                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 17-2870
                                     _____________

                         ESTATE OF BERNICE GOLDBERG
                         BY EXECUTOR GARY GOLDBERG,
                                             Appellant

                                             v.

         PHILIP NIMOITYN, M.D., JOHN DOES 1-10; JANE DOES 1-10;
           CORPORATE DOES 1-10; KENNETH ROSENBERG, M.D.;
     MITUL KANZARIA, M.D.; MICHAEL BARAM, M.D.; JAY SELLERS, M.D.;
      CARDIOVASCULAR MEDICAL ASSOCIATES; THOMAS JEFFERSON
                        UNIVERSITY HOSPITAL
                             ____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 2-14-cv-00980)
                      District Judge: Honorable Gerald A. McHugh

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   April 13, 2018

    Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge ∗.

                              (Opinion Filed: May 10, 2018)
                                     ____________

                                        OPINION †
                                      ____________


∗
  The Honorable Susan R. Bolton, Senior United States District Judge for the District of
Arizona, sitting by designation.
†
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
BOLTON, District Judge.

       The Estate of Bernice Goldberg, by Executor, Gary Goldberg (“Appellant”),

appeals from the district court’s order denying its motion for a new trial after a jury trial

and verdict in favor of Philip Nimoityn and Thomas Jefferson University Hospital

(collectively “Appellees”) on a medical negligence claim. For the reasons set forth below,

we will affirm the district court’s decision.

                                                I.

       Bernice Goldberg, an 80-year-old woman, was admitted to the hospital several

times during the late spring and summer of 2011 due to myriad illnesses and conditions.

Some admissions were for extended durations, with one lasting over a month. Ms.

Goldberg suffered from chronic obstructive pulmonary disease (“COPD”), end-stage

congestive heart failure, dementia, probable cancer, 1 and various acute illnesses,

including a recurrent clostridium difficile infection. During a hospital admission in July,

the attending physician diagnosed her with failure to thrive.

       On August 11, 2011, Ms. Goldberg was admitted to Thomas Jefferson University

Hospital. Upon admission, Ms. Goldberg had an elevated white blood cell count, was

short of breath and required oxygen, and was experiencing loose bowel movements

containing blood. Medical professionals attempted to place a nasogastric (“NG”) feeding

tube on August 15 but were unsuccessful. On August 16, the medical team consulted with


1
 During one of Ms. Goldberg’s admissions, a scan revealed an abnormal mass in her
pancreas that doctors thought was likely malignant. The family chose not to have the
mass biopsied because they felt Ms. Goldberg would not be able to tolerate chemotherapy
even if the mass were cancerous.
                                                2
Gary Goldberg, Ms. Goldberg’s son, regarding the placement of a percutaneous

endoscopic gastronomy (“PEG”) feeding tube, and the procedure was scheduled for the

next morning. On August 17, however, Ms. Goldberg expressly refused placement of a

PEG tube and promised her doctors she would eat. Her children requested that the PEG

tube be placed despite her wishes, and the treating physician ordered a psychiatric

consultation to determine whether Ms. Goldberg was competent to make her own

medical decisions. The psychiatric evaluation took place on August 18, and the attending

psychiatrist deemed Ms. Goldberg incompetent. Placement of the PEG tube was

rescheduled for August 19. In the meantime, however, Ms. Goldberg’s condition

declined. She became hypoxic and developed aspiration pneumonia. Ms. Goldberg was

transferred to the intensive care unit on August 19 and passed away on August 24, 2011.

Appellant subsequently filed this medical negligence claim, claiming that Ms. Goldberg

died prematurely due to an unjustified delay in placing her PEG tube.

       Appellees’ expert, E. Gary Lamsback, M.D., prepared a pretrial report in which he

opined that the delay in placing Ms. Goldberg’s feeding tube was appropriate. While

preparing his report, however, he mistakenly assumed that a history and physical taken

on August 19 was a continuation of the history and physical taken at admission, on

August 11 and 12. He therefore cited Ms. Goldberg’s aspiration pneumonia as a factor

that made placement of a PEG tube too risky earlier in admission when, in fact, Ms.

Goldberg was not diagnosed with aspiration pneumonia until August 19.

       At trial, defense counsel showed him both history and physical reports and asked

him whether they affected his report. Dr. Lamsback explained his mistake. Defense

                                            3
counsel then asked if the report contained “a typographical error” because of the mistake.

Appendix (“App.”) at 42. Dr. Lamsback responded, “Yeah, but it didn’t change my

conclusions. . .” Id. Defense counsel then asked Dr. Lamsback to opine whether it was

safe to place a PEG tube in Ms. Goldberg on August 12. Plaintiff’s counsel objected and

at sidebar indicated that he did not know what Dr. Lamsback’s opinion would be because

his report was based on the mistaken assumption that Ms. Goldberg had aspiration

pneumonia on admission. Plaintiff’s counsel also indicated he had struggled with whether

to file a motion concerning this issue before trial. The district court allowed Dr.

Lamsback to answer the question, and he opined that, even without aspiration

pneumonia, a tube should not have been placed on August 12 due to Ms. Goldberg’s

infection and breathing problems. Plaintiff’s counsel cross-examined Dr. Lamsback, who

admitted that aspiration pneumonia was one of the factors that informed his original

opinion in his report.

       At the end of the trial, the jury returned a verdict in favor of Appellees. Appellant

moved for a new trial arguing that Dr. Lamsback’s opinion should not have been

admitted because it was beyond the scope of his expert report. Appellant also sought a

new trial arguing defense counsel suborned perjury by characterizing Dr. Lamsback’s

mistake as a typographical error and Dr. Lamsback committed perjury by agreeing with

the characterization. The district court found that Dr. Lamsback’s opinion—that

placement of a PEG tube was inappropriate—was adequately expressed and disclosed in

his report. The only difference in Dr. Lamsback’s testimony at trial was that he conceded

that one of the factual bases for his opinion was wrong. The district court also found that,

                                              4
although characterizing the mistake as a typographical error was “disingenuous at best,”

it did not amount to perjury. App. at 7. The district court denied Appellant’s motion, and

Appellant timely appealed.

                                              II.

       Appellant argues that the district court erred in failing to exclude Dr. Lamsback’s

testimony under Federal Rule of Civil Procedure 37(c) for failure to supplement Dr.

Lamsback’s report, failing to exclude Dr. Lamsback’s testimony as beyond the scope of

his expert report, and failing to grant a new trial based on the above failures and based on

perjury and subornation of perjury. We have jurisdiction to review final orders of the

district court. 28 U.S.C. § 1291.

       In general, we review a district court’s denial of a motion for a new trial for abuse

of discretion. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 (3d Cir. 1995).

If the district court’s denial “is based on application of a legal precept, our review is

plenary and, in addition, any findings of fact on which the court’s exercise of discretion

depends are reviewed for clear error.” Id.

       Appellant’s first two arguments are effectively the same—that the district court

should have excluded Dr. Lamsback’s testimony because his opinion on whether a PEG

tube placement was appropriate in the absence of aspiration pneumonia was articulated

for the first time at trial. We review a district court’s decision to admit or exclude

evidence based on a failure to comply with pre-trial requirements for abuse of discretion. 2


2
 For purposes of this appeal, we assume, without finding, that Dr. Lamsback’s report
should have been supplemented before the trial to clarify the error.
                                               5
DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201 (3d Cir. 1978). Four

factors aid us in this consideration: (1) “the prejudice or surprise in fact of the party

against whom” the witness testified; (2) “the ability of that party to cure the prejudice”;

(3) “the extent to which waiver of the rule against calling unlisted witnesses” disrupts

“efficient trial of the case”; 3 and (4) the “bad faith or willfulness in failing to comply

with the court’s order.” Id. at 1201–02.

         Appellant knew about the mistake in Dr. Lamsback’s report before trial. Plaintiff’s

counsel told the district court that he had struggled to decide whether to file a motion

concerning the mistake before trial. Therefore, we cannot conclude that the district court

erred in finding there was no surprise to Appellant. Furthermore, Appellant had the

opportunity to cross-examine Dr. Lamsback and force him to admit that one of the major

bases for his opinion that a PEG tube was contraindicated at admission was false.

Therefore, the district court also did not err in finding that Appellant had the ability to

cure any prejudice. Finally, Appellant fails to raise any argument as to why Appellees’

failure to supplement Dr. Lamsback’s report was in bad faith. Rather, Appellant simply

argues that because Appellees had two years between the report’s creation and trial, they

must have willfully and in bad faith failed to supplement it. Given this dearth of factual

allegations as to how Appellees acted in bad faith, the district court did not err in failing

to find any bad faith. Since all relevant factors weigh in favor of admitting Dr.




3
    This factor is irrelevant because Dr. Lamsback was a listed witness.
                                               6
Lamsback’s opinion, the district court did not abuse its discretion in doing so or in

denying Appellant’s motion for a new trial on this basis.

       Appellant also argues that the district court should have granted a new trial

because defendants’ counsel suborned perjury by characterizing the mistake in Dr.

Lamsback’s report as a “typographical error” and Dr. Lamsback committed perjury by

agreeing with this characterization. A witness commits perjury if he “gives false

testimony concerning a material matter with the willful intent to provide false testimony,

rather than as a result of confusion, mistake, or faulty memory.” United States v.

Dunnigan, 507 U.S. 87, 94 (1993). “We review for clear error a trial court’s factual

finding that a witness’s testimony was not false and we will not disturb that finding

unless it is wholly unsupported by the evidence.” United States v. Hoffecker, 530 F.3d

137, 183 (3d Cir. 2008). The district court found that the characterization of Dr.

Lamsback’s mistake as a typographical error was not perjury because Dr. Lamsback

frankly admitted during both direct and cross-examination that he had mistaken the dates

of the history and physical reports and that Ms. Goldberg did not have aspiration

pneumonia when she was admitted to the hospital. Given that the mischaracterization was

suggested after Dr. Lamsback explained that his report contained a factual error and that

he admitted the same on cross-examination, we conclude that there was no clear error in

the district court’s finding of no perjury. Therefore, it was not an abuse of discretion for

the district court to deny a new trial on this ground.




                                              7
                                           III

      For the foregoing reasons, we will affirm the district court’s decision to deny

Appellant’s motion for a new trial.




                                            8
