                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 02-2238
                                     ___________

Linda Sosna, Individually, as             *
Plaintiff Ad Litem and as Personal        *
Representative of the Estate of           *
Richard S. Sosna,                         * Appeal from the United States
                                          * District Court for the
             Appellant,                   * Eastern District of Missouri.
                                          *
      v.                                  *
                                          *
H. Bradley Binnington, M.D.,              *
                                          *
             Appellee.                    *
                                     ___________

                             Submitted: January 13, 2003

                                  Filed: March 10, 2003
                                   ___________

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

       In 1994, the husband of the appellant, Linda Sosna, died following surgery to
relieve a small-bowel obstruction. Sosna subsequently brought this medical-
malpractice action against the surgeon, Dr. H. Bradley Binnington, in federal court
based on diversity jurisdiction. A jury returned a verdict in favor of Binnington, and
Sosna filed this appeal urging that she be granted a new trial because the District
Court1 committed several evidentiary errors related to the testimony of the defendant's
experts and the defendant himself. We affirm.

                                           I.

       On December 5, 1994, Richard Sosna underwent surgery to relieve an
obstruction in his small bowel. His operation, which included an incidental
appendectomy, was apparently unremarkable, as was his recovery, until the day after
surgery. On December 6, he developed a fever and was started on antibiotics to
combat any wound infection. On December 7, his surgical incision was noted to be
red, infected, and oozing. In response, Binnington reopened the wound, drained it,
and started the patient on a new course of antibiotics. By late in the day on
December 7, Richard Sosna's body was red and swollen from below his belly button
to his thighs, including his genitals. On December 8, he was seen by an infectious
disease consultant who made further changes in his course of antibiotic treatment.
On December 9, an MRI was performed that indicated the presence of air (and,
consequently, a serious, possibly systemic, infection) within the small bowel and
liver. He collapsed late that morning and Binnington returned him to the operating
room early that afternoon; however, Binnington could detect nothing that was
surgically correctable. Richard Sosna died in the early morning hours of
December 10.

       The parties agree that Richard Sosna was killed by an infection but disagree as
to the infection's etiology. Sosna presented a case based on two scenarios in which
Binnington erred in his care of his patient. Sosna presented evidence that suggested
that the cause of the wound infection and of the fatal sepsis (i.e., systemic, blood-born
infection) was leakage of bacteria from the small bowel. This bacteria leaked either


      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

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because Binnington failed to relieve the obstruction during the first surgery—which
caused the bowel to become distended, lose cohesion, and allow the bacteria to
"transmigrate" or "translocate" into the abdomen—or because Binnington failed to
discover that Richard Sosna's small bowel was already leaking bacteria during the
first surgery. Thus, Sosna argued that Binnington either failed to relieve the small-
bowel obstruction or failed to surgically resect (i.e., remove) the injured portion of
bowel before December 9.

       For his part, Binnington presented evidence that Richard Sosna's wound
infection was responding well to treatment and was unrelated to, and distinct from,
his fatal sepsis. Additionally, Binnington's evidence suggested that the physical
evidence, particularly the autopsy report, was inconsistent with plaintiff's theory of
the case. He also presented evidence that the precise cause of the fatal infection was
unknown, that the fatal infection developed later than Sosna argued, and that the fatal
infection likely spread from the small bowel to the liver (via the portal vein) and to
the rest of the body via Sosna's blood. Based on the evidence, Binnington argued, his
surgical care of Richard Sosna was not substandard. The jury found in favor of
Binnington.

                                          II.

       Sosna urges that the District Court committed four evidentiary errors that
prejudiced her case and entitle her to a new trial. Specifically, the appellant contends
that the District Court erred: when it limited the cross-examination of defendant's
expert, Dr. Jeffrey A. Drebin, regarding his personal surgical practices (which
differed from Binnington's); when it allowed defendant's expert, Dr. John S. Daniels,
to testify in areas beyond his expertise; when it allowed the defendant to testify that
the plaintiff's translocation or transmigration theory was questionable and was "not
held in high regard anymore by researchers in the field of surgical sepsis"; and when
it allowed the whole of the pathologist's report into evidence. We disagree and hold

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that, on the record before us, the District Court did not abuse its discretion when it
made these evidentiary rulings.

        The substantive law of Missouri governs this diversity case. See Erie Railroad
Co. v. Tompkins, 304 U.S. 64, 78 (1938). Under Missouri law, a plaintiff in a
medical malpractice suit must prove that, by act or omission, the defendant failed to
use that degree of skill and learning ordinarily used under the same or similar
circumstances by members of his profession and that this negligent act or omission
in fact caused the plaintiff's injury. Washington by Washington v. Barnes Hosp., 897
S.W.2d 611, 615 (Mo. 1995). The Federal Rules of Evidence govern the
admissibility of evidence. See Potts v. Benjamin, 882 F.3d 1320, 1324 (8th Cir.
1989). A district court has broad discretion when it rules on the admissibility of
evidence and we will not disturb such rulings "'absent a clear and prejudicial abuse
of that discretion.'" Hoselton v. Metz Baking Co., 48 F.3d 1056, 1060 (8th Cir. 1995)
(quoting Laubach v. Otis Elevator Co., 37 F.3d 427, 428-29 (8th Cir. 1994)). We
consider Sosna's alleged errors in turn.

                             A. Dr. Drebin's Testimony

       Sosna first argues that the District Court erred when it limited the scope of her
cross-examination of the defendant's expert, Dr. Drebin. The District Court granted
Binnington's motion in limine and ruled that Drebin could not be questioned
regarding his deposition testimony that he was critical of Binnington's actions
because he personally would have administered antibiotics peri-operatively (i.e.,
during surgery), would have decompressed the bowel, and would not have performed
an incidental appendectomy. We think the District Court properly concluded that
these were Drebin's personal practices or opinions and therefore were not relevant to
the standard of care and that, to the extent that they were relevant, they had a
tendency to confuse the jury and to unfairly prejudice the defendant. See Fed. R.
Evid. 403. Sosna's theory of liability did not involve any of the practices that Drebin

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was critical of Binnington for performing (or for not performing). Had Sosna pursued
a theory of liability premised on one of these actions, the associated evidence might
have been admissible as relevant to the standard of care. However, because Sosna's
case was premised on a different theory and chain of events (i.e., the failure to relieve
the obstruction or remove the compromised section of the small bowel), we see no
abuse of discretion in the District Court's ruling.

       Even were we to find that the District Court erred when it limited the cross-
examination, we would not reverse because Sosna was not prejudiced. In this case,
the excluded evidence was not "of a critical nature"; hence, we have a "reasonable
assurance that the jury would have reached the same conclusion had the evidence
been admitted." Adams v. Fuqua Indus., Inc., 820 F.2d 271, 273 (8th Cir. 1987).
Notwithstanding his criticisms of Binnington, the whole of Drebin's testimony in his
deposition was that the defendant's deviations from Drebin's own surgical practices
did not cause the fatal infection and were not a cause of Sosna's death. Thus, in his
deposition, Drebin stated that the failure to administer antibiotics peri-operatively did
not make a difference to Sosna's outcome. Drebin Dep. at 24. Further, with regard
to Binnington's decision not to decompress the small bowel, Drebin stated that he was
not critical of that action and that the only reason to decompress a small bowel was
to facilitate closure of the wound. Id. at 40. Finally, although he was critical of
Binnington's decision to perform an incidental appendectomy, Drebin stated that it
was impossible to determine whether this contributed to Sosna's death and that, in any
event, Binnington had not deviated from the standard of care in doing so because
such procedures are "not uncommonly done." Id. at 72-73; Tr. Vol. VI at 32-33.
Because Sosna was not prejudiced by the District Court's decision to limit the scope
of the plaintiff's cross-examination of Dr. Drebin, any error was harmless. See
Thorson v. Gemini, Inc., 205 F.3d 370, 383 (8th Cir.), cert. denied, 531 U.S. 871
(2000).




                                          -5-
                            B. Testimony of Dr. Daniels

       Sosna also argues that the District Court erred when it allowed Binnington to
present the testimony of Dr. Daniels, who is an internist and not a surgeon, regarding
whether Binnington complied with the relevant standard of care. Rule 702 and the
Supreme Court's jurisprudence make it clear that a district court must not only act as
a gatekeeper when ruling on the admissibility of expert testimony, but must also
"continue to perform its gatekeeping role by ensuring that the actual testimony does
not exceed the scope of the expert's expertise." Wheeling Pitts. Steel v. Beelman
River Terminals, 254 F.3d 706, 715 (8th Cir. 2001). In Wheeling, we held that the
district court erred when it allowed a hydrologist, an admitted expert in hydrology
and flood risk management, to testify regarding safe warehousing practices that he
had neither studied nor gained practical experience about. See id. After reviewing
the record in this case, we find no similar abuse of discretion. Dr. Daniels is an
internist with expertise in endocrinology. At least some of his research focused on
the small bowel, and he regularly treated patients whose small-bowel obstructions
were relieved medically or through surgical intervention. Hence, Dr. Daniels was
competent to testify about the proper pre- and post-surgical treatment of patients with
small-bowel obstructions. Dr. Daniels did not offer testimony regarding the technical
aspects of the surgical procedure, nor could he. We conclude the District Court did
not abuse its discretion when it admitted the testimony of Dr. Daniels.

                           C. Dr. Binnington's Testimony

       Sosna next urges that the District Court improperly admitted hearsay testimony
when it allowed Binnington to testify on re-direct that the plaintiff's transmigration
or translocation "theory is not held in high regard anymore by researchers in the field
of surgical sepsis." Tr. Vol. V at 177. We disagree.




                                         -6-
       First, even if it were the case that Binnington had testified on direct
examination that the transmigration "theory is not held in high regard anymore by
researchers in the field of surgical sepsis," Sosna would not be correct that
inadmissible hearsay had been allowed into the record. Rule 703 permits an expert
to "rely on otherwise inadmissible hearsay evidence in forming his opinion if the facts
and data upon which he relies are of a type reasonably relied upon by experts in his
field." Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182 (8th Cir.
1997) (citing Fed. R. Evid. 703). Thus, when Binnington testified in his capacity as
a surgeon, Rule 703 clearly permited him to rely on studies or other data produced by
researchers in the field of surgical sepsis because this is the type of material
"reasonably relied upon by experts in [this] field." This, however, is not what
happened. Appellant's brief omits reference to the fact that the testimony in question
was not elicited during Binnington's direct examination. Rather, pursuant to Rule
705, Sosna questioned Binnington three times during Binnington's cross-examination
regarding his deposition testimony about the transmigration theory. In response to
these questions, Binnington testified that, although in 1997 (the time of his
deposition) he thought that transmigration was one theory for how bacteria might
have escaped from Sosna's small bowel, the present state (in 2002) of medical
research did not support that theory. Tr. Vol. V at 141-43, 155-57, 164-65. This is
substantially the same testimony that the plaintiff subsequently objected to during the
defense's re-direct. Plaintiff's having elicited this testimony pursuant to Rule 705,
which permits inquiry into the underlying facts or data upon which an expert's
opinion is based, the District Court did not abuse its discretion when it overruled
plaintiff's objection to further inquiry into the subject on Binnington's re-direct.

                                 D. Autopsy Report

      Finally, Sosna argues that the District Court admitted improper hearsay
testimony when it allowed into evidence certain statements of the pathologist
regarding Richard Sosna's cause of death that were contained in the autopsy report.

                                         -7-
We disagree. The District Court did not abuse its discretion when it admitted the
entire autopsy report into evidence under Rule 803(6) as a business record. It is of
no avail for Sosna to argue that the statement that "[t]he ischemia of the segment of
small bowel and acute tubular necrosis of the kidneys was most likely secondary to
DIC and hypotension prior to death" was solely the opinion of the pathologist.
Autopsy Rep. at 4. Rule 803(6) specifically speaks to, and makes admissible, records
or reports

      of acts, events, conditions, opinions, or diagnoses, made at or near the
      time by, or from information transmitted by, a person with knowledge,
      if kept in the course of a regularly conducted business activity, and if it
      was the regular practice of that business activity to make the
      memorandum, report, record or data compilation.

Fed. R. Evid. 803(6). We conclude that the opinions of the pathologist contained in
his autopsy report fit comfortably within Rule 803(6)'s confines.

                                         III.

      For the reasons stated above, we affirm the judgment entered on the jury
verdict in favor of Dr. Binnington.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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