Klonoski v. Mahlab, et al. CV-95-153-M 07/28/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Klonoski, Administrator of the Estate of Jolanta Klonoski, Plaintiff
v. Civil No. 95-153-M
Beniamin Mahlab, M.D., Mary Hitchcock Memorial Hospital, Inc., and Hitchcock Clinic, Inc., Defendants
O R D E R
On May 9, 1993, shortly after giving birth to a healthy baby
girl at Mary Hitchcock Memorial Hospital, Jolanta Klonoski died.
The certificate of death records the cause of death as ruptured
AVM. No autopsy was performed. Subseguently, plaintiff brought
this medical malpractice action against defendants, alleging that
Mrs. Klonoski in fact died as a result of complications
proximately caused by defendants' failure to properly diagnose
and treat preeclampsia (i.e., a preeclamptic hypertensive bleed).
Defendants conceded that some of the obstetric care provided to
Mrs. Klonoski fell below acceptable medical standards, but denied
that her death was proximately caused by any such malpractice.
Instead, they asserted that her death was unforeseeably caused by
an unrelated rupture of a pre-existing AVM. Approximately four years after Mrs. Klonoski's death, a jury
returned a verdict in favor of defendants. Following the jury's
verdict, plaintiff arranged for the exhumation of Mrs. Klonoski's
body, so that an autopsy might be performed and potentially
relevant evidence pertaining to the cause of her death gathered.
Plaintiff now asserts that the results of that autopsy constitute
newly discovered evidence under Fed. R. Civ. P. 60(b) (2), thereby
warranting the new trial sought by the estate. Defendants
object. The parties have fully briefed this issue and, on July
18, 1997, the court held a hearing, at which counsel presented
oral argument and made additional evidentiary proffers.
The parties agree that the four part standard plaintiff must
meet in order to obtain relief under Rule 60(b)(2) is as
described in Raymond v. Raymond Corp., 938 F.2d 1518, 1527 (1st
Cir. 1991). As discussed more fully on the record, the court
determined that plaintiff failed to carry his burden,
particularly with regard to the second and forth elements of that
standard.
A. Previously Undiscoverable Through Due Diligence.
Plaintiff has not demonstrated that the evidence obtained
from the autopsy "could not by due diligence have been discovered
2 earlier by the movant." Id. The court fully accepts plaintiff's
religious beliefs as sincerely held, and that his initial
decision not to authorize an autopsy was based on his honest
belief that no autopsy was needed in light of defendants'
attribution of death to a ruptured AVM. But, certainly after
suit was brought and after defendants made their position and
their supporting expert testimony clear, plaintiff was on notice
that an autopsy could yield relevant (perhaps even dispositive)
evidence. That potential evidence, a clinical study of
decedent's brain tissue, was under plaintiff's exclusive
control, available to (and discoverable by) him if he chose to
avail himself of it, as amply demonstrated by his ability to
obtain it following the jury's verdict. While moral,
philosophical, or religious reasons counseled plaintiff against
having an autopsy performed prior to trial, other factors also
weighed in the decision, and that pretrial decision was
necessarily a conscious one. See Plaintiff's Motion for New
Trial (document no. 147), at 10 ("During discovery. Dr. Klonoski
did not believe (a) that exhuming Jolanta Klonoski's body and
conducting an autopsy at that time would produce any useable
evidence, or (b) that any such drastic and emotionally trying
step was necessary under the circumstances. He assumed that, as
a matter of scientific reality, it was simply too late. He
3 believed that he had assembled ample evidence as to the actual
cause of the fatal hemorrhage, i.e., improperly managed
preeclampsia.") (emphasis supplied).
At this post-trial juncture, however, the only fact that has
changed (other than that relevant evidence obtained from the
autopsy is degraded to some degree) is that the jury has rendered
a verdict in favor of defendants.
Plaintiff seems to assert that, in addition to believing
that he did not need any additional evidence to prove his case,
he failed to fully appreciate the fact that an autopsy, if
performed prior to trial, might be capable of yielding relevant
evidence. It is, however, important to distinguish between the
discovery of new evidence and the recognition, following trial,
of the potential significance of evidence which, through the
exercise of due diligence, might have been uncovered earlier. As
the Court of Appeals for the First Circuit has observed:
[Rule 60(b)(2)] reguires newly discovered evidence, as opposed to evidence that is merely new. In order for evidence to be newly discovered, the party seeking a new trial must be unaware of the existence of the evidence before or during the trial. In this case, the appellant himself admits that he was aware, before trial, of the [witness's] identity and knowledge concerning the accident. In preparing for trial, however, the appellant decided that the cost of
4 tracking down the [witness] in New York City outweighed the potential benefit of the [witness's] live testimony. As such, the [witness's] testimony is not newly discovered. Rather, it is evidence that was not presented to the district court because of the appellant's conscious decision on trial strategy. Such evidence is not grounds for a new trial.
Parrilla-Lopez v. United States, 841 F.2d 16, 19 (1st Cir. 1988) .
Plaintiff's decision not to obtain an autopsy prior to trial
was both a tactical one and one informed by his moral and
religious beliefs as well. Because hindsight is exceedingly fine
and foresight exceedingly dull, criticism of what at the time was
undoubtedly a reasonable and sound judgment under all of the
circumstances would be unfair. Still, it was in fact plaintiff's
decision to make, and that decision is not now subject to change
simply because the verdict was unexpected and, in hindsight, a
different decision might have been better. Based on the record
as presented, and in light of the governing law in this circuit,
the court is constrained to conclude that the autopsy evidence
could, through the exercise of due diligence, have been
discovered and obtained by plaintiff prior to trial.
B. Effect of the Evidence on a New Trial.
In any event, plaintiff has also failed to demonstrate that
"the evidence is of such nature that it would probably change the
5 result if a new trial [were] granted." Raymond, 938 F.2d at
1527. Because the recently examined tissue samples had degraded
substantially since the time of Mrs. Klonoski's death, the
medical examiner was unable to rule out at least two theories
advanced by defendants which were consistent with the jury's
verdict, i.e.
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Klonoski v. Mahlab, et al. CV-95-153-M 07/28/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Klonoski, Administrator of the Estate of Jolanta Klonoski, Plaintiff
v. Civil No. 95-153-M
Beniamin Mahlab, M.D., Mary Hitchcock Memorial Hospital, Inc., and Hitchcock Clinic, Inc., Defendants
O R D E R
On May 9, 1993, shortly after giving birth to a healthy baby
girl at Mary Hitchcock Memorial Hospital, Jolanta Klonoski died.
The certificate of death records the cause of death as ruptured
AVM. No autopsy was performed. Subseguently, plaintiff brought
this medical malpractice action against defendants, alleging that
Mrs. Klonoski in fact died as a result of complications
proximately caused by defendants' failure to properly diagnose
and treat preeclampsia (i.e., a preeclamptic hypertensive bleed).
Defendants conceded that some of the obstetric care provided to
Mrs. Klonoski fell below acceptable medical standards, but denied
that her death was proximately caused by any such malpractice.
Instead, they asserted that her death was unforeseeably caused by
an unrelated rupture of a pre-existing AVM. Approximately four years after Mrs. Klonoski's death, a jury
returned a verdict in favor of defendants. Following the jury's
verdict, plaintiff arranged for the exhumation of Mrs. Klonoski's
body, so that an autopsy might be performed and potentially
relevant evidence pertaining to the cause of her death gathered.
Plaintiff now asserts that the results of that autopsy constitute
newly discovered evidence under Fed. R. Civ. P. 60(b) (2), thereby
warranting the new trial sought by the estate. Defendants
object. The parties have fully briefed this issue and, on July
18, 1997, the court held a hearing, at which counsel presented
oral argument and made additional evidentiary proffers.
The parties agree that the four part standard plaintiff must
meet in order to obtain relief under Rule 60(b)(2) is as
described in Raymond v. Raymond Corp., 938 F.2d 1518, 1527 (1st
Cir. 1991). As discussed more fully on the record, the court
determined that plaintiff failed to carry his burden,
particularly with regard to the second and forth elements of that
standard.
A. Previously Undiscoverable Through Due Diligence.
Plaintiff has not demonstrated that the evidence obtained
from the autopsy "could not by due diligence have been discovered
2 earlier by the movant." Id. The court fully accepts plaintiff's
religious beliefs as sincerely held, and that his initial
decision not to authorize an autopsy was based on his honest
belief that no autopsy was needed in light of defendants'
attribution of death to a ruptured AVM. But, certainly after
suit was brought and after defendants made their position and
their supporting expert testimony clear, plaintiff was on notice
that an autopsy could yield relevant (perhaps even dispositive)
evidence. That potential evidence, a clinical study of
decedent's brain tissue, was under plaintiff's exclusive
control, available to (and discoverable by) him if he chose to
avail himself of it, as amply demonstrated by his ability to
obtain it following the jury's verdict. While moral,
philosophical, or religious reasons counseled plaintiff against
having an autopsy performed prior to trial, other factors also
weighed in the decision, and that pretrial decision was
necessarily a conscious one. See Plaintiff's Motion for New
Trial (document no. 147), at 10 ("During discovery. Dr. Klonoski
did not believe (a) that exhuming Jolanta Klonoski's body and
conducting an autopsy at that time would produce any useable
evidence, or (b) that any such drastic and emotionally trying
step was necessary under the circumstances. He assumed that, as
a matter of scientific reality, it was simply too late. He
3 believed that he had assembled ample evidence as to the actual
cause of the fatal hemorrhage, i.e., improperly managed
preeclampsia.") (emphasis supplied).
At this post-trial juncture, however, the only fact that has
changed (other than that relevant evidence obtained from the
autopsy is degraded to some degree) is that the jury has rendered
a verdict in favor of defendants.
Plaintiff seems to assert that, in addition to believing
that he did not need any additional evidence to prove his case,
he failed to fully appreciate the fact that an autopsy, if
performed prior to trial, might be capable of yielding relevant
evidence. It is, however, important to distinguish between the
discovery of new evidence and the recognition, following trial,
of the potential significance of evidence which, through the
exercise of due diligence, might have been uncovered earlier. As
the Court of Appeals for the First Circuit has observed:
[Rule 60(b)(2)] reguires newly discovered evidence, as opposed to evidence that is merely new. In order for evidence to be newly discovered, the party seeking a new trial must be unaware of the existence of the evidence before or during the trial. In this case, the appellant himself admits that he was aware, before trial, of the [witness's] identity and knowledge concerning the accident. In preparing for trial, however, the appellant decided that the cost of
4 tracking down the [witness] in New York City outweighed the potential benefit of the [witness's] live testimony. As such, the [witness's] testimony is not newly discovered. Rather, it is evidence that was not presented to the district court because of the appellant's conscious decision on trial strategy. Such evidence is not grounds for a new trial.
Parrilla-Lopez v. United States, 841 F.2d 16, 19 (1st Cir. 1988) .
Plaintiff's decision not to obtain an autopsy prior to trial
was both a tactical one and one informed by his moral and
religious beliefs as well. Because hindsight is exceedingly fine
and foresight exceedingly dull, criticism of what at the time was
undoubtedly a reasonable and sound judgment under all of the
circumstances would be unfair. Still, it was in fact plaintiff's
decision to make, and that decision is not now subject to change
simply because the verdict was unexpected and, in hindsight, a
different decision might have been better. Based on the record
as presented, and in light of the governing law in this circuit,
the court is constrained to conclude that the autopsy evidence
could, through the exercise of due diligence, have been
discovered and obtained by plaintiff prior to trial.
B. Effect of the Evidence on a New Trial.
In any event, plaintiff has also failed to demonstrate that
"the evidence is of such nature that it would probably change the
5 result if a new trial [were] granted." Raymond, 938 F.2d at
1527. Because the recently examined tissue samples had degraded
substantially since the time of Mrs. Klonoski's death, the
medical examiner was unable to rule out at least two theories
advanced by defendants which were consistent with the jury's
verdict, i.e. that: (1) Mrs. Klonoski died from the rupture of a
relatively small AVM, entirely unrelated to her preeclampsia; or
(2) a small AVM ruptured and bled to a greater degree than it
otherwise would have (had her preeclampsia been properly
diagnosed and treated in a more timely fashion) , but even absent
any malpractice the ruptured AVM still would have bled to a
degree sufficient to be fatal.
The autopsy evidence obtained after the verdict is not
sufficiently definitive or reliable to likely lead to a different
verdict. It would be somewhat helpful to plaintiff, but it would
still leave the critical liability guestion in essentially the
same posture: dependent in large measure upon which of the
egually highly gualified opposing medical experts should be
credited. In other words, that a "large" AVM was not detected in
the post-verdict autopsy does not make the defense theory of the
case significantly less probable so that a new jury would be
6 likely to reach a different conclusion based on that "new"
evidence.
Conclusion
For the foregoing reasons, and for the reasons expressed on
the record of the July 18, 1997, hearing, plaintiff's motion for
a new trial (document no. 147) is denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
July 28, 1997
cc: Joan A. Lukey, Esg. James P. Bassett, Esg.