Phinney v. Wentworth Douglas Hospital

• Decision Date: 11 November 1999
• Docket Number: No. 99-1413,99-1413
• Parties: (1st Cir. 1999) LINDA S. PHINNEY, ETC., ET AL., Plaintiffs, Appellees, v. WENTWORTH DOUGLAS HOSPITAL, ET AL., Defendants, Appellees, CRAIG PAULSHOCK, M.D., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

199 F.3d 1 (1st Cir. 1999)

LINDA S. PHINNEY, ETC., ET AL., Plaintiffs, Appellees, v. WENTWORTH DOUGLAS HOSPITAL, ET AL., Defendants, Appellees, CRAIG PAULSHOCK, M.D., Defendant, Appellant.

No. 99-1413.

United States Court of Appeals, for the First Circuit.

Heard Nov. 11, 1999.

Decided December 8, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph A. DiClerico, Jr., U.S. District Judge.

Edwinna C. Vanderzanden, with whom Sanders & McDermott, P.L.L.C. was on brief, for defendant-appellant.

Jared R. Green, with whom Mark A. Abramson and Abramson, Reis, Brown, & Dugan were on brief, for plaintiffs-appellees.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.

SELYA, Circuit Judge.

After a magistrate judge sanctioned defendant-appellant Craig Paulshock, M.D., for discovery misconduct, he appealed unsuccessfully to the district court. He now appeals to us, asserting that the district court misapplied the standard of review and that the magistrate judge made clearly erroneous findings of fact, exceeded his authority by allowing "complex" medical testimony during the sanctions hearing, improperly imposed sequestration, arbitrarily denied a continuance, and misapprehended the burden of proof. For the reasons set forth below, we affirm.

The facts leading to the institution of suit are largely unrelated to the issues on appeal. Suffice it to say that Kenneth J. Phinney died during surgery and his widow (on her own behalf and on behalf of his heirs and estate) invoked diversity jurisdiction, 28 U.S.C. § 1332(a)(1), and brought a medical malpractice action against a plethora of defendants, including Paulshock (the attending anesthesiologist). In the course of pretrial discovery, Phinney requested certain information related to a particular nurse-anesthetist, Elise Jackson (whom Paulshock had entrusted to administer an anesthetic used in the operation). The defendants produced some documents in response to this request, but they failed to supply Jackson's most relevant personnel evaluation, at first ignoring its existence and later, when Phinney learned of it, claiming that they could not locate the sheet.

To make a tedious tale tolerably terse, the finger of suspicion eventually pointed to Paulshock, and Phinney amended her complaint to allege that he had spoliated evidence. More than six months after Phinney's original document request, Paulshock "found" the evaluation sheet in his house. When he finally turned it over, the document proved damning because it revealed that, prior to the date of the surgery, Paulshock had criticized Jackson's skills and questioned her integrity. This information not only strengthened Phinney's case but also directly contradicted Paulshock's deposition testimony.

Citing this and other purported discovery abuses, Phinney filed a motion for sanctions against a defense attorney and various defendants (Paulshock included). Magistrate Judge Muirhead conducted a five-day evidentiary hearing and dismissed several of the charges. The one exception involving Paulshock related to the Jackson evaluation. In that regard, the magistrate found Phinney's allegations to be substantially true and ruled that Paulshock had intentionally withheld the evaluation sheet and had prevaricated at his deposition concerning its whereabouts. See Phinney v. Paulshock, 181 F.R.D. 185, 200-02 (D.N.H. 1998). He ordered Paulshock to pay a sizable monetary sanction to Phinney. See id. at 205.

Paulshock unsuccessfully moved for reconsideration and then asked the district court to overturn the decision. He filed only a general objection (in narrative form) and, when the district court demanded a concise statement of the grounds undergirding it, he responded at some length that certain findings, i.e., that he withheld a document and then lied about it, were not substantiated and should be set aside. The district court undertook clear-error review and rejected Paulshock's asseverations in an unpublished order.

Paulshock secured new counsel and pressed forward, asking us to rectify the situation. While this appeal was pending, we learned that the underlying case had been settled and that, as part of the settlement, the discovery sanction had been paid and Paulshock had agreed not to seek recoupment.¹ He had, however, reserved the right to appeal the magistrate judge's factual findings. We questioned whether this reservation was enforceable or, in the alternative, whether the no-recoupment arrangement rendered the appeal moot. Cf. Cordero v. De Jesus-Mendez, 867 F.2d 1, 21 (1st Cir. 1989) (explaining that once a "contempt order has been complied with, no case or controversy remains," and a pending appeal is no longer maintainable).

We think that the jurisdictional question is close, but we need not resolve it. Generally speaking, we have the power to treat a notice of appeal as a request for a writ of mandamus. See United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994); United States v. Sorren, 605 F.2d 1211, 1215 (1st Cir. 1979). More specifically, we have indicated in circumstances analogous to those at bar that if we lack jurisdiction to entertain an appeal from factual findings that potentially harm the putative appellant's professional reputation, we may in our discretion treat the notice of appeal as a petition for mandamus. See In re Williams, 156 F.3d 86, 93 n.7 (1st Cir. 1998), cert. denied, 119 S. Ct. 905 (1999). While we would not take this tack in, say, a case involving chastisement resulting in mere embarrassment, or a case involving an unlikely or unsupported claim of serious career damage, Paulshock's appellate counsel represents that the disputed factual findings already have caused severe collateral consequences and will continue to cause such consequences. These representations are sufficiently specific and detailed that we are prepared, if necessary, to exercise our mandamus jurisdiction. We therefore proceed to consider Paulshock's arguments. See Jamison v. Wiley, 14 F.3d 222, 234 (4th Cir. 1994) (adopting such a course); United States v. Collamore, 868 F.2d 24, 27 (1st Cir. 1989) (same).

From Paulshock's viewpoint, this victory is short-lived. It is a firmly settled rule that a party's appeal of a magistrate judge's order to the district court delimits his right to further appellate review. See Thomas v. Arn, 474 U.S. 140, 147 (1985); Keating v. Secretary of HHS, 848 F.2d 271, 274-75 (1st Cir. 1988) (per curiam); see also Malave v. Carney Hosp., 170 F.3d 217, 222 (1st Cir. 1999) (remarking "the bedrock rule of appellate practice that . . . matters not raised in the trial court cannot be hawked for the first time on appeal"). The Civil Rules are quite explicit on this point:

Within 10 days after being served with a copy of the magistrate judge's order [on a nondispositive motion] a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made.

Fed. R. Civ. P. 72(a) (emphasis supplied). We hold, therefore, that an objection to a magistrate judge's order must apprise the district court of all the objector's claims of error, and new claims of error on the part of the magistrate judge cannot thereafter be raised in this court.

This holding, straightforwardly applied, bars the majority of Paulshock's arguments, as Paulshock failed to raise them in his objection to the magistrate's order. Accordingly, we confine our substantive analysis of the magistrate's order to the sole issue that has been properly preserved: the supportability of his factual findings.

Like the district court, we review these factual findings under the "clearly erroneous" rubric. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). This means that we must accept both the trier's findings of fact and the conclusions drawn therefrom unless, after scrutinizing the entire record, we "form a strong, unyielding belief that a mistake has been made." Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990).

In this instance, Magistrate Judge Muirhead's rescript recounts in meticulous detail the evidence on which he based his findings of fact. See Phinney, 181 F.R.D. at 190-95. Certain uncontested facts lend support to his conclusion: it took Paulshock eight months to produce the missing personnel evaluation and, when produced, it turned out to have been in his possession all along, despite his repeated statements that it could not be found, that he did not know its whereabouts, and that others should be queried. Moreover, the magistrate found, with record support, that the ultimate production came only after Paulshock learned that the plaintiff knew he had had the sheet at one time. See id. at 202. In sum, the magistrate's findings have deep and sturdy roots in the record.

To be sure, the evidence is not totally one-sided. Paulshock's counsel adroitly marshals the facts in a forgiving manner, emphasizes Paulshock's explanation of what transpired, and accurately notes that the key to the puzzle is Paulshock's subjective intent. This Herculean effort falls short. Although a party's continuing denials are entitled to some weight in determining points within his personal knowledge, a trial judge is not obliged to accept such protestations at face value. See Aguilar-Solis v. INS, 168 F.3d 565, 570-71 (1st Cir. 1999) (stating that when the judge "who saw and heard a witness makes an adverse credibility determination . . . an appellate court ordinarily should accord it significant respect"). While we, if writing on a pristine page, might have resolved the critical issue of intent differently, we cannot say that the magistrate committed clear error in finding as he did. See United States v. Lara, 181 F.3d 183, 195 (1st Cir.) (explaining that "when the evidence gives rise to competing interpretations, each plausible, the...