Roberts ex rel. Johnson v. Galen of Virginia, Inc.

• Decision Date: 09 April 2003
• Docket Number: No. 01-5390.,No. 01-5334.,01-5334.,01-5390.
• Citation: 325 F.3d 776
• Parties: Jane ROBERTS, as Guardian for Wanda Y. Johnson, Plaintiff-Appellant/Cross-Appellee, v. GALEN OF VIRGINIA, INC., formerly d/b/a Humana-Hospital University of Louisville, d/b/a University of Louisville Hospital, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

325 F.3d 776

Jane ROBERTS, as Guardian for Wanda Y. Johnson, Plaintiff-Appellant/Cross-Appellee, v. GALEN OF VIRGINIA, INC., formerly d/b/a Humana-Hospital University of Louisville, d/b/a University of Louisville Hospital, Defendant-Appellee/Cross-Appellant.

No. 01-5334.

No. 01-5390.

United States Court of Appeals, Sixth Circuit.

Argued December 10, 2002.

Decided and Filed April 9, 2003.

COPYRIGHT MATERIAL OMITTED

Joseph H. Mattingly III (argued and briefed), Lebanon, Kentucky, for Plaintiff-Appellant.

Audra J. Eckerle (briefed), Bryan Todd Thompson (argued and briefed), Millicent A. Tanner (briefed), Thompson, Miller & Simpson, Louisville, Kentucky, for Defendant-Appellee.

Before BATCHELDER and MOORE, Circuit Judges; COLLIER, District Judge.^*

MOORE, J., delivered the opinion of the court, in which COLLIER, D.J., joined. BATCHELDER, J., (p. 789), delivered a separate concurring opinion.

OPINION

MOORE, Circuit Judge.

The plaintiff, Jane Roberts (as guardian for the injured Wanda Johnson), lost a jury trial in her suit against the defendant, Galen of Virginia ("Galen"). Roberts claimed that Galen had improperly transferred Johnson from Humana-Hospital (which Galen operated) to Crestview Health Care Center, in violation of the federal Emergency Medical Treatment and Active Labor Act ("EMTALA") as well as Kentucky negligence statutes. Roberts now appeals to this court, alleging that the trial judge erred by dismissing her Batson challenges, in permitting Galen's expert Dr. Charash to testify, by failing to sequester one of Galen's witnesses, and in giving improper jury instructions. Galen cross-appeals, contending that it should have been granted judgment as a matter of law.

For the reasons set forth below, we find that none of the plaintiff's contentions of error justify reversal. We therefore AFFIRM the judgment of the district court. Having resolved the case in favor of the defendant, we do not reach the defendant's alternative contention that it should have been granted judgment as a matter of law.

I. BACKGROUND

After being injured in a serious automobile accident, Wanda Johnson was transported to Humana-Hospital, on May 20, 1992, with extensive injuries to her brain, spine, right leg, and pelvis. On her arrival, the doctors at Humana worked to stabilize her condition. Though Johnson's condition improved, it was clear that recovery was going to be gradual. Nancy Fred, a social worker for Humana (along with Dr. Walid Abou-Jaoude, Johnson's physician at Humana), investigated the possibility of transferring Johnson to a skilled nursing facility. Johnson remained at Humana for roughly two months, until July 24, 1992 when she was transferred from Humana, which is in Louisville, Kentucky, to Crestview Health Care Center in Indianapolis, Indiana. Upon arrival at that facility, her condition significantly deteriorated. She was later transferred to Midwest Medical Center, also in Indiana. This lawsuit arises out of Roberts's contention that Galen, by choosing to transfer Johnson when she was unstable, violated both EMTALA and Kentucky negligence statutes.

At trial, the facts were developed further. Donna Kaelin, Suzanne Griffith, and Karen Martin, who were nurses at Humana, had monitored Johnson's condition in the 36 hours before the transfer. They noted that Roberts had an elevated white blood-cell count and temperature, cloudy urine, and expiratory wheezes. The nurses also reported caring for Johnson's right lung, the upper portion of which had collapsed on the night of July 22, 1992. The nurses recorded their observations on Johnson's charts. Karen Martin, who was on duty when Johnson was actually transferred, explicitly noted that she had not only charted her observations, but had brought them to the attention of Dr. Abou-Jaoude, who was Johnson's physician and the physician in charge of the transfer.

Since Johnson had experienced multiple urinary tract infections due to her indwelling Foley catheter, Abou-Jaoude suspected that the elevated temperature and cloudy urine were symptomatic of another urinary tract infection. Abou-Jaoude took chest x-rays and a bronchoscopy, and a urine culture was obtained. The x-rays indicated that Johnson's partially collapsed lung was stable and improving. Preliminary reports on the urine culture suggested to Abou-Jaoude that it was a case of colonized bacteria, a routine problem with patients hospitalized for long periods of time. Abou-Jaoude also noted that many of Johnson's symptoms — such as her high white blood-cell count and elevated temperature — had existed since her arrival at Humana and were likely not probative of anything. Believing that Johnson likely had a urinary tract infection and was in no serious danger, Abou-Jaoude put her on Bactrim, an antibiotic, and continued with her transfer.

After her transfer to Crestview, however, Johnson's condition deteriorated; she developed a case of active pneumonia and suffered lasting damage. The plaintiff disputes whether Johnson's condition was stable enough for her to be transferred. Dr. John Stuy, the plaintiff's expert, testified that the hospital should have held Johnson until it received final reports (rather than just preliminary ones) on the urine culture. Stuy testified that Johnson's ability to fight off infection was extremely compromised and that an infection could have easily spread into the bloodstream causing sepsis and eventual death. Stuy noted that when Johnson was admitted to the Midwest Medical Center she was diagnosed with active pneumonia and that such pneumonia could have been present at the time of the transfer. The defendant's medical experts all contradicted Dr. Stuy, and argued that there was no objective evidence of a significant infection at the time of the transfer. They stated that it was common and appropriate to transfer a patient without a final report as long as the patient did not have active sepsis.

This case comes before us as an appeal from a jury verdict for the defendant. The complaint in this case was filed on August 30, 1993. Initially, the defendant was given summary judgment by the district judge, who held that liability under EMTALA's stabilization requirement could not be established without a showing that the hospital was motivated by improper financial considerations. Our court affirmed. See Roberts v. Galen of Virginia Inc., 111 F.3d 405 (6th Cir.1997). The Supreme Court reversed in a per curiam opinion, holding that EMTALA's stabilization provision did not require the plaintiff to show an improper motive on the part of the defendant. See Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999). On remand from this court, the district court held a trial on liability which began on February 12, 2001. This appeal arises from the resulting jury verdict for the defendant.

II. ANALYSIS

A. Jurisdiction

The district court below had jurisdiction over Roberts's EMTALA claim pursuant to 42 U.S.C. § 1395dd and 28 U.S.C. § 1331, and supplemental jurisdiction over the state-law negligence claim pursuant to 28 U.S.C. § 1367. This court has jurisdiction over the entire case pursuant to 28 U.S.C. § 1291.

B. The Batson Claim

Roberts alleges four independent errors on the part of the trial judge. Roberts's first claim is that the defendant's attorneys used some of their peremptory challenges to eliminate black jurors, in violation of the Equal Protection Clause. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A district court's ruling on whether the exercise of a peremptory challenge violates equal protection is entitled to "`great deference,'" and therefore, "we may not disturb its judgment unless it is clearly erroneous." McCurdy v. Montgomery County, 240 F.3d 512, 521 (6th Cir.2001) (citation omitted); see also United States v. Hill, 146 F.3d 337, 342 (6th Cir.1998) (stating that "the district court has the responsibility to assess the prosecutor's credibility under all of the pertinent circumstances"). Our usual three-part approach to Batson challenges was laid out in McCurdy:

To establish a[n] equal protection violation under Batson, the claimant must first establish a prima facie case of racial discrimination.... If the claimant establishes a prima facie case, the party exercising the peremptory must proffer a race-neutral explanation.... After the defending party offers its race-neutral justification, the challenging party must demonstrate that the purported explanation is merely a pretext for a racial motivation.

McCurdy, 240 F.3d at 521. Here, however, the district court asked for an explanation for the strike without considering whether the Roberts had established a prima facie case. Under these circumstances, the question "`boils down to whether [Roberts] established by a preponderance of the evidence that the peremptory strikes were intentionally discriminatory.'" United States v. Gibbs, 182 F.3d 408, 439 (6th Cir.) (citation omitted), cert. denied, 528 U.S. 1051, 120 S.Ct. 592, 145 L.Ed.2d 492 (1999); see also Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (noting that once a party "has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the [challenger] had made a prima facie showing becomes moot").

When analyzing Batson challenges, we have stated that a proffered race-neutral reason "need not be persuasive, or even plausible, but merely facially valid." Hill, 146 F.3d at 341. However, a party "may not rely on his assurances of good faith." Gibbs, 182 F.3d at 439. District courts are required to "independently assess the proffered justifications" and "`explicitly adjudicate the credibility of [these] race-neutral justifications,'" particularly in cases "when the purported race-neutral justification is predicated on subjective...