
USCA1 Opinion

	




          October 8, 1992                                 ____________________          No. 92-1274                                  SANDRA G. WILDER,                                 Plaintiff, Appellee,                                          v.                            WARREN F. EBERHART, M.D., AND                                CONCORD CLINIC, INC.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                             and Hornby,* District Judge.                                          ______________                                _____________________               Robert M. Larsen, with whom William D. Pandolph and Sulloway               ________________            ___________________     ________          Hollis & Soden, were on brief for appellants.          ______________               John  Pierce  Kalled, with  whom  Douglas  P. Hendrickx  and               ____________________              _____________________          Kalled Law Offices, were on brief for appellee.          __________________                                 ____________________                                 ____________________                                        ____________________          *  Of the District of Maine, sitting by designation.                    TORRUELLA, Circuit  Judge.  Doctor Warren  F. Eberhart,                               ______________          ("Dr.  Eberhart") appeals  an adverse  judgment rendered  in this          medical malpractice  action, stemming from  a suit  filed by  his          former  patient Sandra  Wilder ("Ms.  Wilder").   On  appeal, Dr.          Eberhart raises the issue of whether the district court committed          reversible error  in excluding  and/or  limiting rebuttal  expert          testimony to that which could be  expressed quantifiably in terms          of "probability."  Because  we agree with Dr. Eberhart,  that the          district court erred in  limiting his defense expert's testimony,          we vacate the judgment and remand for a new trial.                                      BACKGROUND                                      BACKGROUND                                      __________                    On May  21, 1985, Ms.  Wilder, a Vermont  resident, saw          Dr. Eberhart in his Concord New Hampshire office for consultation          regarding Ms. Wilder's obesity  and the medical options available          to  control  her weight  problem.    Following the  consultation,          Dr. Eberhart determined that  Ms. Wilder  was a  candidate for  a          vertical banded gastroplasty ("VBG")  or vertical stapling of the          stomach.   Ms.  Wilder was  admitted to  the Concord  Hospital on          June 11, 1985, under  the care  of Dr. Eberhart.   The  following          day, June 12, 1985, Dr. Eberhart performed the VBG on Ms. Wilder.          The  procedure went  uneventfully  until near  the  end when  Dr.          Eberhart noticed a 3 to 3.5 centimeter tear in Ms. Wilder's lower          esophagus.  The  tear was repaired by suturing  the tear and then          suturing a fold of  the gastric tissue around  the tear site  for          additional  support     --  a   procedure  known   as  a   Nissen          fundoplication.   Following the operation, Ms. Wilder was sent to                                         -2-          the recovery room.                    On  the  following day,  June  13,  1985, Dr.  Eberhart          determined  that there was still leakage  at the lower esophagus.          He  operated  again that  same day  and  discovered two  tears in          Ms. Wilder's lower  esophagus.   The  tears  were repaired.    On          June 20, 1985, Dr. Eberhart  decided to operate again when  an X-          ray  revealed that the lower esophagus and upper stomach were not          healing properly.   During the operation, it was  discovered that          the  lower esophagus  and upper  stomach were  no longer  viable.          Thus Dr. Eberhart removed  that dead tissue  and sewed the  upper          side of the  stomach closed.   The remainder  of the stomach  was          reconnected  to  the  esophagus.    Eventually,  Ms.  Wilder  was          transferred  to the Dartmouth-Hitchcock Medical Center, where she          remained hospitalized for 101 days until her  release in November          of 1985.                    Ms.  Wilder filed  this  diversity suit  in the  United          States District Court  for the District of New  Hampshire against          Dr. Eberhart and the Concord Clinic alleging amongst other things          negligence on behalf of Dr. Eberhart in mobilizing the  esophagus          during surgery, causing her recurring  esophageal injury.  A jury          awarded Ms. Wilder $685,000 in damages.                                      The Trial                                      The Trial                                      _________                                 I. Expert Testimony                                 I. Expert Testimony                                 ___________________                    Dr. Saul Frank  Weinstein ("Dr. Weinstein"), a  general          surgeon from  Philadelphia,  testified via  video  deposition  as          plaintiff's expert.   Dr.  Weinstein categorically ruled  out any                                                                         -3-          possibility that instrumentation could  have caused the injury to          Ms.   Wilder's  esophagus.     Further,   he  concluded   without          reservation  that the  sole  cause of  the esophageal  injury was          mobilization  of the  esophagus by  Dr. Eberhart  during  the VBG          procedure.                                            On  the fourth day of trial, three days after the video          deposition of  Dr. Weinstein  was presented, the  defendants were          prepared  to  introduce  their  expert witnesses,  Dr.  David  J.          Sugarbaker ("Dr. Sugarbaker"), Assistant  Professor of Surgery at          Harvard Medical  School and Chief of Thoracic  Surgery at Brigham          and Women's  Hospital, and  Dr. Edward  Mason ("Dr.  Mason"), the          developer  of the VBG technique.   Both were  prepared to testify          that other  "possible" causes of the  esophageal injury1 existed.          Just  moments  before  Dr. Sugarbaker's  testimony,  Ms. Wilder's          counsel  filed a Second Motion  in Limine seeking  to exclude any          opinion  testimony  by  defendants'  experts that  could  not  be          expressed in  terms of "probability" as  distinguished from "mere          possibility."                    Ms. Wilder's counsel argued that by presenting evidence          of  particular  possible  causes  of the  injury,  defendant  was                                        ____________________          1  Defendants' experts were to testify  as to each possible cause          of  Ms. Wilder's  esophageal tear.   Moreover,  the experts  were          going  to   rank  the  possibilities  in   order  of  likelihood,          reflecting  the most  likely causes.   Out  of this  ranking, the          defendants' experts  would conclude that the most likely cause of          Ms.  Wilder's injury  was  the passage  and  manipulation by  the          anesthesiologist  of certain instruments  -- the Nasogastric tube          or  the Maloney  dilator  -- through  or  in the  esophagus,  and          correspondingly, that the least likely of the possible causes was          mobilization of the esophagus by Dr. Eberhart.                                            -4-          raising an affirmative  defense which shifted  the burden to  Dr.          Eberhart to prove that another  cause, other than manipulation of          the  esophagus during  surgery,  was more  probably than  not the          cause of the tears to the esophagus.  Defense counsel argued that          it was entitled to put on testimonial evidence to the effect that          no one,  including Ms. Wilder's expert, Dr.  Weinstein, should be          able to say more probably than not the cause of the tears  to the          esophagus  was manipulation  or  mobilization  of the  esophagus.          Defense counsel  also argued that  the burden of  proof regarding          causation did not shift to the defense, and further, that defense          experts were entitled to  testify as to other possible  causes of          the esophagus tears in rebuttal of the claims made by plaintiff's          witnesses.                                    STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    Generally, the decision whether  or not to admit expert          testimony  is a matter within  the sound discretion  of the trial          judge.  Int'l Adhesive Coating Co., Inc. v. Bolton Emerson Int'l,                  ________________________________    ____________________          851  F.2d  540, 544  (1st Cir.  1988)  (citing Lynch  v. Merrell-                                                         _____     ________          National Laboratories, 830 F.2d 1190, 1196-97 (1st Cir. 1987)); 3          _____________________          J. Weinstein &  M. Berger, Weinstein's Evidence   703[1], at 703-                                     ____________________          04  (1987)).  The trial  judge's decisions will  not be disturbed          absent a clear abuse of that discretion  or an error of law.  Id.                                                                        __          (citing  DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1st                   _______    _____________________          Cir. 1988)).  We  find that the trial judge committed clear error          in prohibiting  defendant's experts  from testifying as  to other          possible  causes in  rebuttal of  Dr. Weinstein's  testimony, and                                         -5-          thus we vacate and remand the case for a new trial.                                      DISCUSSION                                      DISCUSSION                                      __________                    Plaintiff's Second Motion  in Limine  cited Emerson  v.                                                                _______          Twin State Gas and Electric Co.,  174 A. 779 (N.H. 1934), for the          _______________________________          proposition  that  "the  opinion  testimony  of  a  physician  is          admissible if stated within  reasonable medical probability."  In          granting  plaintiff's  Second  Motion  in  Limine  to  limit  the          testimony  of Drs. Sugarbaker  and Mason, the  trial judge agreed          with the  defendants that the burden of  proof did not shift, yet          he cited Bentley v. Adams, 128 A.2d 202 (N.H. 1956)  and Brann v.                   _______    _____                                _____          Exeter Clinic, Inc., 498 A.2d 334 (N.H. 1985), concluding that to          ___________________          admit  testimony of  possibilities  would result  in  "reversible          error."  (Tr. Vol. 4 p. 52).  This effectively shifted the burden          somewhat  to  the defendant,  because he  now  had to  prove more          probably than  not, that another cause, not manipulation, was the          cause of Ms. Wilder's injury.   Besides finding that  these cases          stand for other principles inapplicable to the facts presented by          this  case,2 our  review of applicable  case law leads  us to but          one conclusion; that the  trial court committed a clear  error of          law in excluding defendants' expert rebuttal testimony.                    It is  well settled under  New Hampshire  law that  the          burden   of  proof  with  respect   to  causation  in  a  medical                                        ____________________          2    These cases  generally refer  to  the plaintiff's  burden of          proof; that the plaintiff must prove his case within a reasonable          degree of  medical certainty.  They  are silent as to  whether or          not a defendant in a medical malpractice action or any negligence          action   may  present   "possibility"  evidence   when  rebutting          plaintiff's "probability or certainty" evidence.                                         -6-          malpractice   case  rests   and  remains   with  the   plaintiff.          Pillsbury-Flood v. Portsmouth Hospital, 512 A.2d 1126, 1129 (N.H.          _______________    ___________________          1986).  Moreover, proximate  causation between negligence and the          injury complained  of  in  a medical  malpractice  case  must  be          established by  expert testimony.   Martin v.  Wentworth-Douglass                                              ______     __________________          Hospital, 536 A.2d 174, 176 (N.H.  1987).  On the other hand, the          ________          defendant need not disprove  causation.  Rather, he  must produce          credible  evidence   which  tends  to  discredit   or  rebut  the          plaintiff's evidence.   Tzimas v. Coiffures By  Michael, 606 A.2d                                  ______    _____________________          1082,  1084  (N.H. 1992).   As  the  New Hampshire  Supreme Court          recently stated in  Tzimas, the plaintiff in  a negligence action                              ______          bears the burden of producing evidence "to prove that it is  more          likely  than not  that [plaintiff's]  injury was"  caused  by the          defendant's  negligence.  Tzimas,  606 A.2d  at 1084.   Defendant                                    ______          need not prove another  cause, he only has to  convince the trier          of fact  that the alleged negligence  was not the legal  cause of          the injury.  Id.  In proving such a case, a defendant may produce                       ___          other "possible" causes  of the plaintiff's injury.   These other          possible  causes  need  not  be  proved  with  certainty  or more          probably  than not.   To fashion such  a rule would  unduly tie a          defendant's hands in rebutting a plaintiff's case, where as here,          plaintiff's  expert  testifies that  no  other  cause could  have          caused plaintiff's  injury.   The  burden  would then  shift  and          defendant would then bear  the burden of positively proving  that          another  specific  cause,  not  the  negligence   established  by          plaintiff's expert, caused  the injury.  Certainly, this  is much                                         -7-          more than what  should be required of a  defendant in rebutting a          plaintiff's evidence.                    Were  we to  accept  plaintiff's argument  that once  a          plaintiff puts on a prima facie case, a defendant cannot rebut it          without  proving another  cause,  the resulting  inequities would          abound.   For example if  ninety-nine out of  one hundred medical          experts  agreed that there were four equally possible causes of a          certain injury,  A, B, C  and D,  and plaintiff produces  the one          expert  who conclusively states that  A was the  certain cause of          his  injury, defendant  would  be precluded  from presenting  the          testimony of  any of the  other ninety-nine experts,  unless they          would  testify conclusively  that B,  C,  or D  was the  cause of          injury.   Even  if all  of defendant's  experts were  prepared to          testify that any of  the possible causes A, B, C or D, could have          equally  caused plaintiff's  injury,  so long  as  none would  be          prepared  to  state that  one particular  cause, other  than that          professed by plaintiff more  probably than not caused plaintiff's          injury,  then defendant's experts would not be able to testify at          all as  to causation.    We think  that such  a  result does  not          reflect  the state of the  law in New  Hampshire, and furthermore          would be manifestly unjust and unduly burdensome on defendants.                    Under the circumstances of  this case, Dr. Eberhart was          prejudiced  by the granting of  the Second Motion  in Limine, and          this prejudice constituted reversible  error.  Thus, the judgment          in favor of plaintiff is vacated and remanded for a new trial.                    Vacated and remanded.                    Vacated and remanded.                    ____________________                                         -8-
