Bradley v. Sugarbaker

United States Court of Appeals
For the First Circuit
No. 16-2405
BARBARA J. BRADLEY and MICHAEL BRADLEY,
Plaintiffs, Appellants,
v.
DAVID J. SUGARBAKER, M.D.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Michael Bradley, pro se, with whom Barbara J. Bradley, pro
se, were on brief, for appellants.
James L. Wilkinson, with whom Philip E. Murray, Jr., Carol
Ann Kelly and Murray, Kelly & Bertrand, P.C. were on brief, for
appellee.
May 23, 2018
TORRUELLA, Circuit Judge. Barbara Bradley and her
husband, Michael Bradley, sued Dr. David Sugarbaker, a thoracic
surgeon at Brigham and Women's Hospital in Boston, after
Dr. Sugarbaker performed a surgical biopsy on Ms. Bradley that
resulted in extensive complications. A trial ensued and the jury
returned a verdict in favor of Dr. Sugarbaker. The Bradleys
appealed, and we vacated the judgment and remanded on account of
the district court's error in excluding the testimony of the
Bradleys' proffered expert witness. A second trial followed, with
the jury again returning a verdict in favor of Dr. Sugarbaker.
The Bradleys appeal to us once more, asserting that, on
remand, the district court erred in: (1) admitting an entry from
Ms. Bradley's diary under Fed. R. Evid. 807's "residual exception"
to the hearsay rule; (2) admitting an excerpt from Ms. Bradley's
medical records from a different hospital under Fed. R. Evid.
803(6)'s "business records" exception to the hearsay rule; and (3)
determining that the Bradleys had waived their medical negligence
claim. We conclude that, assuming the district court erred in
admitting these two pieces of evidence, those errors were harmless.
We further hold that the district court did not commit prejudicial
error when it found the Bradleys to have waived their negligence
claim. As a result, we affirm the district court's judgment in
favor of Dr. Sugarbaker. Our reasoning follows.
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I.
Because our first opinion pertaining to this dispute
recounts the underlying facts in substantial detail, see Bradley
v. Sugarbaker, 809 F.3d 8, 11-13 (1st Cir. 2015) (Bradley I), we
provide a more succinct summary here.
A.
On November 9, 2004, Ms. Bradley -- still suffering from
various serious injuries resulting from a car accident two years
earlier -- underwent an MRI. The MRI revealed the existence of a
potentially cancerous mass at the top of her right lung. On
December 7, 2004, Ms. Bradley met with Dr. Sugarbaker for the first
time. He told her that the mass could either be scar tissue from
her car accident-related injuries or a malignant tumor, and that
a biopsy would be necessary to definitively rule out cancer. Dr.
Sugarbaker further explained that while he had reservations about
whether a fine needle aspiration (FNA) biopsy would be feasible,1
he would request that an interventional radiologist determine
whether an FNA was possible in Ms. Bradley's case. He referred
this determination to Dr. Francine Jacobson, a thoracic
radiologist at Brigham and Women's Hospital. Were an FNA not
1 An FNA biopsy is "an outpatient procedure in which a radiologist
inserts a long, hollow needle through the skin and into the mass
to extract cells," which are then microscopically analyzed.
Bradley I, 809 F.3d at 11 n.1.
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possible, Ms. Bradley would be left with the option of undergoing
a surgical biopsy, a more invasive procedure. In the interim --
and in anticipation of a potential determination that an FNA was
possible -- Ms. Bradley had an appointment made for an FNA at
Hartford Hospital in Connecticut.
The following day, Dr. Sugarbaker's physician's
assistant, William Hung, appears to have called Ms. Bradley.
According to an entry in Ms. Bradley's personal diary, Hung relayed
to her that a radiologist had determined that, due to the location
of the mass in her lung, an FNA biopsy would not be possible, and
that she would therefore have to undergo a surgical biopsy. Ms.
Bradley then called Hartford Hospital to cancel her appointment
for an FNA there.
Dr. Sugarbaker performed a surgical biopsy on Ms.
Bradley on December 17, 2004. Ms. Bradley awoke from the operation
to both good and bad news. The biopsy had revealed that the mass
in her lung was not cancerous. But, she found herself in the
hospital's intensive care unit, the procedure having left her lung
with multiple air leaks, which caused her to remain in the hospital
for another week. Ms. Bradley has since experienced a number of
serious and painful complications -- including pulmonary
infections requiring surgery to treat -- that in 2006 forced her
to leave her job as a law librarian. See id. at 12.
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B.
The Bradleys sued Dr. Sugarbaker in federal district
court in 2007. Their Second Amended Complaint alleged medical
negligence, battery, and the failure to obtain informed consent.
Their informed consent claim -- crucially, for our purposes --
revolved around the allegation that "Mrs. Bradley did not have
enough information to "ma[k]e an informed choice [as to] whether
to undergo less intrusive methods for obtaining biopsy tissue than
an open surgical biopsy." Dr. Sugarbaker moved for summary
judgment on all of the Bradleys' claims. The district court
granted summary judgment on the Bradleys' battery claim, denied
summary judgment on their informed consent claim, and did not
expressly render a decision as to their negligence claim. The
case proceeded to trial, and the jury ultimately returned a verdict
in Dr. Sugarbaker's favor.
The Bradleys then appealed, asserting that the district
court had erred both in granting summary judgment on their battery
claim and in excluding as irrelevant the testimony of an expert
witness they sought to call at trial. Id. at 13. We held that
the district court properly granted summary judgment on the battery
claim. Id. at 13-17. But, because we found that the Bradleys'
proffered expert's testimony was relevant to their informed
consent claim, we vacated the judgment and remanded for a new
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trial. Id. at 22-23. Lastly, we took up the Bradleys' related
contention that the expert's testimony would also have been
relevant to their negligence claim. Id. We observed that "the
negligence claim does not appear ever to have reached the jury:
the verdict form only references Mrs. Bradley's informed consent
claim, and the jury instructions were limited to the elements of
informed consent." Id. at 23. Thus, "[i]n light of the poorly
developed record on this issue," we left it to the district court
to consider on remand whether this testimony was also relevant to
any surviving medical negligence claim. Id.
On remand, and before a different judge, the district
court clarified that "retrial shall be confined to the claim at
the first trial: informed consent." The court explained that
"[t]his case from the summary judgment stage through pretrial
phases through trial . . . has been framed and litigated as an
informed consent case." Therefore, the court held that "to the
extent that Plaintiffs pressed any negligence claim separate and
apart from the informed consent claim, any such claim has been
waived."
Before the second trial, the Bradleys moved in limine to
exclude as hearsay an entry in Ms. Bradley's personal diary from
December 9, 2004 (the "diary entry"). The entry described her
conversation the day before with Hung, when he informed her of Dr.
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Jacobson's determination that an FNA biopsy was not feasible. The
diary entry stated, in relevant part:
We were told by Dr. Zellos . . . that a radiologist
would need to review the PET Scan to determine if the
lung biopsy can be done using a needle & a CAT Scan
or whether surgery will be necessary. The answer to
this question was received on Wednesday 12/8. We
spoke with Bill Hung – the PA – on Wednesday. This
was after Michael made several calls to the Clinic in
order to get some answers: Bill explained that the
radiologist determined that the tumor would be too
difficult to access via the CAT Scan Procedure &
surgery would most likely be needed.
The district court held that the diary entry was admissible as
non-hearsay to the extent that it bore on Ms. Bradley's state of
mind. It further held that the diary entry was also admissible
for the truth of the matter asserted under the residual exception
to the hearsay rule found in Fed R. Evid. 807.
So too did the Bradleys object to an excerpt from Ms.
Bradley's records from Hartford Hospital (the "Hartford record")
that Dr. Sugarbaker sought to introduce at trial. That proffered
exhibit indicated that Ms. Bradley had called Hartford Hospital to
cancel her FNA appointment there. The exhibit also included a
post-it note affixed to that page of her medical records. The
post-it note bore a hand-written message, dated December 10, 2004,
stating that "Brigham & Women's . . . radiologists said it doesn't
look possible to [biopsy] the lesion." The district court held
that the note was substantively admissible under the business
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records exception to the hearsay rule. See Fed. R. Evid. 803(6).
At trial, counsel for Dr. Sugarbaker introduced both the diary
entry and the post-it note into evidence during his
cross-examination of Ms. Bradley.
The second trial similarly concluded with the jury
returning a verdict in favor of Dr. Sugarbaker. The Bradleys now
appeal once more, this time arguing that the district court erred
both in admitting the diary entry and the Hartford record, and in
finding their negligence claim waived.
II.
A.
We begin with the Bradleys' claims of evidentiary error.
We review the district court's interpretation of the Federal Rules
of Evidence de novo, but its application of those Rules for abuse
of discretion.2 United States v. Muñoz-Franco, 487 F.3d 25, 34
(1st Cir. 2007). When a district court has committed evidentiary
error, we will only overturn a verdict if that error has
2 We note that our case law is not perfectly clear as to whether
we review a district court's application of the residual exception
for clear error or abuse of discretion. Compare Brookover v. Mary
Hitchcock Mem'l Hosp., 893 F.2d 411, 419 (1st Cir. 1990); United
States v. Doe, 860 F.2d 488, 491 (1st Cir. 1988) with United States
v. Burdulis, 753 F.3d 255, 263 (1st Cir. 2014); United States v.
Sposito, 106 F.3d 1042, 1046 (1st Cir. 1997); United States v.
Trenkler, 61 F.3d 45, 57 (1st Cir. 1995). However, in light of
our ultimate conclusion that the district court's evidentiary
error was harmless, we need not take up this issue here.
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compromised a party's "substantial rights." Cham v. Station
Operators, Inc., 685 F.3d 87, 99 (1st Cir. 2012) (quoting
Torres-Arroyo v. Rullán, 436 F.3d 472, 480 (1st Cir. 2000)). This
means that the verdict will stand unless we determine that the
trial's outcome was "substantially swayed by the error." Gay v.
Stonebridge Life Ins. Co., 660 F.3d 58, 62 (1st Cir. 2011) (quoting
Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 480 (1st
Cir. 2000)).
Before embarking on this analysis, however, we find it
useful to place the Bradley's evidentiary arguments in context.
They claim that Dr. Sugarbaker failed to obtain Ms. Bradley's
informed consent to a surgical biopsy because he did not discuss
alternatives to that procedure with her. Thus, that claim
required a showing that Dr. Sugarbaker had no reasonable basis to
believe that no alternative to the surgery existed. And, somewhat
curiously, Brigham and Women's Hospital has no record of anybody
making the determination that it would not be possible to perform
an FNA on Ms. Bradley. Thus, the Bradleys stress, the diary entry
and Hartford record are crucial pieces of evidence because they
bear on whether Dr. Sugarbaker reasonably believed that no
alternative to a surgical biopsy existed about which he should
have counseled Ms. Bradley.
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1.
The Bradleys contend that the diary entry was
inadmissible hearsay, and that the district court therefore erred
in admitting it substantively -- that is, as evidence of the truth
of what it asserted. As Fed. R. Evid. 801(c) explains, hearsay
is any out-of-court statement that a party seeks to introduce as
proof that what the statement asserts is true. And, under Rule
802, hearsay is inadmissible unless it fits within a recognized
exception. Also relevantly, Rule 805 provides that "hearsay
within hearsay" is admissible only when each level of hearsay would
be individually admissible.
The diary entry effectively asserts that Ms. Bradley
said that Hung said that the radiologist said that an FNA was not
possible. In other words, the entry contains three layers of
information: (1) that Hung told Ms. Bradley that Dr. Jacobson had
determined that an FNA could not be performed; (2) that Dr.
Jacobson had told Hung that an FNA could not be performed; and (3)
that Dr. Jacobson had, in fact, determined that an FNA could not
be performed. The district court found the first of these layers
admissible under Rule 801(d)(2). That rule allows a party to
introduce an opposing party's own statements against him or her.
Fed. R. Evid. 801(d)(2).
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The district court also found the diary entry's
remaining layers of information to be admissible under the
"residual exception" to the ban on hearsay. That exception,
enshrined in Rule 807, provides, in relevant part, that:
(a) In General. Under the following circumstances, a
hearsay statement is not excluded by the rule against
hearsay even if the statement is not specifically
covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial
guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is
offered than any other evidence that the proponent
can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these
rules and the interests of justice.
We have previously stressed that whether the "proffered
evidence possesses 'circumstantial guarantees of trustworthiness'
equivalent to those possessed by the other listed exceptions to
the hearsay rule" is the most important part of this inquiry.
United States v. Trenkler, 61 F.3d 45, 57-58 (1st Cir. 1995);
accord 2 McCormick on Evidence § 324 (7th ed. 2016). And in
conducting that inquiry, we essentially ask this: Do any of the
rationales behind the Federal Rules' enumerated exceptions to the
hearsay rule also support admitting this statement? See, e.g.,
Trenkler, 61 F.3d at 58-59; Brookover v. Mary Hitchcock Mem'l
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Hosp., 893 F.2d 411, 420-21 (1st Cir. 1990); see also 2 McCormick
on Evidence § 324. Lastly, we keep in mind that Congress meant
for trial courts to admit evidence under the residual exception
"very rarely, and only in exceptional circumstances." United
States v. Benavente-Gómez, 921 F.2d 378, 384 (1st Cir. 1990)
(quoting S. Rep. No. 1277 (1974)).
In defending the district court's determination that the
diary entry was admissible, Dr. Sugarbaker argues that the diary
entry had circumstantial guarantees of trustworthiness equivalent
to those motivating the exceptions found in Rules 803(1), 803(4),
and 803(5). We, however, need not resolve this question. This
is because, even if we assume that the district court erred, that
error would have been harmless.
But, before discussing why, we briefly highlight a few
factors that support the district court's admission of the diary.
Under the circumstances, it is difficult to think of any plausible
reason why Dr. Jacobson or Hung would have lied. This absence of
any credible motive to fudge the truth suggests trustworthiness.
Had Hung simply written into Bradley's medical file that Dr.
Jacobson had told him that an FNA would not suffice, such a
statement would have been admissible under Fed. R. Evid. 803(6).
And since Bradley herself had no motive to fabricate that Hung
made such a statement, her own diary entry would seem equal to a
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business record in terms of trustworthiness. Nonetheless, as we
will explain shortly, assuming error occurred, it did not result
in prejudice.
2.
We now consider the Bradleys' arguments concerning the
Hartford record, and, more specifically, the post-it note affixed
to it. The Bradleys tell us that the district court should not
have admitted that exhibit substantively -- that is, as evidence
that, in fact, "Brigham & Women's . . . radiologists said it
doesn't look possible to [biopsy] the lesion" 3 -- under Rule
803(6).
Rule 803(6) excepts "record[s] of an act, event,
condition, opinion, or diagnosis" from the ban on hearsay, so long
as:
(A) the record was made at or near the time by -- or
from information transmitted by -- someone with
knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization,
occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that
activity;
3 The post-it note actually reads that "it doesn't look possible
to bx the lesion." "Bx" is an abbreviation for "biopsy." See,
e.g., Smith v. Naku, No. CIV S–06–2340, 2011 WL 70564, at *7 n.5
(E.D. Cal. Jan. 7, 2011).
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(D) all these conditions are shown by the testimony
of the custodian or another qualified witness, or by
a certification that complies with Rule 902(11) or
(12) or with a statute permitting certification; and
(E) the opponent does not show that the source of
information or the method or circumstances of
preparation indicate a lack of trustworthiness.
That exception, however, does not extend to
"statement[s] to [a] business by a stranger to it." United States
v. Vigneau, 187 F.3d 70, 75 (1st Cir. 1999). Such "'outsider'
information, where offered for its truth [is inadmissible] unless
some other hearsay exception applies to the outsider's own
statement." Id. at 76; see also Fed. R. Evid. 805 ("Hearsay within
hearsay is not excluded by the rule against hearsay if each part
of the combined statements conforms with an exception to the
rule.").
At trial, Ms. Bradley testified that she was the one who
conveyed the substance of that note (that it had been determined
that an FNA was not possible) to Hartford Hospital. The post-it
note affixed to the Hartford record therefore contained
categorical "outsider information." And so, the district court
should not have let it come in substantively under Rule 803(6).
We note, though, that the post-it may have been admissible under
Rule 801(d)(2), which provides that statements offered against an
opposing party are not hearsay, as evidence that Ms. Bradley did
call to cancel her appointment, and of her reason for doing so.
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But the second layer of hearsay contained in the note -- that
"radiologists said" that a biopsy did not appear possible -- would
still have needed to come in substantively under a separate
exception, which it could not have. See Fed. R. Evid. 805.
Nonetheless, this second layer of hearsay was admissible
not for its truth, but to show why Ms. Bradley had cancelled her
FNA appointment at Hartford Hospital. Had it come into evidence
for this reason, the jury would have heard through this evidence
(which corroborated what Ms. Bradley said on the stand) that Ms.
Bradley believed that the radiologists at Brigham and Women's said
that an FNA was not possible (putting aside for the moment whether
or not that is true), and acted on this belief in cancelling her
FNA biopsy.
3.
Neither the diary entry nor the post-it compromised the
Bradleys' "substantial rights" by coming into evidence. See Cham,
685 F.3d at 99. For that reason, assuming error occurred, reversal
is unwarranted.
The Bradleys argue that they suffered prejudice as the
result of these evidentiary rulings because the diary entry and
the Hartford record amounted to the only evidence at trial that
Dr. Sugarbaker reasonably believed an FNA was not an available
alternative to a surgical biopsy. Therefore, according to the
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Bradleys, the jury must have relied exclusively upon this evidence
when answering in the negative to the question on the verdict form
"Did Mrs. Bradley prove . . . that she was not provided with
sufficient material information regarding . . . available
alternatives . . . ?" We disagree, however, with the premise of
this argument, as the jury's conclusion that Ms. Bradley failed to
prove as much does find support outside of those two pieces of
evidence.
First, during direct examination, Ms. Bradley testified
that she cancelled her FNA appointment at Hartford because Hung
had told her that Dr. Jacobson had determined an FNA to be
infeasible. Then, Dr. Sugarbaker testified -- with no objection
from counsel for the Bradleys -- that "there had been a
determination by our team that a needle biopsy, based on its
location in that area or some other technical difficulty, was not
advised." The meaning of the word "advised," is somewhat unclear
here. However, Dr. Sugarbaker's later testimony clarifies that
his team had concluded that an FNA was not a possible alternative
to surgical biopsy.
This means that the jury heard the following from sources
other than the diary entry and the Hartford record: (1) it had
been determined that an FNA wasn't possible; (2) this information
had been communicated to Ms. Bradley; and (3) that determination
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was the reason that Ms. Bradley cancelled her FNA at Hartford
Hospital. Thus, Ms. Bradley and Dr. Sugarbaker's combined
testimony effectively brought to the jury's ears exactly the same
information contained in the diary entry and Hartford record. The
Bradleys protest that they only pursued this line of questioning
during Ms. Bradley's direct examination because of the district
court's earlier ruling admitting the diary entry and Hartford
record. But even if this is so, we cannot ignore that the jury
still heard Dr. Sugarbaker testify that his team had ruled an FNA
out as a possible alternative. See, e.g., Ohler v. United States,
529 U.S. 753, 755 (2000) ("Generally, a party introducing evidence
cannot complain on appeal that the evidence was erroneously
admitted."); Tersigni v. Wyeth, 817 F.3d 364, 370 (1st Cir. 2016)
(plaintiff waived the right to appeal the admission of evidence
after unsuccessfully moving to exclude it in limine because
plaintiff introduced the evidence herself during trial). And
therein lies the rub.
Additionally, at oral argument, the Bradleys intimated
that this nonetheless did not amount to harmless error because the
documentary evidence that the district court admitted, while
cumulative, had the effect of bolstering Dr. Sugarbaker's own self-
serving testimony. Thus, they say, the diary entry and Hartford
record served to undercut the notion that Dr. Sugarbaker had lied
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about an FNA being infeasible. This argument, however, fails to
convince us. We first note the paucity of evidence in the record
suggesting that Hung or Dr. Jacobson had any reason to misrepresent
that an FNA had been ruled out, or that they in fact did
misrepresent as much. It is also worth noting that Dr. Sugarbaker
testified that a determination as to whether an FNA was possible
for a given patient would "[n]ot usually" be documented.
Moreover, one of Dr. Sugarbaker's expert witnesses -- Dr. Jones,
a thoracic surgeon -- offered his conclusion, based on reviewing
Ms. Bradley's medical records, that "the location and rather
diffuse nature [of the mass in her right lung] would have made it
challenging" to obtain a diagnosis from an FNA. While the
Bradleys' expert witness essentially presented the opposite
conclusion -- that an FNA would have been feasible -- Dr. Jones's
testimony nonetheless further erodes the possibility that Ms.
Bradley was incorrectly informed that an FNA had been ruled out.
In summary, given Ms. Bradley's own testimony at trial
about what Hung told her, the two writings to that effect did
little work because no party challenged Ms. Bradley's testimony
and the writings simply aligned with that testimony. Even if the
two writings had not come in for the truth of what the radiology
department concluded, the evidence would nonetheless have
bolstered the conclusion that Dr. Sugarbaker reasonably thought an
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FNA was infeasible. Having considered these two pieces of
evidence "in light of the entire record," Zachar v. Lee, 363 F.3d
70, 76 (1st Cir. 2004), we feel confident that the diary entry and
the Hartford record are not what tipped the scales towards the
jury's ultimate conclusion. Because we "can say with fair
assurance that the judgment was not substantially swayed by," Gay,
660 F.3d at 62, the assumed error, we hold that the jury's verdict
should stand.
B.
Lastly, the Bradleys press that the district court erred
in finding their medical negligence claim waived. We disagree.
The Bradleys' Second Amended Complaint advanced various
theories of negligence. Among other things, it alleged that Dr.
Sugarbaker was negligent in representing that a surgical biopsy
was the only option and also that he performed that procedure in
a negligent fashion. Dr. Sugarbaker moved for summary judgment
on all of the claims in the Second Amended Complaint. The district
court's summary judgment order, however, only explicitly addressed
the Bradleys' battery and informed consent claims (granting
summary judgment on the former but not the latter).
At a status conference before the beginning of the first
trial, the Bradleys highlighted that the district court's summary
judgment order was ambiguous as to whether their negligence claim
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had survived summary judgment. The Bradleys then explained that
their negligence claim consisted of the contention that failing to
discuss viable alternatives to surgical biopsy amounted to a breach
of the standard of care. The district court expressed its
skepticism that this claim was distinct from their informed consent
claim. In response, the Bradleys raised the possibility of filing
a motion for clarification of the summary judgment ruling. The
district court told them that they could discuss that possibility
with opposing counsel and "see how necessary you think that may
be." The Bradleys, however, never filed a motion for
clarification.
All of this first suggests that -- by failing to continue
to pursue it after this pretrial conference -- the Bradleys waived
any negligence claim not involving Dr. Sugarbaker's failure to
discuss alternative procedures that may have survived summary
judgment.4 See In re Net-Velázquez, 625 F.3d 34, 40-41 (1st Cir.
2010) (finding that plaintiffs had waived claims they failed to
raise during a pretrial conference -- which resulted in the
district court omitting those claims from its subsequent pretrial
order -- and explaining that "[a] defense or legal theory may not
4 For example, this would include the claim -- which the Second
Amended Complaint appears to have made -- that Dr. Sugarbaker
performed the surgical biopsy in a negligent manner.
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be preserved by bare reference in a pleading if it is thereafter
abandoned until, freshly discovered on appeal, it is raised anew");
see also Fed. R. Civ. P. 16(c)(2)(A) ("At any pretrial conference,
the court may consider and take appropriate action on [matters
including] formulating and simplifying the issues, and eliminating
frivolous claims or defenses.").
All of this additionally suggests that, even if the
district court erred in finding that the Bradleys had waived all
of their negligence claims -- for example, because they never
relinquished those involving an "absence of informed consent"
theory of negligence -- prejudice nevertheless did not result.
Like the district judge who oversaw the motions for summary
judgment, we express our skepticism over whether such a theory of
negligence would actually amount to a distinct claim from the
Bradley's informed consent claim. But even if we assume that
these were distinct claims, we cannot escape the conclusion that
the Bradleys would have lost on this theory of negligence anyway.
This is because, as the Bradleys framed it, their informed consent
claim would effectively constitute a necessary element of their
negligence claim: breach of the applicable standard of care. And
so, it would have been impossible for the Bradleys to prevail on
that negligence claim while losing on their informed consent claim.
Thus, even if the district court erred in finding such an "absence
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of informed consent" negligence claim waived, the Bradleys cannot
have suffered prejudice as a result. Accordingly, none of the
Bradleys' waiver-related arguments call for reversal.
III.
The Bradleys did not suffer prejudice because of the
district court's decision to admit the diary entry or the Hartford
record. Additionally, any error the district court may have
committed in finding their negligence claims waived would likewise
have been harmless. The district court's judgment is therefore
affirmed.
Affirmed.
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