Johnson v. United States

780 F.2d 902, 19 Fed. R. Serv. 1434
Court of Appeals for the Eleventh Circuit·Decided January 21, 1986·No. Nos. 84-5308, 84-5347·Published·Cited by 52 cases

Opinions

RONEY, Circuit Judge:

In this medical malpractice action brought under the Federal Torts Claims Act (FTCA), the United States appeals from a $2 million judgment awarded to the plaintiffs, parents of an infant who died of iron poisoning. Plaintiffs cross-appeal the denial of attorney’s fees. The Government challenges a variety of evidentiary rulings, certain “outside research” of the trial judge, numerous factual findings, the taxing of costs, and the amount of damages. We vacate and remand because a Government expert witness was erroneously precluded from testifying and because the verdict is excessive and appears to be based on considerations inappropriate in a tort claims case. The denial of attorney’s fees is affirmed because this Court has recently decided that attorney’s fees may not be awarded against the United States in a case of this kind.

Early on the morning of November 2, 1980, plaintiffs’ twenty-one-month-old son, Carlos, consumed a large quantity of iron tablets. Carlos became ill and was taken by his parents to Homestead Air Force Base Hospital (Homestead) where he was treated for acute iron intoxication. At approximately 2:00 p.m. he was transferred to Jackson Memorial Hospital (Jackson Memorial) where he died shortly after midnight.

Many facts in this case were vigorously disputed: the number of pills the child ingested, the time at which he ingested them, the date on which the mother received the pills which would indicate the number of pills left on the date of ingestion, the amount of time that elapsed between the parents’ discovery of the child’s illness and their arrival at Homestead, and the accuracy of a lab slip indicating a “free iron level” of 9170 micrograms per deciliter (mg/dl). These disputed facts bear on the degree of iron toxicity in the child’s system present at various times, whether Carlos’ life might have been saved given proper and timely treatment, and what party, if any, was at fault for not correctly identifying or treating the condition. The trial court concluded that at least ten specific actions by Homestead fell below the standard of care required of that type of medical facility, and that its more than three-hour delay in administering deferoxamine (an iron antidote) and its failure to transfer him to a higher care facility sooner, caused Carlos’ death. The Government contended that Carlos would have died regardless of the treatment that could have been given him.

I. Exclusion of the Expert Witness

The Government contends that the trial court abused its discretion in excluding the testimony of Dr. Albert Rauber, professor of Pediatrics at Emory University Medical School in Atlanta, and director of the Poison Control Center.

When the Government sought to produce Dr. Rauber as its third expert witness, counsel became involved in a vigorous dispute over whether the Government had waived its right to call Dr. Rauber when it allegedly stipulated regarding experts. The trial court was obviously troubled over this dispute and stated that counsel had put the court in a difficult position. At the end of the colloquy, the court indicated that it would exclude Dr. Rauber’s testimony because of the stipulation but then stated that it would also exercise its discretion to limit the number of witnesses under Fed.R. Evid. 403. After that, Government counsel was permitted to proffer Dr. Rauber’s expected testimony.

Our review of the record leads us to the conclusion that the alleged stipulation relied on by plaintiffs was in fact limited to an agreement that each party would allow two experts to be deposed without subpoena. It does not appear that the Government explicitly waived its right to call more [905]*905than two experts at trial, nor did it ever explicitly waive its right to call Dr. Rauber.

Analysis of this issue, therefore, turns on Rule 403. Under Rule 403, relevant evidence may be excluded for considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The power to conduct orderly trials includes the power to exclude or limit expert testimony. United States v. Thevis, 665 F.2d 616, 633-34 (5th Cir. Unit B 1982) (criminal trial); Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir.1980). “Rule 403 does not mean that a court may exclude evidence that will cause delay regardless of its probative value. If the evidence is crucial the judge would abuse his discretion in excluding it.” Weinstein’s Evidence, Para. 403[06] at 403-59-60 (1982).

The propriety of excluding Dr. Rauber’s testimony under Rule 403 turns on whether his testimony would have been cumulative. Two expert witnesses testified at trial for the Government. Dr. James Hillman, Director of Pediatric Emergency Care Center, Tampa General Hospital, and Medical Director of the Tampa Bay Medical Poison Control Center was of the opinion that it would have made no difference whatsoever if Carlos had begun receiving intravenous (I.V.) desferal (an iron antidote) the minute he entered Homestead because it would, even then, not have been possible to bind (neutralize) all the free iron in his blood fast enough to save him. In his opinion the only chance of saving Carlos’ life would have been to begin treatment within twenty minutes of ingestion. Dr. Hillman testified that Homestead did as good a job as they could have, given the facility and the circumstances. Despite seeming to acknowledge that the deferoxamine and the I.V. treatments could have begun somewhat earlier, and the Homestead medical records could have been more complete, he was still of the opinion that this had no impact whatsoever on Carlos’ death. When responding to the court’s questions about dialysis or transfusions as a mode of treatment, Dr. Hillman responded that the problem was that transfusions only provide access to circulating blood while the poison, here iron, is in the tissues and in “many different spaces.” Therefore, although iron might be removed from the blood, there is no corresponding clinical improvement in the patient. Similarly, he believed deferoxamine would have been of limited, if any, help because it only binds one iron tablet every three hours, while the intestines and tissues continue to absorb the iron. When questioned about Carlos’ serum iron level, free iron level, total iron level and binding capacity, Dr. Hillman testified that because Carlos’ iron level was over 9000 mg/dl at 3:00 p.m. by a conservative estimate, it was 25% to 30% what it had been within two to three hours of ingestion. This figure “peaks out” early, within two to three hours of ingestion, then “decays” rapidly. For this reason, Dr. Hill-man surmised that if Carlos’ iron level was 9.000 at three o’clock at least eight hours after ingestion, then it must have been 20.000 or 30,000 at peak value. According to Dr. Hillman, a 1000 mg/dl level is potentially lethal. Dr. Hillman was aware of no child or adult who had survived an iron level in excess of 9,000. He believed Carlos must have ingested “above 40,” pills, and “in the 50’s at least,” to explain the very high iron level so late in the day, that the distribution of pills through the small intestine goes to a long period of ingestion, and that the pills were ingested “very early” in the day.

The second Government expert witness was Dr.

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Johnson v. United States, 780 F.2d 902, 19 Fed. R. Serv. 1434 (11th Cir. 1986).

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