Willey v. Ketterer
| Decision Date | 07 February 1989 |
| Docket Number | No. 88-1163,88-1163 |
| Citation | 869 F.2d 648 |
| Parties | Angela WILLEY, etc., et al., Plaintiffs, Appellants, v. John KETTERER, M.D., et al., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Philip J. Crowe, Jr., with whom Elizabeth N. Mulvey and Lubin & Meyer, P.C., Boston, Mass., were on brief for plaintiffs, appellants.
William L. Chapman with whom Ronald L. Snow and Orr and Reno, Professional Ass'n, Concord, N.H., were on brief for defendants, appellees.
Before BOWNES, ALDRICH and BREYER, Circuit Judges.
This is a diversity action in the District Court for New Hampshire for malpractice brought on behalf of plaintiff Angela Willey, ppa, against John Ketterer, M.D., the delivering obstetrician, and the Mary Hitchcock Memorial Hospital, claiming that the minor plaintiff's cerebral palsy--an impairment of the nervous system's control of muscular activity--should have been anticipated and could have been avoided by a Caesarian section to shorten labor. The jury returned a verdict for defendants. Plaintiff's vehicle for asserting errors occurring during trial rests on her appeal from the denial of her motion for new trial. In the course of its opinion denying the motion the district court, quite properly, overruled defendants' procedural objections, and found that plaintiff's objections at trial were sufficiently preserved to "surmount any procedural bar to their argument." We agree with plaintiff as to the substantial nature of the errors; we find that the court applied the wrong test as to the motion, and we hold that, on its own findings, it should have granted, rather than denied it.
As an introductory matter we reject out of hand, what we sometimes suspected to be suggested during oral argument, that plaintiff failed to make a case for the jury. The court expressly, and correctly, stated that she made a case. What we disagree with is the court's ruling that since it could be found that defendants made out a case, and the verdict was not against the weight of the evidence, defendants' errors did not entitle plaintiff to a new trial even though it found them prejudicial.
The prologue to this case took place in chambers when, prior to trial, plaintiff presented two motions in limine, one of which sought to preclude "reference to or introduction of evidence regarding the medical history of Angela Willey's sister, Danielle." The motion pointed to Danielle's history of seizures, and the danger that the jury might give causative weight thereto although there would be no medical evidence forthcoming to justify any connection. A second motion sought to preclude reference to plaintiff's mother's previous pregnancy difficulties because, again, there would be no medical tie-up. We go no further, however, than the first motion.
Defendants' response was, inter alia, that they had evidence to support the relevancy, viz., that expert testimony would be offered tying plaintiff's condition to inheritance to rebut the claim of obstetrical causation. Thus a leading article, Antecedents of Cerebral Palsy, "mentions that a motor deficit in a sibling predisposes another sibling to a higher risk of cerebral palsy." Danielle's medical record is "clearly relevant to the predisposition genetically to cerebral palsy."
Over plaintiff's protest, assertedly based upon extensive pretrial discovery to the effect that Danielle's seizures had been febrile (fever induced) and not relevant to plaintiff, the court permitted defendants to open to the jury with extensive references to alleged family genetic tie-ins. Starting with a reference to plaintiff's counsel as "my learned Brother from Boston," after having introduced himself as "Ron" and his partner as "Bill," (translation, if the reader needs assistance, "A city slicker from Massachusetts out to take two local boys,") and four times breaking an important rule of ethical conduct, that counsel should not express his personal belief, 1 counsel went the whole hog.
We believe that there is evidence in the genetic data which links this family to a higher predisposition towards this disease....
Mrs. Willey had a daughter born in 1979, two years before Angela was born. Her name was Danielle. She suffers from a seizure disorder since 1980. 2 You'll learn that a motor deficit, that's a seizure disorder, in a sibling is a risk factor of cerebral palsy.
Mr. Willey has a brother who has been diagnosed and has for many years had Down's Syndrome, which is a mental retardation disease.
At the close of the evidence plaintiff moved to strike all reference to Danielle's seizures, and to Angela's uncle's Down's syndrome. It was so obvious that no evidence had linked Down's syndrome to cerebral palsy that defendants readily conceded that that should be stricken. Pausing here, we must wonder how could counsel, who had engaged in extensive discovery, and had prepared his case sufficiently to deliver a detailed nineteen page opening discussing the evidence, not know the favorable, and the limit of the favorable, evidence available to him? There was no suggestion that a witness had disappointed him; his only explanation was that it had not worked out. 3 Defendants refused, however, outright to withdraw their charge as to the relevance of Danielle's seizures, and the court agreed, albeit reluctantly. But what here, on review of the record, did the evidence show, in addition to the cryptic excerpt from the article Antecedents, not itself applicable unless tied in?
1. Questioning of Mrs. Willey, as to the details of Danielle's seizures.
2. Testimony that Danielle's seizures were febrile, and an opinion, post, of a reading "compatible with a seizure disorder."
3. Testimony by plaintiff's expert that Danielle's type of seizure did not indicate a predisposition to cerebral palsy in siblings.
4. No contrary testimony; not even a question addressed by defendants to their principal expert as to Danielle.
On the basis of a full transcript on plaintiff's post-trial motion, the court stated, inter alia,
Defendants [in opening] argued that ... genetic flaws in both parental lines predisposed Angela to CP.... Late in the trial, plaintiffs' attorney ... denied correctly that defendants' expert had equated Danielle's seizures with any type of motor deficit.... [D]uring the trial defendants' attorney engaged in a subtle shell-game on the phrases "seizure disorder" and "motor deficit," blurring the significance of these technical words for court and jury.... Defendants' experts never provided the nexus.
Pursuing this at oral argument, and picking up the "shell game" motif, we inquired, although not in these terms, where was the pea? Counsel answered,
[T]he missing evidence was a connector; a connector between Danielle's seizures and a higher propensity ... for cerebral palsy.... [W]e neglected to have a witness say that a seizure disorder in a sibling is equivalent to a motor deficit. And when we looked at the transcript we thought we had it through one of the plaintiff's experts. (Emphasis supplied).
Pausing here, was it plaintiff's expert who counsel meant when he informed the court, "Yes, we have the evidence."? Plaintiff's expert had said no such thing on deposition. At trial he said,
Q. [W]ere you provided with any records which indicated to you that a previous child had been diagnosed as having a seizure disorder in this case?
A. My understanding is that that child had febrile seizures at the age of 14 months. That's not a seizure disorder. That's the result of a high fever.
The previously mentioned reference in Antecedents to motor deficits in siblings was read to the witness on cross-examination, and he agreed that it was read correctly, but he was not asked whether it affected his opinion, or, indeed, what it meant.
In chambers defendants' counsel had mentioned defendants' cerebral palsy expert, Dr. Chutorian, in assuring the court he had the evidence. If it was because of forgetfulness that counsel thereafter neglected to ask him about Danielle at all, he also forgot to inquire of defendants' other doctor. Continuing with counsel's response to us at oral argument,
We didn't have it as clearly as it should have been. Perhaps we didn't have it at all. And when we looked at Dr. Nordgren's testimony, we didn't have it there. We realize we neglected to ask him that. I don't think that amounts to misconduct. (Emphasis supplied).
To this we asked the obvious question, "What does that have to do with the fairness of the trial?"
Dr. Nordgren is a neurologist, not defendants' cerebral palsy expert. He was asked by defendants to interpret an electroencephalogram that had been taken of Danielle. He testified that it was "compatible with a diagnosis of a seizure disorder." Passing the fact that "compatible" is not "probable," he further testified that "febrile seizures are seizures that are precipitated by a high fever and children--this is a very frequent problem, but most children with the disorder will outgrow it." Plaintiff's deficit is impossible to outgrow. Whatever the witness meant by compatible, and whatever defendants "neglected to ask him," what he in fact said was not far, if distant at all, from plaintiff's expert who testified,
The district court was manifestly unhappy. Referring to "the prejudicial atmosphere created by defendants' unwarranted use of genetic predisposition," it said,
[T]he court acknowledges that defendants' irrelevant...
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