Sanden v. Mayo Clinic

• Decision Date: 17 April 1974
• Docket Number: No. 73-1575.,73-1575.
• Citation: 495 F.2d 221
• Parties: Lorraine SANDEN, Appellant, v. MAYO CLINIC et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

495 F.2d 221 (1974)

Lorraine SANDEN, Appellant, v. MAYO CLINIC et al., Appellees.

No. 73-1575.

United States Court of Appeals, Eighth Circuit.

Submitted February 14, 1974.

Decided April 17, 1974.

Rehearing Denied May 24, 1974.

COPYRIGHT MATERIAL OMITTED

Paul D. Tierney, Minneapolis, Minn., and John J. Doyle, San Francisco, Cal., for appellant.

James H. O'Hagan, Minneapolis, Minn., for appellees.

Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Lorraine Sanden, a registered nurse residing in San Francisco, California, brought an action against the Mayo Clinic, the Mayo Foundation and two surgeons on the Clinic's staff. In her complaint she alleged that defendants had subjected her to extensive anal surgery, which she had not authorized, including a negligently performed radical hemorrhoidectomy, as a result of which her anal sphincter was irreparably injured, causing her permanent incontinence of the feces, as well as other disabilities. Federal jurisdiction was premised on diversity of citizenship and an amount in controversy exceeding $10,000, 28 U.S.C. § 1332.

Following a seven-day trial, the jury returned a verdict in favor of defendants on May 30, 1973. Ms. Sanden appeals from the order of the District Court denying her timely filed motion for new trial. In this appeal, she asserts as prejudicial error a number of trial rulings by the District Judge, all of which are discussed infra.

I. DEFENDANTS' FAILURE TO PLEAD FRAUD AS A SPECIFIC DEFENSE.

Ms. Sanden's first assignment of error challenges the defendants' introduction of evidence of fraud at the trial. It was the defendants' position that Ms. Sanden, together with her San Francisco attorney,¹ had planned to bring this lawsuit even before she had submitted to surgery at the Mayo Clinic; that she had faked the disabilities purportedly resulting from that surgery; and that she had attempted to introduce at trial fraudulent evidence to substantiate those disabilities. Ms. Sanden argues that since the defendants did not specifically allege fraud in their answer to her complaint, it was error to permit the introduction of such evidence at trial under Fed.R.Civ.P. 8(c).² We disagree. Rule 8(c) requires that fraud and other matters in avoidance of the plaintiff's case be specifically pleaded in the defendants' answer when invoked as affirmative defenses. However, "if the defense involved is one that merely negates an element of the plaintiff's prima facie case * * * it is not truly an affirmative defense and need not be pleaded despite rule 8(c)." 2A J. Moore, Moore's Federal Practice ¶ 8.27 2, at 1843 (2d ed. 1974). See Lomartira v. American Automobile Insurance Co., 245 F.Supp. 124 (D.Conn.1965), aff'd, 371 F.2d 550 (2d Cir. 1967). Cf. Goodwin v. Townsend, 197 F.2d 970, 971 (3d Cir. 1952); Feller v. McGrath, 106 F.Supp. 147, 149 (W.D.Pa.1952), aff'd mem. sub nom., Feller v. Brownell, 201 F.2d 670 (3d Cir.), cert. denied, 346 U.S. 831, 74 S.Ct. 24, 98 L.Ed. 355 (1953).

In contending that Ms. Sanden's injuries were feigned and that the lawsuit was no more than a scheme for financial gain, the defendants in no way conceded any color to plaintiff's claim, but were simply attempting to persuade the jury to reject her entire case as untrue.³ This assignment of error is frivolous.

II. REFUSAL OF THE DISTRICT JUDGE TO PERMIT THE PLAINTIFF'S PHYSICIAN TO ATTEND HER MEDICAL EXAMINATION BY DEFENDANTS' EXPERT.

On the third day of trial, the District Court ordered Ms. Sanden to submit to an examination by defendants' medical expert. The examination was to include an electromyographic study of the plaintiff's anal sphincter; such a study distinguishes healthy and intact nerves from damaged nerves through the placement of electrodes in one's muscles and through analysis of the reaction of those muscles to electro-chemical impulses.

Plaintiff requested that a physician of her choice attend this examination as an observer. The defense counsel objected, and Judge Devitt sustained that objection. The examination was performed on behalf of the defendants by William R. Kennedy, M.D., Professor of Neurology, Director of the Neuromuscular Laboratory in the Department of Neurology, University of Minnesota, in Minneapolis. At trial Dr. Kennedy testified that the electromyograph indicated that the muscles and nerves in question were normal and that any abnormal reactions displayed by Ms. Sanden were the result of her purposeful efforts to determine the outcome of the test.⁴ The conclusions so drawn by Dr. Kennedy stand in direct contradiction to the findings of three other physicians who examined Ms. Sanden and testified on her behalf.⁵

In this appeal, Ms. Sanden urges that Judge Devitt's refusal to allow one of plaintiff's physicians to attend the adverse medical examination performed by Dr. Kennedy constitutes prejudicial error. She contends that this is so particularly because of the importance of the electromyographic study in resolving the disputed questions of fact and because of the conflicting testimony elicited on the test results. We uphold the District Court.

The manner and conditions of a court-ordered medical examination, as well as the designation of the person or persons to conduct such an examination, are vested in the sound discretion of the trial court. Fed.R.Civ.P. 35(a).⁶ Although the examined party will usually be permitted to have his or her own physician present, see 4A J. Moore, Moore's Federal Practice ¶ 35.04, at 35-24, 35-25 n. 11 (2d ed. 1974); 64 A. L.R.2d 498-500 (1959), we find that under the circumstances of this case Judge Devitt did not abuse his discretion.⁷ No argument was advanced that a physician of her own choosing was needed to protect the privacy of Ms. Sanden, or to shield her from embarrassment. Cf. 64 A.L.R.2d 499-501 (1959). And properly so. She was a trained, registered nurse. We note that not only did plaintiff's own physician examine her a few hours after the adverse examination but also, in addition to Dr. Kennedy's testimony, the jury had before it extensive medical evidence from a variety of doctors from which to draw its findings of fact.⁸ In this context, we perceive no prejudice resulting from Judge Devitt's refusal to permit Ms. Sanden's own physician to attend the adverse examination.

III. SUBMISSION OF "FALSE EVIDENCE" TO THE JURY.

Plaintiff contends that during the course of the trial her attorney submitted to the defense counsel a tape of an electromyographic study performed on Ms. Sanden by Dr. Willibald Nagler. The tape, as allegedly submitted to the defense counsel, was attached to a demonstration tape showing damaged nerves and muscles of the anal sphincter.⁹ The defendants' medical expert, Dr. Edward Lambert, testified that he was given only the demonstration tape, without Ms. Sanden's tape attached; he further claimed that of a series of photographic projections purportedly made from Dr. Nagler's electromyographic study of Ms. Sanden and later introduced as evidence, he had determined that at least one had been prepared from the demonstration tape.

Plaintiff would have us remand for a new trial on the ground that "false evidence" was submitted to the jury.¹⁰ She argues that the defense counsel lost or destroyed Ms. Sanden's tape and that, in any event, the disclosure of the discrepancy should not have been made before the jury without first apprising the plaintiff's attorney of the problem.

A motion for a new trial is addressed to the sound discretion of the trial court and the action of the trial court should not be upset absent a strong showing of an abuse thereof. Farmers' Co-operative Elevator Association Non-Stock of Big Springs, Nebraska v. Strand, 382 F.2d 224, 230-231 (8th Cir.), cert. denied, 389 U.S. 1014, 88 S. Ct. 589, 19 L.Ed.2d 659 (1967); Bankers Life & Casualty Co. v. Kirtley, 307 F.2d 418, 423 (8th Cir. 1962). We discern no abuse of that discretion. The defendants' expert witness did not testify falsely; he merely testified that a demonstration tape, without Ms. Sanden's tape attached, had been submitted to him¹¹ and opined that at least one of the photographs introduced as evidence had been made from that demonstration tape. In addition, while counsel for the plaintiff interposed one objection at the outset of Dr. Lambert's testimony—on grounds of irrelevancy and immateriality—, he made no further objection as this line of evidence was developed; in fact, plaintiff's attorney explicitly answered in the negative when asked by the court whether such evidence would be harmful. The court thereupon permitted the defense to continue its questioning of Dr. Lambert.

After the entry of the verdict and the judgment thereon, Ms. Sanden submitted to Judge Devitt, together with her motion for a new trial, motions for an independent court-ordered medical examination and for an F.B.I. investigation of the disappearance of the plaintiff's electromyographic tape. Judge Devitt denied each of these post-trial motions. It is not clear whether appellant attempted to preserve these points on appeal; in any event, we decline to disturb Judge Devitt's orders, for we find them well within his discretion.¹²

IV. THE MISCONDUCT OF THE DEFENSE COUNSEL AND THE TRIAL COURT'S FAILURE TO REPRIMAND HIM.

Appellant assigns as prejudicial error the trial court's failure to disallow certain questions propounded by the defense in open court. The questions included, inter alia, suggestions that Ms. Sanden had administered to herself a pudendal nerve block in an effort to control the results of the adverse electromyograph; that she was romantically involved with her San Francisco attorney; that one of her medical witnesses regularly testified for a New York law firm; and that her entire case was fraudulent. Appellant further contends that on certain occasions when the attorneys had approached the bench, counsel for the defense repeatedly spoke loudly, within the hearing of the jury,...