     Case: 13-60352      Document: 00512738745         Page: 1    Date Filed: 08/19/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 13-60352                           August 19, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
CHARLENE CREAR

                                                  Plaintiff – Appellant
v.

GREGORY HORN, Medical Doctor, doing business as Gregory W. Horn,
doing business as Mississippi Coast OB/GYN, P.A., doing business as St.
Martin's Woman's Clinic, P.A.,

                                                  Defendant – Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:12-CV-8


Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
PER CURIAM:*
       In this Mississippi medical malpractice case, Plaintiff–Appellant
Charlene Crear appeals the district court’s denials of her motion for new trial
and Edmonson challenge to jury selection.




                                             I.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-60352   Document: 00512738745     Page: 2   Date Filed: 08/19/2014



                                No. 13-60352
      Charlene Crear began suffering from intense pelvic pain in 2008. She
went to Dr. Gregory Horn for treatment until she moved to Jacksonville,
Florida shortly thereafter. While in Jacksonville, Crear continued to have
severe pelvic pain and she sought treatment from Dr. Christina Adams in
March 2010. Dr. Adams attempted to treat Crear’s pelvic pain symptoms
first with birth control pills and later with an IUD, but both options failed.
Crear continued to experience chronic pelvic pain so severe that she sought
treatment on thirteen separate occasions—sometimes in emergency rooms—
between when she began seeing Dr. Adams and when she returned to see Dr.
Horn in Mississippi in October 2010.
      Crear revisited Dr. Horn in hopes of finally finding a way to alleviate
her pain.    Dr. Horn examined Crear and recommended that the best
treatment option was a hysterectomy with bilateral salpingo-oophorectomy,
the technical term for removal of the uterus as well as both ovaries and
fallopian tubes.
      At her preoperative appointment, Crear read and signed a detailed
consent form. The consent form’s front page lists the five different types of
hysterectomies including those with and without ovarian removal. This form
also advised her of the nature, purpose, risks, and consequences of the
proposed treatment as well as alternative treatments, including birth control
pills, hormones, exercise, vaginal appliances, and other procedures. Crear
and Dr. Horn both signed this form. Two days later, Crear underwent the
surgery and there were no complications. Crear’s medical records reveal that
she had no further complaints about pelvic pain in the immediate aftermath
of the operation and she did not seek further medical treatment until an
October 2011 visit with another doctor for menopause treatment.
       Crear then filed suit against Dr. Horn alleging that he had committed
medical malpractice by unnecessarily performing a total hysterectomy and
                                       2
    Case: 13-60352      Document: 00512738745        Page: 3    Date Filed: 08/19/2014



                                    No. 13-60352
failing to obtain her informed consent for the surgery. The case proceeded to
trial, with the jury entering a verdict in favor of Dr. Horn.
      Crear then filed a Rule 59 Motion for New Trial, claiming that the
jury’s verdict was contrary to the great weight of the evidence.                Crear’s
motion argued that Dr. Horn had not obtained informed consent for the
surgery because he did not notify her about the alternative of a partial
hysterectomy leaving one or both ovaries.           The trial court denied Crear’s
motion, explaining both that the consent form mentioned these other
possibilities and that the testimony of Dr. Horn and his expert provided a
basis on which the jury could conclude that the other possibilities were not as
effective options for treating Crear’s severe pelvic pain.
                                           II.
      Crear challenges the district court’s denial of her motion for new trial
as well as its rejection of an Edmonson challenge. 1
                                           A.
      During voir dire, Dr. Horn’s counsel used peremptory challenges to
remove two African-American jurors. Crear’s counsel raised an Edmonson
challenge at the conclusion of voir dire and the court required Dr. Horn’s
counsel to provide race-neutral explanations for the strikes. Crear’s counsel
accepted without objection the reasons provided for striking one juror but
objected to the reasons provided for striking the other, Mr. Charles Dorsey.
When the court asked for a race-neutral explanation, Horn’s counsel said the
following:

      Mr. Dorsey indicated that he had had a back injury that he
      walked around with for nine months while his doctor did not read
      his records. That’s the understanding I had. With some hostility

      1   The Supreme Court extended the reach of Batson v. Kentucky, 476 U.S. 79 (1986),
to civil trials in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618–28 (1991).
                                           3
    Case: 13-60352    Document: 00512738745     Page: 4   Date Filed: 08/19/2014



                                 No. 13-60352
      just in the inflection of what he had to say about that, he was not
      happy about the way he had been treated by his physician, Your
      Honor. Quite frankly, we’re scared of folks that have a real
      serious problem with doctors, and he probably had the most vocal
      response on that issue.

      Crear’s counsel responded to this explanation by identifying a non-
African-American juror who was not struck but “gave answers that one of his
doctors accused him of malingering and [he] had to switch doctors.” The trial
court did not believe this juror’s answer was sufficiently similar to Dorsey’s to
establish pretext and asked Crear’s counsel whether he had any other
response to Horn’s explanation for striking Dorsey. Crear’s counsel made no
further objection, stating only, “No, Your Honor. Thank You.”
      We review for clear error the district court’s determination that the
nonmovant’s attorney gave a valid race-neutral explanation for a peremptory
strike. United States v. Turner, 674 F.3d 420, 436 (5th Cir. 2012). Because of
jury selection’s subjective nature, the district court’s determination is likely
to be based “largely on the court’s evaluation of the credibility of counsel’s
explanation.” United States v. Perkins, 105 F.3d 976, 978 (5th Cir. 1997)
(citing United States v. Wallace, 32 F.3d 921, 925 (5th Cir. 1994)).        Our
review of the district court’s denial of a Batson/Edmonson challenge is
deferential because the trial court is better situated to determine the
credibility of the attorney’s explanation—being able to observe inflection,
demeanor, and other intangibles that are central to that inquiry. See Snyder
v. Louisiana, 552 U.S. 472, 477 (2008) (“We have recognized that these
determinations of credibility and demeanor lie ‘peculiarly within a trial
judge’s province,’ and we have stated that ‘in the absence of exceptional
circumstances, we would defer to [the trial court].’” (quoting Hernandez v.
New York, 500 U.S. 352, 365–66 (1991)).


                                       4
    Case: 13-60352      Document: 00512738745     Page: 5   Date Filed: 08/19/2014



                                   No. 13-60352
         Under this standard, we find no error in the trial court’s denial of
Crear’s Edmonson challenge based on Horn’s race-neutral explanation that
Dorsey “had the most vocal response” when questioned about his feelings
towards doctors—a characterization Crear did not challenge in the district
court.


                                        B.
         We now turn to Crear’s claim that the district court erroneously denied
her motion for new trial. This court reviews a trial court’s denial of a motion
for new trial for abuse of discretion. Foradori v. Harris, 523 F.3d 477, 497
(5th Cir. 2008); see also Coughlin v. Capitol Cement Co., 571 F.2d 290, 297–98
(5th Cir. 1978) (“When, as in this case, a motion for a new trial has been
made on the ground of insufficient evidence to support the verdict and the
like, the failure by the losing party to move for a directed verdict . . . still
operates to foreclose consideration of the question of sufficiency on appeal,
and the appellate court may inquire only whether the trial court abused its
discretion in overruling the motion for a new trial.” (quoting Little v. Bankers
Life & Cas. Co., 426 F.2d 509, 511 (5th Cir. 1970))). “To show an abuse of
discretion in this respect, the defendant must show an absolute absence of
evidence to support the jury’s verdict.” Foradori, 523 F.3d at 477. Crear fails
to surmount this especially deferential review posture. See id. at 497 (“Our
review of the district court’s denial of a motion for a new trial is more
deferential than our review of a motion for judgment as a matter of law.”).
         Crear’s argument is that there was no basis from which the jury could
find informed consent because that consent exists under Mississippi law only
if the patient is notified about “feasible treatment alternatives.”            See
Herrington v. Spell, 692 So. 2d 93, 99–100 (Miss. 1997) (listing as “items
requiring disclosure” the same six items included in the jury instructions in
                                        5
    Case: 13-60352    Document: 00512738745        Page: 6   Date Filed: 08/19/2014



                                 No. 13-60352
this case, including the existence of feasible treatment alternatives),
overruled on other grounds by Whittington v. Mason, 905 So. 2d 1261 (Miss.
2005). According to Crear, the feasible alternative about which she was not
informed relates to hysterectomies that do not include removal of the ovaries,
which she contends would have kept open the option of in vitro fertilization
and obviated her need for menopause-related hormone therapy.
      As the district court noted when denying the motion for new trial, there
were three evidentiary bases to support the jury’s finding that Crear received
ample notice. First, among other statements it contained about treatment
options, the consent form stated:
      Along with removing your uterus, your ovaries and your fallopian
      tubes may or may not be removed.

      You should discuss this in detail with your physician. Your
      ovaries are separate from your uterus. The ovaries make
      hormones that are necessary for you. If the ovaries are removed,
      most likely you will need to take hormones either by mouth, in
      the form of a patch, implant, or by injection.

Second, the defense expert opined that a hysterectomy without ovary removal
was not as effective an option because it would have increased the risk of
continued pelvic pain. Finally, Dr. Horn testified to the same effect. This is
more than ample evidence to support the jury’s finding that Crear was
notified of any feasible treatment alternatives.
      As this court reasoned in another case challenging a defense verdict in
an informed consent case, “the trial court and the jury heard evidence on both
sides. The jury made its finding, and the trial court found that verdict to be
not contrary to the great weight of the evidence. We have no reason to hold
that the trial court abused its discretion in denying the motion for new trial.”
Smogor v. Enke, 874 F.2d 295, 298 (5th Cir. 1989). Likewise here, Crear has
not shown an “absolute absence of evidence” in support of the jury’s verdict.

                                       6
Case: 13-60352   Document: 00512738745   Page: 7   Date Filed: 08/19/2014



                          No. 13-60352
                               III.
 For these reasons, the district court’s judgment is AFFIRMED.




                                7
