United States Court of Appeals,
Fifth Circuit.
No. 92-7783.
James Everette CARROLL, Administrator of the Estate of Michael Eugene Carroll on Behalf of All Heirs of Said Deceased, Plaintiff- Appellant,
v.
Dr. John D. MORGAN, Defendant-Appellee.
March 31, 1994.
Appeal from the United States District Court for the Southern District of Mississippi.
Before REAVLEY and DAVIS, Circuit Judges, and TRIMBLE1, District Judge.
W. EUGENE DAVIS, Circuit Judge.
In this medical malpractice action alleging wrongful death of
plaintiff-appellant's brother, the jury rendered a take-nothing
verdict in favor of the defendant doctor. Finding no reversible
error, we affirm.
I.
On July 10, 1987, Dr. John D. Morgan, a physician specializing
in internal medicine, examined 30-year-old Michael Eugene Carroll.
Dr. Morgan had previously diagnosed Carroll in 1977 as having
aortic stenosis and, in 1980, Dr. Charles Lewis surgically replaced
Carroll's aortic valve.
During the July 10, 1987 examination, Carroll reported
dizziness, shortness of breath, inability to walk or stand,
1 District Judge of the Western District of Louisiana, sitting by designation.
1 numbness in his legs, and chest pain. Dr. Morgan discovered a
previously undetected heart murmur and diagnosed a "leaking aortic
valve." Dr. Morgan referred Carroll to Vocational Rehabilitation
to arrange funding for a cardiological evaluation and testified
that he advised Carroll not to return to work. On July 17, 1987,
seven days after Dr. Morgan examined Carroll but before Carroll's
cardiological evaluation, Carroll died of congestive heart failure
while operating heavy equipment at his place of employment.
James Carroll, the decedent's brother and estate
administrator, brought this medical malpractice suit against Dr.
Morgan for the wrongful death of his brother. The plaintiff
alleged that his brother died of bacterial endocarditis, a
condition which Dr. Morgan should have detected and treated without
delay on July 10, 1987. The plaintiff maintained that Dr. Morgan
was negligent in failing to refer his brother for immediate
cardiological evaluation and that this negligence caused his
brother's death.
Dr. Morgan's theory at trial was that Carroll did not exhibit
signs of bacterial endocarditis during the July 10, 1987
examination. Dr. Morgan therefore argued to the jury that he
justifiably had no reason to suspect that Carroll required
immediate medical attention. Dr. Morgan also disputed the cause of
death by presenting testimony that the pathological evidence did
not conclusively establish that bacterial endocarditis caused Mr.
Carroll's death.
Dr. Morgan primarily relied on the expert testimony of two
2 medical experts, Dr. Ken Bennett and Dr. Malcolm P. Taylor, to
support his defensive theory that his treatment did not breach the
standard of care owed under the circumstances. Both Dr. Bennett
and Dr. Taylor testified that Mr. Carroll's July 10, 1987
examination did not indicate an urgent need for medical treatment.
Both also testified that they would not have treated Carroll any
differently under the circumstances. As to the cause of death, Dr.
Bennett and Dr. Taylor testified that Carroll's death was possibly
attributable to preexisting heart disease, a thickened heart, and
the added burden of the leaking valve over the years.
The jury rendered a take-nothing verdict in favor of Dr.
Morgan and the plaintiff's post-trial motions were denied. We
consider below each of appellant's arguments.
II.
A. DR. BENNETT'S TESTIMONY
The appellant argues that the district court erred in a
number of evidentiary rulings relating to the testimony of Dr. Ken
Bennett, the defendant's expert cardiologist. First, the appellant
challenges the admissibility of Dr. Bennett's testimony because
Bennett failed to base his testimony on "a well-founded
methodology" or on "generally accepted principles within the
medical profession." Specifically, the appellant argues that Dr.
Bennett's testimony should have been excluded because Dr. Bennett
refused to recognize any medical textbooks or journal articles as
authoritative on endocarditis.
When the plaintiff asked Dr. Bennett about several textbooks
3 and medical journals, Dr. Bennett responded that the publications
included contributions from numerous authors; Dr. Bennett
testified that he was therefore unwilling to recognize the
materials in toto as authoritative and that he would not cite one
particular source as the exclusive authority on endocarditis. The
trial judge interpreted Dr. Bennett's testimony not as a
categorical denouncement of widely recognized authorities on
endocarditis, but rather as a reluctance to accept as authoritative
the materials in their entirety and to accept one particular source
as the exclusive authority on endocarditis.
A trial judge's decision to admit expert testimony will not
be disturbed absent an abuse of discretion. E.g., Shipp v. General
Motors Corp., 750 F.2d 418 (5th Cir.1985). In this case, the trial
judge did not abuse his wide discretion in allowing Dr. Bennett to
testify as an expert in the field of cardiology. Moreover, the
plaintiff does not allege that Dr. Bennett relied on a particularly
objectionable or unconventional scientific theory or methodology.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, --
-- - ----, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469, 485 (1993).
(holding that expert scientific testimony must be "ground[ed] in
the methods and procedures of science" and based on "more than a
subjective belief or unsupported speculation").
Because the district court did not abuse its discretion in
interpreting Dr. Bennett's testimony with respect to the textbooks
and journals, Dr. Bennett was qualified under Daubert to give an
expert opinion on the standard of medical care owed to Carroll.
4 His testimony was based on thirty years of experience as a
practicing, board-certified cardiologist, on his review, among
other things, of Carroll's medical records and the coroner's
records, and on a broad spectrum of published materials. His
testimony was therefore "ground[ed] in the methods and procedures
of science" and was not mere "unsupported speculation." See id. --
- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d at 482. That Bennett
refused to base his testimony on a single medical textbook or
journal article does not warrant wholesale exclusion of his
testimony. In short, the trial judge did not commit manifest error
in refusing to exclude Dr. Bennett's testimony on this ground.
The plaintiff argues next that the district court violated
the teachings of Daubert in allowing Dr. Bennett to testify as to
the cause of Carroll's death.2 Essentially, the plaintiff argues
that Dr. Bennett was not qualified to testify as to Carroll's cause
of death because Dr. Bennett is not a pathologist.
Daubert does not support plaintiff's position that the subject
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United States Court of Appeals,
Fifth Circuit.
No. 92-7783.
James Everette CARROLL, Administrator of the Estate of Michael Eugene Carroll on Behalf of All Heirs of Said Deceased, Plaintiff- Appellant,
v.
Dr. John D. MORGAN, Defendant-Appellee.
March 31, 1994.
Appeal from the United States District Court for the Southern District of Mississippi.
Before REAVLEY and DAVIS, Circuit Judges, and TRIMBLE1, District Judge.
W. EUGENE DAVIS, Circuit Judge.
In this medical malpractice action alleging wrongful death of
plaintiff-appellant's brother, the jury rendered a take-nothing
verdict in favor of the defendant doctor. Finding no reversible
error, we affirm.
I.
On July 10, 1987, Dr. John D. Morgan, a physician specializing
in internal medicine, examined 30-year-old Michael Eugene Carroll.
Dr. Morgan had previously diagnosed Carroll in 1977 as having
aortic stenosis and, in 1980, Dr. Charles Lewis surgically replaced
Carroll's aortic valve.
During the July 10, 1987 examination, Carroll reported
dizziness, shortness of breath, inability to walk or stand,
1 District Judge of the Western District of Louisiana, sitting by designation.
1 numbness in his legs, and chest pain. Dr. Morgan discovered a
previously undetected heart murmur and diagnosed a "leaking aortic
valve." Dr. Morgan referred Carroll to Vocational Rehabilitation
to arrange funding for a cardiological evaluation and testified
that he advised Carroll not to return to work. On July 17, 1987,
seven days after Dr. Morgan examined Carroll but before Carroll's
cardiological evaluation, Carroll died of congestive heart failure
while operating heavy equipment at his place of employment.
James Carroll, the decedent's brother and estate
administrator, brought this medical malpractice suit against Dr.
Morgan for the wrongful death of his brother. The plaintiff
alleged that his brother died of bacterial endocarditis, a
condition which Dr. Morgan should have detected and treated without
delay on July 10, 1987. The plaintiff maintained that Dr. Morgan
was negligent in failing to refer his brother for immediate
cardiological evaluation and that this negligence caused his
brother's death.
Dr. Morgan's theory at trial was that Carroll did not exhibit
signs of bacterial endocarditis during the July 10, 1987
examination. Dr. Morgan therefore argued to the jury that he
justifiably had no reason to suspect that Carroll required
immediate medical attention. Dr. Morgan also disputed the cause of
death by presenting testimony that the pathological evidence did
not conclusively establish that bacterial endocarditis caused Mr.
Carroll's death.
Dr. Morgan primarily relied on the expert testimony of two
2 medical experts, Dr. Ken Bennett and Dr. Malcolm P. Taylor, to
support his defensive theory that his treatment did not breach the
standard of care owed under the circumstances. Both Dr. Bennett
and Dr. Taylor testified that Mr. Carroll's July 10, 1987
examination did not indicate an urgent need for medical treatment.
Both also testified that they would not have treated Carroll any
differently under the circumstances. As to the cause of death, Dr.
Bennett and Dr. Taylor testified that Carroll's death was possibly
attributable to preexisting heart disease, a thickened heart, and
the added burden of the leaking valve over the years.
The jury rendered a take-nothing verdict in favor of Dr.
Morgan and the plaintiff's post-trial motions were denied. We
consider below each of appellant's arguments.
II.
A. DR. BENNETT'S TESTIMONY
The appellant argues that the district court erred in a
number of evidentiary rulings relating to the testimony of Dr. Ken
Bennett, the defendant's expert cardiologist. First, the appellant
challenges the admissibility of Dr. Bennett's testimony because
Bennett failed to base his testimony on "a well-founded
methodology" or on "generally accepted principles within the
medical profession." Specifically, the appellant argues that Dr.
Bennett's testimony should have been excluded because Dr. Bennett
refused to recognize any medical textbooks or journal articles as
authoritative on endocarditis.
When the plaintiff asked Dr. Bennett about several textbooks
3 and medical journals, Dr. Bennett responded that the publications
included contributions from numerous authors; Dr. Bennett
testified that he was therefore unwilling to recognize the
materials in toto as authoritative and that he would not cite one
particular source as the exclusive authority on endocarditis. The
trial judge interpreted Dr. Bennett's testimony not as a
categorical denouncement of widely recognized authorities on
endocarditis, but rather as a reluctance to accept as authoritative
the materials in their entirety and to accept one particular source
as the exclusive authority on endocarditis.
A trial judge's decision to admit expert testimony will not
be disturbed absent an abuse of discretion. E.g., Shipp v. General
Motors Corp., 750 F.2d 418 (5th Cir.1985). In this case, the trial
judge did not abuse his wide discretion in allowing Dr. Bennett to
testify as an expert in the field of cardiology. Moreover, the
plaintiff does not allege that Dr. Bennett relied on a particularly
objectionable or unconventional scientific theory or methodology.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, --
-- - ----, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469, 485 (1993).
(holding that expert scientific testimony must be "ground[ed] in
the methods and procedures of science" and based on "more than a
subjective belief or unsupported speculation").
Because the district court did not abuse its discretion in
interpreting Dr. Bennett's testimony with respect to the textbooks
and journals, Dr. Bennett was qualified under Daubert to give an
expert opinion on the standard of medical care owed to Carroll.
4 His testimony was based on thirty years of experience as a
practicing, board-certified cardiologist, on his review, among
other things, of Carroll's medical records and the coroner's
records, and on a broad spectrum of published materials. His
testimony was therefore "ground[ed] in the methods and procedures
of science" and was not mere "unsupported speculation." See id. --
- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d at 482. That Bennett
refused to base his testimony on a single medical textbook or
journal article does not warrant wholesale exclusion of his
testimony. In short, the trial judge did not commit manifest error
in refusing to exclude Dr. Bennett's testimony on this ground.
The plaintiff argues next that the district court violated
the teachings of Daubert in allowing Dr. Bennett to testify as to
the cause of Carroll's death.2 Essentially, the plaintiff argues
that Dr. Bennett was not qualified to testify as to Carroll's cause
of death because Dr. Bennett is not a pathologist.
Daubert does not support plaintiff's position that the subject
of Carroll's cause of death falls within the exclusive confines of
pathology. The district court did not abuse its discretion in
allowing Dr. Bennett, an expert cardiologist, to give an opinion on
the relationship between Mr. Carroll's heart problems and his
death. See, e.g., Karp v. Cooley, 493 F.2d 408, 418 (5th Cir.1974)
(cardiologist giving expert testimony as to cause of death). The
plaintiff's argument that three testifying pathologists disagreed
2 Dr. Bennett testified that in his opinion, Carroll's death was not attributable to endocarditis, but rather to preexisting cardiological problems.
5 with Dr. Bennett's opinion as to the cause of Carroll's death does
not disqualify Bennett as an expert; the conflict among the expert
testimony was grist for the jury.
The plaintiff also complains that the district court erred in
refusing to allow the plaintiff to use certain medical textbooks
and journal articles to cross-examine Dr. Bennett.
Cross-examination of expert witnesses with published articles is
permitted if the publication is "established as a reliable
authority by the testimony or admission of the witness or by other
expert testimony." Fed.R.Evid. 803(18) (emphasis added). Although
Dr. Bennett refused to recognize the materials as authoritative,
another medical expert, Dr. Charles McIntosh, recognized the
authorities as reliable. The plaintiff therefore was entitled to
use the publications to cross-examine Dr. Bennett. See Dawsey v.
Olin Corp., 782 F.2d 1254, 1264 (5th Cir.1986).
Such an error, however, does not automatically warrant
reversal. Under Rule 103(a), appellate courts should reverse on
the basis of erroneous evidentiary rulings only if a party's
substantial rights are affected. See Munn v. Algee, 924 F.2d 568,
573 (5th Cir.1991). Moreover, the party asserting error based on
erroneous rulings bears the burden of proving that the error was
harmful. E.g., Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177
(5th Cir.1990). The plaintiff has failed to meet this burden.
When Dr. Bennett declined to recognize the materials as
authoritative, the plaintiff made no attempt to confront Dr.
Bennett with specific passages in the publications and made no
6 offer of proof as to which portions of the publications conflicted
with Dr. Bennett's testimony. Appellant therefore has not carried
his burden of demonstrating that the error was harmful.
B. THE NEWHAVEN HOUSE RECORDS
The plaintiff complains next that the district court erred in
allowing Carroll's Newhaven House records into evidence. In 1985,
Mr. Carroll was admitted to the Newhaven House for treatment for
drug and alcohol abuse. Carroll's Newhaven House records contain
references to Carroll's smoking, drinking, drug use, lustful sexual
behavior, and marital infidelity. The plaintiff argues that the
records should have been excluded as they were not relevant and
were highly prejudicial.
The district court did not err in admitting the Newhaven House
records. First, portions of the records were relevant to the
possible causes of Carroll's death; the defendant presented
medical testimony that smoking and drug and alcohol use contributed
to Carroll's severe coronary heart disease. Dr. Bennett testified
that "smoking contributes to coronary artery disease, and in this
case I would have to say it had something to do with [coronary
artery disease]." Dr. Taylor testified that the decedent suffered
from extremely advanced coronary artery disease and that smoking
"most definitely" contributes to coronary artery disease. Several
treating physicians also testified that they had emphatically
instructed Carroll to quit smoking because of his heart condition,
but that Carroll had defied these instructions.
The Newhaven House records were also admissible on the issue
7 of damages.3 Dr. Morgan was entitled to show that Carroll was not
a healthy person and that his intemperance might have resulted in
a reduced life expectancy. See, e.g., Smith v. Southland Corp.,
738 F.Supp. 923, 925-26 (E.D.Pa.1990); Pharr v. Anderson, 436
So.2d 1357 (Miss.1983). Moreover, evidence of marital discord is
probative of the extent of the survivor's noneconomic loss as a
result of the wrongful death. McGowan v. Estate of Wright, 524
So.2d 308, 311 (Miss.1988).4
C. THE PLAINTIFF'S POST-TRIAL MOTIONS
Finally, the plaintiff asserts that the district court erred
in denying his motions for a judgment as a matter of law or, in the
alternative, his motion for a new trial. A careful review of the
record reveals that the jury's verdict is amply supported by the
evidence. See Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th
Cir.1969). The jury apparently accepted the testimony of Dr.
Morgan and his experts over the appellant's evidence. Moreover,
the trial court did not abuse its discretion in denying the
plaintiff's motion for a new trial. See Bunch v. Walter, 673 F.2d
127, 130 n. 4 (5th Cir.1982).
For the foregoing reasons, the judgment of the district court
is
3 The plaintiff did not request an instruction limiting this evidence to the issue of damages. 4 After admitting the Newhaven House records, the district court allowed into evidence the plaintiff's answers to requests for admission based on matters taken from the Newhaven House records. Although the evidence was cumulative, its admission was not so prejudicial as to require reversal.
8 AFFIRMED.