Murphy v. Dyer

• Decision Date: 29 May 1969
• Docket Number: No. 10109.,10109.
• Citation: 409 F.2d 747
• Parties: Cyrilla MURPHY and George H. Murphy, Appellants, v. Harold L. DYER, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

409 F.2d 747 (1969)

Cyrilla MURPHY and George H. Murphy, Appellants, v. Harold L. DYER, Appellee.

No. 10109.

United States Court of Appeals Tenth Circuit.

March 10, 1969.

Rehearing Denied May 29, 1969.

Paul A. Barber, Colorado Springs, Colo., for appellants.

Arthur H. Downey, Denver, Colo. (H. Gayle Weller, Denver, Colo., with him on the brief), for appellee.

Before MURRAH, Chief Judge, SETH, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

In this diversity, malpractice suit arising in Colorado by a patient against her Colorado Springs doctor the defenses were the statute of limitations and non-negligence. The jury returned a general verdict for the defendant under instructions submitting the case on both limitations and negligence. On appeal, the patient, Mrs. Cyrilla Murphy, complains of the court's instructions on limitations but since no objections were made to them in the trial court and they do not appear to be palpably wrong we accept them as the law of the case. Rule 51 F.R.Civ.P. 28 U.S.C., Iannacito v. Denver & Rio Grande Western R. Co., 380 F.2d 1019 (10th Cir. 1967) and cases cited.

If, of course, the verdict of the jury can be said to rest upon the repose of the statute of limitations our lawsuit is at an end. But the case was not submitted on special issues nor was the court requested to do so.¹ And in such circumstances we cannot surmise that the jury's verdict rested on limitations.² Maryland v. Baldwin, 112 U.S. 490, 5 S. Ct. 278, 28 L.Ed. 822 (1884) followed in Sunkist Growers, Inc. v. Winckler & Smith Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962).

This brings us to the negligence issue and directly to the exclusion of expert medical testimony which came about in this way: Mrs. Murphy claimed that the defendant, Dr. Harold Dyer, negligently gave her a spinal anesthetic (commonly known as a "saddle block") which resulted in serious neurological deficiencies. Dr. Dyer, a certified obstetrician and gynecologist, took the deposition of Dr. Daniel Moore, a noted anesthesiologist from Seattle, Washington but did not put it into evidence. At the trial, counsel for Mrs. Murphy offered into evidence portions of it to prove (1) the standard of care required of Dr. Dyer and (2) the res ipsa loquitur theory that if Dr. Dyer had given the spinal in accord with the prescribed standards Mrs. Murphy's injury would not have occurred. The court excluded this evidence in the absence of a showing that Dr. Moore was familiar with the standards employed in Colorado Springs or similar communities and for the further reason that the specialties of Dr. Dyer differed significantly from those of Dr. Moore. It seems that Colorado follows the Restatement rule to the effect that a physician "is required to exercise the skill and knowledge normally possessed by members of that profession * * * in good standing in similar communities." Restatement of Torts 2d, § 299A. See Foose v. Haymond, 135 Colo. 275, 310 P.2d 722 (1957); Klimkiewicz v. Karnick, 150 Colo. 267, 372 P.2d 736 (1962); and Brown v. Hughes, 94 Colo. 295, 30 P.2d 259 (1934). Certainly the similar locality test has been subjected to persuasive, scholarly criticism and has recently been rejected by two states in well reasoned opinions. See Prosser, Torts § 32; Douglas v. Bussabarger, 438 P.2d 829 (Wash. 1968); and Brune v. Belinkoff, 235 N.E.2d 793 (Mass. 1968). But in this diversity suit we are, of course, bound by the Colorado rule.

The difficulty of our case lies in determining whether the Seattle witness was properly qualified to testify concerning the standards of obstetrical anesthetics as practiced in Colorado Springs. This brings us to a close examination of pertinent parts of the deposition.

On cross-examination by plaintiff's counsel, Dr. Moore testified that while the "standard practice in one community may vary to another community * * *" "the general principal sic of administering a saddle block are generally adhered to and fairly well established." To make the testimony competent, it was encumbent on Mrs. Murphy to affirmatively show that Dr. Moore was familiar with the practice in communities like Colorado Springs which does not necessarily mean that he had practiced his specialty there. Dr. Moore was not a Colorado Springs physician but he was a renowned anesthesiologist. He has written texts on the art, science and practice of anesthesiology with particular reference to the techniques of "spinal blocks". His books are the standard texts in the specialty in medical schools. But the question here is not whether he was a renowned expert but whether, as such, he was familiar with the standards of practice and particularly the techniques employed in Colorado Springs or similar communities. We must judge the defendant's standard of care by the norms of the local practice.

There is no predicate in this record that Dr. Moore was familiar with the prevailing practices in Colorado Springs or that the anesthesiologists in Colorado Springs follow the "generally adhered to" textbook standards of Dr. Moore. Dr. Dyer recognized Dr. Moore as "one of many authorities" in the field but he said he did not follow Dr. Moore's technique. While it may not make good evidentiary sense to say that a renowned specialist is incompetent to testify concerning standards of care in the practice of his speciality, it does seem to be the prevailing rule in Colorado. And, after all, the trial court, not this court, is the first and best judge of the competency of expert witnesses. See Riley v. Layton, 329 F.2d 53 (10th Cir. 1964). In Riley we sustained the trial judge's admission of expert testimony under the similar locality rule based upon a showing that while the expert had not practiced in the defendant's locale, he was familiar with the practice in similar communities. Likewise the plaintiff made no...