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Griffin v. Foley

September 4, 2008


Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 05 C 15-Richard L. Young, Judge.

The opinion of the court was delivered by: Manion, Circuit Judge.


Before FLAUM, MANION, and EVANS, Circuit Judges.

As a result of a car accident, Lisa Griffin had to undergo back surgery, which Dr. Robert Foley performed. After complications arose from the surgery, Lisa and her husband Michael filed this diversity suit against Foley in the district court alleging medical malpractice. The case went to trial, and a jury returned a verdict in favor of Foley. The Griffins appeal, raising several challenges to the trial court's procedural handling of their case. We affirm.


On June 11, 1994, while traveling through Georgia, the Griffins' minivan was struck in the rear by a pickup truck.*fn1 As a result of the collision, Lisa Griffin ("Lisa") sustained severe injuries, including a burst fracture at the L1 vertebra. Lisa was flown to Evansville, Indiana, where, on June 14, 1994, orthopedic surgeon Dr. Robert Foley performed both a laminectomy and a spinal fusion on her back.*fn2 During the operation, Foley used an internal fixation device consisting of rods and hooks to keep Lisa's back in place. He then combined the bone he took from Lisa's lamina with coralline hydroxyapatite, a bone graft substitute made of coral reef that goes by the trade name Pro Osteon. Although the Food and Drug Administration had approved Pro Osteon as a bone graft substitute to fill holes in bone, the FDA had not specifically approved it for use as a bone graft extender in spinal fusions. Foley placed the mixture at the fracture site as a bone graft and completed the surgery.

Foley continued to see Lisa in follow-up visits after the surgery. While at trial the parties disputed the relative success of the surgery, it was undisputed that, in October 1994, x-rays of Lisa's back showed increased kyphosis*fn3 in her spine, a recognized complication of spinal fusion surgery. The kyphosis made the rods and hooks from the fixation device conspicuous underneath her skin, so on May 16, 1995, Foley performed a second surgery on Lisa to remove the internal fixation device. However, a later x-ray taken in March 1996 showed further kyphosis in Lisa's spine. At this point, Foley recommended additional surgery-the parties disputed the nature of the surgery recommended-which Lisa declined. Later on, the failure of the back fusion to achieve a union (another recognized complication of fusion surgery) became evident. When Foley ought to have been aware of that fact and how he should have reacted were vigorously con-tested at trial. As a result of her back, Lisa is now permanently disabled and unable to work.

The Griffins initiated this medical malpractice suit against Foley on June 11, 1998. Pursuant to Indiana law,*fn4 they first filed a proposed complaint with the Indiana Department of Insurance alleging that Foley was negligent because, among other things, he used Pro Osteon as a bone graft substitute in Lisa's spine surgery when it was not FDA-approved for that use and had no therapeutic benefit as a bone graft substitute in spinal fusion surgery. The Department of Insurance assembled a medical review panel to review the case. After the case*fn5 languished before the panel for over six years, the panel issued a one-sentence opinion: "The evidence does not support the conclusion that the defendant failed to meet the applicable standard of care as charged in the complaint."*fn6

The Griffins then took their case to federal court in January 2005. Trial was scheduled for October 10, 2006, and the case management plan approved by both parties and the district court gave the Griffins until April 18, 2006, and Foley 60 days thereafter, to submit the expert witness reports required by Federal Rule of Civil Procedure 26. On April 18, 2006, the Griffins filed Rule 26*fn7 reports for their experts: Dr. Lawrence Weis, Dr. Robert Lieberson, Dr. Timothy Lalk, and Professor John Navin. After the Griffins filed their expert witness reports, Foley noticed Navin's deposition for April 28, 2006. Three days prior to the deposition, the Griffins' counsel served notice that he would be videotaping Navin's deposition for purposes of trial.*fn8 In response, Foley filed a motion for a protective order seeking to preserve the opportunity to cross-examine Navin for purposes of trial at a later date. In that motion, Foley asserted that the Griffins' counsel had refused to produce Navin at a later date to allow the defense to cross-examine him for purposes of trial. The magistrate judge assigned to the case granted Foley's motion, stating in its order that Navin must appear for his previously noticed discovery deposition and that, thereafter, the parties were free to examine or cross-examine Navin at a later date for purposes of eliciting trial testimony. The order also stated that Foley was entitled to cross-examine the Griffins' other experts prior to trial after taking their discovery depositions. In a later order expounding on its reasons for granting the motion, the magistrate judge stated that it was "reasonable to allow some period of time between discovery of all the information used by an expert and the preparation of cross-examination for trial."*fn9

Foley then proceeded to take depositions of the Griffins' retained experts for discovery purposes. The Griffins' counsel provided notice that the evidentiary depositions of Navin, Weis, and Lalk would immediately follow their discovery depositions. When Foley's counsel was finished questioning in each of those three depositions, the Griffins' counsel conducted a direct examination of the expert for use at trial. At a later date, Foley conducted a follow-up deposition with each of those three experts for purposes of evidentiary cross-examination before trial. At the beginning of Weis's follow-up deposition for cross-examination, the Griffins' counsel asked additional questions of Weis intended to supplement his direct examination, to which Foley's counsel objected because the Griffins had already passed the witness.

On June 19, 2006, the defense submitted its Rule 26 expert disclosures, but did not include any Rule 26 reports from the members of the medical review panel. The Griffins then filed a motion for sanctions under Fed. R. Civ. P. 37 based, in part, on the absence of those Rule 26 reports. The magistrate judge concluded in an August 16, 2006, telephone conference that no sanctions were warranted and that there was good cause to extend the dead-line for expert disclosures, though Foley would have to file Rule 26 reports from the members of the medical review panel he wished to call at trial. The magistrate judge stated that it did not expect those reports to be completed until "about September 15 or so." Aware that allowing the disclosures so close to the October 10 trial date had the potential to prejudice the Griffins, the magistrate judge was quick to remind counsel for the Griffins that the trial date could be continued if necessary. In a subsequent written order, the magistrate judge ordered the defendant to produce disclosures for the medical review panel "forthwith" while, at the same time, allowing for the possibility that the trial date would have to be moved "a short time" should the disclosures not be immediately forthcoming.

While the motion for sanctions was pending, the Griffins filed a motion on August 9 to bar testimony by any defense expert that the use of coral reef as a bone substitute met the standard of care. On August 25, the same day the magistrate judge entered his written order on the Griffins' motion for sanctions, Foley requested an extension of time to respond to the Griffins' August 9 motion to bar expert testimony. Foley stated in that request that he could not respond to that motion without first submitting the Rule 26 expert reports for the medical review panelists. While Foley admitted that he could respond to the motion as it related to Dr. Rick Sasso, his retained expert, he argued that to do so before the completion of the medical review panelists' expert reports would lead to duplicative briefing. The court granted Foley an extension "up to and including the date the Court mandates Rule 26 reports be submitted for the medical review panel members" to respond to the Griffins' August 9 motion. Foley filed his response on September 27, but the response did not encompass the members of the medical review panel. Foley chose not to file Rule 26 reports from members of the medical review panel and did not call them at trial.

On the same day Foley responded to the August 9 motion, he also filed several motions in limine, including motions that sought to limit the expert testimony of the Griffins' retained experts. The Griffins moved to strike Foley's motions to limit expert testimony, but on October 4, 2006, the district court denied that motion and proceeded to decide all the pending motions in limine, granting some and denying others. The next day, the Griffins filed a motion to continue the trial, which the district court granted. The trial did not begin until April 6, 2007.

Prior to trial, the Griffins' counsel provided notice of their intent to utilize the "discovery" portions, that is, the portions where Foley's attorney had questioned the Grif-fins' experts, of the first depositions of Navin, Lalk, and Weis at trial. Foley objected to the Griffins' using that testimony at trial, and the court ruled that those "discovery" portions of the first depositions were not admissible at trial. The court limited the Griffins to the "evidentiary" portions of the first depositions, that is, to the latter portion of those depositions where their attorney had questioned their experts. The district court also ruled that the questions the Griffins' counsel asked Weis at the beginning of the follow-up deposition were not admissible. At trial, the "evidentiary" portions of those three witnesses' first depositions were played to the jury, followed by the second follow-up depositions for cross-examination. Other than Lieberson, the plaintiffs' experts did not otherwise testify at trial.

At the close of the evidence, the district court held an informal instructions conference. Both parties tendered proposed instructions. When trial resumed the next day, the district court stated on the record that the parties had agreed on a packet of final instructions. The district court then provided the parties an opportunity to make a record with respect to those instructions. The Griffins' counsel objected to an instruction on the statute of limitations. The district court denied that objection and asked the Griffins' counsel if any further record needed to be made on the instructions or verdict form. The Griffins' counsel replied, "Nothing on that, Your Honor."

Prior to closing argument, the court read to the jury-without objection-the jury instructions that had been agreed upon by the parties.*fn10 Instructions 20, 21, and 22 of the agreed instructions were very similar to the respective Indiana Pattern Jury Instructions, except that they used the phrase "orthopaedic surgeon" where the pattern instructions used "health care provider." During closing argument, Foley's attorney repeated Instruction 22, which reads: "In deciding whether an orthopaedic surgeon exercised reasonable care and skill in the treatment of a patient, you must consider only the expert testimony of qualified orthopaedic surgeons who are members of the orthopaedic surgeon's profession." He then stated: "Dr. Lieberson is not an orthopedic surgeon[ ], ladies and gentlemen." Counsel for the Griffins immediately objected and a bench conference ensued. At the conference, the district court denied the objection, but allowed the Grif-fins' attorney to argue during rebuttal that the court recognized Lieberson (who was a neurosurgeon) as an expert. After the bench conference concluded ...

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