                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2008

Svindland v. Nemours Fndtn Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2627




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Recommended Citation
"Svindland v. Nemours Fndtn Inc" (2008). 2008 Decisions. Paper 974.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/974


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                                             NOT PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
                __________

                    No. 07-2627
                    __________

  PAUL SVINDLAND and ALLISON SVINDLAND,
 INDIVIDUALLY and as ADMINISTRATORS of the
ESTATE of IAN SVINDLAND, a MINOR, DECEASED
                        Appellants,

                         v.

      THE NEMOURS FOUNDATION and
      WILLIAM I. NORWOOD, M.D., Ph.D.
                      Appellees,

                        and

THE CHILDREN’S HOSPITAL OF PHILADELPHIA
           and JAMES E. GOIN
                       Intervenors.
               __________

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
                  No. 05-cv–00417
     District Judge: Honorable Berle M. Schiller
                     ___________

                    ARGUED
                   May 15, 2008
                   ___________
     Before: McKee and Garth, Circuit Judges, and RODRIGUEZ, District Judge *
                         (Opinion Filed: June 26, 2008)

Theresa M. Blanco
Frank M. McClellan (Argued)
Eaton & McClellan
230 S. Broad Street – 3rd Floor
Philadelphia, PA 19102
       Counsel for Appellants

Richard E. Geschke
Sara Lynn Petrosky (Argued)
McCann & Geschke, P.C.
1800 John F. Kennedy Boulevard, Suite 801
Philadelphia, PA 19103
      Counsel for Appellees The Nemours Foundation Inc. and
      William I. Norwood

Alexander E. Dreier (Argued)
Catherine E. Stetson
Hogan & Hartson L.L.P.
555 13th Street, N.W.
Washington, D.C. 20004
      Counsel for Intervenors The Children’s Hospital of
      Philadelphia and James E. Goin

                                     ___________

                                      OPINION
                                     ___________


GARTH, Circuit Judge:

      Paul and Allison Svindland appeal, individually and as administrators of the estate




      *
      The Honorable Joseph H. Rodriguez, Senior District Judge for the District of
New Jersey, sitting by designation.

                                           -2-
of Ian Svindland, from a jury verdict entered against them in a medical malpractice action

filed in the United States District Court for the Eastern District of Pennsylvania. For the

following reasons, we will vacate the jury’s verdict and remand for further proceedings

consistent with this opinion.

                                             I.

       The parties are fully familiar with the proceedings that have taken place

heretofore. Essentially, the Svindlands’ son, Ian, was diagnosed with a developmental

heart condition known as Ventricular Septal Defect (“VSD”). A VSD is a hole in the

wall separating the two pumping chambers of the heart, allowing blood to pass from the

left ventricle to the right ventricle. Dr. William I. Norwood performed heart surgery to

correct Ian’s VSD after he was born. The surgery was performed at The Nemours

Cardiac Center in Delaware.

       To perform the surgery, Dr. Norwood used a procedure known as Deep

Hypothermic Circulatory Arrest (“DHCA”). This involved connecting Ian to a heart-lung

bypass machine and using an attached refrigeration unit to cool his body. The purpose of

this technique was to drain all of the blood from Ian’s body to enable Dr. Norwood to

perform the operation in a bloodless field. Cooling was necessary to reduce the amount

of oxygen required by Ian’s organs in the absence of blood flow.

       The Svindlands concentrated on two issues at trial. They claimed that Dr.

Norwood only cooled Ian for six minutes, which was not long enough to protect Ian’s



                                             -3-
organs, and ultimately caused his death. They also claimed that the information given to

them in order to constitute informed consent did not acquaint them with the mortality

risks for Ian’s operation.

       The jury ruled for the defendants. It found that Dr. Norwood was negligent.

However, the jury also found that the Svindlands’ proof was not adequate to establish that

Dr. Norwood’s cooling technique proximately caused Ian’s death. The jury also found no

lack of informed consent.

                                            II.

       We have jurisdiction over the District Court’s final order under 28 U.S.C. § 1291.

As to matters of law, we have plenary review. North Penn. Gas Co. v. Corning Natural

Gas Corp., 897 F.2d 687, 68 (3d Cir. 1990). As to trial conduct and the manner of the

District Court’s evidentiary rulings, we review for abuse of discretion. See Pineda v.

Ford Motor Co., 520 F.3d 237, 243 (2008); Stecyk v. Bell Helicopter Textron, Inc., 295

F.3d 408, 412 (3d Cir. 2002); Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000).

                                            III.

       Our review of the record has left us with a disquieting uncertainty – not so much as

to the content of the legal rulings made by the District Court, but the manner in which

those decisions were made. Thus, we do not address or decide the merits of the legal




                                            -4-
issues raised on this appeal.1 What we do decide is that the District Court judge

consistently failed to exercise appropriate discretion by not giving reasons for his rulings

and by the manner in which he conducted the trial so that we are hard-pressed to discern

the basis on which he dealt with the issues before him and particularly those matters of

evidence raised during the pretrial motions and during the trial itself.

       The District Court, during pre-trial proceedings on October 12, 2006, precluded

the Svindlands from presenting evidence of Dr. Norwood’s mortality rate for performing

VSD surgeries. The District Court also quashed a subpoena issued by the Svindlands to

two non-parties seeking raw data used in two scholarly articles, which prevented them

from determining, if they could, what percentage of adverse neurological outcomes could

be associated with the duration of cooling. At no time did the District Court judge give

his reasons for so ruling, and while we express no opinion as to whether the material

excluded from both the pretrial and the trial were relevant and material, the record is quite

clear that the District Court judge virtually closed the door on allowing the Svindlands to

assess the effect of the cooling rate and its duration on infants undergoing VSD surgery.

       The lack of reasons given by the District Court, when combined with the manner




       1
         The Svindlands raise a number of issues that are more appropriately addressed by
the District Court in a new trial. These issues concern the admissibility of mortality data
introduced by one of their experts, the enforceability of a subpoena issued to two non-
parties, the admissibility of testimony from one of the Svindlands’ prior physicians, and
the legality of one of the jury instructions. We do not address the merits of these issues
in this appeal.

                                             -5-
in which the District Court dealt with these issues with counsel, has left us with the

impression that the District Court interrupted counsel to a point where intelligible

argument could not be had. In fact, the District Court was often so impatient and

dismissive that the record does not reflect the arguments that the Svindlands sought to

make. Of even more importance is that the failure to give reasons for the District Court’s

rulings leaves us incapable of reviewing the basis for his actions. We should not be in the

position of having to speculate as to the reasons behind each ruling and we should not be

in the position of having to rule ourselves in the first instance.

       We have no intention of instructing the District Court as to how it should deal with

arguments, evidence, and counsel, or how it should conduct the “business” of its

courtroom. However, when a record such as this one reveals numerous instances of what

we can only regard as impatience and precipitous rulings on the part of the District Court

judge, to say nothing of countless interruptions of counsel’s arguments, our review

function as a Court of Appeals is severely impaired.2 Moreover, where we cannot

determine the rationale of the District Court’s rulings, many of which require

explanations as to why particular testimony should be allowed while other testimony is

excluded, we cannot condone the District Court’s actions nor can we affirm the judgment

rendered.



       2
        We reproduce some examples of the record in Appendix A, attached to this
opinion. These portions of the record, as well as others we have not reproduced, have led
to our overarching concern as to the manner the trial was conducted.

                                              -6-
       Because we are unable to complete the gaps in the Svindlands’ arguments that

occurred as a result of the District Court’s interruptions and because we are unable to

fathom the reasons why the District Court judge ruled as he did, we are obliged to vacate

the judgment of May 11, 2007, and order a new trial. In light of these circumstances, it

appears to us that the trial should be conducted by a District Judge other than the one who

presided at the initial trial and we will accordingly order that a different judge be

assigned. See, e.g., Virgin Islands v. Walker, 261 F.3d 370, 376 (3d Cir. 2001)

(providing that “we can, in the exercise of our supervisory power, reassign [a] case to a

different judge upon remand.... ‘We must preserve not only the reality but also the

appearance of the proper functioning of the judiciary as a neutral, impartial administrator

of justice.’”) (quoting Alexander v. Primerica Holdings, 10 F.3d 155, 167 (3d Cir. 1993)).

__________________




                                              -7-
                                     APPENDIX A




Cross-Examination of Dr. Norwood:



Q.    During the time you were at the Nemours Cardiac Center from the opening of

      clinical operations in January of 1998 until you left, did you ever submit data on

      your patients to the Society of Thoracic Surgeons database project?



      MR. HUDGINS3 :       Objection, Your Honor. You saw him over this.



      THE COURT:           Sustained. Don’t go there.



(Apdx. 1063, Page 178-79, Lines 24-25, 2-6)



Q.    All right. Now, Dr. Norwood, I’m going to show you proceeding records --



      MR. HUDGINS:         Objection, Your Honor. Can we take up this document.



      3
       Mr. Hudgins served as counsel for Appellees The Nemours Foundation and Dr.
William I. Norwood.

                                           -8-
(Begin sidebar conference)



MS. BLANCO4 :          Your Honor --



THE COURT:             Just wait a minute. It’s his objection.



MR. HUDGINS:           My objection is this [is] a document we’ve never seen from

                       the patient. We don’t know who it is, at another hospital, St.

                       Christopher’s Hospital from I’m assuming Dr. Jacobs

                       although we don’t know what it is.



THE COURT:             What is this?



MS. BLANCO:            It’s a print sheet from Dr. Jacobs from 2003 that shows that

                       this cooling was for twenty-two minutes.



THE COURT:             Let me tell you something. I don’t give a hoot about what

                       someone else did. This case is about this particular case.


4
    Ms. Blanco served as counsel for Appellants Paul and Allison Svindland.

                                       -9-
      MS. BLANCO:           Your Honor, if I may – excuse me.



      THE COURT:            And I don’t have – you had a series of experts testify and

                            whatever they testified to about cooling et cetera. I’m not

                            going to have you bring in some record, allegedly a record,

                            from someone who isn’t here to justify what he did and why.

                            Forget it. No.



      MS. BLANCO:           Can I make a statement on the record?



      THE COURT:            No. No.



      (End sidebar conference)



(Apdx. 1064, Pages 184-85, Lines 16-25, 1-17)



Q.    All right. Dr. Norwood, I’m going to show you – just one minute, please, while I

      show it to your attorney first.




                                             -10-
THE COURT:         I want to see counsel right now.



(Begin sidebar conference)



THE COURT:         What are these? What are these? Have you seen any of these

                   before?



MR. HUDGINS:       I’ve never seen these before, Your Honor.



MS. BLANCO:        Yes, Your Honor. They have seen these before. They have

                   seen these before.



MR. HUDGINS:       No. I have – I know about this patient. I’ve never seen – I’m

                   the one who does cross-examination. I’ve never seen this

                   document.



THE COURT:         Did you submit these things – when I asked you to exchange

                   exhibits, were these exhibits exchanged?



MR. HUDGINS:       No.


                                  -11-
MS. BLANCO:   This wasn’t --



THE COURT:    Were they exchanged?



MS. BLANCO:   No. This is cross-examination now.



THE COURT:    Oh, stop it.



MS. BLANCO:   But, Your Honor, they’ve seen this and I’ll tell you why

              they’ve seen it. The letter they cross-examined --



THE COURT:    Did you exchange these documents?



MS. BLANCO:   No, I didn’t personally give it to them. No, I did not. I did

              not give that to them.



THE COURT:    Why not?



MS. BLANCO:   This is cross-examination.




                               -12-
THE COURT:    Why – don’t start with me. You knew about this witness.

              There was nothing strange about this witness’ testimony.

              You had them two – I don’t know how many cases you’ve

              had with this witness --



MS. BLANCO:   Your Honor --



THE COURT:    – and you now come into court with documents you didn’t

              exchange with them?



MS. BLANCO:   They have this.



THE COURT:    I am not going to allow trial by ambush in my courtroom. Do

              you understand that?



MS. BLANCO:   I understand.



THE COURT:    And if you keep going down that path where I have to keep

              sustaining objections, I’m going to hold you in contempt.




                                -13-
      MS. BLANCO:            I understand.



      THE COURT:             Do you understand that? Now, sit down and forget this line

                             of questioning. We’ll worry about this case.



      (End sidebar conference)



(Apdx. 1065, Pages 187-89, Lines 8-25, 1-25, 1-5)



Q.    Okay. Tell us who else is cooling children for only six minutes in preparation for

      deep hypothermic circulatory [arrest]?



      MR. HUDGINS:           Objection, Your Honor.



      THE COURT:             Sustained.



(Apdx. 883, Page 9, 19-22)




Direct Examination of Plaintiff’s Expert, Dr. Adre J. DuPlessis:


                                             -14-
Q.    With regard to cooling on bypass, do you have an opinion as to whether the time

      spent doing that is important?



A.    Yes, I do.



Q.    And can you tell us what that is?



      MS. PETROSKY5 : Objection.



      THE COURT:           Sustained.... You can’t answer. This was covered in direct,

                           cross and we’re not going to go over it again.



                                          ....



Q.    Now, Dr. DuPlessis, is there anything else over the years, or that you have

      discovered in this article, other than what we’ve already talked about, that’s

      served to, kind of, mold your opinion over time about cooling and circulatory

      arrest?



      5
       Ms. Petrosky served as counsel for Appellees The Nemours Foundation and Dr.
William I. Norwood.

                                           -15-
A.   Well, as I said earlier, I think the general message that had come across was that

     the changes that occurred at our institution was a more concerted effort to avoid

     brief cooling in order to make sure that we could adequately protect the brain and

     then to reduce the insult, which was to reduce the amount of time on circulatory

     arrest.



     And the message in that paper was that the type of neurological complications

     which we had seen before frequently, to the point that they actually started a

     cardiac intensive care service that I was on for neurology – they were that frequent

     – that the numbers of consultations dropped down dramatically. And all that

     paper was doing was making an association between a change in practice, longer

     cooling, making sure that we didn’t cool too quickly and shorter periods on

     circulatory arrest, making an association between those changes and a sharp

     reduction in the types of neurological complications we had seen previously.



Q.   And on the basis of that, is that what served to –



     MS. PETROSKY: Objection, Your Honor --



     THE COURT:           Excuse me. You’re done.


                                          -16-
(Apdx. 933, Pages 71-72, Lines 16-25, 1-15)




Direct Examination of Dr. Robert L. Hannan:



Q.    Now, under what circumstances could you foresee a death after ventricular septal

      surgery?



A.    You know, a few minutes ago I mentioned the Society of Thoracic Surgeons

      database. And between 2002 and 2005 they had --



      MR. HUDGINS:        Excuse me. Your Honor. The witness --



      THE COURT:          Sustained.



(Apdx. 966, Page 21, Lines 11-17)



Q.    Now, Dr. Hannan, was there a time when you as a surgeon examined what your

      institution’s outcomes were with regard to cooling and circulatory arrest



      MR. HUDGINS:        Objection. Your Honor.


                                          -17-
      THE COURT:           Sustained.



(Apdx. 974, Page 50, Lines 20-24)



Q.    If you as a surgeon are going to use some type of unique technique, are you

      obligated to tell the parents about that or inform[] [them] about that?



      MR. HUDGINS:         Objection.



      THE COURT:           Sustained.



(Apdx. 974, Page 53, Lines 12-16)




Cross-Examination of Dr. Hannan:



Q.    Do you believe the person that has done this as many times as Dr. Norwood would

      not de-air the person --



      MS. BLANCO:          Objection.


                                           -18-
BY MR. HUDGINS:



Q.    – in all honesty?



      MS. BLANCO:         Objection.



      THE COURT:          Overruled.



(Apdx. 975, Page 54, Lines 8-14)




                                       -19-
