David Gicla v. United States ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1648
D AVID B. G ICLA,
Plaintiff-Appellant,
v.
U NITED STATES OF A MERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 7236—Sidney I. Schenkier, Magistrate Judge.
A RGUED JANUARY 13, 2009—D ECIDED JULY 15, 2009
Before B AUER, P OSNER, and R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Plaintiff-appellant David B. Gicla
had his right-ankle joint replaced with an implant at a
Veteran’s Administration Medical Center in Chicago.
After the implant failed to relieve the chronic pain and
swelling that Gicla was experiencing, a series of five
additional surgeries followed, culminating in the am-
putation of his right leg below the knee. Gicla filed this
suit for malpractice against the United States and various
2 No. 08-1648
VA medical personnel pursuant to the Federal Tort
Claims Act, 28 U.S.C. § 2671, et seq. The individual defen-
dants were dismissed from the suit, and the case was
tried to the bench. The magistrate judge, presiding with
the parties’ consent, entered judgment in favor of the
United States, finding that the VA medical personnel
who treated Gicla did not breach the duty of care that
they owed to him. Gicla appeals. He primarily challenges
the district court’s refusal to exclude the testimony of
a defense expert for a purported violation of Federal
Rule of Civil Procedure 26, after the expert disclosed on
cross-examination that just before taking the witness
stand he looked at x-rays that he had not previously
reviewed in rendering his opinion on behalf of the
United States. Gicla also contends that the district court
erred in crediting the United States’ witnesses over his
own. Finding no error, we affirm the judgment.
In 1999, Gicla consulted with Dr. John Grady, director
of the podiatry service at the Westside VA Medical
Center in Chicago. Gicla had severe arthritis in his
right ankle stemming from a fracture he suffered in a
motorcycle accident some twenty years earlier, while he
was serving in the U.S. Navy. The arthritis caused him
to experience extreme pain and swelling. After non-
surgical efforts at relieving his symptoms proved unsuc-
cessful, and after discussing his options with Dr. Grady,
Gicla agreed to have his ankle joint replaced using the
DePuy Agility® Total Ankle System, an implant which
had only recently been approved by the U.S. Food and
Drug Administration. Gicla was 40 years old at that time.
No. 08-1648 3
The surgery, performed in April 1999, was the first
occasion on which VA physicians had used the DePuy
Agility® implant. Dr. Grady performed the surgery
with the assistance of resident Dr. Jonathan Norton.
During the procedure, they removed a screw that had
been used to repair the facture Gicla had suffered years
before. The head of the screw broke off as the surgeons
tried to remove it. Because they lacked an appropriately-
sized trephine to hollow out the bone around the
screw and facilitate the screw’s removal, they were
forced to use an osteotome and mallet, which may have
resulted in the removal of more bone surrounding the
screw than a trephine would have. Also during the sur-
gery, either when the implant was inserted or when the
ankle was flexed following the implantation, the lower
portion of Gicla’s fibula (calf bone), also known as the
lateral malleolus, cracked. Such fractures are a known
risk of implant surgery. The surgery was otherwise un-
eventful.
The implant did not improve Gicla’s discomfort, how-
ever, and a series of follow-up surgical procedures en-
sued. In July 1999, Drs. Grady and Norton removed a bony
regrowth from his right ankle and lengthened his Achilles
tendon to increase the range of motion in his foot. In
August 2000, Dr. Grady removed the implant and the ankle
joint was fused. One year after that, much of the remaining
hardware in the ankle was removed. The following year,
yet another surgery was performed in an effort to salvage
the fusion. Still, Gicla continued to experience pain and
difficulty using his right leg. Ultimately, in October 2003,
Gicla had his right leg amputated eight to ten inches below
4 No. 08-1648
the knee. The final three surgeries were performed in
Milwaukee, where the Giclas had relocated.
Gicla filed this suit in October 2003 complaining of
medical malpractice. Gicla alleged that he was too young
for the implant procedure performed in 1999 (given the
expected life of the implant) and that he was not
properly advised of the risks attendant to an ankle re-
placement. He also alleged that Drs. Grady and Norton
made certain mistakes in performing the initial surgery
in April 1999 and the follow-up surgery in July which
contributed to the failure of the implant to resolve his
discomfort, including using the wrong-sized implant,
removing too much bone in extracting the broken screw,
failing to use bone wax to prevent bone growth in un-
wanted areas (e.g., the area around the removed screw),
fracturing his fibula, failing to stabilize the implant,
failing to use a bone stimulator to hasten bone regrowth
in desired areas, and damaging or displacing his
deltoid ligament during the follow-up surgery.
At trial, Dr. George Vito testified as an expert witness
on the government’s behalf. Federal Rule of Civil Proce-
dure 26(a)(2)(B) requires the party who proffers an expert
to make certain pre-trial disclosures, including, among
other things, (i) a statement of the opinions the expert
will express, along with the bases and reasons for those
opinions, (ii) any data or other information considered
by the expert in forming his opinions, and (iii) any
exhibits that will be used to summarize or support those
opinions. If the initial disclosure is incomplete, or if there
is a subsequent addition to or change in the information
No. 08-1648 5
disclosed, the expert’s proponent has an obligation to
supplement its disclosure pursuant to Rules 26(a)(2)(D)
and 26(e). Rule 37(c)(1) in turn calls for the exclusion of an
expert’s testimony if the requisite disclosures have not
been made, “unless the failure was substantially
justified or is harmless.” Consistent with Rule 26(a)(2)(B),
the government in advance of trial disclosed Dr. Vito’s
opinions, the rationale for those opinions, and the infor-
mation he considered in forming them. One source of
information that Dr. Vito did not consult in forming his
opinions was a series of twenty to thirty x-rays of Gicla’s
ankle that were taken at various times before and after
his implant surgery in April 1999. Rather than reviewing
the x-rays himself, Dr. Vito relied on the radiological
findings as to what those x-rays revealed. This was
known to Gicla’s counsel, presumably as a result of both
the government’s Rule 26 disclosures and follow-up
discovery as to Dr. Vito’s opinions. Gicla’s counsel
planned to drive home this point in cross-examining
Dr. Vito at trial and to suggest to the court that his opin-
ions should be given less weight than Gicla’s own
expert, who had examined the x-rays. But when the
time came to cross-examine Dr. Vito, Gicla’s counsel
was surprised to learn from Dr. Vito that he had reviewed
the x-rays earlier that day, before he took the witness
stand. Tr. 391. Dr. Vito confirmed that he had not looked
at the x-rays in forming his opinions prior to trial; his
first and only review of the x-rays had taken place
earlier that day. Tr. 391-92. Dr. Vito also testified that the
x-rays had not altered his views. “My opinion has not
changed.” Tr. 391. When asked if they had confirmed or
6 No. 08-1648
aided his analysis, Dr. Vito said that “if anything, they
helped me expand upon my testimony right now . . . .” Tr.
392. But Dr. Vito never explained how the x-rays helped
him to elaborate on his opinions, as Gicla’s counsel
elected not to question him further on that subject.
Instead, he moved to strike Dr. Vito’s testimony altogether.
Gicla’s counsel took the position that it was a violation
of the government’s obligations under Rule 26 for Dr. Vito
to testify as an expert when his opinions were now in-
formed by his review of the x-rays, and when his
belated review of those x-rays had not been disclosed to
Gicla in accordance with the rule. Gicla was prejudiced
by the violation, his attorney argued, because counsel
had planned Dr. Vito’s cross-examination believing that
Dr. Vito had rendered his opinions without reviewing
the x-rays. Dr. Vito’s unexpected disclosure that he had
taken a look at the x-rays and that they did not change
his opinion blocked the line of attack that Gicla’s counsel
had intended to pursue and left him unprepared
to question Dr. Vito about what he saw or didn’t see in
the x-rays. Counsel added that he was unable to
consult with Gicla’s expert (who was not present at
the trial) in order to prepare appropriate questions for
Dr. Vito now that Dr. Vito had seen the x-rays.
The district court declined to strike Dr. Vito’s testimony.
The court was critical of the government for having
shown Dr. Vito the x-rays on the morning of his testimony.
Tr. 397-99. The government obviously had done this to
neutralize the anticipated cross-examination of Dr. Vito,
Tr. 398, and in the court’s view, the government should
No. 08-1648 7
have shown Dr. Vito the x-rays at an earlier date and
disclosed this to the plaintiff, so that Gicla would have
had an opportunity to question Dr. Vito before trial as to
what the x-rays revealed, Tr. 398-99. But the court saw
any violation of Rule 26(a)(2) as harmless. Tr. 396. In
response to questions posed by Gicla’s counsel, Dr. Vito
had admitted that he formed his opinions without re-
viewing the x-rays; moreover, looking at the x-rays
had not changed Dr. Vito’s opinions. Tr. 395, 399. Gicla’s
counsel, in turn, agreed that Dr. Vito’s testimony on
direct examination did not deviate from the opinions
disclosed prior to trial in accordance with Rule 26(a)(2).
Tr. 399. The court offered Gicla’s attorney a recess so that
Gicla could determine what particular x-rays Dr. Vito
had reviewed and consider what questions he might like
to ask Dr. Vito about them before resuming his cross-
examination. Tr. 394, 399-400. The court added that “if
you have something else that you want, I’m willing to
listen to you.” Tr. 396. However, counsel declined the
offer, Tr. 400, and instead elected to complete Dr. Vito’s
cross-examination without delving into the x-rays.
On appeal, Gicla renews his contention that Dr. Vito’s
belated review of the x-rays, without warning to the
plaintiff, was a violation of Rule 26(a)(2) that was prej-
udicial to his case. He contends that the only proper
way to address this violation was to strike Dr. Vito’s
testimony pursuant to Rule 37(c)(1). In Gicla’s view, the
exclusion of Dr. Vito’s testimony would have so altered
the balance of the evidence as to entitle him to judgment.
We review the district court’s decision not to exclude
Dr. Vito’s testimony for abuse of discretion. See, e.g., Jenkins
8 No. 08-1648
v. Bartlett, 487 F.3d 482, 488 (7th Cir. 2007); Salgado ex rel.
Salgado v. Gen. Motors Corp., 150 F.3d 735, 739, 742 (7th Cir.
1998). We find no abuse of discretion in the manner
in which the district court handled this issue.
We may assume without deciding that Dr. Vito’s
eleventh-hour review of the x-rays amounted to a violation
of Rule 26 regardless of whether his opinions changed as a
result of that review. By requiring the pre-trial disclosure
of any expert testimony that a party intends to offer, along
with the bases for the expert’s opinions, Rule 26 is de-
signed to avoid surprise and give the opposing party a full
opportunity to evaluate the expert’s methodology and
conclusions and to respond appropriately. See Rule 26(a)(2)
advisory committee’s note, 1993 amendments. Dr. Vito
formed his opinions as to the care provided to Gicla
without reviewing the x-rays; he instead relied on the
radiological reports. This gave Gicla an opening to attack
the validity of Dr. Vito’s opinions at trial that Gicla’s
counsel fully intended to exploit. At no time in advance
of trial, and certainly not within the time set by the
court for Rule 26 disclosures, did the United States
disclose an intent to have Dr. Vito review the x-rays
before he took the witness stand. Dr. Vito’s unannounced
review of the x-rays foreclosed to Gicla the line of attack
his counsel had anticipated pursuing and, more perti-
nently, given the purposes of Rule 26, deprived him of
forewarning as to the impact of the x-rays on Dr. Vito’s
thinking, the opportunity to question Dr. Vito on that point
during discovery, and the ability to adjust his cross-
examination at trial accordingly.
No. 08-1648 9
Still, as the district court noted, there is no evidence
that Gicla was unduly prejudiced by the surprise. Al-
though Dr. Vito did suggest that seeing the x-rays enabled
him to “expand upon [his] testimony,” Tr. 392, the court
found, and Gicla’s counsel conceded, that Dr. Vito’s
testimony on direct examination differed in no respect
from the opinions disclosed prior to trial. Tr. 399. After
his motion to strike that testimony was denied,
Gicla’s counsel opted not to cross-examine Dr. Vito about
the x-rays and Dr. Vito made no other reference in his
testimony to them. At most, it appears that Dr. Vito’s
review of the x-rays simply confirmed what he had
already concluded. Tr. 391-92.
It is true that Gicla was deprived of his anticipated
challenge to Dr. Vito’s opinions, but that is not what
Rule 26 was designed to protect. Trials serve a truth-
seeking function, and if Dr. Vito’s opinions were not
altered by his review of the x-rays, then the factfinder
was entitled to know that. The real harm was that Gicla
and his counsel were deprived of the opportunity to
know in advance of the trial that Dr. Vito’s opinion
was unchanged, and to prepare to cross-examine him on
that point.
This is why it matters that the district court offered
Gicla’s counsel the opportunity to take a break in order
to determine what x-rays Dr. Vito had reviewed and to
ascertain whether he wished to cross-examine Dr. Vito
on those x-rays. Gicla could have used that opportunity
to determine what questions he might wish to ask of
Dr. Vito knowing that Dr. Vito had now seen the x-rays.
10 No. 08-1648
We have recognized the propriety of such measures to
correct Rule 26 violations. See Fidelity Nat’l Title Ins. Co. of
N.Y. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 752
(7th Cir. 2005). Gicla contends that this was an empty
offer because his own expert was not present at the
trial (the deposition of Gicla’s expert was instead ad-
mitted into evidence by agreement) and was not immedi-
ately available for consultation, so there was no point in
such a break. Yet, so far as the record reveals, Gicla’s
counsel never made an attempt to reach his expert. Even
if his expert was unavailable at that moment, Gicla
has not shown that his cross-examination of Dr. Vito
would have been materially different had he not been
caught by surprise by the belated disclosure that Dr. Vito
had reviewed the x-rays. As we pointed out at oral argu-
ment, nothing would have prevented Gicla’s lawyer
from consulting with the expert at a later date and
making a proffer of what he would have done differently
had he received timely notification of the x-ray review.
Nor was Gicla precluded from highlighting for the
court the noteworthy information that his own
expert had gleaned from the x-rays that Dr. Vito
had (apparently) overlooked or discounted.1 It is worth
1
Having previously questioned Gicla’s expert, Dr. David
Plotkin (whose deposition was later admitted into evidence
in lieu of his testimony at trial), Gicla’s attorney was well
aware of what Dr. Plotkin saw in the x-rays that he believed
was indicative of negligence on the part of the VA physicians.
See, e.g., R. 85 at 35 (noting significant space around removed
(continued...)
No. 08-1648 11
pointing out that this was a bench trial, and there was
an interim of nearly a week between the conclusion of
the trial and the issuance of the magistrate judge’s deci-
sion. Even after the decision was rendered, there was
additional time in which to file an appropriate post-trial
motion. So granting that it may have been difficult
for Gicla’s lawyer to make a more concrete showing of
prejudice in the midst of trial, time remained afterward
in which to make such a showing. Had Gicla taken the
opportunity to demonstrate how he might have more
effectively cross-examined Dr. Vito with timely notice
that Dr. Vito had reviewed the x-rays, the court might
have reconsidered its ruling, given Gicla the opportunity
to re-call Dr. Vito to the stand or reopen the evidence
for some other purpose, or granted Gicla a new trial.
1
(...continued)
screw), 38-39 (noting void and trauma resulting from removal
of screw, which, in Dr. Plotkin’s view, led to bone spurs
that required second operation, which in turn resulted in
destabilization of ankle), 56 (noting “huge” space between
tibia and fibula, which suggested that smaller implant should
have been used), 57-58 (noting deviation and lack of stability
owing, in Dr. Plotkin’s view, to surgeon’s failure to properly
position, support, and protect lateral malleolus), 64 (noting
that more of fibula was removed than recommended by
implant manufacturer). We add that Dr. Grady too was ques-
tioned about certain of the x-rays by both the government and
Gicla. See, e.g., Tr. 172-175, 189-194, 200-03. So Gicla’s counsel
had some familiarity with the x-rays that would have helped
him to make a showing of prejudice resulting from Dr. Vito’s
surprise disclosure.
12 No. 08-1648
But Gicla did not attempt to make a more convincing
showing of prejudice. On this record, we cannot discern
any concrete harm that Gicla suffered as a result of the
unexpected disclosure.
The fact that this was a bench trial also served to mini-
mize any prejudice to Gicla. The Magistrate Judge
was aware of what had occurred, understood perfectly
well that Dr. Vito had formed his opinions without
looking at the x-rays, and also appreciated the fact that
Gicla’s counsel was put at a disadvantage at trial by
the surprise disclosure.
One last point on this subject: Gicla presumes that had
Dr. Vito’s testimony been excluded, the deposition testi-
mony of his own expert, Dr. David Plotkin, would have
stood unchallenged, compelling the district court to find
in his favor. For that reason, he contends that the error
in allowing Dr. Vito’s testimony entitles him to
reversal with directions to enter judgment in his favor,
or alternatively to a new trial.
But his presumption is flawed for multiple reasons. First,
even if Dr. Plotkin’s testimony had not been expressly
contradicted by way of the government’s expert, in no
sense would the district court have been compelled to
credit his opinions and render judgment for Gicla. The
court could have found fault with Dr. Plotkin’s analysis,
for example. Moreover, Dr. Plotkin’s opinion would not
have been the sole opinion concerning the adequacy of
Gicla’s medical care even in the absence of Dr. Vito’s
testimony. The VA doctors who performed the implant
surgery on Gicla also testified, and of course as his
No. 08-1648 13
treating physicians, they were qualified to offer opinions
as to the propriety of the treatment he received. Like
Dr. Vito, Dr. Grady was led through most if not all of
the opinions that Dr. Plotkin had expressed (although
Dr. Plotkin was not cited as the source of those opinions),
and like Dr. Vito, Dr. Grady disagreed with them. Indeed,
the district court’s decision in favor of the government
reflects that it did credit and rely upon the treating physi-
cians’ testimony in significant respects.
Which brings us to the final issue that Gicla raises: He
argues that the district court erred in crediting the testi-
monies of Dr. Vito and the treating physicians over that
of Dr. Plotkin and that the court’s judgment in favor of
the government was against the manifest weight of the
evidence. As the basis for that argument, he relies on a
variety of inconsistencies among the testimonies of the
government’s witnesses. For example, Dr. Vito thought
that arthroscopy might have been an option for Gicla in
the first instance, Tr. 389-90, but the testimonies of
Drs. Grady and Norton reflected no discussion of
arthroscopy with Gicla. Tr. 44, 51, 269-70, 297. In other
instances, the physicians were in agreement on certain
points as to the limitations or risks of the implantation
procedure, but gave testimony that raised questions
about whether their decisions were in accord with those
known limitations and risks. For example, Dr. Grady
testified that if a patient’s ankle joint had deteriorated
beyond a certain point, then an implant was not a viable
option. Tr. 168-69. And when asked about what Gicla’s pre-
surgery x-rays showed about the condition of his ankle,
Dr. Norton stated that “[h]e didn’t have much of an
14 No. 08-1648
ankle joint left”: the joint had no remaining cartilage and
reflected deformity due to arthritis. Tr. 264, 265-66. Both
doctors also indicated that Gicla’s history of smoking
and drug and alcohol abuse could interfere with his
ability to successfully heal from the implant surgery. Tr. 33,
306, 309-10, 344-45. Yet, Dr. Grady was not certain how
much they knew about this history before performing
the implant, Tr. 33-34, and although Dr. Norton was
aware of Gicla’s history of smoking, he was unaware of
his history of substance abuse, Tr. 306-08, 336.
As Gicla’s argument recognizes, the ultimate decision
in this case as to whether or not the VA physicians com-
mitted malpractice turned largely on the credibility of
the witnesses. There were disputes between Mr. and
Mrs. Gicla on the one hand and Gicla’s treating physicians
on the other as to some of the underlying facts—in particu-
lar, as to the options the physicians had discussed
with Gicla prior to his implant surgery and the warnings
they gave him about the risks associated with that sur-
gery. Those types of disputes presented straight-
forward credibility questions for the magistrate judge
to resolve as the finder of fact. But there were also
disputes of opinion among the parties’ expert witnesses
and the treating physicians. Although those professionals
were commenting largely on the same body of evidence
relating to Gicla’s course of treatment, they came to
directly contradictory conclusions as to what that
evidence revealed about the propriety of the care Gicla
received. Thus, when Dr. Vito testified on behalf of the
government, he was walked through each of Dr. Plotkin’s
opinions as to the mistakes he believed Gicla’s VA physi-
No. 08-1648 15
cians had made, and Dr. Vito rejected each of those opin-
ions. So the case also presented a classic battle of the
experts. And in that respect as well, the case called
upon the factfinder to determine what weight and cred-
ibility to give the testimony of each expert and physician.
See United States v. Olofson, 563 F.3d 652, 659 n.6 (7th Cir.
2009); Soria v. Ozinga Bros., Inc., 704 F.2d 990, 994 n.6
(7th Cir. 1983); see also Kinetic Concepts, Inc. v. Blue Sky
Medical Group, Inc., 554 F.3d 1010, 1020 (Fed. Cir. 2009);
Crowe v. Marchand, 506 F.3d 13, 19 (1st Cir. 2007); United
States v. Uzenski, 434 F.3d 690, 703 n.6 (4th Cir. 2006);
Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005); LePage’s
Inc. v. 3M, 324 F.3d 141, 165-66 (3d Cir. 2003) (en banc);
Streber v. Hunter, 221 F.3d 701, 726 (5th Cir. 2000). The
credibility determinations that a judge renders as the
finder of fact command a high degree of deference. E.g.,
United States v. Longstreet, ___ F.3d. ___, 2009 WL 1577692,
at *10 (7th Cir. June 8, 2009). We will normally have
no reason to disturb a court’s evaluation of witness credi-
bility unless the court has credited patently improbable
testimony or its credibility assessments conflict with its
other factual findings. E.g., Kidd v. Ill. State Police, 167
F.3d 1084, 1095 (7th Cir. 1999) (citing Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 575, 105 S. Ct. 1504,
1512 (1985)).
No such error occurred here. Although there were, as
Gicla emphasizes, certain inconsistencies and vulner-
abilities in the testimonies of the government’s wit-
nesses, nothing precluded the district court from
crediting their opinions as to the propriety of the care
that Gicla received. The testimonies of Drs. Vito, Grady,
16 No. 08-1648
and Norton were consistent with one another in
important respects. Dr. Vito had significant experience
with the type of implant surgery that Drs. Grady and
Norton performed on Gicla, and of course as Gicla’s
treating physician the latter two were intimately familiar
with his condition and the surgery they performed. Dr.
Plotkin, by contrast, had no experience with the type of
implant used on Gicla and in fact did not do implant
surgeries, and he had never examined Gicla. The district
court reviewed at length the testimonies of all four physi-
cians and articulated cogent reasons for rejecting
Dr. Plotkin’s opinions and crediting the views of the
government’s witnesses. The court was aware of and
addressed many of the points that Gicla has cited. It did
not credit the government’s witnesses across the board,
although it ultimately did agree with them that Gicla’s
physicians did not provide him with substandard care.
The court’s factual findings, including its credibility
assessments, are well supported by the record.
For all of these reasons, we reject Gicla’s assignments
of error and A FFIRM the judgment in the government’s
favor.
7-15-09