Alexander, Irma v. Mount Sinai Hosp Med , 484 F.3d 889 ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1823
IRMA ALEXANDER, Special
Administrator of the Estate of
CHRISTEN CRUTCHER, deceased,
Plaintiff-Appellant,
v.
MOUNT SINAI HOSPITAL MEDICAL
CENTER, SINAI HEALTH SYSTEM,
d/b/a MOUNT SINAI HOSPITAL
MEDICAL CENTER OF CHICAGO,
SINAI MEDICAL GROUP, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2907—Charles P. Kocoras, Judge.
____________
ARGUED MARCH 31, 2006—DECIDED APRIL 24, 2007
____________
Before ROVNER, EVANS and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Irma Alexander (“Alexander”) is
the daughter of Christen Crutcher, a woman who died
while receiving medical treatment at Mount Sinai Hospi-
tal. As administrator of her mother’s estate, Alexander
brought a malpractice action in the Circuit Court of Cook
County against the corporate entities and individual
physicians involved in her mother’s care. The United
2 No. 05-1823
States removed this malpractice case to federal court
because one of the defendants, Dr. Godwin Onyema (“Dr.
Onyema”), was deemed to be a federal employee under the
Public Health Service Act (“PHSA”), as amended by the
Federally Supported Health Centers Assistance Act of
1995 (“FSHCAA”), 42 U.S.C. § 233. A trial resulted in
judgment in favor of all of the defendants. On appeal,
Alexander challenges subject matter jurisdiction, arguing
that Dr. Onyema could not be deemed a federal employee
because he did not personally contract with a federally
funded health center. Alexander also challenges the
district court’s directed verdict in favor of one of the
defendants as well as several rulings the district court
made in the course of the trial. We affirm.
I.
We begin with the question of subject matter jurisdic-
tion, which we review de novo. Samirah v. O’Connell, 335
F.3d 545, 548 (7th Cir. 2003). We also review de novo a
district court’s decisions regarding the propriety of re-
moval. Oshana v. Coca-Cola Co., 472 F.3d 506, 510 (7th
Cir. 2006). The Federal Employees Liability Reform and
Tort Compensation Act of 1988, commonly known as the
Westfall Act, accords federal employees absolute im-
munity from common-law tort claims arising out of acts
they undertake in the course of their official duties. See 28
U.S.C. § 2679(b)(1); Osborn v. Haley, 127 S. Ct. 881, 887
(2007). When a federal employee is sued, the Westfall Act
empowers the Attorney General to certify, if appropriate,
that the employee was acting within the scope of his or her
employment at the time of the incident in question. 28
U.S.C. § 2679(d)(1), (2). If the Attorney General issues
such a certification, the employee is dismissed from the
action and the United States is substituted as the defen-
dant in place of the employee. 28 U.S.C. § 2679(d)(1).
No. 05-1823 3
Thereafter, the lawsuit is governed by the Federal Tort
Claims Act (“FTCA”). 28 U.S.C. § 2671 et seq. If the action
was filed in state court, the case must be removed to
federal court. 28 U.S.C. § 2679(d)(2). The “certification of
the Attorney General shall conclusively establish scope of
office or employment for purposes of removal.” Id.Although Dr. Onyema was not a federal employee, he
was working at Sinai Family Health Centers (“Sinai”), a
federally supported health care center, at the time of the
incident at issue here. Dr. Onyema had formed an “Illinois
Medical Service Corporation” called Onyema Medical
Service, Ltd.1 He was the sole shareholder and sole
employee of this entity. Onyema Medical Service entered
into an agreement with Sinai under which Dr. Onyema
was to supply medical services to Sinai’s various commu-
nity health centers. Dr. Onyema signed the contract in his
own name on a line labeled “Onyema Medical Service,
Ltd.” The FSHCAA, like the Westfall Act, allows the
government to remove from state court a medical malprac-
tice action filed against a physician who is “deemed” to be
a federal employee. See 42 U.S.C. § 233. A physician who
is employed by or is a contractor for a federally funded
health center may be deemed by the government to be an
employee of the Public Health Service2 if a number of
conditions are met. See 42 U.S.C. § 233(h). Once a physi-
1
In Illinois, a physician may incorporate his or her practice
under the Medical Corporation Act. 805 ILCS 15/1, et seq. The
“Act does not alter any law applicable to the relationship be-
tween a physician furnishing medical service and a person
receiving such service, including liability arising out of such
service.” 805 ILCS 15/14.
2
The Public Health Service generally consists of the Office of
the Surgeon General, the National Institutes of Health, the
Bureau of Medical Services, the Bureau of State Services and
the Agency for Healthcare Research and Quality. See 42 U.S.C.
§ 203.
4 No. 05-1823
cian has been deemed to be a federal employee acting
within the scope of his or her employment duties, the
United States is substituted as the defendant and the
FTCA provides the exclusive remedy for the physician’s
negligence. See 42 U.S.C. § 233(c), (g). Moreover, once the
Secretary3 deems a physician to be an employee of the
Public Health Service, “the determination shall be final
and binding upon the Secretary and the Attorney General
and other parties to any civil action or proceeding.” 42
U.S.C. § 233(g)(1)(F).
Alexander brought this malpractice action in the Cir-
cuit Court of Cook County. Pursuant to 28 U.S.C.
§ 2679(d)(2) and 42 U.S.C. § 233(c), the United States
removed the action to federal court after it determined
that Dr. Onyema was a contract employee working in the
scope of his employment with a federally-funded health
center.4 See also 42 U.S.C. § 233(g)-(n). Specifically, the
Attorney General’s delegate certified that Sinai Family
Health Center was a private entity receiving grant money
from the Public Health Service pursuant to 42 U.S.C.
§ 233. R. 1. The delegate also certified that Sinai Family
Health Center’s “contract employee, GODWIN ONYEMA,
M.D., was acting within the scope of his employment at
the time of the incidents and is deemed to be an em-
ployee of the United States for Federal Tort Claims Act
purposes only pursuant to 42 U.S.C. § 233.” R. 1. The
United States thus removed the case to federal court and
moved to substitute itself for Dr. Onyema as the defen-
dant. See 28 U.S.C. § 2679(d)(2); 42 U.S.C. § 233(c), (g)-(n).
3
All references to the “Secretary” are to the Secretary of Health
and Human Services. See 42 U.S.C. § 201(c). All references to
the “Attorney General” are to the United States Attorney Gen-
eral or his designee.
4
No one disputes that Sinai was a qualifying federally funded
health center at the time of these events.
No. 05-1823 5
Thereafter, the United States moved to dismiss the case
because the plaintiff had failed to exhaust her admin-
istrative remedies as required by the FTCA. 28 U.S.C.
§ 2675(a). The district court granted the motion. Alexander
moved to reconsider, arguing that the government had
incorrectly deemed Dr. Onyema to be a federal employee
because Onyema Medical Service rather than Dr. Onyema
individually contracted with Sinai. According to Alexander,
the government could not treat Dr. Onyema and Onyema
Medical Service as identical without making a case for
piercing the corporate veil under Illinois law. The govern-
ment responded that federal tort law rather than Illinois
corporate law controlled the result and that the govern-
ment was entitled to deem Dr. Onyema, the sole employee
and sole shareholder of Onyema Medical Service, a fed-
eral employee. Citing Dedrick v. Youngblood, 200 F.3d 744(11th Cir. 2000), the district court allowed Alexander to
take discovery on the issue of whether Dr. Onyema could
be deemed a federal employee in light of the contract
with Onyema Medical Service. Following discovery, the
district court found that Onyema Medical Service “essen-
tially acted as Dr. Onyema’s alter ego with respect to his
professional services relationship with Sinai.” Alexander v.
Mount Sinai Hosp. Med. Ctr. of Chicago, 165 F.Supp.2d
768, 772 (N.D. Ill. 2001). The court found that the issue of
whether a physician is a federal employee under the FTCA
is determined by federal, not state, law. Refusing to
elevate form over substance in characterizing the relation-
ship between Dr. Onyema and Sinai, the district court
concluded that Dr. Onyema was effectively an employee
of a public health center and thus a deemed employee of
the federal government. The court therefore dismissed Dr.
Onyema from the action and substituted the United States
as the defendant.
After Alexander exhausted her administrative remedies,
she returned to the district court to pursue her remedies
6 No. 05-1823
under the FTCA. Shortly thereafter, she learned that
in another case filed against Dr. Onyema by another
party, the government admitted that its decision to deem
Dr. Onyema a federal employee in Alexander’s case had
been mistaken. See Buckley v. Mount Sinai Hosp. Med.
Ctr., 2002 WL 554524 (N.D. Ill. April 12, 2002). Specifi-
cally, the government admitted in the Buckley case that
because Dr. Onyema had not contracted directly with
Sinai, he was not entitled to coverage under the FSHCAA.
The court in Buckley remanded the action to the state
court on the basis of the government’s representation that
Dr. Onyema was not a federal employee. Citing Buckley,
Alexander moved for reconsideration of the court’s
earlier decision dismissing Dr. Onyema and substituting
the United States as a defendant. The government op-
posed the motion, taking the position that, although it
made a mistake in Alexander’s case, all of the parties
were bound by the government’s original certification and
deeming decision under section 233(g)(1)(F). That section
provides:
Once the Secretary makes a determination that an
entity or an officer, governing board member, em-
ployee, or contractor of an entity is deemed to be an
employee of the Public Health Service for purposes of
this section, the determination shall be final and
binding upon the Secretary and the Attorney General
and other parties to any civil action or proceeding.
Except as provided in subsection (i) of this section, the
Secretary and the Attorney General may not determine
that the provision of services which are the subject of
such a determination are not covered under this
section.
42 U.S.C. § 233(g)(1)(F). The court denied the motion for
reconsideration, agreeing that section 233(g)(1)(F) bound
the parties to the government’s initial determination that
Dr. Onyema was a deemed federal employee. The court
No. 05-1823 7
also noted that under section 233(g), review of the govern-
ment’s decision to deem Dr. Onyema a federal employee
was extremely limited. Finally, the court noted that it
had rested its decision not only on the representations of
the government but also on its independent conclusion
that Dr. Onyema himself (and not the professional corpora-
tion for which he signed) was the contracting party.
Since that time, yet another malpractice action filed
against Dr. Onyema made its way to federal court in the
Northern District of Illinois. See ISMIE Mut. Life Ins. Co.
v. U.S. Dept. of Health and Human Servs., 413 F.Supp.2d
954 (N.D. Ill. 2006). In that case, after the Secretary
refused to deem Dr. Onyema a federal employee, the
doctor’s malpractice insurer sued the U.S. Department of
Health and Human Services (“HHS”) seeking to overturn
that decision. The district court in the ISMIE case framed
the issue as whether Dr. Onyema is excluded from cover-
age under the FTCA and the FSHCAA because he con-
tracted with a federally-funded clinic through his epony-
mous professional corporation rather than as an individ-
ual. 413 F.Supp.2d at 955. The ISMIE action grew out of
a malpractice case filed in state court against Dr. Onyema
and the clinic where the plaintiff was treated. The govern-
ment determined that the clinic was an entity covered
under FSHCAA but that Dr. Onyema was not. The govern-
ment removed the case to federal court based on the
clinic’s status as a covered entity. As in Alexander’s case,
the government then moved to dismiss the case against
the clinic for failure to exhaust administrative remedies.
The district court obliged and returned the remaining
claims to state court. As the malpractice case proceeded
in state court with Dr. Onyema’s malpractice insurer
providing his defense, the insurer sought a declaration
in federal court that Dr. Onyema is a covered contractor
under FSHCAA and that HHS was responsible for Dr.
Onyema’s defense. ISMIE, 413 F.Supp.2d at 957-58.
8 No. 05-1823
The district court ruled that HHS was judicially
estopped from asserting that Dr. Onyema was not covered
under FSHCAA because the government had deemed Dr.
Onyema to be a federal employee in Alexander’s case.
ISMIE, 413 F.Supp.2d at 959. In the alternative, the
district court found that HHS’s decision not to deem Dr.
Onyema a federal employee was contrary to the law.
Finding the reasoning of the district court in Alexander’s
case to be persuasive, the court rejected the elevation of
form over substance and found that Dr. Onyema was no
less a contractor simply because he signed the contract
through his professional corporation. The court thus
ruled that Dr. Onyema should be deemed a federal em-
ployee. ISMIE, 413 F.Supp.2d at 961.
This strange history of Dr. Onyema’s three odysseys
through the Northern District of Illinois brings us to the
instant appeal where Alexander argues that the district
court lacked subject matter jurisdiction over the case.
Specifically, Alexander contends that Dr. Onyema could
not be deemed a federal employee as a contractor of a
publicly funded health center because he had no direct
contract with the health center. Alexander asks us to
reverse and remand with directions to dismiss the case for
lack of jurisdiction so that the district court may return
the matter to the state court where it originated. The
government counters that even if the original deeming
determination was in error, all of the parties are statuto-
rily bound by the government’s decision. Moreover, the
government contends, the deeming decision in combina-
tion with the certification that Dr. Onyema was acting
within the scope of his employment at the time of the
relevant incident gives rise to federal jurisdiction. The
government contends that a positive deeming decision
by HHS is essentially unreviewable under section
233(g)(1)(F), but concedes that the Attorney General’s
scope of employment certification is judicially reviewable.
No. 05-1823 9
Of course, Alexander challenges only the deeming deci-
sion and not the scope of employment certification and that
must be the focus of our analysis.
Section 233(g)(1)(F) provides, as we noted above, that
once the Secretary deems an employee or contractor to
be an employee of the Public Health Service, that determi-
nation “shall be final and binding upon the Secretary and
the Attorney General and other parties to any civil action
or proceeding.” Alexander seems to concede that the
Secretary’s decision to deem a contractor to be an employee
of the PHS is final, binding, and not subject to review but
argues that 233(g)(1)(F) references only the deeming
decision and not the determination of whether one is a
contractor in the first place. Determining who is a “contrac-
tor,” Alexander argues, is a reviewable decision, and the
government here conceded that it erred when it character-
ized Dr. Onyema as a contractor.
Alexander cites three appellate court cases in support of
her claim that a party must be a direct contractor with a
publicly funded health center in order to qualify for
deemed employee status. See Dedrick v. Youngblood, 200
F.3d 744 (11th Cir. 2000); Allen v. Christenberry, 327 F.3d
1290 (11th Cir. 2003); El Rio Santa Cruz Neighborhood
Heath Ctr. v. U.S. Dep’t of Health and Human Servs., 396
F.3d 1265 (D.C. Cir. 2005). In each of these cases, however,
the government refused to deem the doctor involved to be
a federal employee. Nothing in section 233 or in 28 U.S.C.
§ 2679 (which the government also invoked when remov-
ing the case to federal court) prohibits review of the
government’s refusal to deem a contractor to be an em-
ployee of the PHS. None of these cases addresses whether
the government’s positive determination that a person
(natural or corporate) is a contractor is reviewable. Neither
party to this litigation points us to any case where a court
has addressed this very fine distinction that Alexander
10 No. 05-1823
seeks to draw. We have been unable to find a case directly
on point.
That said, the distinction that Alexander seeks to draw
between deciding who is a contractor and which contrac-
tors may be deemed federal employees is a false one.
Before deciding whether to deem a contractor of a federally
funded health center to be an employee of the public health
service, the government must necessarily first decide
whether the party at issue is a contractor with a qualifying
entity. No one disputes that Sinai was a qualifying entity.
The government’s threshold determination that Dr.
Onyema was a contractor of Sinai (even though the
contract was through his eponymous professional corpora-
tion) is necessarily part of the deeming decision and is
entitled to the same treatment as the deeming decision
itself. The final and binding nature of the government’s
determination would be meaningless if the losing party
could challenge the government’s interpretation of each
word in section 233(g)(1)(F). We note that the final and
binding nature of the government’s determination binds
not just the plaintiff and the doctor but also binds the
government. In this case, if the jury had found in favor
of Alexander, the government would have been liable for
the judgment even though the government later deter-
mined that Dr. Onyema was not entitled to the govern-
ment’s protection.
A recent Supreme Court decision lends further support
to our conclusion that the district court possessed subject
matter jurisdiction over the case even though the United
States was admittedly mistaken in its certification. See
Osborn v. Haley, 127 S. Ct. 881 (2007). Osborn, the
plaintiff, worked for Land Between the Lakes Association
(“LBLA”), a private company that contracted with the
United States Forest Service. She applied for a trainee
position with the Forest Service. Haley was in charge of
hiring decisions and he hired someone else for the position.
No. 05-1823 11
Osborn ridiculed Haley at the meeting where his hiring
decision was announced and she then refused her supervi-
sor’s directive to apologize to Haley. Osborn subsequently
filed a complaint with the United States Department of
Labor, asking that the hiring decision be investigated. The
investigation resulted in a finding that hiring procedures
had been properly followed. Osborn’s supervisors again
asked her to apologize to Haley and when she again
refused, she was fired. She sued Haley in state court for
tortiously interfering with her employment relationship
with LBLA, charging that Haley induced LBLA to fire her.
The Attorney General certified that Haley was acting
within the scope of his employment at the time of the
incident out of which Osborn’s claim arose, and removed
the case to federal court. The government asked that the
United States be substituted for Haley as the defendant
and that the action be dismissed for failure to exhaust
administrative remedies. Osborn opposed the substitu-
tion of the United States as the defendant, arguing that
Haley’s conduct was outside the scope of his employ-
ment. The district court agreed and overruled the certifica-
tion on the scope of employment. Because the United
States was no longer a party, there was no diversity of
citizenship and no federal law at issue, the district court
then remanded the case to state court. When the United
States moved for reconsideration, the court clarified that
the certification was improper because the United States
denied the occurrence of the event central to Osborn’s
claim.
The United States appealed. The Supreme Court re-
marked that section 2679(d)(2) provides that certifica-
tion by the Attorney General “shall conclusively establish
scope of office or employment for purposes of removal.”
Osborn, 127 S. Ct. at 894. This provision, the Court noted,
differs markedly from the command of section 2679(d)(3),
which addresses cases in which the Attorney General
12 No. 05-1823
refuses to certify the scope of employment. In such a case,
the defendant employee may petition the court to make
the scope of employment certification; if the case was
filed in state court, the Attorney General is then permitted
but not required to remove the case to federal court. If the
court subsequently determines that the employee was not
acting within the scope of his or her employment, section
2679(d)(3) commands that the action “shall be remanded
to the State court.” The Court found that, in contrast, in
cases where the Attorney General affirmatively certifies
the scope of employment, “Congress gave district courts
no authority to return cases to state courts on the ground
that the Attorney General’s certification was unwar-
ranted.” Osborn, 127 S. Ct. at 894. Rather, the Attorney
General’s certification “is conclusive for purposes of re-
moval.” 28 U.S.C. § 2679(d)(2). That section, the Court
held, did not preclude the district court from re-substitut-
ing the original defendant for the purposes of trial if the
court determined, post-removal, that the Attorney Gen-
eral’s scope of employment certification was incorrect. “For
purposes of establishing a forum to adjudicate the case,
however, § 2679(d)(2) renders the Attorney General’s
certification dispositive.” Osborn, 127 S. Ct. at 894.
Otherwise, the “conclusive” language of section 2679(d)(2)
would be meaningless. The Court opined that Congress
adopted the “conclusive for purposes of removal” language
to “foreclose needless shuttling of a case from one court to
another.” Osborn, 127 S. Ct. at 895 (quoting Gutierrez v.
Martinez-Lamagno, 515 U.S. 417, 433 n.10 (1995)).
The Court then addressed the question left open by
Lamagno, whether Article III permits treating the Attor-
ney General’s certification as conclusive for the purposes
of removal but not for purposes of substitution. Osborn,
127 S. Ct. at 896. The problem, the Court noted, was that
a case could be locked into federal court even though the
United States was not a party, there was no diversity of
No. 05-1823 13
the parties, and no federal question was at issue in the
litigation. The Court concluded that Article III allowed
this result because a significant federal question would
have arisen at the outset, specifically, whether the defen-
dant had Westfall Act immunity. The case would thus
“arise under” federal law as that term is used in Article
III. The Court found that considerations of judicial econ-
omy, convenience and fairness to the litigants made it
reasonable and proper for a federal court to proceed to
final judgment once it had invested the time and resources
to resolve the pivotal scope-of-employment question.
Osborn, 127 S. Ct. at 896.
In the instant case, the Attorney General certified
pursuant to section 233 that Sinai was a federally funded
health center and that Dr. Onyema was acting within the
scope of his employment at Sinai at the time of the inci-
dents giving rise to the complaint. In the notice of removal,
the United States invoked both section 233 and section
2679(d)(2). Given the invocation of section 2679(d)(2), the
very section the Supreme Court analyzed in Osborn, the
question of subject matter jurisdiction has been answered
by Osborn. The district court possessed subject matter
jurisdiction over the case because a significant federal
question arose at the outset, specifically whether Dr.
Onyema could be deemed an employee of the pubic health
system due to his professional corporation’s contract
with Sinai.5 The government answered that question af-
5
We pause to emphasize that nothing in our holding conflicts
with the decisions of the Eleventh and the D.C. Circuit courts
regarding situations where a doctor contracted with a publicly
funded health center through a professional corporation rather
than personally and individually. See Dedrick v. Youngblood, 200
F.3d 744 (11th Cir. 2000); Allen v, Christenberry, 327 F.3d 1290(11th Cir. 2003); El Rio Santa Cruz Neighborhood Health Ctr. v.
(continued...)
14 No. 05-1823
firmatively, albeit mistakenly. Under section 233, neither
party could challenge the certification, and under section
2679(d)(2), the certification was conclusive for purposes of
removal. Osborn determined that a federal court could
retain jurisdiction over a case that was removed with an
erroneous certification without offending Article III. We
therefore reject Alexander’s challenge to subject matter
jurisdiction and turn to the remaining issues in her appeal.
II.
Alexander contends that the district court erred in
granting a directed verdict for Mount Sinai Hospital, the
entity that employed two of the physicians who treated
Christen Crutcher. She also faults the district court for a
number of evidentiary rulings and for allowing certain
comments by defense counsel during opening and closing
statements. Finally, she complains that the court itself
made remarks in the presence of the jury that were unduly
prejudicial, denying her a fair trial.
A.
Christen Crutcher (“Crutcher”) had a mass near her
uterus beginning sometime in the 1980s. In 1992, she was
5
(...continued)
U.S. Dep’t of Health and Human Servs., 396 F.3d 1265 (D.C. Cir.
2005). In none of those cases was the court faced with a positive
certification by the Attorney General. In Dedrick, the physician
sought certification from the court. In Allen, HHS refused to
certify the defendants-physicians and they sought to overturn
that ruling in the district court. And in El Rio Santa Cruz, HHS
also denied certification to the defendant-physicians. As we
have noted, the statutes involved treat positive certification
decisions very differently from denials of certification.
No. 05-1823 15
referred to Dr. Onyema for examination of this mass. Dr.
Onyema ordered an ultrasound and decided to simply
monitor the situation because the mass had not changed
in size since the last ultrasound in the 1980s and because
Crutcher was not in pain. Crutcher returned to Dr.
Onyema approximately five years later complaining of
pain in her lower right side for six months. An ultrasound
and CT scan revealed that the mass had not changed in
size or location but Dr. Onyema discussed surgery with
Crutcher because the mass had become symptomatic. Dr.
Onyema’s plan for surgery was to examine the mass
laparoscopically to determine if it was fibroid or benign. If
he found the mass was fibroid or benign, he intended to
do nothing further. If the mass involved the ovary, he
planned to remove it because he believed that for a woman
Crutcher’s age (she was 66), any mass involving the ovary
was presumed malignant until proven otherwise. Dr.
Onyema discussed the various risks of the surgery with
Crutcher and she decided to proceed with the surgery.
On October 2, 1997, Crutcher underwent surgery at
Mount Sinai Hospital. Dr. Onyema was assisted by Dr.
Gazala Siddiqui, a first year resident. Dr. Onyema began
with the laparoscopic procedure, which involved inserting
a scope or camera into the abdomen. He encountered dense
adhesions which prevented him from seeing the pelvic
organs with the scope so he switched to an open pro-
cedure. For the open procedure, third year resident Dr.
Jennifer Moran joined the surgical team. In order to reach
and remove the mass, Dr. Onyema used blunt dissection of
the adhesions, separating them mainly by hand. He
removed the mass, measuring six to seven centimeters,
and sent it to pathology for analysis. The pathologist later
determined the mass was benign. Dr. Siddiqui wrote
orders for Crutcher’s care immediately after the surgery
and was the first doctor to examine her the next morning.
Dr. Siddiqui heard crackles at the base of Crutcher’s lungs,
16 No. 05-1823
a finding that is sometimes seen after surgery because
patients do not breathe deeply due to incision pain. Dr.
Siddiqui ordered a device to help Crutcher breathe more
deeply and ordered a urinalysis to determine the source
of a slight fever Crutcher had the prior night. Dr. Onyema
spoke with Dr. Siddiqui that morning and then examined
Crutcher himself. Both doctors noted that Crutcher’s
abdomen was soft and non-tender and that she had
reduced bowel sounds. These were considered normal
findings in the first day following surgery. Dr. Onyema
decided that Dr. Siddiqui’s orders were adequate. Dr.
Siddiqui ordered additional antibiotics later that day.
The next day, because Crutcher’s fever had increased,
Dr. Bruce Smith, the senior obstetrics/gynecology resident
on call, was asked to evaluate Crutcher. He noted that she
had the symptoms of ileus, an obstruction of the bowel. He
also observed crackles in both lungs, a rapid heartbeat
and rapid breathing. A lab report showed an elevated
white blood cell count. Dr. Smith’s plan was to rule out
pneumonia with a chest x-ray, to rule out a small bowel
obstruction with abdominal x-rays,6 and to rule out a post-
operative infection. He also thought Crutcher should
receive additional antibiotics and that if bowel obstruction
was ruled out, she should receive a bowel motility drug.
Dr. Smith conveyed his assessment and plan to Dr.
Onyema who agreed to the plan. As the morning pro-
gressed, Crutcher complained of shortness of breath and
abdominal pain, and displayed some confusion. She
continued to have crackles in her lungs. The chest x-ray
indicated pneumonia and Crutcher was then given triple
antibiotics. By 4 p.m., Crutcher said she was feeling better,
6
The abdominal x-rays showed there was no free air in
Crutcher’s abdomen, a finding which apparently influenced
subsequent actions by her physicians.
No. 05-1823 17
no longer had shortness of breath, and felt like she needed
to move her bowels but could not do so.
The next morning, October 5th, Crutcher had a bowel
movement and was given respiratory therapy to help her
clear fluid from her lungs and breathe more easily. Her
fever had gone down to 100°. Dr. Smith examined Crutcher
that morning and found that she still had crackles in
both lungs, was still breathing rapidly and had a rapid
heartbeat. She also had a slight, bloody discharge from her
surgical wound (which was otherwise intact) and abdomi-
nal distention. Dr. Smith noted that Crutcher had pneumo-
nia. He also assessed her for ileus, noting that she had
moved her bowels and passed gas, but also had decreased
bowel sounds and abdominal distention. He assessed her
for wound infection and noted she was on triple antibiotics.
His plan was to repeat the chest x-ray and obtain an
infectious disease consult.
Dr. Moran also saw Crutcher that day after receiving a
report on her condition from Dr. Smith. Crutcher told Dr.
Moran she was feeling somewhat better but Dr. Moran
noted that her breathing was labored, her blood pressure
was elevated, her heart and respiratory rates were ele-
vated, and she was using extra muscles from her chest
and neck to breathe. Dr. Moran noted abnormal sounds
in the lungs and poor air entry. Dr. Moran also observed
the Crutcher’s abdomen exhibited a small amount of
oozing, redness and bruising. Dr. Moran reviewed
Crutcher’s latest tests, which showed a significantly
elevated white blood cell count and pulmonary edema,
among other things. Dr. Moran concluded that Crutcher
had pulmonary edema with pneumonia. She planned to
continue administering oxygen, prescribed a diuretic, and
continued the triple antibiotics. Her notes indicated she
intended to attempt to contact the infectious disease
specialist again, planned to ask her senior resident to see
Crutcher, and then intended to speak to Dr. Onyema again
18 No. 05-1823
to get his input. After Dr. Moran discussed Crutcher’s
condition with Dr. Onyema, he cancelled the infectious
disease consult and directed Dr. Moran to consult the
pulmonary service instead. Dr. Moran called in Dr. Joseph
Rosman, a critical care/pulmonologist employed by Sinai
for an evaluation of Crutcher’s condition. Dr. Rosman
concluded that Crutcher was suffering from Acute Respira-
tory Distress Syndrome (“ARDS”) and he approved
Crutcher’s transfer to the medical intensive care unit
(“MICU”) where the MICU fellow, residents and attending
staff took over her care. He suspected the ARDS was
caused by sepsis which was brought about by the pneumo-
nia.
Dr. Rosman was aware that the abdominal x-rays had
revealed no free air in Crutcher’s abdomen. Free air would
have been a strong indication of a bowel perforation which
would have been another source of infection leading to
Crutcher’s mounting medical problems. Once in the MICU,
Crutcher was placed on a ventilator to assist her breath-
ing. Over the next few days, Crutcher’s condition deterio-
rated. On October 6th, Dr. Moran examined Crutcher and
found she had a soft, non-tender, non-distended abdomen,
with positive bowel sounds, a clean and dry incision, and
reduced redness and swelling at the incision site. A few
hours later when Dr. Onyema examined Crutcher, her
abdomen was slightly distended, her incision was dry, and
bowel sounds were present. The next day, her abdomen
was more distended but bowel sounds were still present.
On the afternoon of October 7th, Crutcher began having
problems with her organs. Dr. Onyema called in a cardiolo-
gist for a consult. The cardiologist noted that Crutcher’s
abdomen was rigid and distended and recommended that
a surgical re-exploration be done. The MICU fellow ordered
a CT scan for October 8th to see if Crutcher had an
infection in her abdomen.
No. 05-1823 19
On October 9th, Dr. Rosman examined Crutcher and
noticed that the ordered CT scan had not yet been per-
formed. Because Crutcher’s abdomen was distended, he
called the radiologists and urged them to perform the
CT scan quickly. The scan showed a collection of fluid and
two “pockets” in the abdomen. Dr. Rosman arranged to
have a catheter inserted in Crutcher’s abdomen to drain
the fluid. The catheter was placed on October 10th and
revealed that Crutcher had an abscess, a collection of
infected fluid in her abdomen. After draining this fluid,
Crutcher’s condition improved slightly over the next few
days but then the drainage from the catheter began to
increase. On October 13th, Dr. Onyema requested an
infectious disease consult and on October 15th, he re-
quested a general surgical consult. Dr. Sasa Korner
performed exploratory surgery on October 16th and found
a hole in Crutcher’s small bowel which he repaired by
removing fifty-five centimeters of the bowel. A patholo-
gist’s analysis of the removed tissue showed two holes.
Unfortunately, Crutcher’s condition continued to deterio-
rate and she died on November 13th of multi-system organ
failure, which in turn was attributed to the perforated
bowel.
Crutcher’s daughter, Irma Alexander, filed a malprac-
tice action in the Circuit Court of Cook County against
Mount Sinai Hospital Medical Center of Chicago and Sinai
Health System d/b/a Mount Sinai Medical Center of
Chicago (“Mount Sinai Hospital”), Sinai Medical Group
(“Sinai”), Godwin Onyema and Joseph Rosman. We have
already noted the path the litigation took to federal court.
Under the FTCA, the United States was substituted for
Dr. Onyema. The case against the United States was
tried to the judge at the same time the case against the
other defendants was tried to a jury. At the close of the
plaintiff ’s case, Sinai, Mount Sinai Hospital and Dr.
Rosman moved for a directed verdict. The court denied
20 No. 05-1823
the motion as to Dr. Rosman but granted it in favor of
Sinai (except to the extent that Sinai was vicariously liable
for Dr. Rosman’s conduct as his employer) and in favor
of Mount Sinai Hospital. The jury returned a verdict in
favor of the remaining defendants and the court entered
judgment in favor of the United States.
B.
We turn first to the directed verdict in favor of Mount
Sinai Hospital. The parties agreed that Mount Sinai
Hospital was liable only through the actions of its employ-
ees, Dr. Moran, Dr. Siddiqui and Dr. Smith.7 Recall that
Dr. Moran was a third-year resident, Dr. Siddiqui was a
first-year resident and Dr. Smith was a senior (fourth-
year) resident at the time of these events. At trial, Dr.
Ronald Berman testified as an expert for Alexander. Dr.
Berman opined that Crutcher developed ARDS by October
5th. He testified that the chances of Crutcher surviving
ARDS at that point were 50-60% and that those odds
decreased as time passed. Dr. Berman testified that “[t]his
was Dr. Onyema’s patient. He is in charge.” R. 128-5, at
711. In his testimony regarding Dr. Onyema, Dr. Berman
criticized Dr. Onyema for relying on telephone reports
from residents rather than coming in to see the patient
himself when she was apparently more ill than would be
expected following surgery. He opined that the residents
“have less experience; and, the more junior the resident,
the less you expect.” R. 128-5, at 714. The standard of
care for residents, Dr. Berman stated, was to know the
indications and contra-indications to any surgical proce-
dure in which they participate, to know the complications
7
Dr. Rosman was employed by Sinai and not by Mount Sinai
Hospital, which was a separate and distinct corporation.
No. 05-1823 21
of those surgical procedures, to be able to diagnose those
complications if the patient showed signs of them, and to
treat those complications in a timely fashion. R. 128-5, at
720. When Dr. Berman opined that the residents should
have requested a surgical consult on October 5th, Mount
Sinai Hospital objected that Dr. Berman had not previ-
ously disclosed this opinion and that he was not distin-
guishing between the residents who had varying levels of
experience and varying contacts with Crutcher after her
surgery. The court struck Dr. Berman’s testimony and
directed plaintiff ’s counsel to be more careful in question-
ing Dr. Berman so that it would be clear which resident
was involved in the particular criticism. Dr. Berman
subsequently testified that Dr. Moran deviated from the
applicable standard of care by not requesting a surgical
consult on October 5th and that Dr. Siddiqui violated the
standard of care by not ordering a surgical consult on
October 6th. R. 128-5, at 724. Plaintiff ’s counsel then
posed the following question: “And with regard to the
requirement that Dr. Smith order surgical consultation on
the 4th or the 5th, do you hold such an opinion?” Plain-
tiff ’s counsel objected to this question (“Objection, your
Honor. The same objection.”) because Dr. Berman had not
previously disclosed an opinion that Dr. Smith should have
ordered a surgical consult on October 4th. The court
sustained the objection. Plaintiff ’s counsel did not narrow
the question to the October 5th time frame and instead
asked other questions. The court continued to sustain
objections to broadly worded questions and broadly
worded responses from Dr. Berman. The effect of those
rulings was that Dr. Berman essentially offered no fur-
ther admissible critique of the residents.
On cross-examination, Dr. Berman conceded that Drs.
Moran and Siddiqui did nothing wrong during the surgery
itself. He also testified that neither Dr. Moran nor Dr.
Smith violated the standard of care by failing to diagnose
22 No. 05-1823
ARDS. When asked about Crutcher’s chances for survival
after October 5th, Dr. Berman could state only that once
Crutcher was diagnosed with ARDS, her chances of
survival were 50-60% and decreasing on an unknown scale
each day. Dr. Berman acknowledged that there was no way
of quantifying the daily decrease in Crutcher’s chances for
survival and that he could not say whether her chances on
October 6th or later would have been 50% or 1%. Finally,
Dr. Berman testified that he could not predict whether a
surgeon called in on October 5th would have recommended
surgery given Crutcher’s precarious medical condition at
that time. R. 128-5, at 799-801.
At the close of the plaintiff ’s case, Mount Sinai Hospital
moved for a directed verdict under Federal Rule of Civil
Procedure 50. Counsel for the hospital pointed out that Dr.
Siddiqui was not at the hospital on October 6th, the only
day for which Dr. Berman criticized her performance.
Counsel also noted that there was no admissible opinion
given regarding Dr. Smith’s performance and that the
only criticism remaining was Dr. Berman’s opinion that
Dr. Moran should have ordered a surgical consult on
October 5th. Because Dr. Berman could not predict
whether a surgical consult would have resulted in surgery
or whether either a consult or surgery would have im-
proved Crutcher’s chances of survival, Mount Sinai argued
that the case against Dr. Moran was purely speculative.
The district court granted the motion, ruling that no
reasonable jury could find that the residents violated the
applicable standard of care. The court found that there was
no basis for imposing liability on the residents for failing
to go over Dr. Onyema’s head to order a surgical consult.8
8
Recall that Dr. Onyema countermanded Dr. Moran’s call for
an infectious disease consult on October 5th and instead di-
rected her to consult a pulmonary care specialist. As Alexander’s
(continued...)
No. 05-1823 23
The court noted that Dr. Berman’s criticism of Drs.
Siddiqui and Smith addressed their conduct on days that
they were not physically present at the hospital, which the
court characterized as “very, very shoddy testimony.” R.
128-5, at 851-2. The court found no reasonable jury would
impose liability on Dr. Moran for failing to call for a
surgical consult on October 5th because she was a junior
resident reporting to Dr. Onyema who did not himself
order such a consult, and because by that time, Crutcher
had developed ARDS and had only a 50-60% chance of
survival no matter what Dr. Moran did.
Alexander complains that the court improperly pre-
cluded Dr. Berman from testifying that Dr. Smith deviated
from the applicable standard of care by failing to order a
surgical consult on October 5th. Alexander also argues that
the district court applied the wrong standard when
it directed the verdict in favor of the hospital. We review
the district court’s decision to restrict an expert’s testi-
mony as a sanction for failure to disclose the information
in discovery for abuse of discretion. Hoffman v. Caterpillar,
Inc., 368 F.3d 709, 714 (7th Cir. 2004); Sherrod v. Lingle,
223 F.3d 605, 610 (7th Cir. 2000). For a state law claim, we
apply the state’s standard of review to the district court’s
decision to grant a directed verdict. Consolidated Bearings
Co. v. Ehret-Krohn Corp., 913 F.2d 1224, 1227 (7th Cir.
1990); Mele v. Sherman Hosp., 838 F.2d 923, 924 (7th Cir.
1988). Alexander’s malpractice claims against Mount Sinai
Hospital were governed by Illinois law. Illinois case law
provides that verdicts should be directed “only in those
cases in which all of the evidence, when viewed in its
aspect most favorable to the opponent, so overwhelmingly
8
(...continued)
own expert testified, Crutcher was Dr. Onyema’s patient and
Dr. Onyema was “in charge.”
24 No. 05-1823
favors movant that no contrary verdict based on that
evidence could ever stand.” Pedrick v. Peoria & Eastern
R.R. Co., 229 N.E.2d 504, 513-14 (Ill. 1967). Illinois law
also requires that we review the trial court’s directed
verdict de novo. Snelson v. Kamm, 787 N.E.2d 796, 819 (Ill.
2003); Suzik v. Sea-Land Corp., 89 F.3d 345, 348 (7th Cir.
1996).
We begin with the district court’s decision to sustain the
objection to the question about Dr. Smith’s duty to order a
surgical consult on October 4th and 5th. Alexander is
correct that Dr. Berman had previously disclosed an
opinion that Dr. Smith should have ordered a surgical
consult on October 5th. But prior to trial Dr. Berman also
opined that no one breached an applicable standard of
care by failing to call for a surgical consult before October
5th. When counsel for Mount Sinai objected to the ques-
tion, he was objecting to the reference to October 4th. The
court sustained the objection, and counsel for Alexander
tried a few more times to elicit the relevant information
but continued to ask questions that were non-specific as to
particular dates and particular defendants. After addi-
tional objections, the court called a sidebar where defense
counsel explained that he objected because Dr. Berman did
not criticize the residents for certain actions or failures
to act before October 5th in opinions expressed prior to
trial. Thus, testimony that the residents breached the
standard of care before October 5th constituted undis-
closed opinions. The court suggested that Alexander’s
counsel use Dr. Berman’s deposition testimony and
“accurately phrase a question with what you know to be
his opinion.” R. 128-5, at 727. When trial resumed, Alexan-
der’s counsel failed to elicit an opinion from Dr. Berman
about Dr. Smith’s obligation to order a surgical consult on
October 5th. We see no abuse of discretion in the district
court’s rulings limiting Dr. Berman’s testimony. Contrary
to Alexander’s claim, the court did not preclude Dr.
No. 05-1823 25
Berman from testifying about Dr. Smith’s conduct on
October 5th. Rather, counsel failed to ask a non-objection-
able question to elicit this information. Instead, counsel
asked broad questions and Dr. Berman tended to answer
in a non-specific manner that was inconsistent with or
broader than his deposition testimony. The court was
within its discretion to restrict Dr. Berman’s testimony to
previously disclosed opinions.
The directed verdict is a closer question but after care-
ful review of the trial transcript and the relevant Illinois
cases, we conclude that the district court was correct to
direct the verdict in favor of Mount Sinai Hospital. The
court sustained a number of objections to Dr. Berman’s
testimony about the residents; the evidence which survived
was exceedingly thin. Dr. Berman testified Dr. Moran
should have ordered a surgical consult on October 5th and
that Dr. Siddiqui should have ordered a surgical consult on
October 6th. Dr. Siddiqui, however, did not see or treat
Crutcher on October 6th. As we have already noted, there
was no admissible evidence regarding a breach of the
standard of care by Dr. Smith. Thus, the only evidence of
a breach of the standard of care was Dr. Berman’s testi-
mony that Dr. Moran should have called for a surgical
consult on October 5th. We must view the evidence in the
light most favorable to the opponent of the motion for a
directed verdict and so we must assume for the purposes
of this analysis that Dr. Moran, a third year resident,
breached the standard of care by failing to request a
surgical consult.9 At the time of the Rule 50 motion,
9
We emphasize that this is an assumption necessitated by the
legal posture of the case. Given that no senior physician thought
to order a surgical consult at that time, given that Dr. Onyema
countermanded Dr. Moran’s orders and had the ultimate
authority over the residents, and given that Crutcher’s precari-
(continued...)
26 No. 05-1823
counsel for the hospital argued that Alexander failed to
show that the outcome would have been any different if Dr.
Moran had called for a surgical consult on October 5th. In
other words, Alexander failed to present evidence that this
breach was a proximate cause of Crutcher’s injury. First,
Alexander presented no evidence that the surgeon would
have done anything differently if he had been called in on
October 5th. Second, Dr. Berman testified that he could
not say with certainty what Crutcher’s chances of survival
were after October 5th when she was initially diagnosed
with ARDS. Indeed he testified that her odds of survival
were 50-60% at best and that they decreased in an un-
known percentage each day after that. Thus, the effect of
calling in a surgeon on October 5th versus on some other
day was unknown with any certainty. Defense counsel
argued that it would therefore be speculative to conclude
that a surgical consult on October 5th would have influ-
enced the outcome. Such speculation could not meet the
standards for proximate cause, the hospital argued.
To sustain a claim against Mount Sinai Hospital based
on vicarious liability for the conduct of its residents,
Alexander was obliged “to present expert testimony to
establish the standard of care and that its breach was the
cause of the plaintiff ’s injury.” Snelson, 787 N.E.2d at 819.
Alexander arguably provided sufficient evidence on the
standard of care and the breach of that standard through
Dr. Berman’s testimony. The issue before us is whether
she provided adequate evidence that the breach was a
cause of Crutcher’s injuries. This is where Alexander’s case
fails. Dr. Berman testified that he could not predict
whether a surgeon called in on October 5th would have
9
(...continued)
ous condition weighed against surgical intervention, the jury
may well have concluded that Dr. Moran did not breach the
standard of care.
No. 05-1823 27
recommended surgery given Crutcher’s precarious medical
condition at that time. R. 128-5, at 799-801. Alexander
presented no evidence from a surgeon or other expert that
a surgeon would have performed surgery on Crutcher
sooner or treated Crutcher differently had the surgeon
been called in for a consult on October 5th. Moreover,
Dr. Berman acknowledged that there was no way of
quantifying the daily decrease in Crutcher’s chances for
survival and that he could not say whether her chances
on October 6th or later would have been 50% or 1%. Thus,
there was no evidence that Dr. Moran’s delay in calling for
a surgical consult in any way contributed to Crutcher’s
injury. See Snelson, 787 N.E.2d at 819 (except in very
simple cases, expert testimony is needed to establish that
a breach of the standard of care was the proximate cause
of the plaintiff ’s injury).
Alexander’s case is analogous to Snelson and to Aguilera
v. Mount Sinai Hosp. Med. Ctr., 691 N.E.2d 1 (Ill. App. Ct.
1997), as modified on denial of reh’g (Jan. 21, 1998). In
Snelson, the plaintiff sued a hospital for a breach in the
standard of care by nurses employed by the hospital.
Snelson, 787 N.E.2d at 818-23. During a diagnostic test,
Snelson had suffered an injury to the artery supply-
ing blood to his small intestine. The doctor performing the
test was unaware that he had caused the injury and
Snelson was admitted to the hospital under the care of Dr.
Kamm, the physician who had ordered the test. Snelson
experienced unusual symptoms in the hours following the
test including abdominal pain and bloody stool. Dr. Kamm
examined Snelson and then left him in the care of nurses
for the evening with instructions to closely monitor his
condition. The nurses failed to inform Dr. Kamm that
Snelson experienced additional pain after the doctor left
for the evening. The next morning, after additional tests,
Dr. Kamm performed emergency surgery and discovered
that 95% of Snelson’s small intestine was dead due to
28 No. 05-1823
lack of circulation. Dr. Kamm removed the dead intestinal
tissue, leaving Snelson with virtually no small intestine.
This loss caused serious, lifelong medical consequences
for Snelson.
Dr. Kamm had been aware of Snelson’s pain before he
left, however, and Snelson presented no evidence that Dr.
Kamm would have performed surgery earlier if the nurses
had informed him of Snelson’s continued pain. Thus, the
court held that the nurses’ conduct could not have been the
proximate cause of Snelson’s injury even if the nurses
deviated from the standard of care by failing to advise Dr.
Kamm of Snelson’s pain. Snelson, 787 N.E.2d at 820. The
court noted that Snelson could have presented expert
testimony as to what a reasonably qualified physician
would do with the undisclosed information and whether
the failure to disclose the information was a proximate
cause of the plaintiff ’s injury. Such testimony could
discredit a doctor’s assertion that the nurses’ omission
did not affect his decisionmaking. 787 N.E.2d at 821.
In Aguilera, the plaintiff arrived in the hospital’s
emergency room complaining of numbness on one side of
his body. He was not given a CT scan for several hours.
That scan ultimately revealed a massive brain hemor-
rhage. The plaintiff subsequently lapsed into a coma and
died. In a suit against the hospital, the plaintiff alleged
that the delay in the CT scan was a breach of the standard
of care that led to his death. The plaintiff ’s expert testified
that if the scan had been completed earlier, a neurosur-
geon would have been consulted and surgery could have
been attempted before the bleeding caused the irreversible
damage that led to the plaintiff ’s death. 691 N.E.2d at 3-6.
The plaintiff ’s experts conceded that they did not know
if a neurosurgeon would have in fact performed surgery if
the CT scan had been completed earlier. Both experts
testified that they would defer to a neurosurgeon’s opinion
as to how to proceed. The neurosurgeons who testified
No. 05-1823 29
agreed that even if the scan had been performed earlier,
they were unlikely to have recommended surgery because
of the location of the bleeding deep within the brain. The
court held that the “absence of expert testimony that,
under the appropriate standard of care, an analysis of an
earlier CT scan would have led to surgical intervention or
other treatment that may have contributed to the dece-
dent’s recovery creates a gap in the evidence of proximate
cause fatal to plaintiff ’s case.” Aguilera, 691 N.E.2d at 7.
As in Snelson and Aguilera, Alexander failed to produce
any evidence that Dr. Moran’s failure to order a surgical
consult was a proximate cause of Crutcher’s injury. See
also Holton v. Memorial Hosp., 679 N.E.2d 1202, 1211-13
(Ill. 1997) (evidence which shows to a reasonable medical
certainty that negligent delay in diagnosis or treatment
lessened the effectiveness of treatment is sufficient to show
proximate cause). Without evidence that the resident’s
actions proximately caused Crutcher’s injury, the court
was correct to grant judgment in favor of the hospital.
Aguilera, 691 N.E.2d at 6 (where there is no factual
support for an expert’s conclusions, the conclusions alone
do not create a question of fact). We affirm the grant of
judgment in favor of Mount Sinai Hospital.
C.
Alexander’s remaining arguments fare no better. She
asserts that the court committed reversible error when it
allowed Dr. Craig Winkel, an expert for the United States,
to testify that Crutcher’s bowel may have been perforated
during the October 16th surgery or that it may have been a
delayed perforation rather than a perforation that occurred
during the original October 2nd surgery. Early in his
testimony, Dr. Winkel stated that he disagreed with Dr.
Berman’s opinion that Dr. Onyema breached the standard
of care by perforating Crutcher’s bowel during the October
30 No. 05-1823
2nd surgery. Dr. Winkel testified, without objection, that
it was not clear to him that Dr. Onyema did in fact
perforate the intestine. He also stated that perforating the
bowel was a known complication which did not in and of
itself indicate substandard care. R. 128-7, at 915-16. He
later testified without objection that he was uncertain
when the perforation occurred. R. 128-7, at 925. It was
within the trial court’s discretion to allow Dr. Winkel to
testify to opinions that may have differed from his previ-
ously disclosed opinions. Hoffman, 368 F.3d at 714. On
cross-examination, counsel for Alexander was able to
question Dr. Winkel about his prior deposition testimony.
Alexander’s counsel demonstrated that Dr. Winkel had
previously testified that, in his opinion, the injury to the
bowel “probably occurred” during the October 2nd surgery
and was caused by the insertion of the trocar or needle
used to perform the laparoscopy. R. 128-7, at 962. Dr.
Winkel’s testimony was not necessarily inconsistent with
his prior opinion; in each instance he spoke of probabilities
that did not conclusively exclude other scenarios. More-
over, most of this testimony came in without objection. Any
harm caused by the district court allowing Dr. Winkel to
testify that (1) he did not know for certain when the
perforations occurred, and (2) they may have occurred
during the October 16th surgery or on a delayed basis, was
cured by the thorough cross-examination by Alexander’s
counsel.
Alexander also complains that the trial court improperly
overruled her objection to a question during the cross-
examination of Alexander’s other expert witness, Dr. Klotz.
Defense counsel asked Dr. Klotz if he was aware that Dr.
Moran had irrigated the abdomen to check for leaks in the
bowel during the October 2nd surgery. Dr. Moran had
testified that was her usual procedure but arguably had
not testified that she had performed this irrigation in
Crutcher’s surgery on October 2nd. The court allowed the
No. 05-1823 31
question, ruling “She testified on that topic. And the jury
has to recall whether that is what she said. My sense is
that that is what was, essentially, described. So, I will
permit the question to be put. But whether that was the
exact testimony will be for the jury to decide.” R. 128-4, at
596-97. The court made clear that it was the jury’s recol-
lection that should prevail.10 In light of that directive,
given twice, that it was for the jury to recall the evidence,
we find no abuse of discretion and no prejudice from the
remark. See United States v. Brisk, 171 F.3d 514, 524 (7th
Cir. 1999) (judge’s admonishment to jury to rely on its own
recollection was sufficient to mitigate any possible preju-
dice from comments not supported by the evidence); United
States v. Dominguez, 835 F.2d 694, 700 (7th Cir. 1987)
(misstatement of the evidence does not necessarily preju-
dice the jury’s ability to weigh the evidence fairly when the
court immediately instructs the jury that it is the jury’s
province to recall what the evidence reflected).
Finally, Alexander complains that she was unduly
prejudiced by remarks from defense counsel and from the
court. In opening statements, counsel for Dr. Rosman
sought to discredit Alexander’s experts, particularly Dr.
Berman. Counsel stated, “Dr. Berman practiced for many
years in Hawaii; retired in 1998; and, since 2002, has been
in San Diego doing—well about 80 percent of his experi-
ence in the last seven years has been doing 20 to 40
abortions per week at a clinic.” R. 128-1, at 68. The court
overruled Alexander’s immediate objection. Alexander
then moved for a mistrial on the ground that the remark
was irrelevant, immaterial, highly prejudicial and inflam-
matory. R. 128-2, at 78. The court denied the motion,
10
In explaining its reasoning for the ruling, the court may have
inadvertently endorsed a particular view of the evidence. But
in light of the repeated instructions to the jury to rely on its
own recollection, we find the court’s statement harmless.
32 No. 05-1823
finding that the background of expert witnesses is highly
relevant to their claimed expertise. Before Dr. Berman
testified, Alexander brought a motion in limine to exclude
references to abortion. The court granted the motion in
part, directing the parties to use the word “terminations”
rather than abortions in describing Dr. Berman’s recent
practice. R. 128-5, at 677-78.
A trial judge has broad discretion in determining
whether an incident at trial is so serious as to warrant a
mistrial. Testa v. Village of Mundelein, Ill., 89 F.3d 443,
445 (7th Cir. 1996). Alexander’s counsel objected broadly
to the reference to abortions. The court found, and we
agree, that the expert’s current work experience is highly
relevant to his credentials. Alexander was aware before
trial that Dr. Berman’s recent practice focused in large
part on family planning, contraception and pregnancy
terminations and yet Alexander failed to move in limine
before trial to address this issue. Alexander could have
moved before trial to preclude the use of the word “abor-
tion” and instead require counsel to refer to “termina-
tions,” the term the court ultimately approved for the
testimony of Dr. Berman. Instead, Alexander objected
broadly to any reference to this part of Dr. Berman’s
practice no matter what term was used. The court did not
abuse its discretion in allowing defense counsel to mention
this part of Dr. Berman’s current practice because it was
highly relevant to his credentials as an expert. Once
Alexander asked the court to limit the references to a less
charged term, the court agreed and prohibited defense
counsel from again using the word “abortion.” We find no
abuse of discretion in the court’s handling of the issue, and
note that Alexander’s counsel could have avoided the
problem entirely by filing the motion in limine before trial
began. We have considered the other remarks to which
Alexander has objected, including remarks by both defense
counsel and the court, and find that none warrants a
new trial.
No. 05-1823 33
III.
For the reasons stated, we find that the district court
properly exercised jurisdiction over the case, and we affirm
the judgment in every respect.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-24-07