Elliot Kaplan v. Mayo Clinic, 847 F.3d 988

Background

Elliot Kaplan was diagnosed via CT and needle biopsy with pancreatic cancer and referred to Dr. David Nagorney at Mayo Clinic for a Whipple procedure.
Elliot and his wife Jeanne allege Dr. Nagorney promised to perform an intraoperative biopsy of the pancreas to confirm cancer before completing the Whipple, but no such biopsy was done; postoperative pathology showed a benign tumor (chronic pancreatitis).
Plaintiffs originally sued Mayo, Dr. Nagorney, and Dr. Burgart for malpractice, breach of contract, lack of informed consent, and loss of consortium; claims against Nagorney were dismissed earlier for failure to timely produce expert testimony; the Eighth Circuit reversed dismissal of the contract claim and remanded (Kaplan I).
On remand the district court held a four-day bench trial focused on whether a special contract was formed under Minnesota law to perform the intraoperative biopsy; the court heard expert evidence about biopsy accuracy and surgical practice.
The district court found Dr. Nagorney’s version of the preoperative conversation more credible, concluded he did not promise an intraoperative pancreatic biopsy, and entered judgment for Mayo on the breach-of-contract claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a contract formed promising an intraoperative pancreatic biopsy	Kaplans: evidence (viewed favorably) supports finding a promise to biopsy during surgery	Mayo/Nagorney: no meeting of minds; surgeon explained intraoperative margin/node testing but not a pancreatic biopsy promise; expert testimony supports standard practice against such a promise	Court: No clear error in district court’s factual finding that no contract formed; judgment for Mayo affirmed
Whether Kaplan I bound the district court to find contract formation	Kaplans: Kaplan I’s sufficiency holding precludes contrary factual finding on remand	Defendants: Kaplan I only held the evidence could allow a jury verdict; it did not bind the district court as factfinder on remand	Held: Kaplan I did not preclude the district court from weighing evidence; no law-of-the-case violation
Whether defendants could rely on expert testimony on remand about standard practice	Kaplans: mandate prohibited expert evidence on contract-formation issue	Defendants: expert testimony admissible to show standard practice and rebut formation	Held: Experts were permissible; Kaplan I did not bar defense experts; district court properly considered them
Whether the district court’s factual findings were clearly erroneous	Kaplans: minor inconsistencies warrant reversal	Defendants: findings are supported by substantial record evidence and credibility determinations	Held: No clear error; appellate court defers to district court credibility findings and affirms

Key Cases Cited

Kaplan v. Mayo Clinic, 653 F.3d 720 (8th Cir. 2011) (prior appellate decision finding plaintiffs’ evidence could support contract formation)
Urban Hotel Dev. Co. v. President Dev. Grp., L.C., 535 F.3d 874 (8th Cir. 2008) (bench-trial review: legal conclusions de novo, factual findings for clear error)
Watkins Inc. v. Chilkoot Distrib., Inc., 655 F.3d 802 (8th Cir. 2011) (under Minnesota law, contract formation is a question of fact)
Tadlock v. Powell, 291 F.3d 541 (8th Cir. 2002) (standards for overturning factual findings: substantial evidence, legal error, or firm conviction of error)
United States v. Castellanos, 608 F.3d 1010 (8th Cir. 2010) (law-of-the-case doctrine principles)
In re Nevel Props. Corp., 765 F.3d 846 (8th Cir. 2014) (illustration of the clear-error standard in vivid terms)
In re Papio Keno Club, Inc., 262 F.3d 725 (8th Cir. 2001) (quoted for the ‘‘unrefrigerated dead fish’’ formulation of clear error)