                                                                     FILED
                                                         United States Court of Appeals
                          UNITED STATES COURT OF APPEALS         Tenth Circuit

                                           TENTH CIRCUIT                    July 26, 2010

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 EDWARD POCHE; CYNTHIA POCHE,

         Plaintiffs–Appellees,

 v.

 RAOUL JOUBRAN, MD;
 GASTROENTEROLOGY ASSOCIATES,
 P.C.,

         Defendants–Appellants,                                 No. 09-8055
                                                      (D.C. No. 2:07-CV-00213-CAB)
 MARY E. MACGUIRE, MD - Doctor of                                (D. Wyo.)
 Medicine; JAMES ANDERSON; WYOMING
 SURGICAL ASSOCIATES, PC,

                Defendants,
 ---------------------------------------

 UNITED STATES OF AMERICA,

                Intervenor–Appellee.



                                   ORDER AND JUDGMENT*


Before KELLY, HOLLOWAY, and LUCERO, Circuit Judges.

       * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
      Dr. Raoul Joubran and Gastroenterology Associates, P.C., (collectively,

“Joubran”) appeal a jury verdict in favor plaintiffs Edward and Cynthia Poche.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                              I

      In February 2005, Army Sergeant Edward Poche underwent surgery to remove his

gallbladder. In July of the same year, Poche sought treatment from Joubran for

abdominal pain. Joubran performed an esophagogastroduodenoscopy (“EGD”)1 to

identify the source of the pain. Based on the EGD findings, Joubran subsequently

performed an endoscopic retrograde cholangiopancreatography (“ERCP”)2 and a

sphincterotomy.3

      Poche was discharged from the hospital the evening of the ERCP, but returned the

next morning with severe abdominal pain. Joubran examined Poche two days after the

ERCP surgery, and contacted a surgeon who examined Poche the following day. The

surgeon diagnosed Poche with a perforation of the duodenum that required emergency

surgery. Poche’s condition continued to deteriorate, and a third physician performed five


      1
       In an EGD, a physician inserts a scope down the esophagus and through the
stomach into the duodenum to examine the upper digestive tract.
      2
        An ERCP involves inserting a scope into the duodenum via the esophagus. A
small catheter is then inserted into the common bile duct.
      3
          A sphincterotomy is the cutting of a sphincter muscle.

                                            -2-
additional surgeries to try to stabilize his condition. After several weeks, Poche was

transferred to Bethesda Naval Hospital, where he endured more than two dozen

additional surgeries and recovered for approximately four and a half months. The United

States covered the cost of Poche’s medical care and paid Poche’s salary during his

recovery.

       Invoking diversity jurisdiction, Poche and his wife Cynthia filed suit in federal

district court against Joubran, two other physicians, and their medical corporations,

asserting the defendants negligently breached their duties of care in their treatment of

Poche. The United States successfully moved to intervene to assert its right to recovery

under the Medical Care Recovery Act, 42 U.S.C. § 2651 et seq.

       The case was tried before a jury in March and April 2009. During voir dire, each

side was provided with three peremptory challenges. Joubran did not object to the

number of peremptory challenges or contend that he had been deprived of his right to an

impartial jury. Counsel for Joubran stated he was satisfied with the jury.

       At trial, plaintiffs called a board-certified gastroenterologist to testify regarding

the standard of care. They also elicited expert testimony from general surgeon Dr. David

Livingston after the district court denied Joubran’s motion in limine seeking to preclude

such testimony, and cross-examined two other medical experts retained by Joubran’s co-

defendants, Drs. Demarest and Mackersie. The jury ultimately returned a verdict in favor

of the Poches against Joubran and one co-defendant. Joubran timely appealed.

                                              II
                                             -3-
       Joubran requests a new trial, arguing that the district court erred in permitting

Livingston to testify as an expert and by allowing the Poches to cross-examine medical

experts retained by Joubran’s co-defendants regarding the applicable standards of care.

“We review de novo the question whether the district court applied the proper legal

standard in admitting an expert’s testimony; we then review for abuse of discretion its

actual application of the standard.” Neiberger v. FedEx Ground Package Sys., 566 F.3d

1184, 1189 (10th Cir. 2009) (citation omitted). We will not disturb the trial court’s

decision to admit evidence unless we have “a definite and firm conviction that the lower

court made a clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir. 1991)

(quotations omitted). Moreover, “if there is error in the admission or exclusion of

evidence, we will set aside a jury verdict only if the error prejudicially affects a

substantial right of a party.” Hinds v. General Motors Corp., 988 F.2d 1039, 1049 (10th

Cir. 1993) (citations omitted).

       In the Tenth Circuit, a district court assesses the admissibility of expert testimony

using a two-step analysis: First, the court must determine if the expert is qualified by

“knowledge, skill, experience, training, or education,” Fed. R. Evid. 702, to render an

expert opinion. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th

Cir. 2001). If the expert is so qualified, the court must then assess “whether her opinions

were ‘reliable’ under Daubert [v. Merrell Dow Pharmaceuticals, Inc.], 509 U.S. 579

[(1993)], and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).” Ralston, 275
                                             -4-
F.3d at 969 (alternative citations omitted).



                                               A

       Joubran asserts that we should review the district court’s decision to admit the

challenged expert testimony de novo because the court failed to properly assess reliability

under Daubert. This argument mistakes our standard of review. We review de novo only

“whether the district court applied the proper standard and actually performed its

gatekeeper role in the first instance.” Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th

Cir. 2003). There can be little doubt that the district court properly recognized its gate-

keeping function. Before permitting Livingston to opine as to Joubran’s treatment of

Poche, the court allowed Joubran’s counsel to repeatedly voir dire the witness and

independently asked several questions regarding Livingston’s experience diagnosing the

need for ERCPs in patients presenting abdominal pain. Only after the court was satisfied

that Livingston had the “experience . . . sufficient to form an opinion on these matters”

was the testimony allowed. Similarly, when Joubran objected to the Poches’ cross-

examination of Demarest regarding his procedure for diagnosing duodenum perforations,

the court permitted only questions that “this doctor, particularly, has the expertise to

answer.” Joubran did not object at the time Mackersie provided similar testimony.

       Although Joubran frames this issue as one attacking the district court’s failure to

conduct the proper analysis, he is actually challenging only the manner in which the court

considered his objection. Because the court “performed its gatekeeper role in the first
                                               -5-
instance,” id., we review its application of Daubert for abuse of discretion.



                                              B

       In a civil action, state law controls whether a witness is competent to testify “with

respect to an element of a claim or defense as to which State law supplies the rule of

decision.” Fed. R. Evid. 601; see also McDowell v. Brown, 392 F.3d 1283, 1295 (11th

Cir. 2004); Legg v. Chopra, 286 F.3d 286, 289-93 (6th Cir. 2002). Joubran contends that

Wyo. Stat. § 1-12-601 supplies such a rule of decision. That statute provides that a

plaintiff alleging negligence by a health care provider who “is certified by a national

certificating board or association” must establish that the defendant “failed to act in

accordance with the standard of care adhered to by” the certifying body. Id.

       Joubran does not argue that evidence as to the standard of care for board-certified

gastroenterologists was lacking; the Poches called a board-certified gastroenterologist to

provide that testimony. Instead, Joubran claims that § 1-12-601 establishes a per se rule

that only board-certified specialists may provide expert testimony against a board-

certified specialist. He cites to Legg, in which the Sixth Circuit interpreted a similar

Tennessee state statute. 286 F.3d at 290-91. However, the Tennessee statute under

consideration in that case expressly provided that individuals lacking board certification

are not “competent to testify in any court of law” as to the proper standard of care. Tenn.

Code § 29-26-115(b). The text of the Wyoming statute does not include a similar

restriction on witness competency—it does not reference witness competency at all, but
                                            -6-
simply states the elements of a malpractice action.

       Moreover, Wyoming case law belies Joubran’s interpretation. In Armstrong v.

Hrabal, 87 P.3d 1226 (Wyo. 2004), plaintiffs sought to establish the standards of care for

an emergency room physician by introducing testimony from a physician who was board-

certified in internal medicine and infectious disease. Id. at 1232-33. The trial court

sustained an objection to preclude this testimony on the ground that the proffered expert

was “not in the same line of practice.” Id. at 1233. The Wyoming Supreme Court

reversed, holding that the expert was “sufficiently familiar with the standard of care in

treating infectious disease in the emergency room that [his] testimony would assist the

jury in determining facts in issue.” Id. at 1237.

       Neither the text of the statute nor the interpretive Wyoming case law suggests the

per se rule Joubran asserts here. Accordingly, the district court did not err by declining to

disqualify all medical experts merely because they are not board-certified

gastroenterologists.

                                             C

       In addition to his statutory argument, Joubran claims that Livingston, Demarest,

and Mackersie were not qualified to provide expert testimony under Fed. R. Evid. 702

and Daubert.4 We disagree.


       4
        It is unclear whether Joubran contends that other provisions of Wyoming law
supply rules addressing the qualification of experts applicable here through Rule 601. To
the extent he advances such an argument, we note that Wyo. R. Evid. 702, like its federal
                                                                             Continued . . .
                                            -7-
       The district court did not abuse its discretion in admitting Livingston’s testimony.

Livingston rendered standard of care opinions regarding two issues: (1) when Joubran

should have consulted a surgeon regarding Poche’s condition after Poche returned to the

hospital; and (2) whether Joubran should have performed the ERCP and sphincterotomy

without first performing non-invasive procedures to diagnose Poche’s abdominal pain.

We are not convinced that the district court made a clear error of judgment in admitting

this testimony. Livingston is a general surgeon and chief of the trauma division at a

tertiary care center, serves as the Wesley J. Hue Professor of Trauma Surgery at New

Jersey Medical School, and has written on abdominal emergencies and abdominal

trauma. He encounters six to twelve duodenal injuries a year, including perforations, and

his regular duties include diagnosing gastrointestinal perforations and determining

whether to operate. As for his qualifications to testify regarding the second issue,

Livingston testified he had extensive experience diagnosing abdominal pain, interpreting

EGDs, and diagnosing whether ERCPs are necessary as part of his “day-to-day” work.

       Joubran’s assertions that Livingston was not qualified to testify because he does

not perform ERCPs are unavailing. Livingston did not testify about the standard of care

in performing ERCPs, nor did he suggest that Joubran negligently conducted Poche’s

ERCP. Livingston only testified as to the standard of care for deciding whether an ERCP



counterpart, provides that a witness qualifies as an expert if she possesses the
“knowledge, skill, experience, training, or education” to assist the trier of fact in
understanding the evidence or determining a fact at issue.

                                             -8-
is proper and when a surgical consult should be sought—matters in the overlapping areas

of expertise of general surgery and gastroenterology.5

       Joubran similarly argues that the district court erred in permitting the Poches to

question Joubran’s co-defendants’ experts with respect to the standard of care for

diagnosing duodenum perforations. Like Livingston, however, these witnesses did not

stray from their areas of expertise. Demarest was cross-examined regarding his

experience diagnosing abdominal perforations. He is a board-certified general and

critical care surgeon, who diagnoses and treates duodenum perforations as “part and

parcel of [his] practice.” Specifically, Demarest testified that he was experienced in

managing duodenum perforations following ERCPs.6

       Mackersie was also cross-examined regarding his practice in diagnosing

duodenum perforations. Like Demarest, Mackersie is a board-certified general and

critical care surgeon. Mackersie also testified that he was experienced in managing

duodenum perforations following ERCPs. Because none of these witnesses strayed from

his qualified area of expertise, we conclude that admitting their testimony fell within the

“bounds of permissible choice in the circumstances.” McEwen, 926 F.2d at 1554


       5
         The Wyoming courts have recognized that a standard of care may overlap several
disciplines. See Beavis v. Campbell County Mem. Hosp., 20 P.3d 508, 512-13 (Wyo.
2001).
       6
        Moreover, Demarest testified that he was not critical of Joubran’s treatment, and
Joubran agreed that Demarest’s testimony did not harm his case.


                                            -9-
(quotation omitted).

                                              D

       Joubran further contends that the district court violated the law of the case doctrine

by admitting the testimony from Mackersie and Demarest after a magistrate judge denied

the Poches’ motion to compel an additional deposition of Mackersie. Under the law of

the case doctrine, “when a court decides upon a rule of law, that decision should continue

to govern the same issues in subsequent stages in the same case.” Dobbs v. Anthem, 600

F.3d 1275, 1279 (10th Cir. 2010). But “[o]nly final judgments may qualify as law of the

case,” Unioil, Inc. v. Elledge (In re Unioil, Inc.), 962 F.2d 988, 993(10th Cir. 1992), and

“district courts generally remain free to reconsider their earlier interlocutory orders,”

Been v. O.K. Indus., 495 F.3d 1217, 1225 (10th Cir. 2007); see also Allison v. Bank One-

Denver, 289 F.3d 1223, 1247 (10th Cir. 2002) (“A lower court’s ability to depart from its

own prior decisions is discretionary.”).

       The magistrate judge’s order upon which Joubran relies was issued in response to

a motion filed by the Poches seeking sanctions and an additional deposition of Mackersie.

The Poches filed this motion after counsel for a co-defendant instructed Mackersie not to

answer questions at his deposition. Although the magistrate judge’s order discusses

Mackersie’s qualifications to opine on gastroenterology issues, it did not purport to be the

final order governing the question of admissibility; rather, the order addressed the scope

of discovery. Because the order did not finally decide the issue of admissibility, the law

of the case doctrine did not preclude the district court’s decision to permit Demarest and
                                            - 10 -
Mackersie to testify.7

                                             III

       Joubran’s final argument is that he was denied a fair and impartial jury because he

was not granted extra peremptory challenges, resulting in a jury biased against a

defendant of Middle Eastern descent because two jurors shared Poche’s military

background. Because Joubran did not object below, we review this claim for plain error.

See Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1020 (10th Cir. 2000). To establish plain

error, Joubran must demonstrate “plain error that affected [his] substantial rights. The

plain error exception in civil cases has been limited to errors which seriously affect the

fairness, integrity or public reputation of judicial proceedings. It is an extraordinary,

nearly insurmountable burden.” Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 802 (10th

Cir. 2001).

       By statute, each party in a civil case is entitled to three peremptory challenges, but

“[s]everal defendants . . . may be considered as a single party for the purposes of making

challenges.” 28 U.S.C. § 1870. Joubran contends that, although he and his co-defendants

were granted a total of three peremptory challenges, he was denied a fair and impartial

jury because he was not granted extra peremptory challenges. Due process entitles a civil

litigant to a fair trial, including an impartial jury. See Skaggs v. Otis Elevator Co., 164

F.3d 511, 515 (10th Cir. 1998). “To violate due process, the bias must affect the juror’s

       7
        Further, the order does not mention Demerest, and thus cannot govern the
admissibility of his testimony.

                                            - 11 -
ability to impartially consider the evidence presented at trial.” Id.

       Joubran has failed to present evidence demonstrating jurors were plainly biased

such that they could not impartially consider the evidence at trial. The mere fact that two

jurors had military backgrounds, as did Poche, does not suggest they were biased.

Joubran points to an exchange that occurred while Poche was attempting to explain the

duties of a warrant officer. Poche directed his testimony to a particular juror, stating: “A

warrant officer—how do I explain this? I know you will understand. Maybe you can

help explain it.” An unidentified juror replied, “Subject matter expert.” Although

unusual and perhaps even inappropriate, this exchange falls well short of meeting

Joubran’s “nearly insurmountable burden” to show that a plain error affected his

substantial rights and “the fairness, integrity or public reputation of judicial proceedings.”

Phillips, 244 F.3d at 802.

                                             IV

       For the forgoing reasons, we AFFIRM.



                                                     Entered for the Court


                                                     Carlos F. Lucero
                                                     Circuit Judge




                                            - 12 -
