                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1273
                                   ___________

Elijah W. Swope,                        *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Asim Razzaq, M.D.,                      *
                                        *      [PUBLISHED]
             Appellee.                  *
                                    __________

                             Submitted: October 10, 2005
                                Filed: November 17, 2005
                                 ___________

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
                            ___________

PER CURIAM.

       Elijah W. Swope (Swope) moved for a new trial following his unsuccessful
diversity medical malpractice action against his urologist, Dr. Asim Razzaq (Dr.
Razzaq), arguing the district court1 (1) clearly erred in denying his challenge under
Batson v. Kentucky, 476 U.S. 79 (1986), and (2) abused its discretion in controlling
closing arguments. The district court denied the motion. Swope appeals. We affirm
the district court’s denial of Swope’s new trial motion.


      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
I.     BACKGROUND
       Swope, an African-American, brought a medical malpractice action against
three doctors for damages he suffered during a radiation seed implantation to treat his
prostate cancer. Swope dismissed one doctor, settled with the second, and went to
trial against the third, Dr. Razzaq, a urologist. At the conclusion of voir dire, Dr.
Razzaq’s attorney peremptorily struck the only three African-Americans from the
remaining thirteen person venire panel. Swope made a Batson challenge to the
peremptory strikes. After hearing arguments, the district court denied Swope’s
Batson challenge and seated an all-white jury. At trial, to establish Dr. Razzaq’s
negligence, Swope called Dr. Louis Potters (Dr. Potters), a radiation oncologist.
During closing argument, Dr. Razzaq argued that because he was a urologist, and
because Swope’s expert Dr. Potters was a radiologist, Dr. Potters could not render
competent testimony on Dr. Razzaq’s negligence. Swope did not object to this
argument. In Swope’s rebuttal, however, Dr. Razzaq objected to Swope’s argument
that the legal standard was “defendant’s profession,” not Dr. Razzaq’s specialty. The
district court sustained the objection, limiting Swope’s argument. The jury returned
a verdict in favor of Dr. Razzaq.

      Swope appeals, arguing (1) the district court erred in overruling his Batson
challenge by failing to engage in a proper analysis under the third step of the Batson
burden-shifting test, and (2) the district court abused its discretion by allowing Dr.
Razzaq to argue during closing that Swope failed to support his case by calling an
expert radiation oncologist to establish the standard of care for the defendant
urologist and by not allowing Swope to argue a physician in one specialty is
competent to testify as to the standard of care of a physician in another specialty.




                                         -2-
II.   DISCUSSION
      A.    Batson Challenge
      We review a district court’s Batson ruling for clear error and with great
deference. United States v. Blaylock, 421 F.3d 758, 769 (8th Cir. 2005) (citations
omitted). A Batson challenge is evaluated under a three-step burden-shifting
analysis:

      Under Batson, a party opposing a peremptory strike may make a prima
      facie case of discrimination by showing the circumstances support an
      inference that the exercise of the challenged peremptory strike was
      based on unlawful discrimination. If the objecting party establishes a
      prima facie case, then the proponent of the peremptory strike must
      provide a nondiscriminatory explanation for the strike. The district
      court then must determine whether there was purposeful discrimination.

Id. (citations omitted). Under the third step, “[a] party can establish an otherwise
neutral explanation is pretextual by showing that the characteristics of a stricken
black panel member are shared by white panel members who were not stricken.”
Davidson v. Harris, 30 F.3d 963, 965 (8th Cir. 1994) (citations omitted). “Pretext can
also be based on a finding that the factors used to explain the strike are irrelevant to
a person’s ability to perform as a juror in the particular case.” United States v.
Jenkins, 52 F.3d 743, 747 (8th Cir. 1995) (citing Elem v. Purkett, 25 F.3d 679, 683
(8th Cir. 1994)).

      After the district court correctly found Swope made a prima facie showing Dr.
Razzaq’s peremptory strikes were unlawfully based on race, the court requested race-
neutral explanations for the strikes from Dr. Razzaq. Regarding the first juror struck,
Dr. Razzaq’s attorney claimed he struck the juror because the juror was a long-time
casino employee, and a person working in that industry might have a “lotto mentality”
and view a personal injury lawsuit as an opportunity to strike it rich. Regarding the
second juror struck, Dr. Razzaq’s attorney claimed he struck the juror because the


                                          -3-
juror was unemployed, he had been a plaintiff in a personal injury case, and his wife
was a government employee, all of which could make the juror favor plaintiffs. Dr.
Razzaq’s lawyer also claimed he failed to communicate well with the juror during
voir dire. Regarding the third juror struck, Dr. Razzaq’s attorney claimed he struck
the juror because she was a long-time government employee and demographically
those persons tend to favor plaintiffs.

       Swope attempted to rebut these race-neutral explanations, claiming they were
irrelevant to the ability to be a juror in a medical negligence case and being
unemployed, a former personal injury plaintiff, or a government employee does not
make a juror more plaintiff-oriented. Swope failed, however, to make the district
court aware of any similarly situated jurors who had not been struck.2 The district
court ruled Swope failed to prove any of the three jurors were struck based on
purposeful discrimination.

       Having thoroughly reviewed the record, we hold the district court did not
clearly err in determining Swope failed to meet his burden of demonstrating
purposeful discrimination. While Dr. Razzaq’s attorney peremptorily struck the only
three African-Americans from the remaining thirteen person venire panel, leaving an
all-white jury, that fact raises only the “debatability” of the striking party’s motives,
and the district court took this into account when making its ruling. See Miller-El v.
Cockrell, 537 U.S. 322, 342 (2003). Also, Swope is incorrect that the race-neutral
reasons for a party’s peremptory strike must be related to the particular case to be
tried. While relation to the case is relevant, we have never required such a showing.
Cf. United States v. Ali, 63 F.3d 710, 713 (8th Cir. 1995) (“In the present case, not


      2
       Swope argues on appeal there were similarly situated white jurors left on the
jury. The issue on appeal, however, is whether the district court clearly erred in
finding Swope failed to meet his burden of demonstrating purposeful discrimination.


                                          -4-
only was the government’s reason race-neutral, it was also related to the particular
case to be tried.”). The district court observed the communications between the
attorneys and jurors, and evaluated the credibility of Dr. Razzaq’s lawyer’s race-
neutral explanations. We defer to the court’s reasoned findings, and accordingly, we
find no clear error.

       B.      Standard of Care for Medical Specialist
       Swope also argues the district court abused its discretion by allowing Dr.
Razzaq to argue during closing that Swope failed to support his case by calling an
expert radiation oncologist to establish the standard of care for the defendant
urologist and by not allowing Swope to argue a physician, regardless of specialty, is
competent to testify as to the standard of care of another physician. See United States
v. Macklin, 104 F.3d 1046, 1049 (8th Cir. 1997) (citation omitted) (“Trial courts are
invested with broad discretion in controlling closing arguments, and we will reverse
only if the trial court abused that discretion.”).

        Based on our review of the record and Missouri case law, we hold the district
court did not abuse its discretion. Missouri cases hold the requisite standard of care
imposed on a medical defendant in a medical malpractice case is “that degree of care,
skill, and proficiency which is commonly exercised by the ordinarily skillful, careful,
and prudent physician, engaged in a similar practice under the same or similar
conditions.” Yoos v. Jewish Hosp. of St. Louis, 645 S.W.2d 177, 183 (Mo. Ct. App.
1982) (emphasis added) (quoting Rauschelbach v. Benincasa, 372 S.W.2d 120, 124
(Mo. 1963)); see also Hart v. Steele, 416 S.W.2d 927, 931-32 (Mo. 1967); Steele v.
Woods, 327 S.W.2d 187, 196 n.11 (Mo. 1959) (collecting authorities). It therefore
was not an abuse of discretion for the district court (1) to allow Dr. Razzaq to argue
to the jury an expert urologist, not an expert radiation oncologist, should determine
the standard of care for a urologist, and (2) to prohibit Swope from arguing Dr.
Razzaq’s specialty was irrelevant and the real test was for the defendant’s profession
in general. Accordingly, we affirm.

                                         -5-
III. CONCLUSION
     Based on our review of the record, we affirm the district court’s denial of
Swope’s motion for new trial.3
                         ______________________________




       3
        The parties’ pending motions are moot and are denied.

                                       -6-
