Leslie Grussing v. Orthopedic and Sports Medicine, 892 F.3d 953

Leslie Grussing underwent arthroscopic knee surgery; post-op swelling led to a July 18, 2014 visit where Dr. Solman aspirated 60cc of synovial fluid but did not send it for infection testing because the fluid appeared essentially normal.
Grussing continued to have symptoms; an October 2014 aspiration tested positive for chronic infection, and she later had a total knee replacement.
Grussing sued Dr. Solman and his practice for medical malpractice, alleging failure to diagnose and test for post-surgical infection at the July 18 visit.
At trial, Grussing’s expert testified the fluid should have been tested given sudden post-op pain and swelling; defense expert Matava testified infection could not be confirmed absent constitutional signs and abnormal-appearing fluid.
During cross-examination, the district court curtailed Grussing’s counsel’s repeated questions about whether normal-looking synovial fluid can be infected; other witnesses (including Solman) had already testified that normal-looking fluid can nonetheless test positive.
During closing, defense counsel misstated the burden standard by saying jurors should find for defendants if they were “not sure”; the court had already instructed the jury on the preponderance standard, provided written instructions, and gave a curative admonition during closing. The jury ruled for the defendants; the district court denied a new-trial motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether limiting cross‑examination of defense expert on infectability of normal‑looking synovial fluid warranted new trial	Court improperly curtailed core questioning; Matava would have conceded that normal‑looking fluid can be infected	Questioning was repetitious; evidence on that point was already in record	Denial affirmed — any exclusion was harmless because same fact was presented through other witnesses
Whether defense counsel’s misstatement during closing about “not sure” outcome required new trial	Misstatement misstated burden of proof and was potentially prejudicial	Court had repeatedly and correctly instructed jury on preponderance; immediate curative instruction was given	Denial affirmed — court’s instructions and curative measures prevented prejudice; not plainly unwarranted or injurious

PFS Distribution Co. v. Raduechel, 574 F.3d 580 (8th Cir. 2009) (standard of review for denial of new trial is abuse of discretion)
Porchia v. Design Equip. Co., 113 F.3d 877 (8th Cir. 1997) (exclusion of evidence harmless when same facts presented by other evidence)
Kostelec v. State Farm Fire and Cas. Co., 64 F.3d 1220 (8th Cir. 1995) (procedural questions about counsel arguments governed by federal law)
Bank of Am., N.A. v. JB Hanna, LLC, 766 F.3d 841 (8th Cir. 2014) (new trial procedure governed by federal law)
Vanskike v. Union Pac. R. Co., 725 F.2d 1146 (8th Cir. 1984) (trial court has broad discretion to control closing arguments; reversal only for statements plainly unwarranted and clearly injurious)
City of Malden v. Union Elec. Co., 887 F.2d 157 (8th Cir. 1989) (curative jury instructions can cure improper statements in closing)
United States v. Voice, 622 F.3d 870 (8th Cir. 2010) (district court’s instruction can correct a misstatement of law made in argument)