                       United States Court of Appeals

                           FOR THE EIGHTH CIRCUIT
                                ___________

                                  No. 97-2659
                                  ___________

Louis Sanford, also known             *
as Skip Sanford, parent and           *
legal guardian of Loretta             *
Jeanette Sanford; Shelly              *
Sanford, parent and legal             *
guardian of Loretta Jeanette          *
Sanford,                              *
                                      *
         Plaintiffs/Appellants,       *
                                      *
                                      * Appeal from the United States
     v.                               * District Court for the Eastern
                                      * District of Arkansas.
                                      *
Crittenden Memorial Hospital;         *
Phico Insurance Company;              *
Spectrum Emergency Care, Inc.,        *
                                      *
      Defendants,                     *
                                      *
Deborah Nelson, Dr.,                  *
                                      *
     Defendant/Appellee.              *



                                  ___________

                     Submitted:   January 16, 1998

                         Filed:   April 14, 1998
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit
     Judge and SACHS,1 District Judge.

                                  ___________




     1
      The Honorable Howard F. Sachs, United States District Judge
for the Western District of Missouri, sitting by designation.
SACHS, District Judge.

     Louis and Shelly Sanford, who brought suit on their own behalf and
as parents and guardians on behalf of their daughter Jetta Sanford, appeal
from the district court's2 grant of a new trial in their medical malprac-
tice action against Dr. Deborah Nelson.           We affirm.


                                         I.
     On Friday January 28, 1994, Shelly Sanford took her daughter Jetta
Sanford   to   Dr.   Jina   Brown's   West    Memphis,    Arkansas,   medical   office
complaining that Jetta had a two week cough, cold symptoms and a fever.
Dr. Brown diagnosed Jetta as suffering from an ear infection and prescribed
antibiotics.   That evening, Jetta's parents took her to Crittenden Memorial
Hospital due to fever and general discomfort.            After being seen by a nurse,
Jetta was discharged with instructions to continue the antibiotics.


     The next day, Saturday, January 29, 1994, Dr. Deborah Nelson was the
pediatrician on call for Dr. Brown.          On that day, Dr. Nelson returned phone
calls from Shelly Sanford concerning Jetta's continued high fever at 3:00
p.m. and 3:30 p.m.     Dr. Nelson advised Shelly Sanford to continue with the
antibiotics, to take Advil and to call if the symptoms worsened.


     The next afternoon, Dr. Nelson returned a call from Louis Sanford,
who indicated that Jetta was "lifeless."             Dr. Nelson referred Jetta to
LeBonheur hospital, where she was admitted and diagnosed with bacterial
meningitis.    Jetta remained hospitalized until February 14, 1994.                Her
meningitis was successfully treated, but not before she suffered a total
loss of hearing.




     2
      The Honorable G. Thomas Eisele, United States District
Judge for the Eastern District of Arkansas.

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      The Sanfords invoked the district court's federal question jurisdic-
tion, bringing suit against Crittenden Memorial Hospital for breach of duty
under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. §
1395dd,   and breach of contract.        The Sanfords sued Dr. Nelson for
negligence under Arkansas law.      Prior to trial, the Sanfords' medical
expert, Dr. O'Mara, opined that Jetta had meningitis at the time Dr. Nelson
was first contacted on January 29, 1994, and that Dr. Nelson's failure to
diagnose and treat Jetta for meningitis at that time proximately caused
Jetta's hearing loss.   Midway through trial, however, after proof that once
a person has meningitis there is no drug that will prevent deafness in a
surviving patient (thirty percent will become deaf regardless of method or
timing of treatment), Dr. O'Mara's opinion changed.       Dr. O'Mara testified,
contrary to his deposition testimony and the opening statement in the case,
that Jetta did not have meningitis as of 3:30 p.m. on September 29, 1994,
and that Dr. Nelson could and should have prevented Jetta from contracting
meningitis by admitting her to the hospital and administering drugs aimed
at treating meningitis.3


      The district court submitted the case to the jury.      The jury returned
a verdict in favor of the Sanfords and against both Dr. Nelson (40% fault)
and   Crittenden   Memorial   Hospital   (60%   fault),   awarding   damages   of
$2,500,000 for Jetta Sanford and $1,000,000 for her parents.         Crittenden
settled with the Sanfords.     Dr. Nelson moved for judgment as a matter of
law and, in the alternative, a new trial.           After expressing serious
reservations about the legal




      3
      Dr. O'Mara testified that Jetta should have been tested for
meningitis, and that even if the results were negative she should
have been treated with intravenous antibiotics or a very strong
antibiotic generally used after meningitis has developed. Dr.
Nelson's medical expert witness acknowledged that there was some
"logic" to Dr. O'Mara's causation theory, and that one particu-
larly powerful antibiotic, Rocephin, might have prevented menin-
gitis. There was further defense testimony that, for reasons
noted at trial, Rocephin was not used in standard practice as a
preventative.

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adequacy of the medical and scientific testimony introduced at trial, the
district court nevertheless denied Dr. Nelson's motion for judgment as a
matter of law.     However, the district court granted Dr. Nelson's alterna-
tive motion for a new trial, basing its decision on, among other things,
the size of the verdict in favor of Jetta Sanford's parents and the element
of surprise introduced by Dr. O'Mara's mid-trial change of testimony.


     Before the second trial, Dr. Nelson moved for summary judgment,
arguing that the testimony of Dr. O'Mara lacked a scientific basis and was
therefore insufficient to create an issue of material fact regarding the
standard of care or causation.        The Sanfords declined to submit further
argument or evidence in response to the motion, and instead expressed their
desire to appeal from the district court's grant of a new trial.                   The
district   court    granted   Dr.   Nelson's   motion   for   summary   judgment    --
providing a final, appealable judgment -- and the Sanfords lodged this
appeal challenging only the district court's decision to grant a new
trial.4


                                        II.
     "The authority to grant a new trial . . . is confided almost entirely
to the exercise of discretion on the part of the trial court."               Allied
Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980).               We review the
district court's decision for a clear abuse of that discretion.            Pitts v.
Electro-Static Finishing, Inc., 607 F.2d 799, 803 (8th Cir. 1979).           Where,
as here, the size of the verdict provided a basis for a new trial, our
review is extraordinarily deferential.         It has long been our opinion that
the matter is:




     4
      The Sanfords' decision to neither oppose the motion for
summary judgment nor appeal the district court's order granting
it gives rise to an inference that they were unable to adequately
respond. Nevertheless, we will give the Sanfords the benefit of
the doubt on this point.

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     basically, and should be, . . . for the trial court which has
     had the benefit of hearing the testimony and of observing the
     demeanor of the witnesses and which knows the community and its
     standards; . . . and that we shall continue to review, as we
     have said before, not routinely and in every case, but only in
     those rare situations where we are pressed to conclude that
     there is 'plain injustice' or a 'monstrous' or 'shocking'
     result.

Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-48 (8th Cir. 1961)
(Blackmun, J.); Nodak Oil Co. v. Mobil Oil Co., 533 F.2d 401, 411 (8th Cir.
1976).


     Although the appropriateness of a new trial is a federal procedural
question decided by reference to federal law, Pitts, 607 F.2d at 802, in
determining whether a state law claim damage award is excessive, state case
law guides our inquiry.    England v. Gulf & Western Mfg. Co., 728 F.2d 1026,
1029 (8th Cir. 1984).     Under Arkansas law, a verdict is excessive if "'the
amount shocks the conscience of the court or demonstrates that the jurors
were motivated by passion, prejudice or undue influence.'"           White v.
Mitchell, 568 S.W.2d 216, 224 (Ark. 1978) (quoting Jordan v. Adams, 533
S.W.2d 210, 213 (Ark. 1976)).


     Here the district court concluded that the $1,000,000 verdict in
favor of Jetta's parents was "clearly excessive under the law and the
court's instructions to the jury" and that the amount "shock[ed] the
judicial conscience."      After a review of the record, we cannot say that
this conclusion was plainly unjust, the lowest requirement for reversal.
The uncontested jury instructions specified that the damage award to
Jetta's parents was limited to:        1) the reasonable expense of medical
treatment and services received by Jetta; 2) the present value of any
future medical care equipment reasonably certain to be required; and 3) the
reasonable value of Jetta's services and contributions that the parents
have lost and the present value of Jetta's services and contributions that
the parents are reasonably certain to lose in the future.      The




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parties stipulated that the parents had incurred $10,892 in medical
expenses for Jetta's treatment.   Although there was evidence at trial about
various equipment available to deaf persons, there was little testimony
identifying which of these devices Jetta would need or require or that the
likely cost could largely account for the verdict.      In light of this, we
can not conclude that the district judge abused his discretion in holding
that the $1,000,000 verdict in favor of Jetta's parents was excessive.


     Counsel for the Sanfords argues, without citation of Arkansas law,
that we should fault the district judge for failing to permit nonpecuniary
losses "'in the guise of recovery for loss of services.'"5    We acknowledge
that the Arkansas courts appear to allow some "conjecture" by the jury as
to what a child's services might have been, in the absence of death or
injury, and how they should be valued.       Norman v. Gray, 383 S.W.2d 489,
492-3, (Ark. 1964).    Federal judicial responsibility for reviewing verdicts
in such cases may be reflected, however, by the treatment of a New York
recovery for $224,000 for loss of a youth's services, which the appellate
court ruled must be reduced to $7,000 per year for the remainder of the
child's minority.     Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740,
755 (2d Cir. 1984).    We believe the district judge in this case was fully
authorized to intervene.


     The Sanfords argue that the district court should have ordered a
partial new trial on the issue of damages, rather than a new trial on both
liability and damages.     We disagree.    The trial judge stated that in his
"view . . . the jury was moved by passion and emotion."    Where the district
court concludes that passion influenced the jurors, a partial new trial on
the issue of damages only is generally inappropriate.     See, e.g., England,
728 F.2d at




     5
      This is the annotator's suggested basis for generous
recoveries in Annotation, Parent's Right to Recover for Loss of
Consortium in Connection With Injury to Child, 54 A.L.R.4th 112,
118 n. 6 (1993).

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1029   (cautioning against district court use of the words "bias and
prejudice" unless the evidence warrants a new trial on both liability and
damages).   "[P]assion or prejudice may affect the decision of the jury on
the issue of liability as well as damages."       Everett v. S.H. Parks &
Assoc., Inc., 697 F.2d 250, 253 n. 5 (8th Cir. 1983).        Absent unusual
circumstances, where a damage award is motivated by passion or prejudice,
a remittitur is not appropriate.   See Parsons v. First Investors Corp., 122
F.3d 525, 529 (8th Cir. 1997).   Accordingly, we find no abuse of discretion
in the district court's decision to grant a new trial on both liability and
damages.


       The Sanfords argue on appeal that even if a new trial on grounds of
excessiveness of verdict should have been granted as to the parents, the
verdict in favor of Jetta should not have been set aside along with it.
This argument was not raised in the district court (see Appendix on Appeal
at 230-36), and is not subject to review here.6


       In addition, we believe that the district court correctly cited the
dramatic mid-trial shift in testimony by Dr. O'Mara -- from a failure to
diagnose to a failure to prevent -- as a reason for granting a new trial.
Surprise during trial, by major variance in theory of recovery or defense,
undisclosed until after the trial




       6
      In any event, we are not persuaded that granting a new
trial on all the issues in the case, rather than just the ques-
tions of liability and damages for Jetta's parents, would consti-
tute an abuse of discretion. See, e.g., Mueller v. Hubbard
Milling Co., 573 F.2d 1029, 1039-40 (8th Cir. 1978) (excessive
verdict amount on one claim because of passion or prejudice "may
well have influenced the jury on the liability issues" on the
other claim; new trial on both liability and damages appropriate
on both claims). If this question of a partial new trial had
been presented, the district judge would have been entitled to
consider his qualms about the medical proof and the fairness of
the trial proceedings in determining whether, on balance, a
complete new trial should be scheduled.


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                                     7
is underway, is a long-established ground for granting a new trial motion.
See, e.g., Perez-Perez v. Popular Leasing Rental, Inc., 993 F.2d 281, 286-
88 (1st Cir. 1993) (undisclosed rebuttal medical testimony that driver, who
had testified he could "see without glasses if I want to," suffered from
seriously disabling glaucoma); Twigg v. Norton Co., 894 F.2d 672, 674-75
(4th    Cir.   1990)     (mid-trial   change    of   position   regarding   theory   of
recovery); Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d 108, 112
(5th Cir. 1982) (introduction of new theory by expert witness mid-trial
constituted unfair surprise justifying new trial).


       In light of the expert's shift of theories, we can not conclude that
the    district judge abused his discretion in finding that the trial
testimony on liability and medical causation was confusingly presented and,
at best, inconclusive and that a new trial was in order.              In sum, we are
very far from concluding that this is one of those rare cases in which a
new trial decision should be changed on appeal.


       For the reasons indicated, we affirm.


       A true copy.


               Attest:


                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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