center, nor any medical report from the hospital confirmed the occurrence of a serious respiratory problem in radiology.

Farris did not complete the full set of x-rays he and the other doctors originally contemplated. Five x-rays were taken of Marchand's chest and neck. Farris delivered Marchand to the ICU because of his respiratory distress, and testified that the sandbags were in place, but probably not the collar. But it is undisputed that both were absent shortly after admission. Then he claims to have consulted with a radiologist, Dr. Walker, who confirmed Farris's view that the cervical spine was within normal limits. Walker did not recall consulting with Farris.

Marchand arrived in ICU about 5:30 p.m. Dr. Blome became his primary care provider, and radiologist Truksa reviewed the x-rays and issued a written report. About 1:50 p.m. the next afternoon, Marchand became paralyzed and is now a quadriplegic. The doctors had missed a fracture of the cervical spine. The fracture appeared on three of the chest x-rays, but was not pictured on the lateral cervical spine x-ray.

Marchand sued five doctors and the Mercy Medical Center. After a lengthy trial the jury found Farris, Blome and Truksa negligent, and apportioned each 33 percent of the fault. In a post-trial petition Marchand asked for an award of attorneys fees under Fed.R.Civ.P. 37(c). He claimed that the negligent doctors had improperly failed to admit some requests for admission that he proved at trial. The requests asked the doctors to admit negligence, to admit that Marchand's immobilization devices were removed at the hospital, and to admit causation. The court imposed fees and costs of $205,798.34 against Farris alone.

ANALYSIS

We review for abuse of discretion a Rule 37(c) award of fees and costs. ¹ Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1268 (9th Cir.1990). We will not reverse unless we have a definite and firm conviction that the district court committed a clear error of judgment. United States v. Plainbull, 957 F.2d 724, 725 (9th Cir.1992). A district court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir.1993).

Fed.R.Civ.P. 37(c) reads:

If a party fails to admit ... the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves ... the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit. ²

The Rule mandates an award of expenses unless an exception applies. Enforcement encourages attorneys and parties to identify undisputed issues early to avoid unnecessary costs. Failure to identify those issues wastes the resources of parties and courts.

The Federal Rules are intended "to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1. ³ Parties may not view requests for admission as a mere procedural exercise requiring minimally acceptable conduct. They should focus on the goal of the Rules, full and efficient discovery, not evasion and word play. See William W. Schwarzer, The Federal Rules, the Adversary Process, and Discovery Reform, 50 U.Pitt.L.Rev. 703, 721 (1989). In this case, Farris gave misleading answers to requests for admission that significantly affected the cost of Marchand's prosecution and contravened the goal of full discovery.

A. Standard of Care

Request for admission 26 asked Farris to

[a]dmit that the care and treatment provided to Kevin Marchand at the Mercy Medical Center on March 13, 1987, and March 14, 1987, by Neil K. Farris, D.O., failed to comply with the applicable standard of care which existed for that person on that date.

He responded, "denied." ⁴

Farris argues that Rule 37(c) sanctions should not have been imposed because he had "reasonable ground to believe" that he might prevail on the negligence issue. Fed.R.Civ.P. 37(c)(3). He notes accurately "that the true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail." Fed.R.Civ.P. 37(c), Advisory Committee Notes on 1970 Amendment. This reasonable ground, he urges, was supported by expert testimony that he complied with the standard of care. See Dyer v. United States, 633 F.Supp. 750, 759 (D.Or.1985), aff'd on other grounds, 832 F.2d 1062 (9th Cir.1987) (defendant entitled to rely on expert testimony to deny difficult request for factual admission).

Dr. Carlson testified as an expert on behalf of Farris. He said that Farris satisfied the standard of care in all respects. Other experts testified that the number and type of x-rays taken complied with the standard of care.

Despite this evidence, we cannot accept a per se rule that reliance on an expert opinion provides a reasonable ground for a party to believe he would prevail at trial. The district court had ample evidence to discredit the expert testimony, as well as that of Farris. Critical to both were the trial statements of Farris that he removed the cervical collar supporting Marchand's neck due to respiratory distress, and that he cleared Marchand's cervical spine as being within normal limits based on the x-rays and consultation with radiologist Dr. Walker. Scant trial testimony or evidence corroborated either assertion.

Moreover, Carlson's trial testimony was contradicted by his deposition statement that no event after Marchand was intubated warranted removal of the neck immobilization devices. And Farris testified in his deposition that an emergency room physician should not remove the cervical collar before obtaining a series of cervical spine x-rays.

Perhaps most damaging was Farris's belated admission that he removed the cervical collar. In his deposition he said that "[t]he patient went to the intensive care unit, to the best of my recollection, with the cervical collar and sandbags." At trial he conceded that he removed the cervical collar in the radiology department before a complete series of cervical spine x-rays was obtained.

The district court concluded that Farris, knowing he removed the cervical collar before obtaining a full series of cervical spine x-rays, could not under the circumstances have reasonably denied his negligence. It applied the correct legal standard, and did not abuse its discretion. Rahm, 993 F.2d at 1410.

B. Removal of Spine Support

Request for admission 24 asked Farris to

[a]dmit that the devices utilized prior to his admission on March 13, 1987, to immobilize Kevin Marchand's spine were removed subsequent to his admission at Mercy Medical Center.

He responded:

Defendants object to this Request for Admission on the grounds that the Request is vague and ambiguous. Without waiving such objection, Defendants admit that certain devices which have the tendency to lessen the mobility of portions of Kevin Marchand's spine were removed after he entered Mercy Medical Center.

The district court found that in light of his admission at trial that he did remove the cervical collar, Farris had no reasonable basis not to admit that he removed the immobilization devices. But the request did not ask who removed the immobilization devices. A party may only be sanctioned for failing to admit "the truth of any matter as requested." Fed.R.Civ.P. 37(c). As Farris answered the question asked, sanctions were not warranted.

C. Causation

Requests for admission 1-6 asked Farris to admit that Marchand's quadriplegia was caused by...