*1
(8th Cir.1996)
ble),
lished
accord United States v.
Shirley
KLISCH, Gary
Ann
(10th
Torres,
Cir.1996),
ry only minimum to the criminal grew marijuana five times as much [but] not the 19, Submitted Nov. grower. smaller-scale 27, Decided Jan. Stockdale, United States v. 129 F.3d (9th Cir.1997). may It well be anoma grant Mihm, lous Mr. example, safety relief,
valve but not Mr. Warhol. But as we explained,
have a fair reading of the two 3553(f) § makes safety
statutes valve relief to defendants eligible who are 3582(c)(2) Therefore, § relief. it would vio 3553(f) lenity deny §
late the rule of relief because, view, Mr. Mihm in our there are
others to whom it should generally extended. See v. United Bifulco
States,
447 U.S.
100 S.Ct.
(1980);
R.L.C., 915 F.2d aff'd, 291, 112 1329, 117
503 U.S. S.Ct. L.Ed.2d 559 (1992). reasons,
For the foregoing
the district court is reversed and the case is
remanded district court for further
sentencing proceedings not inconsistent with opinion. We have not considered wheth-
er 3553(f) Mihm is eligible § Mr. for the
safety valve nor other issues that arise 3582(c)(2) § on remand. We leave
such issues in the first instance the sen-
tencing court. *2 MN, Sortland, argued, Minneapolis,
Paul Appellants. ND, argued Fargo, Yoglewede, Jane ND, Carlson, Fargo, (Wayne W. brief), Appellee. BEAM, HEANEY, Before and JOHN R. could have decided in favor of either GIBSON, Judges. party presented Circuit based on the evidence notes, however, trial. The court HEANEY, Judge. Circuit presented compelling expert defendants Shirley Gary appeal testimony supporting Ann and from a their contention that *3 jury's finding plaintiffs' injuries verdict MeritCare Medical the could have occurred Group malpractice any negligence part not liable in this medical without Specifically, challenge physicians. plaintiffs pre- action. the Klisches defendant jury conflicting expert testimony. four ranting instructions as erroneous and war- sented no Therefore, because there was sufficientev- a new trial. The district court upon juror denied the Klisches' motion for a new trial. idence which a reasonable could defendant, plain-
We affirm. find in favor of the the judgment tiffs' motion for as a matter of I. [denied]. law is August 13, 1993, Shirley Group, Ltd., On Aim Kllsch Klisch v. MeritCare Medical (Klisch) laparoscopic surgery A3-95-123, (D.N.D. 13, 1997). which in- No. at 2 Jan. hysterecto- cluded tubal sterilization and a appeal, argues On that her motion my. surgery Klisch had her initial at the granted for a new trial should have been Group (MeritCare) MeritCare Medical Clinic jury because the four instructions were im- Bemidji, Shortly located in Minnesota. af- proper impermissibly and were biased in fa- experienced compli- terwards Klisch medical essence, argues vor of MeritOare. she cations, including injury, a bowel she claimed jury instructions, that absent the erroneous negligence were due to the of the doctors the would not have found for MeritCare. performed surgery. the MeritCare re- sponded complications that such were com- II. type procedure mon in this not at fault. "We review the district court's instructions for abuse of discretion." Aero receiving follow-up After care at the Merit- tronics, Corp., Inc. v. Pneumo Abex 62 F.3d Clinic, experience Care Klisch continued to (8th Cir.1995)(citing 1062 Baking Co., Hoselton v. great pain. Thereafter, she went to the Uni- (8th Metz 48 F.3d 1062 versity Hospital Minneapolis. of Minnesota Cir.1995)). diversity cases, a federal dis emergency surgery She underwent for an formulating trict court has wide discretion in cavity signif- infectionin her abdominal and a (citation omitted). Id. part icant of her small intestine was re- reviewing jury instructions, When this moved. She also lost of her colon. court's review is limited to whether the in brought The Kllsches suit based on Merit- structions, whole, fairly viewed on the alleged malpractice. Care's medical After adequately represent appli the evidence and presented trial, both sides evidence at the light presented cable law in of the issues jury found for MeritCare. The Klisches im- particular the in a case. Hose v. Chica mediately moved for a as a matter go Transp. Co., N.W. 70 F.3d 977 response of law. In to the Klisches' motion Cir.1995). law, for a as a matter of the dis- case, apply trict court stated: In this Minnesota substantive case, plaintiffs argue Thus, jury instructions, In this law. weight substantial of the evidence does not viewed on the should conform to support trial, Aerotronics, a defense verdict. At both Minnesota state law. 62 F.3d at parties presented expert testimony sup- 1062. We first consider whether the court port opinion, giving jury 16, 10, their case. In this court's erred in instructions parties' question "significant approach 1. In both briefstherewassome contacts" in tort actions. 750, as to whetherNorth Dakotaor Minnesotalaw Olson, (N.D. Issendorfv. 194N.W.2d applied. clearly strong- shouldbe er Contactsas applied under North Dakota's Osterloh, law); Nowatske ing Tennessee 11 for the we assess 9. Later (1996) Wis.2d purpose. state of regard due (finding that 16,2“Improved Medi Jury instruction of treatment the time technology at medical jury that instructs Techniques,” cal physi- by which the standard should technolo of medical the state consider should judged). actions cian’s not at surgery, time of gy 10,3 “Hindsight Pro Jury instruction argues that trial, time of Negligence,” to Consideration hibited tech medical jury because confuses the the information weigh instructs We issue actual not an nology at the time of appropri 16 was Jury instruction disagree. of hind the benefit and without was an actual medical ate because *4 argues that the particular, Klisch sight. at Mer- example, doctors For issue clearly errone jury charge is part of the last technology of type what to choose itCare the stan hindsight, is not “Foresight, ous: jurors were The treating Klisch. in to use App. at (Appellant’s negligence.” of dard trial; in consid during this fact of aware 129.) used, it actually technology medical ering the argument, Despite Klisch’s the jurors considered the that important the of by decisions directly supported is10 of Klisch’s the time technology at available v. Be Court. Schmidt Supreme available have been would surgery, what 401, 477, 409 N.W.2d 173 ninga, Minn. 285 Jury of trial. time at the doctors to the 110, 142 274 Minn. Draper, (1970); Jacobs bring jurors, reminds instruction (1966); Pear Dellwo v. 628, 632-33 N.W.2d trial, that to a experiences their own life son, Minn. re type of care analyzing the when lies in confusion (1961). appears It of technol ceived, at the state look must where negligence, distinguishing between 1993, not in at to Klisch ogy available cause, proximate foresight, uses trial, 1996, medical when time of determining in hindsight one uses where changed. have may very well standard a breach there was whether a Minnesota cite party was able Neither Schmidt, at 409 care. See of one. we able find nor point, case on foresight by tested (“ ‘[Njegligence is law ease reviewing Nevertheless, other after by hind is determined cause proximate in mind broad keeping issue and on this omitted). Thus, appellant ”) (citation sight.’ charg- in judge has court a district discretion two stan simply confused to have seems in- judge’s that jury, we believe ing a clearly did dards, court the district of discretion. abuse not an struction this offering in his discretion abuse States, F.2d See, v. United e.g., Ward instruction. Cir.1988) must be (“regard 182, 187 9,4 Degree “Highest Jury instruction science at medical of given state instructs Required,” Not omitted) and Care Skill (apply- of treatment) (citation of time” 136.) App. at (Appellant's Tech- “Improved Medical 2.Jury instruction provides: niques,” as "Hindsight Prohibited Jury instruction testify their experts as to heard You have provides: Negligence,” to Consideration proce- medical appropriate opinions of of medicine field The be followed. dures of what always question Negligence is static, improved tech- progressive, with exercising reason- person, prudent reasonably diagnosis and methods of niques new done under or should would able day. determin- every treatment discovered circumstances, light the infor- the same defendant the treatment whether Foresight, not time. at that mation in- you malpractice, constitutes case hindsight, is the judged as be is to the defendant structed 129.) App. (Appellant’s of medical knowl- of advancement the state fact acted. The edge time the defendant Degree of Skill “Highest Jury instruction would of action particular course provides: Required,” Not and Care today does not neces- appropriate indicated sarily physician abso- require of a law does not the defendant at the time it was so mean his practice or in in his accuracy, either lute acted. formulating should not be held the court's broad discretion in infallibifity, jury instructions, viewing to a standard of but rather and after compared entirety, should be to those with the skill instructions in their we are unable knowledge ordinarily possessed by to find an abuse of discretion. those speciality similarly within the same who are Jury 11,7 situated.5 Klisch is correct that there is no Alternative Diagnosis Treatment," directly point Methods of is the Minnesota case on as to the problematic. properly argues jury. par most instruction offered to the Neither ty, however, provide judgment," is able to a cite that is that the term "best part offered as particularly helpful resolving this issue. has been discred Nevertheless, believe, viewing Supreme ited the Minnesota Court in the Ouellette, instructions on the that the district Ouellette decision. 391 N.W.2d at Ouellette, Supreme court did not abuse his discretion in 816. In the Minnesota offering this instruction. Court set forth new instructions for a Minnesota trial court to use in medical mal Jury instruction 9 could be construed to practice clarify instruction, jury cases: an earlier 8,6 in terms of how one should define the negligent simply A doctor is not applied similarly-situ standard of care as prove his or her efforts unsuccessful. The *5 Jury 9, recognizing ated doctors. instruction fact a doctor have chosen a method of physician fallibffity, conjunction read in with proves treatment that later to be unsuc- jury 8, requiring similarly-situat instr~uction negligence cessful is not it' the treatment provide ed to reasonable accepted treatment on the basis of the information available to the chosen was an diligence, appears clarify skill and for the jury perfect that a doctor need not be when made; doctor at the time a choicehad to be providing This, judgment, treatment. in our must, however, a doctor use reasonable telling jury is akin to care to obtain the information needed to necessarily negligent because his/her professional judgment, exercise his or her treatment is unsuccessful. See Ouellette v. and an unsuccessful method of treatment Subak, (Minn.1986)(a chosen because of a failure to use such negligent simply doctor is not because the reasonable care wouldbe treatment was unsuccessful if the treatment Ouellette,391 N.W.2dat 816. medicallyaccepted according was information at the time the choice had to be to available Although the distnict court re made). charg lied on earlier Minnesota case law in agree ing jury,8 We with Klisch that the district the honest error in certainly (or equivalent judgment") language court could have been more clear in "best jury However, considering provided jurors improper instruction. he was judgment. by, expectedof,phy- It does not hold him to the stan- sessedand exercised and siciansin the same infallibility require general practice. dard of nor doesit of him line of degree learning (Appellant'sApp. 127.) the utmost only of skilland known at specialty only to a fewin his but to that Jury degree knowledge ordinarilypos- 7. instructioneleven-"AlternativeMethods of and skill Diagnosis Treatment,"-provides: specialtysimilarly of or sessed membersof the situatedandin likesituatioos. recognized Wherethere is more than one (Appellant'sApp. 128.) at diagnosis treatment, methodof or and not one exclusively uniformlyby of them is used and Similarlysituated, example, could mean practitioners goodstanding, physician all of working area, opposed those in a rural as negligentif, exercising judg- is not his best working area, having those in an urban ment, approvedmethods, he selectsoneof the availableto them. wrongselection, whichlater turns Outto be a or onenot favored certainother ers. practition- Jury 8, "Physician's Standard of Care,"provides: (Appellant'sApp. 130.) at performingprofessionalservices, physi- duty Kinning Nelson, (Minn. cian has a to exercisesuch reasonable 8. 281 N.W.2d849 care, diligence ordinarilypos- and skillas are necessarily require re- not] [does it struetion jury, as instructing a When Ouellette. subsequent by a cured was the error if versal alternative choice physician’s ato relates entire by consideration us- treatment, language such methods omitted). (citation charge.” rather judgment” “professional ing his/her in deter- appropriate judgment” “best than additionally argues negligent. was a doctor mining whether treatment,” methods “alternative phrase 816.9 Ouellette, 11, was mislead part of introduced specifically judg never since was between distinction The assertion, there Contrary her is worth ment wit by expert views offered subjec competing suggests were former noting should treat one of how ob in terms an nesses suggests latter standard tive methods alternative which medi To analysis. assess standard jective Therefore, this appropriate. consistently with malpractice cal properly present was Minne of the instruction the model incorporated in law, and as objec jury. an instructions, must use ed sota Id. of review.
tive instruc- we found theOn decid- jury could balanced.10 tions out correctly points Although Klisch evi- side, weighing the for either ed view we do a flaw We will MeritCare. found for dence was flaw believe isolation it in an there was unless jury’s decision upset the twenty-nine considering all when cured court district by the of discretion abuse reading the entire When We was not. charge. There in the sufficiently defined negligence charge, through Mrs. Klisch recognize that subjective, stan objective, not suggest the reasons suffering; pain and much *6 in example, For applied. be dards must deci- above, jury’s we believe discussed malpractice, defining medical stand. should sion “[mjedical negli part that relevant in 6 reads definition, fail is the by (malpractice), gence with III. in accordance patient a to treat ure in resulting practice, accepted medical proper we affirm. Accordingly, App. at (Appellant’s patient.” harm provides 125.) Similarly, jury instruction GIBSON, Judge, Circuit R. JOHN duty to exercise has a “a that dissenting. ... ordinarily possessed ... care reasonable today The court respectfully dissent. I line of general in the same by ... number in instruction flaw recognizes 127.) Thus, stated (Id. practice.” the instructions that when concludes F.2d Lynch, 906 Merrill Davis v. re- I error. was no there together, read in- “single erroneous a must ... learning doctor and skill of this offered jury instruction regard, the care. incorporated in use reasonable been in Ouellette the court or [his simply because negligent 4 Minn. is A doctor not instructions. Minnesota the model Practice, JIG, a Ass'n, fact prove unsuccessful. Minnesota Judges efforts her] Dist. 1986). of treatment may a method (3d have chosen ed. doctor neg- proves to unsuccessful be later that however, had that noting, worth It is accept- was an chosen ligence if the jury as simply instructed district court the information basis ed treatment 425, perhaps Minnesota to model a choice time to the doctor stemming problems confusion and many however, must, use rea- made; a doctor to be avoid- could have instructions from needed the information to obtain care sonable provides: Model ed. judgment, her] [his to exercise pa- professional services performing cho- of treatment method an unsuccessful and degree skill tient, use must a doctor ... reasonable such use failure sen and normally possessed learning which and negligence. be would care standing in good ... doctors used Practice, Ass'n, Judges Dist. Minn. 4 JIG, communities practice, in similar similar ed.1986). (3d application In the circumstances. like spectfully I differ. conclude that instruction conflicting theories general and a verdict is number 11 was contrary to existing returned, Minneso- not stand. See Francis v. law, ta the standard the district court Franklin, 471 U.S. 320-25, 105 S.Ct. required follow, was in conflict with other 1965, 1974-77, 344(1985). 85 L.Ed.2d instructions, and that it sufficiently affected The situation before us is even perni- more the trial of this ease that reversal is required. cious as the jury, after being given prop- There were six instructions that dealt er standard in 9, is, instructions 8 and with the negligence. issue of Three do not given a preemptive direction mention the standard of care. One defines that the physician is negligent when he medical negligence, one sets forth the ele- selects a recognized method of treatment ments of medical negligence, one “exercising judgment.” his best The instruc- (Instructions bad result is tion the Minnesota court held should be no 7 and longer given trumps thus the correct instruc- Only three instructions dealt with the stan- tions. dard of are set forth in inMl I believe this to prejudicial error. Hav- opinion. court’s Instruction 8 properly concluded, so I will not further comment defines the standard of care required of phy- on the fact many of the instructions are sicians as that ordinarily possessed and exer- riddled with argumentative statements, some by, cised expected of, physicians in the having no in this case. general practice. line of Instruction 9 I would reverse standard, reiterates this and remand argumentative with for retrial based on error statements in the concerning accuracy absolute infallibility. These two instructions define an objective standard. Instruction 11 tells the jury that where there is more than one rec-
ognized method of diagnosis or treatment “a
physician is if, not negligent in exercising his best judgment,” he selects the above John Steven Thomas OLINGER,
methods. The language in- Appellant, subjective serts a standard.
The first error in giving Instruction 11 is *7 that the Minnesota Supreme Court Ouel LARSON; Dennis City J. of Sioux Subak, lette v. (1986), Falls; South Terry Dakota held that an instruction containing the Satterlee, Appellees. phrase “honest error in judgment,” language No. 97-1894. quite similar us, to that before was inappro priate, and suggested an instruction refer United States Court of Appeals, ring to reasonable care Eighth Circuit. judgment. We have in Pearce v. Corner Clinic, stone Submitted Nov. F.2d 855 1997.
reversed where the instruction language “us Decided Jan. ing the judgment” inserted subjective Rehearing and Suggestion for Rehearing considerations into objective En Banc Denied March created by Arkansas statutes.
The second infirmity of the instructions as
a whole is that there is direct conflict be-
tween the two instructions defining the de-
gree of care as that ordinarily possessed and
exercised physicians in the same line of
practice, and instruction 11 that the exercise
of best judgment is not negligence. It is well
established that when instructions submit