United States Court of Appeals
For the First Circuit
No. 92-1861
KAREN SUAREZ MATOS, ET AL.,
Plaintiffs, Appellees,
v.
ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., ET AL.,
Defendants, Appellees,
CORPORACION INSULAR DE SEGUROS, INC.,
Defendant, Appellant.
No. 92-1862
KAREN SUAREZ MATOS, ET AL.,
Plaintiffs, Appellees,
v.
ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC.,
Defendant, Appellant.
No. 92-1891
KAREN SUAREZ MATOS, ET AL.,
Plaintiffs, Appellants,
v.
ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., ET AL.,
Defendants, Appellees.
No. 92-1914
KAREN SUAREZ MATOS, ET AL.,
Plaintiffs, Appellees,
v.
ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., ET AL.,
Defendants, Appellees,
DR. JOSE I. CARRASCO,
Defendant, Appellant.
No. 92-2469
KAREN SUAREZ MATOS, ET AL.,
Plaintiffs, Appellees,
v.
ASHFORD PRESBYTERIAN COMMUNITY HOSPITAL, INC., ET AL.,
Defendants, Appellees,
CORPORACION INSULAR DE SEGUROS, INC.,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Boudin, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Stahl, Circuit Judge.
Igor J. Dominguez with whom Igor J. Dominguez Law Offices was on
briefs for Ashford Presbyterian Community Hospital, Inc.
Rafael Fuster-Martinez with whom Carlos Martinez-Texidor,
Martinez-Texidor & Fuster and Igor Dominguez were on briefs for
Ashford Presbyterian Community Hospital, Inc.
Efren T. Irizarry-Colon with whom Elisa M. Figueroa-Baez
Irizarry-Colon and Soler & Banuchi Law Offices were on briefs for Dr.
Jose I. Carrasco.
Eugene F. Hestres with whom Bird, Bird & Hestres was on briefs
for Corporacion Insular De Seguros.
Charles A. Cordero with whom Cordero, Miranda & Pinto was on
briefs for Karen Suarez Matos, et al.
REVISED OPINION
September 13, 1993
ALDRICH, Senior Circuit Judge. Plaintiff Karen
Suarez Matos, a resident of New York vacationing in Puerto
Rico, was taken to defendant Ashford Presbyterian Community
Hospital in San Juan on October 30, 1989 on an emergency
basis. A uterine tumor, or myoma, was removed the following
day, and thereafter examined by defendant Doctor Jose
Carrasco, a pathologist on the staff of the hospital. He,
allegedly, reported it was benign. On discharge with that
diagnosis plaintiff was advised to follow up with a New York
doctor, two names being given. Beyond a clinic visit, this
she failed to do, but after five months she again felt pain
and was found, too late, cancerous beyond cure. It was
concluded that her tumor had been an unusual type, and
malignant or in danger of becoming so, calling for careful
watching. Concededly she had not been so advised. A
district court jury found Doctor Carrasco guilty of
malpractice, and that the hospital was chargeable for his
conduct. It awarded $1,325,000 against both, which included
$650,000 for future medicals and care, with an additional
$250,000 in favor of plaintiff Carmen Matos, Karen's
mother.1 By prior stipulation it followed that defendant
Corporacion Insular de Seguros, Inc. (CIS), defendants'
1. The term plaintiff hereafter, if used in the singular,
shall be taken to refer to Karen.
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insurer, was liable.2 The court refused to recognize the
policy limits of $250,000 per incident and entered judgments
against CIS for the full amounts. Appeals followed.
The appeals raise a number of matters: whether the
evidence warranted the finding of malpractice against Doctor
Carrasco; whether his conduct was chargeable to the hospital;
whether the court erred in disregarding the policy limits;
and evidentiary questions of damages. In addition, there is
a question whether there should be a new trial because of
improper argument. Our overall conclusion is that while
there was evidence warranting findings against defendants, a
new trial is called for.
The initial question is whether a finding of
negligence was warranted against Doctor Carrasco. The
evidence here is singular. With their early witnesses
plaintiffs made a good showing that the tumor was unusual --
one in 500 -- and that if it had been recognized as unusual a
further study should have been made to inquire as to possible
malignancy. However, they made a doubtful showing whether a
mistake in failing to recognize would amount to malpractice.
Second, plaintiffs' doctors agreed that Doctor Carrasco's
report to the surgeon denied malignancy, their testimony
2. The amended complaint had originally named two other
hospital doctors, Dr. Jose Juncosa and Dr. Angel Lopez Ruiz
and their separate insurer, but plaintiffs voluntarily
dismissed against them before pretrial.
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revolving around the words used in the report. The report
described the tumor as a leiomyoma-leiomyoblastoma. A Doctor
Lazarevic, a pathologist called by plaintiffs, testified that
the second word meant benign, and that if there were
malignant cells this word should have been leiomyosarcoma.
Doctor Lopez, the admitting physician, testified that he
looked up the term leiomyoblastoma in a medical dictionary
and found it meant "usually benign." However, he testified
that Doctor Carrasco told him that blastoma meant non-
cancerous. Doctor Juncosa, the operating physician, though
without referring to a dictionary, confirmed Doctor
Lazarevic. He testified, without objection, that Doctor
Lopez had told him that Doctor Carrasco had told him, Doctor
Lopez, that the tumor was benign.
In this circumstance one might have expected Doctor
Carrasco to testify that he had made an honest mistake in his
diagnosis, and had, accordingly, not pursued the matter.
Instead, after testifying that he was expecting a "routine
leiomyoma" he stated,
"Upon looking at it I noticed
immediately, this is not a routine
leiomyoma, not the typical leiomyoma,
benign lesion. . . . Leiomyoblastoma is
a tumor that nobody knows exactly what it
is going to do. Many of them become
outright malignant within three
months. . . . Leiomyoblastoma, which now
should be called stromal tumor of
uncertain malignant potential -- which is
my diagnosis -- this tumor should be
considered, by anyone who knows anything
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about medicine -- not by dictionaries,
but anyone who is up to date, who has
gone to all the latest meetings -- as a
tumor of definite malignant
potential. . . . Leiomyoblastoma is the
name. If you know pathology you know the
name. If you are a surgeon and you don't
know that name, you better stop acting as
a surgeon."
In addition to the warning that Doctor Carrasco
testified was thus apparent on the face of the report, he
stated he had told Doctor Juncosa the above and had shown him
a book confirming it.
From the jury's standpoint the case was complicated
by a Doctor Killackey, from New York, who, though admittedly
not a pathologist, testified that Doctor Carrasco's
procedures deviated from the standards of medicine because
his diagnosis was "completely incorrect," which, of course,
is not the test, and that Doctor Carrasco "doesn't really
know what it [leiomyoblastoma] is." She added that the
dictionary meaning was not important.3
Without reviewing further, it is enough to say,
though difficult, that the jury could combine Doctor
Carrasco's admission that he knew of the possibility of
malignancy and Doctor Juncosa's statement that Doctor
Carrasco told him the reverse, and thus prevent an ordered
judgment for defendants. In other words, the jury could find
3. Plaintiffs' counsel described Doctor Killackey to the
jury as "courageous." He meant it as a compliment.
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that Doctor Carrasco admittedly knew that the tumor was
dangerous but did not adequately convey this to the operating
doctor so that the vital warning never reached the plaintiff.
In this contest of credibility defendants were hurt
by two improprieties. The first was the court's allowing
plaintiffs after calling a Doctor Miranda, to cross-examine
him as a hostile witness because defendants had named him,
pretrial, as their proposed expert. This was error.
Fed. R. Evid. 611 (c) reads as follows.
(c) Leading questions. Leading
(c) Leading questions.
questions should not be used on the
direct examination of a witness except as
may be necessary to develop the witness'
testimony. Ordinarily leading questions
should be permitted on cross-examination.
When a party calls a hostile witness, an
adverse party, or a witness identified
with an adverse party, interrogation may
be by leading questions.
This is an enlargement of a prior rule, and necessarily
involves some factual interpretation, but we divide it into
two categories; a witness who is an adverse party or
identified with one, or is affirmatively viewable as hostile
because of the situation, viz., classifiable in advance as
hostile, Ellis v. City of Chicago, 667 F.2d 606, 612-13 (7th
Cir. 1981), and witnesses who demonstrate hostility during
trial, United States v. Brown, 603 F.2d 1022, 1025-26 (1st
Cir. 1979). Doctor Miranda had no prior connection as part
of the scene, Ellis, ante, or otherwise, Chonich v. Wayne
Cty. Community College, 874 F.2d 359, 368 (6th Cir. 1989),
-8-
as, for example, an employee, Perkins v. Volkswagen of
America, Inc., 596 F.2d 681, 682 (5th Cir. 1979), or a
defendant's girlfriend, United States v. Hicks, 748 F.2d 854
(4th Cir. 1984). We find no case involving the adversary's
proposed expert, or suggesting that simply because a party
expects favorable testimony from a witness, the opponent is
entitled to call him, or her, as hostile. If a party
proposes to call a happenstance witness to an accident, does
that mean the other can call him and cross-examine? The
obligation to name witnesses, about to be expanded, is
intended to give opportunity to prepare, not to afford
procedural advantages. We add that the court's rule would
tend to make experts who are reluctant to appear in the first
place even more reluctant if they are to start with rigorous
cross-examination before they have even made their statement.
Conceivably plaintiffs might have done as well by
waiting and cross-examining Doctor Miranda after he had
testified for defendants. In any event, defendants did not
object to the court's allowing cross-examination and, while
regarding the course followed as undesirable practice, we
would not find it to be plain error affecting substantial
rights where no one objected to it. However, our concern
with this issue pales compared with plaintiffs' closing
argument that the court, rather than correcting, cf.
Gonzalez-Marin v. Equitable Life Assur. Soc., 845 F.2d 1140
-9-
(1st Cir. 1988), called permissible. To begin with, counsel
violated the elementary rule that counsel should never state
his opinion. Here it was particularly prejudicial as he
condemned opposing counsel, and appealed directly to jurors'
personal motives.
Now, when I helped select you, I
think on the other side there-- and
again, this is my own opinion-- that I
saw these other lawyers on the other side
smiling, and I think I know why they were
smiling. I think they were smiling
because--
MR. FUSTER: Your Honor, we object.
We don't think this is proper.
THE COURT: Yes, what do you mean
they were smiling?
MR. CORDERO: I am going to that.
Why? Because there are no ladies in the
jury, and they cannot feel--
THE COURT: All right, I will allow
the argument. Permissible argument. Go
ahead.
MR. CORDERO: Thank you, your Honor.
When I selected you and I think I saw
them smiling-- and I am just surmising.
I may even be speculating, I may be
arguing to you-- I am sure they were
thinking, "Aha, not one woman on the
jury, and men are not as sensitive to
damages and suffering as women."
Well, if that's what they were
thinking, I think they were wrong.
You know, my family comes from
Isabela, all of them, my father, my
grandfather, my great grandfather, but I
happened to be born and raised in the
barrio in New York, and if anybody thinks
there was a macho, I think I was a macho.
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Look at my fist. It was broken from
fighting in the streets. My nose was
broken in six places, and I had three
broken ribs. I was a combat infantry
officer in the army--
MR. FUSTER: Your Honor--
THE COURT: That's permissible.
MR. CORDERO: And I thought I was a
macho. I was a combat infantry officer
in the army.
And yet I can say here today that I
feel I'm as macho as any man in this
room, but I'm also a human being and I
also have feeling and I know that all of
you have feeling. Because we all have a
mother, maybe we have a sister, maybe we
have a daughter, and we don't want to see
them suffering. And if they suffer, we
suffer, and that's why I helped select
you as a jury, because I know that you
will understand what suffering is.
Counsel added that not telling Karen that she had cancer,
"that to me would amount to murder." He then offered his own
evidence. After purporting to quote testimony, he added,
"Your recollection is better, but I know what he said." "The
mistake was that Doctor Carrasco put down 'leiomyoblastoma,'
which the dictionaries and all the other doctors meant (sic)
a benign tumor." This, of course, was incorrect; the
evidence was that the dictionary defined 'leiomyoblastoma' as
usually benign.
These highly objectionable arguments were then
compounded in plaintiffs' rebuttal.
They tell you "Don't decide this
case with your heart." Well, I'm going
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to say something else. You are the
conscience of this community. I say,
decide it with your heart, with your
head, using the ordinary experience of
life. That's how you decide a case.
It is difficult enough for a jury to decide a case involving
serious suffering dispassionately upon the law and the
evidence without being told that the community conscience
calls to decide with the heart.
The total argument was outrageous. We can only
think that this experienced court, in permitting it, had a
bad day.
It is true that only the hospital, and not Doctor
Carrasco, objected, and there has been a suggestion that the
latter could have no rights, absent plain error. See United
States v. Saade, 652 F.2d 1126, 1136-37 (1st Cir. 1981).
This suggestion we might be slow to follow if it led to one
party receiving a new trial and another, equally placed, not,
since a primary reason for an objection is to give the court
notice. This it had. However, we need not reach this, as we
would consider it plain error for a verdict to stand after a
jury had been so traumatized. We suggest that the court also
allowed emotional overplay when it permitted, as it noted, 45
minutes dwelling on plaintiffs' pain and suffering. Even
more do we believe the argument may have affected the jury's
finding as to future medicals and care -- an amount that
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would seem unwarranted in any event -- but we need not make a
final decision.
The court's ruling as to pleading these damages was
correct. Decisions on what needs to be pleaded by way of
special damages,4 are sparse. The tendency is
liberalization. Wright & Miller, Federal Practice and
Procedure, 1311 (1990). We believe the purpose is to give
notice; the more natural are the damages, the less pleading
is needed. Compare Great American Ind. Co. v. Brown, 307
F.2d 306 (5th Cir. 1962) (loss of earning capacity following
personal injury) with Action Repair, Inc. v. American
Broadcasting Co., 776 F.2d 143 (7th Cir. 1985) (business loss
following defamation). We are satisfied with "Karen will
incur in (sic) extensive major medical costs and expenses and
will require costly health care services until her death."
The subject had been opened; defendants could seek details by
inquiry.
For future purposes we make the following rulings.
Ashford Hospital
Ashford appeals because the court permitted a
finding that it was charged with responsibility for Doctor
Carrasco's negligence. If the pathologist was guilty of
malpractice, it follows from Marquez Vega v. Martinez Rosado,
4. "When items of special damage are claimed, they shall be
specifically stated." Fed. R. Civ. P. 9(g).
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116 D.P.R. 487 (1985), that the hospital is liable also.
While strictly, perhaps, that decision contained dictum that
we might distinguish, and certainly we need not adopt
plaintiffs contention that it would impose liability in the
case of an independent contractor having no other
relationship with the hospital, it is clear here that
granting staff privileges coupled with a joint sharing in
profits, left the hospital fully responsible. On the facts
that cannot be avoided, under Puerto Rico law the hospital
necessarily was vicariously liable for the doctor's
negligence, if found and the jury finding, even if improperly
influenced, was necessarily correct. As matter of law the
hospital was a joint actor in a joint enterprise.
Corporacion Insular de Seguros, Inc. (CIS)
The liability of CIS, the insurer, was a question
of law for the court, not affected by plaintiffs' improper
argument to the jury. Unfortunately, however, it decided
wrongly. Pressed by CIS, on finding that judgments had
issued against it in the full amounts of the verdicts in
spite of the policy limits, the court denied motions without
giving reasons. There is some question as to under which
rule the motions should lie. The miscarriage of justice is
such that we do not pause to pursue that aspect, but consider
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the substance briefly, if only to make it clear that the
court's incorrect decision is not law of the case.5
In plaintiffs' amended complaint it was alleged
that the liability insurer is liable "up to its policy
limits." In a joint answer filed on behalf of Ashford and
CIS it was alleged that plaintiffs' claims against Ashford
"exceed the coverage limits provided by" CIS to Ashford. The
truth of this answer was known to plaintiffs as it is not
disputed that the policies were produced pretrial. In the
course of trial, the parties conferred with the court with
respect to the charge and special questions, and the
following ensued.
MR. CORDERO (for plaintiffs): Your
Honor, I would like the record to reflect
that last night all of us agreed in
chambers that if there is a judgment for
or against the hospital, the Court will
enter a similar judgment against the
insurance company, Corporacion Insular de
Seguros, in accordance with the terms and
conditions of the policy.
THE COURT: That was the agreement,
I remember.
MR. CORDERO: That was the
agreement, your Honor.
MR. FUSTER: But we didn't agree
that judgment would be entered in that
sense, but that is the way it should be.
THE COURT: Well, yes, you did agree
that a judgment be entered to the-- in
5. The question of the insurer's failure to settle is not
before us.
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accordance with the terms and conditions
of the policy. That's certain. Because
otherwise it would be officious. You
know, I agreed to something but missed
nothing. We don't play games here.
MR. FUSTER: What I mean, your
Honor, is that I agree to it now. We
didn't discuss it last night.
THE COURT: No, we so much discussed
it that if you remember we agreed whether
we should say "to the limit of the
policy," and all that, and then we
reached the agreement to say that in
accordance with the terms and conditions
of the policy.
So do we agree now that that is the
agreement?
MR. FUSTER: Sure, we agree.
MR. CORDERO: That's the
stipulation, Your Honor.
(TT-A 1074-75).
Unhappily the court's statement, "We don't play
games here" proved to be a false prophesy. The first game
before us is found in plaintiffs' brief. "Before the
instructions were read by the trial judge to the jury all
parties stipulated to the court that '. . . if there is a
judgment for or against the hospital the court will enter a
similar judgment against the insurance company, Corporacion
Insular de Seguros.' (TT-A 1074)." When we check the cite
we discover that the period appearing in their brief after
"de Seguros" is plaintiffs'. In the transcript it is a
comma, followed by the modification, "in accordance with the
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terms and conditions of the policy." One does not have to
look to the familiar principle that all words are presumed to
have meaning to recognize that there is a difference between
liable and liable in accordance with the terms and conditions
of the policy. On reading the transcript further, quoted
supra, we find that the phrase plaintiffs chose to omit in
the brief, cut off by their false period, was precisely
intended as a paraphrase of "to the limit of the policy." We
are astonished.
There follow a number of other contentions. These
not only do not answer the above, but they are equally
unpersuasive in themselves. We give one example: CIS
allegedly waived the policy limit by not listing it in the
pre-trial memorandum under Contested Issues. It was not a
contested issue. Plaintiffs admitted in the amended
complaint that they were not claiming above any limit;
defendant's answer asserted there was a limit; plaintiffs had
seen the policies, and knew what it was. Now they say it was
waived. These are the plaintiffs who charge that defendant
CIS's attempt to assert the policy limits is "misleading
double talk."
The verdicts and judgments are vacated and the case
remanded for further proceedings not inconsistent with this
opinion. These should be held before a different judge.
Rivera-Lopez v. Mun. of Dorado, 979 F.2d 885, 887 (1st Cir.
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1992). Any supersedeas bond is vacated, with costs to
appellants in Nos. 92-1861; 92-1862; and 92-1914.6 In
others, no costs.
6. This obligation stands even if plaintiffs ultimately
recover. Furthermore, if plaintiffs ultimately recover, they
are to receive no costs in connection with the first trial.
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