Wipf, Nicki G. v. Kowalski, Lisa

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3844
NICKI G. WIPF,
Plaintiff-Appellant,
v.
LISA KOWALSKI, M.D., and
MARSHALL CLINIC EFFINGHAM, S.C.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 C 4078—J. Phil Gilbert, Judge.
____________
ARGUED APRIL 30, 2007—DECIDED MARCH 12, 2008
____________
Before ROVNER, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. While performing a laparoscopic
cholecystectomy to remove Nicki Wipf’s gallbladder,
Dr. Lisa Kowalski accidentally cut Wipf’s common bile
duct. As a result, Wipf underwent various corrective
procedures with painful side effects. Wipf filed a diver-
sity suit against Dr. Kowalski and her employer,
Marshall Clinic Effingham, S.C., for medical malpractice,
and a jury found Dr. Kowalski had not breached the
applicable standard of care. On appeal Wipf argues the
2 No. 06-3844
jury’s verdict is against the manifest weight of the evi-
dence, or alternatively, a new trial is warranted based on
various erroneous evidentiary and other rulings by the
district court. Because the jury’s verdict is supported by
the evidence and the district court did not abuse its
discretion in its evidentiary and other rulings before
and during trial, we affirm.
I. Background
In mid-April 2003, Nicki Wipf went to her family doctor
complaining of recurrent epigastric pain. Wipf’s doctor
referred her to a surgeon, Dr. Lisa Kowalski, who recom-
mended an operation to remove Wipf’s gallbladder. On
May 1, 2003, Dr. Kowalski performed a laparoscopic
cholecystectomy (“lap-chole,” for short), a procedure that
involves transecting two structures: the cystic artery and
the cystic duct. Dr. Kowalski, however, made a mistake
and cut Wipf’s common bile duct, having mistaken it for
the cystic duct. She realized her error later in the proce-
dure.
Dr. Kowalski notified Wipf’s family of the mistake and
had Wipf transported by ambulance to Barnes-Jewish
Hospital in St. Louis where another surgeon, Dr. Linehan,
performed a corrective operation the following day. That
procedure involved cutting a section of Wipf’s small
bowel and using it to create a new bile duct. After this
operation, Wipf’s follow-up care was overseen by
Dr. Picus. When Wipf later developed a duct blockage,
Dr. Picus performed a procedure to insert a catheter
into Wipf’s bile duct to drain bile and thereby avoid fur-
ther blockage or damage. Wipf’s subsequent treatment
included dilating the reattachment site where the bile duct
No. 06-3844 3
and the small bowel were sewn together, and catheter
maintenance and replacement. Around April 2004 (almost
one year after the lap-chole went awry), Wipf’s catheter
was removed.
A year later, Wipf filed a diversity action in federal court
alleging medical negligence. A jury found for Dr. Kowalski
and the Marshall Clinic. Wipf moved for judgment as a
matter of law or, in the alternative, for a new trial. The
motion was denied, and Wipf’s timely appeal followed.
Wipf argues, as she did in her posttrial motions, that the
jury’s verdict is against the manifest weight of the evi-
dence; she also raises several evidentiary and jury instruc-
tion issues. Accordingly, a summary of the medical testi-
mony pertaining to lap-choles in general and Wipf’s
procedure in particular is in order. The medical experts
testified that during a typical lap-chole, the surgeon in-
serts three or four “trocars”—narrow, sleeve-like tubes—
into small incisions in the patient’s abdomen. Various
tools, including a light source, clasps, retractors, a
camera, and a cutting instrument, can then be passed
through the trocars. The surgeon does not view the pa-
tient’s organs directly as he would during an “open”
procedure; instead, a camera is passed through one of
the trocars which transmits a magnified image that the
surgeon views on a screen or monitor.
Using the screen images as a guide, the surgeon iden-
tifies the anatomy in the hepatobiliary1 region before
transecting certain structures. The surgeon must transect
1
Hepatobiliary refers to the liver and the bile or biliary ducts.
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 808 (29th ed.
2000).
4 No. 06-3844
two structures: the cystic artery and the cystic duct. There
are different methods for identifying the appropriate
anatomical structures before proceeding, and this is
where the expert testimony diverged.
Dr. Kleier, a surgeon and Wipf’s expert witness, ex-
plained that the gallbladder is generally encased in fatty
tissue, and the surgeon must pull away this tissue in order
to identify the two structures exiting the gallbladder that
need to be transected. Dr. Kleier opined that several
methods of identifying biliary anatomy should be em-
ployed to avoid any mistaken identification; if these
methods are properly used, he testified, the surgeon
should never transect the wrong duct. Dr. Kleier testified
that the surgeon must achieve “the critical view”—a view
of the area where both the artery and duct are visible
coming directly out of and attached to the gallblad-
der—through meticulous dissection. If the surgeon is
still uncertain about the location or identity of struc-
tures after using this process, he should perform a
cholangiogram, which involves a type of x-ray in which
dye is injected through a catheter into the cystic duct
to identify structures. Alternatively, he testified, the
surgeon should convert to a nonlaparoscopic or “open”
procedure.
The standard of care, according to Dr. Kleier, requires
identification of the cystic duct with absolute certainty
before transection, a standard Dr. Kleier maintained
Dr. Kowalski breached. Drawing upon guidelines issued
by the Society of American Gastrointestinal and Endo-
scopic Surgeons, Dr. Kleier testified that Dr. Kowalski
failed to meticulously dissect Wipf’s anatomy and failed
to properly achieve the critical view. Dr. Kleier also
testified that Dr. Kowalski did not properly retract the
No. 06-3844 5
gallbladder during the procedure, thus obscuring her
view, and failed to either perform a confirmatory
cholangiogram or convert to an open procedure.
Dr. Scott Peckler, a general surgeon and one of
Dr. Kowalski’s experts, disagreed with Dr. Kleier’s con-
clusion that Dr. Kowalski had breached the standard of
care. Dr. Peckler testified that no method of identification,
including the critical view, is free of potential risks or
errors. He explained that a surgeon is required to satisfy
himself that he has correctly identified the relevant ana-
tomical structures, and according to Dr. Peckler, that is
what Dr. Kowalski did. She used three of four available
identification techniques: (1) the “infundibular” technique,
which involves stripping off tissue to identify the cystic
duct; (2) the critical view, which Dr. Peckler described
as dissecting out an anatomical structure called the Trian-
gle of Calot;2 and (3) dissecting the cystic duct in order
to perceive it merging with the common hepatic duct to
form the common bile duct. In contrast to Dr. Kleier’s
position, Dr. Peckler opined that the standard of care did
not require Dr. Kowalski to perform a cholangiogram—a
procedure that he testified would have entailed its own
risks. Another surgeon and expert for the defense,
Dr. Abecassis, though primarily testifying about the
corrective procedures Wipf underwent, seconded
Dr. Peckler’s opinion that Dr. Kowalski complied with
the standard of care by using accepted procedures to
satisfy herself it was the cystic duct that she was about
to transect.
2
The Triangle of Calot refers to “the triangle formed by the
cystic artery superiorly, the cystic duct inferiorly, and the
hepatic duct medially.” DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 1871 (29th ed. 2000).
6 No. 06-3844
II. Discussion
Wipf’s primary argument on appeal is that the jury’s
verdict is against the manifest weight of the evidence
and therefore she is entitled to a new trial. On appeal the
trial court’s denial of Wipf’s motion for a new trial is
reviewed for abuse of discretion. Davis v. Wis. Dep’t of
Corr., 445 F.3d 971, 979 (7th Cir. 2006); Neal v. Newspaper
Holdings, Inc., 349 F.3d 363, 368 (7th Cir. 2003); Latino v.
Kaizer, 58 F.3d 310, 314 (7th Cir. 1995). Wipf bears the
heavy burden of showing the district court’s denial of her
motion was unreasonable. See Kapelanski v. Johnson, 390
F.3d 525, 530 (7th Cir. 2004); Smith v. Ne. Ill. Univ., 388
F.3d 559, 569 (7th Cir. 2004). We review the evidence in
the light most favorable to the prevailing party and
will uphold the jury’s verdict if a reasonable basis in the
record supports it. Kapelanski, 390 F.3d at 530.
Under Illinois law, a plaintiff bringing a medical negli-
gence/medical malpractice action has the burden of
proving: “(1) the proper standard of care for the defendant
physicians; (2) an unskilled or negligent failure to
comply with the appropriate standard; and (3) a resulting
injury proximately caused by the physicians’ failure of
skill or care.” Jinkins v. Evangelical Hosps. Corp., 783 N.E.2d
123, 126-27 (Ill. App. Ct. 2002) (citing Purtill v. Hess,
489 N.E.2d 867, 872 (Ill. 1986)); Walski v. Tiesenga, 381
N.E.2d 279, 282 (Ill. 1978). Generally, these elements must
be established through expert testimony. See Addison v.
Whittenberg, 529 N.E.2d 552, 556 (Ill. 1988). In this case,
Wipf attempted to persuade the jury that the standard
of care required absolute certainty in the identification of
the biliary anatomy and that this standard is always
violated when a surgeon misidentifies and cuts the
wrong duct. The jury’s acceptance of Dr. Kleier’s testimony
No. 06-3844 7
was critical for her to prevail on these points; he opined
that all injuries like Wipf’s result from negligence per se.
Of course, Dr. Kleier’s was not the only expert testi-
mony about the standard of care that the jury heard. Dr.
Peckler agreed surgeons must be certain about anatomy
identification but differed from Dr. Kleier as to what
“certain” meant in this context. Dr. Peckler explained
that a surgeon who uses accepted identification tech-
niques until he has satisfied himself that he has correctly
identified the structures to be transected has complied
with the standard of care. Dr. Abecassis echoed this
view. Both Drs. Peckler and Abecassis emphasized that no
single method is without potential risk to the patient. The
jury, accepting Dr. Peckler’s opinions, reasonably could
have found Dr. Kowalski adhered to the standard of care
by using several accepted methods of identification and
satisfying herself that she had accurately identified the
appropriate structures to be transected. Importantly,
the evidence established that Wipf’s anatomy contained
certain irregularities that made the identification process
difficult. Wipf’s common bile duct was on the small
side—only 3 millimeters in diameter—which made it
resemble a cystic duct. Her common bile duct looked like
it was entering the gallbladder because it was attached
very tightly due to the presence of scar tissue, and the
cystic duct was stuck behind the gallbladder out of plain
sight. The jury, having heard this evidence and accepting
the testimony of the defense experts, reasonably could
have concluded that Dr. Kowalski was not negligent.
On appeal Wipf argues the jury should have decided the
case the opposite way. Indeed, the jury might have done
so; but this does not mean that the verdict was against
the manifest weight of the evidence. See Jefferson Nat’l Bank
8 No. 06-3844
of Miami Beach v. Cent. Nat’l Bank in Chi., 700 F.2d 1143,
1155 (7th Cir. 1983) (“The inquiry on appeal is whether
the result reached by the jury is one which is reasonable
on the facts and evidence, not whether other conclusions
might also have been reached.”). We will not supplant
the jury’s reasonable and factually supported verdict
with our own judgment. See Cont’l Air Lines, Inc. v. Wagner-
Morehouse, Inc., 401 F.2d 23, 30 (7th Cir. 1968) (quoting
Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129,
133 (3d Cir. 1965)). Especially in a case of dueling ex-
perts, as this one was, it is left to the trier of fact, not the
reviewing court, to decide how to weigh the competing
expert testimony. See Spesco, Inc. v. Gen. Elec. Co., 719 F.2d
233, 237-38 (7th Cir. 1983) (“It is within the province of the
jury to determine which of two contradictory expert
statements is deserving of credit.”).
Wipf next claims the district court committed various
errors during trial. Most of these claimed errors involve
evidentiary matters, rulings we review for abuse of dis-
cretion.3 United States v. Loggins, 486 F.3d 977, 981 (7th Cir.
2007); Thompson v. City of Chicago, 472 F.3d 444, 453 (7th
Cir. 2006). Wipf first argues the district court erred by
3
Several of Wipf’s evidentiary arguments are cursory and
undeveloped; we address only those that have been properly
developed. See Tyler v. Runyon, 70 F.3d 458, 464 (7th Cir. 1995)
(quoting Doe v. Johnson, 52 F.3d 1448, 1457 (7th Cir. 1995) (“We
have made it clear that a litigant who fails to press a point by
supporting it with pertinent authority, or by showing why it is
sound despite a lack of supporting authority, forfeits the
point.”)); see also Otto v. Variable Annuity Life Ins. Co., 134
F.3d 841, 854 (7th Cir. 1998); United States v. Berkowitz, 927
F.2d 1376, 1384 (7th Cir. 1991).
No. 06-3844 9
denying her motion in limine and permitting the jury to
hear about a 2005 article by a nontestifying expert,
Dr. Strasberg. Dr. Kowalski responds that Wipf did not
object at trial to the reading of the contested article and,
in fact, Wipf’s counsel opened the door to its introduction.
We first take up Dr. Kowalski’s contention that Wipf
failed to preserve this issue for appeal by raising the
objection in a motion in limine but failing to renew it at
trial. Rule 103(a) of the Federal Rules of Evidence provides:
“Once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial,
a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.” The advisory com-
mittee note discussing the rule’s amendment in 2000
explains: “When the ruling is definitive, a renewed objec-
tion or offer of proof at the time the evidence is to be
offered is more a formalism than a necessity.” FED. R. EVID.
103, Advisory Comm. Notes, 2000 Amendment; see also
Fuesting v. Zimmer, Inc., 448 F.3d 936, 940 (7th Cir. 2006);
Olson v. Ford Motor Co., 481 F.3d 619, 629 n.7 (8th Cir. 2007).
In her motion in limine, Wipf sought to exclude testimony
about certain of Dr. Strasberg’s articles, including ones
written in 1995, 2000, and 2005. This motion was denied.
Because she made this objection prior to trial and the
district court rendered a definite ruling on it, the issue is
preserved for appeal regardless of whether Wipf renewed
the objection at trial.
When Dr. Kleier was on the stand, Wipf’s counsel asked
him about an American College of Surgeons article by
Dr. Strasberg published in 2000 which posited that a
biliary injury is more likely when cystic duct identifica-
tion is accomplished solely by means of the infundibular
10 No. 06-3844
technique.4 During cross-examination, Dr. Kowalski’s
counsel asked Dr. Kleier about another of Dr. Strasberg’s
articles—this one published in 2005—in which Dr. Stras-
berg tempered some of his earlier views in the 2000 article.
In this later article, Dr. Strasberg now found the
infundibular technique acceptable. Wipf argues that cross-
examination on this article should not have been per-
mitted because the article was published two years after
Wipf’s procedure and is not learned authority. We dis-
agree.
As a general rule, there is certainly nothing prob-
lematic about asking an expert about materials he has
read that relate to an issue at trial. Dr. Kleier acknowl-
edged he was familiar with Dr. Strasberg’s updated
opinions as expressed in the 2005 article. Beyond that,
we are unable to assess the import of the article for our-
selves; it is not included in the record on appeal.5 But
assuming the accuracy of the parties’ description of the
article’s contents, we simply do not see how the cross-
examination of Dr. Kleier about it was in any way im-
proper. Dr. Kowalski’s counsel asked only a few ques-
tions about the 2005 article, and essentially the same
information came in through Dr. Peckler’s testimony.
That the article postdated Wipf’s operation does not
necessarily make it inadmissible. To the extent that
Dr. Kleier was questioned on direct examination about
4
The infundibular technique, according to Dr. Kleier’s testi-
mony, involves “the initial dissection of taking the fat and the
filmy tissue off of the gallbladder and locating the neck of the
gallbladder where it joins the cystic duct.”
5
Nor does the article appear to have been admitted into
evidence at trial.
No. 06-3844 11
Dr. Strasberg’s 2000 article, cross-examining him about
the 2005 article, in which Dr. Strasberg updated his
views, strikes us as relevant and fair. We see no abuse of
discretion here.
Wipf next claims the district court erroneously failed to
keep the issue of informed consent away from the jury.
This issue was the subject of pretrial motions from both
the plaintiff and the defense; Wipf initially sought to
preserve it as an additional basis for Dr. Kowalski’s al-
leged negligence but later said she was not seeking re-
covery for insufficient or lack of informed consent. The
district court’s pretrial rulings basically left the issue to be
developed at trial. Wipf’s counsel proceeded to introduce
the topic of informed consent in questions to Dr. Picus and
Dr. Kleier; Dr. Kowalski’s counsel explored the sub-
ject more fully with defense witnesses.
We acknowledge that the issue of informed consent
was irrelevant once Wipf removed it as a basis of her
claim; the district court’s pretrial rulings on this subject
could have been more definitive on this matter rather
than leaving it to be ironed out during trial. But this does
not automatically warrant reversal. We must ask whether
the presentation of testimony on this subject affected
Wipf’s substantial rights, see FED R. CIV. P. 61, and we
conclude it did not. The parties’ closing arguments and
the jury instructions clearly focused on the issue of the
standard of care and the alleged breaches that formed
the basis of Wipf’s claim of medical negligence. The
evidentiary detours into the issue of informed consent
were not pervasive and did not create an undue risk of
juror confusion.
Relatedly, Wipf claims the district court erred by
failing to provide the jury with her proposed informed
consent instruction. That proposed instruction read:
12 No. 06-3844
Although evidence has been received on informed
consent, you are instructed that the Plaintiff is not
making any claim of lack of informed consent. Like-
wise, it is not a defense to the Plaintiff’s professional
negligence claim that informed consent was given.
Under the law, while a patient may consent to risks,
she does not consent to negligence.
To succeed on appeal, Wipf must show that the instruc-
tions given by the court did not adequately state the law
and she was prejudiced by the refusal to give her proposed
instruction because the jury was likely confused or misled.
Susan Wakeen Doll Co., Inc. v. Ashton-Drake Galleries,
272 F.3d 441, 452 (7th Cir. 2001); Gile v. United Airlines, Inc.,
213 F.3d 365, 375 (7th Cir. 2000). She has not identified any
errors in the instructions given. We have already deter-
mined that the evidence about informed consent was not
likely to confuse or mislead the jury; while a cautionary
instruction might have been helpful, it was not required.
The district court’s refusal to give Wipf’s proposed in-
formed consent instruction did not affect her substan-
tial rights.
Wipf also contends the district court improperly denied
that portion of her motion in limine seeking to exclude a
video of Dr. Kowalski performing a normal laparoscopic
cholecystectomy and other visual aids showing “normal”
biliary anatomy (in contrast to Wipf’s biliary anatomy).
The decision whether to allow the use of demonstrative
exhibits is discretionary, and we review only for abuse
of that discretion. See Nachtsheim v. Beech Aircraft Corp.,
847 F.2d 1261, 1278 (7th Cir. 1988). The video, beyond its
role as an educational tool for the jury, was relevant to
Dr. Kowalski’s effort to refute Dr. Kleier’s opinion that
her three-trocar technique did not comport with the
No. 06-3844 13
standard of care. Dr. Kleier insisted another technique
(the four-trocar technique) was the standard. The video
demonstrated that the three-trocar technique could be
used to successfully retract a part of the gallbladder.
Wipf does not contest the video’s probative value, but
rather focuses on the possibility that the video precondi-
tioned the jurors’ minds to accept the defense’s theory of
how Wipf’s procedure was performed. This concern is
unfounded. The district court gave a cautionary instruc-
tion to the jury clarifying the limited purpose of the video
and dispelling any potential impression that the video
showed or simulated the actual events of Wipf’s procedure.
See United States v. Chavis, 429 F.3d 662, 668-69 (7th Cir.
2005) (finding that limiting instruction lessened possi-
bility that evidence would have prejudicial effect). Under
these circumstances, admission of the videotape and
other demonstrative exhibits was not an abuse of discre-
tion.
Finally, Wipf asks us to order a new trial based on certain
comments made by Dr. Kowalski’s counsel during
closing argument which she characterizes as unfairly
disparaging of her case or, in one instance, improperly
invoked sympathy for Dr. Kowalski. Wipf’s counsel failed
to lodge contemporaneous objections to most of these
statements; the district court sustained the two objections
her counsel made during closing argument. We have
reviewed the comments Wipf now asserts were objection-
able and find none that misstated the evidence or were
so inflammatory as to have misled or improperly swayed
the jury. Moreover, the district court properly instructed
the jurors to disregard anything said during opening
statements and closing arguments that differed from their
own recollections of the evidence. The comments made
14 No. 06-3844
during closing argument, though perhaps somewhat
overzealous, do not warrant a new trial.
AFFIRMED.
USCA-02-C-0072—3-12-08