Salas by Salas v. Wang
| Decision Date | 16 May 1988 |
| Docket Number | 87-5084,No. 87-5084,No. 87-5099,87-5099 and 87-5112,Nos. 87-5059,No. 87-5059,GROSSI-HALSTEAD and C,No. 87-5112,87-5112,87-5059,87-5099,s. 87-5059 |
| Citation | 846 F.2d 897 |
| Parties | 25 Fed. R. Evid. Serv. 791 Danny SALAS, a minor, by his mother and Guardian ad Litem, Maria E. SALAS, Appellants inv. Sun-Mei WANG, M.D.; St. Joseph's Hospital a corporation of the State of New Jersey, Nicholas Marino, M.D.; Albert Mall, M.D.; James P. Thompson, M.D.; Mohd A. Siddiqui, M.D.; James Pascale, M.D.; Thomas E. Potter, M.D.; Kendrick P. Lance, M.D.; College of Medicine & Dentistry; Rowena Li, M.D.; Sister Jane Frances Brady; Sister Robert Clare Swartz, R.N.; Mary Kowal, R.N.; Dawn Schwartz, R.N.; Cheryl Daniels, R.N.; Dawn Campbell, R.N.; Jane Mullaney, R.N.; Nina Grossi-Halstead, R.N.; Lynn Pascal, R.N.; and Patricia Lia, R.N., jointly, severally and in the alternative. Appeal of Nicholas MARINO, M.D., Appellant inAppeal of Ninaheryl Daniels, Appellants inAppeal of Sun-Mei WANG, M.D., Appellant in |
| Court | U.S. Court of Appeals — Third Circuit |
Arnold J. Ginsberg (argued), Edward A. Perse, Horton, Perse & Ginsberg, Edward C. Ratiner, Ratiner & Glynn, P.A., Miami, Fla., for appellant Danny Salas.
George J. Kenney (argued), Patrick J. McAuley, Connell, Foley & Geiser, Roseland, N.J., for appellee Nicholas Marino, M.D.
Peter A. Greene (argued), Douglas F. Ortelere, Feuerstein, Sachs, Maitlin & Fleming, West Orange, N.J., for appellees Cheryl Daniels, R.N. and Nina Grossi-Halstead, R.N.
John L. Shanahan, Shanahan & Schussell, Roseland, N.J., for appellee Sun-Mei Wang, M.D.
Before BECKER, SCIRICA and ROSENN, Circuit Judges.
These are appeals from the judgment of the district court in a medical malpractice action founded on diversity of citizenship. The appeals (and cross appeal) followed a $6.5 million jury verdict in favor of the plaintiff, Danny Salas, by his mother and guardian ad litem, Maria E. Salas, who sued alleging that Danny had become severely brain damaged as a result of the defendants' negligence in failing to recognize and respond to early signs of fetal distress and in failing properly to resuscitate Danny immediately after birth. Named as defendants were doctors and nurses at Saint Joseph's Hospital ("the Hospital") in Paterson, New Jersey, and the Hospital itself.
The jury returned its verdict against Drs. Sun-Mei Wang and Nicholas Marino and Nurses Cheryl Daniels, Nina Grossi-Halstead, and Patricia Lia, and it apportioned the verdict among these defendants. By order entered January 7, 1987, the district court granted Nurse Lia's motion for judgment n.o.v., but denied the other defendants' motions. At the same time, the court granted plaintiff an award of prejudgment interest, but only on the portion of the damages that accrued between the filing of the complaint and the entry of judgment. The court did not award prejudgment interest for damages (largely medical and personal care expenses) that would accrue over Danny's life expectancy.
Asserting that there was insufficient evidence of their involvement in the tortious conduct, defendants Daniels and Grossi-Halstead appeal the district court's denial of their motion for a directed verdict at the close of the evidence. Because there is evidence from which a reasonable jury could conclude that Nurse Daniels was negligent, we will affirm the district court's denial of her motion. However, because insufficient evidence exists regarding Nurse Grossi-Halstead, we conclude that the district court committed reversible error in denying her motion for a directed verdict, and we will reverse and direct the entry of judgment for Grossi-Halstead.
Defendants' appeal of the district court's denial of their new trial motion presents two questions. The first question is whether the district court abused its discretion in allowing the plaintiff's expert economist to testify as to the (projected) elements of future damages, to calculate the present value of the damages, and to present an aggregate damages figure. We reject the defendants' argument that New Jersey substantive law rather than the Federal Rules of Evidence applies to this question, and determine that the district court did not abuse its discretion in admitting the evidence under the federal rules. The second question is whether plaintiff's counsel's closing argument, which beseeched the jury, "Please, don't let Danny die," (from lack of an adequate damages award to sustain his life) unfairly prejudiced the verdict. Viewing the record as a whole, we conclude that it did not.
Plaintiff's cross-appeal raises the question whether the district court correctly applied the New Jersey prejudgment interest rule. The district court concluded that because the great majority of Danny's damages would accrue after the date of the entry of judgment, this was an "exceptional case" warranting application of prejudgment interest only to damages which were "out of pocket" between the date of the filing of the complaint and the entry of judgment but not on damages (principally medical care) to accrue in the future. Subsequent to the district court's decision, the New Jersey Supreme Court in Ruff v. Weintraub, 105 N.J. 233, 519 A.2d 1384 (1987), made it clear that prejudgment interest may not be suspended based on a finding that damages will not accrue until a future time. Because the district court did not reach the question whether other circumstances support suspending prejudgment interest, we will vacate the prejudgment interest order and remand to the district court for a consideration of whether there are alternative grounds for a finding that this is an "exceptional case."
We thus affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Maria Salas, Danny's mother, was under the care and treatment of defendant Dr. Wang, an obstetrician and gynecologist on the medical staff of St. Joseph's Hospital, for the period of her pregnancy beginning in January 1978. At approximately 7:50 p.m. on July 30, 1978, Maria Salas was admitted to the Hospital in active labor. Dr. Wang was in charge of the delivery. Also on duty that evening were Dr. Marino, the hospital's chief resident in obstetrics, and Nurse Kowal, the assistant to Dr. Wang in the labor and delivery rooms.
Abnormalities were detected both before and after entry into the delivery room. At 8:50 p.m., Dr. Wang ruptured Maria Salas' membranes and observed thick meconium (fetal feces). Dr. Wang testified at trial that the presence of stained amniotic fluid was indicative of the possibility that the newborn baby would suffocate on aspirated meconium. Moreover, the fetal monitor indicated a rapid fetal heart rate, which, according to hospital documents, raises "the possibility ... that some danger to the baby has arisen." J.A. at II-69. Plaintiff's experts testified at trial that Dr. Wang should have performed a caesarean section instead of proceeding with a vaginal delivery under these circumstances. Although Dr. Wang decided against a caesarean delivery, she instructed Nurse Kowal to notify the intensive care nursery ("ICN") of an impending high risk delivery.
The ICN was responsible for providing an emergency team, composed of a nurse and a physician specializing in neonatal care, to provide immediate resuscitation in the event of a high-risk birth. Testimony at trial indicated that the ICN team could have reached the delivery room within roughly one minute of receiving an emergency call. Although the testimony was in conflict about the number and actual times of Nurse Kowal's contacts with the ICN, and although the medical records were subsequently altered and were unhelpful, there is no dispute that Kowal called the ICN on three separate occasions. A warning call was placed at 8:50 p.m., in which Kowal instructed Nurse Daniels, the ICN charge nurse responsible for ensuring that the ICN unit was notified of the request, to place the emergency team on alert. Kowal, at Dr. Wang's direction, contacted Daniels a second time at 10:30 p.m. to repeat her earlier warning and to inform Daniels that Maria Salas was being moved into the delivery room. Kowal testified that she made her third and final call to Daniels at approximately 11:08 p.m. in which she told Daniels to send the emergency team down immediately.
Delivery occurred at 11:27 p.m. For reasons that remain unexplained, the ICN team, consisting of Dr. Siddiqui and an unidentified nurse, failed to arrive until approximately 11:30 p.m., several minutes after delivery. Dr. Wang withdrew the baby from his mother and attempted to commence suctioning the remaining meconium. However, she was prevented from doing so by Dr. Marino, who seized the child from her and began the suctioning process himself. Prior to completion of the meconium removal process, Dr. Marino administered positive oxygen pressure because he noticed that the baby had not commenced breathing and was beginning to show signs of suffering from oxygen depletion (a condition known as cyanosis). Testimony was offered to show that the application of positive oxygen pressure may have forced some of the remaining meconium into the baby's lungs. At this point, the ICN team assumed the care of the child and Dr. Siddiqui removed additional meconium. Dr. Siddiqui did not testify at trial, and the ICN team nurse was never identified.
It is undisputed that Danny suffers from permanent brain damage. As the district court described it: J.A. at I-47. There was testimony at trial that the aspirated meconium and subsequent oxygen deprivation contributed to the brain damage.
Plaintiff's...
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