Plaintiff-appellant David B. Gicla had his right-ankle joint replaced with an implant at a Veteran’s Administration Medical Center in Chicago. After the implant failed to relieve the chronic pain and swelling that Gicla was experiencing, a series of five additional surgeries followed, culminating in the amputation of his right leg below the knee. Gicla filed this suit for malpractice against the United States and various VA medical personnel pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671,
et seq.
The individual defendants were dismissed from the suit, and the case was tried to the bench. The magistrate judge, presiding with the parties’ consent, entered judgment in favor of the United States, finding that the VA medical personnel who treated Gicla did not breach the duty of care that they owed to him. Gicla appeals. He primarily challenges the district court’s refusal to exclude the testimony of a defense expert for a purported violation of Federal Rule of Civil Procedure 26, after the expert disclosed on cross-examination that just before taking the witness stand he looked at x-rays that
In 1999, Gicla consulted with Dr. John Grady, director of the podiatry service at the Westside VA Medical Center in Chicago. Gicla had severe arthritis in his right ankle stemming from a fracture he suffered in a motorcycle accident some twenty years earlier, while he was serving in the U.S. Navy. The arthritis caused him to experience extreme pain and swelling. After nonsurgical efforts at relieving his symptoms proved unsuccessful, and after discussing his options with Dr. Grady, Gicla agreed to have his ankle joint replaced using the DePuy Agility® Total Ankle System, an implant which had only recently been approved by the U.S. Food and Drug Administration. Gicla was 40 years old at that time.
The surgery, performed in April 1999, was the first occasion on which VA physicians had used the DePuy Agility® implant. Dr. Grady performed the surgery with the assistance of resident Dr. Jonathan Norton. During the procedure, they removed a screw that had been used to repair the fracture Gicla had suffered years before. The head of the screw broke off as the surgeons tried to remove it. Because they lacked an appropriately-sized trephine to hollow out the bone around the screw and facilitate the screw’s removal, they were forced to use an osteotome and mallet, which may have resulted in the removal of more bone surrounding the screw than a trephine would have. Also during the surgery, either when the implant was inserted or when the ankle was flexed following the implantation, the lower portion of Gicla’s fibula (calf bone), also known as the lateral malleolus, cracked. Such fractures are a known risk of implant surgery. The surgery was otherwise uneventful.
The implant did not improve Gicla’s discomfort, however, and a series of follow-up surgical procedures ensued. In July 1999, Drs. Grady and Norton removed a bony regrowth from his right ankle and lengthened his Achilles tendon to increase the range of motion in his foot. In August 2000, Dr. Grady removed the implant and the ankle joint was fused. One year after that, much of the remaining hardware in the ankle was removed. The following year, yet another surgery was performed in an effort to salvage the fusion. Still, Gicla continued to experience pain and difficulty using his right leg. Ultimately, in October 2003, Gicla had his right leg amputated eight to ten inches below the knee. The final three surgeries were performed in Milwaukee, where the Giclas had relocated.
Gicla filed this suit in October 2003 complaining of medical malpractice. Gicla alleged that he was too young for the implant procedure performed in 1999 (given the expected life of the implant) and that he was not properly advised of the risks attendant to an ankle replacement. He also alleged that Drs. Grady and Norton made certain mistakes in performing the initial surgery in April 1999 and the followup surgery in July which contributed to the failure of the implant to resolve his discomfort, including using the wrong-sized implant, removing too much bone in extracting the broken screw, failing to use bone wax to prevent bone growth in unwanted areas (e.g., the area around the removed screw), fracturing his fibula, failing to stabilize the implant, failing to use a bone stimulator to hasten bone regrowth in desired areas, and damaging or displacing his deltoid ligament during the followup surgery.
Gicla’s counsel took the position that it was a violation of the government’s obligations under Rule 26 for Dr. Vito to testify as an expert when his opinions were now informed by his review of the x-rays, and when his belated review of those x-rays had not been disclosed to Gicla in accordance with the rule. Gicla was prejudiced by the violation, his attorney argued, because counsel had planned Dr. Vito’s cross-examination believing that Dr. Vito had rendered his opinions without reviewing the x-rays. Dr. Vito’s unexpected disclosure that he had taken a look at the x-rays and that they did not change his opinion blocked the line of attack that Gicla’s counsel had intended to pursue and left him unprepared to question Dr. Vito about what he saw or didn’t see in the x-rays. Counsel added that he was unable to consult with Gicla’s expert (who was not present at the trial) in order to prepare appropriate questions for Dr. Vito now that Dr. Vito had seen the x-rays.
The district court declined to strike Dr. Vito’s testimony. The court was critical of the government for having shown Dr. Vito the x-rays on the morning of his testimony.
On appeal, Gicla renews his contention that Dr. Vito’s belated review of the x-rays, without warning to the plaintiff, was a violation of Rule 26(a)(2) that was prejudicial to his case. He contends that the only proper way to address this violation was to strike Dr. Vito’s testimony pursuant to Rule 37(c)(1). In Gicla’s view, the exclusion of Dr. Vito’s testimony would have so altered the balance of the evidence as to entitle him to judgment.
We review the district court’s decision not to exclude Dr. Vito’s testimony for abuse of discretion.
See, e.g., Jenkins v. Bartlett,
We may assume without deciding that Dr. Vito’s eleventh-hour review of the x-rays amounted to a violation of Rule 26 regardless of whether his opinions changed as a result of that review. By requiring the pre-trial disclosure of any expert testimony that a party intends to offer, along with the bases for the expert’s opinions, Rule 26 is designed to avoid surprise and give the opposing party a full opportunity to evaluate the expert’s methodology and conclusions and to respond appropriately. See Rule 26(a)(2) advisory committee’s note, 1993 amendments. Dr. Vito formed his opinions as to the care provided to Gicla without reviewing the x-rays; he instead relied on the radiological reports. This gave Gicla an opening to attack the validity of Dr. Vito’s opinions at trial that Gicla’s counsel fully intended to exploit. At no time in advance of trial, and certainly not within the time set by the court for Rule 26 disclosures, did the United States disclose an intent to have Dr. Vito review the x-rays before he took the witness stand. Dr. Vito’s unannounced review of the x-rays foreclosed to Gicla the line of attack his counsel had anticipated pursuing and, more pertinently, given the purposes of Rule 26, deprived him of forewarning as to the impact of the x-rays on Dr. Vito’s thinking, the opportunity to question Dr. Vito on that point during discovery, and the ability to adjust his cross-examination at trial accordingly.
Still, as the district court noted, there is no evidence that Gicla was unduly prejudiced by the surprise. Although Dr. Vito did suggest that seeing the x-rays enabled
It is true that Gicla was deprived of his anticipated challenge to Dr. Vito’s opinions, but that is not what Rule 26 was designed to protect. Trials serve a truth-seeking function, and if Dr. Vito’s opinions were not altered by his review of the x-rays, then the factfinder was entitled to know that. The real harm was that Gicla and his counsel were deprived of the opportunity to know in advance of the trial that Dr. Vito’s opinion was unchanged, and to prepare to cross-examine him on that point.
This is why it matters that the district court offered Gicla’s counsel the opportunity to take a break in order to determine what x-rays Dr. Vito had reviewed and to ascertain whether he wished to cross-examine Dr. Vito on those x-rays. Gicla could have used that opportunity to determine what questions he might wish to ask of Dr. Vito knowing that Dr. Vito had now seen the x-rays. We have recognized the propriety of such measures to correct Rule 26 violations.
See Fidelity Nat’l Title Ins. Co. of N.Y. v. Intercounty Nat’l Title Ins. Co.,
The fact that this was a bench trial also served to minimize any prejudice to Gicla. The Magistrate Judge was aware of what had occurred, understood perfectly well that Dr. Vito had formed his opinions without looking at the x-rays, and also appreciated the fact that Gicla’s counsel was put at a disadvantage at trial by the surprise disclosure.
One last point on this subject: Gicla presumes that had Dr. Vito’s testimony been excluded, the deposition testimony of his own expert, Dr. David Plotkin, would have stood unchallenged, compelling the district court to find in his favor. For that reason, he contends that the error in allowing Dr. Vito’s testimony entitles him to reversal with directions to enter judgment in his favor, or alternatively to a new trial.
But his presumption is flawed for multiple reasons. First, even if Dr. Plotkin’s testimony had not been expressly contradicted by way of the government’s expert, in no sense would the district court have been compelled to credit his opinions and render judgment for Gicla. The court could have found fault with Dr. Plotkin’s analysis, for example. Moreover, Dr. Plot-kin’s opinion would not have been the sole opinion concerning the adequacy of Gicla’s medical care even in the absence of Dr. Vito’s testimony. The VA doctors who performed the implant surgery on Gicla also testified, and of course as his treating physicians, they were qualified to offer opinions as to the propriety of the treatment he received. Like Dr. Vito, Dr. Grady was led through most if not all of the opinions that Dr. Plotkin had expressed (although Dr. Plotkin was not cited as the source of those opinions), and like Dr. Vito, Dr. Grady disagreed with them. Indeed, the district court’s decision in favor of the government reflects that it did credit and rely upon the treating physicians’ testimony in significant respects.
Which brings us to the final issue that Gicla raises: He argues that the district court erred in crediting the testimonies of Dr. Vito and the treating physicians over that of Dr. Plotkin and that the court’s judgment in favor of the government was against the manifest weight of the evidence. As the basis for that argument, he relies on a variety of inconsistencies among the testimonies of the government’s witnesses. For example, Dr. Vito thought that arthroscopy might have been an option for Gicla in the first instance, Tr. 389-90, but the testimonies of Drs. Grady and Norton reflected no discussion of arthroscopy with Gicla. Tr. 44, 51, 269-70, 297. In other instances, the physicians were in agreement on certain points as to the limitations or risks of the implantation procedure, but gave testimony that raised questions about whether their decisions were in accord with those known limitations and risks. For example, Dr. Grady testified that if a patient’s ankle joint had
As Gicla’s argument recognizes, the ultimate decision in this case as to whether or not the VA physicians committed malpractice turned largely on the credibility of the witnesses. There were disputes between Mr. and Mrs. Gicla on the one hand and Gicla’s treating physicians on the other as to some of the underlying facts — in particular, as to the options the physicians had discussed with Gicla prior to his implant surgery and the warnings they gave him about the risks associated with that surgery. Those types of disputes presented straightforward credibility questions for the magistrate judge to resolve as the finder of fact. But there were also disputes of opinion among the parties’ expert witnesses and the treating physicians. Although those professionals were commenting largely on the same body of evidence relating to Gicla’s course of treatment, they came to directly contradictory conclusions as to what that evidence revealed about the propriety of the care Gicla received. Thus, when Dr. Vito testified on behalf of the government, he was
walked through each of Dr. Plotkin’s opinions as to the mistakes he believed Gicla’s VA physicians had made, and Dr. Vito rejected each of those opinions. So the case also presented a classic battle of the experts. And in that respect as well, the case called upon the factfinder to determine what weight and credibility to give the testimony of each expert and physician.
See United States v. Olofson,
No such error occurred here. Although there were, as Gicla emphasizes, certain inconsistencies and vulnerabilities in the testimonies of the government’s witnesses, nothing precluded the district court from crediting their opinions as to the propriety of the care that Gicla received. The testimonies of Drs. Vito, Grady, and Norton were consistent with one another in important respects. Dr. Vito had significant experience with the type of implant sur
For all of these reasons, we reject Gicla’s assignments of error and Affirm the judgment in the government’s favor.
Notes
. Having previously questioned Gicla's expert, Dr. David Plotkin (whose deposition was later admitted into evidence in lieu of his testimony at trial), Gicla’s attorney was well aware of what Dr. Plotkin saw in the x-rays that he believed was indicative of negligence on the part of the VA physicians. See, e.g., R. 85 at 35 (noting significant space around removed screw), 38-39 (noting void and trauma resulting from removal of screw, which, in Dr. Plotkin's view, led to bone spurs that required second operation, which in turn resulted in destabilization of ankle), 56 (noting "huge” space between tibia and fibula, which suggested that smaller implant should have been used), 57-58 (noting deviation and lack of stability owing, in Dr. Plotkin's view, to surgeon's failure to properly position, support, and protect lateral malleolus), 64 (noting that more of fibula was removed than recommended by implant manufacturer). We add that Dr. Grady too was questioned about certain of the x-rays by both the government and Gicla. See, e.g., Tr. 172-175, 189-194, 200-03. So Gicla’s counsel had some familiarity with the x-rays that would have helped him to make a showing of prejudice resulting from Dr. Vito’s surprise disclosure.