N.O. Ex Rel. Orwig v. Alembik
694 F. App'x 895
4th Cir.2017Background
- Plaintiff Christine Orwig sued her obstetrician Dr. Marc Alembik for medical malpractice under Virginia law after her child N.O. was born prematurely with serious neurological injuries (hydrocephalus, cerebral palsy).
- During labor Alembik noted "probable impending chorioamnionitis" and later entries listed "chorio," but he prescribed only clindamycin (effective for gram-negative organisms); post-delivery placental pathology showed gram-positive chorio that would have required gentamicin.
- Orwig alleged Alembik breached the standard of care by failing to diagnose/treat gram-positive chorio (i.e., failing to treat both gram-positive and gram-negative organisms), and that this caused N.O.’s injuries.
- At trial Alembik defended that he did not diagnose chorio before birth and that, even if treatment had been broader, there was insufficient time for antibiotics to alter the outcome; he presented expert testimony on both standard of care and causation.
- Orwig challenged: (1) admission of two defense experts who opined a reasonable doctor would not have diagnosed chorio, (2) the district court’s refusal to strike a juror observed sleeping once, and (3) admission of a defense expert’s causation testimony allegedly not fully disclosed under Rule 26.
- The jury returned a defense verdict; the Fourth Circuit affirmed, reviewing the district court’s evidentiary and juror decisions for abuse of discretion and declining to reach the Rule 26 disclosure issue because causation was not reached by the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of defense experts opining no breach for failure to diagnose chorio | Expert testimony invaded jury province, improperly bolstered credibility, and was unhelpful under Rule 702 | Experts offered specialized medical opinion on what a reasonable physician would diagnose given symptoms, relevant to standard of care | Admission upheld: experts were helpful under Rule 702, not improper credibility bolstering, and not unduly confusing under Rule 403 |
| Denial of motion to strike Juror 25 for sleeping | Juror 25 slept during testimony of plaintiff’s pathologist, prejudicing Orwig and warranting replacement | District court observed juror subsequently attentive; testimony was uncontested and parties did not rely on it at closings; limited prejudice | Affirmed: no abuse of discretion in refusing to remove juror given limited/unwitnessed sleeping and lack of demonstrated prejudice |
| Admission of causation testimony allegedly not disclosed under Rule 26 | Alembik’s expert testimony on causation was not properly disclosed and should have been excluded | Any nondisclosure was harmless or cumulative; jury did not reach causation | Court did not decide the Rule 26 issue (unnecessary); noted in dictum that any error likely harmless/cumulative |
| Verdict form/instructions ambiguity | Broad verdict form could have misled jury to consider diagnosis rather than just treatment breach | No contemporaneous objection to form/instructions at trial | Issue forfeited on appeal because Orwig expressly told the court the form was "fine" at trial |
Key Cases Cited
- United States v. Hager, 721 F.3d 167 (4th Cir.) (district courts entitled to deference on juror-excusal decisions)
- United States v. Lighty, 616 F.3d 321 (4th Cir.) (abuse-of-discretion review for evidentiary rulings)
- S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592 (4th Cir.) (standard for reviewing discovery sanctions)
- United States v. Henry, 673 F.3d 285 (4th Cir.) (definition of abuse of discretion)
- Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir.) (Rule 702 requirements for expert testimony)
- United States v. Lespier, 725 F.3d 437 (4th Cir.) (expert testimony cannot be used solely to evaluate witness credibility when jurors can assess the issue themselves)
- Nimely v. City of New York, 414 F.3d 381 (2d Cir.) (limitations on expert testimony that merely evaluates credibility)
- United States v. Fuertes, 805 F.3d 485 (4th Cir.) (corroborative expert testimony not per se improper)
- United States v. Williams, 445 F.3d 724 (4th Cir.) (harmless-error analysis when evidence is cumulative)
- United States v. Freitag, 230 F.3d 1019 (7th Cir.) (sleeping juror removal is discretionary; removal not always required)
- Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.) (preservation requirement for objections to jury instructions)