
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1861                             KAREN SUAREZ MATOS, ET AL.,                                Plaintiffs, Appellees,                                          v.                ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., ET AL.,                                Defendants, Appellees,                                 ____________________                        CORPORACION INSULAR DE SEGUROS, INC.,                                Defendant, Appellant.                                 ____________________        No. 92-1862                             KAREN SUAREZ MATOS, ET AL.,                                Plaintiffs, Appellees,                                          v.                    ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC.,                                Defendant, Appellant.                                 ____________________        No. 92-1891                             KAREN SUAREZ MATOS, ET AL.,                               Plaintiffs, Appellants,                                          v.                ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., ET AL.,                                Defendants, Appellees.                                 ____________________        No. 92-1914                             KAREN SUAREZ MATOS, ET AL.,                                Plaintiffs, Appellees,                                          v.                ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., ET AL.,                                Defendants, Appellees,                                 ____________________                                DR. JOSE I. CARRASCO,                                Defendant, Appellant.                                 ____________________        No. 92-2469                             KAREN SUAREZ MATOS, ET AL.,                                Plaintiffs, Appellees,                                          v.                ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., ET AL.,                                Defendants, Appellees,                                 ____________________                        CORPORACION INSULAR DE SEGUROS, INC.,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Igor J. Dominguez with whom Igor J.  Dominguez Law Offices was  on            _________________           ______________________________        briefs for Ashford Presbyterian Community Hospital, Inc.            Rafael   Fuster-Martinez   with  whom   Carlos   Martinez-Texidor,            ________________________                _________________________        Martinez-Texidor &  Fuster  and  Igor  Dominguez were  on  briefs  for        __________________________       _______________        Ashford Presbyterian Community Hospital, Inc.            Efren  T.   Irizarry-Colon  with   whom  Elisa  M.   Figueroa-Baez            __________________________               _________________________        Irizarry-Colon and Soler  & Banuchi Law Offices were on briefs for Dr.        ______________     ____________________________        Jose I. Carrasco.            Eugene  F. Hestres  with whom Bird,  Bird & Hestres  was on briefs            __________________            _____________________        for Corporacion Insular De Seguros.            Charles  A. Cordero  with whom  Cordero,  Miranda  & Pinto  was on            ___________________             __________________________        briefs for Karen Suarez Matos, et al.                                 ____________________                                   REVISED OPINION                                   REVISED OPINION                                 ____________________                                  September 13, 1993                                 ____________________                      ALDRICH,  Senior  Circuit Judge.    Plaintiff Karen                                _____________________            Suarez  Matos, a resident  of New York  vacationing in Puerto            Rico, was  taken to defendant  Ashford Presbyterian Community            Hospital  in San  Juan on  October 30,  1989 on  an emergency            basis.   A uterine tumor, or myoma, was removed the following            day,  and  thereafter  examined   by  defendant  Doctor  Jose            Carrasco,  a pathologist on the  staff of the  hospital.  He,            allegedly,  reported it was  benign.  On  discharge with that            diagnosis  plaintiff was advised to follow up with a New York            doctor, two names being  given.  Beyond a clinic  visit, this            she failed to  do, but after five months she  again felt pain            and  was  found, too  late, cancerous  beyond  cure.   It was            concluded  that her  tumor  had  been  an unusual  type,  and            malignant or  in danger of  becoming so, calling  for careful            watching.    Concededly  she had  not  been  so  advised.   A            district   court  jury  found   Doctor  Carrasco   guilty  of            malpractice,  and that  the hospital  was chargeable  for his            conduct.  It awarded  $1,325,000 against both, which included            $650,000  for future  medicals and  care, with  an additional            $250,000  in   favor  of  plaintiff  Carmen   Matos,  Karen's            mother.1   By  prior stipulation  it followed  that defendant            Corporacion  Insular  de  Seguros,  Inc.  (CIS),  defendants'                                            ____________________            1.  The term  plaintiff hereafter,  if used in  the singular,            shall be taken to refer to Karen.                                         -4-            insurer, was liable.2   The  court refused  to recognize  the            policy limits of $250,000  per incident and entered judgments            against CIS for the full amounts.  Appeals followed.                      The appeals raise a number of matters:  whether the            evidence warranted  the finding of malpractice against Doctor            Carrasco; whether his conduct was chargeable to the hospital;            whether the  court erred  in disregarding the  policy limits;            and evidentiary questions of damages.  In  addition, there is            a question whether  there should  be a new  trial because  of            improper  argument.   Our  overall conclusion  is that  while            there  was evidence warranting findings against defendants, a            new trial is called for.                      The  initial  question  is  whether  a  finding  of            negligence  was  warranted  against  Doctor  Carrasco.    The            evidence  here  is  singular.   With  their  early  witnesses            plaintiffs  made a good showing that the tumor was unusual --            one in 500 -- and that if it had been recognized as unusual a            further study should have been made to inquire as to possible            malignancy.  However, they made a  doubtful showing whether a            mistake in failing to  recognize would amount to malpractice.            Second,  plaintiffs' doctors  agreed  that Doctor  Carrasco's            report  to  the surgeon  denied  malignancy,  their testimony                                            ____________________            2.  The amended  complaint  had originally  named  two  other            hospital  doctors, Dr. Jose Juncosa and  Dr. Angel Lopez Ruiz            and  their  separate  insurer,  but   plaintiffs  voluntarily            dismissed against them before pretrial.                                         -5-            revolving  around the words used  in the report.   The report            described the tumor as a leiomyoma-leiomyoblastoma.  A Doctor            Lazarevic, a pathologist called by plaintiffs, testified that            the  second  word  meant  benign,  and  that  if  there  were            malignant cells  this word  should have been  leiomyosarcoma.            Doctor  Lopez, the  admitting  physician,  testified that  he            looked up  the term  leiomyoblastoma in a  medical dictionary            and found it meant "usually  benign."  However, he  testified            that  Doctor  Carrasco  told  him that  blastoma  meant  non-            cancerous.   Doctor Juncosa, the  operating physician, though            without  referring   to   a  dictionary,   confirmed   Doctor            Lazarevic.    He  testified, without  objection,  that Doctor            Lopez  had told him that Doctor Carrasco had told him, Doctor            Lopez, that the tumor was benign.                      In this circumstance one might have expected Doctor            Carrasco to testify that he had made an honest mistake in his            diagnosis,  and had,  accordingly,  not pursued  the  matter.            Instead, after  testifying that  he was expecting  a "routine            leiomyoma" he stated,                      "Upon   looking   at    it   I    noticed                      immediately,  this  is   not  a   routine                      leiomyoma,  not  the  typical  leiomyoma,                      benign lesion. . . .   Leiomyoblastoma is                      a tumor that nobody knows exactly what it                      is  going to  do.   Many  of them  become                      outright    malignant     within    three                      months. . . .  Leiomyoblastoma, which now                      should   be   called  stromal   tumor  of                      uncertain malignant potential -- which is                      my  diagnosis --  this  tumor  should  be                      considered, by anyone who  knows anything                                         -6-                      about  medicine  -- not  by dictionaries,                      but  anyone who  is up  to date,  who has                      gone to  all the latest meetings  -- as a                      tumor      of      definite     malignant                      potential. . . .   Leiomyoblastoma is the                      name.  If you know pathology you know the                      name.  If you are a surgeon and you don't                      know that name, you better stop acting as                      a surgeon."                      In  addition to  the warning  that Doctor  Carrasco            testified was thus  apparent on  the face of  the report,  he            stated he had told Doctor Juncosa the above and had shown him            a book confirming it.                      From the jury's standpoint the case was complicated            by  a Doctor Killackey, from New York, who, though admittedly            not   a  pathologist,   testified   that  Doctor   Carrasco's            procedures deviated  from the  standards of  medicine because            his diagnosis  was "completely incorrect," which,  of course,            is not  the test, and  that Doctor  Carrasco "doesn't  really            know  what  it [leiomyoblastoma]  is."   She  added  that the            dictionary meaning was not important.3                      Without reviewing  further, it  is  enough to  say,            though  difficult,  that  the   jury  could  combine   Doctor            Carrasco's  admission  that he  knew  of  the possibility  of            malignancy  and   Doctor  Juncosa's  statement   that  Doctor            Carrasco told him  the reverse, and  thus prevent an  ordered            judgment for defendants.  In other words, the jury could find                                            ____________________            3.  Plaintiffs' counsel  described  Doctor Killackey  to  the            jury as "courageous."  He meant it as a compliment.                                         -7-            that  Doctor  Carrasco admittedly  knew  that  the tumor  was            dangerous but did not adequately convey this to the operating            doctor so that the vital warning never reached the plaintiff.                      In this contest of credibility defendants were hurt            by two  improprieties.   The first  was the  court's allowing            plaintiffs after  calling a Doctor Miranda,  to cross-examine            him as a  hostile witness because  defendants had named  him,            pretrial, as their proposed expert.  This was error.                      Fed. R. Evid. 611 (c) reads as follows.                           (c)    Leading  questions.   Leading                           (c)    Leading  questions.                      questions  should  not  be  used  on  the                      direct examination of a witness except as                      may  be necessary to develop the witness'                      testimony.   Ordinarily leading questions                      should be permitted on cross-examination.                      When a party calls  a hostile witness, an                      adverse  party,  or a  witness identified                      with an adverse party,  interrogation may                      be by leading questions.            This is  an  enlargement of  a  prior rule,  and  necessarily            involves some  factual interpretation, but we  divide it into            two  categories;  a  witness  who  is  an  adverse  party  or            identified with one, or  is affirmatively viewable as hostile            because of  the situation,  viz., classifiable in  advance as                                        ___            hostile,  Ellis v. City of Chicago, 667 F.2d 606, 612-13 (7th                      _____    _______________            Cir.  1981), and  witnesses who demonstrate  hostility during            trial, United  States v. Brown,  603 F.2d 1022,  1025-26 (1st                   ______________    _____            Cir. 1979).  Doctor  Miranda had no prior connection  as part            of the  scene, Ellis,  ante, or otherwise,  Chonich v.  Wayne                           _____   ____                 _______     _____            Cty. Community  College, 874 F.2d  359, 368 (6th  Cir. 1989),            _______________________                                         -8-            as,  for  example,  an  employee, Perkins  v.  Volkswagen  of                                              _______      ______________            America,  Inc., 596  F.2d  681, 682  (5th  Cir. 1979),  or  a            ______________            defendant's girlfriend, United States  v. Hicks, 748 F.2d 854                                    _____________     _____            (4th Cir. 1984).   We find no case involving  the adversary's            proposed expert,  or suggesting  that simply because  a party            expects favorable  testimony from a witness,  the opponent is            entitled  to  call  him, or  her,  as hostile.    If  a party            proposes to call a happenstance witness to  an accident, does            that  mean the  other can  call him  and cross-examine?   The            obligation  to  name  witnesses,  about to  be  expanded,  is            intended  to  give  opportunity  to prepare,  not  to  afford            procedural advantages.   We add  that the court's  rule would            tend to make experts who are reluctant to appear in the first            place  even more reluctant if they are to start with rigorous            cross-examination before they have even made their statement.                      Conceivably  plaintiffs might have  done as well by            waiting  and  cross-examining  Doctor  Miranda  after  he had            testified for defendants.   In any event, defendants did  not            object to the court's  allowing cross-examination and,  while            regarding  the course  followed as  undesirable practice,  we            would not  find it  to be  plain error  affecting substantial            rights where no  one objected  to it.   However, our  concern            with  this  issue  pales  compared  with plaintiffs'  closing            argument  that   the  court,  rather   than  correcting,  cf.                                                                      __            Gonzalez-Marin v.  Equitable Life Assur. Soc.,  845 F.2d 1140            ______________     __________________________                                         -9-            (1st Cir. 1988), called permissible.   To begin with, counsel            violated the elementary rule  that counsel should never state            his  opinion.   Here it  was particularly  prejudicial as  he            condemned  opposing counsel, and appealed directly to jurors'            personal motives.                           Now,  when I  helped  select you,  I                      think  on  the  other  side  there--  and                      again, this  is my  own opinion--  that I                      saw these other lawyers on the other side                      smiling, and I think I know why they were                      smiling.    I  think  they  were  smiling                      because--                           MR.  FUSTER:  Your Honor, we object.                      We don't think this is proper.                           THE COURT:   Yes, what  do you  mean                      they were smiling?                           MR. CORDERO:   I  am going  to that.                      Why?  Because there  are no ladies in the                      jury, and they cannot feel--                           THE COURT:  All right,  I will allow                      the argument.  Permissible argument.   Go                      ahead.                           MR. CORDERO:  Thank you, your Honor.                      When  I selected  you and  I think  I saw                      them smiling--  and I am  just surmising.                      I  may  even  be  speculating, I  may  be                      arguing  to  you--  I am  sure  they were                      thinking,  "Aha,  not  one woman  on  the                      jury,  and men  are not  as sensitive  to                      damages and suffering as women."                           Well,  if  that's  what   they  were                      thinking, I think they were wrong.                           You  know,  my  family   comes  from                      Isabela,  all  of  them,  my  father,  my                      grandfather, my great grandfather,  but I                      happened  to be  born and  raised in  the                      barrio in New York, and if anybody thinks                      there was a macho, I think I was a macho.                                         -10-                      Look  at my  fist.   It  was broken  from                      fighting  in the  streets.   My  nose was                      broken in  six  places, and  I had  three                      broken  ribs.   I was  a combat  infantry                      officer in the army--                           MR. FUSTER:  Your Honor--                           THE COURT:  That's permissible.                           MR. CORDERO:  And  I thought I was a                      macho.   I was a  combat infantry officer                      in the army.                           And yet I can  say here today that I                      feel  I'm as  macho  as any  man in  this                      room, but  I'm also  a human being  and I                      also have feeling and  I know that all of                      you have feeling.   Because we all have a                      mother, maybe we have  a sister, maybe we                      have a daughter, and we don't want to see                      them suffering.   And if they suffer,  we                      suffer,  and that's  why I  helped select                      you as  a jury,  because I know  that you                      will understand what suffering is.            Counsel added  that not  telling Karen  that she  had cancer,            "that to me would amount to murder."  He then offered his own            evidence.   After  purporting to  quote testimony,  he added,            "Your recollection is better, but I know what he said."  "The            mistake  was that Doctor Carrasco put down 'leiomyoblastoma,'            which the dictionaries and all the  other doctors meant (sic)            a benign  tumor."    This,  of  course,  was  incorrect;  the            evidence was that the dictionary defined 'leiomyoblastoma' as            usually benign.            _______                      These  highly  objectionable  arguments  were  then            compounded in plaintiffs' rebuttal.                           They  tell  you  "Don't decide  this                      case with your  heart."  Well, I'm  going                                         -11-                      to  say  something  else.   You  are  the                      conscience  of this  community.   I  say,                      decide  it  with  your  heart,  with your                      head,  using  the ordinary  experience of                      life.  That's how you decide a case.            It is difficult enough for a jury to decide a  case involving            serious  suffering  dispassionately  upon  the  law  and  the            evidence  without being  told that  the community  conscience            calls to decide with the heart.                      The  total argument  was outrageous.   We  can only            think that  this experienced court,  in permitting it,  had a            bad day.                      It is true  that only the hospital, and  not Doctor            Carrasco, objected, and there has  been a suggestion that the            latter  could have no rights, absent plain error.  See United                                                               ___ ______            States  v. Saade,  652 F.2d  1126, 1136-37  (1st Cir.  1981).            ______     _____            This suggestion we  might be slow to follow if  it led to one            party receiving a new trial and another, equally placed, not,            since a primary reason for an objection  is to give the court            notice.  This it had.  However, we need not reach this, as we            would consider it plain  error for a verdict to stand after a            jury had been so traumatized.  We suggest that the court also            allowed emotional overplay when it permitted, as it noted, 45            minutes  dwelling on  plaintiffs' pain  and suffering.   Even            more  do we believe the argument may have affected the jury's            finding  as to  future medicals  and care  -- an  amount that                                         -12-            would seem unwarranted in any event -- but we need not make a            final decision.                      The court's ruling as to pleading these damages was            correct.  Decisions  on what needs  to be pleaded  by way  of            special   damages,4    are   sparse.      The   tendency   is            liberalization.    Wright  &  Miller,  Federal  Practice  and                                                   ______________________            Procedure,    1311 (1990).  We believe the purpose is to give            _________            notice; the more natural are  the damages, the less  pleading            is needed.   Compare Great  American Ind. Co.  v. Brown,  307                         _______ ________________________     _____            F.2d 306 (5th Cir. 1962) (loss  of earning capacity following            personal   injury)  with  Action  Repair,  Inc.  v.  American                                      _____________________      ________            Broadcasting Co., 776 F.2d 143 (7th Cir. 1985) (business loss            ________________            following  defamation).   We are  satisfied with  "Karen will            incur in (sic) extensive major medical costs and expenses and            will require  costly health  care services until  her death."            The subject had been opened; defendants could seek details by            inquiry.                      For future purposes we make the following rulings.                                   Ashford Hospital                                   ________________                      Ashford  appeals  because  the  court  permitted  a            finding that  it was  charged with responsibility  for Doctor            Carrasco's  negligence.   If  the pathologist  was guilty  of            malpractice, it follows from Marquez Vega v. Martinez Rosado,                                         ____________    _______________                                            ____________________            4.  "When  items of special damage are claimed, they shall be            specifically stated."  Fed. R. Civ. P. 9(g).                                         -13-            116  D.P.R.  487 (1985),  that the  hospital is  liable also.            While strictly, perhaps, that decision contained  dictum that            we  might  distinguish,  and  certainly  we  need  not  adopt            plaintiffs contention  that it would impose  liability in the            case   of   an   independent  contractor   having   no  other            relationship  with  the  hospital,  it  is  clear  here  that            granting  staff privileges  coupled with  a joint  sharing in            profits, left the hospital fully  responsible.  On the  facts            that cannot  be avoided, under  Puerto Rico law  the hospital            necessarily   was   vicariously  liable   for   the  doctor's            negligence, if found and the jury finding, even if improperly            influenced, was  necessarily correct.   As matter of  law the            hospital was a joint actor in a joint enterprise.                      Corporacion Insular de Seguros, Inc. (CIS)                      __________________________________________                      The liability  of CIS, the insurer,  was a question            of law for  the court, not  affected by plaintiffs'  improper            argument  to the  jury.   Unfortunately, however,  it decided            wrongly.   Pressed  by  CIS, on  finding  that judgments  had            issued  against it  in the  full amounts  of the  verdicts in            spite  of the policy limits, the court denied motions without            giving reasons.   There is  some question as  to under  which            rule the motions should  lie.  The miscarriage of  justice is            such that we do not pause to pursue that aspect, but consider                                         -14-            the  substance briefly,  if only  to make  it clear  that the            court's incorrect decision is not law of the case.5                      In  plaintiffs' amended  complaint  it was  alleged            that  the liability  insurer  is  liable  "up to  its  policy            limits."  In  a joint answer filed  on behalf of  Ashford and            CIS it  was alleged  that plaintiffs' claims  against Ashford            "exceed the coverage limits provided by" CIS to Ashford.  The            truth of this  answer was  known to plaintiffs  as it is  not            disputed that  the policies were  produced pretrial.   In the            course of trial,  the parties conferred  with the court  with            respect  to  the  charge   and  special  questions,  and  the            following ensued.                           MR. CORDERO (for plaintiffs):   Your                      Honor, I would like the record to reflect                      that  last  night  all of  us  agreed  in                      chambers  that if there is a judgment for                      or against  the hospital, the  Court will                      enter  a  similar  judgment  against  the                      insurance company, Corporacion Insular de                      Seguros, in accordance with the terms and                      conditions of the policy.                           THE COURT:   That was the agreement,                      I remember.                           MR.   CORDERO:      That   was   the                      agreement, your Honor.                           MR.  FUSTER:   But  we didn't  agree                      that  judgment would  be entered  in that                      sense, but that is the way it should be.                           THE COURT:  Well, yes, you did agree                      that a  judgment be  entered to  the-- in                                            ____________________            5.  The  question of the  insurer's failure to  settle is not            before us.                                         -15-                      accordance with the terms  and conditions                      of the  policy.  That's certain.  Because                      otherwise it  would  be officious.    You                      know,  I agreed  to something  but missed                      nothing.  We don't play games here.                           MR.  FUSTER:    What  I  mean,  your                      Honor,  is that  I agree  to it now.   We                      didn't discuss it last night.                           THE COURT:  No, we so much discussed                      it that if you remember we agreed whether                      we  should  say  "to  the  limit  of  the                      policy,"  and  all   that,  and  then  we                      reached  the  agreement  to  say  that in                      accordance with the terms  and conditions                      of the policy.                           So do we agree  now that that is the                      agreement?                           MR. FUSTER:  Sure, we agree.                           MR.    CORDERO:        That's    the                      stipulation, Your Honor.            (TT-A 1074-75).                      Unhappily  the court's  statement,  "We don't  play            games here" proved  to be a false  prophesy.  The  first game            before  us  is  found  in  plaintiffs'  brief.   "Before  the            instructions were read  by the  trial judge to  the jury  all            parties stipulated to  the court  that '. . . if  there is  a            judgment for or against  the hospital the court will  enter a            similar judgment  against the insurance  company, Corporacion            Insular de Seguros.'   (TT-A 1074)."  When we  check the cite            we discover  that the period  appearing in their  brief after            "de  Seguros"  is plaintiffs'.   In  the  transcript it  is a            comma, followed by the  modification, "in accordance with the                                         -16-            terms and  conditions of the  policy."  One does  not have to            look to the familiar principle that all words are presumed to            have meaning to recognize that  there is a difference between            liable and liable in accordance with the terms and conditions            of the  policy.   On reading  the transcript  further, quoted            supra,  we find that the  phrase plaintiffs chose  to omit in            _____            the  brief,  cut off  by  their false  period,  was precisely            intended as a paraphrase of "to the limit of the policy."  We            are astonished.                      There follow a number  of other contentions.  These            not  only do  not  answer the  above,  but they  are  equally            unpersuasive  in  themselves.   We  give  one example:    CIS            allegedly  waived the policy limit  by not listing  it in the            pre-trial memorandum  under Contested Issues.   It was  not a            contested  issue.     Plaintiffs  admitted  in  the   amended            complaint  that  they  were  not claiming  above  any  limit;            defendant's answer asserted there was a limit; plaintiffs had            seen the policies, and knew what it was.  Now they say it was            waived.  These are  the plaintiffs who charge  that defendant            CIS's  attempt to  assert  the policy  limits is  "misleading            double talk."                      The verdicts and judgments are vacated and the case            remanded  for further proceedings  not inconsistent with this            opinion.   These  should  be held  before a  different judge.            Rivera-Lopez v. Mun. of  Dorado, 979 F.2d 885, 887  (1st Cir.            ____________    _______________                                         -17-            1992).    Any  supersedeas bond  is  vacated,  with costs  to            appellants  in  Nos.  92-1861;  92-1862; and  92-1914.6    In            others, no costs.                                            ____________________            6.  This  obligation stands  even  if  plaintiffs  ultimately            recover.  Furthermore, if plaintiffs ultimately recover, they            are to receive no costs in connection with the first trial.                                         -18-
