Nalder v. West Park Hospital

• Decision Date: 12 June 2001
• Docket Number: No. 99-8081,99-8081
• Citation: 254 F.3d 1168
• Parties: (10th Cir. 2001) JOSEPH E. NALDER and MICHELLE NALDER, individually and as parents and natural guardians for Blake A. Nalder, Plaintiffs - Appellants, v. WEST PARK HOSPITAL; RAND E. FLORY, M.D.; CHARLES E. JAMIESON, M.D., Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1168

254 F.3d 1168 (10th Cir. 2001)

JOSEPH E. NALDER and MICHELLE NALDER, individually and as parents and natural guardians for Blake A. Nalder, Plaintiffs - Appellants, v. WEST PARK HOSPITAL; RAND E. FLORY, M.D.; CHARLES E. JAMIESON, M.D., Defendants - Appellees.

No. 99-8081

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

June 12, 2001

Appeal from the United States District Court for the District of Wyoming (D.C. No. 98-CV-52-J) [Copyrighted Material Omitted] Roy A. Jacobson, Jr. (R. Daniel Fleck and Laura N. MacPherson with him on the briefs), Spence, Moriarity & Schuster, LLC, Jackson, Wyoming, for Plaintiffs-Appellants.

Michael K. Davis (Jay A. Gilbertz, Yonkee and Toner, Sheridan, Wyoming, Corinne E. Rutledge and Kevin C. Cook, Lathrop and Rutledge, P.C., Cheyenne, Wyoming, Robert M Shively and Amy M. Taheri, Shively Law Offices, P.C., Casper, Wyoming, with him on the brief), Yonkee and Toner, Sheridan, Wyoming, for Defendants-Appellees.

Before BALDOCK, POLITZ,^* and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiffs-appellants Joseph ("Blue") Nalder and Michelle Nalder brought an action against defendants-appellees West Park Hospital, Rand Flory, M.D., and Charles Jamieson, M.D., alleging medical malpractice after their son, Blake, suffered brain damage near the time of his birth. A twenty-day trial resulted in a verdict for defendants. Plaintiffs seek a new trial, claiming the district court erred by ordering plaintiffs to strike two expert witnesses, permitting one of defendants' expert witnesses to testify to an opinion not disclosed before trial, and excluding certain documents. Exercising jurisdiction pursuant to 28 U.S.C. 1291, we affirm.

I

While pregnant with Blake in 1996, Michelle was cared for by Dr. Flory, an obstetrician. Despite some risk for premature labor and rapid delivery, Michelle's pregnancy appeared normal and she proceeded to full term. When she was thirty-eight-and-a-half weeks pregnant, Michelle awoke in the middle of the night and noticed she was bleeding. Either she or her husband called Dr. Flory, who advised Michelle to go to West Park Hospital, which was about twenty-six miles from the Nalders' home. While en route to the hospital, Michelle began experiencing contractions and was in full labor by the time she arrived.

Because West Park Hospital is locked at night (due to security concerns stemming from its small size and rural location), it took a few minutes for Michelle and Blue to get inside. Michelle was brought to a birthing room. Although birth was imminent at this point, the nurses asked Michelle to refrain from pushing while they called for a doctor to assist with the birth and gathered necessary equipment.

The parties dispute the exact timing of the various events surrounding Blake's birth, but it is undisputed that Blake's head was born very soon after the Nalders entered the hospital--within fifteen minutes. Blake's head was born with the membranes intact and a triple nuchal cord and nuchal hand, meaning that the umbilical cord was coiled around his neck three times with his hand entwined in the cord. In addition, the umbilical cord had only one artery and one vein, instead of the two arteries and one vein in a normal umbilical cord. These aspects of the birth required the nurses to rupture the membranes, suction Blake's nose and mouth, and unwrap the nuchal cord, resulting in some delay between the birth of Blake's head and the rest of his body. When fully delivered, Blake was not breathing.

Shortly after Blake was born, Dr. Flory arrived and noted that Blake's heart rate was dangerously low. The nurses present began resuscitation efforts and ventilated Blake with a bag valve mask. Blake's heart rate slowly increased over the next ten minutes and he began to breathe on his own. At this point, ventilation was discontinued, and Blake was placed under a small oxygen tent.

About ten minutes after Blake's birth, a nurse called Dr. Jamieson, a pediatrician, as was usual when a newborn was not doing well. Dr. Jamieson arrived about thirty-six minutes later, ordered various tests, and eventually weaned Blake off supplemental oxygen. The next day, Blake began experiencing seizures. Dr. Jamieson ordered further tests and eventually prescribed medication to control the seizures. After consulting with a pediatric neurologist, Dr. Jamieson decided it was not necessary to transfer Blake to a tertiary care center.

Blake, now age four, is blind, cannot talk, walk, crawl, roll over, or hold up his head. He has cerebral palsy, spastic quadriplegia, and an uncontrolled seizure disorder. He is fed through a tube and is completely dependent on others for every aspect of his care. As a result of these birth defects, the Nalders brought this diversity action against Drs. Flory and Jamieson and West Park Hospital for medical malpractice. The parties agree that Blake's condition is the result of severe brain damage caused by oxygen and/or blood flow deprivation that occurred near the time of his birth. This deprivation occurred because Blake's umbilical cord was compressed, cutting off the flow of oxygen and blood. The parties disagree over the timing of the injuries and whether they were caused, or could have been avoided, by defendants. As succinctly stated by defendants,

[t]he principal questions at trial were whether Blake's injury was caused by cord compression which occurred as the result of medical negligence, or whether it was the result of a condition which could not have been prevented by the exercise of reasonable medical care. The other issues were whether Blake was properly resuscitated and whether he was properly cared for afterwards.

(Appellees' Br. at 15.)

In Wyoming, "[a] medical malpractice plaintiff has the burden to prove (1) the accepted standard of medical care or practice, (2) that the doctor's conduct departed from the standard, and (3) that his conduct was the legal cause of the injuries suffered." Sayer v. Williams, 962 P.2d 165, 16768 (Wyo. 1998) (quotation and citations omitted). To meet their burden, plaintiffs sought to use numerous expert physician witnesses. For our purposes, four of plaintiffs' expert witnesses are important. Plaintiffs sought to designate:

(1) Dr. Ian Donald, an obstetrician, to testify about the standard of care required of an obstetrician, like Dr. Flory, who practices in a rural community and that Dr. Flory's care fell below that standard;

(2) Dr. Barry Schifrin, an obstetrician and perinatologist (a specialist in high-risk pregnancy), to testify that Dr. Flory's care and treatment at the time of Michelle's labor and delivery caused Blake's brain damage;

(3) Dr. Stephen Luber, a pediatrician, to testify about the standard of care required of a pediatrician, like Dr. Jamieson, who practices in a rural community and that Dr. Jamieson's care fell below that standard;

(4) Dr. Jeffrey J. Pomerance, a pediatrician and neonatologist (a specialist in the care of newborn babies), to testify regarding the causation of Blake's injuries and how transfer to a tertiary care facility would have improved his quality of life.¹

Defendants requested an order requiring plaintiffs "to choose only one of their duplicative experts in the fields of Pediatrics and Obstetrics." (II Appellants' App. at 451.) Reasoning that plaintiffs' expert witnesses were duplicative because all perinatologists are obstetricians and all neonatologists are pediatricians, a magistrate judge granted defendants' request and ruled that "Plaintiffs shall elect either Dr. Luber or Dr. Pomerance, but not both and shall also elect either Dr. Donald or Dr. Schiffrin [sic], but not both." (Id. at 627.) The district judge affirmed the magistrate judge's ruling, citing D. Wyo. Local Civ. R. 26.1(e)(1), which states that "[t]he parties are limited to the designation of one expert witness to testify for each particular field of expertise." Plaintiffs chose Drs. Luber and Donald.

A crucial issue at trial was the timing of the oxygen deprivation that caused Blake's injuries. One of plaintiffs' expert witnesses, Dr. Richard Naeye, addressed this subject at trial, testifying that nucleated red blood cells ("NRBCs") appear in placental blood within twenty to twenty-five minutes after an hypoxic event. Because there were no such cells in Blake's placenta, Dr. Naeye concluded that Blake could not have been oxygen-deprived prior to arriving at West Park Hospital and that the hypoxic event must have occurred so near the time of birth that NRBCs had not yet developed. Over objection, defendants' expert witness, Dr. Rebecca Baergen, testified in rebuttal that NRBCs usually take twelve hours to appear and that the absence of NRBCs was thus consistent with an hypoxic event that occurred many hours before Blake's birth.

The day Blake was born, the Director of Obstetric Nursing at West Park Hospital, Darlene Farren, held a meeting to discuss the Nalder case. Farren made two pages of handwritten notes during the meeting. After conducting an in camera inspection and hearing testimony from Farren outside the presence of the jury, the district judge ruled that these notes were protected from disclosure pursuant to Wyoming's privilege for professional standard review organizations. See Wyo. Stat. Ann. 35-17-101, 35-17-105.

The case was tried to a jury from June 28, 1999, to July 26, 1999. At the conclusion of the trial, the jury found that none of the defendants was negligent (i.e., each met the appropriate standards of care). Because the jury did not find any of the defendants negligent, there was no need to consider whether any of the defendants' actions caused Blake's injuries. Plaintiffs now request a new trial based on the district court's alleged erroneous rulings concerning plaintiffs' and defendants' expert witnesses and the court's application of the Wyoming privilege for professional standard review organizations.

II

We review a district court's decisions...