
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1288                               ALBA FERNANDEZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                       CORPORACION INSULAR DE SEGUROS, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Raymond L. Acosta, Senior U.S. District Judge]                                          __________________________                                                                                      ____________________                                 Cyr, Circuit Judge,                                      _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                                                                      ____________________             Kevin  G. Little,  with whom Law  Offices of  David Efron  was on             ________________             ____________________________        brief for appellants.             Carlos A. Del Valle Cruz for appellees GIC, et al.             ________________________             Alfonso Miranda  Cardenas, with  whom Pedro J.  Cordova, Jose  A.             _________________________             _________________  ________        Miranda Daleccio, Jose E. O'Neil Font, Carmen M. Vivas Pietri and Jose        ________________  ___________________  ______________________     ____        M.  Torres Morales  were on  brief for  appellee Dr.  Ricardo Martinez        __________________        Cortinez.                                                                                      ____________________                                    March 21, 1996                                                                                      ____________________                    CYR, Circuit Judge.   Family members filed this medical                    CYR, Circuit Judge.                         _____________          malpractice action in federal  district court following the death          of  Hiram Fernandez, and a  jury ultimately found  for the health          care defendants.   On appeal, plaintiffs  challenge several trial          court rulings,  including  the denial  of  their motion  for  new          trial.  We affirm the district court judgment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    On November 4, 1991, Hiram  Fernandez was taken to  the          emergency room  of Federico  Trilla Hospital in  Carolina, Puerto          Rico, after awakening  with chest pains,  severe leg cramps,  and          vomiting.   The 64-year-old  Fernandez informed Dr.  Pedro Rivera          Bermudez  ("Dr. Rivera") that the chest pain had stopped after he          vomited,  but  the severe  leg pain  had  not abated.   Fernandez          failed to tell  Dr. Rivera that he was taking medication for both          asthma and  hypertension.  Since  Fernandez did  not complain  of          recurring chest pain, and his vital statistics were within normal          or borderline  range, Dr. Rivera tentatively  diagnosed a pinched          nerve  but  nonetheless  ordered an  electrocardiogram  (EKG),  a          urinalysis, and an x-ray  of the lumbosacral region and  the left          leg.  All tests were negative.                    A  few hours  later,  Dr. Rivera  was  relieved in  the          emergency room by Dr.  Ricardo Martinez Cortinez ("Dr. Martinez")          whose examination  confirmed that Fernandez was  in stable condi-          tion, with no complaints of chest pain.  As a blood test showed a          slightly  elevated  white blood  count,  Dr.  Martinez ordered  a                                          2          second urinalysis,  as well  as a chest  x-ray, to  rule out  any          urinary or  pulmonary infection which  might have been  caused by          the vomiting.  The chest x-ray coincidently revealed that Fernan-          dez  had a dilated aorta, which Dr. Martinez attributed to normal          borderline hypertension  in a  patient of Fernandez'  age, rather          than  an  emergent  symptom  of aortal  dissection,  a  condition          usually accompanied by excruciating  and unrelenting chest  pain,          fainting  spells, profuse  sweating, and  tachycardia.   Like Dr.          Rivera, Dr. Martinez diagnosed a pinched nerve.  Shortly thereaf-          ter Dr. Martinez referred  Fernandez to a neuropathic specialist,          and discharged him.                     The next  day, when  Fernandez was unable  to recognize          family  members,  he was  taken  to his  personal  physician, Dr.          Abelardo Vargas, who performed a physical examination and another          EKG (also negative), and ordered an upper gastrointestinal series          to  determine whether there was a hiatal  hernia.   The next day,          on  his way to undergo these tests, Fernandez collapsed and died.          An autopsy  revealed the cause of  death as a  dissected aorta, a          condition treatable with surgery in more than 90% of cases.                    The  decedent's  spouse,  children,  and  grandchildren          filed  a  medical  malpractice  suit in  federal  district  court          pursuant  to 28  U.S.C.    1332 (diversity  jurisdiction) against          Drs. Rivera,  Martinez, and Vargas, and  against various insurers          of  the  Federico  Trilla  Hospital, including  Global  Insurance          Company.    Subsequently, Dr.  Vargas  was dismissed  as  a party          defendant.                                            3                    At trial,  Dr. William T. Brown,  a Miami-based cardiac          specialist, provided expert testimony  in behalf of plaintiffs on          the  applicable duty of care.  Drs. Rivera and Martinez testified          in  their  own  defense,  but presented  no  independent  medical          testimony.  After the jury returned a verdict for all defendants,          plaintiffs unsuccessfully  filed a motion for  new trial pursuant          to Federal Rule of Civil Procedure 59, then brought this appeal.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Appellants challenge  four trial court rulings.  First,          they focus  on the denial  of their request  for rebuttal  to the          closing argument  made  by the  defense.   Although  trial  court          rulings on the conduct, timing, and ordering of closing arguments          are  reviewed only for abuse of discretion, see Bonilla v. Yamaha                                                      ___ _______    ______          Motors Corp., 955  F.2d 150, 155 (1st Cir. 1992); see also United          ____________                                      ___ ____ ______          States v. Wood, 982 F.2d 1, 4  (1st Cir. 1992), appellants insist          ______    ____          that civil-action plaintiffs  have an absolute right to rebut the                                                ________          closing argument  of  the defense.   See  Martin v.  Chesebrough-                                               ___  ______     ____________          Pond's, Inc., 614 F.2d  498 (5th Cir. 1980) (noting  that "[n]or-          ____________          mally the  party with the burden  of proof has the  right to open          and  close," but  holding that  a  particular codefendant  had no                                                        ___________          right to  rebuttal as against  another codefendant where  the two          had asserted mutual cross-claims).                         ______                    Appellants  are mistaken.    The Martin  court did  not                                                     ______          describe  a  civil-action  plaintiff's  "right"  to  rebuttal  as          absolute,  but merely  reconfirmed  that the  decision to  permit                                          4          rebuttal is  a procedural  matter  which rests  within the  sound          discretion  of the trial judge, id. at  501, and rarely (if ever)                                          ___          provides fertile  ground for appeal.   See Lancaster  v. Collins,                                                 ___ _________     _______          115 U.S. 222,  225 (1885);  Montwood Corp. v.  Hot Springs  Theme                                      ______________     __________________          Park, 766 F.2d 359, 364 (8th Cir. 1985); Moreau v. Oppenheim, 663          ____                                     ______    _________          F.2d  1300, 1311  (5th Cir.  1981), cert.  denied, 458  U.S. 1107                                              _____  ______          (1982); Commercial Iron & Metal Co. v. Bache Halsey Stuart, Inc.,                  ___________________________    _________________________          581 F.2d  246, 249 (10th Cir.  1978), cert. denied, 440  U.S. 914                                                _____ ______          (1979).                      Appellants  further  argue that  rebuttal was  vital to          counteract the  "inflammatory"  statements made  in  argument  by          defense  counsel,  who  portrayed, as  inexplicable,  plaintiffs'          voluntary dismissal of  their claims against Dr. Vargas.  Defense          counsel  argued to the jury that Dr. Vargas, the decedent's long-          time personal physician,  was the  one most likely  to have  been          negligent  since he  was the  last to  treat Fernandez,  and more          familiar  with  his medical  history.    Defense counsel  further          argued that  Dr. Vargas,  like the defendant-physicians,  had not          suspected  that the  Fernandez  symptoms indicated  an  incipient          aortal dissection but rather a  hiatal hernia.  Appellants there-          fore  contend that  they  were entitled  to  remind the  jury  in          rebuttal that:  (1)  the defendants had the right to  implead Dr.          Vargas if they  believed he was the only  negligent party and the          sole  proximate cause of Fernandez' death, and (2) Dr. Vargas had          not  treated Fernandez  in a  hospital; thus,  unlike defendants,          could not as readily have obtained a chest x-ray.                                            5                      As plaintiffs failed to challenge the statements made          by  defense counsel in closing argument, we review only for plain          error.   See Johnson  v. National Sea Prods.,  Ltd., 35 F.3d 626,                   ___ _______     __________________________          631 (1st  Cir. 1994).   The  statements  made by  the defense  in          closing were  in  no sense  inflammatory, but  rather a  measured          response to earlier observations by plaintiffs' counsel that "Dr.          Vargas [is not] responsible  for anything here simply  because he          did not have the x-rays that  these defendants had the benefit of          having because he was not in a position of having a full clinical          picture."    Indeed,  plaintiffs  not only  invited  the  defense          response they now claim gave rise to  a vital need for rebuttal,1          but their  invitation was itself  a sufficient "reminder"  to the          jury that plaintiffs had adduced evidence that Dr. Vargas did not          treat Fernandez in a hospital  setting where x-rays were  readily          obtainable.   Thus, the district court ruling was well within its          sound discretion.                      In  addition,  though Fed.  R.  Civ.  P. 14(a)  permits                                                                    _______          defendants to implead a joint tortfeasor, see also Reyes-Lopez v.                                                    ___ ____ ___________          Misener Marine  Constr. Co., 854  F.2d 529,  535 n. 23  (1st Cir.          ___________________________          1988) (citing  to Puerto Rico case  law allowing joint-tortfeasor          contribution), Rule 14 is not mandatory.  Appellants do not cite,          nor have we found, any authority for  the proposition that a jury          must be permitted to draw an adverse inference from a defendant's          decision  to forego a Rule  14 impleader.   We therefore conclude                                        ____________________               1In fact,  defense counsel expressly noted  in closing argu-          ment:  "This is the same Dr.  Abelardo Vargas and I refer to this          because brother counsel did refer to it [in his closing]."                                          6          that there was no plain error.                    Second,  appellants  claim  that  it was  an  abuse  of          discretion to  refuse their timely  request to instruct  the jury          that defendants could have impleaded Dr. Vargas.  For the reasons          discussed above,  we find no abuse  of discretion.  See  Makuc v.                                                              ___  _____          American  Honda Motor Co., 835 F.2d  389, 393 n.1 (1st Cir. 1987)          _________________________          (noting that proponent  must cite to  some legal authority  which          would support its proposed jury instruction).                    Third, appellants  contend that over-repetition  of the          district court's unexceptionable jury instruction     that plain-          tiffs must establish  all elements of their  negligence claims             constituted reversible error because it exaggerated the burden of          proof in the minds  of the jury.  See United  States v. Assi, 748                                            ___ ______________    ____          F.2d  62, 66  (2d Cir.  1984).   Similar reversible  error arose,          plaintiffs say, from the  district court's over-repetition of its          "error in judgment"  instruction, viz., that  a physician is  not                                            ____          liable under Puerto Rico law for a faulty diagnosis or failure to          treat if  there existed "a reasonable or educated doubt as to the          [appropriate]  medical  course  to  [have]  follow[ed]."2    Once          again, we must disagree.                     As appellants  failed to object to the burden-of-proof          instructions  before the jury retired  to deliberate, see Fed. R.                                                                ___          Civ. P.  51,  we review  for  plain error.    See Kerr-Selgas  v.                                                        ___ ___________                                        ____________________               2Appellants  also argue that no "error-in-judgment" instruc-          tion was  appropriate because defendants failed  to adduce expert          medical testimony to support a jury finding that "a reasonable or          educated doubt" existed.  But see infra pp. 8-10.                                     ___ ___ _____                                          7          American Airlines,  Inc., 69  F.3d  1205, 1213  (1st Cir.  1995).          ________________________          Even though there may be a threshold beyond which further repeti-          tion of an otherwise proper jury instruction creates an unaccept-          able risk that the  jury will be misled, see  Davet v. Maccarone,                                                   ___  _____    _________          973 F.2d 22, 26 (1st Cir.  1992), appellants do not approach such          a showing by citing three brief references to the burden of proof          in the eleven-page jury charge.                      Similarly, though plaintiffs asserted a contemporaneous          objection to the "multiple" error-in-judgment instructions, there          was no  error.  A correct understanding  of the error-in-judgment          principle, the  seminal legal concept  defining the duty  of care          incumbent upon  physicians under Puerto  Rico medical malpractice          law, was vital  to a  proper jury verdict.   Moreover, the  trial          court's  error-in-judgment  instructions,  individually   and  in          combination, were neither suggestive nor prejudicial.                    Finally, appellants claim that the district court erred          in denying  their motion for new  trial. See Fed. R.  Civ. P. 59.                                                   ___          Plaintiffs'  independent expert, Dr.  Brown, testified  that Drs.          Rivera and  Martinez were negligent in failing  to record Fernan-          dez'  past medical history on the hospital charts; and in failing          to diagnose the  aortal dissection  on November 4,  based on  the          complaints of earlier  chest pain, and the chest x-ray disclosing          aortal dilation.    Appellants argue  that the  jury verdict  was          against the weight of the evidence  because the duty of care in a          malpractice  action can  only  be proven  through expert  medical          testimony;  their expert,  Dr.  Brown, was  the only  independent                                                          ____                                          8          medical expert to testify at trial; and the self-serving,  biased          testimony by the defendant-physicians themselves concerning their          own duties of care was inherently untrustworthy.                                           9                      A Rule  59 ruling,  denying  a motion  for new  trial          based on  an alleged insufficiency  of evidence, is  reviewed for          abuse of discretion.   See Lama v. Borras, 16  F.3d 473, 477 (1st                                 ___ ____    ______          Cir.  1994).  A new trial should  be granted only if the verdict,          though rationally based on the evidence, "was  so clearly against          the weight of the evidence as to amount to a manifest miscarriage          of  justice."   Id.  But  where there is  substantial evidence to                          ___          support the verdict,  it is "'only in a very  unusual case'" that          denial of a Rule 59 motion  will be ruled an abuse of discretion.          Wagenmann v. Adams, 829  F.2d 196, 200 (1st Cir.  1987) (citation          _________    _____          omitted).  This is not such a case.                     At  trial, plaintiffs had to establish:   (1) the basic          norms of knowledge and medical care applicable to general practi-          tioners or  specialists;   (2) that the  defendant-physicians did          not  meet these basic norms in their treatment of Fernandez;  and          (3) a causal relation between the  defendants' acts or omissions,          and  Fernandez' death.  See Rolon-Alvarado v. Municipality of San                                  ___ ______________    ___________________          Juan, 1 F.3d 74, 77 n.2  (1st Cir. 1993).  Although jurors rarely          ____          are  able to  determine the applicable  standard of  medical care          without the  benefit of expert  testimony, under Puerto  Rico law          "there exists  always a presumption that  the treating physicians                                  ___________          have observed a reasonable degree of care . . . in the process of          giving medical attention and  treatment.  [And] [p]laintiff bears          the  burden of refuting this  presumption."  Id.  at 78 (emphasis                                                       __          added).  Thus, appellants' premise    that malpractice defendants          must  invariably introduce  independent  expert testimony  on the                                          10          applicable duty of care    is flawed.  Although  defendant-physi-          cians often do adduce independent  expert testimony on the appli-          cable standard of medical care, the jury's implicit  rejection of          Dr.  Brown's  testimony in  this  case was  itself  sufficient to          support  a  verdict  for  defendants because  of  the  rebuttable          presumption of due care indulged under Puerto Rico law, see id.                                                                    ___ ___                    The  jury  was  not  compelled to  credit  Dr.  Brown's          testimony.  "While not allowed to speculate, the factfinder is of          course  free to  find some  experts more  credible than  others."          Lama, 16 F.3d at  478.  On cross-examination, Dr.  Brown admitted          ____          that he was not able  to read or speak Spanish fluently,  that he          had not  been provided initially with  certified English transla-          tions of the  hospital and medical records relating to Fernandez,          and that until  shortly before  trial he had  relied on  informal          translations    whose accuracy was seriously disputed at trial             prepared by his  secretary and plaintiffs'  counsel.3  Given  the          infirmities in the only expert testimony presented by plaintiffs,          there was no abuse of discretion in denying a new trial.4                                         ____________________               3For example, the hospital records stated that Fernandez had          vomited before  arriving at the  hospital, and that  this "ended"          his  chest pain, while the informal translations relied on by Dr.          Brown  merely indicated that the  chest pain had  "improved."  In          addition,  presented with a  medical treatise  describing typical          symptoms  of an  impending  aortal dissection,  Dr. Brown's  only          response was  the unexplicated assertion  that he simply  did not          care what the medical treatise provided.                 4As concerns the contention by Dr. Brown that the defendant-          physicians were negligent in failing to record Fernandez' medical          history  on the medical charts,  the jury was  entitled to credit          the defendant-physicians'  testimony that they left  the "medical          history" section  of the hospital record  blank because Fernandez          informed them  (inaccurately) that he had  no significant medical                                          11                    The  district court  judgment is  affirmed.   Costs are                    The  district court  judgment is  affirmed.   Costs are                    __________________________________________    _________          awarded to appellees.          awarded to appellees.          ____________________                                        ____________________          history.  See supra p. 2.                    ___ _____                                          12
