708 F.3d 23
1st Cir.2013Background
- Giguere, Vietnam veteran, sustained diaphragmatic hernia from a landmine injury, altering anatomy years later.
- May 4–6, 2005: admitted to VA Hospital for chest symptoms and need for CABG; May 6 surgery performed without complications.
- Postoperative period involved difficulties with nasal/orogastric tube placement due to abnormal anatomy, raising concerns about aspiration risk.
- May 8–9, 2005: signs of ileus emerged; NG tube management was complicated by concerns of esophageal perforation; feeding decisions were debated.
- May 10, 2005: Giguere died from cardiac arrest during a fluoroscopic NG-tube attempt; estate sued the United States under FTCA; district court found for the United States; on appeal, issues included standard of care, evidentiary rulings, and privilege over SSQIC comments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of care under the circumstances | Giguere's case required consideration of his unique anatomy. | Massachusetts standard is physician-average care under circumstances. | District court properly applied the standard of care. |
| Factual finding on solid food administration | Estate contends Giguere was given solid food, showing breach. | Records are ambiguous about solid food intake. | Findings not clearly erroneous; substantial evidence supports the result. |
| Admission of endoscopic NG-tube testimony | Endoscopy testimony was improperly admitted due to late disclosure. | Rule 26(a)(2)(B) rules permit supplement; not prejudicial. | No abuse of discretion; plaintiff had opportunity to respond. |
| Privileged SSQIC Comments and physician peer-review | SSQIC comments were privileged but potentially waived due to marking. | Directive required clerical marking; confidentiality preserved despite marks. | Privilege upheld; no waiver; district court correctly applied directives. |
Key Cases Cited
- Anderson v. City of Bessemer, 470 U.S. 564 (1985) (two permissible views of evidence; not clearly erroneous)
- Mitchell v. United States, 141 F.3d 8 (1st Cir. 1998) (abuse of discretion standard for expert testimony decisions)
- Curet-Velázquez v. ACEMLA de PR, Inc., 656 F.3d 47 (1st Cir. 2011) (assessing Rule 26 notice and supplementing record to respond to expert)
- Licciardi v. TIG Ins. Grp., 140 F.3d 357 (1st Cir. 1998) (factors for assessing late expert testimony submissions)
- United States v. Gypsum Co., 333 U.S. 364 (1948) (standard deference to trial court credibility determinations)