Lis v. Robert Packer Hospital

579 F.2d 819, 25 Fed. R. Serv. 2d 1108
CourtCourt of Appeals for the Third Circuit
DecidedJune 23, 1978
DocketNo. 77-2114
StatusPublished
Cited by34 cases

This text of 579 F.2d 819 (Lis v. Robert Packer Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lis v. Robert Packer Hospital, 579 F.2d 819, 25 Fed. R. Serv. 2d 1108 (3d Cir. 1978).

Opinion

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The major questions presented in this appeal from an adverse jury verdict in a medical malpractice diversity case concern practices routinely followed by the district judge in his conduct of trials. While we hold that these practices, which relate to cross examination and bifurcation of trial, [821]*821offend the Federal Rules of Evidence and Civil Procedure and by this opinion explicitly discourage their future use, we do not find reversible error in this case.

I.

Jason Lis was born to appellants Debbie and Edwin Lis on May 18, 1974, at the defendant Robert Packer Hospital in Sayre, Pennsylvania. Dr. John Pacanowski, the infant’s pediatrician, is an employee of the defendant Guthrie Clinic, a professional corporation of some 65 physicians who have privileges at the hospital.

On September 19,1974, at the age of four months, Jason was taken to the hospital’s emergency room with breathing difficulties following an episode of possible aspiration of food. He was examined by the defendant Wayne H. Allen, M.D., also a Guthrie employee, who was serving as the hospital’s duty physician. Blood work performed at the time of admission revealed an exceptionally high blood sugar level of 367; a normal reading would have been in the 100 — 120 range. Dr. Allen made a tentative diagnosis of diabetes mellitus with diabetic acidosis and injected 15 units of regular insulin.

Dr. Allen’s diagnosis was subsequently proven erroneous; Jason Lis is not diabetic. Shortly after the incorrect diagnosis and insulin injection, Jason began undergoing serious seizures which continued throughout his hospitalization. The child now suffers from severe brain damage and mental retardation, and probably from blindness. A claim was filed against the hospital, the clinic and Dr. Allen.

The trial court, as was its stated general practice, ordered that the case first go to the jury on the issue of negligence. No evidence of damages was permitted. The defense presented nine expert medical witnesses testifying that the seizures experienced by the child and the subsequent serious permanent malfunctions were not the result of the insulin injection but the result of a pre-existing congenital brain disorder. The jury found Dr. Allen to have been negligent, but that his negligence was not the proximate cause of Jason’s condition.

Appellants contend that the court erred (1) in permitting cross examination of Dr. Pacanowski, one of their own witnesses, beyond the scope of direct examination; (2) in bifurcating the liability and damages aspects of the trial; (3) in excluding certain evidence; and (4) in interrupting the summation of plaintiffs’ attorney to allow defense counsel time to consider whether to move for a mistrial on the basis of improper remarks in plaintiffs’ closing argument. We will discuss only the first two assignments of error.1

II.

Appellants presented Dr. Pacanowski’s testimony to describe their son’s normal development during early pediatric care, his condition at the onset of seizure activity, and other details of Jason’s stay at the hospital. Early in the cross examination, in response to an objection by plaintiffs’ counsel that the cross examination was exceeding the scope of direct examination, the court stated:

I did rule, and this will be good for the whole trial — we will permit inquiry in this case into matters beyond the scope of the direct on cross examination as if it were on direct, and we will also permit that for purposes of credibility, too.

Appendix at A-61. Shortly thereafter the court added:

I have the right to permit inquiry beyond the scope of the direct, and I do it in every case unless it causes confusion. I don’t see that it is causing any confusion here, and I have the right to control how the evidence is going to be presented. I think myself it is absurd to call a witness two or three times in a trial, call him on one side and then call him by the other side. I think the thing to do is get all the [822]*822evidence when he is on the stand. You are not bound by his testimony as far as that goes. Nobody is.

Id. at A-62. It is not disputed that the cross examination exceeded the scope of the direct examination, albeit in this portion of the examination defense counsel were precluded from using leading questions.

A.

Appellants allege that the trial judge’s statement, “I have the right to permit inquiry beyond the scope of direct examination and I do it in every case unless it causes confusion”, runs a collision course with Federal Rule of Evidence 611(b):

(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

The rule as adopted by Congress changed the rule submitted to it by the Supreme Court. As submitted, Rule 611(b) provided:

A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.2

The House of Representatives adopted the present language, the Committee on the Judiciary offering this rationale:

The Committee amended this provision to return to the rule which prevails in the federal courts and thirty-nine State jurisdictions. As amended, the Rule is in the text of the 1969 Advisory Committee draft. It limits cross-examination to credibility and to matters testified to on direct examination, unless the judge permits more, in which event the cross-examiner must proceed as if on direct examination. This traditional rule facilitates orderly presentation by each party at trial. Further, in light of existing discovery procedures, there appears to be no need to abandon the traditional rule.3

The Senate Committee stated similar views:

The House narrowed the Rule to the more traditional practice of limiting cross-examination to the subject matter of direct examination (and credibility), but with discretion in the judge to permit inquiry into additional matters in situations where that would aid in the development of the evidence or otherwise facilitate the conduct of the trial.
The committee agrees with the House amendment. Although there are good arguments in support of broad cross-examination from prospectives of developing all relevant evidence, we believe the factors of insuring an orderly and predictable development of the evidence weigh in favor of the narrower rule, especially when discretion is given to the trial judge to permit inquiry into additional matters. The committee expressly approves this discretion and believes it will permit sufficient flexibility allowing a broader scope of cross-examination whenever appropriate.4

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Bluebook (online)
579 F.2d 819, 25 Fed. R. Serv. 2d 1108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lis-v-robert-packer-hospital-ca3-1978.