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USCA1 Opinion
October 8, 1992
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No. 92-1274
SANDRA G. WILDER,
Plaintiff, Appellee,
v.
WARREN F. EBERHART, M.D., AND
CONCORD CLINIC, INC.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and Hornby,* District Judge.
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Robert M. Larsen, with whom William D. Pandolph and Sulloway
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Hollis & Soden, were on brief for appellants.
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John Pierce Kalled, with whom Douglas P. Hendrickx and
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Kalled Law Offices, were on brief for appellee.
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* Of the District of Maine, sitting by designation.
TORRUELLA, Circuit Judge. Doctor Warren F. Eberhart,
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("Dr. Eberhart") appeals an adverse judgment rendered in this
medical malpractice action, stemming from a suit filed by his
former patient Sandra Wilder ("Ms. Wilder"). On appeal, Dr.
Eberhart raises the issue of whether the district court committed
reversible error in excluding and/or limiting rebuttal expert
testimony to that which could be expressed quantifiably in terms
of "probability." Because we agree with Dr. Eberhart, that the
district court erred in limiting his defense expert's testimony,
we vacate the judgment and remand for a new trial.
BACKGROUND
BACKGROUND
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On May 21, 1985, Ms. Wilder, a Vermont resident, saw
Dr. Eberhart in his Concord New Hampshire office for consultation
regarding Ms. Wilder's obesity and the medical options available
to control her weight problem. Following the consultation,
Dr. Eberhart determined that Ms. Wilder was a candidate for a
vertical banded gastroplasty ("VBG") or vertical stapling of the
stomach. Ms. Wilder was admitted to the Concord Hospital on
June 11, 1985, under the care of Dr. Eberhart. The following
day, June 12, 1985, Dr. Eberhart performed the VBG on Ms. Wilder.
The procedure went uneventfully until near the end when Dr.
Eberhart noticed a 3 to 3.5 centimeter tear in Ms. Wilder's lower
esophagus. The tear was repaired by suturing the tear and then
suturing a fold of the gastric tissue around the tear site for
additional support -- a procedure known as a Nissen
fundoplication. Following the operation, Ms. Wilder was sent to
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the recovery room.
On the following day, June 13, 1985, Dr. Eberhart
determined that there was still leakage at the lower esophagus.
He operated again that same day and discovered two tears in
Ms. Wilder's lower esophagus. The tears were repaired. On
June 20, 1985, Dr. Eberhart decided to operate again when an X-
ray revealed that the lower esophagus and upper stomach were not
healing properly. During the operation, it was discovered that
the lower esophagus and upper stomach were no longer viable.
Thus Dr. Eberhart removed that dead tissue and sewed the upper
side of the stomach closed. The remainder of the stomach was
reconnected to the esophagus. Eventually, Ms. Wilder was
transferred to the Dartmouth-Hitchcock Medical Center, where she
remained hospitalized for 101 days until her release in November
of 1985.
Ms. Wilder filed this diversity suit in the United
States District Court for the District of New Hampshire against
Dr. Eberhart and the Concord Clinic alleging amongst other things
negligence on behalf of Dr. Eberhart in mobilizing the esophagus
during surgery, causing her recurring esophageal injury. A jury
awarded Ms. Wilder $685,000 in damages.
The Trial
The Trial
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I. Expert Testimony
I. Expert Testimony
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Dr. Saul Frank Weinstein ("Dr. Weinstein"), a general
surgeon from Philadelphia, testified via video deposition as
plaintiff's expert. Dr. Weinstein categorically ruled out any
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possibility that instrumentation could have caused the injury to
Ms. Wilder's esophagus. Further, he concluded without
reservation that the sole cause of the esophageal injury was
mobilization of the esophagus by Dr. Eberhart during the VBG
procedure.
On the fourth day of trial, three days after the video
deposition of Dr. Weinstein was presented, the defendants were
prepared to introduce their expert witnesses, Dr. David J.
Sugarbaker ("Dr. Sugarbaker"), Assistant Professor of Surgery at
Harvard Medical School and Chief of Thoracic Surgery at Brigham
and Women's Hospital, and Dr. Edward Mason ("Dr. Mason"), the
developer of the VBG technique. Both were prepared to testify
that other "possible" causes of the esophageal injury1 existed.
Just moments before Dr. Sugarbaker's testimony, Ms. Wilder's
counsel filed a Second Motion in Limine seeking to exclude any
opinion testimony by defendants' experts that could not be
expressed in terms of "probability" as distinguished from "mere
possibility."
Ms. Wilder's counsel argued that by presenting evidence
of particular possible causes of the injury, defendant was
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1 Defendants' experts were to testify as to each possible cause
of Ms. Wilder's esophageal tear. Moreover, the experts were
going to rank the possibilities in order of likelihood,
reflecting the most likely causes. Out of this ranking, the
defendants' experts would conclude that the most likely cause of
Ms. Wilder's injury was the passage and manipulation by the
anesthesiologist of certain instruments -- the Nasogastric tube
or the Maloney dilator -- through or in the esophagus, and
correspondingly, that the least likely of the possible causes was
mobilization of the esophagus by Dr. Eberhart.
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raising an affirmative defense which shifted the burden to Dr.
Eberhart to prove that another cause, other than manipulation of
the esophagus during surgery, was more probably than not the
cause of the tears to the esophagus. Defense counsel argued that
it was entitled to put on testimonial evidence to the effect that
no one, including Ms. Wilder's expert, Dr. Weinstein, should be
able to say more probably than not the cause of the tears to the
esophagus was manipulation or mobilization of the esophagus.
Defense counsel also argued that the burden of proof regarding
causation did not shift to the defense, and further, that defense
experts were entitled to testify as to other possible causes of
the esophagus tears in rebuttal of the claims made by plaintiff's
witnesses.
STANDARD OF REVIEW
STANDARD OF REVIEW
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Generally, the decision whether or not to admit expert
testimony is a matter within the sound discretion of the trial
judge. Int'l Adhesive Coating Co., Inc. v. Bolton Emerson Int'l,
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851 F.2d 540, 544 (1st Cir. 1988) (citing Lynch v. Merrell-
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National Laboratories, 830 F.2d 1190, 1196-97 (1st Cir. 1987)); 3
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J. Weinstein & M. Berger, Weinstein's Evidence 703[1], at 703-
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04 (1987)). The trial judge's decisions will not be disturbed
absent a clear abuse of that discretion or an error of law. Id.
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(citing DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1st
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Cir. 1988)). We find that the trial judge committed clear error
in prohibiting defendant's experts from testifying as to other
possible causes in rebuttal of Dr. Weinstein's testimony, and
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thus we vacate and remand the case for a new trial.
DISCUSSION
DISCUSSION
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Plaintiff's Second Motion in Limine cited Emerson v.
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Twin State Gas and Electric Co., 174 A. 779 (N.H. 1934), for the
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proposition that "the opinion testimony of a physician is
admissible if stated within reasonable medical probability." In
granting plaintiff's Second Motion in Limine to limit the
testimony of Drs. Sugarbaker and Mason, the trial judge agreed
with the defendants that the burden of proof did not shift, yet
he cited Bentley v. Adams, 128 A.2d 202 (N.H. 1956) and Brann v.
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Exeter Clinic, Inc., 498 A.2d 334 (N.H. 1985), concluding that to
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admit testimony of possibilities would result in "reversible
error." (Tr. Vol. 4 p. 52). This effectively shifted the burden
somewhat to the defendant, because he now had to prove more
probably than not, that another cause, not manipulation, was the
cause of Ms. Wilder's injury. Besides finding that these cases
stand for other principles inapplicable to the facts presented by
this case,2 our review of applicable case law leads us to but
one conclusion; that the trial court committed a clear error of
law in excluding defendants' expert rebuttal testimony.
It is well settled under New Hampshire law that the
burden of proof with respect to causation in a medical
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2 These cases generally refer to the plaintiff's burden of
proof; that the plaintiff must prove his case within a reasonable
degree of medical certainty. They are silent as to whether or
not a defendant in a medical malpractice action or any negligence
action may present "possibility" evidence when rebutting
plaintiff's "probability or certainty" evidence.
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malpractice case rests and remains with the plaintiff.
Pillsbury-Flood v. Portsmouth Hospital, 512 A.2d 1126, 1129 (N.H.
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1986). Moreover, proximate causation between negligence and the
injury complained of in a medical malpractice case must be
established by expert testimony. Martin v. Wentworth-Douglass
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Hospital, 536 A.2d 174, 176 (N.H. 1987). On the other hand, the
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defendant need not disprove causation. Rather, he must produce
credible evidence which tends to discredit or rebut the
plaintiff's evidence. Tzimas v. Coiffures By Michael, 606 A.2d
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1082, 1084 (N.H. 1992). As the New Hampshire Supreme Court
recently stated in Tzimas, the plaintiff in a negligence action
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bears the burden of producing evidence "to prove that it is more
likely than not that [plaintiff's] injury was" caused by the
defendant's negligence. Tzimas, 606 A.2d at 1084. Defendant
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need not prove another cause, he only has to convince the trier
of fact that the alleged negligence was not the legal cause of
the injury. Id. In proving such a case, a defendant may produce
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other "possible" causes of the plaintiff's injury. These other
possible causes need not be proved with certainty or more
probably than not. To fashion such a rule would unduly tie a
defendant's hands in rebutting a plaintiff's case, where as here,
plaintiff's expert testifies that no other cause could have
caused plaintiff's injury. The burden would then shift and
defendant would then bear the burden of positively proving that
another specific cause, not the negligence established by
plaintiff's expert, caused the injury. Certainly, this is much
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more than what should be required of a defendant in rebutting a
plaintiff's evidence.
Were we to accept plaintiff's argument that once a
plaintiff puts on a prima facie case, a defendant cannot rebut it
without proving another cause, the resulting inequities would
abound. For example if ninety-nine out of one hundred medical
experts agreed that there were four equally possible causes of a
certain injury, A, B, C and D, and plaintiff produces the one
expert who conclusively states that A was the certain cause of
his injury, defendant would be precluded from presenting the
testimony of any of the other ninety-nine experts, unless they
would testify conclusively that B, C, or D was the cause of
injury. Even if all of defendant's experts were prepared to
testify that any of the possible causes A, B, C or D, could have
equally caused plaintiff's injury, so long as none would be
prepared to state that one particular cause, other than that
professed by plaintiff more probably than not caused plaintiff's
injury, then defendant's experts would not be able to testify at
all as to causation. We think that such a result does not
reflect the state of the law in New Hampshire, and furthermore
would be manifestly unjust and unduly burdensome on defendants.
Under the circumstances of this case, Dr. Eberhart was
prejudiced by the granting of the Second Motion in Limine, and
this prejudice constituted reversible error. Thus, the judgment
in favor of plaintiff is vacated and remanded for a new trial.
Vacated and remanded.
Vacated and remanded.
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Document Info
Docket Number： 92-1274
Filed Date： 10/8/1992
Precedential Status： Precedential
Modified Date： 9/21/2015