Bradley v. Sugarbaker, 891 F.3d 29

Background

In 2004 Ms. Bradley had a pulmonary mass; Dr. Sugarbaker recommended biopsy and referred evaluation of a less-invasive fine needle aspiration (FNA) to radiology; an FNA appointment at Hartford Hospital was scheduled then canceled.
Dr. Sugarbaker performed an open surgical biopsy; the mass was benign but the surgery caused serious pulmonary complications and long-term injury to Ms. Bradley.
The Bradleys sued asserting informed consent, negligence, and battery; first trial jury returned for defendant, but this Court vacated and remanded because the district court excluded the Bradleys’ proffered expert on informed consent (Bradley I).
On remand the district court limited retrial to the informed-consent claim and ruled the Bradleys waived any separate negligence claims; at the second trial the court admitted (a) a December 9, 2004 diary entry recounting what the PA said about radiology’s determination and (b) a Hartford Hospital record with a post‑it saying Brigham radiologists thought FNA was not possible.
The jury again found for Dr. Sugarbaker; the Bradleys appeal, arguing (1) the diary should not have been admitted under Fed. R. Evid. 807; (2) the Hartford post‑it was not admissible under the business‑records exception 803(6); and (3) the district court erred in finding their negligence claim waived.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of diary entry under Rule 807 (residual hearsay exception)	Diary entry substantiates that radiology ruled out FNA; it was admissible and crucial	Entry had sufficient indicia of trustworthiness and was cumulative of other evidence	Even if admission under Rule 807 was error, any error was harmless because the same facts were established by testimony and other evidence
Admissibility of Hartford record/post‑it under Rule 803(6)	Post‑it shows Brigham radiologists said FNA was impossible; admissible as business record	Post‑it was outsider hearsay and not admissible substantively, but admissible to show plaintiff’s belief and cancellation	Post‑it’s substantive admission was error as to the radiologists’ statement, but any error harmless because testimony corroborated the same facts
Waiver of separate negligence claims	Negligence theories (including negligent performance) survived summary judgment and were not waived	Plaintiffs failed to pursue clarification after pretrial conference, so non‑informed‑consent negligence theories were waived	Court did not err in finding waiver; alternatively any error was harmless because negligence theory overlapped with informed‑consent element and would have failed anyway
Prejudice from evidentiary rulings	Diary and Hartford records were the only evidence the radiology had ruled out FNA; their admission prejudiced the Bradleys	The same core facts were testified to at trial by Ms. Bradley and Dr. Sugarbaker and supported by expert testimony, so no prejudice	No reversible prejudice; verdict stands as any evidentiary error was harmless

Key Cases Cited

Bradley v. Sugarbaker, 809 F.3d 8 (1st Cir. 2015) (prior appeal vacating judgment for exclusion of plaintiffs’ expert)
United States v. Trenkler, 61 F.3d 45 (1st Cir. 1995) (standards for residual hearsay exception trustworthiness)
Brookover v. Mary Hitchcock Mem'l Hosp., 893 F.2d 411 (1st Cir. 1990) (analysis of hearsay exceptions and residual exception)
United States v. Benavente‑Gómez, 921 F.2d 378 (1st Cir. 1990) (residual exception should be used rarely)
Ohler v. United States, 529 U.S. 753 (2000) (party cannot complain on appeal about evidence it introduced at trial)
In re Net‑Velázquez, 625 F.3d 34 (1st Cir. 2010) (claims may be waived by failure to press them at pretrial conference)