UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TERESA M. GARNER, as guardian ad
litem for Melissa Marie Walden, an
infant,
Plaintiff-Appellant,

v.

DONALD D. HOWE, M.D.; GASTONIA
WOMEN'S CENTER, P.A.; ASHLEY
WOMEN'S CENTER, P.A.,                                               No. 95-2492
Defendants-Appellees,

and

GASTON MEMORIAL HOSPITAL HOME
HEALTH SERVICES, INCORPORATED,
Gaston Memorial Hospital,
Incorporated,
Defendant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-93-228-3-P)

Argued: December 5, 1996

Decided: January 13, 1997

Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Adam Stein, FERGUSON, STEIN, WALLAS, ADKINS
& GRESHAM, P.A., Chapel Hill, North Carolina, for Appellant. John
Gardner Golding, GOLDING, MEEKINS, HOLDEN, COSPER &
STILES, L.L.P., Charlotte, North Carolina, for Appellees. ON
BRIEF: Ann Hubbard, FERGUSON, STEIN, WALLAS, ADKINS
& GRESHAM, P.A., Chapel Hill, North Carolina; Stuart Z. Gross-
man, GROSSMAN & ROTH, Miami, Florida; Don Keenan, THE
KEENAN LAW FIRM, Atlanta, Georgia, for Appellant. Elaine C.
Miller, GOLDING, MEEKINS, HOLDEN, COSPER & STILES,
L.L.P., Charlotte, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Melissa Garner was born a spastic paraplegic and suffers from
cerebral palsy and seizures.1 Teresa Garner, Melissa's mother and
guardian ad litem, sued Appellees Dr. Howe (the attending physician)
and the Gastonia Women's Center, P.A., alleging that Dr. Howe neg-
ligently provided medical care during Garner's labor and delivery of
Melissa and that Dr. Howe's negligence proximately caused Melis-
sa's severe, permanent brain damage. After a two-week trial, the jury
returned a verdict in favor of Dr. Howe.

Garner seeks appellate review of the district court's evidentiary rul-
ings with respect to post-1981 medical articles. Specifically, Garner
contends that the district court prohibited Garner's experts from dis-
_________________________________________________________________
1 Since her birth, Melissa has not been able to walk, sit up by herself,
roll over, speak, control her bladder or bowels, or control the movement
of her hands.

                    2
cussing certain post-1981 articles, while allowing Dr. Howe's experts
free rein to discuss the same post-1981 articles.

I.

FACTS AND PROCEDURAL HISTORY

Melissa was born on September 29, 1981 at the Gaston Memorial
Hospital. On September 28, 1981, Garner reported to the Gastonia
Women's Clinic for a checkup. At that time, Garner reported to Dr.
Jacobs that she had not felt any fetal movement for approximately 24-
36 hours. As a result, Dr. Jacobs asked Garner to return the next day
for a non-stress test.2 While the results of Garner's non-stress test
were "non-reactive," due to Garner's impending due date, Dr. Jacobs
sent Garner to Gaston Memorial Hospital3 for further testing and pos-
sible induction of labor.

Upon her arrival at the hospital, Garner was prepared for an oxyto-
cin challenge test (OCT).4 The results of the OCT were "equivocal"
according to Dr. Howe, but he acknowledged that the fetal monitor
strip showed late decelerations. Given her due date, Dr. Howe
decided to induce labor by giving Garner additional Pitocin to cause
her contractions to continue and deliver the fetus.

In the meantime, Garner left the labor and delivery room to marry
her boyfriend, the baby's father, in the hospital's chapel. When Gar-
_________________________________________________________________
2 A "non-stress test" measures the fetus's heart rate when the fetus
moves.
3 Gaston Memorial Hospital was named in the complaint, but reached
a settlement with Melissa.
4 In the oxytocin challenge test, the mother is hooked up to a fetal heart
monitor and given oxytocin, or more commonly Pitocin, a synthetic form
of oxytocin, a drug which induces contractions. The test aims to see how
the fetus's heart rate responds to the "stress" of the contractions. The
doctor reviewing the test looks for decelerations of the fetal heart rate
before, during or after each contraction. A significant drop in the fetus's
heart rate after a contraction is called a "late deceleration." If two or
more late decelerations exist after at least half the contractions, the test
is considered positive, or "non-reassuring."

                    3
ner returned, the nurses reconnected her to the fetal heart monitor, and
Dr. Howe rechecked the strip. Again, he concluded the results were
"equivocal." Thereafter, Dr. Howe turned off the Pitocin and cross-
matched Garner for blood in the event that a Caesarean section was
necessary.

After Garner was allowed to use the restroom, the fetal monitor
was reattached and showed that Garner was in active labor, and there-
fore, no induction of labor was necessary. At 7:40 p.m., more than
four hours after the original OCT, Dr. Howe ruptured Garner's mem-
branes and attached an internal monitor to the fetus's scalp to get a
more accurate reading of the fetus's heart rate. At 8:40 p.m., Melissa
was born with the umbilical cord wrapped around her neck twice.
Melissa was "cyanotic" or blue in color, with"very floppy" muscle
tone. Melissa did not cry. In his labor and delivery note, Dr. Howe
diagnosed a delivery "complicated by fetal distress."

Thereafter, Garner filed the instant action in the United States Dis-
trict Court for the Western District of North Carolina based upon
diversity of citizenship jurisdiction. The case proceeded to trial, and
after hearing two weeks of testimony and viewing over 100 exhibits,
the jury returned a verdict in favor of Dr. Howe. Garner now appeals.

II.

DISCUSSION

The gravamen of Garner's appeal is that the district court applied
a double standard in its evidentiary rulings with respect to certain
post-1981 medical articles. Specifically, Garner's appeal focuses on
two articles written by Dr. Barry Schifrin and Dr. Jeffrey Phelan
[hereinafter Schifrin and Phelan articles]. 5 Both the Schifrin and Phe-
lan articles suggested that Garner's clinical findings, the non-reactive
non-stress test, the equivocal OCT, and the fetal monitor strips show-
_________________________________________________________________
5 Dr. Schifrin's article is entitled "Fetal Heart Rate Patterns and the
Timing of Fetal Injury" and appears in the 1994 Journal of Perinatology.
Dr. Phelan's article is entitled "Perinatal Observations in 48 Neurologi-
cally Impaired Term Infants" and was published in the American Journal
of Obstetrics and Gynecology in August 1994.

                    4
ing intermittent late decelerations indicated a fetus already suffering
from chronic brain damage, not acute brain damage occurring during
labor and delivery.

Garner argues that during the presentation of her case the district
court excluded any testimony about articles published after 1981, first
on a case-by-case basis, and then by a blanket instruction. In reliance
on the ruling, Garner argues that she refrained from examining her
experts or Dr. Howe about the weaknesses and inconsistencies in
recent medical literature. Garner maintains she is entitled to a new
trial because the district court's inconsistent rulings deprived Garner
of a fair opportunity to present her case and likely prejudiced the out-
come of the case.

On the other hand, Dr. Howe argues that the district court's rulings
were not inconsistent. Moreover, Dr. Howe argues that even if the
district court's rulings were in error, Garner invited the error. Further-
more, Dr. Howe contends that Garner never made any proffer regard-
ing evidence she now claims could have been offered. Lastly, the
post-1981 articles offered by Dr. Howe were cumulative on the issue
of causation, and their admission was harmless error, if error at all.

A.

At trial, both parties offered expert testimony on the standard of
care, causation, and damages. Garner called Dr. Howe as her first wit-
ness. On the second day of trial, Garner's attorney argued that Dr.
Howe should not be allowed "any further comments about standards
beyond 1981" when Dr. Howe's testimony appeared to be weaving in
and out of the 1981 standards of care. Both parties agreed that the
standard of care in 1981, the time of Melissa's birth, should control.
Dr. Howe's attorney argued, however, that with regard to the question
of causation, "even the most up-to-date knowledge is admissible" and
that post-1981 information is relevant as to "whether the doctor
harmed anything."

After listening to Garner's attorney argue against the admission of
any post-1981 information, the court ruled that admission of post-
1981 medical articles was "a close question. I cannot decide that
except on each question asked. You object to it and I'll consider it at

                     5
that time." The court continued, "I'll have to decide each question as
it comes up . . . ."

On cross-examination, the post-1981 medical articles issue again
arose when Dr. Howe's attorney questioned Dr. Howe about the
Schifrin and Phelan medical articles.6 After Dr. Howe's attorney's
proffered the articles,7 the district court sustained Garner's objection
because the articles were "too remote in time" and "not capable of
cross examination by anyone." Thus, the articles were not used.8

After the testimony of Garner's standard of care experts, and just
prior to the testimony of one of her causation experts, Garner's attor-
ney asked for clarification of the court's prior ruling with respect to
post-1981 articles.9 In response the court stated that:
_________________________________________________________________
6 The 1994 Schifrin article was marked as Exhibit 49, and the Phelan
article marked as Exhibit 47. Dr. Howe's attorney also questioned Dr.
Howe about two other Schifrin articles, "Perinatal Antecedents of Cere-
bral Palsy", published in June, 1988 (marked Exhibit 48) and another
article published in Clinical Obstetrics and Gynecology, a small volume
that is published annually (marked Exhibit 50).
7 Dr. Howe's attorney argued that:

          The articles have statements in them. We urge the Court to
          reconsider, because we're trying to show is whether there is evi-
          dence of a prior injury demonstrated by the monitor strip find-
          ings. Not whether the doctor should have considered that in the
          standard of care. But this is strictly on the question of whether
          anything he did caused the injury to the child or whether the
          fetus was already damaged before labor, and the findings on the
          strip merely reflect the preexisting damage. So when they were
          written becomes irrelevant on that point. We don't offer them to
          prove what he should have done or what he shouldn't have done.
          We offer them as some proof that the injury preexisted the occa-
          sion when he delivered the [baby]. And on that subject, we feel
          like it would be prejudicial to our position to keep out that infor-
          mation. It doesn't bear on the standard of care. It bears on cause.
8 The court also sua sponte cautioned Dr. Stephen Gordon, Garner's
standard of care expert, to "[k]eep out of 1994" when Dr. Gordon
attempted to refer to Schifrin's 1994 article.
9 Garner's attorney was concerned that Dr. Howe's attorney might
attempt to cross-examine Hermansen using more current medical litera-
ture.

                     6
          The question came up [when Garner's attorney] said that the
          defendant was using articles written since 1981. Articles, of
          course, can be picked off trees like lemons or something.
          And at that time, I told the defense that they would not be
          able to use these articles. Treatise[s] might be something
          different[,] like this fellow's book you have all been using,
          Williams [Obstetrics]. Of course, that is a treatise. That's
          another matter. I'm talking about articles written as to
          causes which were produced since 1981.

After an exchange with counsel, the court reiterated:

          [W]hen the expert has consulted numerous sources and uses
          that information together with his own professional knowl-
          edge and experience to arrive at [his] opinion, that opinion
          is regarded as evidence in his own right and not as hearsay
          and disguise. I think that come[s] under Rule 703. What he
          knows he can talk about, but what he's going to try to refer
          to as articles he has read and have him talking about these
          articles, then the plaintiff cannot cross examine on that. So
          the ruling is as I told you before, any treatise up until what-
          ever time you've got, you can rely on that, but you cannot
          rely on articles which you pick out of the sky and whatever
          and come in here and say this article says so and so and I'm
          relying on that.

Garner's causation expert, Dr. Hermansen, testified without mention-
ing any post-1981 articles.

Garner's attorney raised the post-1981 medical articles issue again
prior to showing the videotaped deposition testimony of her standard
of care expert, Dr. Robert Knuppel. Garner's attorney objected to
questions posed by Dr. Howe's attorney,10 about the 1994 Schifrin
article, and asked that those questions be edited from the tape before
_________________________________________________________________
10 During Dr. Knuppel's deposition, Garner's attorney continually
objected to any questions with respect to causation because Dr. Knuppel
was prepared to testify only as to the standard of care issue. Over Gar-
ner's attorney's objections, Dr. Howe's attorney questioned Dr. Knuppel
about Schifrin's 1994 article.

                    7
the jury's viewing. The court overruled Garner's attorney's objection,
reasoning that because Dr. Knuppel had relied upon the 1994 article
in fashioning his opinion, the article was admissible under Rule 703.11

After the court's ruling, Garner's attorney asked the court why the
1994 article was being discussed, when the court had previously ruled
that the article could not be used. The district judge's law clerk then
explained to Garner's attorney that:

          The Judge's ruling as to causation was it could be permissi-
          ble if it was relied upon in the expert's field. It may be the
          very same article, but they did not make the representation
          previously. Now they've shown it. Your witness said it.
          That's the difference.

Garner's attorney raised the post-1981 articles issue one last time
after Dr. Howe presented the videotaped testimony of his expert, Dr.
Gary Hankins. During his testimony, after being shown both the
Schifrin and Phelan articles, and Williams Obstetrics, Dr. Hankins
testified that "now a fair accumulation of literature" supported his
contention that Melissa suffered no injuries during labor and delivery.
Dr. Hankins went on to testify that Melissa's injuries did not "occur
during labor or delivery." Dr. Hankins stated as a basis for his opinion
that "[w]e have a [fetal monitor] tracing that is characteristic of a pre-
vious injury. The baby is coming in already injured." Dr. Hankins, as
previously noted, relied upon the post-1981 articles,12 as well as the
ACOG Bulletin, published in 1992.13
_________________________________________________________________
11 Rule 703 provides that:

         The facts or data in the particular case upon which an expert
         bases an opinion or inference may be those perceived by or made
         known to the expert at or before the hearing. If of a type reason-
         ably relied upon by experts in the particular field in forming
         opinions or inferences upon the subject, the facts or data need
         not be admissible.
12 Dr. Hankins testified that the Schifrin and Phelan articles and the
Williams Obstetrics textbook were "reliable and good reference sources."

13 Garner's attorney did not object to the 1992 ACOG bulletin.

                    8
On cross-examination, Garner's attorney questioned Dr. Hankins
extensively about post-1981 articles cited in the ACOG bulletin, but
did not cross-examine Dr. Hankins about the 1994 Schifrin and Phe-
lan articles on fetal monitor tracings. After Dr. Hankins' testimony,
Garner's attorney noted an objection to the 1994 Schifrin and Phelan
articles mentioned by Dr. Hankins and stated that"I take it you've
come back down and sort of reversed your prior ruling." Dr. Howe's
attorney responded that he was not offering the articles into evidence
because the rules did not allow their admission. Since Garner's only
objection after Dr. Hankins' testimony was to the admission of the
post-1981 articles referred to by Dr. Hankins, the district court stated
that "[t]he articles are not going to be in evidence so I don't think you
have much objection to that."

B.

The district court's evidentiary rulings are reviewed for abuse of
discretion. Sasaki v. Class, 92 F.3d 232, 241 (4th Cir. 1996) (evidenti-
ary errors reviewed for abuse of discretion). In a nutshell, when the
post-1981 articles issue first arose, the court noted that the use of the
articles was a close question, and would rule on a question-by-
question basis. Up until the testimony of Dr. Knuppel, the court had
consistently ruled that post-1981 articles could not be used. Contrary
to Garner's protestations, however, the record adequately reflects that
the district court never made a blanket ruling that no post-1981 arti-
cles could be used. This fact is supported by Garner's own use of
post-1981 articles in cross-examining some of Dr. Howe's experts.14
Rather, the court stated that it would rule on the admissibility of post-
1981 articles on a case-by-case basis. While admittedly, the district
court ruled in plaintiff's favor until Dr. Knuppel's testimony, that fact
alone does not transform a case-by-case approach into a blanket
exclusion, as Garner appears to argue.
_________________________________________________________________
14 Garner's attorney cross-examined Dr. Hankins with the Schifrin and
Phelan articles and questioned another of Dr. Howe's experts, Dr. Sala-
fia, about her opinions on post-1981 books and articles published by Dr.
Fox, one of Garner's expert witnesses. Dr. Salafia testified that, based on
her examination of the slides of Melissa's placental tissue, a subacute
viral infection was most likely the cause of Melissa's brain damage. Gar-
ner's attorney did not cross-examine Dr. Salafia, however, on the 1994
Schifrin and Phelan articles.

                     9
Apparently, Garner's trial strategy focused on keeping out the 1994
Schifrin and Phelan articles, which were arguably most damaging to
Garner's case. Garner could have offered articles to rebut the Schifrin
and Phelan articles but failed to do so.15

Furthermore, Garner has not pointed to one instance in the record
where the district court did not allow one of Garner's experts to
express an opinion. Nor does the record support Garner's contention
that different rules applied for the admission of evidence. The record
does not reveal any instance in which the district court refused to
allow Garner to offer any post-1981 medical literature or ask any
questions about the post-1981 articles. Now Garner argues that the
absence of any support for her evidentiary argument is because Gar-
ner was operating under the belief that the district court had ruled that
no post-1981 medical articles would be allowed. As explained above,
the record does not support Garner's contention.

Garner also claims that had she been aware that the district court
was going to reverse its ruling, she would not have allowed her other
causation experts to leave. Thus, Garner claims that after Dr. Herman-
sen testified without mentioning the Schifrin and Phelan articles, she
lost the opportunity to have her final causation expert discredit the
Schifrin and Phelan articles. Again, Garner's decision to release her
experts before the close of the entire case, while understandable given
the expense of retaining experts, is not a basis for a new trial.16

With respect to Dr. Knuppel's testimony, Garner's argument is a
bit curious. Dr. Knuppel testified, via deposition, for Garner as her
standard of care expert. Dr. Knuppel, unlike Dr. Hermansen, was
_________________________________________________________________
15 We do not speculate as to whether Garner's failure to offer articles
in rebuttal to the Schifrin and Phelan articles was an inability to locate
rebuttal articles or a strategic trial tactic.
16 We are unsure as to how helpful Dr. Hermansen's testimony with
respect to the fetal monitor strips, the focus of the Schifrin and Phelan
articles, would have been given that Dr. Hermansen readily admitted on
cross-examination that he was not an expert in reading fetal monitoring
strips. He testified that "I'm very limited on the interpretation of fetal
monitoring strips. I don't do that. I leave that to the obstetricians. I said
that in 1990 and I'll say it today."

                     10
familiar with the reading and interpretation of fetal monitor strips. As
such, Dr. Howe's attorney questioned Dr. Knuppel about the 1994
Schifrin article on fetal monitor strips. Garner's attorney objected to
any questions about the 1994 article because Dr. Knuppel was Gar-
ner's standard of care expert, not her causation expert. Over objection
the following exchange occurred:

          Dr. Howe's Attorney (reading from 1994 Schifrin article):
          "In spite of the limited number of formal studies, persis-
          tently absent variability," which is the major component of
          this tracing in this article, "has been identified in textbooks
          and reports as suggesting neurologic compromise separate
          from hypoxia." Would you agree with that statement?

          Dr. Knuppel: Yes, I would.

          Attorney: And in this particular case, we have identified,
          have we not, persistent absent variability on this particular
          tracing?

          Dr. Knuppel: Yes, we have.

Thus, Garner's own expert agreed with the Schifrin article. Garner's
claimed basis for appeal is that she was not given an opportunity to
rebut the Schifrin and Phelan articles. Yet, Dr. Knuppel, Garner's
own expert, did precisely that, albeit not in the manner Garner would
have preferred.17

For whatever reason, Garner failed to offer articles to contradict or
rebut the Schifrin and Phelan articles. Contrary to Garner's argu-
ments, Garner was not prevented by the district court from introduc-
ing, either by way of opinion testimony or articles, another view of
_________________________________________________________________
17 Moreover, surely Garner is not arguing that the Schifrin and Phelan
articles were a surprise to her. The record demonstrates that Garner was
aware of the Schifrin article a month before trial, and the Phelan article,
at least two weeks before trial. Thus, as indicated above, Garner certainly
was aware that Dr. Howe intended to use the medical articles at trial.
Garner's decision, or inability, effectively to rebut the conclusions con-
tained in those articles is not a basis for a new trial.

                    11
the fetal monitor strips. We conclude that the district court did not
abuse its discretion in making the contested evidentiary rulings.
Accordingly, the judgment of the district court is affirmed.18

AFFIRMED
_________________________________________________________________
18 Because we conclude that the district court did not commit error in
its evidentiary rulings, no need exists to discuss the harmless error, or
invited error issues.

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