Noel K. Blevens v. George W Holcomb III ( 2006 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-1467
    ___________
    Noel K. Blevens,                        *
    *
    Appellant,                 *
    * Appeal from the United States
    v.                                * District Court for the
    * Western District of Missouri.
    George W. Holcomb, III,                 *
    *
    Appellee.                  *
    ___________
    Submitted: September 28, 2006
    Filed: December 1, 2006
    ___________
    Before RILEY and COLLOTON, Circuit Judges, and KYLE,1 District Judge.
    ___________
    COLLOTON, Circuit Judge.
    Noel K. Blevens appeals a post-trial order of the district court2 granting
    judgment as a matter of law in favor of the defendant, Dr. George W. Holcomb, in this
    medical malpractice case. The district court ruled that Blevens’s evidence was
    1
    The Honorable Richard H. Kyle, United States District Judge for the District
    of Minnesota, sitting by designation.
    2
    The Honorable Ortrie D. Smith, United States District Judge for the Western
    District of Missouri.
    insufficient as a matter of law, because his expert witnesses failed to articulate and
    apply the proper standard of care in their testimony. We affirm.
    I.
    DeLanie Blevens, Noel’s daughter, was born with congenital defects in her
    bowel. On the morning of August 21, 2001, DeLanie complained to her father of
    severe abdominal pain and stiffness in her joints. After DeLanie vomited, her father
    took her to the emergency room at Western Missouri Medical Center (“WMMC”) in
    Warrensburg, Missouri. Later that morning, an ambulance took her to Children’s
    Mercy Hospital (“CMH”) in Kansas City, Missouri. At CMH, several doctors,
    including Appellee George Holcomb, examined DeLanie. Dr. Holcomb, a pediatric
    surgeon and attending physician at CMH, diagnosed her with a possible early small
    bowel obstruction and ordered that she be admitted for observation. DeLanie
    remained in the hospital overnight, and Dr. Holcomb learned the next morning that
    DeLanie’s condition had deteriorated. He commenced surgery in the morning, but
    could not proceed because of DeLanie’s low blood pressure. A second operation was
    performed later in the day. By this time, however, the bacteria from DeLanie’s bowel
    had entered the blood stream, and she died in the evening.
    Noel Blevens sued Dr. Holcomb in Missouri state court for wrongful death as
    a result of alleged medical negligence. Mo. Rev. Stat. § 537.080 (2000). Blevens
    claimed that Holcomb should have monitored DeLanie’s condition more closely
    during the night and performed surgery earlier. Holcomb removed the case to federal
    court, and it was tried to a jury.
    At trial, Blevens presented the testimony of two expert witnesses, Dr. Mary
    Alice Helikson and Dr. David Fleischer. Dr. Helikson testified that “the appropriate
    standard of care” required Dr. Holcomb to order “further diagnostic studies.” Later
    in her testimony, when asked what Dr. Holcomb “should . . . have done to meet the
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    appropriate standard of care,” Dr. Helikson responded that Dr. Holcomb should have
    “continue[d] to evaluate the patient or operate on the patient.” Dr. Fleischer initially
    answered counsel’s question about Holcomb’s performance by reference to what he
    would have done with his own patient. Counsel interrupted Fleischer and asked “what
    a physician who [was] following the standard of care would do in a situation like
    this.” Dr. Fleischer responded that, given DeLanie’s presentation, “[t]he standard of
    care is to admit the child for observation” and “impress the residents with the
    importance” of the possibility of rapid deterioration.
    The jury found in favor of Blevens and awarded damages of $1,100,000, with
    90% of the fault apportioned to Dr. Holcomb. The district court, however, granted
    Holcomb’s post-trial motion for judgment as a matter of law. The court concluded
    that Blevens’s experts had failed to articulate and apply the proper standard of care in
    testifying that Dr. Holcomb had been negligent.
    II.
    Judgment as a matter of law is appropriate when “a party has been fully heard
    on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to
    find for the party on that issue.” Fed. R. Civ. P. 50(a). “We draw all reasonable
    inferences in favor of the non-moving party, and do not make credibility
    interpretations or weigh the evidence.” Mattke v. Deschamps, 
    374 F.3d 667
    , 669 (8th
    Cir. 2004). In this diversity case, the law of Missouri applies. Erie R. Co. v.
    Tompkins, 
    304 U.S. 64
    (1938). We review de novo a district court’s grant of
    judgment as a matter of law.
    To establish a claim for negligence under Missouri law, the plaintiff must
    prove: (1) the existence of a duty on the part of the defendant to protect the plaintiff
    from injury, (2) a failure of the defendant to perform that duty, and (3) an injury
    proximately caused by the defendant’s failure. Krause v. U.S. Truck Co., 787 S.W.2d
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    708, 710 (Mo. 1990) (en banc). To prove a breach of duty in a medical malpractice
    case, the plaintiff must show that the defendant failed to use “that degree of skill and
    learning ordinarily used under the same or similar circumstances by members of
    defendant’s profession.” Swope v. Printz, 
    468 S.W.2d 34
    , 39 (Mo. 1971). Except in
    rare circumstances, a plaintiff cannot state a prima facie case of medical negligence
    without expert testimony describing how the defendant’s conduct fell below the
    applicable standard of care. Hart v. Steele, 
    416 S.W.2d 927
    , 931-32 (Mo. 1967).
    To meet the plaintiff’s burden, expert testimony “must be based upon a proper
    test of professional competence.” 
    Swope, 468 S.W.2d at 40
    . A plaintiff cannot
    establish a case of medical negligence with an expert’s “undisclosed subjective
    conception of acceptable medical standards.” 
    Id. Although experts
    need not recite the
    proper standard in “ritualistic fashion,” they must show in their testimony “that the
    proper objective legal standard is the standard being employed.” Ladish v. Gordon,
    
    879 S.W.2d 623
    , 634 (Mo. Ct. App. 1994). Thus, the plaintiff need not “establish the
    standard of care in a particular manner,” but “must adequately inform the jury as to
    the appropriate standard of care.” Redel v. Capital Region Medical Center, 
    165 S.W.3d 168
    , 175 (Mo. Ct. App. 2005).
    Testimony that a physician failed to live up to some vague “standard of care,”
    without elaboration as to the content of that standard, is insufficient to satisfy this
    burden. 
    Ladish, 879 S.W.2d at 634
    . In Swope, for example, the plaintiff’s expert
    testified that an operation performed by the defendant was not “up to acceptable
    medical standards                        .” 
    Swope, 468 S.W.2d at 40
    . The Supreme
    Court of Missouri held that this testimony could not establish medical negligence
    because “[w]hat his personal, individual understanding of acceptable medical
    standards may have been was not shown.” 
    Id. Similarly, in
    Ladish, the plaintiff’s expert testified that the defendant had failed
    to provide proper post-operation advice and that his conduct thus fell “below the
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    standard of care.” 
    Ladish, 879 S.W.2d at 634
    . Holding that this testimony did not
    satisfy the plaintiff’s burden, the court said that “[q]uestions should not be
    propounded, or answered, in terms of inadequately explored legal criteria.” 
    Id. (internal quotation
    omitted). The court reasoned that the use of terms such as
    “accepted standards” and “standards of care” invite witnesses “to rely upon their own
    views of acceptable practice rather than applying the objective legal standard.” 
    Id. at 635.
    Instead, under Missouri law, experts must indicate what they mean when they
    say that another physician’s conduct fell below the “standard of care.” Something in
    their testimony must demonstrate that the defendant failed to use “that degree of skill
    and learning ordinarily used under the same or similar circumstances by members of
    the defendant’s profession.” 
    Id. at 634.
    In this case, neither of Blevens’s experts explained what they meant when they
    testified that Dr. Holcomb had failed to meet the “standard of care.” Dr. Helikson
    merely testified that the “appropriate standard of care” required further diagnostic
    studies and continued evaluation, without explaining the source of this standard. (T.
    Tr. at 276). Likewise, Dr. Fleischer’s testimony did not provide the jury with
    evidence that Dr. Holcomb failed to exercise “that degree of skill and learning
    ordinarily used under the same or similar circumstances by members of the
    defendant’s profession.” 
    Ladish, 879 S.W.2d at 634
    . Though counsel interrupted Dr.
    Fleischer when he began to describe how he would treat his own patient, counsel’s
    follow-up question asked simply “what a physician who is following the standard of
    care would do in a situation like this.” (T. Tr. at 326-27) (emphasis added). The
    witness responded that Dr. Holcomb had “violated the appropriate standard of care”
    by not admitting DeLanie for observation. (Id.).
    Blevens argues that counsel’s effort to redirect Dr. Fleischer’s testimony toward
    a physician “following the standard of care” shows that the witness did not apply a
    subjective standard in testifying that Holcomb’s conduct was negligent. That is not
    necessarily so, however, because a witness may testify about what another physician
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    should have done, but still apply a subjective test. 
    Swope, 468 S.W.2d at 40
    . Even
    if the questioning indicated that Dr. Fleischer did not use a subjective standard,
    moreover, the colloquy does not show that Fleischer applied the proper objective
    standard. “What his personal, individual understanding of acceptable medical
    standards may have been was not shown.” 
    Swope, 468 S.W.2d at 40
    . The testimony
    is open to the interpretation, for example, that Dr. Fleischer believed the “best
    practice” in the field was to admit DeLanie for observation, even though this practice
    would not “ordinarily” be followed by members of the profession in same or similar
    circumstances. We therefore agree with the district court that neither witness
    “identified the content or source of the ‘standard of care’ to which they referred,
    leaving the jury without confirmation that they were referring to the standard required
    by law as opposed to a personal (or some other) standard of conduct.” (App. at 112).
    See also Keirsey v. Barnes, 
    2006 WL 680956
    , at *2 (E.D. Mo. Mar. 14, 2006)
    (observing that in Blevens, neither expert witness “defined what was meant by the
    phrase ‘standard of care,’” and that both experts “compounded the problem by
    testifying as to what they would have done”).
    Blevens contends that even if Dr. Helikson and Dr. Fleischer failed to apply the
    proper standard of care, Dr. Holcomb’s experts established it for him. In Pettet v.
    Bieterman, 
    718 S.W.2d 188
    (Mo. Ct. App. 1986), one division of the Missouri Court
    of Appeals upheld a verdict for the plaintiff where the testimony of the plaintiff’s
    expert was “based upon the ‘standard,’ ‘accepted,’ and ‘prescribed’ medical practice
    and not upon his own personal opinion.” 
    Id. at 190.
    Although the plaintiff’s expert
    did not testify expressly concerning “that degree of skill and learning ordinarily used
    under the same and similar circumstances,” the court added that because defendant’s
    experts had explicitly stated the proper standard, the testimony of plaintiff’s and
    defense experts, taken together, “allowed the jury to base [its] decision on a clearly
    identified objective medical standard.” 
    Id. -6- Noting
    that Dr. Holcomb’s experts ritualistically stated the proper standard,
    Blevens argues that he can rely on that testimony to prove that his experts applied the
    proper standard. We disagree. Blevens concedes that Pettet is inconsistent with the
    decision of another Missouri court of appeals in Ladish, which declined to adopt the
    view that defense witnesses can establish the standard of care for the 
    plaintiff. 879 S.W.2d at 634
    . While the Pettet court did not even cite the decision of the Supreme
    Court of Missouri in Swope, the Ladish court concluded that Swope “requires that the
    fact finder be informed of the standard being employed by plaintiff’s experts in order
    for plaintiff to make a submissible case.” 
    Id. We deem
    Ladish more in keeping with
    Swope, and we thus apply Ladish as the better view of Missouri law in this diversity
    action. Because the testimony of one witness cannot establish that another witness
    understood and applied the proper standard, the testimony of Holcomb’s experts is
    insufficient to satisfy Blevens’s burden of proof.
    Finally, Blevens argues that defense counsel, in his closing argument, conceded
    that Blevens’s experts applied the proper standard when defense counsel stated that
    plaintiff’s experts had testified concerning Dr. Holcomb’s alleged “negligence.” (T.
    Tr. at 572-73). Blevens contends that because the jury was instructed that
    “negligence” means a failure to use “that degree of skill and learning ordinarily used
    under the same or similar circumstances by members of those respective professions,”
    (R. Doc. 78, Jury Instruction No. 13), counsel’s reference to testimony from Drs.
    Fleischer and Helikson concerning alleged “negligence” necessarily implied a
    concession that those witnesses applied the correct standard of care. We find this
    contention unpersuasive. Counsel’s arguments were not evidence, (R. Doc. 78, Jury
    Instruction No. 2), and a passing statement in closing argument cannot cure an
    evidentiary deficiency in the plaintiff’s case. While a defense expert may concede that
    the legal standard is the standard suggested by a plaintiff’s expert, even where the
    plaintiff’s expert did not properly identify the standard of care, 
    Ladish, 879 S.W.2d at 634
    , this sort of concession requires evidence from a defense witness that the
    standard of care proffered by the plaintiff is indeed dictated by use of the degree of
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    skill and learning ordinarily used in the circumstances by members of the profession.
    Counsel’s mere use of the word “negligence” during final argument, in a context
    unrelated to the debate about whether plaintiff’s experts applied the proper standard
    of care, did not provide the missing foundation to show that Blevens’s experts applied
    the proper test of professional competence.
    *       *       *
    For these reasons, the judgment of the district court is affirmed.
    ______________________________
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