Jane ROBERTS, as Guardian for Wanda Y. Johnson, Plaintiff-Appellant/Cross-Appellee,
v.
GALEN OF VIRGINIA, INC., formerly d/b/a Humana-Hospital University of Louisville, d/b/a University of Louisville Hospital, Defendant-Appellee/Cross-Appellant.
No. 01-5334.
No. 01-5390.
United States Court of Appeals, Sixth Circuit.
Argued December 10, 2002.
Decided and Filed April 9, 2003.
COPYRIGHT MATERIAL OMITTED Joseph H. Mattingly III (argued and briefed), Lebanon, Kentucky, for Plaintiff-Appellant.
Audra J. Eckerle (briefed), Bryan Todd Thompson (argued and briefed), Millicent A. Tanner (briefed), Thompson, Miller & Simpson, Louisville, Kentucky, for Defendant-Appellee.
Before BATCHELDER and MOORE, Circuit Judges; COLLIER, District Judge.*
MOORE, J., delivered the opinion of the court, in which COLLIER, D.J., joined. BATCHELDER, J., (p. 789), delivered a separate concurring opinion.
OPINION
MOORE, Circuit Judge.
The plaintiff, Jane Roberts (as guardian for the injured Wanda Johnson), lost a jury trial in her suit against the defendant, Galen of Virginia ("Galen"). Roberts claimed that Galen had improperly transferred Johnson from Humana-Hospital (which Galen operated) to Crestview Health Care Center, in violation of the federal Emergency Medical Treatment and Active Labor Act ("EMTALA") as well as Kentucky negligence statutes. Roberts now appeals to this court, alleging that the trial judge erred by dismissing her Batson challenges, in permitting Galen's expert Dr. Charash to testify, by failing to sequester one of Galen's witnesses, and in giving improper jury instructions. Galen cross-appeals, contending that it should have been granted judgment as a matter of law.
For the reasons set forth below, we find that none of the plaintiff's contentions of error justify reversal. We therefore AFFIRM the judgment of the district court. Having resolved the case in favor of the defendant, we do not reach the defendant's alternative contention that it should have been granted judgment as a matter of law.
I. BACKGROUND
After being injured in a serious automobile accident, Wanda Johnson was transported to Humana-Hospital, on May 20, 1992, with extensive injuries to her brain, spine, right leg, and pelvis. On her arrival, the doctors at Humana worked to stabilize her condition. Though Johnson's condition improved, it was clear that recovery was going to be gradual. Nancy Fred, a social worker for Humana (along with Dr. Walid Abou-Jaoude, Johnson's physician at Humana), investigated the possibility of transferring Johnson to a skilled nursing facility. Johnson remained at Humana for roughly two months, until July 24, 1992, when she was transferred from Humana, which is in Louisville, Kentucky, to Crestview Health Care Center in Indianapolis, Indiana. Upon arrival at that facility, her condition significantly deteriorated. She was later transferred to Midwest Medical Center, also in Indiana. This lawsuit arises out of Roberts's contention that Galen, by choosing to transfer Johnson when she was unstable, violated both EMTALA and Kentucky negligence statutes.
At trial, the facts were developed further. Donna Kaelin, Suzanne Griffith, and Karen Martin, who were nurses at Humana, had monitored Johnson's condition in the 36 hours before the transfer. They noted that Roberts had an elevated white blood-cell count and temperature, cloudy urine, and expiratory wheezes. The nurses also reported caring for Johnson's right lung, the upper portion of which had collapsed on the night of July 22, 1992. The nurses recorded their observations on Johnson's charts. Karen Martin, who was on duty when Johnson was actually transferred, explicitly noted that she had not only charted her observations, but had brought them to the attention of Dr. Abou-Jaoude, who was Johnson's physician and the physician in charge of the transfer.
Since Johnson had experienced multiple urinary tract infections due to her indwelling Foley catheter, Abou-Jaoude suspected that the elevated temperature and cloudy urine were symptomatic of another urinary tract infection. Abou-Jaoude took chest x-rays and a bronchoscopy, and a urine culture was obtained. The x-rays indicated that Johnson's partially collapsed lung was stable and improving. Preliminary reports on the urine culture suggested to Abou-Jaoude that it was a case of colonized bacteria, a routine problem with patients hospitalized for long periods of time. Abou-Jaoude also noted that many of Johnson's symptoms — such as her high white blood-cell count and elevated temperature — had existed since her arrival at Humana and were likely not probative of anything. Believing that Johnson likely had a urinary tract infection and was in no serious danger, Abou-Jaoude put her on Bactrim, an antibiotic, and continued with her transfer.
After her transfer to Crestview, however, Johnson's condition deteriorated; she developed a case of active pneumonia and suffered lasting damage. The plaintiff disputes whether Johnson's condition was stable enough for her to be transferred. Dr. John Stuy, the plaintiff's expert, testified that the hospital should have held Johnson until it received final reports (rather than just preliminary ones) on the urine culture. Stuy testified that Johnson's ability to fight off infection was extremely compromised and that an infection could have easily spread into the bloodstream causing sepsis and eventual death. Stuy noted that when Johnson was admitted to the Midwest Medical Center she was diagnosed with active pneumonia and that such pneumonia could have been present at the time of the transfer. The defendant's medical experts all contradicted Dr. Stuy, and argued that there was no objective evidence of a significant infection at the time of the transfer. They stated that it was common and appropriate to transfer a patient without a final report as long as the patient did not have active sepsis.
This case comes before us as an appeal from a jury verdict for the defendant. The complaint in this case was filed on August 30, 1993. Initially, the defendant was given summary judgment by the district judge, who held that liability under EMTALA's stabilization requirement could not be established without a showing that the hospital was motivated by improper financial considerations. Our court affirmed. See Roberts v. Galen of Virginia, Inc.,
II. ANALYSIS
A. Jurisdiction
The district court below had jurisdiction over Roberts's EMTALA claim pursuant to 42 U.S.C. § 1395dd and 28 U.S.C. § 1331, and supplemental jurisdiction over the state-law negligence claim pursuant to 28 U.S.C. § 1367. This court has jurisdiction over the entire case pursuant to 28 U.S.C. § 1291.
B. The Batson Claim
Roberts alleges four independent errors on the part of the trial judge. Roberts's first claim is that the defendant's attorneys used some of their peremptory challenges to eliminate black jurors, in violation of the Equal Protection Clause. See Batson v. Kentucky,
To establish a[n] equal protection violation under Batson, the claimant must first establish a prima facie case of racial discrimination.... If the claimant establishes a prima facie case, the party exercising the peremptory must proffer a race-neutral explanation.... After the defending party offers its race-neutral justification, the challenging party must demonstrate that the purported explanation is merely a pretext for a racial motivation.
McCurdy,
When analyzing Batson challenges, we have stated that a proffered race-neutral reason "need not be persuasive, or even plausible, but merely facially valid." Hill,
In this case, the court was left with sixteen jurors after conducting voir dire. Each party was granted four peremptory strikes. Each side used all of its strikes, leaving the eight jurors that made up the jury. The defendant used two of its peremptories to strike the only two black jurors in the jury pool. After the plaintiff objected, the district judge ordered defense counsel to justify its exclusion of the two challenged black jurors. Counsel stated that he struck the two challenged jurors because they were scowling during voir dire, and because he believed that they might be unable to understand the case because of their occupations (one being a janitor and the other a laborer) or, alternatively, might be favorably disposed to rule for the plaintiff. After discussing the issue with both sets of counsel, the district judge then ruled on the challenge:
I don't find that the Plaintiff has met her burden of proof in showing purposeful discrimination here. I think the justifications that have been made are well-within the parameters of permissibility. And those of us who have tried cases, there are many times that you know the type of juror you would ideally like to see for a particular case, not racially but the type of juror for purpose of education, attention span, or anything else including scowling. And jurors don't always raise their hand and say, "I don't like a particular party," but sometimes there are clues in the jury selection process that lead the artful practitioner to decide to strike one over the other. I think that's the situation we have here, so I'll overrule the objection.
Joint Appendix ("J.A.") at 423 (Trial Tr.).
Roberts has not made out a case of racial discrimination under Batson. The defendant gave plausible race-neutral reasons for excluding the jurors, and Roberts has put forth no evidence to contest these race-neutral justifications. Moreover, the district court explicitly determined these race-neutral justifications to be credible and valid. Given the deference that we are obliged to give to the trial court's perception of the validity of the defendant's stated race-neutral justifications, Roberts's Batson challenge fails.
Roberts seems to recognize that she has presented no evidence of racial discrimination but instead urges us to reverse the district court on the basis that the district judge did not adequately evaluate the defendant's stated race-neutral reasons, as required by McCurdy. Roberts overstates how much we require of a district judge in this context. In McCurdy, this court found a district court's initial Batson inquiry to be insufficient (though we ultimately found a second, more extensive inquiry, sufficient) because the judge "perfunctorily accepted the County's race-neutral explanation." McCurdy,
C. Discovery Sanctions under Rule 26(a)(2)(B)
Roberts next claims that the district court erred in not excluding the testimony of Dr. William Charash, one of Galen's experts, because Galen failed to comply with the mandatory-disclosure provisions of Federal Rule of Civil Procedure 26(a)(2)(B). Specifically, Roberts alleges that Charash's report was never signed, did not contain the data that Dr. Charash used in forming his opinions, did not list his publications or the amount he would be compensated, and did not include a copy of his curriculum vitae. Roberts argues that the trial judge should have sanctioned Galen for not providing this information until shortly before trial.
Rule 26(a)(2)(B) generally requires parties to make mandatory disclosures about their experts:
Except as otherwise stipulated or directed by the court, this disclosure shall ... be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Fed.R.Civ.P. 26(a)(2)(B). Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a), that is, it "mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified." Vance v. United States, No. 98-5488,
In this case, Dr. Charash was originally not scheduled to testify at all. Instead, Dr. Larry Micon was going to testify for Galen. Micon's report had been properly disclosed in 1994 before trial began. Due to previous appeals to this court and to the United States Supreme Court, however, there was a seven-year lag between the filing of the lawsuit and the trial. As a result, Micon was not available to testify. Galen therefore substituted Charash to take his place.
At a pretrial hearing on June 26, 2000, Roberts objected to the substitution of Charash for Micon. The district judge allowed the substitution. A month later, Galen submitted a two-page summary of Charash's qualifications and prospective testimony. The two-page summary stated that copies of Dr. Charash's curriculum vitae ("CV") had been requested and would be turned over when received. The summary explained that Charash was going to testify to the same conclusions that Micon espoused. Galen also stated at that time that Charash's testimony would not go beyond Dr. Micon's.
This issue was dormant for five months until Roberts moved to strike Charash's testimony one month before trial, in January of 2001. This motion was debated at the final pretrial conference on February 6, 2001, six days before the trial began. At the final pretrial conference, Roberts argued that Charash's CV had never been supplied and that Charash never reported what his conclusions would be. The court questioned Galen's counsel, who stated that Charash was going to testify as Micon would have testified and that no independent report was therefore needed. Galen's counsel also stated that he had not yet seen Charash's CV. The court ordered Galen immediately to produce Charash's CV and told both parties that it would not permit Charash to testify differently than Micon's report. With these restrictions, the court allowed Charash to testify.
Roberts argues that district court's actions were erroneous and that the judge should have prevented Charash from testifying because of the violations of Rule 26(a)(2)(B). Specifically, Roberts argues that no detailed report was ever filed, that Charash's CV was not provided until a week before trial, that Charash never signed the report, and that no one disclosed Charash's publications or the amount he was paid. We hold that this claim of error fails.
First, we observe that these allegations all seem either factually incorrect or relatively harmless in the context of this case. Roberts alleges that she was never informed as to the contents of Charash's expected testimony, but the two-page summary produced by Galen belies that claim. Delivered to Roberts at the July 2000 hearing, the summary explains how Charash was going to testify by stating that Charash was going to follow the conclusions of Dr. Micon's original report, which had been disclosed earlier to Roberts. Roberts then complains that Charash did not sign the report and that no one disclosed Charash's publications or the amount he was paid. These failures to disclose all seem relatively harmless here. Roberts's counsel knew who was going to testify and to what they were going to testify. This fact alone makes this case atypical of cases where sanctions have been justified under Rule 37(c)(1). See, e.g., Ames v. Van Dyne, No. 95-3376,
Even if we assume that these violations were not justified or harmless, however, Rule 26 was satisfied here because — contrary to Roberts's claims — the district court did sanction Galen. Roberts intimates in her brief that the only appropriate sanction for Galen's alleged violations is the total exclusion of Charash's testimony. Rule 37(c)(1), however, provides several remedies to a district judge who is faced with violations of the mandatory-disclosure provisions of Rule 26. The provision on sanctions explicitly states in pertinent part that "in lieu of this sanction [of total exclusion], the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions." Fed.R.Civ.P. 37(c)(1). Rule 37(c)(1) does not compel the district judge to exclude testimony in its entirety. See Dura Auto. Sys. of Indiana, Inc. v. CTS Corp.,
D. Sequestration Challenge Under FRE 615
Roberts's next claim is that the district judge failed to sequester trial witness Nancy Fred, as required by Federal Rule of Evidence 615. Galen contends that Fred falls within an exception to the general rule; Roberts contends that all the exceptions are inapposite.
This court reviews the district court's decision to deny sequestration for an abuse of discretion. See United States v. Mohney,
(1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.
Fed.R.Evid. 615.
The second exception is the one that Galen claims is most relevant here. The notes of the Advisory Committee explain that "[a]s the equivalent of the right of a natural-person party to be present, a party which is not a natural person is entitled to have a representative present." Fed. R.Evid. 615 advisory committee's note (1972). Corporations are allowed to choose any officer or employee as their designated representative.1 See Queen v. Washington Metro. Area Transit Auth.,
Roberts argues, however, that Nancy Fred is merely a former employee of Galen's and therefore not an "officer or employee" of Galen's within the meaning of the exception. At the time of the incident, Galen operated Humana-Hospital University of Louisville and employed Nancy Fred. By the time of trial, however, Galen no longer operated Humana and did not employ Fred. In fact, at trial, the district court found that Galen was "no longer operating" at all and had "no employees." J.A. at 286 (Dist.Ct.Order). The district court applied Rule 615 as if Galen were an operating corporation and permitted Galen's counsel to designate Fred as its Rule 615 representative.
We agree with the district court and hold that Nancy Fred can qualify for the exception in Fed.R.Evid. 615(2). The purpose of the second exception to Rule 615 is to give corporations the right to have a representative present throughout a trial. If Roberts's position were adopted, then a corporation like Galen, who has no current employees and is no longer operating, would not be entitled to any representative at trial at all. This would be unfair given that natural parties — like Roberts, in this case — have the right to avoid sequestration. See Fed.R.Evid. 615 advisory committee's note (1972) (noting that "[e]xclusion of persons who are parties would raise serious problems of confrontation and due process"). Under the circumstances here, however, Galen had a right under Fed. R.Evid. 615(2) to designate Nancy Fred, and the district court did not err in exempting Fred from sequestration.
E. Jury Instructions
Roberts's last claim is that the district court gave erroneous and prejudicial jury instructions. The court instructed the jury that Roberts had to prove that the "physician responsible for [the] transfer had actual knowledge of that condition" for liability under the stabilization provision of EMTALA, 42 U.S.C. § 1395dd(b) and (c). J.A. at 367. Roberts argues that there is no requirement of actual knowledge under these branches of the EMTALA statute, and alternatively, that there is no requirement that the physicians have actual knowledge — just that the hospital have actual knowledge. Both of these claims, however, do not succeed.
1. Actual Knowledge
Roberts's first claim is that the district judge erroneously imported an actual-knowledge requirement into the jury instructions. The EMTALA statute, 42 U.S.C. § 1395dd, has three main sections. Section (a) requires hospitals to provide appropriate medical screening examinations to those who come to emergency rooms. Section (b) requires hospitals to stabilize patients who have emergency medical conditions or who are in labor, or to transfer them only in accordance with section (c). Section (c) generally prohibits transfers without a written request and waiver by the patient, a signed physician certification, or a qualified medical person's certification after consultation with a physician.
This court has long held that liability under section (b) requires actual knowledge of the condition. See Cleland v. Bronson Health Care Group, Inc.,
Roberts suggests that section (c) should not be interpreted as requiring actual knowledge. She reads EMTALA as creating three separate duties, one each under sections (a), (b), and (c). As a result, Roberts argues that the actual knowledge requirement that we implied in section (b) should not attach to section (c). For support, she cites a Virginia Supreme Court case that adopts a separate-duty interpretation. See Appellant Br. at 22 (citing Smith v. Richmond Mem'l Hosp.,
All four other circuits to consider this or related questions have held that there is no liability under subsection (c) unless there has been a determination under subsection (b). Baber v. Hospital Corp. of America,
James v. Sunrise Hosp.,
2. The Actual-Knowledge Instruction
Roberts also claims that, assuming that the requirement of actual knowledge was proper, the instruction was erroneous because it required the jury to find that the physicians themselves had actual knowledge of the emergency medical condition. Roberts claims that liability under the statute should attach if any hospital employee had knowledge of the emergency medical condition, not just a physician.
"This circuit has set a high standard for reversal of a conviction on the grounds of improper instructions." United States v. Sheffey,
The jury instructions in this case required the jury to determine whether "[t]he physician responsible for her transfer had actual knowledge of that condition." J.A. at 367. Roberts objects to this instruction, claiming that EMTALA requires only that the hospital, not necessarily the attending physician, have knowledge of the condition. Roberts argues that the jury instruction effectively shielded Galen from EMTALA liability for the participation of its social workers, nursing staff, and administration.
Roberts is correct; the jury instructions were erroneous. The language of EMTALA clearly implies that Galen is responsible not only for the actions of its doctors, but also for the actions of its other employees. The EMTALA statute, in all its sections, refers to the obligations of hospitals, rather than physicians. For example, the statute plainly states that a duty arises under section (b) if an individual "comes to a hospital and the hospital determines that the individual has an emergency medical condition." 42 U.S.C. § 1395dd(b)(1) (italics added). As a result, the jury instructions incorrectly suggested that the hospital was only liable if the physician responsible for her transfer knew about the condition. In Cleland, this court interpreted "the vague phrase `emergency medical condition' to mean a condition within the actual knowledge of the doctors on duty or those doctors that would have been provided to any paying patient." Cleland,
Having established error in the instructions, Roberts cannot, however, prove prejudice. Logically, such prejudice might exist if Johnson were transferred despite another hospital employee knowing that she had an emergency medical condition without her attending physician having known it. In theory, this is quite possible. For example, it is conceivable that, under some circumstances, a nurse could know details of a patient's situation constituting an emergency medical condition, thereby triggering the hospital's obligations under EMTALA, without the transferring physician being aware of the situation.
Here, however, the attending physician, Dr. Abou-Jaoude, knew of all the pertinent facts about Johnson's condition before ordering the transfer. The nurse on duty at the time of the transfer, Karen Martin, explicitly testified that she informed Dr. Abou-Jaoude of all of Johnson's symptoms. She also wrote on Johnson's medical chart, "Dr. A.J. aware," because she wanted to make sure that Dr. Abou-Jaoude as the attending physician had all of the relevant information to make the decision as to whether to transfer Johnson. J.A. at 456C 456D. Roberts does not even allege that someone in the hospital had some knowledge of Johnson's condition that Dr. Abou-Jaoude lacked. As it is clear that the deficient jury instructions did not prejudice Johnson, we accordingly will not reverse the district court's judgment on the basis of the jury instructions.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's judgment. As all of the plaintiff's assignments of error fail, we need not consider Galen's alternative argument that it was entitled to judgment as a matter of law.
Notes:
Notes
The Honorable Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting by designation
This is required by the rule, even though it may frustrate the rule's general purpose:
[R]ecognition of this exception clearly subverts the policies behind Rule 615's general requirement of excluding witnesses. A party will often appoint as its representative the officer or employee most knowledgeable about the case. Thus, this second exception can give that crucial witness the opportunity to hear the other witnesses and tailor his testimony accordingly. Notwithstanding this risk, Rule 615(2) recognizes the exception in order to afford a party that is not a natural person a right comparable to the right the first exception affords to natural persons. This seems appropriate since criminal cases will always and civil cases will often match a party that is not a natural person against a party that is a natural person. Failure to equalize Rule 615 treatment of parties within the same case may not pose constitutional problems, but still smacks of unfairness.
Charles Alan Wright & Victor James Gold, 29 Federal Practice and Procedure § 6245, at 76 (1997) (footnote omitted).
InRoberts v. Galen of Virginia, Inc.,
We note that this court has not been altogether consistent on the standard for overturning erroneous jury instructions. According to Westlaw, there have been forty-two cases in which we have stated that we will overturn jury instructions only if they are "confusing, misleading,and prejudicial." See, e.g., United States v. Kone,
To set the record straight, this court has required a showing of prejudice to overturn erroneous jury instructions; the correct version of the standard is "confusing, misleading, and prejudicial." This phrase first appeared in our decision in DSG Corp. v. Anderson,
We now correct the mistake we made in Beard. We note that this correction will almost certainly not change the practice of our circuit in any significant way. Many of the cases that have used the "confusing, misleading, or prejudicial" standard have ultimately required prejudice in a roundabout way, generally by requiring that the error not be harmless. By insisting that an error in jury instructions have harmed a party's case before reversal can be ordered, errors that are not prejudicial to any party cannot be the basis for reversal. Thus, even the "confusing, misleading, or prejudicial" standard has been interpreted to require both an error in jury instructions and resulting prejudice before reversal is justified. See, e.g., Toth,
BATCHELDER, Circuit Judge, concurring.
I write separately because, although I do not disagree with either the reasoning of the lead opinion or its conclusions with regard to the issues it addresses, I would not reach those issues. Galen contends in its cross-appeal that the district court should have granted its motion for judgment as a matter of law, and this case should never have gone to the jury. In my view, we ought to address Galen's assignment of error first, and if, as I believe we must, we conclude that the district court erred in denying the motion, we would not reach the issues surrounding the jury verdict.
A district court may grant a motion for judgment as a matter of law if "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue...." Fed.R.Civ.P. 50(a). This court, "viewing the evidence in the light most favorable to the nonmovant," reviews de novo the district court's decision whether to grant the motion. Diamond v. Howd,
As a matter of law, the plaintiff had to show that Roberts was transferred from the University of Louisville Hospital at a time when she had "an emergency medical condition which ha[d] not been stabilized." 42 U.S.C. § 1395dd(c)(1). An emergency medical condition
manifest[s] itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in —
(i) placing the health of the individual ... in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part ....
§ 1395dd(e)(1)(A). After reviewing the record thoroughly and construing the evidence in a light most favorable to the plaintiff, I have found no evidence to support the conclusion that Roberts, at the time of her transfer, was suffering from an "emergency medical condition" as defined by the EMTALA. While the hospital's decision to transfer Roberts may have been unwise, or perhaps even negligent, the hospital did not have a continuing duty under the EMTALA to care for Roberts when she no longer required immediate medical attention.