Wilder v. Eberhart

• Court: Court of Appeals for the First Circuit
• Decided: October 8, 1992
• Docket: 92-1274
• Status: Published

Opinion

USCA1 Opinion

October 8, 1992
                                 ____________________

          No. 92-1274

                                  SANDRA G. WILDER,

                                 Plaintiff, Appellee,

                                          v.

                            WARREN F. EBERHART, M.D., AND
                                CONCORD CLINIC, INC.,

                               Defendants, Appellants.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                [Hon. Martin F. Loughlin, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                         Torruella and Stahl, Circuit Judges,
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                             and Hornby,* District Judge.
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                                _____________________

               Robert M. Larsen, with whom William D. Pandolph and Sulloway
               ________________            ___________________     ________
          Hollis & Soden, were on brief for appellants.
          ______________
               John  Pierce  Kalled, with  whom  Douglas  P. Hendrickx  and
               ____________________              _____________________
          Kalled Law Offices, were on brief for appellee.
          __________________

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          *  Of the District of Maine, sitting by designation.

TORRUELLA, Circuit  Judge.  Doctor Warren  F. Eberhart,
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          ("Dr.  Eberhart") appeals  an adverse  judgment rendered  in this

          medical malpractice  action, stemming from  a suit  filed by  his

          former  patient Sandra  Wilder ("Ms.  Wilder").   On  appeal, Dr.

          Eberhart raises the issue of whether the district court committed

          reversible error  in excluding  and/or  limiting rebuttal  expert

          testimony to that which could be  expressed quantifiably in terms

          of "probability."  Because  we agree with Dr. Eberhart,  that the

          district court erred in  limiting his defense expert's testimony,

          we vacate the judgment and remand for a new trial.

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                    On May  21, 1985, Ms.  Wilder, a Vermont  resident, saw

          Dr. Eberhart in his Concord New Hampshire office for consultation

          regarding Ms. Wilder's obesity  and the medical options available

          to  control  her weight  problem.    Following the  consultation,

          Dr. Eberhart determined that  Ms. Wilder  was a  candidate for  a

          vertical banded gastroplasty ("VBG")  or vertical stapling of the

          stomach.   Ms.  Wilder was  admitted to  the Concord  Hospital on

          June 11, 1985, under  the care  of Dr. Eberhart.   The  following

          day, June 12, 1985, Dr. Eberhart performed the VBG on Ms. Wilder.

          The  procedure went  uneventfully  until near  the  end when  Dr.

          Eberhart noticed a 3 to 3.5 centimeter tear in Ms. Wilder's lower

          esophagus.  The  tear was repaired by suturing  the tear and then

          suturing a fold of  the gastric tissue around  the tear site  for

          additional  support     --  a   procedure  known   as  a   Nissen

          fundoplication.   Following the operation, Ms. Wilder was sent to

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the recovery room.

                    On  the  following day,  June  13,  1985, Dr.  Eberhart

          determined  that there was still leakage  at the lower esophagus.

          He  operated  again that  same day  and  discovered two  tears in

          Ms. Wilder's lower  esophagus.   The  tears  were repaired.    On

          June 20, 1985, Dr. Eberhart  decided to operate again when  an X-

          ray  revealed that the lower esophagus and upper stomach were not

          healing properly.   During the operation, it was  discovered that

          the  lower esophagus  and upper  stomach were  no longer  viable.

          Thus Dr. Eberhart removed  that dead tissue  and sewed the  upper

          side of the  stomach closed.   The remainder  of the stomach  was

          reconnected  to  the  esophagus.    Eventually,  Ms.  Wilder  was

          transferred  to the Dartmouth-Hitchcock Medical Center, where she

          remained hospitalized for 101 days until her  release in November

          of 1985.

                    Ms.  Wilder filed  this  diversity suit  in the  United

          States District Court  for the District of New  Hampshire against

          Dr. Eberhart and the Concord Clinic alleging amongst other things

          negligence on behalf of Dr. Eberhart in mobilizing the  esophagus

          during surgery, causing her recurring  esophageal injury.  A jury

          awarded Ms. Wilder $685,000 in damages.

                                      The Trial
                                      The Trial
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                                 I. Expert Testimony
                                 I. Expert Testimony
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                    Dr. Saul Frank  Weinstein ("Dr. Weinstein"), a  general

          surgeon from  Philadelphia,  testified via  video  deposition  as

          plaintiff's expert.   Dr.  Weinstein categorically ruled  out any

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possibility that instrumentation could  have caused the injury to

          Ms.   Wilder's  esophagus.     Further,   he  concluded   without

          reservation  that the  sole  cause of  the esophageal  injury was

          mobilization  of the  esophagus by  Dr. Eberhart  during  the VBG

          procedure.  

On  the fourth day of trial, three days after the video

          deposition of  Dr. Weinstein  was presented, the  defendants were

          prepared  to  introduce  their  expert witnesses,  Dr.  David  J.

          Sugarbaker ("Dr. Sugarbaker"), Assistant  Professor of Surgery at

          Harvard Medical  School and Chief of Thoracic  Surgery at Brigham

          and Women's  Hospital, and  Dr. Edward  Mason ("Dr.  Mason"), the

          developer  of the VBG technique.   Both were  prepared to testify

          that other  "possible" causes of the  esophageal injury1 existed.

          Just  moments  before  Dr. Sugarbaker's  testimony,  Ms. Wilder's

          counsel  filed a Second Motion  in Limine seeking  to exclude any

          opinion  testimony  by  defendants'  experts that  could  not  be

          expressed in  terms of "probability" as  distinguished from "mere

          possibility."

                    Ms. Wilder's counsel argued that by presenting evidence

          of  particular  possible  causes  of the  injury,  defendant  was

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          1  Defendants' experts were to testify  as to each possible cause
          of  Ms. Wilder's  esophageal tear.   Moreover,  the experts  were
          going  to   rank  the  possibilities  in   order  of  likelihood,
          reflecting  the most  likely causes.   Out  of this  ranking, the
          defendants' experts  would conclude that the most likely cause of
          Ms.  Wilder's injury  was  the passage  and  manipulation by  the
          anesthesiologist  of certain instruments  -- the Nasogastric tube
          or  the Maloney  dilator  -- through  or  in the  esophagus,  and
          correspondingly, that the least likely of the possible causes was
          mobilization of the esophagus by Dr. Eberhart.   

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raising an affirmative  defense which shifted  the burden to  Dr.

          Eberhart to prove that another  cause, other than manipulation of

          the  esophagus during  surgery,  was more  probably than  not the

          cause of the tears to the esophagus.  Defense counsel argued that

          it was entitled to put on testimonial evidence to the effect that

          no one,  including Ms. Wilder's expert, Dr.  Weinstein, should be

          able to say more probably than not the cause of the tears  to the

          esophagus  was manipulation  or  mobilization  of the  esophagus.

          Defense counsel  also argued that  the burden of  proof regarding

          causation did not shift to the defense, and further, that defense

          experts were entitled to  testify as to other possible  causes of

          the esophagus tears in rebuttal of the claims made by plaintiff's

          witnesses.  

                                  STANDARD OF REVIEW
                                  STANDARD OF REVIEW
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                    Generally, the decision whether  or not to admit expert

          testimony  is a matter within  the sound discretion  of the trial

          judge.  Int'l Adhesive Coating Co., Inc. v. Bolton Emerson Int'l,
                  ________________________________    ____________________

          851  F.2d  540, 544  (1st Cir.  1988)  (citing Lynch  v. Merrell-
                                                         _____     ________

          National Laboratories, 830 F.2d 1190, 1196-97 (1st Cir. 1987)); 3
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          J. Weinstein &  M. Berger, Weinstein's Evidence   703[1], at 703-
                                     ____________________

          04  (1987)).  The trial  judge's decisions will  not be disturbed

          absent a clear abuse of that discretion  or an error of law.  Id.
                                                                        __

          (citing  DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1st
                   _______    _____________________

          Cir. 1988)).  We  find that the trial judge committed clear error

          in prohibiting  defendant's experts  from testifying as  to other

          possible  causes in  rebuttal of  Dr. Weinstein's  testimony, and

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thus we vacate and remand the case for a new trial.

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                    Plaintiff's Second Motion  in Limine  cited Emerson  v.
                                                                _______

          Twin State Gas and Electric Co.,  174 A. 779 (N.H. 1934), for the
          _______________________________

          proposition  that  "the  opinion  testimony  of  a  physician  is

          admissible if stated within  reasonable medical probability."  In

          granting  plaintiff's  Second  Motion  in  Limine  to  limit  the

          testimony  of Drs. Sugarbaker  and Mason, the  trial judge agreed

          with the  defendants that the burden of  proof did not shift, yet

          he cited Bentley v. Adams, 128 A.2d 202 (N.H. 1956)  and Brann v.
                   _______    _____                                _____

          Exeter Clinic, Inc., 498 A.2d 334 (N.H. 1985), concluding that to
          ___________________

          admit  testimony of  possibilities  would result  in  "reversible

          error."  (Tr. Vol. 4 p. 52).  This effectively shifted the burden

          somewhat  to  the defendant,  because he  now  had to  prove more

          probably than  not, that another cause, not manipulation, was the

          cause of Ms. Wilder's injury.   Besides finding that  these cases

          stand for other principles inapplicable to the facts presented by

          this  case,2 our  review of applicable  case law leads  us to but

          one conclusion; that the  trial court committed a clear  error of

          law in excluding defendants' expert rebuttal testimony.

                    It is  well settled under  New Hampshire  law that  the

          burden   of  proof  with  respect   to  causation  in  a  medical
                              
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          2    These cases  generally refer  to  the plaintiff's  burden of
          proof; that the plaintiff must prove his case within a reasonable
          degree of  medical certainty.  They  are silent as to  whether or
          not a defendant in a medical malpractice action or any negligence
          action   may  present   "possibility"  evidence   when  rebutting
          plaintiff's "probability or certainty" evidence.

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malpractice   case  rests   and  remains   with  the   plaintiff.

          Pillsbury-Flood v. Portsmouth Hospital, 512 A.2d 1126, 1129 (N.H.
          _______________    ___________________

          1986).  Moreover, proximate  causation between negligence and the

          injury complained  of  in  a medical  malpractice  case  must  be

          established by  expert testimony.   Martin v.  Wentworth-Douglass
                                              ______     __________________

          Hospital, 536 A.2d 174, 176 (N.H.  1987).  On the other hand, the
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          defendant need not disprove  causation.  Rather, he  must produce

          credible  evidence   which  tends  to  discredit   or  rebut  the

          plaintiff's evidence.   Tzimas v. Coiffures By  Michael, 606 A.2d
                                  ______    _____________________

          1082,  1084  (N.H. 1992).   As  the  New Hampshire  Supreme Court

          recently stated in  Tzimas, the plaintiff in  a negligence action
                              ______

          bears the burden of producing evidence "to prove that it is  more

          likely  than not  that [plaintiff's]  injury was"  caused  by the

          defendant's  negligence.  Tzimas,  606 A.2d  at 1084.   Defendant
                                    ______

          need not prove another  cause, he only has to  convince the trier

          of fact  that the alleged negligence  was not the legal  cause of

          the injury.  Id.  In proving such a case, a defendant may produce
                       ___

          other "possible" causes  of the plaintiff's injury.   These other

          possible  causes  need  not  be  proved  with  certainty  or more

          probably  than not.   To fashion such  a rule would  unduly tie a

          defendant's hands in rebutting a plaintiff's case, where as here,

          plaintiff's  expert  testifies that  no  other  cause could  have

          caused plaintiff's  injury.   The  burden  would then  shift  and

          defendant would then bear  the burden of positively proving  that

          another  specific  cause,  not  the  negligence   established  by

          plaintiff's expert, caused  the injury.  Certainly, this  is much

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more than what  should be required of a  defendant in rebutting a

          plaintiff's evidence.

                    Were  we to  accept  plaintiff's argument  that once  a

          plaintiff puts on a prima facie case, a defendant cannot rebut it

          without  proving another  cause,  the resulting  inequities would

          abound.   For example if  ninety-nine out of  one hundred medical

          experts  agreed that there were four equally possible causes of a

          certain injury,  A, B, C  and D,  and plaintiff produces  the one

          expert  who conclusively states that  A was the  certain cause of

          his  injury, defendant  would  be precluded  from presenting  the

          testimony of  any of the  other ninety-nine experts,  unless they

          would  testify conclusively  that B,  C,  or D  was the  cause of

          injury.   Even  if all  of defendant's  experts were  prepared to

          testify that any of  the possible causes A, B, C or D, could have

          equally  caused plaintiff's  injury,  so long  as  none would  be

          prepared  to  state that  one particular  cause, other  than that

          professed by plaintiff more  probably than not caused plaintiff's

          injury,  then defendant's experts would not be able to testify at

          all as  to causation.    We think  that such  a  result does  not

          reflect  the state of the  law in New  Hampshire, and furthermore

          would be manifestly unjust and unduly burdensome on defendants.

                    Under the circumstances of  this case, Dr. Eberhart was

          prejudiced  by the granting of  the Second Motion  in Limine, and

          this prejudice constituted reversible  error.  Thus, the judgment

          in favor of plaintiff is vacated and remanded for a new trial.

                    Vacated and remanded.
                    Vacated and remanded.
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