                     United States Court of Appeals,

                                 Fifth Circuit.

                                   No. 92-7783.

 James Everette CARROLL, Administrator of the Estate of Michael
Eugene Carroll on Behalf of All Heirs of Said Deceased, Plaintiff-
Appellant,

                                        v.

               Dr. John D. MORGAN, Defendant-Appellee.

                                 March 31, 1994.

Appeal from the United States District Court for the Southern
District of Mississippi.

Before REAVLEY and DAVIS, Circuit Judges, and TRIMBLE1, District
Judge.

     W. EUGENE DAVIS, Circuit Judge.

     In this medical malpractice action alleging wrongful death of

plaintiff-appellant's brother, the jury rendered a take-nothing

verdict in favor of the defendant doctor.             Finding no reversible

error, we affirm.

                                        I.

     On July 10, 1987, Dr. John D. Morgan, a physician specializing

in internal medicine, examined 30-year-old Michael Eugene Carroll.

Dr. Morgan had previously diagnosed Carroll in 1977 as having

aortic stenosis and, in 1980, Dr. Charles Lewis surgically replaced

Carroll's aortic valve.

     During    the   July    10,    1987     examination,     Carroll    reported

dizziness,    shortness     of    breath,    inability   to    walk     or   stand,


     1
      District Judge of the Western District of Louisiana,
sitting by designation.

                                        1
numbness in his legs, and chest pain.                          Dr. Morgan discovered a

previously undetected heart murmur and diagnosed a "leaking aortic

valve."    Dr. Morgan referred Carroll to Vocational Rehabilitation

to arrange funding for a cardiological evaluation and testified

that he advised Carroll not to return to work.                           On July 17, 1987,

seven days after Dr. Morgan examined Carroll but before Carroll's

cardiological evaluation, Carroll died of congestive heart failure

while operating heavy equipment at his place of employment.

     James        Carroll,      the         decedent's           brother      and        estate

administrator, brought this medical malpractice suit against Dr.

Morgan for the wrongful death of his brother.                               The plaintiff

alleged    that    his    brother      died        of    bacterial        endocarditis,       a

condition which Dr. Morgan should have detected and treated without

delay on July 10, 1987.          The plaintiff maintained that Dr. Morgan

was negligent       in    failing      to    refer       his     brother    for    immediate

cardiological      evaluation       and      that       this     negligence       caused   his

brother's death.

     Dr. Morgan's theory at trial was that Carroll did not exhibit

signs     of   bacterial      endocarditis              during     the     July    10,     1987

examination.       Dr. Morgan therefore argued to the jury that he

justifiably       had    no   reason      to       suspect      that     Carroll    required

immediate medical attention. Dr. Morgan also disputed the cause of

death by presenting testimony that the pathological evidence did

not conclusively establish that bacterial endocarditis caused Mr.

Carroll's death.

     Dr. Morgan primarily relied on the expert testimony of two


                                               2
medical experts, Dr. Ken Bennett and Dr. Malcolm P. Taylor, to

support his defensive theory that his treatment did not breach the

standard of care owed under the circumstances.                 Both Dr. Bennett

and   Dr.   Taylor   testified   that        Mr.   Carroll's    July    10,    1987

examination did not indicate an urgent need for medical treatment.

Both also testified that they would not have treated Carroll any

differently under the circumstances. As to the cause of death, Dr.

Bennett and Dr. Taylor testified that Carroll's death was possibly

attributable to preexisting heart disease, a thickened heart, and

the added burden of the leaking valve over the years.

      The jury rendered a take-nothing verdict in favor of Dr.

Morgan and the plaintiff's post-trial motions were denied.                       We

consider below each of appellant's arguments.

                                       II.

A. DR. BENNETT'S TESTIMONY

       The appellant argues that the district court erred in a

number of evidentiary rulings relating to the testimony of Dr. Ken

Bennett, the defendant's expert cardiologist. First, the appellant

challenges the admissibility of Dr. Bennett's testimony because

Bennett     failed   to   base   his        testimony    on    "a    well-founded

methodology"    or   on   "generally    accepted        principles    within   the

medical profession."      Specifically, the appellant argues that Dr.

Bennett's testimony should have been excluded because Dr. Bennett

refused to recognize any medical textbooks or journal articles as

authoritative on endocarditis.

      When the plaintiff asked Dr. Bennett about several textbooks


                                        3
and medical journals, Dr. Bennett responded that the publications

included    contributions       from    numerous   authors;       Dr.    Bennett

testified   that    he   was    therefore    unwilling   to   recognize        the

materials in toto as authoritative and that he would not cite one

particular source as the exclusive authority on endocarditis.                  The

trial    judge    interpreted     Dr.    Bennett's    testimony    not    as     a

categorical      denouncement    of     widely   recognized   authorities       on

endocarditis, but rather as a reluctance to accept as authoritative

the materials in their entirety and to accept one particular source

as the exclusive authority on endocarditis.

        A trial judge's decision to admit expert testimony will not

be disturbed absent an abuse of discretion. E.g., Shipp v. General

Motors Corp., 750 F.2d 418 (5th Cir.1985).           In this case, the trial

judge did not abuse his wide discretion in allowing Dr. Bennett to

testify as an expert in the field of cardiology.               Moreover, the

plaintiff does not allege that Dr. Bennett relied on a particularly

objectionable or unconventional scientific theory or methodology.

See Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, --

-- - ----, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469, 485 (1993).

(holding that expert scientific testimony must be "ground[ed] in

the methods and procedures of science" and based on "more than a

subjective belief or unsupported speculation").

     Because the district court did not abuse its discretion in

interpreting Dr. Bennett's testimony with respect to the textbooks

and journals, Dr. Bennett was qualified under Daubert to give an

expert opinion on the standard of medical care owed to Carroll.


                                         4
His   testimony    was   based     on   thirty    years   of    experience      as   a

practicing, board-certified cardiologist, on his review, among

other things, of Carroll's medical records and the coroner's

records, and on a broad spectrum of published materials.                         His

testimony was therefore "ground[ed] in the methods and procedures

of science" and was not mere "unsupported speculation."               See id. --

- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d at 482.                    That Bennett

refused to base his testimony on a single medical textbook or

journal     article   does   not    warrant      wholesale     exclusion   of    his

testimony. In short, the trial judge did not commit manifest error

in refusing to exclude Dr. Bennett's testimony on this ground.

          The plaintiff argues next that the district court violated

the teachings of Daubert in allowing Dr. Bennett to testify as to

the cause of Carroll's death.2           Essentially, the plaintiff argues

that Dr. Bennett was not qualified to testify as to Carroll's cause

of death because Dr. Bennett is not a pathologist.

      Daubert does not support plaintiff's position that the subject

of Carroll's cause of death falls within the exclusive confines of

pathology.      The district court did not abuse its discretion in

allowing Dr. Bennett, an expert cardiologist, to give an opinion on

the relationship between Mr. Carroll's heart problems and his

death. See, e.g., Karp v. Cooley, 493 F.2d 408, 418 (5th Cir.1974)

(cardiologist giving expert testimony as to cause of death).                     The

plaintiff's argument that three testifying pathologists disagreed

      2
      Dr. Bennett testified that in his opinion, Carroll's death
was not attributable to endocarditis, but rather to preexisting
cardiological problems.

                                         5
with Dr. Bennett's opinion as to the cause of Carroll's death does

not disqualify Bennett as an expert; the conflict among the expert

testimony was grist for the jury.

       The plaintiff also complains that the district court erred in

refusing to allow the plaintiff to use certain medical textbooks

and    journal       articles     to        cross-examine      Dr.       Bennett.

Cross-examination of expert witnesses with published articles is

permitted    if   the    publication    is    "established     as    a   reliable

authority by the testimony or admission of the witness or by other

expert testimony." Fed.R.Evid. 803(18) (emphasis added). Although

Dr. Bennett refused to recognize the materials as authoritative,

another    medical   expert,    Dr.    Charles    McIntosh,    recognized    the

authorities as reliable.        The plaintiff therefore was entitled to

use the publications to cross-examine Dr. Bennett.              See Dawsey v.

Olin Corp., 782 F.2d 1254, 1264 (5th Cir.1986).

       Such an error, however, does not automatically warrant

reversal.     Under Rule 103(a), appellate courts should reverse on

the basis of erroneous evidentiary rulings only if a party's

substantial rights are affected.            See Munn v. Algee, 924 F.2d 568,

573 (5th Cir.1991).       Moreover, the party asserting error based on

erroneous rulings bears the burden of proving that the error was

harmful.     E.g., Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177

(5th Cir.1990).         The plaintiff has failed to meet this burden.

When   Dr.    Bennett     declined     to    recognize   the    materials      as

authoritative, the plaintiff made no attempt to confront Dr.

Bennett with specific passages in the publications and made no


                                        6
offer of proof as to which portions of the publications conflicted

with Dr. Bennett's testimony.   Appellant therefore has not carried

his burden of demonstrating that the error was harmful.

B. THE NEWHAVEN HOUSE RECORDS

     The plaintiff complains next that the district court erred in

allowing Carroll's Newhaven House records into evidence.    In 1985,

Mr. Carroll was admitted to the Newhaven House for treatment for

drug and alcohol abuse.    Carroll's Newhaven House records contain

references to Carroll's smoking, drinking, drug use, lustful sexual

behavior, and marital infidelity.     The plaintiff argues that the

records should have been excluded as they were not relevant and

were highly prejudicial.

     The district court did not err in admitting the Newhaven House

records.   First, portions of the records were relevant to the

possible causes of Carroll's death;       the defendant presented

medical testimony that smoking and drug and alcohol use contributed

to Carroll's severe coronary heart disease.   Dr. Bennett testified

that "smoking contributes to coronary artery disease, and in this

case I would have to say it had something to do with [coronary

artery disease]."   Dr. Taylor testified that the decedent suffered

from extremely advanced coronary artery disease and that smoking

"most definitely" contributes to coronary artery disease.   Several

treating physicians also testified that they had emphatically

instructed Carroll to quit smoking because of his heart condition,

but that Carroll had defied these instructions.

      The Newhaven House records were also admissible on the issue


                                  7
of damages.3   Dr. Morgan was entitled to show that Carroll was not

a healthy person and that his intemperance might have resulted in

a reduced life expectancy.     See, e.g., Smith v. Southland Corp.,

738 F.Supp. 923, 925-26 (E.D.Pa.1990);      Pharr v. Anderson, 436

So.2d 1357 (Miss.1983).   Moreover, evidence of marital discord is

probative of the extent of the survivor's noneconomic loss as a

result of the wrongful death.     McGowan v. Estate of Wright, 524

So.2d 308, 311 (Miss.1988).4

C. THE PLAINTIFF'S POST-TRIAL MOTIONS

     Finally, the plaintiff asserts that the district court erred

in denying his motions for a judgment as a matter of law or, in the

alternative, his motion for a new trial.    A careful review of the

record reveals that the jury's verdict is amply supported by the

evidence.    See Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th

Cir.1969).     The jury apparently accepted the testimony of Dr.

Morgan and his experts over the appellant's evidence.     Moreover,

the trial court did not abuse its discretion in denying the

plaintiff's motion for a new trial.   See Bunch v. Walter, 673 F.2d

127, 130 n. 4 (5th Cir.1982).

     For the foregoing reasons, the judgment of the district court

is


     3
      The plaintiff did not request an instruction limiting this
evidence to the issue of damages.
     4
      After admitting the Newhaven House records, the district
court allowed into evidence the plaintiff's answers to requests
for admission based on matters taken from the Newhaven House
records. Although the evidence was cumulative, its admission was
not so prejudicial as to require reversal.

                                  8
AFFIRMED.




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