Henderson v. George Washington University

449 F.3d 127, 371 U.S. App. D.C. 173, 2006 WL 1506716
Court of Appeals for the D.C. Circuit·Decided June 2, 2006·No. No. 05-7054·Published·Cited by 4 cases

Opinion

EDWARDS, Senior Circuit Judge.

After a seven-day trial, a jux-y found that defendant-appellee Michael Salem, M.D. (“Dr.Salem”) did not violate the standard of care dux'ing his pex’fox’inaxxce of Roux-en-Y gastric bypass surgery on plaintiff-appellant Sharon Boone Henderson. Appellant now seeks to overturn the jury’s verdict on the ground that the District [175]*175Court improperly excluded evidence that supported her claim that Dr. Salem made a critical mistake during surgery. Appellant claims further that Dr. Salem’s surgical error both breached the applicable standard of care and caused her not to be able to achieve anticipated weight loss. The District Court found that the disputed evidence — a post-surgery report relating to another patient of Dr. Salem’s, along with related deposition testimony — had limited probative value that was significantly outweighed by the danger of unfair prejudice and the potential to confuse the jury.

We find that the District Court greatly overestimated the potential for prejudice and confusion, and seriously underestimated the probative value of the disputed post-surgery report in light of appellant’s need to impeach and rebut the case presented by appellees as well as to rehabilitate her expert witness. Therefore, we vacate the jury verdict, reverse the judgment on the verdict, and remand the case for a new trial.

I. Background

A. Henderson’s Surgery

Sharon Boone Henderson weighed 367 pounds by the time she was 34 years old. After attempting and failing to lose weight by resort to numerous diets, Henderson decided to undergo Roux-en-Y gastric bypass surgery. In the Roux-en-Y procedure, a small “new” stomach or “pouch” is surgically formed from the top portion of the existing stomach by using several rows of surgical staples to separate the pouch from the remainder of the stomach. After the pouch is formed, the small intestine is severed a few inches below the bottom of the “original” stomach and then attached to the pouch, thereby permitting food to bypass the main stomach chamber.

The new connection formed between the pouch and the small intestine is called an “anastomosis.” The anastomosis and truncated stomach pouch are designed to reduce food intake by creating a sense of fullness. Roux-en-Y surgery also restricts the ability of the digestive tract to absorb nutrients from the food being consumed.

Henderson’s Roux-en-Y surgery was performed at George Washington University Medical Center (“GW Medical Center”) by Dr. Salem on December 12, 1997. Within the first six weeks of her surgery, Henderson lost 60 to 65 pounds. Sometime during the following spring or summer, however, Henderson began to notice that the small portions of food that were supposed to satisfy her appetite did not do so. Despite feeling as if she was “starving (herjself,” Trial Tr. (1/24/05) at 377, Henderson nevertheless stuck to her small portion regimen through the remainder of 1998. By the end of 1999, her weight had dropped to 250 pounds.

In early 2000, however, Henderson suddenly gained 25 pounds. As a result, she attempted to contact Dr. Salem to discuss her situation. When she called GW Medical Center, however, she was informed that he was no longer employed there. Instead, she was referred to Dr. Paul Lin.

Henderson met with Dr. Lin in April 2000, at which time he suggested that perhaps Henderson’s stomach pouch had expanded. He noted that it might be possible to remedy this problem with a second procedure. Henderson agreed to the follow-up surgery, which Dr. Lin performed in October 2000. During the procedure, Dr. Lin reduced the size of Henderson’s gastric pouch from 60 to 10 cubic centimeters, although he did not reduce the diameter of her anastomosis.

In 2003, Henderson had an endoscopy done to assess the effects of her second [176]*176surgery. Dr. Ahmed Hegab, the gastroenterologist who performed the endoscopy, informed Henderson that, in addition to having acid reflux disease, he believed that her anastomosis was too large for effective weight loss. He suggested the possibility of further surgery. At the time of trial, Henderson had yet to pursue that course.

B. Pre-Trial Activities

Henderson, along with two co-plaintiffs, Helen Jones and Janice Grant, filed suit against Dr. Salem and George Washington University on February 1, 2002. Jones and Grant were also former patients of Dr. Salem’s, undergoing their own Roux-en-Y surgeries on April 28, 1998 and February 3, 1999, respectively. The three plaintiffs together alleged that Dr. Salem used improper surgical techniques, resulting in stomach pouches and anastomoses that were too large to permit them to achieve their desired weight loss.

In response to the complaint, appellees filed, inter alia, a motion to sever the three charges. On January 19, 2004, the District Court found that, “[although each trial will involve some overlap of expert testimony, the facts and circumstances of each plaintiffs claim vary so substantially” that the requirements of Federal Rule of Civil Procedure 20 — governing permissive joinder of parties — were not met. Grant v. Salem, CA No. 02-181, Mem. Op. at 2 (D.D.C. Jan. 19, 2004), Joint Appendix (“J.A.”) 45. Thus, the court ruled that “the three claims in this case are misjoined and shall be severed going forward.” Id.

By the time the motion to sever was decided, Dr. Salem had already been deposed. The parties anticipated the court’s severance ruling, however, and thus agreed to segregate the deposition questions to the circumstances of each plaintiff wherever possible. Nevertheless, one overlapping line of questioning involved a post-surgery report prepared by Dr. Paul Steinwald, the surgical resident who worked with Dr. Salem on the Helen Jones surgery (“Jones Report”). The Jones Report stated, inter alia, that Dr. Salem had created a three-centimeter anastomosis during the surgery — a size that, if measured internally, is generally considered to violate the standard of care. During his deposition, Dr. Salem conceded that he “consistently]” made anastomoses the same size during each surgery. Salem Dep. at 39, J.A. 376. He acknowledged that the three-centimeter characterization in the Jones Report was “accurate,” although he qualified his answer by suggesting that the report described the external anastomosis measurement; Dr. Salem speculated that the internal measurement was likely “between a centimeter or more.” Id. at 46, J.A. 383.

C. The Trial

Recognizing the potential importance of the three-centimeter description in the Jones Report, Henderson pressed from the beginning of trial to have Dr. Salem’s deposition with attached exhibits, including the Jones Report, included in the record. Appellees sought to exclude the Jones Report and the relevant deposition testimony of Dr. Salem, arguing that those pieces of evidence would unfairly bootstrap the alleged negligence relevant only to the Helen Jones litigation into the case at bar. Appellees also contended that appellant was attempting to omit deposition passages where Dr. Salem explained that he made the external diameters of his anastomoses three centimeters, while the internal diameters were generally one centimeter.

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Henderson v. George Washington University, 449 F.3d 127, 371 U.S. App. D.C. 173, 2006 WL 1506716 (D.C. Cir. 2006).

449 F.3d 127 (Henderson v. George Washington University) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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