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Sellers v. Baisier

June 9, 1986


Appeal from the United States District court for the Central District of Illinois. No. 82-3200-Barbara B. Crabb, Judge.

Author: Bauer

Before BAUER, and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

BAUER, Circuit Judge.

A jury found in favor of the defendant in this medical malpractice action for an injury plaintiff sustained while being treated after an automobile accident. Plaintiff contends on appeal that the trial judge erred in denying his motion for judgment n.o.v. or a new trial and improperly refused to give certain jury instructions. We affirm the trial court's rulings.


On July 9, 1980, Wayne D. Sellers was seriously injured in a one car accident and was taken by ambulance to St. John's Hospital in Springfield, Illinois. Upon his arrival at the hospital, Sellers was assigned to a "trauma team" headed by a general surgeon. The general surgeon summoned Dr. Walter P. Baisier, an orthopedic surgeon, because Sellers had suffered, among numerous other injuries, a fracture dislocation of his left shoulder and a comminuted fracture of his right femur. Dr. Baisier performed surgery on Sellers's femur, utilizing a procedure referred to as intramedullary nailing. This procedure involves placing a rod or pin known as Kuntscher nail into the medullar cavity of the bone. The Kuntscher nail extended the entire length of the femur.

After surgery, which appeared to Dr. Baisier to have been successful, Sellers's right leg began to thrash about spontaneously due to a condition known as decerebrate rigidity. When Dr. Baisier became aware of this, he placed the leg in traction and a splint to prevent it from moving. Sellers's leg, however, was permanently shortened some three and one-half inches due to the thrashing about. Sellers brought this action against Dr. Baisier for medical malpractice, alleging that Dr. Baisier's failure to anticipate that Sellers's leg would thrash about after surgery and apply traction to immobilize the leg did not comport with the proper standard of medical car.


Sellers first contends that the trial court erred in denying his motion for judgment n.o.v. or a new trial because the evidence of medical malpractice was "overwhelming and uncontroverted." we first note that in this diversity case Illinois law governs both the medical malpractice claim and our standard of review of the trial judge's denial of the motion for judgment n.o.v. See Dickerson v. Amax, Inc., 739 F.2d 270, 272 (7th Cir. 1984). Under Illinois law, a plaintiff in a medical malpractice case "must establish the standards of care against which the defendant doctor's conduct is measured" through expert testimony. Borowski v. Von Solbrig, 60 Ill. 2d 418, 328 N.E.2d 301, 304-05 (1975). Whether the doctor deviated from the proper standard of care is a question of fact to be decided by the jury. Id. at 305.

At trial, Sellers presented Dr. Richard Gardner of Ft. Meyers, Florida as his expert witness. Sellers proffered Dr. Gardner's deposition testimony that Dr. Baisier deviated from the proper standard of care in treating Sellers's leg. Dr. Baisier presented Dr. Earl Holt of St. Louis, Missouri as his expert, and Dr. Holt testified that Dr. Baisier's medical treatment of Sellers was acceptable. Three other doctors testified as to their opinions of the medical care Sellers received: Dr. John A. Gragnini, who later treated Sellers in a St. Louis hospital; Dr. Walter Barringer, who testified on behalf of Dr. Choon Bong Choi, a codefendant in this case; and Dr. Baisier himself.

None of the doctors disputed that the shortening of Sellers's leg was caused by it thrashing about after surgery. Contrary to Sellers's assertion an appeal, however, the testimony of these doctors is conflicting, not uncontroverted, as to whether Dr. Baisier was negligent in failing to immediately immobilize the leg. Nor is the testimony in favor of Sellers overwhelming; only Dr. Gardner testified that Dr. Baisier was negligent, and he did not personally examine Sellers or the hospital records, but based his opinion on a nurse's summary of the hospital records. The parties dispute the import of Dr. Barringer's testimony, and the testimony of the other doctors favored Dr. Baisier. The jury evaluated all of this testimony and found in favor of Dr. Baisier.

Under Illinois law, a trial court may grant a motion for judgment n.o.v. only "in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that no contrary verdict based on the evidence could ever stand." Szarat v. City of Chicago, 117 Ill. App. 3d 809, 454 N.E.2d 68, 71, 73 Ill. Dec. 324 (1983). We find that the trial judge properly applied this standard in denying Sellers's motion for judgment n.o.v. Sellers's argument on appeal construes only the evidence most favorable to his case and ignores the expert testimony that Dr. Baisier's medical care of Sellers was acceptable. Dr. Baisier's medical expert was well-qualified and provided the jury a sufficient basis upon which to base it verdict.

We further find that the trial judge properly denied Sellers's motion for a new trial. A trial court has broad discretion in ruling on motions for a new trial and will be reversed only when exceptional circumstances show a clear abuse of discretion. General Foam Fabricators v. Tenneco Chemicals, Inc., 695 F.2d 281, 288 (7th Cir. 1982). We find nothing exceptional in the fact that the jury weighed conflicting evidence and ...

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