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McGeshick v. Choucair

December 14, 1995






Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 420--James F. Holderman, Judge.

Before POSNER, Chief Judge, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Motion to withdraw the mandate and enlarge the time for filing a petition for rehearing


This case is before the court on the motion of Raymond L. McGeshick, the appellant, for a recall of this court's mandate and the grant of a petition for rehearing. For the reasons set forth in the following opinion, we deny the motion to recall the mandate and dismiss the petition for rehearing as moot.


The underlying appeal, a medical malpractice case within the diversity jurisdiction of the district court, was decided on the merits by this court on November 15, 1993. See McGeshick v. Choucair, 9 F.3d 1229 (7th Cir. 1993). In that decision, we affirmed a jury verdict adverse to Mr. McGeshick and in favor of Dr. Choucair. Mr. McGeshick had claimed that Dr. Choucair was negligent in failing to advise Mr. McGeshick about the possible causes of his myelopathy (a disease of the spinal cord) and the possibility of angiography as a diagnostic measure to exclude one of several possible causes of his condition. Specifically, the district court refused, over objection of Mr. McGeshick's counsel, to give an instruction that placed a duty on Dr. Choucair to make such a disclosure and instead gave a general negligence instruction.

While the appeal was pending before us, the Wisconsin Court of Appeals issued a decision in Martin v. Richards, 500 N.W.2d 691 (Wis. Ct. App. 1993). The day after oral argument in this appeal, this court on its own motion invited the parties' attention to the Martin decision and ordered supplemental briefing on how Martin might have changed the law of informed consent in Wisconsin. Both parties filed supplemental briefs. We considered these submissions. The Supreme Court of Wisconsin subsequently granted review of the Martin case. Martin v. Richards, 505 N.W.2d 137 (Wis. 1993). Yet by the Fall of 1993, it became apparent that there would be a significant delay in the issuance of a decision in Martin by the Supreme Court of Wisconsin. We therefore concluded that we could not estimate when the Supreme Court of Wisconsin would determine whether Martin was correctly decided and that our primary duty was to decide the case before us. Accordingly, our own consideration of the issue completed, we affirmed the judgment on review and declined to accept the holding of Martin because we did not believe that the holding in that case would be adopted by the Supreme Court of Wisconsin. See McGeshick, 9 F.3d at 1232-34.

On May 4, 1995, the Supreme Court of Wisconsin decided Martin. See Martin v. Richards, 531 N.W.2d 70 (Wis. 1995). Contrary to our prediction, it affirmed the state appellate court. Mr. McGeshick now asks that we recall our mandate and further asks that we then reconsider our earlier decision in light of the holding of the Supreme Court of Wisconsin.


It is well settled that, as a general proposition, courts possess inherent power to recall a mandate in exceptional circumstances. Patterson v. Crabb, 904 F.2d 1179, 1180 (7th Cir. 1990). A supervening change in governing law that calls into serious question the correctness of the court's judgment may justify recall of the mandate. United States v. Holland, 1 F.3d 454, 456 (7th Cir. 1993) (Ripple, J., in chambers) (citing Zipfel v. Halliburton Co., 861 F.2d 565 (9th Cir. 1988)). In any such case, the primary counter-vailing consideration is the importance of finality in judicial proceedings. When addressing the need for finality in different but parallel circumstances, the Supreme Court stated:

Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. Baldwin v. Iowa State Traveling Men's Assoc., 283 U.S. 522, 525 (1931).

As the Third Circuit recognized in American Iron & Steel Institute v. EPA, 560 F.2d 589, 592 (3d Cir. 1977), this overarching judicial policy concern is salutary because of the need for party reliance in the finality of judgments and the need to conserve judicial resources for other litigation as yet unresolved.

In determining the appropriate balance between these countervailing factors of correcting a judicial course of action that has proven to have been improvidently chosen and of preserving finality in judicial decision-making, courts have been guided by a variety of considerations. The Supreme Court has confronted the issue on two occasions. In Gondeck v. Pan American World Airways, 382 U.S. 25 (1965), the Court vacated its order denying certiorari and reversed the judgment under review when the plaintiff demonstrated that the Court of Appeals had erred in its interpretation of the applicable standard and that another Court of Appeals subsequently had applied the standard correctly in another case arising out of the same disaster. By contrast, in Weed v. Bilbrey, 400 U.S. 982 (1970), the Supreme Court declined to reopen an earlier disposition. After certiorari had been denied in Weed, the writ was granted in another case and the Court altered the law in a way that also would have benefitted the petitioner in Weed. Although the Court's action might possibly be explained by the unique nature of its discretionary certiorari review, ...

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