United States Court of Appeals
For the First Circuit
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No. 98-2346
JOSEFINA RUBERT-TORRES,
IN REPRESENTATION OF HER MINOR DAUGHTER,
KIMAYRA CINTRON-RUBERT,
Plaintiffs, Appellants,
v.
HOSPITAL SAN PABLO, INC., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
____________________
Before
Torruella, Chief Judge,
Wallace,* Senior Circuit Judge,
and Lynch, Circuit Judge.
_____________________
Kevin G. Little, with whom David Efron and Law Offices of David
Efron were on brief, for appellants.
Federico R. Ducoudray-Acevedo, with whom Law Offices Jiménez &
Santoni was on brief, for appellee Hospital San Pablo.
Elisa M. Figueroa-Báez, with whom Law Offices Sigrid López
González was on brief, for appellee Néstor Rivera-Cotté.
* Of the Ninth Circuit, sitting by designation.
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March 6, 2000
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WALLACE, Senior Circuit Judge. Josefina Rubert-Torres
appeals from the district court's summary judgment in favor of one
defendant and from the judgment entered upon a jury verdict for the
other defendant. The district court had jurisdiction pursuant to 28
U.S.C. § 1332, and we have jurisdiction over Rubert-Torres' timely
appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in
part, and remand for further proceedings.
I.
Rubert-Torres brought this medical malpractice action on
behalf of her daughter Kimayra Cintrón-Rubert, a 21 year-old woman with
cerebral palsy, against Dr. Néstor Rivera-Cotté, the doctor who
delivered Kimayra, and Hospital San Pablo (Hospital), where Kimayra was
born. Before trial, the district court entered summary judgment for
the Hospital. At trial, Rubert-Torres' theory, supported by an
obstetrical/gynecological (OB/GYN) expert and a neurological expert,
was that physician error during her pregnancy and delivery of Kimayra
caused Kimayra's disabilities. Dr. Rivera-Cotté's theory, supported by
his own OB/GYN, neurological, and genetics experts, was that Kimayra's
disabilities arose genetically. The jury returned a verdict for Dr.
Rivera-Cotté.
II.
Rubert-Torres first contends that the district court erred
in entering summary judgment sua sponte in favor of the Hospital. This
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argument is slightly misworded. The district court did not enter
summary judgment sua sponte; rather, it converted the Hospital's motion
for judgment on the pleadings, pursuant to Federal Rule of Civil
Procedure 12(c), into a motion for summary judgment because Rubert-
Torres attached an expert witness report to her opposition to the
motion to dismiss. We review whether the district court properly
converted a Rule 12 motion into a motion for summary judgment for abuse
of discretion. See Whiting v. Maiolini, 921 F.2d 5, 6 (1st Cir. 1990).
Significantly, Rubert-Torres only makes this procedural argument
against the entry of summary judgment; she does not contest the merits
of the district court's decision.
We first recite the relevant facts. Rubert-Torres filed the
complaint on July 14, 1996; the Hospital answered on October 7, 1996.
Discovery started, and two scheduling conferences were held, with all
parties represented, on November 26, 1996, and on April 30, 1997. At
the second conference, the Hospital requested that Rubert-Torres
support her allegations against it with specific facts, which she
failed to do. At that point, discovery was apparently well underway:
Rubert-Torres had received four expert witness reports and 20 years of
medical records, interrogatories had been filed, and depositions taken.
When Rubert-Torres failed to support her allegations against
the Hospital with specific facts, the Hospital filed a motion on May 7,
1997, for judgment on the pleadings, pursuant to Federal Rule of Civil
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Procedure 12(c). Rubert-Torres filed an opposition to the motion on
May 14, 1997, including with it an expert witness report derived from
discovery. On August 15, 1997, the district court, without previously
providing notice, converted the motion for judgment on the pleadings
into a motion for summary judgment, relied on the expert report, and
entered an order for summary judgment in favor of the Hospital.
Rule 12(c) provides, in part:
If, on a motion for judgment on the pleadings,
matters outside the pleadings are presented to
and not excluded by the court, the motion shall
be treated as one for summary judgment and
disposed of as provided in Rule 56, and all
parties shall be given reasonable opportunity to
present all material made pertinent to such a
motion by Rule 56.
Fed. R. Civ. P. 12(c). In this regard, the rule is identical to Rule
12(b)(6), see Collier v. City of Chicopee, 158 F.3d 601, 603 (1st Cir.
1998), and relevant Rule 12(b)(6) case law on conversion assists this
Rule 12(c) conversion case.
Conversion of a motion for judgment on the pleadings into one
for summary judgment should only occur after the parties have been
offered a "reasonable opportunity" to present pertinent summary
judgment materials. Fed. R. Civ. P. 12(c). Whether the parties had an
"opportunity to respond necessarily turns on the way in which the
particular case under consideration has unfolded." See Whiting, 921
F.2d at 6. Thus, we have disfavored conversion when (1) the motion
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comes quickly after the complaint was filed, (2) discovery is in its
infancy and the nonmovant is limited in obtaining and submitting
evidence to counter the motion, or (3) the nonmovant does not have
reasonable notice that a conversion might occur. See id. at 7.
In this case, however, these considerations are not present.
The Rule 12(c) motion came 10 months after the complaint -- and
subsequent to the Hospital's request that Rubert-Torres support her
allegations. There had been substantial discovery. Finally, Rubert-
Torres was on constructive notice that conversion could occur.
Explicit notice is not required. See Collier, 158 F.3d at 603; C.B.
Trucking, Inc. v. Waste Management, Inc., 137 F.3d 41, 43 (1st Cir.
1998). Rubert-Torres had constructive notice because she presented the
district court with additional materials in her opposition memorandum.
As we recently held, "a party receives constructive notice that the
court has been afforded the option of conversion . . . when . . . the
non-movant appends . . . materials [outside the pleadings] to [an]
opposition and urges the court's consideration of them." Collier, 158
F.3d at 603. When a plaintiff incorporates materials outside the
pleadings into an opposition to a Rule 12(c) motion, the plaintiff
"implicitly invite[s] conversion -- and a party who invites conversion
scarcely can be heard to complain when the trial court accepts the
invitation." Id.; see also Maruho Co., Ltd. v. Miles, Inc., 13 F.3d 6,
8 (1st Cir. 1993) (holding conversion proper when plaintiff presented
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information outside the pleadings to the district court in opposition
to a motion to dismiss).
Rubert-Torres argues that she did not invite the district
court to convert the Rule 12(c) motion into a summary judgment motion
because the attaching of the expert report was for the limited purpose
of indicating "that further details regarding her claim against
Hospital San Pablo had been provided in discovery." Her assertion is
a stretch. In her response to the Hospital's Rule 12(c) motion,
Rubert-Torres stated that the contentions in the motion were "more
properly framed as a motion for a more definite statement under Federal
Rule of Civil Procedure 12(e)," and that to "the extent that Hospital
San Pablo's motion is in effect a 12(e) motion, it has been mooted by
the provided report of plaintiff's obstetrical expert, Dr. Bernard
Nathanson." However, Rubert-Torres not only relied upon
Dr. Nathanson's report for the limited purpose of refuting the
Hospital's motion, to the extent that it was a 12(e) motion, she also
used it to argue the merits of the Rule 12(c) motion, stating: "The
departures from the applicable standard of care identified by Dr.
Nathanson show that Hospital San Pablo failed to comply with its legal
duties under Puerto Rico law." This statement directly responded to
the Hospital's contention that, pursuant to applicable law, it was not
liable for Kimayra's condition, and implicitly invited the district
court to consider the expert report for Rule 12(c) purposes.
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It is true, as Rubert-Torres argues, that not every
attachment to a Rule 12(c) motion or opposition thereto requires
conversion into a motion for summary judgment. See Beddall v. State
Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998); Watterson
v. Page, 987 F.2d 1, 3 (1st Cir. 1993). However, in this situation,
Rubert-Torres invited the district court to consider Dr. Nathanson's
report in its ruling on the merits of the Rule 12(c) motion, and thus
invited the court to convert the Rule 12(c) motion into one for summary
judgment. See Collier, 158 F.3d at 603; Fed. R. Civ. P. 12(c). The
district court did not abuse its discretion when it accepted that
invitation.
III.
Rubert-Torres also raises numerous arguments in favor of a
new trial against Dr. Rivera-Cotté. We address two of those arguments
-- that Kimayra was improperly excluded from the courthouse, and that
she should have been allowed to appear for a physical demonstration
during questioning of an expert witness.
A.
Kimayra was present on the first day of trial and was briefly
introduced to the pool of potential jurors before jury selection. Her
attorney explained to the potential jurors that "she will not be with
us in the trial for obvious reasons for a lot of the trial, but she is
entitled to be here." He also explained that she would not be present
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during jury selection because she "was getting a little restless" at
the time and they did not want her "to disrupt the proceedings."
Shortly thereafter, the district court banned Kimayra from
the courtroom during opening statements. The record reflects that her
attorneys did not request, and the district court did not offer, a
reason for the decision. Then, apparently off the record in chambers,
the district court banned Kimayra not only from the courtroom, but from
the entire courthouse for the duration of trial.
Dr. Allan Hausknecht, a neurologist, testified for Rubert-
Torres. He stated that one possible cause of Kimayra's cerebral palsy
was a genetic factor; that there were about 20 or 30 different physical
characteristics that might show that Kimayra had genetic abnormalities;
that he physically examined her and looked for those characteristics in
her; and that he concluded, based upon her appearance, that her
cerebral palsy was not the result of a genetic abnormality. He stated
that he could demonstrate this if Kimayra were present -- otherwise it
would be hard to do so. Rubert-Torres asked the district court to
allow Kimayra into the courtroom briefly so that Dr. Hausknecht could
physically show the jury that Kimayra did not exhibit those
characteristics. The defense objected to Kimayra's presence in the
courtroom, and the district court, without explanation, sustained the
objection. Rubert-Torres's attorney attempted to continue asserting
his position, and the district court cut him off, saying "I said the
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objection is sustained." Shortly thereafter, out of the presence of
the jury, Rubert-Torres's attorney asked for reconsideration:
If I had -- if I -- Your Honor, before I move
into another area of the testimony, I just want
to reiterate that I think his merely verbal
testimony rather goes to characteristics that he
saw in Kimayra. To rule on the genetics problem,
is an extremely -- actually demonstrating those
with the girl, and I don't see any undue
prejudice in that.
After all, she is the plaintiff, and it is the
best way of making the testimony very clear, and
you know it's clearly probative. To the extent
that it might be prejudicial because the girl is
pitiful-looking, quite frankly -- but it's very
important to show that it's not a genetic
problem. That's the issue of this case.
And to the extent that we are not going to be
able to do that, I wanted to preserve my
objection for the record and actually to ask for
reconsideration of your decision.
The district court denied reconsideration without explanation, but
assured Rubert-Torres's attorney that his objection was "preserved for
the record."
Later in the trial, Dr. Rivera-Cotté's pediatric neurological
expert, Dr. Jesús Vélez-Borrás, also discussed the importance of
examining Kimayra's physical appearance to determine whether her
cerebral palsy was genetic in origin. Dr. Vélez-Borrás' testimony
contradicted that of Dr. Hausknecht: based upon his physical
examination of Kimayra, Dr. Vélez-Borrás concluded that her condition
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was genetic in nature. Dr. Aubrey Milunsky, a genetics expert who
testified for Dr. Rivera-Cotté, also partially based his conclusion
that Kimayra's cerebral palsy was genetic in origin on her physical
appearance.
B.
Rubert-Torres argues that the district court violated
Kimayra's due process rights when it barred Kimayra from the courtroom
and eventually from the courthouse entirely, and that it abused its
discretion in refusing, without explanation, to allow the neurological
demonstration requiring Kimayra's presence in the courtroom. There is
no dispute that Rubert-Torres preserved these issues in the district
court. We review the district court's decision to exclude Kimayra from
the courthouse for abuse of discretion. See González-Marín v.
Equitable Life Assurance Soc'y, 845 F.2d 1140, 1146 (1st Cir. 1988).
We also review evidentiary rulings, such as the district court's
decision to disallow Kimayra's presence in the courtroom for
evidentiary purposes, for abuse of discretion. See Lynch v. City of
Boston, 180 F.3d 1, 15 (1st Cir. 1999).
1.
We first examine the district court's decision to ban Kimayra
from the courthouse. Rubert-Torres relies heavily upon Helminski v.
Ayerst Lab., 766 F.2d 208 (6th Cir. 1985), which we cited with approval
in González-Marín, 845 F.2d at 1146. Helminski held that a court may
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"exclude the plaintiff or limit [her] presence" without denying due
process, 766 F.2d at 217, if her "mere presence . . . would render the
jury unable to arrive at an unbiased judgment concerning liability,"
id., and she cannot "understand the proceedings and aid counsel." Id.
at 218; González-Marín, 845 F.2d at 1146 ("We agree with the ruling of
the Helminski court that a trial court may decide to bar from the
courtroom a disabled plaintiff incapable of comprehending judicial
proceedings during the liability phase of a trial in order to prevent
prejudicing the jury."). This is so because, in that situation, the
court must balance the plaintiff's due process rights with the
defendant's right to an unbiased jury trial. See Helminski, 766 F.2d
at 217.
Helminski outlined steps a court could take to determine
whether the plaintiff could be excluded. In the usual case involving
a disabled plaintiff, both parties, before trial, should raise the
issue of prejudice of the jury, and the district court should hold an
evidentiary hearing at which it "observes the injured party." Id. At
the hearing, the defendant has the burden of persuasion to show that
the plaintiff should be excluded because his or her "mere presence will
prejudice the jury." Id. Only if the defendant persuades the district
court of jury prejudice should the court question whether the plaintiff
"can comprehend the proceedings and assist counsel in any meaningful
way." Id. at 218. A plaintiff may only be excluded from court if both
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her presence would prejudice the jury and she cannot understand counsel
and assist in the case. See id.
In this case, the district court apparently decided to
exclude Kimayra from the courthouse in a meeting with counsel in
chambers after trial had begun. No record of the discussion was made;
therefore, we cannot know what occurred. There is no record of an
evidentiary hearing. There is no indication whether the district court
considered Helminski, even though we stated our approval of it in
González-Marín. The court had observed Kimayra, but did not hold an
evidentiary hearing to determine prejudice of the jury. There is no
record that Rivera-Cotté, who sought Kimayra's exclusion at trial, was
required by the district court to bring forward evidence that Kimayra's
very presence would jeopardize his right to an unbiased jury trial.
The district court did not make findings of fact and conclusions of law
on the record as to jury prejudice, or as to the extent to which
Kimayra could comprehend and assist counsel at trial. We are thus left
to review the court's decisions in a vacuum, entirely unable to
determine the precise reasons why it banned Kimayra from the courtroom
and the courthouse.
Because of the lack of record, we are hesitant to address
this important due process issue, especially if there must be a new
trial on the second issue. We therefore turn to the evidentiary
question.
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2.
Rubert-Torres contends there was reversible error in the
district court's refusal, after Dr. Rivera-Cotté's objection, to allow
Kimayra in the courtroom for the purpose of a physical demonstration
during Dr. Hausknecht's testimony. The court neither stated the
evidentiary rule upon which it relied, nor allowed argument on the
objection, nor made findings concerning the prejudicial versus
probative effect of the evidence. We can only assume that its decision
was based upon Federal Rule of Evidence 403, which excludes relevant
evidence because its prejudicial effect is substantially greater than
its probativeness.
We do not always require explicit findings on a Rule 403
decision, see Navarro de Cosme v. Hospital Pavía, 922 F.2d 926, 931
(1st Cir. 1991), although they would assist us in our review
obligation. See 2 Weinstein's Federal Evidence § 403.03, at 403-31 to
403-32 (2d ed. 1999) ("When a trial judge excludes evidence under Rule
403, the judge should make a clear statement of the reason for the
record . . . . [R]easoned explanations are the very essence of
judicial method.") (internal quotation omitted). In our review, we
give district courts "substantial deference" in Rule 403 decisions.
Espeaignnette v. Gene Tierney Co., Inc., 43 F.3d 1, 8 (1st Cir. 1994).
The question before us is whether the district court abused its
discretion in excluding the physical demonstration.
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Clearly, the evidence was highly relevant. As has been
explained, experts for both Rubert-Torres and Dr. Rivera-Cotté relied
upon Kimayra's physical appearance to make expert conclusions. They
disagreed as to what they saw and the resultant conclusions differed.
While those experts were allowed to describe Kimayra's appearance for
the jury, the "clearest evidence" on her physical appearance would have
been for the jury to see her, which is usually favored over mere
description. 4 Wigmore on Evidence § 1158 (Chadbourn rev. 1972); see
also id. § 1151; Rich v. Ellerman & Bucknall S.S. Co., 278 F.2d 704,
708 (2d Cir. 1960) ("Limitation of proof of the nature of the injuries
to a description by a doctor was unduly restrictive. Autoptic
proference is always proper, unless reasons of policy apply to exclude
it."). Additionally, in this case, the evidence was fundamental to the
central issue in the case: causation. When proffered evidence relates
to the central issue in a case, it is a difficult matter indeed to show
that the prejudicial effect of that evidence substantially outweighs
its highly probative nature, as Rule 403 requires. See Espeaignnette,
43 F.3d at 8-9; Swajian v. General Motors Corp., 916 F.2d 31, 34-35
(1st Cir. 1990). We have no findings and no statement to explain the
district court's apparent disregard for this highly probative evidence
on the central issue at trial.
In addition, even assuming the jury view preference was
somewhat prejudicial, the district court could have used a less
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restrictive means to minimize the prejudice than entirely excluding
Kimayra from the courtroom. For instance, the court might have
considered limiting the amount of time she would be present before the
jury, allowing her to enter and exit the courtroom outside the jury's
presence, and giving limiting instructions -- all of which might
minimize prejudice without requiring exclusion. See González-Marín,
845 F.2d at 1146-47; Helminski, 766 F.2d at 217; 4 Wigmore on Evidence,
supra § 1158. Because the Federal Rules of Evidence favor the
admissibility of evidence, less intrusive measures to minimizing the
prejudicial effect of evidence are preferred to excluding evidence.
See 2 Weinstein's Federal Evidence, supra § 403.02[2][c].
Finally, we are concerned about the somewhat arbitrary nature
of the district court's Rule 403 ruling. We have reversed other Rule
403 exclusions when, as in this case, the evidentiary question is
complex and not self-evident, the district court ruled before allowing
a response to the objection, there were no findings on prejudice and
probativeness, and a "hair-trigger" decision was made. See United
States v. Brooks, 145 F.3d 446, 454-55 (1st Cir. 1998), citing In re
Paoli R.R. Yard PCB Litig., 916 F.2d 829, 836 (3d Cir. 1990) and United
States v. Roberts, 978 F.2d 17, 24-25 (1st Cir. 1992).
We conclude that this is one of those rare and
"extraordinarily compelling circumstances" in which we must "reverse a
district court's on-the-spot judgment concerning the relative weighing
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of probative value and unfair effect." Espeaignnette, 43 F.3d at 5.
We do not do so lightly, but because of the highly probative nature of
the jury view of Kimayra, the lack of use of less restrictive means of
eliminating the prejudicial effect of the evidence, and the "arbitrary
manner in which the judge proceeded [which] furnishes a complementary
reason, powerful in itself," Brooks, 145 F.3d at 455, we hold that the
district court abused its discretion in disallowing the demonstrative
evidence.
Of course, error in this evidentiary ruling does not require
reversal unless it is harmful. "Our [harmlessness] inquiry is whether
exclusion or admission of the evidence affected plaintiff's substantial
rights. The central question is whether this court can say with fair
assurance that the judgment was not substantially swayed by the error."
Lynch, 180 F.3d at 15. On such a central issue as causation, and in
the absence of specific findings of prejudice, it would be speculation
at best, much less with fair assurance, to say that the jury verdict
was unaffected by the error.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER
PROCEEDINGS.
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