UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RYAN K. SCHULKE, Infant by his
mother and next friend, Kimberly
D. Frey; KIMBERLY D. FREY,
Plaintiffs-Appellants,

v.

ROBERT B. BOWEN, M.D.; ROBERT B.
                                                               No. 97-1638
BOWEN, P.A.,
Defendants-Appellees,

and

JOSE M. DELEON, M.D.; JOSE M.
DELEON, P.A.,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-95-1709-WMN)

Submitted: February 17, 1998

Decided: April 27, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and HALL,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Marvin Ellin, Lavonna Lee Vice, ELLIN & BAKER, Baltimore,
Maryland, for Appellant. Richard W. Stuhr, Karen L. Clouse,
JACOBSON, MAYNARD & TUSCHMAN CO., L.P.A., Columbus,
Ohio, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants appeal the district court's denial of their motion for a
new trial. The basis for this medical malpractice action is injury sus-
tained by Ryan K. Schulke during his vaginal birth when his head
delivered, but his shoulders became lodged in his mother's pelvis, a
condition termed shoulder dystocia. During maneuvering by Robert
B. Bowen, the attending obstetrician, to release Ryan's shoulders and
accomplish delivery, Ryan sustained a fracture of his right humerus
and injury to the brachial plexus nerve. He required resuscitative
efforts following delivery, and sustained permanent injuries. At trial,
Appellants contended that the shoulder dystocia in this case was due
to Ryan's birth weight of eleven pounds seven ounces, that Bowen
should have recognized that the infant was macrosomic,1 and should
have carried out an elective cesarian section in order to avoid the risk
of shoulder dystocia.

The sole ground on appeal is that the district court abused its dis-
cretion in denying the motion for a new trial based on the post-trial
affidavit of a witness allegedly showing that Bowen offered perjured
testimony at trial. Specifically, Appellants base their perjury claim on
inconsistencies between Bowen's trial testimony and statements made
by Betty Elliott, R.N. in an affidavit obtained by Appellants eight
days after the jury verdict. For the reasons set forth below, we find
that the district court did not abuse its discretion in denying Appel-
lants' motion for a new trial.
_________________________________________________________________
1 At trial, macrosomic was defined as referring to an infant weighing
4500 grams or more. Ryan weighed 5188 grams at birth.

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Appellants identify two inconsistencies between Bowen's testi-
mony and Elliott's affidavit. Specifically, Bowen testified that he did
not see an August 31, 1993, admitting note indicating "macrosomia"
prior to Ryan's delivery. In her affidavit, Elliott attested that she
showed Bowen the note prior to delivery, and suggested to him that
a cesarian section may be appropriate. Second, Bowen testified that
he was not the individual who evaluated Ryan's APGAR score, while
Elliott attested that he was. Based upon these inconsistencies, Appel-
lants claim that Bowen perjured himself, and that, had the jury known
of this perjury, they would have found in Appellants' favor.

To receive a new trial based on newly discovered evidence, the dis-
trict court should consider whether the evidence: (1) would probably
have changed the outcome of the trial; (2) could have been discov-
ered earlier with due diligence; and (3) is merely cumulative or
impeaching. See Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir.
1995). We find that the alleged perjured testimony of Bowen does not
satisfy any of the elements supporting the decision to grant a new
trial.

First, Appellants claim that the Bowen's defense was based in large
part on his lack of knowledge or indication suggesting to him that the
fetus was macrosomic. As the district court found, however, Bowen's
consistent position at trial was not that Bowen was unaware of the
clinical estimates of Ryan's size, but that he felt that clinical estimates
of fetal weight are unreliable and should not be used to alter the man-
agement of labor and delivery. In fact, Bowen testified that he did see
a notation on an earlier admitting record2 to the effect that this was
a large baby, with an estimated fetal weight of nine to ten pounds. He
further testified that he assumed that Elliott's obstetric admitting
record of August 31, 1993, would contain essentially the same infor-
mation as that contained in the earlier admitting record. Moreover,
Bowen testified that even if he had seen Elliot's nursing assessment
of macrosomia, he would not have changed his actions with regard to
managing Ryan's birth because clinical estimates of fetal weight are
unreliable. Notably, Bowen's opinion as to the unreliability of clinical
estimates of fetal weight was supported by Appellants' own experts
_________________________________________________________________
2 Apparently, Ryan's mother presented at the hospital two days before
Ryan's birth in false labor.

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at trial. Accordingly, Appellants cannot satisfy their burden of prov-
ing that a new trial probably would have resulted in judgment in their
favor.

Second, Appellants offer no explanation as to the reason Elliott's
testimony could not have been produced at or prior to trial. Given that
Elliott was one of the nurses attending Ryan's birth, and the nurse
who authored the admitting notes, the importance of information in
her possession should have been obvious to Appellants. Yet, they
offer no explanation as to why, with due diligence, she could not be
located prior to trial.

Finally, we find that while Elliott's affidavit was impeaching of
Bowen's testimony and credibility, Appellants have not demonstrated
perjury by Bowen, or that the jury would have believed Elliott over
Bowen. Finding no abuse of discretion, see United States v. Wilson,
118 F.3d 228, 237 (4th Cir. 1997), we affirm the district court's denial
of Appellants' motion for a new trial. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional
process.

AFFIRMED

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