                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 05-1173
                                ________________

Dennis F. Smith; Marya Smith,             *
                                          *
             Appellants,                  *
                                          *
      v.                                  *       Appeal from the United States
                                          *       District Court, Eastern District of
Tenet Healthsystem SL, Inc.,              *       Missouri.
doing business as St. Louis               *
University Hospital; Tenet                *
Healthcare Corporation; St. Louis         *
University; Robert E. Burdge,             *
M.D.,                                     *
                                          *
             Appellees.

                                ________________

                           Submitted: November 17, 2005
                               Filed: February 3, 2006
                                ________________

Before MURPHY, BOWMAN and GRUENDER, Circuit Judges.
                      ________________

GRUENDER, Circuit Judge.

      Dennis F. Smith (“Smith”) brought this two-count medical malpractice action
regarding the amputation of his right leg. The district court1 granted partial summary

      1
       The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
judgment and partial judgment as a matter of law in favor of the defendants on count
one. A jury returned a verdict in favor of the defendants on count two. The district
court then denied Smith’s motion for a new trial and taxed Smith for a portion of the
defendants’ costs. Smith raises eight issues on appeal. For the reasons discussed
below, we affirm the judgments and verdict but remand for a reduction of costs taxed
to Smith.

I.    BACKGROUND

       Smith, a 50-year-old former coal miner, has a 30-year history of medical
problems with his right knee. He has undergone more than a dozen surgeries on that
knee. In 1986, Dr. Robert Burdge replaced Smith’s right knee joint with a prosthesis.
Dr. Burdge warned Smith about the possibility of having his leg amputated if his knee
got worse and expressed concern about the effect of Smith’s heavy work as a coal
miner. In 1995, Smith received a total knee replacement by another physician and
began receiving Social Security disability benefits. When he received this prosthesis,
physicians informed him of substantial bone loss in his knee, precluding any future
knee replacements. In 2000, Dr. Burdge performed a bone graft procedure to stabilize
the total-knee prosthesis.

       On January 5, 2001, Dr. Burdge performed a second bone graft procedure at
St. Louis University Hospital because Smith’s tibial plateau had collapsed. A few
days after the surgery, Smith began to develop severe, adverse symptoms around the
surgical site. On January 18, 2001, he went to a scheduled follow-up visit with Dr.
Burdge. Because of Smith’s symptoms, Dr. Burdge admitted Smith to St. Louis
University Hospital and prescribed an antibiotic treatment in case Smith had an
infection. Smith’s condition worsened and Dr. Burdge removed the bone grafts
because he suspected that Smith was experiencing a bone graft rejection. The
symptoms of infection are the same or similar to the symptoms of a bone graft


                                         -2-
rejection. After numerous related hospital stays over the ensuing months and with all
other options seeming futile, Smith consented to have his right leg amputated above
the knee. That procedure was performed on September 20, 2001.

       In 2002, Smith brought this two-count medical malpractice action based on
diversity jurisdiction against Dr. Burdge, Tenet Healthsystem SL, Inc., doing business
as St. Louis University Hospital (“Tenet”), and Dr. Burdge’s employer, St. Louis
University (“SLU”) (collectively, “the defendants”).2 Smith alleged that the
defendants’ negligent treatment caused the amputation of his right leg. Count one
alleged that Tenet and SLU placed Smith in an “unclean hospital room” following his
January 5, 2001, procedure and failed to follow internal policies and federal
regulations regarding infection control (the “infection-control policies”). Count two
alleged that the defendants were liable for Dr. Burdge’s negligent failure to properly
diagnose, treat and monitor Smith’s knee.3 The defendants denied all liability, denied
that Smith developed an infection in his right knee, and suggested that the cumulative
trauma from Smith’s history of knee problems was the sole cause of his amputation.

      The district court granted summary judgment in favor of Tenet and SLU on the
portion of count one concerning the allegation of an unclean hospital room and
judgment as a matter of law in favor of Tenet and SLU on the remainder of count one.


      2
      The district court granted summary judgment to a fourth defendant, Tenet
Healthcare Corporation, after determining that it was not an alter ego of Tenet
Healthsystem SL. Smith does not appeal this judgment.
      3
       In addition to these two counts, Smith’s wife, Marya Smith, brought two
derivative claims for loss of consortium. Being derivative, Mrs. Smith’s claims
follow the fate of her husband’s claims. Therefore, she cannot recover because we
conclude that Dennis Smith has no valid claim for his personal injuries. See
Richardson v. State Highway & Transp. Comm’n, 863 S.W.2d 876, 880 (Mo. banc
1993).
                                         -3-
A jury returned a verdict in favor of the defendants on count two, and the district
court denied Smith’s motion for a new trial and taxed Smith for a portion of the
defendants’ costs. Smith raises eight issues on appeal and renews his request for a
new trial.

II.   DISCUSSION

      A.     Voir Dire

       Smith argues that the district court abused its discretion in disallowing certain
of his questions during voir dire because this limitation prevented an inquiry into
potential juror biases regarding tort reform, medical malpractice and plaintiffs with
preexisting medical conditions. Because Smith contemporaneously failed to object
to the way in which voir dire was conducted and did not request permission to
rephrase his questions, we review this issue for plain error to determine if the
limitation was so prejudicial as to cause a miscarriage of justice. Ratliff v. Schiber
Truck Co., Inc., 150 F.3d 949, 956 (8th Cir. 1998).

      Given the questions asked of the potential jurors by the district court and
Smith’s attorney, we find no error. District courts have broad discretion to determine
the scope of voir dire. Id. at 956. Voir dire is proper provided that there is an
adequate inquiry to determine any juror bias or prejudice. See Nanninga v. Three
Rivers Elec. Coop., 236 F.3d 902, 906-07 (8th Cir. 2000). In this case, the district
court questioned the prospective jurors about experiences involving medical
malpractice. The court also gave each party twenty minutes to supplement the court’s
examination. See Fed. R. Civ. P. 47(a) (explaining that when the court examines
prospective jurors, “the court shall permit the parties or their attorneys to supplement
the examination by such further inquiry as it deems proper”) (emphasis added).



                                          -4-
       Prior to voir dire, the parties submitted proposed questions in writing. The
district court disallowed certain of Smith’s questions because they called for lengthy
responses from individual jurors.4 However, during Smith’s supplementary
examination, Smith’s counsel was permitted to ask questions to individual potential
jurors. The district court even allowed potential jurors to respond to two questions
that Smith’s counsel asked about tort reform and medical malpractice despite the
district court’s instruction before voir dire that Smith’s counsel was not to ask those
questions. Voir dire provided an adequate inquiry to determine any juror bias or
prejudice.

      B.     Admission of Medical, Psychiatric and Social Security Records

       The district court admitted into evidence some of Smith’s medical, psychiatric
and Social Security records over Smith’s objections that these records were irrelevant
and unduly prejudicial. Smith reiterates these arguments on appeal and argues that,
despite a request from Smith, the district court failed to weigh the probative value of
these records against their prejudicial effect. See Fed. R. Evid. 403. The Federal
Rules of Evidence govern the admissibility of evidence in a medical malpractice
action based upon diversity jurisdiction. See Sosna v. Binnington, 321 F.3d 742, 744-
45 (8th Cir. 2003). We review a district court’s rulings on the admissibility of
evidence for a clear and prejudicial abuse of discretion. Id. at 745.

       We cannot say that the district court abused its discretion in determining that
these records were relevant. Evidence is relevant if it merely has “any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Fed.


      4
        For example, Smith submitted the question: “Some people think that lawsuits
are frivolous–what are your thoughts?”
                                          -5-
R. Evid. 401. “The trial judge has broad discretion in determining the relevance of
a given item of evidence.” United States v. Wilson, 787 F.2d 375, 389 (8th Cir.
1986). The defendants’ theory of the case was that Smith’s amputation was caused
by the cumulative trauma of his decades of knee problems. These records
substantiate Smith’s history of knee problems. The non-medical portions of the
records pertained to other issues at trial, such as the extent of Smith’s damages.

       We also cannot say that the district court abused its discretion in determining
that any prejudicial effect of these records did not substantially outweigh their
probative value. See Fed. R. Evid. 403; United States v. Derring, 592 F.2d 1003,
1007 (8th Cir. 1979) (“We do not reweigh the value of the material against its
potential for harm to the defendant, but determine only whether the district judge
abused his discretion in admitting it.”). Generally, the balance of Rule 403 weighing
should be struck in favor of admission. Block v. R.H. Macy & Co., Inc., 712 F.2d
1241, 1244 (8th Cir. 1983). We find nothing in the record to indicate that the district
court abused its discretion in following this general rule.

       Smith argues that the district court abused its discretion because, despite
Smith’s motions and objections, the court did not actually weigh the evidence
pursuant to Rule 403. We presume that the district court weighed this evidence
pursuant to Rule 403 because the district court ruled on motions and objections in
which Smith specifically requested that the court weigh the probative value of the
records against their prejudicial effect. The district court’s mere failure to make a
record of its Rule 403 weighing is not reversible error. See United States v. Price,
617 F.2d 455, 460 (7th Cir. 1979) (holding that a trial judge’s failure to expressly
state reasons in the balancing of probative value and unfair prejudice, although
improper, did not warrant reversal, as the court of appeals would not presume wrong
reasons when correct ones were apparent). The fact that the probative value of these
records outweighs any prejudicial effect is apparent from the record.

                                          -6-
      C.     Jury Instructions

       Smith argues that the district court abused its discretion because it failed to
instruct the jury that the defendants would be liable if the jury found that the
defendants’ negligence was one of multiple causes of Smith’s amputation. In this
diversity case, Missouri law governs the substance of jury instructions while federal
law governs whether the district court abused its discretion in refusing or admitting
jury instructions. Crump v. Versa Prods., Inc., 400 F.3d 1104, 1107 (8th Cir. 2005).
District courts have “wide discretion” in drafting jury instructions. Omega
Healthcare Investors, Inc. v. Lantis Enters., Inc., 256 F.3d 774, 776 (8th Cir. 2001).
“Our review is limited to whether the instructions, viewed on the whole, fairly and
adequately represent the evidence and applicable law in light of the issues presented
to the jury . . . .” Id. (internal quotation omitted).

       The district court did not abuse its wide discretion regarding jury instructions.
In jury instruction number eleven, the district court provided the following instruction
regarding the elements of a medical malpractice claim, including causation:

      Your verdict must be for plaintiff Dennis Smith . . . if you believe:
      First, Dr. Burdge failed to diagnose and treat an infection of Dennis
      Smith’s right knee, and
      Second, that Dr. Burdge was thereby negligent, and
      Third, as a direct result of such negligence Dennis Smith sustained
      damage.

This instruction adequately represents the evidence and is an adequate summary of
Missouri law. See Tompkins v. Kusama, 822 S.W.2d 463, 464 (Mo. Ct. App. 1991)
(“Three elements must be established to make a prima facie case of medical
malpractice: (1) ‘proof that an act or omission of the defendant failed to meet the


                                          -7-
requisite medical standard of care,’ (2) ‘proof that the act or omission was performed
negligently,’ and (3) ‘proof of a causal connection between the act or omission and
the injury sustained by the plaintiff.’”) (internal citation omitted).

       Smith argues that because the defendants offered evidence at trial that Smith’s
preexisting condition was the sole cause of the amputation, the district court was
required to give an instruction that the defendants would be liable even if their
negligence was but one of multiple causes of Smith’s amputation. See Tillman v.
Elrod, 897 S.W.2d 116, 118 (Mo. Ct. App. 1995) (“Where concurrent or successive
negligence combined together results in injury, the injured party may recover
damages of either or both, and neither can use the defense that the prior occurrence
or negligence of the other contributed to the injury.”). Smith tendered a non-Missouri
Approved Instruction (“MAI”) on multiple causation which provided that the
defendants had the burden of proving that Smith’s preexisting knee problems were
the sole cause of the amputation. The district court did not abuse its discretion in
refusing to give that instruction because it misstates Missouri law, under which
defendants do not bear the burden of disproving the elements of a negligence claim.
Birmingham v. Smith, 420 S.W.2d 514, 517 (Mo. 1967).

       Although an explicit instruction on multiple causation might have been
permissible, Smith did not request the applicable instruction, MAI 19.01. See
Missouri Supreme Court Rule 70.02(b) (“Whenever Missouri Approved Instructions
contains an instruction applicable in a particular case . . . such instruction shall be
given to the exclusion of any other instructions on the same subject.”). Because
Smith did not request MAI 19.01 and because the instructions, as given, fairly and
adequately represent the evidence and applicable law in light of the issues presented
to the jury, we see no abuse of discretion.



                                          -8-
      D.     Third Amended Complaint

       Smith argues that the district court abused its discretion in denying his motion
for leave to file a third amended complaint. See Hannah v. City of Overland, Mo.,
795 F.2d 1385, 1392 (8th Cir. 1986) (reviewing for abuse of discretion a ruling on a
motion for leave to amend a complaint). We disagree.

       Smith filed his original complaint on April 9, 2002, and his first amended
complaint on May 10, 2002. The district court’s Case Management Order, issued
October 25, 2002, indicated that all motions to amend pleadings and to join parties
were required to be filed by December 30, 2002. Nevertheless, the court permitted
Smith to file a second amended complaint on January 16, 2003. Nine months later
and six weeks after the amended deadline to complete discovery, on November 13,
2003, Smith filed a motion for leave to file a third amended complaint. That motion
sought to add new claims and to join additional parties regarding an alleged failure
to prescribe physical therapy to Smith after the amputation. The district court denied
this motion, explaining that it was untimely because Smith knew about this physical
therapy issue as early as May 2003 but did not file a motion to amend until almost six
months later.

       The district court did not abuse its discretion in denying Smith leave to file a
third amended complaint. Amendments should be freely granted when justice so
requires, see Fed. R. Civ. P. 15(a), and the district court demonstrated its compliance
with this rule when it permitted Smith to file his second amended complaint after the
deadline for amendments. However, it was not an abuse of discretion to deny Smith’s
motion to file a third amended complaint eleven months after the district court’s
amendment deadline because, for example, the parties would have needed additional
time for discovery regarding the physical therapy issue. See Popp Telecom v. Am.

                                          -9-
Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000) (finding no abuse of discretion in
district court’s denial of a pleading amendment that would have resulted in additional
discovery and delayed the proceedings).

      Smith also argues that the district court should have allowed this amendment
because, after denying the motion, the district court granted a four-month continuance
due to Dr. Burdge’s ailing health. However, the district court’s subsequent grant of
a continuance for a reason wholly unrelated to the substance of the case has no
bearing on whether the district court abused its discretion in its earlier decision to
deny Smith’s untimely request to amend his complaint.

      E.     Exclusion of Evidence Regarding Smith’s Lower Back Problems

       Smith argues that the district court abused its discretion in granting the
defendants’ motions to exclude any reference to or evidence of the lower back
problems Smith suffered after his amputation. In his second amended complaint,
Smith pled as part of his damages that his amputation has required him to place
greater stress on his lower back with the likelihood of sustaining additional disability
to his lower back. We do not need to decide whether the exclusion of evidence
regarding his lower back was an abuse of discretion because any error would be
harmless. Smith has the burden of proving that the inclusion of this evidence would
have produced a different verdict. Mems v. City of St. Paul, 327 F.3d 771, 779 (8th
Cir. 2003). He cannot meet this burden because evidence of his lower back problems
pertains only to the extent of his damages and the jury ruled against him on the issue
of liability. See Kontz v. K-Mart Corp., 712 F.2d 1302, 1304 n.2 (8th Cir. 1983) (per
curiam) (finding that the exclusion of evidence relevant to punitive damages was
harmless where a jury found for the defendant on the question of liability).



                                          -10-
      F.     Judgment as a Matter of Law

       Smith argues that the district court erred in granting judgment as a matter of
law in favor of Tenet and SLU on the portion of count one that alleged that Tenet and
SLU caused Smith’s amputation by failing to comply with infection-control policies.
“We review the grant or denial of judgment as a matter of law de novo.” First Union
Nat’l Bank v. Benham, 423 F.3d 855, 863 (8th Cir. 2005).

       We hold that the district court properly granted judgment as a matter of law
because Smith failed to offer expert medical testimony from which a reasonable juror
could conclude that Tenet’s and SLU’s alleged failure to comply with infection-
control policies caused Smith’s amputation. One of the elements of a medical
malpractice claim is causation. Tompkins v. Kasama, 822 S.W.2d 463, 464 (Mo. Ct.
App. 1991). “When a party suffers a sophisticated injury, which requires surgical
intervention or other highly scientific technique for diagnosis, proof of causation is
not within a lay person’s understanding and expert testimony is required.” Echard
v. Barnes-Jewish Hosp., 98 S.W.3d 558, 566 (Mo. Ct. App. 2002). Therefore, to
prevail on count one, Smith needed to present expert medical testimony to establish
that the failure to comply with infection-control policies caused Smith’s alleged
infection and that Smith’s alleged infection caused Smith’s amputation. His failure
to present such testimony entitled Tenet and SLU to judgment as a matter of law.

       Smith argues that causation on count one can be proven without expert
testimony because hospitals, unlike physicians, are held to only an ordinary care
standard. See, e.g., Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 922 (Mo. banc 1992)
(holding a hospital to an ordinary care standard when a patient died in a fire started
by another patient who was smoking a cigarette and using a flammable cup as an ash
tray); Poluski v. Richardson Transp., 877 S.W.2d 709, 713 (Mo. Ct. App. 1994)

                                         -11-
(holding a hospital to an ordinary care standard when a patient was injured while
being transported to another healthcare facility). However, the cases on which Smith
relies are distinguishable from this case because they involve liability for injuries that
are not related to the provision of medical care, see, e.g., M.W. v. Jewish Hosp. Ass’n
of St. Louis, 637 S.W.2d 74, 76 (Mo. Ct. App. 1982) (“Those cases where conduct
involves nonmedical, administrative, ministerial or routine care require only a finding
that the hospital breached the obligation of ordinary care.”), or they involve the
doctrine of res ipsa loquitur, see, e.g., Zumwalt v. Koreckij, 24 S.W.3d 166, 168 (Mo.
Ct. App. 2000). Smith’s allegations that Tenet and SLU failed to abide by infection-
control policies are directly related to the quality of Smith’s medical care, and this
case is not a candidate for res ipsa loquitur because amputations regularly occur
without someone’s negligence. See, e.g., State ex rel. GS Techs. Operating Co., Inc.
v. Pub. Serv. Comm’n of Mo., 116 S.W.3d 680, 694 n.9 (Mo. Ct. App. 2003) (holding
that, to apply the doctrine of res ipsa loquitur, the plaintiff must prove that “the
incident resulting in injury is of the kind which ordinarily does not occur without
someone’s negligence”). Consequently, causation cannot be presumed and Smith was
required to provide expert medical testimony sufficient to establish that Tenet and
SLU caused Smith’s amputation.

      G.     Expert Witness Testimony Based on Previously Undisclosed
             Information

       Smith argues that the district court abused its discretion in allowing two of the
defendants’ experts, Dr. Donald Brancato and Dr. Charles Mannis, to base their
testimony on information they did not disclose in their pretrial reports. See Fed. R.
Civ. P. 26(a)(2)(B), (e). We review the district court’s rulings regarding expert
witnesses’ duty to disclose facts on which they base their testimony for an abuse of
discretion. Phil Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir.
1979).

                                           -12-
       Smith complains that Dr. Brancato relied on x-rays that he did not disclose in
his pretrial report to support his conclusion at trial that Smith should have had his leg
amputated many years prior to the surgical complications in 2001. We do not need
to decide whether the district court abused its discretion in allowing this testimony
because any error would be harmless. Rule 26(a)(2) “imposes an additional duty to
disclose information regarding expert testimony sufficiently in advance of trial that
opposing parties have a reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from other witnesses.” Fed.
R. Civ. P. 26, advisory committee notes (1993 Amendments). While Dr. Brancato did
not include his reliance on x-rays in his pretrial disclosure, he did discuss these x-rays
during his deposition. Therefore, Smith was on notice that Dr. Brancato might rely
on these x-rays during his trial testimony. A harmless violation of Rule 26 does not
mandate exclusion of the evidence. See Fed. R. Civ. P. 37(c)(1).

      Smith also complains that Dr. Mannis reviewed additional information after he
submitted his pretrial report and gave his deposition. However, Smith does not allege
that Dr. Mannis based his trial testimony on this new information. Accordingly, any
error would be harmless and does not mandate exclusion of the evidence. See Fed.
R. Civ. P. 37(c)(1).

      H.     Costs

      District courts may award costs to a prevailing party. Fed. R. Civ. P. 54(d).
However, such costs must be set out in 28 U.S.C. § 1920 or some other statutory
authorization. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 438 (1987).
The district court ordered $27,515.25 taxed against Smith for the defendants’ costs.
Smith argues that the district court abused its discretion because taxing such an
allegedly exorbitant amount will deter poor individuals from seeking redress. District
courts have substantial discretion in awarding costs under Rule 54(d). Zotos v.

                                           -13-
Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997). We find no basis for
reversing the district court’s decision to impose costs in favor of the defendants.

       Smith also argues that the district court abused its discretion by taxing him for
depositions that the defendants did not use at trial and for the delivery costs of
deposition transcripts. The district court did not abuse its discretion in awarding
costs for depositions. “[E]ven if a deposition is not introduced at trial, a district court
has discretion to award costs if the deposition was ‘necessarily obtained for use in [a]
case’ and was not ‘purely investigative.’” Id. (citation omitted). However, Smith
should not have been taxed the delivery costs for these depositions. See Cleveland
v. North Am. Van Lines, Inc., 154 F.R.D. 37, 38 (N.D.N.Y. 1994) (finding deposition
costs recoverable but associated delivery costs not recoverable). Section 1920 does
not authorize taxing Smith for the defendants’ postage and delivery expenses. See
Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) (holding that postage
expenses are “clearly nonrecoverable”); Hollenbeck v. Falstaff Brewing Corp., 605
F. Supp. 421, 439 (E.D. Mo. 1985) (same).

       We are unable to ascertain from the record the amount of delivery costs taxed
to Smith. Therefore, we remand this case for the limited purpose of reducing the
costs taxed to Smith by the amount of postage and delivery fees for depositions.

III.   CONCLUSION

      For the reasons set forth above, we affirm the verdict but remand for a
recalculation of the costs taxed to Smith.

                        ______________________________




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