United States Court of Appeals
For the First Circuit
No. 03-1516
DIANA RAMÍREZ and HUMBERTO RAMÍREZ,
Plaintiffs, Appellants,
v.
NATALIO DEBS-ELÍAS, M.D.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
Robert A. Rosenblatt, with whom Francisco López-Romo, were on
brief, for appellants.
José A. González-Villamil, with whom Eugene F. Hestres and
Bird Bird & Hestres, PSC, were on brief, for appellee.
May 12, 2005
TORRUELLA, Circuit Judge. Plaintiffs-appellants Diana
and Humberto Ramírez appeal from the denial of a motion for
mistrial and claim that the district court erred by admitting
hearsay evidence during the testimony of an expert witness for the
defendant-appellee, Dr. Natalio Debs-Elías, in a medical
malpractice trial in the District of Puerto Rico. After careful
review, we find that the district court did not abuse its
discretion in denying the motion or in admitting the testimony in
question.1
I. Background
Appellants filed a medical malpractice suit in the
District of Puerto Rico, sitting in diversity, against Debs,
alleging that he negligently performed surgery to investigate fluid
leakage that occurred after stitches were removed following Diana
Ramírez's breast augmentation and scar-removal surgery. Debs
1
We note that appellants' brief fails to comply with Federal Rule
of Appellate Procedure 28(a)(4), which requires a jurisdictional
statement identifying the basis for subject-matter jurisdiction, a
statement of the relevant facts supporting appellate jurisdiction,
dates of filing, and an assertion that the appeal is from a final
order or judgment or is otherwise subject to the jurisdiction of
this court. Ramírez's brief states only that jurisdiction exists
under 28 U.S.C. § 2255. The incorrect citation of the federal
habeas statute as the source of federal jurisdiction, combined with
the various other procedural shortcomings of appellants' filings
with this court, go beyond appellants' characterization at oral
argument as a mere "technical oversight." While it is within our
authority to take action -- including dismissal as requested by
Debs -- in response to the failure to comply with the rules of
procedure, see Fed. R. App. P. 3(a)(2), we find it unnecessary
because the appeal lacks substantive merit.
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performed no diagnostic testing to confirm his suspicion that the
leakage came from a ruptured implant prior to performing the second
surgery. Appellants claimed that, as a result of the second
surgery, the scarring Ramírez had sought to have corrected was
actually made worse, and one of her breasts was deformed.
During a six-day trial in February 2003, the appellants
presented an expert witness, Dr. José Pérez-Guerri, to establish
that the treatment Debs provided fell below the relevant standard
of care, a required element for a claim of medical negligence under
Puerto Rico law. See Olivers v. Abreu, 101 D.P.R. 209, 226-27, 1
P.R. Sup. Ct. Off'l Translations 293, 313 (1973). To rebut this
evidence, the defense called its own expert, Dr. Robert Walton,
whose testimony is the subject of this appeal.
During Dr. Walton's direct examination, over repeated
objections from the appellants, the defense referred Dr. Walton to
Dr. Pérez-Guerri's testimony that the second procedure had caused
additional scarring, and asked, "What do you have to say about
that?" Dr. Walton responded, "My Spanish is not very good, but
there is a term for this, it's called 'disparate.'" "Disparate" is
a Spanish term that translates as "nonsense" or "absurdity," New
Revised Velázquez Spanish and English Dictionary 268 (1985),
although appellants contend that it carries a more negative or
disparaging connotation than its English equivalents suggest. The
jury burst into laughter at the use of the term, prompting
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appellants' counsel to move for a mistrial on the ground that Dr.
Walton had improperly characterized the testimony of Dr. Pérez-
Guerri, thus resulting in prejudice to the jury. The district
court agreed that Dr. Walton had stepped outside the bounds of his
role as witness, and accordingly struck the response from the
record, instructed the jury to "totally disregard" the response,
and admonished Dr. Walton to adhere strictly to his professional
opinion.2
After the direct examination resumed, Dr. Walton was
asked what the medical literature indicates about scarring caused
by a second surgery. Following an objection that the question
called for a response that would necessarily be comprised of
hearsay, the defense asked Dr. Walton whether he was familiar with
the literature on the subject. Over a renewed hearsay objection,
Dr. Walton responded by referring to a Dr. Earl Peacock, who, Dr.
Walton testified, had published research on the topic of scarring.
He then continued, "A long time ago, when surgeons started doing
repairs in the fingers," at which point the appellants' counsel
objected that the answer was nonresponsive, and then made another
hearsay objection and a request to strike the references to Dr.
Peacock. The court questioned the witness directly, establishing
that he was testifying not from Dr. Peacock's work, but from his
2
In addition, when it instructed the jury at the close of the
trial, the district court twice reminded the jurors that they must
not consider stricken testimony in their deliberations.
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own collective knowledge, including other sources, independent
research, and experience with the subject of scarring. Dr. Walton
was then permitted to continue his answer, in which he explained
that the only clinical evidence or other research that indicated
increased scarring when a second surgery is performed soon after a
first was specific to surgery performed on the hand.
On February 23, 2003, the jury returned a verdict for the
defendant, indicating on a special verdict form that it did not
find that Debs violated the standard of care by performing the
second surgery. Appellants now argue that the district court
abused its discretion in denying the motion for a mistrial as a
result of Dr. Walton's characterization of the appellants' expert
testimony as "disparate," and in permitting Dr. Walton to present
hearsay testimony,3 in the form of an oral summary of Dr. Peacock's
published research. Since we find no abuse of discretion, we
affirm the judgment below.
3
Debs suggests that appellants have waived the hearsay issue by
failing to address it adequately in their brief. We disagree.
While the brief devotes only a few pages to the issue, it
adequately describes the relevant facts, which it analyzes in the
context of specific rules of evidence and caselaw. Thus, the issue
is not raised in the "perfunctory manner" that would result in its
waiver. See, e.g., United States v. Bongiorno, 106 F.3d 1027, 1034
(1st Cir. 1997).
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II. Analysis
1. Motion for mistrial
Debs does not challenge the district court's ruling that
Dr. Walton's description of Dr. Pérez-Guerri's conclusions was an
inadmissible characterization of the latter's testimony. Thus, we
have only to consider whether, assuming the evidentiary error, the
district court abused its discretion when it opted to strike the
testimony and issue a curative instruction instead of declaring a
mistrial. See United States v. Rullán-Rivera, 60 F.3d 16, 18 (1st
Cir. 1995) ("A ruling denying a motion for mistrial is reviewed for
manifest abuse of discretion . . . ."). Our caselaw on this point
is clear:
When . . . a motion to declare a mistrial has
its genesis in a claim that improper evidence
came before the jury, the court must first
weigh the claim of impropriety and, if that
claim is well founded, strike the offending
evidence. Next, unless the court believes
that the evidence is seriously prejudicial and
that a curative instruction will be an
insufficient antidote, the court should
proceed with the trial after instructing the
jury to disregard the evidence. Declaring a
mistrial is a last resort, only to be
implemented if the taint is ineradicable, that
is, only if the trial judge believes that the
jury's exposure to the evidence is likely to
prove beyond realistic hope of repair.
United States v. Sepúlveda, 15 F.3d 1161, 1184 (1st Cir. 1993)
(emphasis added); see also Rodríguez-Torres v. Caribbean Forms
Mfr., Inc., 399 F.3d 52, 63 (1st Cir. 2005) (applying same standard
to civil employment discrimination claim). We went on to note that
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"within wide margins, the potential for prejudice stemming from
improper testimony . . . can be satisfactorily dispelled by
appropriate curative instructions." Sepúlveda, 15 F.3d at 1184.
Moreover, on review, we must presume that jurors will follow a
direct instruction to disregard the offending evidence. Id. at
1185. This presumption is only rebutted if "it appears probable
that . . . responsible jurors will not be able to put the testimony
to one side, and, moreover, that the testimony will likely be
seriously prejudicial to the aggrieved party." Id.; see also Greer
v. Miller, 483 U.S. 756, 766 n.8 (1987) ("We normally presume that
a jury will follow an instruction to disregard inadmissible
evidence . . . unless there is an overwhelming probability that the
jury will be unable to follow the court's instructions, and a
strong likelihood that the effect of the evidence would be
devastating to the defendant.") (internal quotation marks and
citations omitted).
Put simply, appellants have not come close to rebutting
our presumption that the district court's curative instruction to
disregard -- issued immediately after Dr. Walton gave the
challenged testimony and reinforced during the final jury
instructions -- was sufficient to remedy any prejudice caused by
Dr. Walton's use of the term "disparate." Appellants argue that
they were prejudiced by the undercutting of Dr. Pérez-Guerri's
testimony, which was the only evidence submitted to show the
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requisite standard of care, yet they have made no satisfactory
showing that it was "probable" that the jury would have been unable
to put aside Dr. Walton's comment when instructed to do so. On
this point, appellants can offer only the observations that the
jurors laughed when Dr. Walton referred to Dr. Pérez-Guerri's
conclusions as "disparate," and that the statement constituted an
assessment of Dr. Pérez-Guerri's credibility. With regard to the
former, the jury's outburst preceded the curative instructions, and
appears to have been nothing more than a spontaneous response to
the use of an unexpected colloquialism in the courtroom. The
district court observed this behavior from a much better vantage
point than ours, and evidently did not interpret it to be an
indication that the jury had been irredeemably biased. We see no
reason to question this evaluation.
We also reject appellants' argument that the nature of
the erroneous testimony -- a statement that, they argue, impugned
their expert's credibility -- required a mistrial. Even if we
accept appellants' claim that the challenged testimony impugned
their expert's credibility, we still would not think that they were
entitled to a mistrial. Contrary to the appellants' reading of our
decision in United States v. Shay, we there held that expert
testimony directed at credibility need not always be excluded as a
matter of law. 57 F.3d 126, 131-32 (1st Cir. 1995) ("[N]o
constitutional provision, law, or rule requires the automatic
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exclusion of expert testimony simply because it concerns a
credibility question."). If such testimony need not always be
excluded, it cannot be the case that it must always lead to a
mistrial. Under the circumstances, we can find no abuse of
discretion in the district court's choice to issue a curative
instruction rather than take the drastic step of declaring a
mistrial.
2. Hearsay objection
We find appellants' hearsay objection equally lacking in
merit. They argue that Dr. Walton summarized the published
findings of Dr. Peacock, which, if true, would constitute hearsay
testimony as defined by Federal Rule of Evidence 801. The hearsay
did not, they argue, fall within the "learned treatise" exception
of Rule 803(18) because no foundation was laid to establish the
reliability of Dr. Peacock's studies. Moreover, they argue, Rule
803(18) permits only the reading of the text of a learned treatise,
not an oral summary thereof.4 We review the district court's
evidentiary rulings for abuse of discretion. See, e.g., Rodríguez-
Torres, 399 F.3d at 62.
We find that appellants' analysis went off course at the
start. It may appear from Dr. Walton's initial response that he
4
Appellants also argue that Dr. Walton's failure to mention the
Peacock studies at his pre-trial deposition "compound[ed] the
hearsay problem[]," Br. of Appellants at 15, although they cite no
legal authority to explain how. We note that appellants have made
no separate claim of any discovery violation.
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was launching into a summary of Dr. Peacock's published works.
However, the district court questioned Dr. Walton extensively on
this point prior to letting him continue his answer:
THE COURT: Are you talking now from your own
experience, Doctor?
THE WITNESS: I'm talking about the concept of
intervening early versus intervening late.
THE COURT: Are you talking about what the
previous writer has indicated or are you
talking about other sources of information?
THE WITNESS: Other sources of information,
it's my collective --
. . .
THE COURT: Have you independently written
about this?
THE WITNESS: Yes, I have, sir. I have
written --
THE COURT: And researched this subject
yourself?
THE WITNESS: Yes, I have.
THE COURT: And you have had experience on
this subject?
THE WITNESS: Yes, sir.
THE COURT: Very well. You can go ahead and
answer.
Trial Tr. at 62-64, Ramírez v. Debs-Elías (D.P.R. Feb. 21, 2003)
(No. 01-1034). Based on this exchange, it is clear that the
testimony following Dr. Walton's reference to the studies of Dr.
Peacock was not a summary thereof, but rather a description, based
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on Dr. Walton's own expertise, of the current state of medical
research on the subject of scarring.5 While it may be that Dr.
Walton's expert opinion was formed, in part, on the basis of the
published works of Dr. Peacock and other researchers, scholarly
literature is information reasonably relied upon by medical
experts. See Fed. R. Evid. 703; cf. Trull v. Volkswagen of Am.,
Inc., 187 F.3d 88, 97 (1st Cir. 1999) (finding no abuse of
discretion in admission of testimony about the content of a
published report based on federally collected data, because, inter
alia, it "appear[ed] to satisfy Fed. R. Evid. 703"). We see no
abuse of discretion in the district court's admission of Dr.
Walton's expert testimony.
3. Sanctions
Finally, Debs has requested that we award costs and
attorney's fees to him as a sanction for the filing of a frivolous
appeal. We have imposed sanctions under Federal Rule of Appellate
Procedure 38 where "the overwhelming weight of precedent was
against appellant's position, where appellant could set forth no
facts to support its position, or where, in short, there simply was
no legitimate basis for pursuing an appeal." Kowalski v. Gagne,
914 F.2d 299, 309 (1st Cir. 1990). With respect to their appeal of
5
To the extent that the initial statement that a Dr. Peacock had
published studies on scarring was itself hearsay, we find that it
would have had no prejudicial effect because there was no testimony
concerning the content of those studies. Thus, any potential error
in admitting it was harmless.
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the district court's refusal to declare a mistrial, appellants
failed even to mention our controlling precedent from Sepúlveda in
their brief, and have fallen far short of rebutting our presumption
that the district court's curative instruction was sufficient to
repair any prejudice that resulted from the characterization of Dr.
Pérez-Guerri's testimony as "disparate." Appellants' hearsay
argument also lacks any legitimate basis in light of the testimony
actually admitted. We are therefore inclined to award reasonable
attorney's fees, in addition to the costs automatically awarded
upon affirmance, against appellants.
III. Conclusion
For the reasons stated above, the judgment of the
district court is affirmed. In accordance with Federal Rule of
Appellate Procedure 38, appellants are ordered to file, within 14
days of the entry of this judgment, a response indicating why
attorney's fees should not be awarded to appellee.
Affirmed.
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